In re Application of the County Treasurer
Annotate this Case
SECOND DIVISION
January 20, 1997
No. 1-96-1994
In re APPLICATION OF THE COUNTY ) Appeal from the
TREASURER AND ex officio COUNTY ) Circuit Court of
COLLECTOR OF COOK COUNTY, ILLINOIS, FOR ) Cook County
ORDER OF THE JUDGMENT AND SALE AGAINST )
REAL ESTATE RETURNED DELINQUENT FOR THE )
YEAR 1993 )
----------------------------------------)
)
(Loop Mortgage Corporation, )
Petitioner-Appellee, )
)
Murray Williams, ) Honorable
) James Henry,
Respondent-Appellant). ) Judge Presiding.
PRESIDING JUSTICE MCNULTY delivered the opinion of the court:
In this case we must decide what constitutes a sufficient
interest in real estate to give a party the right to redeem the
property following a tax sale. The Property Tax Code establishes that
the holder of legal or equitable title to property has a right to
redeem the property, even if the title is not recorded. 35 ILCS
200/21-345 (West 1996). Here we face the question of whether the
record title alone, without legal or equitable title, is sufficient.
We hold that following an unrecorded sale of property, both the new
owner and the seller who holds the title of record have the right to
redeem.
Halove Abram owned two properties in Chicago at the time of her
death in 1986, and she had recorded her title to the properties. Her
sister, Chappel Cummings, inherited all of Abram's property. Due to
Cummings' incompetence, Cummings' daughter, Agnes Lee, had authority
to act on her behalf with respect to her property, including the real
estate in Chicago. In 1989 Lee signed a contract to sell those
properties to Alfred Smith, and later she signed warranty deeds
conveying the properties to Smith. Smith never recorded the deeds.
The Cook County collector sent tax bills addressed to "Halove
Abram or current owner." Both Smith and Lee failed to pay property
taxes for one of the lots for 1990 and 1991. In 1993 Fitz Corporation
purchased the property at a tax sale, and later Fitz sold its interest
in the property to Loop Mortgage Corporation. Loop petitioned for a
tax deed in 1995. Loop sent notice to Smith, Cummings, and Lee,
amongst others, informing them that the redemption period would end
September 1, 1995. On July 12, 1995, Lee, on behalf of Cummings, gave
Murray Williams power of attorney to redeem the property. Williams
made the necessary redemption payment on August 17, 1995.
Loop petitioned to set aside the redemption, arguing that Lee,
Cummings and Williams all lacked redeemable interests in the property
because Lee conveyed the deed to Smith. Lee argued that Smith
procured the deed by fraud and that even absent proof of fraud she had
a sufficient redeemable interest. Following trial the court found
that Smith still owed Lee payments promised in the entire transaction
of the two properties, but Smith held legal title to the properties.
Because of Smith's unrecorded warranty deed, Lee lacked a redeemable
interest in the property.
Both the legislature and the courts have established the
fundamental principles underlying redemption. A person seeking to
redeem
"need only have an undefined interest in the property.
[Citations.] The person alleging the right to redeem bears
the burden of showing he is a proper person to redeem under
the law. [Citation.] The right of a holder of a tax
certificate after a tax sale to get a deed is subservient
to the right of the owner or person interested in the
property to redeem. [Citation.] Redemptions are looked
upon with favor, and, unless injury results to the
purchaser at the sale, a liberal construction will be given
to redemption laws. [Citations.] The mere failure of the
tax certificate holder to get a deed does not injure him,
since the purchaser recovers the amount paid for the
certificate from the court after the redemption." In re
Application of Du Page County Collector, 98 Ill. App. 3d
950, 952, 424 N.E.2d 1204 (1981).
The Property Tax Code provides:
"A right to redeem property from any sale under this
Code shall exist in any owner or person interested in that
property, other than an undisclosed beneficiary of an
Illinois land trust, whether or not the interest in the
property sold is recorded or filed." 35 ILCS 200/21-345
(West 1996).
The legislature enacted this section after our supreme court decided
Weiner v. Jobst, 22 Ill. 2d 11, 174 N.E.2d 561 (1961). In Weiner the
owner of legal title to property attempted to redeem the property
following a tax sale, but the court found the redemption ineffective
because the prior owner who conveyed the deed to the current owner did
not have a properly recorded title. The court held:
"[A] stranger to the record title has no right to
redeem. *** [W]hen the attempted redemption was made, [the
legal title holder] had no interest of record in the
property. And admittedly, he *** was, instead, a complete
stranger to the chain of title." Weiner, 22 Ill. 2d at 15.
