*1 was entitled to holding plaintiff pre- the suit and the settlement are re- interest on the amount of judgment is affirmed. The judgments plain-- versed. The balance of the interest in addition to the attorney tiff recover may $417.72 fees. and reversed
Appellate part affirmed circuit court part; affirmed in part.
and reversed in the consider- RYAN took no part CHIEF JUSTICE ation or decision of this case.
(No. 55771. THE TREASURER In re APPLICATION OF COUNTY Bank in Chi- National (Central COUNTY OF COOK Congua, Appellee). cago, Appellant; Jocelyn 22, 1982. Opinion October filed *2 SIMON, J., concurring. specially Frezados, & for Regas, Regas Chicago, James A. appellant. Lesser,
Herbert Chicago, appellee. opinion UNDERWOOD delivered JUSTICE court: an
Petitioner, Bank, action brought Central National under section 72 of County circuit court Cook 72) Act Stat. ch. (Ill. Civil Practice Rev. Joce seeking respondent, to overturn tax deed issued had legal to which held lyn Congua, granted title under a land trust. The circuit court petition and ordered that judgment er’s motion for summary A reversed (100 deed be divided vacated. *3 The Ill. leave to App. 534), granted appeal. 3d and we the sheriff negligence by issue is whether principal as a result of of the tax-deed serving proceedings, notice served, entitles peti which was not personally 72 tioner to section relief. of 1939 Rev. (Ill.
Under section of the Revenue Act at 120, ch. the a tax sale 1977, par. 744) purchaser Stat. must notice of the sale and the date give expiration less three months nor not than redemption period of the re more five months to the prior expiration than that notice be Section demption period. requires return re mail, certified by receipt served personally of the circuit court. Unknown through clerk quested, by notice given owners and interested be parties may 1976, to the tax was respon Prior publication. purchaser 1976, owner. In for serving property sible personally section 263 was amended provide “[t]he it to be by causing or shall the above notice assignee give by 120, served a sheriff ***.” Ill. Rev. Stat. ch. 744.
The circuit court the tax-deed proceedings approved of personal method service sheriff’s office rather than purchaser, the tax sale although occurred to the effective prior date of the 1976 amend ment. On from the appeal circuit court’s decision on the section 72 petition, appellate court held that although the 1976 amendment should not have been applied, fact that the not parties did the issue and that argue circuit court of the method of approved service bound the (100 court. Ill. relying on In re 538; 3d App. Application County Treasurer App. Since 291.) the issue is not raised here we express no opin ion it. upon property question a vacant lot in Cook It
County. was sold to Interstate Bond in De- Company for cember 1975 nonpayment of 1974 taxes. Central Na- tional Bank was the legal titleholder of the under a land trust. Bond, Interstate after extending redemp- tion November period filed its petition deed in June 1978 and notice in gave July pursuant to sec- tion 263 of the Revenue Act. Notice published was on three days consecutive in the Law Chicago Bulletin; a of the notice was copy given to clerk, the.circuit along with postage mail, for certified clerk; be mailed and a was copy delivered to the sheriff’s office, to per- sonally served Central National Bank. Prior to the hearing, Interstate Bond its assigned interest to Jocelyn Congua, here, respondent who was substituted as pe- titioner for the tax deed.
At the hearing, Jocelyn submitted an Congua affidavit by an agent Interstate Bond in which the affi- Company *4 alia, inter stated, ant that he had caused the sheriff to serve notice upon Central National Bank. The court was shown a of the copy published notice, a return receipt dated for a
signed July copy by petitioner, clerk, return, the circuit and the sheriff’s notice sent Nodell, that Central indicating signed by Deputy Joseph at deputy National Bank was served personally 12, 1978, service being National Bank on July Central “E. Sodergren,” Rodergren.” “E. also spelled made on found, to section of the Revenue The court pursuant law had that Act, required by given, notices been acted with diligence attempting had respondent requirements and that other parties, serve proper met. On November of the Act had been that the deed be issued. court ordered Bank filed a 13, 1979, Central National On December seeking overturn under petition not had notice the tax-deed deed. It that it had alleged of them in October 1979 and had learned proceedings that it alleged of the trust. It also through beneficiary “E. or “E. Sodergren” no name employee by had written fraudulently that this name was and Rodergren” re- to avoid the statutory the sheriff’s return order on Jo- service. Subsequently, Deputy quirement personal the notice and he testified that Nodell was deposed, seph National served on Central which was supposed some, other and papers mixed up Bank had gotten who worked Sodergren, served Miss was mistakenly Association, he where National Mortgage at the Federal then filed a Petitioner day. also served papers had that it did again stating for summary judgment, motion re- that the deputy’s proceedings, notice of the not have on it which relied were affidavit turn and the respondent’s ** * “mistake was a the error in service false, and that *** papers.” of a mix-up made because tax to issue the the order circuit court vacated null Congua to Jocelyn the deed issued deed and declared dep- the combination held that void. The court return, which reliance on error and the affiant’s uty’s *5 resulted in his statement that he had caused sheriff to Bank, serve Central National was “tantamount to fraud.” The reversed, holding that neither the error nor reliance deputy’s respondent’s return upon constituted fraud. That court also noted since peti- tioner had actual notice of the 1978, as proceeding July evinced the return by receipt, had not exercised petitioner due diligence filing petition nearly months later.
