Appeal from the Circuit Court of Johnson County. No. 92-CH-14. Honorable James R. Williamson, Judge, presiding.
The opinion of the court was delivered by: Welch
JUSTICE WELCH delivered the opinion of the court:
Plaintiffs, George W. Dodds, the record owner, and Gene Wilder, the contract purchaser from Dodds, filed an action in the circuit court of Johnson County in three counts seeking: to quiet title in them to certain real estate described as the west part of the northwest quarter of the southwest quarter of section 31, Tunnel Township, Johnson County, Illinois, containing 17.2 acres; ejectment of defendants, Michael E. Finnegan, Pamela S. McAnelley, and Jerry D. Stewart, from the above-described real estate and damages, rents, and profits; and an injunction against defendants crossing other land of plaintiffs to reach the above-described real estate in dispute. After hearing evidence and argument, the trial court ruled in favor of defendants on all counts. For reasons which follow, we affirm.
Plaintiff Dodds had acquired record title to the property in 1962 by a deed from John Monroe which conveyed a total of 395 acres. The 17.2 acres in dispute is located within, and surrounded by, the remainder of Dodds' land. In 1990, Dodds and Wilder entered into a contract for deed whereby Wilder was to purchase the entire 395 acres from Dodds. Unbeknownst to plaintiffs, the 17.2 acres described above had been sold in a tax proceeding, and a tax deed had been issued in 1981 to Carl Barnett. The 17.2 acres was eventually conveyed to defendants in 1990.
A painstaking review of the record reveals that, for unknown reasons, taxes on the 17.2 acres had never been assessed to plaintiff Dodds but had continued to be assessed in the name of a previous record owner who had conveyed the property in 1913 and died in 1928. Accordingly, although Dodds had paid all tax bills he had received, he had never paid taxes on the 17.2 acres. For some years, the taxes on the 17.2 acres continued to be paid by unknown parties, but the 1975 taxes were unpaid and the property was sold at a tax sale.
Plaintiffs' claims to quiet title and for ejectment rest on their argument that the tax deed to Carl Barnett, issued in 1981, is void because the tax-deed petitioner, Carl Barnett, wholly failed to follow the most essential statutory requirements for the issuance of a valid tax deed. Specifically, Dodds claims that not only did he, as record owner of the property, never receive notice of the tax-deed proceeding, but Barnett never made any effort, much less diligent inquiry, to discover the name or address of the record owner, which would have been easily disclosed by the county real estate records.
It is true that the record of the tax-deed proceeding does not indicate any attempt to discover or notify the record owner, other than the order directing issuance of a tax deed, signed by a Judge of the first judicial circuit, which recites that all notices required by law had been given in the manner and form and within the time provided by law and that petitioner had complied with all of the provisions of law entitling him to a deed. It has been held that where such a finding of compliance has been entered, it will thereafter be presumed that satisfactory proof of this fact was presented to the court even though such evidence is not preserved in the record. Novak v. Smith (1990), 197 Ill. App. 3d 390, 397, 554 N.E.2d 652, 655, 143 Ill. Dec. 717; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 245, 222 N.E.2d 465, 467.
It is well settled by statute and case law that tax deeds are incontestable except by direct appeal or by a petition for postjudgment relief pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1992)). (35 ILCS 205/266 (West 1992); In re Application of Cook County Collector (1991), 228 Ill. App.3d 719, 729, 593 N.E.2d 538, 546, 170 Ill. Dec. 649.) Petitions for postjudgment relief must be brought within two years of the entry of the order from which relief is sought and must be filed in the same proceeding in which that order was entered. Accordingly, a suit to quiet title brought more than two years after entry of the order from which relief is sought is an improper method of challenging a tax deed. (See Choate v. Unknown Heirs & Devisees of Cole (1981), 103 Ill. App. 3d 1, 3, 430 N.E.2d 504, 506, 58 Ill. Dec. 472.) (We note that there is no allegation or evidence that plaintiffs were under a legal disability or duress or that the "ground for relief" from the order directing issuance of a tax deed was fraudulently concealed so as to toll the two-year limitation of section 2-1401. See 735 ILCS 5/2-1401(c) (West 1992).
