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Exline v. Weldon





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County; the Hon. LaVerne A. Dixon, Judge, presiding.


Rehearing denied May 31, 1974.

The appeal involves proceedings in the circuit court of Lake County to set aside a tax deed issued to appellee, Robert W. Weldon, on December 11, 1969. Appellants, David J. Exline and his wife, filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) in the circuit court seeking to vacate the order which directed issuance of the deed. Their petition was allowed but the appellate court reversed. It held that appellee's actions in failing to notify appellants of the application for the deed did not constitute fraud, and, as such, the section 72 proceeding could not be sustained. (Weldon v. Exline, 6 Ill. App.3d 74.) We granted leave to appeal.

The property at issue is vacant land located in Lake County. Appellants bought this property in January, 1966, from Robert Bourseau, and their deed was recorded. The real estate taxes accruing for the year 1966 were not paid and the property was sold to appellee in November, 1967, for $24.66, which represented the taxes due plus costs. On July 25, 1969, appellee filed a petition in the circuit court of Lake County requesting issuance of a tax deed. During the subsequent ex parte hearing on December 11, 1969, appellee testified as follows:

"I have caused to be served in the manner and within the time required by Sections 744, 745 and 747 of the Revenue Act of 1939, as amended [Ill. Rev. Stat. 1969, ch. 120, pars. 744, 745 and 747], a notice upon all persons whose names said real estate was last assessed and taxed for general taxes, upon the owner or parties interested in such real estate and upon the County Clerk of Lake County, Illinois.

A diligent search was made for parties interested in said property in Lake County, Illinois in the various telephone books, city directories, and voting lists, in an attempt to locate them. Interested parties were found in the County Records Office.

A notice was sent by certified mail, return receipt requested, to Mr. Robert I. Bourseau, 1225 E. Central Rd., Arlington Hts., Ill., and was returned by the Post Office with the indication, `Unclaimed, Moved, not forwardable' as evidenced by exhibit attached hereto.

Notice was served upon parties by publication in the Waukegan News-Sun on the 25th, 26th and 27th day of August, 1969.

All general taxes and special assessments which became due and payable subsequent to the said sale have been paid by the * * * [appellee] herein and there have been no forfeitures of said taxes nor subsequent sales of said taxes by virtue of non-payment thereof.

The last assessee to said property is in the name of Robert I. Bourseau. The time for redemption from said sale has expired on the 28th day of November, 1969, and that as of said date the real estate has not been redeemed from said sale.

Notices and other pertinent information are attached hereto as Exhibits A through G, inclusive."

The circuit court then ruled that all notices required by law had been properly given and ordered that a tax deed be issued to appellee.

On December 10, 1970, appellants sought to vacate the aforesaid order. Their section 72 petition alleged that they had only recently become aware that a tax deed had been issued; that they were the owners of record of the property, having taken title by a duly recorded warranty deed in 1966; that said deed indicated they were residents of Cook County; that their names were listed in a telephone directory which also contained listings for several municipalities of Lake County, including the town where the disputed property was situated; and that appellee did not comply with section 263 of the Revenue Act, as amended (Ill. Rev. Stat. 1969, ch. 120, par. 744), in affording notice to them of the tax-deed proceedings. Basically they contended that appellee had perpetrated a fraud upon the court in representing that the notice requirements of section 263 had been fulfilled.

Subsequent pleadings filed by appellants in support of their allegation of fraud additionally averred that appellee had failed to contact the party who had notarized the warranty deed and who was to receive the deed after it was recorded. The notary's affidavit attached thereto supported their claim that appellee had not contacted him, but it did ...

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