In re Application of the County Collector v. Eldridge

FILED
2015 IL App (4th) 140810 September 3, 2015
Carla Bender
NO. 4-14-0810 th
4 District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Application of the County Collector for ) Appeal from
Judgment and Order of Sale Against Lands and Lots ) Circuit Court of
Returned Delinquent for Nonpayment of General Taxes ) Macon County
for the Year 2009, ) No. 13TX96
VINOD C. GUPTA, )
Petitioner-Appellant, )
v. )
RAY ELDRIDGE, JR., Beneficial Owner of Magna )
Trust Company Land Trust No. 3832 Created by Trust ) Honorable
Agreement Dated October 25, 1988, ) Albert G. Webber,
Respondent-Appellee. ) Judge Presiding.
______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Knecht and Turner concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Vinod C. Gupta, appeals the trial court's denial of his petition for issu-

ance of a tax deed and finding of a sale in error pursuant to section 22-50 of Property Tax Code

(Code) (35 ILCS 200/22-50 (West 2012)). He argues the court erred in finding he failed to com-

ply with the relevant statutory requirements for notice to interested parties. Alternatively, peti-

tioner maintains the court should have found a sale in error under a different section of the

Code—section 21-310(a)(5) (35 ILCS 200/21-310(a)(5) (West 2012)). We affirm.

¶2 I. BACKGROUND

¶3 On November 19, 2010, petitioner purchased real property at a county tax sale for
$44,306.26, representing the amount of delinquent 2009 real estate taxes, interest, and fees owed

on the property. He received a certificate of purchase which identified the legal description of

the property as 1800 East Pershing Road, Lot 1 Dowd's Commercial Park.

¶4 On June 17, 2013, petitioner filed a petition seeking an order from the trial court

to direct the county clerk to issue him a tax deed to the property. The record reflects he sent

"take notices," identifying the property at issue as having been sold for delinquent taxes, to indi-

viduals or entities he believed were required to receive such notice under the Code. Specifically,

petitioner sent notice to (1) K's Merchandise Mart, Inc. (K's Merchandise), in care of David Kay

Eldridge; (2) K's Merchandise, to the attention of Tim Viewig; (3) CT Corporation System, as

the registered agent for K's Merchandise; and (4) Gordon Brothers Retail Partners, LLC (Gordon

Brothers).

¶5 On October 23, 2013, David Kay Eldridge filed a motion to dismiss and objection

to issuing a tax deed. He argued petitioner failed to comply with the Code's notice requirements,

asserting petitioner sent notice to parties who had no interest in the property at issue and failed to

send notice to the parties who did have an interest in the property. David asserted interested par-

ties included (1) Magna Trust Company, Land Trust No. 3832, the record owner of the property;

(2) Patricia Kay Eldridge (now known as Patricia Kay Sammons), David Christopher Eldridge,

Lynn Eldridge, and Tempest Grader, who held a recorded mortgage on the property; (3) the City

of Decatur, which held a weed lien on the property; and (4) Ray Eldridge, Jr., and Tempest

Grader, who were tenants and in current possession of the property by virtue of an oral lease. He

further alleged that K's Merchandise had been a month-to-month tenant of the property until its

tenancy was terminated four years prior. He denied that K's Merchandise had ever been a record

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owner of the property or had any recorded interest in the property. Finally, he alleged Gordon

Brothers was not an interested party in the property, in that it had never been a record owner of

the property, never had a recorded interest in the property, and had never been a tenant of the

property. David asked the court to sustain his objection to issuing a tax deed and dismiss the pe-

tition for a tax deed with prejudice.

¶6 On March 5, 2014, Patricia Kay Sammons filed an objection to issuing the tax

deed. She also maintained petitioner failed to follow the notice requirements set forth in the

Code and raised the same allegations set forth in David Kay Eldridge's motion to dismiss and

objection.

