Rosewell v. Phoenix Bond & Indemnity Co.

542 N.E.2d 757, 186 Ill. App. 3d 597, 134 Ill. Dec. 411, 1989 Ill. App. LEXIS 1078
CourtAppellate Court of Illinois
DecidedJuly 14, 1989
DocketNos. 1—88—1338, 1—88—1555, 1—88—1565, 1—88—1736 cons.
StatusPublished

This text of 542 N.E.2d 757 (Rosewell v. Phoenix Bond & Indemnity Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosewell v. Phoenix Bond & Indemnity Co., 542 N.E.2d 757, 186 Ill. App. 3d 597, 134 Ill. Dec. 411, 1989 Ill. App. LEXIS 1078 (Ill. Ct. App. 1989).

Opinion

JUSTICE QUINLAN

delivered the opinion of the court:

The appellant, Edward J. Rosewell (Rosewell), county treasurer and ex officio county collector, appeals an order of the circuit court of Cook County requiring him to refund the costs paid and posted by appellees, various tax buyers, in a tax judgment, sale, redemption and forfeiture proceeding in connection with certain sales that were made in error. Rosewell contends that he is not required to refund those costs that appellees paid to third parties.

This is a consolidated appeal of four separate cases. In each of those cases, the appellees petitioned for a declaration that certain tax sales of property were sales in error under section 260 of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 741). The appellees also asked for a refund of the principal amount of the sale, any real estate taxes that they had paid, and any costs incurred in connection with the sale, along with 172% interest a month.

Specifically, appellee Phoenix Bond & Indemnity Company (Phoenix) asked that the sale of certain property be declared a sale in error by the trial court and that the court refund the purchase price of $100,045 for taxes from 1979-85, along with $7,396.48 paid for 1986 general taxes on the property. Phoenix also asked for a refund of $84 paid for the necessary filing with the clerk of the circuit court, a $23.35 mailing fee paid to the clerk of the circuit court, and $145.40 paid to the sheriff of Cook County. Finally, Phoenix asked for interest at 172% per month on the amount it had paid.

Appellee Park Place Investments (Park Place) also asked the trial court to declare another sale of property to be in error and that the court order a refund of the $1,479.25 purchase price. Park Place further requested the court to order a refund of $4 for filing notice pursuant to section 241a of the Illinois Revenue Act, $84 paid for filing with the clerk of the circuit court, $82 paid to the sheriff of Cook County, a $14.01 mailing fee paid to the clerk of the circuit court, and $99 paid for advertising in the newspaper. Additionally, Park Place also asked that the court order interest at 172% per month.

Appellee Q.T.S. Corporation (Q.T.S.), a tax buyer in two other cases, filed petitions for a declaration of sale in error in those cases. In each petition, Q.T.S. asked for a refund of the purchase price it had paid, the subsequent taxes it had paid, along with the fees paid and posted to the judgment record, including filing fees, sheriffs fees for service of notice, and county clerk’s fees for mailing the notice. Finally, Q.T.S. asked that the court order 172% interest per month as provided by law.

Rosewell’s only objection in the trial court to the foregoing petitions for declaration of sale in error was that the legislature never intended for him to refund costs incurred by appellees which were paid to third parties and not to the county collector. Rosewell claimed that he should not have to refund money which was never paid to him and which he never received.

The trial court ruled that Rosewell was required to refund all costs incurred in connection with the sales in error, including those costs paid to third parties. The court said “it could have been within the General Assembly’s intent to make persons who purchase tax delinquent properties whole inasmuch as these are sales in error.” Rose-well filed a motion for reconsideration, but the trial court denied the motion. This appeal followed the denial.

On appeal, Rosewell first contends that he is not required, under the Illinois Revenue Act (Revenue Act), to refund money that he did not receive. Rosewell argues that the word “refund” should be given its ordinary meaning because it is not defined in the Revenue Act, and its ordinary meaning is “to return or give back; to return (money); to make repayment.” Thus, according to Rosewell, the legislature would have directed him to “pay” all other costs, rather than to “refund” costs as currently set forth in the statute, if it had intended for him to reimburse the costs paid to third parties. Further, Rosewell asserts that if the legislature had intended him to repay those fees, it would have provided a source of funds to be used to refund the fees to third parties. In addition, Rosewell contends that this section of the Revenue Act should be read in pari materia with section 253 of the Revenue Act. Hence, he argues that inasmuch as section 253, which concerns the time and conditions of redemption, details the costs that one must pay in order to redeem, including the fees to third parties, the omission of a specific list from the section concerning sales in error demonstrates a legislative intent to exclude such costs. Accordingly, Rosewell asks this court to reverse the trial court’s decision requiring him to give tax buyers a refund of the costs that they paid to third parties.

Appellee Phoenix, the only appellee to file a brief on appeal, contends that the Revenue Act clearly and unambiguously provides that all costs are to be refunded, including the costs of redemption set out in section 253 of the Revenue Act. In addition, Phoenix claims that whether its costs were paid to a third party rather than Rosewell is irrelevant under the statute. Phoenix notes that it was Rosewell’s erroneous conduct which caused it to incur the disputed costs. Thus, Phoenix asks this court to affirm the trial court’s order.

The disputed provision here was added as an amendment effective January 1, 1986, and, as yet, has not been construed by an appellate court. This section provides that when a sale is declared a sale in error:

“§260. *** [T]he county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and, in counties having more than 1,000,000 inhabitants ***, all other taxes and costs paid by the owner of the certificate of sale or his assignor which were posted to the tax judgment, sale, redemption and forfeiture record subsequent to the tax sale and which were added to the certifícate of sale, together with 1V2% interest per month from the date of sale to the date of payment to the tax purchaser ***.” Ill. Rev. Stat. 1987, ch. 120, par. 741.

A court of equity has jurisdiction to correct the mistakes of a county ministerial officer (Thornton, Ltd. v. Rosewell (1978), 72 Ill. 2d 399, 407, 381 N.E.2d 249, 253; West Suburban Hospital Medical Center v. Hynes (1988), 173 Ill. App. 3d 847, 854, 527 N.E.2d 1086, 1091), and in order to do equity, a court may award a refund (Thornton, 72 Ill. 2d at 407, 381 N.E.2d at 253). Additionally, equity courts often go further in providing relief to support a public interest than when only private interests are involved. (Thornton, 72 Ill. 2d at 407, 381 N.E.2d at 253; West Suburban Hospital Medical Center, 173 Ill. App. 3d at 854, 527 N.E.2d at 1091.) The courts have recognized that it is in the public interest to protect the rights of those who have purchased real estate sold for delinquent and forfeited taxes. Thornton, 72 Ill. 2d at 407, 381 N.E.2d at 253.

Recognizing public policy favoring tax buyers, we hold that Rosewell is required to refund all costs paid by appellees, including the costs paid to third parties.

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Related

Thornton, Ltd. v. Rosewell
381 N.E.2d 249 (Illinois Supreme Court, 1978)
West Suburban Hospital Medical Center v. Hynes
527 N.E.2d 1086 (Appellate Court of Illinois, 1988)

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Bluebook (online)
542 N.E.2d 757, 186 Ill. App. 3d 597, 134 Ill. Dec. 411, 1989 Ill. App. LEXIS 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosewell-v-phoenix-bond-indemnity-co-illappct-1989.