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01/10/97 APPLICATION FOR TAX DEED (S. I. SECURITIES

January 10, 1997

IN RE APPLICATION FOR TAX DEED (S. I. SECURITIES, AN ILLINOIS PARTNERSHIP, PETITIONER-APPELLANT,
v.
TIM WEATHERLY, THE HARRISBURG NATIONAL BANK, UNKNOWN OWNERS OR PARTIES INTERESTED, AND NONRECORD CLAIMANTS, RESPONDENTS-APPELLEES).



Appeal from the Circuit Court of Saline County. No. 95-TX-14. Honorable Bruce D. Stewart, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Maag and Hopkins, JJ., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

This case comes to us on appeal from the circuit court of Saline County, which denied the petition of petitioner S.I. Securities for a tax deed to certain property which it had purchased at a tax sale for delinquent general taxes for the year 1991. The property was owned by respondent Tim Weatherly and was mortgaged to respondent The Harrisburg National Bank, now known as Citizens Bank of Illinois, N.A. (Citizens Bank).

The trial court ruled that petitioner had failed to serve Stephanie Weatherly, the wife of Tim Weatherly, with notice of the expiration of the period of redemption as required by section 22-10 of the Property Tax Code. 35 ILCS 200/22-10 (West 1994). That section requires a tax deed purchaser to serve notice of the expiration of the period of redemption on "owners, occupants and parties interested in the property." 35 ILCS 200/22-10 (West 1994). The trial court found that Stephanie, while not an owner of the property, was an occupant of the property and as such was entitled to notice under section 22-10. The trial court further found that petitioner had failed to exercise due diligence to discover, locate, and serve Stephanie and therefore was not entitled to a tax deed. We agree and affirm the judgment of the trial court denying petitioner's petition for a tax deed.

The following facts are not in dispute. The property in question is a single-family residence located on three acres. Tim Weatherly was the sole owner of the property in question. He had purchased the property prior to marrying Stephanie. However, Stephanie had resided on the property with Tim since their marriage on December 20, 1991. At the time of the hearing on petitioner's petition for tax deed, Tim and Stephanie had one child. Stephanie's name was not on the deed to the property or the mortgage and did not appear in the record of title. Tim and Stephanie were married in Kentucky, and their marriage was not registered in Saline County. Stephanie was registered to vote in Saline County.

The property was sold for delinquent taxes on October 19, 1992. Petitioner filed its petition for a tax deed on June 29, 1995. The final extended period for redemption of the property expired on October 19, 1995, exactly three years after the sale.

Stephanie was never served with any notices of the tax sale proceedings, including the notice required by section 22-10, which must be served on an occupant by personal service or by abode service in accordance with section 22-15 of the Property Tax Code. 35 ILCS 200/22-15 (West 1994). A copy of the notice must also be mailed to an occupant by certified mail, return receipt requested, in accordance with section 22-25 of the Property Tax Code. 35 ILCS 200/22-25 (West 1994).

Section 22-15 further provides that where upon "diligent inquiry and effort" an owner or party interested cannot be found or served with notice in the county, they may be served with a copy of the notice by registered or certified mail, return receipt requested, at their residence, if ascertainable. 35 ILCS 200/22-15 (West 1994). No such provision is made with respect to occupants of the property, who presumably may be found at the property. Tim Weatherly was personally served with the notice and does not contest the sufficiency of notice to him.

Both the Property Tax Code and the Illinois Constitution of 1970 require that occupants be given notice of the tax sale and the date of expiration of the period of redemption. 35 ILCS 200/22-5, 22-10 (West 1994); Ill. Const. 1970, art. 9, ยง 8(e). This notice requirement has been held to be mandatory, and satisfaction thereof is a condition precedent to the issuance of a tax deed. Ohr v. Prairie Material Sales, Inc., 100 Ill. App. 3d 178, 180, 55 Ill. Dec. 622, 426 N.E.2d 947 (1981). It is undisputed that Stephanie was not given this notice. We must now decide whether Stephanie was entitled to the notice as an "occupant" of the property within the meaning of the Property Tax Code. Because this question involves statutory construction, a question of law, we review the issue de novo. Village of South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 367, 149 Ill. Dec. 17, 561 N.E.2d 295 (1990).

The term occupant is nowhere defined in the Property Tax Code, nor do we find any case law construing the term occupant as used in the Property Tax Code. Accordingly, we must look to the words of the statute. Courts should look to the language of the statute as the best indication of legislative intent, giving the terms of the statute their ordinary meaning. In re Judgment & Sale of Delinquent Property for Tax Year 1989, 167 Ill. 2d 161, 168, 212 Ill. Dec. 215, 656 N.E.2d 1049 (1995). Where the statutory language is clear and unambiguous, the plain and ordinary meaning of the words will be given effect without resorting to extrinsic aids for construction. Board of Education of Rockford School District No. 205 v. Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 87, 208 Ill. Dec. 313, 649 N.E.2d 369 (1995). We find no ambiguity in the term occupants or the provisions of the Property Tax Code requiring notice to occupants, and we therefore give the term its plain and ordinary meaning.

Black's Law Dictionary defines the term occupant as follows: "Person in possession. Person having possessory rights, who can control what goes on on premises. One who has actual use, possession or control of a thing." Black's Law Dictionary 1078 (6th ed. 1990).

Webster's Third New International Dictionary also defines the term occupant as one who has the actual use or possession of something or as one who occupies a particular place or premises. Webster's Third New International Dictionary 1560 (1976).

Again, where the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meaning. Niven v. Siqueira, 109 Ill. 2d 357, 366, 94 Ill. Dec. 60, 487 N.E.2d 937 (1985). We think the plain and ordinary meaning of the term occupant includes a spouse who permanently resides on the property with his or her owner/spouse and who has some control over what goes on on the property. Under the plain and ordinary meaning of the term occupant, ...


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