¶7 On March 7, 2014, the trial court conducted a hearing in the matter. Petitioner

appeared on his own behalf and testified he complied with the Code's requirements for issuance

of a tax deed. He noted his certificate of purchase showed taxes on the property had been as-

sessed to K's Merchandise. Petitioner testified he sent notice as required by statute and David

Kay Eldridge was personally served notice by the sheriff on June 20, 2013. He stated the circuit

court clerk also sent a notice addressed to K's Merchandise and David Kay Eldridge by certified

mail. He submitted a certified mail return receipt, which he testified was signed by "Mr. El-

dridge." Finally, petitioner testified notice of his petition for a tax deed was also published three

times in the newspaper.

¶8 On cross-examination, petitioner testified he relied on "somebody who was famil-

iar with doing some work for the title companies" to go to the courthouse and retrieve documents

related to the property at issue. He acknowledged that for the purpose of filing his petition, he

did not personally go to the recorder of deed's office to look for owners of record of the property.

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Petitioner admitted he did not send any notice of the underlying proceedings to Patricia Kay

Sammons, Tempest Grader, Magna Trust Company, Lynn Eldridge, David Christopher Eldridge,

or the City of Decatur.

¶9 Mary Eaton testified she was the Macon County recorder. She stated the records

in her office showed the owner of record of the property at issue was Magna Trust Company,

Trust No. 3832. Eaton testified that deed, recorded on November 10, 1988, was the last deed of

record for the property. She also noted that a mortgage on the property had been recorded by her

office between David Kay Eldridge and Ray Eldridge, Jr., as sole beneficial owners of Trust No.

3832, and mortgage holders Patricia Kay Sammons, David Christopher Eldridge, Lynn Eldridge,

and Tempest Grader. Eaton testified that, by her office's records, the mortgage had never been

released. David Kay Eldridge submitted a copy of the mortgage into evidence, which showed

the mortgage was filed and recorded on April 18, 1991, and was due within five years. Finally,

Eaton identified a lien dated July 1, 2013, and claimed by the City of Decatur for cutting weeds

on the property. She testified that lien was also recorded in her office.

¶ 10 Laura Wheeling testified she was a mapping specialist for the Macon County su-

pervisor of assessments' office. She testified her office mailed notices of assessments and agreed

the records in her office showed that, for the property at issue, "the mailing address is K's Mer-

chandise." Wheeling further agreed that the mailing address documented in the supervisor of

assessments' office did not necessarily reflect the owner of record for a particular property. Ra-

ther, she acknowledged that, to find the owner of record, one would have to go to the recorder of

deeds' office. On cross-examination, Wheeling agreed that 2008 and 2009 tax bills submitted by

petitioner were also directed to K's Merchandise.

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¶ 11 Tempest Grader testified she held a mortgage on the property at issue along with

her sister and cousins. She stated that, until recently, she received regular payments on the mort-

gage. Grader's understanding was that her father and uncle, who were the beneficial owners of

the land trust, sold the property on contract to Tim Viewig, who eventually did not make the

necessary mortgage and tax payments on the property. Grader testified she continued to view the

mortgage as valid and active and asserted it had not been released. Further, she stated that, alt-

hough she had lived at the same address for the previous 14 years, she did not receive any notic-

es from petitioner regarding the underlying proceedings.

¶ 12 Patricia Sammons testified she was a mortgage holder on the property at issue and

filed an objection to petitioner's request for a tax deed. She denied ever receiving notice of the

underlying proceedings from petitioner. Sammons testified that for many years she received

monthly payments on the mortgage in the amount of $1,000. She noted that "a few years ago,"

the property was sold to Tim Viewig on contract and he quit making payments. However, Sam-

mons still considered the mortgage on the property to be valid and active. She further agreed

that the mortgage identified David Kay Eldridge and Ray Eldridge, Jr., as the sole beneficial

owners of Land Trust No. 3832. To her knowledge, they continued to remain the sole beneficial

owners. Sammons also testified that, as of 2007, the address identified in the mortgage as the

address where mortgage payments were to be made was no longer a valid address.

