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Kelly v. Lunding

OPINION FILED MARCH 11, 1985.

FRANCES J. KELLY, PLAINTIFF-APPELLANT,

v.

FRANKLIN J. LUNDING, JR., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. George W. Rothschild, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Frances J. Kelly, brought a forcible entry and detainer action against defendants Franklin J. Lunding, Jr., and Helen S. Lunding for possession of the property located at 672 Elder Lane, Winnetka. Plaintiff claimed right of possession as the holder of a tax deed issued to plaintiff by the United States of America, Department of the Treasury, for unpaid Federal taxes. Defendants filed an answer denying that plaintiff was entitled to possession and that they unlawfully withheld possession and prayed for judgment in their favor. After a hearing at which evidence was introduced, the trial court found that the tax deed was void and entered judgment for defendants. Plaintiff appeals, contending that she was entitled to possession of the property because she complied with the statutory requirements of the forcible entry and detainer article of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 9-101 et seq.). Defendants contend that the controlling issue was the validity of the tax deed, upon which plaintiff's right of possession solely depended, that this issue was properly before the trial court and properly decided by it.

In 1963 Franklin J. Lunding, Jr., acquired the property located at 672 Elder Lane, and resided there continuously and regularly with his family until some time in 1983 when he moved out. He and his family were regular and continuous residents at that location in September of 1982, when the Internal Revenue Service allegedly sold the property to the plaintiff, Frances J. Kelly, for unpaid taxes. The Internal Revenue Service knew that the Lundings resided at that address at that time, inasmuch as its records reflected that address as their residence.

Franklin Lunding, Jr. testified that he received no notice from the Internal Revenue Service or anyone else that it was going to sell his property for unpaid taxes on September 30, 1982. The first notice he received that any such sale had occurred was on or about May 11, 1983, when he received a document entitled "Notice of Termination of Tenancy" by registered mail from the plaintiff's attorney. A subsequent investigation by him disclosed the tax sale. He received the notice of termination of tenancy more than seven months after the tax sale and well after the expiration of the time period in which he could have redeemed his property from the sale and after the Internal Revenue Service had issued to Frances Kelly a "District Director's Deed" on April 21, 1983.

Mr. Robert M. DeMuro, a revenue officer employed by the Internal Revenue Service, testified that it was his specific duty to collect taxes from delinquent taxpayers, including the property located at 672 Elder Lane. He knew that Franklin Lunding, Jr., was the owner of that property. He also identified the record of the Internal Revenue Service "recording the actions relative to the seizure and sale of a piece of property," and testified that he had personal knowledge of the facts, dates and activities conducted that were indicated in that record. He acknowledged that he was the one who served "notice" on Mr. Lunding, but that it was "not personal service." He stated that the only "notice" given to Franklin J. Lunding, Jr., was mailed to his residence by certified mail, but that that notice was never received by Mr. Lunding. He also testified that he never attempted to deliver personally a copy of the notice to Mr. Lunding at any time or place.

• 1 We reject plaintiff's argument that she was entitled to judgment because she complied with the statutory requirements of the Forcible Entry and Detainer Act. Assuming, arguendo, that she did comply, that compliance did not automatically require judgment in her favor; if the tax deed under which she claims the right of possession was void, the trial court correctly decided for defendants.

• 2 Section 9-106 of the forcible entry and detainer article (Ill. Rev. Stat. 1983, ch. 110, par. 9-106) provides in pertinent part:

"The defendant may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. * * *"

In Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 263 N.E.2d 833, the court held that the validity of installment contracts for the purchase of realty was germane to the determination of the right of possession in a forcible entry and detainer action. The court said in referring to the Forcible Entry and Detainer Act (46 Ill.2d 249, 256-57):

"Limiting ourselves to a consideration of the act only so far as it applies to contract purchasers of land, this case is, so far as we can ascertain, one of first impression in this court. It is our opinion that the defenses going to the validity and enforceability of the contracts relied upon by the plaintiffs were germane to the distinctive purpose of the forcible entry and detainer actions and were improperly stricken. That purpose, to repeat, is to restore possession to one who is entitled to the right of possession. `Germane' has been judicially defined as meaning `closely allied,' and is further defined in Webster's New Twentieth Century Dictionary, p. 767, as meaning: `closely related; closely connected; relevant; pertinent; appropriate.' Where as here, the right to possession a plaintiff seeks to assert has its source in an installment contract for the purchase of real estate by the defendant, we believe it must necessarily follow that matters which go to the validity and enforceability of that contract are germane, or relevant, to a determination of the right to possession."

In HCT Corp. v. Southgate Village, Inc. (1980), 81 Ill. App.3d 477, 401 N.E.2d 578, the court held that where right of possession has its source in an installment contract for the sale of realty, matters relating to the validity and enforceability of the contract are germane to determination of the right of possession.

Under those authorities, the validity of plaintiff's tax deed is the controlling question.

• 3 Plaintiff argues that the issue of the validity of the tax deed should not have been considered by the trial court because it was not raised by proper pleading. We disagree.

The first sentence of the above quoted paragraph of the forcible entry and detainer article states that a defendant under a "general denial" (which defendant filed here) may offer in evidence any matter in defense. The second sentence limits that evidence to matters which are germane to the claim of right of possession, whether raised by pleading "or otherwise." The ...


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