The does not to here that the attempt argue error or the deputy’s reliance it respondent’s upon consti tutes it fraud as has been defined this court: “a by wrong ful intent —an act (Dahlke calculated to deceive.” v. Hawthorne, 241, 245; Lane & Co. 36 Ill. 2d (1966), see D.R.G., also v. 31; Smith Inc. (1976), 63 2d Exline v. Weldon (1974), 105; 57 Ill. 2d v. Levy (1967), Zeve 37 Ill. 2d 404.) assessment, We agree for there petitioner’s is no evidence of intentional on the of ei deception ther the or the deputy respondent. asserts, Petitioner however, that this strict definition of applying fraud here would tend to favor the of merchantability tax deeds over the equally important, albeit competing, goal protecting the landowner accomplished insistence strict upon com with the pliance statutory conditions. “There is little doubt,” says petitioner, “that a who failed to effect personal service, but who nevertheless filed an affi davit indicating the court that such service had been made, would have perpetrated such deception fraud upon court that any order directing issuance of a tax would deed subject attack on those grounds.” court, however, decisions this do not support this statement. Without fraud, proof that the owner proof notice, did not actually receive even if a statement had been made to the court that made, service was is not suf ficient grounds grant section 72 (Smith relief. v. D.R.G., (1976), 37; Inc. 63 Ill. (1967), Zeve v. Levy Lois, v. 29 Ill. 2d 409-10; Inc.
37 Ill. 2d Urban favoring that a policy Nor do we believe 548.) in a collateral proceeding any way of tax deeds validity to insist strict the trial court’s obligation undermines This was the with the statutory requirements. compliance in the 1951 revision of struck legislature balance confirmed de Act of 1939 and repeatedly the Revenue cisions of this court. were im tax increasing delinquencies
Prior to *6 v. R. & (Cherin functions. governmental essential periling 447, 452; 2d v. Muscarello People 11 Ill. (1957), C. Co. to the 88, In this was due 92.) 350 Ill. (1953), App. which, in the words of one com deeds, of tax vulnerability title than a cloud on the mentator, amounted to little more Collat Relief, (Turano, Equitable of the owner. delinquent Deed, L. Tax 51 Chi.-Kent Attack and the Illinois eral the properties In order to return (1975).) Rev. 725 deeds, tax greater stability tax rolls and provide Act in 1951. revised Revenue substantially legislature Deeds, 44 Chi. Waldron, Merchantable Title Tax (See 155, Note, L. Rev. 40 Chi.-Kent (1962); Bar Rec. amended to provide 266 of the Act was (1963).) Section clerk, court, than the would county circuit rather that the entitled to the was determine whether purchaser 447, 11 Ill. 2d (1957), v. R. & C. Co. (See deed. Cherin “incon tax deeds would be It that 451-53.) also provided as under or appeal provided direct except by testable” Act and that Act “be 72 of the Civil Practice *** shall mer convey that tax deeds so liberally construed 120, 1951, ch. 747. Ill. Rev. Stat. title.” chantable tax-deed upheld validity this court Subsequently circumstances. In Southmoor varying proceedings 388, (1958), v. 15 Ill. 2d Trust Co. Willis Bank & that agreed 72 relief where it was denied section court the tax pur taxes had in fact not been paid delinquent had found in the tax-deed chaser, proceeding but court all the that tax had with complied provi it tax sions at law to a deed. This held entitling section 72 “cannot be used to issue again put questions 388, valid means.” Ill. 2d adjudicated by (15 previously v. 21 Ill. 2d 395.) (1961), In Remer Interstate Bond Co. 504, that, the court held while of record were findings conclusive, the section 72 was entitled to a fraud, not hearing on since those issues had allegations 504, earlier. Ill. In v. (21 513-14.) been asserted 2d Urban Lois, (1963), Inc. 29 Ill. 2d this court held that even had not served no though petitioner personally been tice, no shown, where fraud was the trial court’s previous that all notice finding law had been required by given could not (29 attacked. 