¶ 13 David Kay Eldridge testified that he and his brother, Ray Eldridge, Jr., were the

beneficial owners of a land trust at the Magna Trust Company, identified as Trust No. 3832. He

stated the trust had been in existence since 1988 and owned the property at issue. In 1991, he

and Ray took out a mortgage from Tempest Grader, Lynn Eldridge, Christopher Eldridge, and

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Patricia Sammons. David testified they made payments of $1,000 per month on the mortgage to

each of those individuals until the property was sold on contract to Tim Viewig. He stated

Viewig was also supposed to pay the taxes on the property. At some point, he learned Viewig

had stopped making payments. David testified that when he received notice of the underlying

proceedings, he was in the process of trying to get Viewig to make his payments.

¶ 14 Following the parties' arguments, the trial court stated it agreed with petitioner's

contention that the City of Decatur, which held a weed lien on the property, was not "a necessary

party" due to a provision of the Code which prevented issuance of a tax deed unless the city's

lien was paid off. See 35 ILCS 200/22-35 (West 2012) ("[A]n order for the issuance of a tax

deed *** shall not be entered affecting the title to or interest in any property in which a city ***

has an interest under the police and welfare power by advancements made from public funds,

until the purchaser or assignee makes reimbursement to the city *** of the money so advanced or

the city *** waives its lien on the property for the money so advanced."). However, as to the

remaining issues, the court asked both parties to submit memoranda of law within 45 days, after

which it would issue a written order.

¶ 15 On April 21, 2014, David Kay Eldridge filed his memorandum. He, again, main-

tained petitioner failed to follow the notice requirements set forth in the Code. Specifically, Da-

vid argued petitioner failed to conduct a diligent inquiry to determine the parties entitled to no-

tice, i.e., "owners, occupants, and parties interested in the property" as set forth in section 22-10

of the Code (35 ILCS 200/22-10 (West 2012)).

¶ 16 On April 22, 2014, petitioner filed his memorandum. He asserted he relied on

records from the supervisor of assessments' office and the Macon County treasurer's office when

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determining the appropriate parties to notify. Petitioner asserted assessment notices were mailed

to K's Merchandise and tax bills identified K's Merchandise as the owner of the property. Addi-

tionally, he argued Magna Trust Company was not entitled to notice because it had been dis-

solved on November 14, 1997, and no longer existed. Petitioner attached a printout from the Il-

linois Secretary of State's website, which contained the heading "CORPORATION FILE DE-

TAIL REPORT" and identified the "status" of Magna Trust Company as "dissolved." Petitioner

further asserted Ray Eldridge, Jr., was not entitled to notice because he was not a record owner

of the property and documents identified him merely as a beneficiary of the trust. Finally, he

argued Patricia Sammons was not entitled to notice of the underlying proceedings because the

recorded mortgage showed the mortgage was executed by the beneficial owners of the trust, who

had no authority to mortgage the property. Petitioner maintained that "[s]ince Magna Trust

Company, as Trustee[,] did not execute the mortgage, the said mortgage is not valid and has no

binding effect."

¶ 17 Finally, Petitioner argued that, in the event the trial court determined he was not

entitled to a tax deed, it should find a sale in error under section 22-50 of the Code (35 ILCS

200/22-50 (West 2012)). Petitioner maintained such a finding was appropriate because he made

a bona fide attempt to comply with statutory requirements.

¶ 18 On April 29, 2014, the trial court made a lengthy docket entry setting forth its de-

cision in the matter. Ultimately, the court sustained the objections of David Kay Eldridge and

Patricia Kay Sammons to the petition for issuance of a tax deed and declared a sale in error pur-

suant to section 22-50 of the Code (35 ILCS 200/22-50 (West 2012)). In reaching its decision,

the court stated as follows:

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 "Here, the Petitioner relied on mailing addresses used by the coun-

ty assessor and county clerk, rather than the records of the record-

er's office to determine the identity of parties interested in the real

estate. This result is [sic] one interested party—David Kay El-

dridge—receiving actual notice of the tax delinquency and petition

for issuance of a tax deed."

