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In Re Application of Cook County Treasurer

OPINION FILED SEPTEMBER 10, 1981.

IN RE APPLICATION OF COOK COUNTY TREASURER. — (CENTRAL NATIONAL BANK, TRUSTEE, PETITIONER-APPELLEE,

v.

JOCELYN CONGUA, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. CORNELIUS J. COLLINS, Judge, presiding.

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

The respondent appeals from an order of the trial court setting aside a tax deed. The sole issue is whether the tax deed was obtained by fraud because the sheriff served the wrong person and his return, which was relied upon in the proceedings to issue a tax deed, indicated the correct person had been served. We find no fraud and reverse.

The petitioner, Central National Bank, was until 1975 the owner of the subject property under a land trust. On December 31, 1975, the property was sold for failure to pay 1974 taxes, to respondent's assignor. Under section 263 of the Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 744), a purchaser or assignee shall not be entitled to a tax deed to the premises sold unless not less than 3 months nor more than 5 months prior to the expiration of the period of redemption (from 2 years after the date of sale to not more than 3 years from the date of sale) he shall give notice of the sale and date of expiration of the period of redemption to the owners, occupants and parties interested in the premises. Where, as here, the property was vacant and the owner could be located in the county, the purchaser or its assignee was required to personally serve the owner with notice. The purchaser or its assignee was also required to deliver to the clerk of the circuit court a form directing that notice be served by certified mail, return receipt requested. If the owner or interested persons could not be ascertained or located, then service by publication was required. In 1976 the statute was amended to provide that the personal service was to be made "by causing it to be served by a sheriff."

On June 7, 1978, respondent filed its petition for a tax deed. Thereafter, it caused service to be made upon petitioner by the sheriff pursuant to section 263 of the Revenue Act, as amended. The sheriff's return form indicated Central National Bank was personally served on July 12, 1978, 9:35 a.m., service being made upon B.E. Sodergren (also spelled Rodergren on the return). Petitioner was also served by certified mail, the postal receipt being signed by petitioner on July 26, 1978. Finally, notice was published three times in the Chicago Daily Law Bulletin. Thereafter the respondent filed an affidavit indicating those facts including that it had caused the sheriff to serve a written notice upon petitioner — notice being left with E. Rodergren. At the November 15, 1978, hearing on the petition for a tax deed, it was again stated that petitioner was "personally served as shown in the affidavit and the Sheriff's return." The trial court found that the period of redemption had expired, no redemption had been made, notice required by law had been served on all parties in interest and due diligence had been exercised in trying to locate and serve proper parties in interest. The court ordered the issuance of the tax deed.

Over a year later, on December 13, 1979, petitioner filed a section 72 (Ill. Rev. Stat. 1977, ch. 110, par. 72), petition to vacate the order directing the county clerk to issue a tax deed. In its petition, it alleged that the statement in the affidavit that the sheriff had made service was false and fraudulent and that there had never been an employee at petitioner's named E. Sodergren or E. Rodergren. It further alleged that this name was invented and fraudulently written on the return slip to avoid the statutory requirement of service. It further incorrectly alleged that it had not been served as required by statute and had not been aware of the pending petition and only learned of the proceedings shortly after October 8, 1979 (that petitioner was served by certified mail as required by statute and had notice is conclusively established by the record). Thereafter petitioner filed a motion for summary judgment on the grounds that the sheriff by error had served the wrong institution because of a mix-up of his papers and that the affidavit stating the sheriff had served petitioner was false. Petitioner in its motion did not allege or attempt to establish fraud. The sheriff's deposition indicated that the service "got mixed in with some other papers" and was served on Federal National Mortgage Association where E. Sodergren works. He did not serve Central. The trial court granted the motion, finding, inter alia, that:

"b. this judgment is based upon the uncontradicted statement [of the deputy sheriff] concerning the alleged service of Notice upon [petitioner].

e. the failure of the Deputy Sheriff to serve [petitioner] resulting in an affidavit submitted [by respondent] for issuance of a Tax Deed stating that service was so made in reliance upon the Deputy Sheriff's return is tantamount to fraud."

Accordingly, it ordered that the order directing the issuance of a tax deed be vacated and respondent execute a deed reconveying the subject real estate to the county clerk.

I

• 1 The property in question was sold on December 31, 1975. On September 30, 1976, the amendment to section 263 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 744), requiring that service be made by the sheriff and not by the purchaser himself, became effective. It was ruled in In re Application of County Collector (1978), 66 Ill. App.3d 437, 383 N.E.2d 1224, appeal denied, that the law in effect at the time the certificate of purchase was obtained applies since the purchaser acquired a property right in the property at the time of the purchase. However, in this case not only have the parties assumed that the 1976 amendment applies, but the trial court in the 1978 proceeding was fully aware that respondent had elected to serve notice pursuant to the requirements of the 1976 amended statute and found that proper service had been made. Since the court was fully aware of what method of service was employed and approved, its approval is binding. (In re Application of County Treasurer (1974), 20 Ill. App.3d 291, 314 N.E.2d 300.) Accordingly, we hold that the rights of the parties here are governed by section 263 as amended in 1976.