2d collaterally 548-50.) Hawthorne, In Dahlke v. Lane & Co. 36 Ill. 2d 241, the court noted that fraud “a in implies wrongful tent —an act calculated to deceive” Ill. 2d (36 245) and was not established the fact that not all of the despite occupants had been served with notice. In Zeve v. 37 Ill. Levy (1967), this court out: pointed “[Pjetitioner’s failure to receive pro notice of the tax-deed se, not, ceeding per does entitle her to have deed set (Dahlke.) aside. Nor does fact respondent’s agent *7 could have made more thorough inquiry and a more dili gent search than he did fraud on the necessarily establish respondent of in the proof wrongful absence of of in pattern (Dahlke.)” (37 404, tent or a of deception. Ill. 2d 409.) D.R.G., 31;
See also Smith v.
Ill.
(1976),
Inc.
63
2d
Exline v.
(1974),
Weldon
In in apparently recognition potential fraud, the section 263 to that legislature amended provide notice of the tax-deed the sheriff. be served proceedings this of Although reduced provision seemingly possibility fraud, it did not error that negligent eliminate risk of however, occurred here. are not that the persuaded, leg- We islature intended to allow such errors to be raised as de- in collateral note that the General
fenses We proceedings. deleted, 1970, in to section 266 in language added Assembly a court to “consider de reviewing 1967 which had allowed to the notices sec relating required by fenses of questions 1967, 120, ch. par. tion 263 ***.” Rev. Stat. (Compare 747; ch. see also In with Ill. Rev. Stat. 7 Ill. County App. re Collector Application of with the court that this deletion 128-29.) agree We indicates the intention to from collateral legislature’s protect attack on to notice. In of judgments relating light questions deletion, the of this implication legislature’s expressed “incontestable,” intent in 266 that tax section deeds be im the fact that the of tax titles would be merchantability notice, if of without errors sheriff service paired fraud, sufficient to afford grounds were held proof relief, holdings we adhere to our previous cases is limited to those cases section 72 relief tax-deed or the is void. judgment where fraud proved finding This record does not sustain the trial court’s “tantamount to fraud.” The the tax-deed were proceedings inadvertent; error at most it was negligence. was deputy’s of the error at There is no contention that knew respondent The 1976 amendment the time of the tax-deed proceedings. the notice to the tax to deliver a purchaser copy requires the sheriff for service required persons. the obligation from amendment relieves he has the notice himself. Once serving and responsibility to the sher- a provision by delivering copy complied fee, iff he has a right rely upon with the required return. had characterized Although petitioner sheriff’s that the sheriff had served as “false” in stating affidavit inten- finding support there is no evidence petitioner, (Webster’s the term false connotes. tional which deception Ballentine’s (1971); Dictionary Third New International neither hold therefore that (1948).) We Dictionary Law of notice nor respondent’s the error service deputy
409 return establishes fraud in reliance sheriff’s Section relief is 72 therefore proceedings. inappro- tax-deed priate.
Moreover, we also court’s view agree appellate the section filing did not proceed diligently petitioner 72 The had actual notice of the tax-deed hear bank petition. four before its occurrence. In v. ing nearly months Esczuk 464, 467, this Authority (1968), Transit 39 Ill. 2d Chicago court stated: may remedy avail party provided not himself
“[A] 72 he through negli ‘unless shows that no fault or own, gence his the error fact or the existence of valid defense was not made to the trial appear to court. a motion not petition Such or intended to [Citations.] a party relieve from the own consequences of his mistake negligence.’ (Brockmeyer or [1960], v. Duncan 18 Ill. 2d 502, 505.)”
