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12/28/95 APPLICATION FOR JUDGMENT AND SALE BY

December 28, 1995

IN RE APPLICATION FOR JUDGMENT AND SALE BY THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF ST. CLAIR COUNTY, ILLINOIS, IN CONFORMITY WITH THE REVENUE ACT OF 1939, AS AMENDED (JESSE L. HOWELL AND DEBORAH A. HOWELL, PETITIONERS-APPELLEES,
v.
GALMON CORPORATION, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of St. Clair County. No. 89-TX-93. Honorable Robert P. LeChien, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Kuehn, J., and Welch, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

On October 22, 1991, the trial court judge, Honorable Richard Aguirre, granted the petition of Galmon Corporation (Galmon) for a tax deed to property owned by the appellees, Jesse and Deborah Howell (the owners). On February 24, 1994, another trial court judge, Honorable Robert LeChien, issued an order allowing the owners' petition to cancel the tax deed. Judge LeChien's order setting aside the tax deed was based upon his finding that the earlier order granting the tax deed was void for lack of jurisdiction. Galmon appeals from the order setting aside the tax deed and from the trial court's denial of its posttrial motion.

The issue presented for our review appears to be a question of first impression in Illinois: whether a property owner can redeem property for back taxes after a petition for tax deed has been filed, without complying with the requirements of section 253(f) of the Revenue Act of 1939 (35 ILCS 205/253(f) (West 1992)). For reasons we will more fully set forth, we hold that a property owner must comply with section 253(f) after the tax purchaser has filed its petition for tax deed. Accordingly, we reverse the trial court's order setting aside the tax deed.

The facts of this case are not in dispute. On May 15, 1989, the owners' property was sold for delinquent taxes. The owners never lived on this property, which is an abandoned school building. On August 28, 1990, Galmon was assigned the original tax purchaser's interest in the property. On May 31, 1991, the court entered an order extending the period of redemption to October 15, 1991. Also on May 31, 1991, Galmon filed its petition for an order directing the issuance of a tax deed.

On October 11, 1991, four days before the expiration of the extended redemption period, Michael Duggan paid the full amount necessary to redeem the property. He paid the redemption amount in his own name without reference to any connection to the owners, and the certificate of redemption was issued in his name alone. It was later established that Duggan is the owners' accountant and was paying the taxes on their behalf. It is also undisputed that the owners were given all of the required statutory notices of the pending tax sale proceedings.

However, neither Duggan nor the owners were notified as to Galmon's motion for an order of default and motion for issuance of a tax deed, both of which were filed on October 22, 1991. The motion for issuance of a tax deed alleged, in part, that the redemption period was expired, that the owners had not redeemed the property prior to October 15, 1991, and that Duggan had attempted to redeem the property, but that "he was a stranger to the title of the property" and that he had no redeemable interest. The trial court entered an order of default and order for deed on October 22, 1991.

The St. Clair County Clerk issued the tax deed to Galmon on November 25, 1991, and on December 2, 1991, the clerk refunded the redemption money to Duggan, cancelling the certificate of redemption issued to him. On December 17, 1991, Galmon sold the property to East St. Louis Illinois Development Corporation (Development Corporation) for $5,776.98. The deed from Galmon to Development Corporation was recorded on December 19, 1991.

On January 8, 1992, the owners filed their petition to cancel the tax deed and on January 14, 1992, filed an amended petition, alleging, in part, that Duggan was acting as the agent of the owners when he paid the redemption money, that the redemption deprived the court of jurisdiction from that date forward, that Galmon's failure to give notice to the owners or Duggan of the hearing on the motions for default and for issuance of the deed constituted fraud, and that Galmon's allegation that Duggan was a stranger to the title amounted to fraud, since anyone who redeems property from a tax sale is presumed to be the owner or acting on behalf of the owner. 35 ILCS 205/253(a) (West 1992).

An evidentiary hearing was held on November 23, 1993, and Judge LeChien entered an order on February 24, 1993, finding that the order for issuance of the tax deed, dated October 22, 1994, was void for lack of jurisdiction. Galmon filed a posttrial motion, which was denied on August 26, 1994. This appeal followed.

We first consider whether the judge properly determined that the court's previous order of October 22, 1991, was void for lack of jurisdiction. A tax sale proceeding is an in rem action for which the circuit court acquires general subject matter jurisdiction when the county collector applies for judgment and order of sale. ( Wilder v. Finnegan (1994), 267 Ill. App. 3d 422, 642 N.E.2d 496, 204 Ill. Dec. 795.) The circuit court's power is derived from its jurisdiction over the land itself. ( Wilder, 267 Ill. App. 3d 422, 642 N.E.2d 496, 204 Ill. Dec. 795.) An order is not void merely because of an error or impropriety but is void only where the court lacked jurisdiction or exceeded its authority. ( In re Application of Cook County Collector (1991), 228 Ill. App. 3d 719, 593 N.E.2d 538, 170 Ill. Dec. 649.) Even where the error involves the lack of proper notice to the owners of the land, the trial court is not divested of jurisdiction by such error. Wilder, 267 Ill. App. 3d 422, 642 N.E.2d 496, 204 Ill. Dec. 795; Application of Cook County Collector, 228 Ill. App. 3d 719, 593 N.E.2d 538, 170 Ill. Dec. 649.

The trial court in the instant case acquired general subject matter jurisdiction when the county collector initially applied for judgment and order of sale. There is no question that the trial court which ordered the issuance of the tax deed had the inherent power to enter that order. Thus, the trial court was incorrect in determining that the October 22, 1991, order issuing the tax deed was void for lack of jurisdiction. Nevertheless, as a court of review, we may affirm the trial court on any basis discernible from the record, regardless of the reason cited by the trial court. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9, 75 Ill. Dec. 219.

In order to determine if there is any basis upon which to affirm the trial court, we now consider whether the owners made a legal redemption of their real estate. Galmon argues that the owners did not legally redeem their land, because they failed to comply with the ...


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