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In Re Application of County Treasurer

OPINION FILED JULY 22, 1977.

IN RE APPLICATION OF COUNTY TREASURER. — (RUTH T. WALSH, PETITIONER,

v.

SUSPENSE DIVISION ORDERS ET AL., DEFENDANTS.) — (ALBERT C. MICHELS, PETITIONER-APPELLEE,

v.

RUTH T. WALSH, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Wayne County; the Hon. DON A. FOSTER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 30, 1977.

On January 19, 1967, Esther Clem and Albert C. Michels, her only child, filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) to set aside a tax deed which had been issued to Ruth T. Walsh, respondent, on May 31, 1961. Mrs. Clem died in January of 1968. After several amendments which do not concern us here, the amended second amended petition of Albert C. Michels, petitioner, was heard by the court on May 9, 1975. Thereafter, on July 2, 1975, the court entered judgment on the amended second amended petition, in which the court found that the tax deed had been fraudulently procured and declared the deed to be "void and vacated and set aside." Respondent has appealed.

The facts out of which this case arose can be briefly stated as follows. On October 7, 1957, a judgment and order of sale for delinquent taxes for the year of 1956 was entered by the County Court of Wayne County, Illinois. On October 30, 1957, at the Wayne County sale of real estate for unpaid 1956 taxes, respondent purchased, inter alia, "an interest described as an undivided .1250000 in and to all of the oil, gas and other minerals in and under and that may be produced from the Real Estate which is described as follows, to wit:

The East Half of the Northwest Quarter of the Southwest Quarter of Section Twenty-six (26) in Township Two (2) North, Range Seven (7) East of the Third Principal Meridian, situated in the Town of Keith, in the County of Wayne, in the State of Illinois,

owned by * * * Albert C. Michels, and leased [under the T.R. Michels "E" lease] to * * * The Pure Oil Company, a Corporation, the tenant in possession thereof." Respondent was issued a 1956 Wayne County tax sale certificate. On July 28, 1960, respondent filed in the Wayne County Court a verified petition for a tax deed for this and other interests in real estate purchased at the prior tax sale. On May 31, 1961, respondent filed her attorney's affidavit as to military service of natural defendants and her affidavit of giving the notice prescribed by sections 263 and 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1967, ch. 120, par. 744 and 747). On page 5 of the affidavit of giving notice appears the following paragraph:

"Deponent further deposes and says that, on said twenty-eighth day of July, A.D., she served a printed copy of such NOTICE affecting hereinbefore designated Tract (12) of said Real Estate [the T.R. Michels "E" lease] upon ALBERT C. MICHELS (a person interested therein who resides in said County of Wayne), personally and within said County of Wayne, a true copy of said NOTICE being annexed hereto and made a part hereof, and marked, `Exhibit A-4'."

Exhibit A-4, referred to in the paragraph of respondent's affidavit is a "notice of purchase at a tax sale and of filing a petition for tax deed" addressed to "Suspense Division Order T.R. Michels `E' Tract; Albert C. Michels; and the Pure Oil Company, a Corporation, tenant in possession of same."

On May 31, 1961, the Wayne County Court entered an order for the issuance of tax deed with respect to the above-mentioned interest in real estate as well as numerous other interests. The order recited that the court had examined the files and records and heard the testimony in the case; stated that the court had jurisdiction of the parties and the subject matter; made express reference to Ruth T. Walsh's affidavit of giving notice prescribed by sections 263 and 266 of the Revenue Act of 1939; stated that all requirements of statute for issuance of a tax deed had been strictly complied with; and ordered the tax deed to be issued.

On December 2, 1965, respondent filed suit in the circuit court of Clay County to enforce payment to her for oil taken from the tract by the Pure Oil Company, the assignee of the lease. (See Walsh v. Union Oil Co., 131 Ill. App.2d 1015, 268 N.E.2d 706, aff'd in part and remanded, 53 Ill.2d 295, 291 N.E.2d 644.) Thereafter, on January 19, 1967, Albert C. Michels and Esther Clem filed their original section 72 petition in the circuit court of Wayne County, in which they claimed that they had not learned of the tax deed proceeding until after respondent filed suit in 1965 to recover for oil taken from the tract by the Pure Oil Company.

The amended second amended petition filed by Albert C. Michels alleges that the tax deed which is the subject of the instant case had been issued as a result of "fraudulent procurement" and "fraudulent concealment" on the part of respondent. The petition alleged that because of this fraud and because of other reasons specified, the tax deed was void and should be set aside pursuant to section 72 of the Civil Practice Act. After hearing the evidence on the amended second amended petition, much of which was aimed at proving that neither petitioner nor his deceased mother, Mrs. Clem, had received the notice required by sections 263 and 266 of the Revenue Act of 1939, the circuit court of Wayne County found that the tax deed had been fraudulently procured and vacated the deed. As will be discussed hereinafter, we are of the opinion that the circuit court of Wayne County erred in vacating the tax deed and that, therefore, the case must be reversed.

• 1 Section 72 of the Civil Practice Act provides the method for relief from a final order, judgment, or decree after 30 days have elapsed from the entry of the order, judgment or decree. Section 72(3) provides that a petition for relief under section 72 must be filed within two years after the entry of the order, judgment, or decree from which relief is sought but that time during which the petitioner was under legal disability or duress or during which the ground for relief is fraudulently concealed shall not be included in computing the two-year period. Section 72(7) provides:

"Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief."

Section 72(7) makes clear that a void order, judgment, or decree can be attacked at any time, without regard to the two year limitation provided for in section 72(3). Nicholson v. Lowenstein, 77 Ill. App.2d 97, 222 N.E.2d 157, cert. denied (1967), 389 U.S. 825, 19 L.Ed.2d 78, 88 S.Ct. 62; Chapman, Mazza, ...


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