Accord, Diacou v. Palos Bank 65 (1976), State Ill. 2d 310-11; D.R.G., 31, 39-40; Smith v. (1976), Inc. cf. Lois, Urban v. (1963), 542, 549-50; Inc. 29 Ill. 2d v. People Orth (1961), 211; Ill. 2d People v. O’Keefe Ill. 2d Petitioner 392-93.) could have de presented its fense trial to the court. It did and not has made no effort show that this failure was not due its own negligence. The petition should have been dismissed the trial court. court, reversed the trial dis- correctly
missed the petition entered judgment respondent. Its is affirmed. judgment
Judgment affirmed. SIMON, JUSTICE specially concurring: My concurrence in the result is because bank as trustee received notice of the hearing mail by registered ap- proximately four months it took before re- place. Having trustee, ceived this notice through its petitioner could have its presented defense to the trial court. For this I reason agree with the majority that the could had have *9 for his own lack of diligence,
his in day except he is for section relief. ineligible therefore however, that to be even majority saying appears, bank, mail reached the the had the notice not by registered he had no recourse unless could owner would have property in the fraud, is, actual that intentional deception, establish agree I not of the sheriff to make service. do failure the unilaterally rights pur- for it exalts the this approach, delinquent property chaser at a tax sale those the above in the the reaches this result name of owner. That majority not, make titles does in merchantability my judgment, tax it respectable. the Revenue Act
The 1976 to section 263 of amendment owner be served sheriff requiring property designed property measure to insure salutary was forfeit their who had taxes would not pay owners failed it. about Forfeiture knowing nonpay- without property cases and in some no unpleasant, ment of taxes no less with- to a owner who loses his property less tragic, property of the sheriff’s negligent deputy, out notice because of errors here, on the finds than because of deceit as a court happened of the deputy. I do not understand of the sheriff’s why failure dep to make uty proper service this case not should be treated in the same as such a failure way would other any case in which the sheriff fails to effect a service for which law him makes responsible. the General Notwithstanding As deletion in sembly’s in the Revenue language Act relating “defenses of notices permitting questions re 263,” quired by upon which the majority opinion (92 seems to place strong emphasis 408), Ill. 2d at section 72 left intact Act is still the Revenue as a vehicle available service, owner to raise of failure of property questions as it is available to other he had not litigant claiming re any note to ceived service. The historical section 266 of Rev enue Act indicates that the 1970 to section amendments Ann. meaning ambiguous.” (Ill. were “to where clarify Stat., Note, Historical at 58 (Smith-Hurd ch. Thus, it that these amend 1981).) does not Supp. appear out of the ments were intended to take to notice challenges It is likely of remedies available to owners. panoply that the inclusion of legislature feared that separate as to notice the statute would lead to challenges questions to whether section 72 a vehicle for such chal raising was lenges.
The cases on relies to which majority support that the actual fraud to proposition must show delinquent even where he was not served with notice are not prevail not They relevant. did involve service to be made required sheriff, as the 1976 amendment to section 263 com- *10 Rather, mands. involved services the 1976 they predating amendment, which then were made the tax by purchaser instead of the sheriff.
The sanctification the to the han- majority opinion gives dling of notice the sheriff the door for too opens There no many irregularities. be appears adequate way policing as, service the sheriff such in this example, case where at very best confusion took inexcusable place. Nodell Deputy that he was acknowledges guilty gross negligence notice at the be- leaving wrong place here— cause he it mixed with some other up which he was papers at serving owners, I do not think that place. property even those taxes, who have not their should left at paid of this mercy of official where type oversight apparently there was no internal check Nodell’s upon Deputy perform- ance which might have discovered it.
The intention of the 1976 was, amendment to section 263 I believe, to make it more certain that owners property would actually receive notice of a tax sale of their pending and to avoid abuses of the occurred property, which type when the law himself to permitted serve notice fear, on the owner. The I property majority opinion, has in the what unfortunately direction step repeating in the tax forfeitures
occurred too often past approving — it is too owner first learns after about which property effect reason, I the failure to regard late. For would as under cognizable service on the owner proper through reg- notice not received section 72 had the been istered mail.
(No. 55801. In re ESTATE WORRELL, (Dawson Deceased OF MARY Barnes, Appellee). Dennis Adm’r, Appellant;
M. Cooper, Rehearing Opinion October 1982. filed 24, 1982. denied November