APPEAL from the Circuit Court of Cook County; the Hon. MARTIN
F. BRODKIN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
The trial court granted the petition filed by Donald Murray (petitioner) under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) and vacated, on the ground of fraud, its earlier order directing the County Clerk of Cook County to issue a tax deed to Evelyn Gerus (respondent). Respondent appeals, contending that the trial court's finding that the tax deed was procured through fraud is against the manifest weight of the evidence and that reversible error was committed by the trial court because of an improper discussion concerning the value of the property.
1 It is settled law that a tax deed can be set aside only by proceedings under section 72 of the Civil Practice Act and that in such proceedings the findings of the court ordering the issuance of the tax deed cannot be attacked collaterally unless the record establishes fraud. (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; In re Application of County Collector (1975), 26 Ill. App.3d 234, 325 N.E.2d 15; In re Application of County Collector (1978), 66 Ill. App.3d 437, 383 N.E.2d 1224.) Fraud has been defined as a wrongful intent, an act calculated to deceive. (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; In re Application of County Collector (1978), 66 Ill. App.3d 437, 383 N.E.2d 1224.) Thus the principal question before this court is whether the trial court's finding of fraud is against the manifest weight of the evidence.
The record discloses the following: On January 23, 1974, Evelyn Gerus purchased at auction the vacant lot at 648 West Willow Street in Chicago, Illinois, for the unpaid 1972 real estate taxes and, on October 18, 1976, filed a petition for a tax deed. The property was not redeemed from the tax sale. On February 24, 1977, a hearing was held on her petition for a tax deed and, on March 21, 1977, an order was entered that the tax deed issue to Evelyn Gerus. A tax deed was so issued.
At the hearing on the petition for a tax deed, the only witness was Roy Huffman, a professional tax and title searcher and the former son-in-law of Evelyn Gerus. He testified that he had inspected the vacant and unimproved lot on October 15, 1976. Prior to that, on September 9, 1976, he had made an examination of the tract records to determine the parties in interest and the owner. His examination indicated that the owner was 648 W. Willow Limited Partnership (partnership) and the only other party in interest was the county clerk. He gave the sheriff the address of 1925 North Lincoln Avenue as the address for service on the partnership. The sheriff did not find the partnership at that address. Huffman made a further search to determine if there was a different location for the owner. First of all, he looked at the deed by which title was transferred to the partnership. He testified that it showed that the deed was mailed back to the partnership at the 1925 North Lincoln Avenue address in 1973 when it took title. The Chicago and suburban telephone directories showed no listing for the partnership. The tax delinquent rolls did not list the partnership, but listed Lincoln Park Federal. He telephoned Lincoln Park Federal to try to determine if they could help him as to this property for which the tax bill was being sent to them. To the best of their knowledge, they had no recollection of any interest in the property; it might have been that at one time they held a mortgage or the owner used them for mailing purposes; they really couldn't tell him the reason the tax bill was being sent to them; they had no interest in the property.
Huffman then went to the building at 1925 North Lincoln Avenue, which consisted of two or three stores. He questioned the people there. None of them had heard of the 648 W. Willow Limited Partnership. He also went to a real estate office in the building. The man there said they did not have the partnership in their office, but he gave Huffman the telephone number of the owner of the 1925 North Lincoln Avenue building and indicated that they might have been there at one time and maybe the owner of the building could help Huffman with a forwarding address. Huffman called that telephone number and spoke with a man who indicated he had never heard of the partnership and could not give him any information about it.
Huffman then examined the Corporation Index and found no address. He then notified the sheriff's office that 1925 North Lincoln Avenue was the last known address of the partnership. The sheriff served the county clerk.
The witness also testified that the subsequent taxes for 1973, 1974 and 1975 were unpaid and forfeited to the State and that they were in the process of getting bills which they would pay and come in at a later date. The paid taxes would be submitted with the transcript.
