Opinion
Gen. No. 9,871.
Opinion filed July 8, 1943. Rehearing denied October 5, 1943.
1. TAXES, § 574 — disturbance of tax foreclosure sale for inadequacy of price. Tax foreclosure sale will not be disturbed for mere inadequacy of price, in absence of proof of fraud or some fatal irregularity, and this rule is based on fundamental principle that public policy requires stability to such sales.
See Callaghan's Illinois Digest, same topic and section number.
2. TAXES, § 571fn_ — necessary parties to foreclosure of special assessment lien. Bondholders are not considered necessary parties to an action of foreclosure of special assessment lien.
3. TAXES, § 574fn_ — sufficiency of basis for objection to confirmation of tax foreclosure sale. Fact that holder of special assessment bonds would receive part of taxes collected by virtue of special assessment foreclosure sale is not sufficient to permit him to file objections to confirmation of sale on ground of inadequacy of price.
4. TAXES, § 569fn_ — joinder of actions to foreclose special and general tax liens. Action to foreclose for special assessments can be joined in same suit with an action to foreclose for general taxes (Ill. Rev. Stat. 1941, ch. 120, par. 697; Jones Ill. Stats. Ann. 119.713).
5. TAXES, § 571fn_ — proper party to institute proceedings to foreclose. State's Attorney was proper party to institute proceedings to foreclose lien for general taxes and special assessments (Ill. Rev. Stat. 1941, ch. 120, par. 697; Jones Ill. State. Ann. 119.713).
Appeal by defendant from the Circuit Court of Du Page county; the Hon. WIN G. KNOCH, Judge, presiding. Heard in this court at the May term, 1943. Order affirmed. Opinion filed July 8, 1943. Rehearing denied October 5, 1943.
LEONARD C. MEAD, of Geneva, Ill., and GORDON MOFFETT, of Naperville, for appellant.
LEE E. DANIELS, State's Attorney, for appellee; THOMAS H. PRICE, of Wheaton, ROBERT J. SCOTT, of Glen Ellyn, and GEORGE H. BUNGE, of Downers Grove, of counsel.
This was a proceeding under paragraph 216 of the Revenue Act (ch. 120, sec. 697, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 119.713]), to foreclose a lien for general taxes and special assessments against a tract of real estate situated in Du Page county. Decree for sale was entered, sale had, and decree confirming report of sale. Appellant Thon filed his petition to vacate the decree approving the report of sale, on the ground of inadequacy of price. The petition to vacate was denied, and appellant brings this appeal.
Inadequacy of price is the only ground embraced in the petition to vacate. Appellant makes no assignment of error, but in his brief, argues additional reasons for reversal. These reasons might be said to fall within two general groupings — first, that he was a holder of one of the special assessment bonds, and was not made a party to the suit to foreclose; second, that the action to foreclose for special assessments could not be joined with the action to foreclose for general taxes, and the States' Attorney was not a proper person to institute the suit.
Appellee with respect to petition to vacate, replies that a tax foreclosure sale will not be disturbed for mere inadequacy of price, in the absence of proof of fraud or some fatal irregularity. This is the general rule with respect to other forms of judicial sales and is based on the fundamental principle that public policy requires stability to such sales. Shultz v. Milburn, 366 Ill. 400. The same rule has been held to apply to tax foreclosure sales. People v. Anderson, 380 Ill. 158.
With respect to appellant's contention that a bondholder should be made a party to such proceeding, we find that bondholders are not considered necessary parties to an action of foreclosure of special assessment lien. Village of Lansing v. Sundstrom, 379 Ill. 121. Appellant urges that being a holder of one of the local improvement bonds, he was beneficially interested in the proceeds from the sale of the property. It clearly appears from observations made in the case of People v. Home Real Estate Imp. Corp., 379 Ill. 536, that the fact one would receive part of the taxes collected by virtue of such a sale, is not sufficient to permit him to file objections to the confirmation of the sale on the ground of inadequacy of price. This case was transferred to the Appellate Court of the first district, where the order of the trial court denying the right to file such objections to the confirmation of sale was approved. ( 316 Ill. App. 437.)
With respect to appellant's contention that the action to foreclose for special assessments cannot be joined in the same suit with an action to foreclose for general taxes, we find it is held in the case of People v. Taylorville Sanitary Dist., 371 Ill. 280, that in the making of the delinquent list, and entering judgment for sale, and selling, no distinction is made between general taxes and special assessments; that when it comes to entering judgment, the law provides it shall be for taxes, special assessments and penalties; and that when sale is made, it must be to the person bidding the amount of such taxes and special assessments due, with the least rate as penalty; and that if it does not sell, the property is forfeited to the State (p. 284). On p. 286, of the same case, it is said with respect to the sale of land for delinquent general taxes and special assessments that, "the statute clearly contemplates there will be but one sale, and that for the total amount of the general taxes and special assessments certified as delinquent, and in case there is no sale, the property is to be forfeited to the State. When suit is brought to foreclose the lien of the taxes so forfeited, there is but one sale to realize the amount then due under the several forfeitures, . . . ." Thus we see that one action may be had for general taxes and special assessments, to realize the amount due under the several forfeitures.
As to appellant's contention that the State's Attorney is not a proper person to institute this suit, we find it is held in People v. Home Real Estate Imp. Corp., supra, on p. 538, with respect to general taxes, that such a suit shall be brought in the name of the People, and that the State's Attorney is the proper party to institute the suit.
Thus, we see that the State's Attorney is a proper person to institute a suit of this character where general taxes are concerned, and further, when there is also a forfeiture for special assessments, suit to foreclose such lien may be joined with the suit to foreclose the lien for general taxes. Therefore, it must be concluded that the State's Attorney was a proper person to institute this suit.
Due to the disposition made of this case, the motion of appellee to dismiss the appeal has not been considered.
The order of the circuit court denying appellant's motion is affirmed.
Order affirmed.