The court found strict adherence to statutory notice requirements was necessary before a tax deed

could be issued and petitioner's "[f]ailure to send notice to interested parties of record—Magna

Trust Company and the mortgagees—prevent[ed]" it from granting his petition.

¶ 19 With respect to specific issues raised by the parties at the hearing and in the

memoranda of law, the trial court additionally stated as follows:

"Even though Magna Trust Company was dissolved, diligent in-

quiry could reveal its successor in interest. On the other side of the

coin, careful beneficial owners would cause a notice of successor

land trustee to be recorded to protect their chain of title. Likewise,

Magna Trust Company would have been the proper mortgagor, not

the beneficial owners who had no record title. This potential de-

fect addresses the nature of the security interest provided by the

mortgage, but does not excuse a failure to notify the mortgagees

named on it. Again, careful mortgagees might have recorded a no-

tice of a new address, especially given the fact of the defaulted

agreement for deed. In summary, both sides failed to take all nec-

-8-
 essary and prudent steps to protect their interests. Given this fact,

and actual notice of all proceedings received by David Kay El-

dridge, and the close business and personal relationship of him to

the other interested parties, the record before the Court does sup-

port a conclusion that the Petitioner made a bona fide attempt to

comply with statutory notice requirements, but failed to strictly

comply with them."

¶ 20 At the conclusion of its docket entry, the trial court directed petitioner to prepare

an order declaring a sale in error, which petitioner failed to do. Instead, on June 13, 2014, peti-

tioner filed a motion to modify and for reconsideration and rehearing. He again argued he was

entitled to issuance of a tax deed. Alternatively, petitioner asked the court to modify its decision

and find a sale in error pursuant section 21-310(a)(5) of the Code (35 ILCS 200/21-310(a)(5)

(West 2012)), which provides that a court may declare a sale in error when "the assessor, chief

county assessment officer, board of review, board of appeals, or other county official has made

an error." That section also provides for refund of the amount paid to the owner of a certificate

of purchase along with "any interest and costs." 35 ILCS 200/21-310(d) (West 2012). Petitioner

argued that although the recorder's office identified the owner of the property at issue as Magna

Trust Company, the Macon County treasurer's records identified K's Merchandise as the owner

of the property, the tax sale certificate issued by the Macon County clerk identified the property

as being "assessed to" K's Merchandise, and the assessor sent assessment notices to K's Mer-

chandise.

¶ 21 On August 18, 2014, the trial court conducted a hearing on petitioner's motion to

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modify and for reconsideration and rehearing. Ultimately, the court denied petitioner's motion.

The same date, it entered an order denying issuance of a tax deed based on petitioner's failure to

comply with statutory requirements and declaring a sale in error pursuant to section 22-50 of the

Code (35 ILCS 200/22-50 (West 2012)).

¶ 22 This pro se appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal, petitioner first argues the trial court erred in denying his petition for

issuance of a tax deed on the basis that he failed to comply with the Code's notice requirements.

He maintains that Magna Trust Company; David Kay Eldridge and Ray Eldridge, Jr., as benefi-

cial owners of the land trust; and the mortgagees were not entitled to notice of the underlying

proceedings.

¶ 25 The Code sets forth various notice requirements for obtaining a tax deed. Pursu-

ant to section 22-5 of the Code (35 ILCS 200/22-5 (West 2012)), within 4 months and 15 days

after a tax sale, the tax purchaser must "deliver to the county clerk a notice to be given to the par-

ty in whose name the taxes are last assessed." The notice—entitled "TAKE NOTICE"—advises

the recipient that the specified property has been sold for delinquent taxes, the amount which

must be paid to redeem the property, the date upon which the redemption period will expire, and

that a petition for issuance of a tax deed transferring title and right to possession of the property

will be filed if redemption is not made. 35 ILCS 200/22-5 (West 2012).