Thus, under Weiner, only the owner of record could redeem the
property, although that party long before the suit deeded the legal
title to the property to the legal owner's predecessor.
As the court held in Purdy v. C.H. Strong Elevator, Inc., 29 Ill.
App. 3d 894, 897, 331 N.E.2d 630 (1975), "the doctrine of Weiner v.
Jobst was repudiated by an amendment *** providing that the person
seeking to redeem need not show a recorded or filed interest." The
amendment did not restrict owners of record from redeeming, and it did
not repudiate the implication of Weiner that owners of record could
redeem even without legal or equitable title to the property. See
also People v. Hess, 7 Ill. 2d 192, 197-99, 130 N.E.2d 280 (1955)
(shareholder of dissolved corporate landowner had redeemable interest,
although he had neither legal nor equitable title to the land).
The conclusion that the record owner always has the right to
redeem finds support in two cases Loop cites. In First Lien Co. v.
Marquette National Bank, 56 Ill. 2d 132, 136, 306 N.E.2d 23 (1973),
the court held that "the owners and trustees or mortgagees of record
are entitled to notice" of a petition for tax deed. Presumably
following this holding, Loop here served notice on Cummings and Lee,
as heir and representative of Abram, the last owner to record title.
And "the right to redeem from a tax sale covers a broader group than
those entitled to notice of a request for deed." In re Application
of the County Collector, 167 Ill. App. 3d 521, 526, 521 N.E.2d 616
(1988).
The parties at oral argument agreed that not all persons who
actually receive notice have standing to redeem the property. As Loop
explained, the statute requiring notice to any person interested in
the property motivates the petitioner for tax deed to send notice to
anyone with any conceivable connection to the property. See 35 ILCS
200/22-10 (West 1996). Many persons receiving notice of the sale may
have no redeemable interest in the property.
However, our courts have established that certain interests in
property are so significant that the tax sale is invalid unless the
petitioner proves diligent efforts to notify persons with those
interests. Gacki v. LaSalle National Bank, 282 Ill. App. 3d 961, 964-
65, 669 N.E.2d 936 (1996). The tax deed is not valid if the
petitioner fails to notify owners of record (First Lien, 56 Ill. 2d
at 136), the persons in whose name the land was taxed (Burton v.
Perry, 146 Ill. 71, 121-23, 34 N.E. 60 (1893)), and their personal
representatives (In re Application of the County Collector, 163 Ill.
App. 3d 461, 516 N.E.2d 736 (1987)). Loop cites no case holding that
a tax sale could be invalid due to failure to notify a person who
lacked a redeemable interest in the property. We conclude that if a
party has an interest that mandates notice, then that party has a
redeemable interest.
At oral argument Loop's attorney suggested that Williams failed
to prove either his authority or Lee's authority to act on Cummings'
behalf. Loop's attorney at trial expressly stipulated that "Chappell
Cummings *** is, in fact, incompetent and *** Agnes Lee did have power
and authority to act on her behalf." Williams also entered into the
record a sworn and sealed document by which Lee, in her capacity as
legal representative of Cummings, appointed Williams her attorney with
power to arrange for redemption of the property at issue here on
Cummings' behalf. Accordingly, Lee, authorized to act on behalf of
Cummings, Abram's sole heir, had the right to redeem the property, and
Williams had the power to redeem it on her behalf.
Although we find the redemption valid, we express no opinion on
the question of whether Smith or Cummings holds legal or equitable
title to the property. The Property Tax Code expressly provides for
separate determination of the legal title holder:
"Any redemption shall be presumed to have been made by or
on behalf of the owners and persons interested in the
property and shall inure to the benefit of the persons
having the legal or equitable title to the property
redeemed, subject to the right of the person making the
redemption to be reimbursed by the persons benefited." 35
ILCS 200/21-345 (West 1996).
Thus, if Smith has legal title, and Cummings has neither legal nor
equitable title, Williams' redemption of the property will benefit
Smith. But the court should determine that issue in a suit between
Smith and Cummings to quiet title, rather than decide it in this
special statutory proceeding, under the Property Tax Code (35 ILCS
200/22-5 et seq. (West 1996)), for issuance of a tax deed.
We hold that when a party with properly recorded property title
sells the property to another, and the property is subsequently sold
for taxes before the new owner records title, both the new owner and
the seller, who has the last properly recorded title, have the right
to redeem the property on behalf of the new owner. Accordingly, under
the agreed facts pertinent to this issue, Lee and Williams had the
right to redeem the property. The trial court's order setting aside
the redemption is reversed.
Reversed.
