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In Re Application of County Collector

OPINION FILED JUNE 27, 1977.

IN RE APPLICATION OF COUNTY COLLECTOR. — (THE JOHN ALLAN COMPANY, PETITIONER-APPELLANT,

v.

GWENDOLYN CAMPBELL, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Petitioner John Allan Company (Allan) petitioned the Circuit Court of Will County for the issuance of tax deeds to four parcels of real estate which had been sold at public sale for nonpayment of real estate taxes. At the first hearing on the petition on October 8, 1975, respondent Gwendolyn Campbell appeared pro se to request an additional 30 days in which to redeem the property. On August 30, 1976, after several continuances of the hearing, the trial court entered an order granting respondent a 30-day extension of the period of redemption. Respondent redeemed the properties on September 28, 1976, and on September 30, 1976, the trial court entered an order denying Allan's petition for issuance of tax deeds. On appeal petitioner Allan argues that (1) respondent is not a proper party, designated by statute, to secure an extension of the redemption period, (2) respondent's request for an extension of the redemption period was neither timely made nor timely granted, (3) respondent is only entitled to an extension of the redemption period on one of the parcels of real estate, and (4) the trial court erroneously ignored petitioner's evidence with respect to attorney's fees.

The properties involved in this proceeding consist of four contiguous subdivision lots fronting on the west side of Cayuga Street, located on the northwest corner of the intersection of Cayuga Street and Belmont Street, in Joliet, Will County, Illinois. Approximately 30 years ago Amos Campbell and respondent Gwendolyn Campbell, husband and wife, purchased these properties. The corner lot is improved with a residence in which Amos and Gwendolyn Campbell lived until they were divorced, and in which Gwendolyn Campbell has lived uninterruptedly for more than 30 years. An additional lot is also improved with a residence, which is currently occupied by respondent's widowed daughter, Marilyn Houston, and her children.

At the time the Campbells purchased the property, George Holthusen was a neighbor, and grew to be a friend of the family. Holthusen, while not a real estate broker or salesman and while unable to read or write, has dealt in real estate all his life and makes a living dealing in real estate. It appears that Holthusen is familiar with the procedures for obtaining tax deeds, having bought properties at tax sales and obtained more than 100 tax deeds.

At sometime during 1969, Holthusen offered to assist respondent in correcting some problems with the real estate involved in this action. It appears that while, at the time of the Campbell's divorce 20 years ago, the property in question was decreed to be the property of respondent Gwendolyn Campbell and her children, the records failed to show Amos Campbell divested of his interest. Holthusen offered to have his attorney prepare deeds conveying the interests of Amos Campbell, his second wife, and the children of Amos Campbell and Gwendolyn Campbell in order to make Gwendolyn Campbell the sole owner of the property. It also appears that at this time the subject property had been sold for taxes for the years 1965, 1966, and 1967, redemption from which was to expire on September 30, 1969. Gwendolyn Campbell needed money to redeem the property from these sales, and Holthusen loaned her the necessary funds.

These transactions culminated with the execution of the several deeds required to consolidate title to the property, conveying the property to Union National Bank and Trust Company Trust No. 150, a land trust established in 1962 whose only beneficiary was Holthusen. These conveyances were made to provide security for Holthusen's loan to respondent. On September 30, 1969, respondent and Holthusen, individually and as sole beneficiary of the Union National trust, executed a written agreement providing that if respondent paid Holthusen $2,500 within five years of the date of the instrument, Holthusen would quitclaim the properties to respondent.

Subsequently, the real estate taxes on the property for the year 1971 were not paid, and on March 2, 1973, the premises were sold for nonpayment of 1971 taxes to Interstate Bond Company. Additionally, taxes were not paid on the property in question in the years 1972 and 1973. During the month of September 1975 Holthusen advised respondent and her daughter Marilyn Houston to go to the county clerk's office and pay the taxes. On September 22, 1975, respondent and Marilyn Houston went to the Will County clerk's office, and apparently by oversight, a deputy clerk informed respondent that the sum of $1,009.06 was due for delinquent taxes on the subject real estate, which sum was then paid by respondent. However, the sum paid redeemed only the delinquent taxes for the years 1972 and 1973, and left the 1971 taxes unpaid.

During May 1975 the clerk of the Circuit Court of Will County had sent a notice to the Union National Bank and Trust Company, Trust No. 150, to Gwendolyn Campbell, and to Marilyn Houston, advising that the subject property had been sold for delinquent taxes for 1971, that the period of redemption would expire September 26, 1975, that a petition had been filed for a tax deed, and that a hearing would be held on the matter on October 8, 1975. When the county clerk's office learned, a few days prior to October 8, 1975, that the respondent had not redeemed from the 1971 tax sale, respondent was contacted and advised to appear at the October 8 hearing.

On October 8, 1975, Gwendolyn Campbell and Marilyn Houston appeared in open court. The certificates of sale for the real estate in question had been endorsed to petitioner John Allan Company, which was represented by counsel at the hearing. Also appearing at the hearing was an assistant Will County State's Attorney. Petitioner objected to the grant of a 30-day extension to the period of redemption and (aided by the suggestion of petitioner's counsel) the trial court on its own motion continued the cause to December 8, 1975, and directed respondent to obtain legal counsel.

On November 10, 1975, respondent filed a petition asking for an extension to the period of redemption, and on November 12, 1975, petitioner filed an answer in opposition to respondent's petition. Hearings were held on the matter from time to time with the trial court concluding the hearings on April 13, 1976, and taking the cause under advisement.

On August 3, 1976, the trial court filed a memorandum opinion finding that Gwendolyn Campbell was the owner of an equitable title in the real estate sufficient to entitle her to redeem, that her application for redemption was timely made, that she should be allowed to redeem all four of the subject parcels, and finding that reasonable attorney's fees in the amount of $1,500 should be paid to petitioner. On August 30, 1976, the trial court entered an order in accordance with its memorandum and continued the cause to September 30, 1976. On September 28, 1976, Gwendolyn Campbell redeemed the subject parcels, and at the hearing on September 30 the trial court denied petitioner's petition for a tax deed. Petitioner appeals from these orders of the trial court. In addition to petitioner and respondent, the Will County State's Attorney, has participated in this appeal, as well as in the proceedings in the trial court.

The parties to this appeal agree that determination of the issues presented rests in the application of section 253 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 734) in effect at the time the subject property was sold for delinquent taxes, which provides in part:

"On all real property sold under provisions of this Act, after July 1, 1971, if such real property is improved with a structure consisting of at least one and not more than 4 dwelling units and one or more of said dwelling units is occupied by the owner or owners thereof as his principal place of residence at the date of the expiration of the period of redemption, upon written or oral application made at the first court hearing held pursuant to Section 266 of this Act [pertaining to hearing on petition for issuance of tax deed], the court shall grant such owner the right to redeem within 30 days after the date of such court hearing by payment of such amounts as are required by this Act for making redemptions during the period of redemption or any extended period of redemption; however, in addition thereto, there shall be added to the cost of such redemption a sum ...


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