¶ 26 Further, to be entitled to a tax deed, section 22-10 of the Code (35 ILCS 200/22-

10 (West 2012)) requires a tax purchaser to send a take notice to "owners, occupants, and parties

interested in the property, including any mortgagee of record." Such notices must be given "not

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less than 3 months nor more than 6 months prior to the expiration of the period of redemption"

and must give "notice of the sale and the date of expiration of the period of redemption." 35

ILCS 200/22-10 (West 2012).

¶ 27 The Code provides for service of the take notice "(i) personally by the sheriff; (ii)

by registered or certified mail with return receipt requested; and (iii) by three publications in a

local newspaper." In re Application of the County Treasurer & ex officio County Collector, 2015

IL App (1st) 133693, ¶ 33, 33 N.E.3d 248 (citing 35 ILCS 200/22-15, 22-20, 22-25 (West

2012)). Finally, "within 6 months but not less than 3 months prior to the expiration of the re-

demption period for property sold pursuant to judgment and order of sale *** the purchaser ***

may file a petition in the circuit court *** asking that the court direct the county clerk to issue a

tax deed if the property is not redeemed from the sale." 35 ILCS 200/22-30 (West 2012). "No-

tice of filing the petition and the date on which the petitioner intends to apply for an order on the

petition that a deed be issued if the property is not redeemed shall be given to occupants, own-

ers[,] and persons interested in the property ***." 35 ILCS 200/22-30 (West 2012).

¶ 28 "It is well established a tax purchaser must strictly comply with the statutory no-

tice requirements and such notice provisions are to be 'rigidly enforced.' " In re Application of

the Douglas County Treasurer & ex officio County Collector, 2014 IL App (4th) 130261, ¶ 34, 5

N.E.3d 214 (quoting In re Application of the County Treasurer & ex officio County Collector,

403 Ill. App. 3d 985, 990, 935 N.E.2d 570, 574 (2010)) (hereinafter, Ballinger). "The petitioner

for a tax deed carries the burden of demonstrating that it complied with the Code and provided

the requisite notice." In re Application of the County Treasurer & ex officio County Collector,

2011 IL App (1st) 101966, ¶ 44, 955 N.E.2d 669 (hereinafter, Glohry).

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¶ 29 "The *** Code requires the tax purchaser to conduct a 'diligent inquiry' to locate

property owners and interested parties." Ballinger, 2014 IL App (4th) 130261, ¶ 42, 5 N.E.3d

214. "[A] 'diligent inquiry' is an inquiry 'as full as the circumstances of the situation will

permit.' " Ballinger, 2014 IL App (4th) 130261, ¶ 34, 5 N.E.3d 214 (quoting Liepelt v. Baird, 17

Ill. 2d 428, 432-33, 161 N.E.2d 854, 858 (1959)). Further, it "is that inquiry which a diligent

person who is intent on discovering a fact would reasonably make." Glohry, 2011 IL App (1st)

101966, ¶ 44, 955 N.E.2d 669. "Illinois courts have held 'a tax purchaser has failed to act with

minimal diligence if he has not made reasonable efforts to notify all persons whose interest may

reasonably be inferred from the public records regarding the property's ownership.' " Ballinger,

2014 IL App (4th) 130261, ¶ 42, 5 N.E.3d 214 (quoting Glohry, 2011 IL App (1st) 101966, ¶ 44,

955 N.E.2d 669).

¶ 30 "Whether the purchaser's actions are sufficient to comprise due diligence in de-

termining the identities of, and providing notice to, those who hold an interest in the property is a

question of fact." Banco Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 213, 780

N.E.2d 1113, 1127 (2002). The trial court's determination as to diligence "will not be reversed

on appeal unless it is against the manifest weight of the evidence." Gacki v. La Salle National

Bank, 282 Ill. App. 3d 961, 964, 669 N.E.2d 936, 938 (1996); see also In re Application of the

Cook County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delin-

quent for Nonpayment of General Taxes for the Year 1987 & Prior Years, 271 Ill. App. 3d 12,

15, 648 N.E.2d 153, 156 (1995) ("Because diligence is a question of fact, the trial court's deter-

mination will only be reversed if it is against the manifest weight of the evidence.").