RAKOWSKI and COUSINS, JJ., concur.
January 20, 1997
No. 1-96-1994
In re APPLICATION OF THE COUNTY ) Appeal from the
TREASURER AND ex officio COUNTY ) Circuit Court of
COLLECTOR OF COOK COUNTY, ILLINOIS, FOR ) Cook County
ORDER OF THE JUDGMENT AND SALE AGAINST )
REAL ESTATE RETURNED DELINQUENT FOR THE )
YEAR 1993 )
----------------------------------------)
)
(Loop Mortgage Corporation, )
Petitioner-Appellee, )
)
Murray Williams, ) Honorable
) James Henry,
Respondent-Appellant). ) Judge Presiding.
PRESIDING JUSTICE MCNULTY delivered the opinion of the court:
In this case we must decide what constitutes a sufficient
interest in real estate to give a party the right to redeem the
property following a tax sale. The Property Tax Code establishes that
the holder of legal or equitable title to property has a right to
redeem the property, even if the title is not recorded. 35 ILCS
200/21-345 (West 1996). Here we face the question of whether the
record title alone, without legal or equitable title, is sufficient.
We hold that following an unrecorded sale of property, both the new
owner and the seller who holds the title of record have the right to
redeem.
Halove Abram owned two properties in Chicago at the time of her
death in 1986, and she had recorded her title to the properties. Her
sister, Chappel Cummings, inherited all of Abram's property. Due to
Cummings' incompetence, Cummings' daughter, Agnes Lee, had authority
to act on her behalf with respect to her property, including the real
estate in Chicago. In 1989 Lee signed a contract to sell those
properties to Alfred Smith, and later she signed warranty deeds
conveying the properties to Smith. Smith never recorded the deeds.
The Cook County collector sent tax bills addressed to "Halove
Abram or current owner." Both Smith and Lee failed to pay property
taxes for one of the lots for 1990 and 1991. In 1993 Fitz Corporation
purchased the property at a tax sale, and later Fitz sold its interest
in the property to Loop Mortgage Corporation. Loop petitioned for a
tax deed in 1995. Loop sent notice to Smith, Cummings, and Lee,
amongst others, informing them that the redemption period would end
September 1, 1995. On July 12, 1995, Lee, on behalf of Cummings, gave
Murray Williams power of attorney to redeem the property. Williams
made the necessary redemption payment on August 17, 1995.
Loop petitioned to set aside the redemption, arguing that Lee,
Cummings and Williams all lacked redeemable interests in the property
because Lee conveyed the deed to Smith. Lee argued that Smith
procured the deed by fraud and that even absent proof of fraud she had
a sufficient redeemable interest. Following trial the court found
that Smith still owed Lee payments promised in the entire transaction
of the two properties, but Smith held legal title to the properties.
Because of Smith's unrecorded warranty deed, Lee lacked a redeemable
interest in the property.
Both the legislature and the courts have established the
fundamental principles underlying redemption. A person seeking to
redeem
"need only have an undefined interest in the property.
[Citations.] The person alleging the right to redeem bears
the burden of showing he is a proper person to redeem under
the law. [Citation.] The right of a holder of a tax
certificate after a tax sale to get a deed is subservient
to the right of the owner or person interested in the
property to redeem. [Citation.] Redemptions are looked
upon with favor, and, unless injury results to the
purchaser at the sale, a liberal construction will be given
to redemption laws. [Citations.] The mere failure of the
tax certificate holder to get a deed does not injure him,
since the purchaser recovers the amount paid for the
certificate from the court after the redemption." In re
Application of Du Page County Collector, 98 Ill. App. 3d
950, 952, 424 N.E.2d 1204 (1981).
The Property Tax Code provides:
"A right to redeem property from any sale under this
Code shall exist in any owner or person interested in that
property, other than an undisclosed beneficiary of an
Illinois land trust, whether or not the interest in the
property sold is recorded or filed." 35 ILCS 200/21-345
(West 1996).
The legislature enacted this section after our supreme court decided
Weiner v. Jobst, 22 Ill. 2d 11, 174 N.E.2d 561 (1961). In Weiner the
owner of legal title to property attempted to redeem the property
following a tax sale, but the court found the redemption ineffective
because the prior owner who conveyed the deed to the current owner did
not have a properly recorded title. The court held:
"[A] stranger to the record title has no right to
redeem. *** [W]hen the attempted redemption was made, [the
legal title holder] had no interest of record in the
property. And admittedly, he *** was, instead, a complete
stranger to the chain of title." Weiner, 22 Ill. 2d at 15.
