73 N.E.2d 279 | Ill. | 1947
This is a suit in chancery brought in the circuit court of Cook county by the People of the State of Illinois to foreclose the lien of delinquent taxes against a piece of property in Chicago. The property is located at 6823 South Kenwood Avenue, and is improved with a one-story brick commercial garage.
The suit was instituted on November 8, 1945, after an offer had been made to the board of county commissioners by attorney for appellant to bid the sum of $1500 for the property at public sale, if the board would request the State's Attorney to commence an action to foreclose the taxes and the court would order such a sale. General taxes due up to and including 1940 amounted to $4040.99 principal, with a total delinquency including interest and *281 penalties of $10,414.63. The county board complied with the request, and the State's Attorney commenced foreclosure proceedings. The circuit court entered a foreclosure decree finding a guaranteed bid of $1500 had been made, and setting that amount as the minimum bid to be considered. The tax sale was then held, and appellant, Francis X. Gallagher, bid the sum of $1500 for the property. On the hearing on the county treasurer's report of sale, the chancellor asked the State's Attorney to present for examination the information with respect to the property which induced him to file the proceedings. This information showed that the property had a monthly gross income of $200. The court thereupon entered an order disapproving the sale, on the grounds that the amount bid was "grossly inadequate and insufficient." From that order appellant, the bidder, brings this appeal. The only issue here involved is whether the chancellor acted properly in disapproving the report of sale solely on the grounds of inadequacy of the amount bid.
The authority of a court of equity to disapprove a sale solely on the grounds that the amount bid was inadequate was examined at length by this court in the case of Ryerson v. Apland,
This statement was apparently directed to part of what was said in Schultz v. Milburn,
It is to be observed that both the Ryerson case and the Milburncase were partition suits. In Straus v. Anderson,
In Levy v. Broadway-Carmen Building Corp.
These three cases, appearing in the same volume, seem to sustain the same principle of law, and, in fact, in the late case of Anthony v. Gilbrath,
There is some distinction between a foreclosure or an execution sale and a partition sale, because in the former there is a right of redemption, but even in cases where there is redemption slight circumstances will furnish sufficient ground for equitable interference. Magnes v. Tobias,
The instant case is one which falls in the second class of cases described in the quotation from the case of Straus v.Anderson. Here the action objected to is the order of the court disapproving the report of sale. At the time the order was entered, the sale had not been consummated by confirmation, and the court could, under the rule announced in Straus v. Anderson, consider all of the facts, including the income of the property, in addition to inadequacy of price. In People v. Anderson,
Applying this rule to this case, the chancellor had power to approve or disapprove the sale. His decision to disapprove the sale should stand unless the record shows an abuse of judicial discretion. The record shows that the original decree of sale, entered on June 4, 1946, ordered the county treasurer to "entertain no bids * * * in an amount less than the following: Parcel No. 1, $1500.00." The action of the court in fixing an upset price was in itself an exercise of discretion as to what was a proper bid for the property. In Levy v. Broadway-CarmenBuilding Corp.
In addition to the showing in the record that an upset price had been fixed in the original decree of sale, the report of proceedings shows that on August 1, 1946, when the report of sale came on for hearing, the presiding judge, who was not the same judge who had entered the original *285 decree, examined the State's Attorney's file with regard to the property, including the letter to the county board guaranteeing a bid of $1500, an information sheet stating further details as to the property, and a picture of the property. From an examination of these documents the court learned that the property had a monthly rental of $200, and was assessed in 1939 at $5414. After considering these facts, the chancellor entered his order disapproving the sale. There is nothing in the record to indicate whether similar information was available to the chancellor at the time the upset price was fixed, although the decree recites that there was oral and documentary evidence, and that the court was "duly advised in the premises."
On this state of the record, it does not clearly appear that the chancellor abused his discretion in disapproving the sale. The evidence before him indicated that the gross rental from the property would exceed the purchase price in eight months' time. The assessed value of the property in 1939, which he was bound to know was less than its actual value, was $5414. There was nothing to indicate the basis on which his predecessor had determined $1500 to be a fair upset price. In the face of such evidence, we cannot say that the chancellor acted unreasonably in disapproving the sale on the grounds of gross inadequacy and insufficiency.
Plaintiff in error contends that the board of county commissioners had the power to fix minimum bids on property sold at tax foreclosure, and that the court may not nullify the findings and action of the county board with respect thereto. This is a misconception of the law. Section 4 of article IX of the constitution of 1870 requires the General Assembly to provide for the return to some general officer of the county of all unpaid taxes, and further provides that "there shall be no sale of said property for any of said taxes or assessments but by said officer, upon the order or judgment of some court of record." This *286 section has been implemented by the legislature, (Ill. Rev. Stat. 1945, chap. 120, par. 697,) which has provided for the foreclosure of tax liens in equity, in any court of competent jurisdiction, and for the sale of the property "under the order of the court." The legislature also provided an alternative method of enforcing the lien against the rents and profits of the land, under certain circumstances, but provided that "all sales made under this section shall be conducted under the order and supervision of the court by the county collector." The foreclosure of liens is a judicial process, and no action by the board of commissioners in attempting to compromise the taxes is in any way binding on the court in which the foreclosure suit is brought.
The order of the circuit court is affirmed.
Order affirmed.