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In Re Application of County Collector

OPINION FILED APRIL 21, 1978.

IN RE APPLICATION OF COUNTY COLLECTOR. — (ELIZABETH M. DILLER, PETITIONER-APPELLEE,

v.

BERNARD J. KORZEN, TREASURER OF COOK COUNTY, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. MARTIN F. BRODKIN, Judge, presiding. MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Respondent appeals from a judgment granting petitioner's 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. 1975, ch. 120, par. 728a) for the loss of title to Lot 28 of her property by reason of the issuance of a tax deed. Following a bench trial, judgment was entered for $38,640.00.

Although respondent raises two issues, the dispositive issue on this appeal is whether the finding by the trial court that petitioner was "without fault or negligence" as required by statute is against the manifest weight of the evidence.

We reverse the decision of the trial court.

The stipulated facts pertinent to our disposition are as follows:

Petitioner's husband, Kenneth J. Diller, died on August 29, 1970. From 1948, until the date of his death, Kenneth J. Diller and petitioner, his wife, lived in a two-story house at 9027 North Keystone Avenue, Skokie, Illinois. Subsequent to the death of her husband petitioner continued to occupy the premises as her home. The premises are situated on two lots, Lot 28 and Lot 29. Prior to August 29, 1970, Lots 28 and 29 were owned by petitioner and her husband as joint tenants. Upon the death of her husband, and by operation of law, petitioner became the sole owner of the real estate. The second installment of the real estate taxes for both lots for the tax year 1969 were due in September 1970, and petitioner failed to pay these taxes. On March 16, 1971, Lots 28 and 29 were sold for nonpayment of taxes. A certificate of purchase for Lot 29 was issued to Suburban Tax Lien while a certificate of purchase for Lot 28 was issued to Interstate Bond Company. Petitioner paid in two installments the 1970 real estate taxes for Lot 29. On or about December 15, 1971, petitioner paid the 1970 taxes and penalties due on Lot 28 and has paid all subsequent real estate tax bills which have become due with respect to both lots. On July 14, 1973, petitioner sent a check to Suburban Tax Lien to redeem her property and she received a certificate of cancellation of tax sale with respect to Lot 29 on or about July 23, 1973. On August 8, 1973, she was personally served by Interstate Bond Company with a notice of expiration of redemption period, with respect to Lot 28. She also received, on or about August 16, 1973, by mail, a copy of the same notice. Between August 8, and August 16, 1973, petitioner returned to Interstate Bond Company a facsimile of the notice upon which she had superimposed the check to Suburban Tax Lien that she had sent on July 14, 1973, and had typewritten the words "This has been paid" to the left of the copy of the check. This document was returned to petitioner by mail August 16, 1973, after an employee of Interstate Bond Company wrote at the bottom of the document, "I have contacted the County building and they claim they have not received a deposit on this item. Virginia Traina." Interstate Bond Company assigned the certificate of purchase for Lot 28 to William B. Levy, trustee, who on December 4, 1973, substituted for Interstate Bond Company as petitioner for a tax deed to Lot 28. On April 18, 1974, the county clerk issued a tax deed on Lot 28 to William B. Levy, trustee.

At trial three witnesses testified, all on behalf of petitioner. The testimony of two of the witnesses is particularly relevant in this case.

Petitioner Elizabeth M. Diller

On August 29, 1970, when her husband died, she was 62 years old. Her educational background included one or two years of college and a year of finishing school. Later she took some special courses in domestic arts and sciences, shorthand, real estate law and real estate. She took the real estate law course about eight years before her husband died and the real estate course about five or six years before her husband passed away. In 1958, she became employed by Rustoleum Corporation and worked there for a few years. Later, she worked for short periods of time at various department stores. During her husband's lifetime, he took care of all of the financial affairs. Even when he was ill he paid all of the bills. Following her husband's death, she believed she wrote out a check for $495 for the payment of taxes and left it with Mr. Dordek, attorney for her husband's estate. The check was never cashed. Before she received a letter dated April 26, 1974, from Mr. Blair she was not aware that her house was situated on two lots. Although she thought, when she received two bills each time an installment was due, one was an original and the other a receipt or duplicate, she paid both. After receiving notices regarding taxes due on the lots, she did not consult with either an attorney who was a family friend, or a real estate lawyer who lived next door to her because she "did not want to bother people or impose on friends." She was curious about what her taxes were and after receiving the notice from Interstate Bond Company, she made copies of the notice because "she figured she had to find out what it all was about." She was under a great deal of stress during her husband's illness and has continued to be subsequent to his death.

Dr. Ronald Shlensky

He is a psychiatrist and examined petitioner on June 29, 1976, at his office. In his opinion she was psychotic at the time of the examination and at the time of her husband's death. Her psychosis would have affected her ability to understand and respond to the events around her in an organized fashion.

The trial court found that petitioner's loss of Lot 28 by reason of the issuance of a tax deed was not a result of her fault or negligence.

OPINION

The sole issue on this appeal is whether the finding of the trial court that petitioner was without fault of negligence in the loss of her property was ...


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