¶ 31 In this case, the record reflects petitioner relied on records from the assessor's of-

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fice and the treasurer's office when determining which parties were entitled to notice under the

Code. He neither discovered nor investigated the parties who held interests in the property as

shown by the records of the Macon County recorder's office. Those records identified Magna

Trust Company, Trust No. 3832 as the owner of the property and reflected a recorded mortgage

on the property held by several individuals. Additionally, the mortgage document filed with the

recorder's office identified David Kay Eldridge and Ray Eldridge, Jr., "as the sole beneficial

owners" of the land trust. Because Magna Trust Company; the beneficial owners of the land

trust; and the mortgagees all had interests reflected in the public records regarding the property at

issue, petitioner was required to make reasonable efforts to notify those parties. The record here

reflects no such effort and, thus, a lack of even minimal diligence.

¶ 32 Petitioner contends that, although Magna Trust Company held the last recorded

deed for the property, the company was dissolved in 1997, and he could not send notice to an

entity that no longer existed. Petitioner asserts "Magna Trust Company was not served because

it was dissolved." However, as the trial court found, "[e]ven though Magna Trust Company was

dissolved, diligent inquiry could [have] reveal[ed] its successor in interest." The record indicates

petitioner was not aware of Magna Trust Company's recorded interest in the property until after

the objections to his petition for issuance of a tax deed were filed. It further shows he made no

inquiry or investigation into that interest. In particular, he made no attempt to find a successor in

interest. Given these circumstances, the court's determination that petitioner failed to make a

diligent inquiry to locate property owners and interested parties was not against the manifest

weight of the evidence.

¶ 33 Petitioner further argues neither David Kay Eldridge nor Ray Eldridge, Jr., was

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entitled to notice under the Code because they were "merely beneficiaries of the trust" and did

not hold record title. However, "[i]nterested parties—whether legal owners or land trust benefi-

ciaries—whose names and addresses can readily be ascertained from public records have a con-

stitutional right to notice of tax deed proceedings, and the failure of the tax sale purchaser to con-

sult the public records to make this determination constitutes a lack of diligence." In re Applica-

tion of the County Collector, 397 Ill. App. 3d 535, 545, 921 N.E.2d 462, 472-73 (2009); see also

In re Application of the County Treasurer & ex officio County Collector of Cook County for Or-

der of Judgment & Sale Against Real Estate Returned Delinquent for the Year 1985, 216 Ill.

App. 3d 162, 171, 576 N.E.2d 255, 262 (1991) (holding land trust beneficiaries were entitled to

notice where their names were ascertainable from the public record and their addresses "were

obtainable either from the public documents themselves or from telephone directories").

¶ 34 Both David Kay Eldridge and Ray Eldridge, Jr., were identified as beneficial

owners of the land trust in the mortgage document recorded in the recorder's office. The record

shows David Kay Eldridge was served with notice of the underlying proceedings but reflects no

effort by petitioner to notify Ray Eldridge, Jr. Petitioner argues a certified return receipt (sub-

mitted at the March 2014 hearing as petitioner's exhibit F) contains the signature of Ray El-

dridge, Jr., indicating he was served with notice. However, that return receipt shows it was ad-

dressed to K's Merchandise and to the attention of David Kay Eldridge. Upon review by this

court, the return receipt appears to contain the signature of "Kay Eldridge" and not Ray Eldridge,

Jr. Additionally, during the March 2014 hearing in the matter, David Kay Eldridge's testimony

indicated it was his signature on the return receipt that petitioner references on appeal. The fol-

lowing colloquy occurred between David Kay Eldridge and his attorney:

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 "Q: And at the time you signed for a notice from [petition-

er], the signature card on the—which is his Exhibit F, page 1, you

were in the process of trying to get Mr. Viewig to—pay up his

payments?

