APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendants appeal from an order of the circuit court of Du Page County which voided a tax deed issued to the defendants' predecessors in title and ordered the subject property, save one lot, to be conveyed to the West Chicago Park District, a nonparty to the instant proceedings.
The subject property, known as High Lake Park, consists of approximately 8 acres of land in the High Lake area of Du Page County. High Lake was originally developed by Edmund A. Cummings, who recorded a plat of High Lake Subdivision in 1910. The plat indicated that the subject property, which at that time contained a shallow lake of about 3 acres, was "not a part of the subdivision." Lots in the subdivision were thereafter sold on the representation that the subject property would be devoted to "park and recreation purposes." A "community clubhouse" was erected on the subject property with a road and footpath leading to it. The grounds were cared for by Cummings during his lifetime and upon his death in 1922, by an association of residents known as the High Lake Improvement Association, from 1923 to 1925. Houses have been erected on some of the lots in the subdivision, but many of the lots are still vacant.
Neither the will nor a record of the probate of the estate of Cummings appear of record in Du Page County. The instant record does indicate, however, that upon the death of Cummings, the defendant, Chicago Title and Trust Company, as trustee under Cummings' will, became the holder of the legal title to the subject property. The plaintiffs introduced an exhibit which purported to be a statement authorized on July 28, 1927, by an officer of the defendant Chicago Title and Trust Company which stated:
"This declaration witnesseth that the undersigned, the Trustee under the Will of said Edmund A. Cummings claims no interest in said land other than to see that it is devoted to park and recreational purposes as intended by the said Edmund A. Cummings and Will, on the request of the persons authorized to direct conveyance, convey the title to said land to Park Commissioners or Trustees, or Village officers, or such other public body as may be entitled to take title and own and maintain said land for the purposes for which it has heretofore been used and as a public park for the use of residents and owners of lots in High Lake."
The instant record further indicates that the subject property was exempted from taxation by order of the county court in 1927 as a result of objections filed by Chicago Title and Trust Company. While the record of those proceedings does not appear in this record, it appears that Chicago Title and Trust Company alleged, and the court based the exemption upon its finding, that all of the beneficial use of the subject property had become vested in the public by reason of the dedication thereof by Cummings to the public use and the subsequent use thereof by the public.
By the early 1950's, the lake in High Lake Park had dried up, the clubhouse had burned down and the property had become overgrown. Beginning in 1954 an effort was begun to restore the lake and rehabilitate the park but this effort proved unsuccessful and the area was "left to go back to nature."
Based upon the affidavit of one Henry G. Bates, the subject property was placed on the tax roles in 1954. The taxes were assessed to Edmund Cummings, who apparently was still listed as the record owner of the parcel. The taxes assessed against the property in 1954 were not paid and in 1958 an order was entered directing the issuance of a tax deed to one L. Paul, the purchaser of the property for delinquent taxes. Thereafter, by mesne conveyance, the property was conveyed to the defendant, State Bank of West Chicago as Trustee, with the defendants, Louis C. Lyons and Lawrence D. Veber, as the beneficial owners thereof. A plat of subdivision of the property was recorded on May 8, 1972, and on May 16, 1972, lot 1 in the subdivision was conveyed to John R. and Marie S. Blasen, who executed a mortgage and thereafter erected a house thereon. General taxes have been levied on the subject property since 1958 and have been paid annually.
The instant action was commenced on June 22, 1972. Plaintiffs Large and Fry own property immediately adjacent to the subject property and plaintiffs Sargent and Stough own property in the immediate vicinity thereof. In Count I of their amended complaint, plaintiffs, in essence, alleged that the title to the subject property held by the defendant, State Bank of West Chicago as trustee, defeats the purposes set forth by Cummings when he conveyed the property to Chicago Title and Trust Company to be held "* * * as a public park for the use of residents and owners of lots in High Lake." Count II stated an action in ejectment seeking damages wherein, inter alia, plaintiffs alleged that the defendants Lyons, Veber and State Bank had unlawfully entered into High Lake Park and taken possession and control thereof.
Defendants answered the amended complaint and, in addition, stated several affirmative defenses. In essence, the defendants alleged that the defendant, State Bank, held title to High Lake Park by a series of conveyances, beginning with the deed obtained by L. Paul and that plaintiffs were attempting to collaterally attack the proceedings in which L. Paul obtained title to the property. Defendants then variously prayed that the court find that the complaint was in effect a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72), seeking post-judgment review of the tax deed proceeding; that the order for the issuance of the tax deed is reviewable only by appeal; that the title of the State Bank of West Chicago is a fee simple title by reason of section 7 of the Limitations Act (Ill. Rev. Stat. 1971, ch. 83, par. 7); that section 72 relief cannot be had more than two years after the entry of the order for the tax deed; that the State Bank of West Chicago and its grantees are bona fide purchasers for value and immune from attack under the provisions of section 72(5) of the Civil Practice Act; that plaintiffs lack an interest in the subject property sufficient to entitle them to maintain the suit; and that plaintiffs' action is barred by laches.
At the beginning of the trial of this case, the following colloquy ensued between Mr. Munson, counsel for the plaintiffs, and Mr. Rossiter, counsel for the defendants Lyons, Veber and the State Bank of West Chicago:
"MR. MUNSON: * * * Mr. Rossiter in his answer has raised an affirmative defense, or I should say affirmative defenses, almost all of which pertain to the issuance of a certain tax deed to a man known only as L. Paul for the real estate taxes for the year 1954.
I have not replied to the factual allegations in that affirmative defense, as I review my file.
And as far as I am concerned, all of the facts which Mr. Rossiter has pleaded in that affirmative defense are well pleaded and are ...