II

• 2, 3 Petitioner contends that since no order for issuing the tax deed would have been given if the circuit court had been made aware that personal service had not been accomplished, the tax deed was properly set aside. Because this is not the proper test to be applied (Dick v. Mitchell (1968), 103 Ill. App.2d 93, 242 N.E.2d 785, appeal denied), we need not decide if petitioner is correct in its contention that the sheriff's error if known to the court at that time would have precluded the issuance of the deed, despite the fact the petitioner had actual notice. A court should not direct the county clerk to issue a tax deed until it is satisfied that the requirements of the Revenue Act have been met. (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, appeal denied; Dick v. Mitchell (1968), 103 Ill. App.2d 93, 242 N.E.2d 785, appeal denied.) But once the deed is issued, it is, under section 266 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 747), incontestable except by direct appeal (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill.2d 241, 222 N.E.2d 465; Urban v. Lois, Inc. (1963), 29 Ill.2d 542, 194 N.E.2d 294; Farlow v. Oliver (1963), 29 Ill.2d 493, 194 N.E.2d 262), it being the purpose of the legislature to provide a method for obtaining merchantable title. (Exline v. Weldon (1974), 57 Ill.2d 105, 311 N.E.2d 102; Urban v. Lois, Inc. (1963), 29 Ill.2d 542, 194 N.E.2d 294.) Accordingly, once, as here, the time for a direct appeal has passed, a tax deed can only be set aside if the order directing the issuance of the deed was utterly void or if the circumstances were such as to warrant the application of section 72 of the Civil Practice Act. (Farlow v. Oliver (1963), 29 Ill.2d 493, 194 N.E.2d 262.) An order is rendered void, not by reason of mere error or impropriety but by lack of jurisdiction by the issuing court of either the subject matter or the necessary parties. (Farlow v. Oliver (1963), 29 Ill.2d 493, 194 N.E.2d 262.) It is well established that jurisdiction once acquired in a tax foreclosure action continues through the entire proceedings, including the order for a deed (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Urban v. Lois, Inc. (1963), 29 Ill.2d 542, 194 N.E.2d 294; Farlow v. Oliver (1963), 29 Ill.2d 493, 194 N.E.2d 262; In re Application of County Treasurer (1974), 20 Ill. App.3d 291, 314 N.E.2d 300), and the failure of an owner to receive notice as required by sections 263 and 266 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, pars. 744, 747) does not deprive the trial court of jurisdiction to order a tax deed. In re Application of Dickey (1978), 72 Ill.2d 317, 381 N.E.2d 260.

This does not mean that a judgment obtained by deception cannot be questioned after the expiration of 30 days. If proceedings regular in form are tainted with fraud or coercion, the court is not helpless to grant relief. (Remer v. Interstate Bond Co. (1961), 21 Ill.2d 504, 173 N.E.2d 425.) But before a tax deed can be set aside under section 72 of the Civil Practice Act, it must be established that the deed was procured by fraud. (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill.2d 241, 222 N.E.2d 465; In re Application of County Collector (1978), 66 Ill. App.3d 437, 383 N.E.2d 1224, appeal denied; In re Application of County Treasurer (1974), 20 Ill. App.3d 291, 314 N.E.2d 300; Weldon v. Exline (1972), 6 Ill. App.3d 74, 284 N.E.2d 659, aff'd (1974), 57 Ill.2d 105, 311 N.E.2d 102; In re Application of County Collector (1968), 101 Ill. App.2d 1, 241 N.E.2d 641, appeal denied; In re Application of County Treasurer (1967), 84 Ill. App.2d 456, 228 N.E.2d 269, appeal denied.) The burden of proof is upon the petitioner to prove by clear and convincing evidence and not merely suspicion (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, appeal denied; In re Application of Dickey (1977), 51 Ill. App.3d 697, 366 N.E.2d 511, aff'd (1978), 72 Ill.2d 317, 381 N.E.2d 260), a "wrongful intent," an "act calculated to deceive" or a "deceptive design." Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Exline v. Weldon (1974), 57 Ill.2d 105, 311 N.E.2d 102; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill.2d 241, 222 N.E.2d 465; In re Application of County Collector (1978), 66 Ill. App.3d 437, 383 N.E.2d 1224, appeal denied; In re Application of County Treasurer (1974), 20 Ill. App.3d 291, 314 N.E.2d 300; In re Application of County Collector (1968), 101 Ill. App.2d 1, 241 N.E.2d 641, appeal denied; In re Application of County Treasurer (1967), 84 Ill. App.2d 456, 228 N.E.2d 269, appeal denied.

• 4 It follows, therefore, that in the absence of fraud, the failure to give an interested party the notice required by statute is insufficient to warrant relief under section 72 of the Civil Practice Act (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Zeve v. Levy (1967), 37 Ill.2d 404, 226 N.E.2d 620; Urban v. Lois, Inc. (1963), 29 Ill.2d 542, 194 N.E.2d 294; People v. Orth (1961), 21 Ill.2d 205, 171 N.E.2d 626; People v. O'Keefe (1960), 18 Ill.2d 386, 164 N.E.2d 5; In re Application of Soldwedel (1967), 82 Ill. App.2d 179, 225 N.E.2d 811), especially where, as here, petitioner had actual notice of the tax-sale proceedings during the redemption period. (Smith v. D.R.G., Inc. (1976), 63 Ill.2d 31, 344 N.E.2d 468; Urban v. Lois, Inc. (1963), 29 Ill.2d 542, 194 ...


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