A. Correct."

¶ 35 The record shows petitioner could have inferred from public records that Ray El-

dridge, Jr., had an interest in the property at issue as he was identified by name as a beneficial

owner of the land trust in the mortgage document filed with the recorder's office. Again, peti-

tioner's failure to make any effort to notify Ray Eldridge, Jr., of the underlying proceedings indi-

cates the lack of a diligent inquiry by petitioner and, thus, a failure to comply with the Code's

notice provisions.

¶ 36 Finally, petitioner argues the mortgagees, including Patricia Sammons, were not

entitled to notice. Initially, he argues the mortgagees did not hold a valid mortgage because the

mortgage was not executed by the owner of the property. He points out that the mortgage docu-

ment identified David Kay Eldridge and Ray Eldridge, Jr., as the mortgagors but contends that,

as beneficial owners of the trust, neither individual had an ownership interest in the property or,

consequently, the authority to mortgage the property.

¶ 37 A land trust is defined as any trust arrangement under which the trustee holds the

legal and equitable title to real estate while "the interest of the beneficiary of the trust is personal

property." 735 ILCS 5/15-1205 (West 2012). Additionally, "the beneficiary or any person des-

ignated in writing by the beneficiary has (i) the exclusive power to direct or control the trustee in

dealing with the title to the trust property, (ii) the exclusive control of the management, opera-

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tion, renting and selling of the trust property and (iii) the exclusive right to the earnings, avails

and proceeds of the trust property." 735 ILCS 5/15-1205 (West 2012). In the context of a land

trust, "[t]he trustee's interest is in the title to the real estate and if the beneficiary wishes to deal

with that title, he must do so through the trustee." Schneider v. Pioneer Trust & Savings Bank,

26 Ill. App. 2d 463, 466, 168 N.E.2d 808, 809 (1960).

¶ 38 Here, we find merit in petitioner's contention that the beneficial owners of the

trust lacked authority to mortgage the property. In this case, only the trustee of the land trust

held legal and equitable title to the property and, therefore, the trustee was the one with authority

to execute the mortgage.

¶ 39 Nevertheless, we do not find such reasoning dispositive of the issues presented by

this case. The Code expressly provides that, to be entitled to a tax deed, a tax purchaser must

send notice to "owners, occupants, and parties interested in the property, including any mortga-

gee of record." (Emphasis added.) 35 ILCS 200/22-10 (West 2012). The mortgage at issue on

appeal was recorded and petitioner does not cite any authority for the proposition that a tax pur-

chaser may refuse to send notice to mortgagees of record whom the tax purchaser unilaterally

determines hold no valid mortgage. With respect to this issue the trial court stated as follows:

"Magna Trust Company would have been the proper mortgagor,

not the beneficial owners who had no record title. This potential

defect addresses the nature of the security interest provided by the

mortgage, but does not excuse a failure to notify the mortgagees

named on it."

We agree with the trial court's observation. Even if the mortgage was later judicially determined

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to be invalid, at the time petitioner served the take notice, it was incumbent on him to serve any

nominal mortgagee of record. Here such nominal mortgagees of record included Patricia Kay

Sammons, David Christopher Eldridge, Lynn Eldridge, and Tempest Grader. Moreover, in this

case, petitioner did not discover the recorded mortgage or conduct any investigation into the in-

terests of the mortgagees until after the objections to his petition were filed. Once again, such

circumstances evidence a lack of diligence by petitioner.

¶ 40 Petitioner further argues that, even if the mortgagees held a valid mortgage, "the

statute of limitations to commence an action expired." He cites section 13-115 of the Code of

Civil Procedure (735 ILCS 5/13-115 (West 2012)), which provides that "[n]o person shall com-

mence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a

mortgage, unless within 10 years after the right of action or right to make such sale accrues."