Plaintiffs argue, however, that the order of the trial court in the tax-deed proceeding directing issuance of the tax deed is void because the tax-deed petitioner's failure to exercise diligence to identify and notify the record owner deprived the court of jurisdiction. Although a void order can be attacked at any time and is from its inception a complete nullity and without legal effect, an order is not void merely because of an error or impropriety. (Application of Cook County Collector, 228 I1l.App.3d at 731, 593 N.E.2d at 547.) An order is void only where the court which entered it lacked jurisdiction, exceeded its authority, or lacked the inherent power to enter the order. ( Application of Cook County Collector, 228 Ill. App. 3d at 731, 593 N.E.2d at 547.) There is no question that the trial court which ordered the issuance of the tax deed here had jurisdiction, authority, and inherent power to enter the order.
It is well settled that a tax sale is an in rem action, and a court acquires jurisdiction after the county collector makes his application for judgment and order of sale. ( In re Application of County Treasurer (1990), 194 Ill. App. 3d 721, 724, 551 N.E.2d 343, 346, 141 Ill. Dec. 350.) It is the jurisdiction over the land itself that gives the county court the power to act. ( Novak v. Smith (1990), 197 Ill. App. 3d 390, 395, 554 N.E.2d 652, 655, 143 Ill. Dec. 717.) Thus, a determination of whether a party has been given the notice required goes to whether the court should order the tax deed to issue and not to whether the court has jurisdiction in the proceeding. ( Application of County Treasurer, 194 Ill. App. 3d at 724, 551 N.E.2d at 346.) The failure of the tax-deed petitioner to give the notices required by statute will neither divest the court of jurisdiction nor prevent it from finding that all the necessary notices have been given and directing that a tax deed issue. (Application of Dickey (1977), 51 Il1.App.3d 697, 702, 366 N.E.2d 511, 515, aff'd (1978), 72 Ill. 2d 317, 381 N.E.2d 260, 21 Ill. Dec. 182.) Even where the finding that the required notices had been given is in error, it does not divest the court of jurisdiction to issue the tax deed, which jurisdiction the court acquired when the county collector made an application for judgment and order of sale of the property. Dickey, 51 Ill. App. 3d at 702-03, 366 N.E.2d at 516.
Accordingly, plaintiffs' argument that the court's order directing issuance of a tax deed was void for lack of jurisdiction is without merit. In order to prevail in a suit for ejectment or to quiet title, plaintiffs must prove title superior to that of defendants. ( Bulatovic v. Dobritchanin (1993), 252 Ill. App. 3d 122, 128, 625 N.E.2d 26, 32, 192 Ill. Dec. 66; Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 812, 480 N.E.2d 1312, 1327, 89 Ill. Dec. 569.) Because defendants held title to the 17.2 acres through a valid tax deed, and because that deed is now incontestable, plaintiffs were not entitled to judgment in ejectment or to have title quieted in their names. Accordingly, we affirm the trial court's judgment in favor of defendants on counts II (ejectment) and III (quiet title) of plaintiffs' amended complaint.
Plaintiffs also argue that defendants' deed is void because it contains an insufficient legal description. That deed purports to convey: "a part of the West Half of the Northwest Quarter of the Southwest Quarter of Section 31, Township 11 South, Range 3 East of the third principal meridian, containing 17.2 acres more or less. Situated in the County of Johnson and the State of Illinois." Plaintiffs argue that this description fails to describe the land with any definitely ascertainable location or boundary. Although section 4a of the Conveyances Act (765 ILCS 5/4a (West 1992)), as well as case law ( Chicago & A.R. Co. v. Langer (1919), 288 Ill. 16, 21-22, 123 N.E. 61, 63), requires that real estate be conveyed with sufficient legal description to identify the land, we find that the deed in question here contains a sufficient legal description to identify the land conveyed to defendants. Although the deed describes the land conveyed as "a part of the West Half * * * containing 17.2 acres more or less" (emphasis added), a review of the exhibits contained in the record on appeal discloses that the entire west half of the northwest quarter of the southwest quarter contains approximately 17.95 acres. It is clear that the deed to defendants is intended to convey the entire west half of the northwest quarter of the southwest quarter of section 31, and the legal description contained therein is sufficient to identify the land conveyed. Accordingly, the deed to defendants is not void.
Finally, plaintiffs argue that the trial court's denial of their claim for injunction prohibiting defendants from crossing their land to access their own 17.2 acres is against the manifest weight of the evidence. The trial court denied plaintiffs' claim for an injunction, based on its finding that defendants held an easement by necessity over the land of plaintiffs. We affirm the trial court's denial of plaintiffs' claim for injunction, but for a reason different than that relied upon by the trial court. Of course, this court may affirm the judgment of the trial court upon any ground appearing of record, regardless of whether it was relied upon by the trial court and ...