Thus, under Weiner, only the owner of record could redeem the
property, although that party long before the suit deeded the legal
title to the property to the legal owner's predecessor.
As the court held in Purdy v. C.H. Strong Elevator, Inc., 29 Ill.
App. 3d 894, 897, 331 N.E.2d 630 (1975), "the doctrine of Weiner v.
Jobst was repudiated by an amendment *** providing that the person
seeking to redeem need not show a recorded or filed interest." The
amendment did not restrict owners of record from redeeming, and it did
not repudiate the implication of Weiner that owners of record could
redeem even without legal or equitable title to the property. See
also People v. Hess, 7 Ill. 2d 192, 197-99, 130 N.E.2d 280 (1955)
(shareholder of dissolved corporate landowner had redeemable interest,
although he had neither legal nor equitable title to the land).
The conclusion that the record owner always has the right to
redeem finds support in two cases Loop cites. In First Lien Co. v.
Marquette National Bank, 56 Ill. 2d 132, 136, 306 N.E.2d 23 (1973),
the court held that "the owners and trustees or mortgagees of record
are entitled to notice" of a petition for tax deed. Presumably
following this holding, Loop here served notice on Cummings and Lee,
as heir and representative of Abram, the last owner to record title.
And "the right to redeem from a tax sale covers a broader group than
those entitled to notice of a request for deed." In re Application
of the County Collector, 167 Ill. App. 3d 521, 526, 521 N.E.2d 616
(1988).
The parties at oral argument agreed that not all persons who
actually receive notice have standing to redeem the property. As Loop
explained, the statute requiring notice to any person interested in
the property motivates the petitioner for tax deed to send notice to
anyone with any conceivable connection to the property. See 35 ILCS
200/22-10 (West 1996). Many persons receiving notice of the sale may
have no redeemable interest in the property.
However, our courts have established that certain interests in
property are so significant that the tax sale is invalid unless the
petitioner proves diligent efforts to notify persons with those
interests. Gacki v. LaSalle National Bank, 282 Ill. App. 3d 961, 964-
65, 669 N.E.2d 936 (1996). The tax deed is not valid if the
petitioner fails to notify owners of record (First Lien, 56 Ill. 2d
at 136), the persons in whose name the land was taxed (Burton v.
Perry, 146 Ill. 71, 121-23, 34 N.E. 60 (1893)), and their personal
representatives (In re Application of the County Collector, 163 Ill.
App. 3d 461, 516 N.E.2d 736 (1987)). Loop cites no case holding that
a tax sale could be invalid due to failure to notify a person who
lacked a redeemable interest in the property. We conclude that if a
party has an interest that mandates notice, then that party has a
redeemable interest.
At oral argument Loop's attorney suggested that Williams failed
to prove either his authority or Lee's authority to act on Cummings'
behalf. Loop's attorney at trial expressly stipulated that "Chappell
Cummings *** is, in fact, incompetent and *** Agnes Lee did have power
and authority to act on her behalf." Williams also entered into the
record a sworn and sealed document by which Lee, in her capacity as
legal representative of Cummings, appointed Williams her attorney with
power to arrange for redemption of the property at issue here on
Cummings' behalf. Accordingly, Lee, authorized to act on behalf of
Cummings, Abram's sole heir, had the right to redeem the property, and
Williams had the power to redeem it on her behalf.
Although we find the redemption valid, we express no opinion on
the question of whether Smith or Cummings holds legal or equitable
title to the property. The Property Tax Code expressly provides for
separate determination of the legal title holder:
"Any redemption shall be presumed to have been made by or
on behalf of the owners and persons interested in the
property and shall inure to the benefit of the persons
having the legal or equitable title to the property
redeemed, subject to the right of the person making the
redemption to be reimbursed by the persons benefited." 35
ILCS 200/21-345 (West 1996).
Thus, if Smith has legal title, and Cummings has neither legal nor
equitable title, Williams' redemption of the property will benefit
Smith. But the court should determine that issue in a suit between
Smith and Cummings to quiet title, rather than decide it in this
special statutory proceeding, under the Property Tax Code (35 ILCS
200/22-5 et seq. (West 1996)), for issuance of a tax deed.
We hold that when a party with properly recorded property title
sells the property to another, and the property is subsequently sold
for taxes before the new owner records title, both the new owner and
the seller, who has the last properly recorded title, have the right
to redeem the property on behalf of the new owner. Accordingly, under
the agreed facts pertinent to this issue, Lee and Williams had the
right to redeem the property. The trial court's order setting aside
the redemption is reversed.
Reversed.
RAKOWSKI and COUSINS, JJ., concur.
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