At the end of the hearing, the court stated that there would be a finding that the period of redemption had expired with no redemption having been made, the notices required by law had been given, that due diligence had been used in locating and serving the parties in interest and that the case would be continued for proof of payment of subsequent taxes pending the furnishing of the transcript of the proceedings.
On March 21, 1977, an order was entered directing the issuance of a tax deed to Evelyn Gerus. The order found that all taxes subsequent to the sale had been paid.
On June 2, 1977, Ronald Murray, a general partner in the 648 W. Willow Limited Partnership, filed a petition under section 72 of the Civil Practice Act to vacate the order of March 21, 1977. The petition alleged that fraud was committed on the court in that Roy Huffman testified falsely when he stated that the deed which he examined showed that the deed by which the partnership took title was mailed to the 648 W. Willow Limited Partnership at the 1925 North Lincoln Avenue address, for the reason that the deed shows that Ronald Murray was the person who should receive all subsequent tax bills at the Lincoln Avenue address and that the deed was mailed back to William Levinson, an attorney at 77 West Washington Street. Huffman also testified falsely when he said he had gone to the tax delinquent rolls and checked for an assessment address on the owner and that the Willow Street partnership was not listed. If he had checked the rolls subsequent to 1973, the year the partnership took title, he would have found the name of the assessee as Ronald Murray with his address in Deerfield, Illinois. Huffman also testified falsely when he stated that he had gone to a real estate office in the 1925 North Lincoln Avenue building and was told that the person there could give him the telephone number of the owner of that building, that he called the number given him and spoke with an unnamed man who said he had never heard of the partnership. The petition stated that the owner of the building was Ronald Murray.
On October 6, 1977, a hearing was held on the petition. Andrew N. Samaritano testified that he had a real estate office named Townhall Realty at 1925 North Lincoln Avenue. He was the sole proprietor and he and Kenneth Levin were the only persons in that office during September and October of 1976. He had authority to sell the 648 W. Willow property at that time. He had no recollection of a Roy Huffman during that time coming to his office to inquire concerning the whereabouts of either the 648 W. Willow Limited Partnership or of a Ronald Murray. If anyone inquired about Ronald Murray at his office, he would ascertain the nature of that person's business and decide whether to give him the telephone number of Murray.
Kenneth Levin testified that he was the only other person who would have been in that office in September and October of 1976. He did not recall at any time from 1973 through March of 1977 a Roy Huffman ever coming to the office and inquiring about the whereabouts of the 648 W. Willow Limited Partnership or of Ronald Murray. He did not recall anyone coming into the office between September and October 1976 and inquiring about 648 W. Willow Street. He had never seen Roy Huffman before seeing him now in court. If anyone inquired about Ronald Murray he would refer him to Andrew Samaritano.
Ronald Murray testified that he is a general partner in the 648 W. Willow Limited Partnership and that Townhall Realty had authority to sell the property at 648 W. Willow Street during September and October of 1976. Andrew Samaritano had authority to give out Murray's telephone number and to forward to him any mail addressed to him at Townhall Realty. Murray also testified that he was the general partner of the partnership which owns the 1925 North Lincoln Avenue building. All of the tenants there know him personally. He visits the building two or three times a week. He further testified that he never received a telephone call from Roy Huffman.
William Levinson testified that his law firm represented the 648 W. Willow Limited Partnership. He is the William Levinson at 77 West Washington Street whose name appears at the bottom of the deed conveying title to the limited partnership. To the best of his recollection, no Roy Huffman ever came to his office at any time in 1976 and asked him about the whereabouts of the 648 W. Willow Limited Partnership.
Roy Huffman, called by petitioner under section 60 of the Civil Practice Act, testified that he had been doing tax and title searches for around 13 years. During that time he had searched out more than one thousand titles. He was not employed or paid by anyone to do the tax title search with reference to the Willow Street property. He was asked to do it by Evelyn Gerus, his former ...