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Garcia v. Rosewell

OPINION FILED OCTOBER 20, 1976.

ROSE GARCIA, PLAINTIFF-APPELLANT,

v.

EDWARD J. ROSEWELL, TREASURER OF COOK COUNTY, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF. — (ARTHUR DUNAS, THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Rose Garcia, appeals from a judgment of the Circuit Court of Cook County which denied her petition for indemnity from the Treasurer of Cook County pursuant to the provisions of section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 728a) for the loss of title to her property by reason of the issuance of a tax deed. The judgment also dismissed the third-party complaint filed by the Treasurer of Cook County against Arthur Dunas.

The issues for review are whether the plaintiff is "without fault or negligence" as required by the statute and whether the plaintiff had sufficient financial resources to redeem her property.

Rose Garcia lived with her family at 9117 South Buffalo Avenue in the city of Chicago from 1957 until 1974. She and her husband failed to pay their 1969 and 1970 tax bills totaling approximately $400 because of the financial strain caused by the long illness of Mr. Garcia which culminated in his death in February of 1974. Mr. Garcia had worked for the Wisconsin Steel Company but was unable to work in the final several years prior to his death. Mrs. Garcia was not able to work because she had to take care of her husband and their nine children.

The property was sold by the Cook County Collector for failure to pay the 1969 taxes, and a tax certificate issued and assigned to Ruth Lubershane, who held it for Max Lubershane and Arthur Dunas. The 1970 taxes were unpaid and the Collector sold the property and a tax certificate issued and assigned to Thornton Ltd. Thornton obtained a tax deed pursuant to law after notice was served upon the plaintiff and her husband on or about November 10, 1973. In September of 1973, Arthur Dunas visited Mrs. Garcia and told her he had bought the property for the 1969 taxes and she would have to buy the property back from him. He apparently showed her the tax certificate which she believed to be a deed to the property. She told him she wanted to pay the taxes, but he said it could not be done. He told her he would have a contract drawn up and she could buy the house back for payments of $100 per month.

Mrs. Garcia testified as follows:

"I says, `But I am willing to try to pay all the taxes back. Would you sell me the house back on the back taxes?' And he said, `No,' he says, `What I can do is sell you the house for $7,000.'"

Mrs. Garcia made four payments to Dunas of $100 for which she received receipts indicating the amounts were to be applied to purchase. She stopped making payments in January of 1974 when a woman, apparently representing Thornton Ltd., visited her and told her to stop.

In fact, Arthur Dunas had nothing more than the tax certificate for the 1969 taxes and never obtained a tax deed. Thornton Ltd., however, followed the statutory procedures including giving notice to Mr. and Mrs. Garcia, and obtained a tax deed based on the purchase of the 1970 taxes. The notices received by the Garcias between November 10 and November 15 of 1973 stated the property had been sold for delinquent 1970 taxes and urged redemption by March 13, 1974, to prevent loss of the property. It also stated that further information could be obtained by contacting the County Clerk. The estimated cost of redeeming the property from Thornton Ltd. at that time was $402.16. The plaintiff did not redeem the property, and a tax deed was issued to Thornton Ltd.

On June 21, 1974, the plaintiff filed a petition for indemnity from the Treasurer of Cook County, as provided for in section 247a of the Act (Ill. Rev. Stat. 1973, ch. 120, par. 728a), and on January 30, 1975, the Treasurer filed a third-party complaint against Arthur Dunas, alleging that if the Treasurer were found to be liable to the plaintiff, such liability was caused solely by the fraud and deceit of Arthur Dunas.

In directing the verdict for the defendant the trial judge stated that Mrs. Garcia's failure to pursue the notices received when Thornton Ltd. made an application for the tax deed constituted negligence and that the loss of the property was caused by the failure of the financial resources of the Garcia family.

Whether Mrs. Garcia's conduct in not responding to the notices constituted "fault or negligence" for the purposes of this statute is a question of first impression. The section of the statute upon which the plaintiff relies states as follows:

"Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon." Ill. Rev. Stat. 1973, ch. 120, par. 728a(4).

• 1 In order to give effect to the legislative intent of the term "without fault or negligence" this court may consider the reasons or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statute. (Cherin v. R. & C. Co. (1957), 11 Ill.2d 447; Petterson v. City of Naperville (1956), 9 Ill.2d 233.) We note the legislature acted at a time when there was a public outcry as the result of tax buyers taking advantage of unsophisticated property owners who had fallen behind on their ...


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