We find section 13-115 involves circumstances wholly unrelated to the proceedings at issue as it

concerns proceedings to foreclose a mortgage.

¶ 41 Finally, to the extent petitioner argues he complied with the Code's requirements

because the notices he published in the newspaper were sufficient to give all necessary parties

constructive notice of the underlying proceedings, we disagree. "Notice by publication in tax

deed proceedings is authorized only to those owners and interested parties who upon diligent in-

quiry cannot be found and personally served." In re Application of Hamilton County Treasurer,

96 Ill. App. 3d 158, 161, 420 N.E.2d 1179, 1182 (1981). Further, this court has previously re-

jected the contention that publication notice cures a tax purchaser's failure to conduct a diligent

inquiry. Ballinger, 2014 IL App (4th) 130261, ¶ 47, 5 N.E.3d 214. Thus, petitioner's failure to

perform a diligent inquiry in the instant case is not excused by the notices he published in the

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newspaper.

¶ 42 The circumstances of this case support the trial court's conclusion that petitioner

failed to conduct a diligent inquiry into the parties requiring notice under the Code. The court's

finding as to diligence was not against the manifest weight of the evidence. Further, because pe-

titioner failed to conduct a diligent inquiry and comply with the Code's notice requirements, he

was not entitled to issuance of a tax deed.

¶ 43 On appeal, petitioner alternatively argues he was entitled to a sale in error pursu-

ant to section 21-310(a)(5) of the Code (35 ILCS 200/21-310(a)(5) (West 2012)), rather than sec-

tion 22-50 of the Code (35 ILCS 200/22-50 (West 2012)) as determined by the trial court.

¶ 44 Section 22-50 of the Code (35 ILCS 200/22-50 (West 2012)) provides as follows:

"If the court refuses to enter an order directing the county clerk to

execute and deliver the tax deed, because of the failure of the pur-

chaser to fulfill any of the above provisions, and if the purchaser,

or his or her assignee has made a bona fide attempt to comply with

the statutory requirements for the issuance of the tax deed, then

upon application of the owner of the certificate of purchase the

court shall declare the sale to be a sale in error."

Alternatively, section 21-310(a)(5) of the Code (35 ILCS 200/21-310(a)(5) (West 2012)) permits

a court to declare a sale in error when "the assessor, chief county assessment officer, board of

review, board of appeals, or other county official has made an error (other than an error of judg-

ment as to the value of any property)." "If a sale is declared to be a sale in error [pursuant to sec-

tion 21-310], *** the county collector shall, on demand of the owner of the certificate of pur-

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chase, refund the amount paid, pay any interest and costs ***." 35 ILCS 200/21-310(d) (West

2012).

¶ 45 Petitioner argues that "[t]he assessor and other county officials" made errors be-

cause, although records from the Macon County recorder's office identified Magna Trust Com-

pany as the owner of the property at issue, "other county departments erroneously show that [K's

Merchandise] is the owner." He notes that the certificate of purchase issued to him after the tax

sale stated the property was "assessed to" K's Merchandise, the assessor's office sent assessment

notices to K's Merchandise, and the treasurer's office identified the owner of the property as K's

Merchandise.

¶ 46 We find petitioner has failed to demonstrate any error by county officials. Noth-

ing in the record reflects any error in designating K's Merchandise as the entity to whom taxes

were assessed or to whom tax bills were mailed. As the trial court noted when addressing peti-

tioner's posthearing motion, "tax bills may go to only one of multiple owners of property" or "be

mailed to persons or entities who have no ownership interest in a piece of property." Further,

contrary to petitioner's assertions on appeal, Laura Wheeling, a mapping specialist for the Macon

County supervisor of assessments' office, agreed that the mailing address documented in the su-

pervisor of assessments' office did not necessarily reflect the owner of record for a particular

property. Given these circumstances, the court committed no error in finding petitioner was not

entitled to a sale in error pursuant to section 21-310(a)(5) of the Code.

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we affirm the trial court's judgment.

¶ 49 Affirmed.

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