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In Re App. of Tazewell County Collector

OPINION FILED JANUARY 23, 1985.

IN RE APPLICATION OF TAZEWELL COUNTY COLLECTOR (THE PEOPLE EX REL. RUSSELL STRAUMAN, TAZEWELL COUNTY TREASURER AND EX OFFICIO COLLECTOR OF TAXES, APPELLANT,

v.

ROBERT WAGNER, APPELLEE).



Appeal from the Circuit Court of Tazewell County; the Hon. Ivan L. Yontz, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This appeal was brought on behalf of the People of the State of Illinois by Russell Strauman, county treasurer and ex officio collector of taxes of Tazewell County, following an order of the circuit court of Tazewell County providing for a refund of $1,174.40 to Robert Wagner, the purchaser of a tax sale certificate.

The sole issue presented by this appeal is whether the interest acquired by a tax purchaser is "substantially destroyed" within the meaning of section 260 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 741), when the owner of the residence subsequently removes the house from the property.

On October 27, 1980, Mr. Wagner purchased a number of real estate tax certificates in Tazewell County. Over the past few years, Mr. Wagner has purchased approximately 1,000 such tax certificates and is thoroughly familiar with the process.

One of the tax certificates (No. 815) concerned a lot with improvements located at Lot 12 in Grandview Terrace estates. The parties are in agreement that upon the purchase of the tax sale certificate, Mr. Wagner acquired a lien against not only the land or real estate (Ill. Rev. Stat. 1981, ch. 120, par. 697), but the improvements on the real estate, whether they be "buildings, structures * * * permanent fixtures * * *." Ill. Rev. Stat. 1981, ch. 120, par. 482(13); see also Jilek v. Chicago, Wilmington & Franklin Coal Co. (1943), 382 Ill. 241, 47 N.E.2d 96.

Subsequent to the tax sale, on June 30, 1981, the owners of the property removed the residence from Lot 12 to Lot 16 in the same subdivision. Apparently the house which was removed is still in good condition and is occupied. Mr. Wagner did not learn of the removal of the residence until several months later.

Mr. Wagner filed an application for a refund on the basis that the improvements had been "substantially destroyed" by virtue of their removal and that a "sale in error" should be declared pursuant to section 260 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 741).

The circuit court granted Wagner's request for a refund on the ground that removal of the residence amounted to destruction of the property. The evidence, however, indicates that the residence was not destroyed by its removal but merely relocated to a different lot nearby.

• 1, 2 A lien on property follows the property if moved, unless it is sold to an innocent purchaser, in which case the lien follows the proceeds of the sale. (Marshall Savings & Loan Association v. Chicago National Bank (1965), 56 Ill. App.2d 372, 206 N.E.2d 117.) Since the improvement to the real estate was not "substantially destroyed," there was no sale in error, and Mr. Wagner was not entitled to a refund. The lien on the residence continues to exist in Mr. Wagner's favor, wherever that residence may be located.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed.

Judgment reversed.

BARRY, J., concurs.

JUSTICE STOUDER, dissenting:

I disagree with the majority because I believe the certificate holder should have been refunded the full amount of his payment after the removal of the house from Lot 12 because to do otherwise would ultimately punish rather than protect the certificate holder. First, I disagree that the removal of the house does not constitute a substantial destruction of the improvements to Lot 12 and, even if it does not, section 260 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 741), which lists instances in which a "sale in error" shall be declared, is not an exclusive provision for refunds of tax sale proceeds. I believe the ...


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