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In Re Application of County Treasurer





APPEAL from the Circuit Court of Stephenson County; the Hon. ROBERT D. LAW, Judge, presiding.


Rehearing denied March 22, 1979.

Petitioner, D.R.G., Inc., brings this appeal from a trial court order granting the motion of respondent property owners, Eva and Ferd Bauch, to strike and dismiss petitioner's application for a tax deed. A detailed statement of facts and the history of this litigation is set out below in order to present the issues raised by this appeal.

In 1953, Eva Bauch acquired title to certain property which she subdivided as Bauch's Second Addition to the city of Freeport; the instant proceeding concerns Lots 7 and 8 in Block 2 of that subdivision.

On July 1, 1957, the city of Freeport passed an ordinance providing for the construction of sidewalks in the neighborhood that included the property owned by the respondents. Among other things, the ordinance set out where the sidewalk was to be located and the types of materials to be used in the construction thereof. Respondents obtained a copy of the ordinance as they wished to install the sidewalk serving their two lots. The ordinance, due to a technical defect, was repealed on July 15, 1957. Soon thereafter, the city engineer set the stakes for laying the sidewalk; on August 9, 1957, respondents had the sidewalk poured by their own contractor for their two lots. Approximately 20 days later respondents received a notice that a new sidewalk ordinance, almost identical to the first one, had been passed by the city of Freeport. Later the city sent respondents a notice that the sidewalk they had poured was not properly located and on November 1, 1957, the city sent a contractor to respondent's property who ripped out their sidewalk and installed a new sidewalk two or three feet further from the curb. Under the date of September 16, 1958, respondents received a bill from the contractor who installed the sidewalk for the city; this bill was in the sum of approximately $685. The respondent next heard from the city in 1961 when the city sent a special assessment bill for the sidewalk. Respondents never appeared at any council meetings of the city or in any court with reference to the two ordinances involved with the sidewalk special assessment. Eva Bauch recalls receiving one other notice about the special assessment after 1961, but she did not recall exactly when that was received.

In October of 1957, the respondents conveyed to their two daughters the south 30 feet of Lots 7 and 8 in Block 2; this area included or was adjacent to the sidewalk in question. By a deed dated August 1, 1960, the two daughters of the respondents reconveyed the 30 feet last described to the respondents; however, this deed was not recorded until January 11, 1973. A consideration of $100 in cash was paid by the grantees at the time of each of the aforesaid conveyances. The apparent motive for these conveyances was to lower the assessed value of the premises due to the split ownership.

On October 15, 1973, the respondents' property was sold for $1,058.44 at the annual tax sale conducted by the county collector of Stephenson County for the unpaid sidewalk special assessment described above. The legal description contained in the certificate evidencing the tax sale was as follows:

"2nd Addition: Lot 7 except 30 feet of Lot 8, Block 2, Bauch's 2nd Addition."

The certificate further stated that the property was assessed to Eva and Ferd Bauch, 1130 W. Stover, Freeport.

On October 2, 1975, petitioner filed a statement with the county clerk extending the period of redemption to March 5, 1976. On October 10, 1975, this proceeding began when petitioner filed a petition for deed. On October 16, 1975, respondents filed an answer denying most of the allegations of the petition for deed and further alleging that petitioner had failed to comply with the provisions of the Illinois Income Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 1-101 et seq.). On December 2, 1975, petitioner filed a copy of the notice of the tax sale and proof of service thereof by mail on the respondents at 1130 W. Stover, Freeport, Illinois; this notice stated that the period of redemption had previously been extended to March 5, 1976, and said notice specified March 10, 1976, as the date for hearing on the petition for a tax deed.

On March 4, 1976, one day prior to the expiration of the period of redemption as extended, respondents filed a motion requesting an additional 30 days from March 10, 1976, in which to make the redemption from the tax sale. On March 10, 1976, petitioner filed its application for a tax deed accompanied by supporting affidavits and exhibits purporting to show compliance with sections 263 and 266 of the Revenue Act of 1939. (Ill. Rev. Stat. 1975, ch. 120, pars. 744 and 747). On March 15, 1976, the court entered an order pursuant to respondent's motion giving them 30 days from March 10, 1976, to make a redemption from the tax sale by paying an amount to be computed by the county clerk of Stephenson County; this order also continued the cause to April 9, 1976, for further hearing.

Instead of redeeming, respondents, on March 16, 1976, filed a motion to dismiss the petition for tax deed and it is the trial court's decision on this motion that is presented by this appeal.

The salient points raised by respondents' motion may be summarized as follows: (1) The tax sale was invalid because the legal description contained in the certificate of sale cannot be located and identified and it is therefore uncertain; (2) that the special assessment as applied to respondents' property is invalid for the following reasons: (a) respondents had constructed a proper sidewalk and the city capriciously ripped it out and installed another; (b) notice of the special assessment was not given to the owners of record, namely, the respondents' daughters; (c) the city did not comply with the special assessment law; and (3) the value of the real estate is greatly in excess of the tax lien being asserted.

On April 5, 1976, pursuant to respondents' motion, the court entered an order directing the county clerk to accept $3,015.32 in redemption from said tax sale within 30 days from March 10, 1976; said amount included $1,050 as ...

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