dissenting:
There is a well-accepted maxim that “equity regards and treats that as done which in good conscience ought to be done.” In my opinion, good conscience does not justify applying technical principles to permit the Park District to claim rights which the record does not establish. Equity demands that the trial court’s holding be reversed and that personal notice to the Park District in this case was not necessary.
It is not necessary to repeat the facts set forth in the majority opinion. However, emphasis will be placed on certain significant parts of the record.
On January 9, 1976, the trial court granted the Park District’s petition to acquire the subject property and ordered a sheriff’s deed. However, the Park District took no affirmative step with respect to acquiring the sheriff’s deed until October 13,1978.
In the meantime, other actions were taking place. On June 10, 1976, when the property was put up for sale due to delinquent taxes for the years 1947 to 1974, it was purchased by Phoenix Realty, who assigned their rights to appellant Ware. Thereafter, in an action by appellant for the appointment of a receiver to prevent waste on the subject property, a hearing was held in the circuit court of Cook County. The Park District received notice from the appellant as to this petition. On October 27, 1977, Leslie P. Liss, attorney for the Park District, appeared before the court and represented that the Park District “has no interest whatsoever in the property.” Consequently, a receiver was appointed. The record also indicates that the Park District’s attorney, during this period, had informed the corporation counsel’s office of the city of Chicago that the Park District had no interest in the property.
In November 1977, the city of Chicago obtained an order authorizing sale of the subject property to satisfy the city’s lien. Appellant paid the city the amount of the demolition lien.
On June 7, 1978, appellant filed a petition for a tax deed but did not give personal notice to the Park District. On that date, the Park District did not have title to the subject property. The two-year redemption period expired on September 29, 1978. A hearing was scheduled on October 17, 1978, regarding the petition for the tax deed. In the meantime, the Park District’s attorney, on October 13, 1978, obtained the sheriff’s deed which was then produced at the October 17 hearing. Because of the deed, the trial court denied the petition on the grounds that appellant failed to give proper notice to the Park District.
As discussed below, I believe the principles of waiver, judicial admission and estoppel should be applied. My colleagues reject appellant’s arguments on these issues. Relying upon County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 11, 405 N.E.2d 1376, the majority says that an attorney cannot waive any right of his client without the client’s express authorization, that estoppel against a public body is not favored, and in any respect in dealing with a municipality, be sure you deal with a person in authority. In Patka (involving the awarding to the county of a demolition lien), this court also noted that there was no showing that the parties acted in reliance on the unauthorized act of the county.
In the instant case, based upon the record, I think there was a binding judicial admission. And, based upon the acts and failure to act by the Park District, there has been a valid waiver of any rights by the Park District, thereby creating an estoppel against the Park District.
The Chicago Park District operates under statutory authority (Ill. Rev. Stat. 1983, ch. 105, par. 333.1 et seq.)1 different than other park districts in this State (Park District Code par. 1 — 1 et seq.). The Park District is operated by five commissioners appointed by the mayor of the city of Chicago with the approval of the city council. The statute also provides for a “General Superintendent” appointed for a term of four years, who shall “manage the affairs of the district.” (Park District Code par. 333.5.) It is a matter of historical knowledge, of which the court can take judicial notice, that the general superintendent of the Chicago Park District operates that body. And, when the general superintendent speaks, it is as the “voice” of the Park District. This structural distinction in park districts and the recognition of the general superintendent’s authority is important in the pragmatic and equitable resolution of this case.
The majority concludes that the record does not establish that the Park District’s attorney was speaking with authority of the commissioners when he stated in court that the Park District had no interest in the subject property. However, in addition to the facts set forth in the majority opinion, the record does show that on June 12, 1978, attorney Howard M. Brody wrote a letter to Park District commissioner Theodore Jones concerning the subject property. As a result of the letter, on June 19, 1978, the assistant record and estimate engineer of the Park District wrote an interoffice memo to the chief engineer setting forth certain information concerning the subject property. On June 27, 1978, the following letter was written to attorney Harold M. Brody:
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This communication, signed by the general superintendent in response to a letter to Park District commissioner Jones, clearly supports and corroborates the position taken in court by Park District attorney Liss, on October 27, 1977 and June 7, 1978. Coupled with the failure of the Park District to secure the deed, notwithstanding Judge Epstein’s order of January 9, 1976, justified the failure of appellant to send notice on June 7, 1978, to the Park District when appellant petitioned for the tax deed. The Park District was not the record title holder of the property until October 13, 1978. Requiring formal action by the park commissioner in this situation is allowing the Park District to hide behind “form” rather than recognizing and accepting the realities of their position.
In my opinion, estoppel should apply against the Park District for the following reasons: (1) the record clearly establishes that the Park District attorney made a judicial admission that the District was not interested in the property; and (2) relying on the judicial admission, appellant did not send personal notice. In Jordan v. City of Chenoa (1897), 166 Ill. 530, 47 N.E. 191, a case involving a question of the acceptance by a municipality of streets and alleys based on the recording of a plat of dedication, it was held that defense of equitable estoppel from abandonment or nonuser may be applied against a municipality. By not acting to secure title to the property between January 9, 1976, and October 13, 1978, the Park District should be estopped from asserting a claim of no notice.
There can be no doubt that the admission by a party’s attorney is binding upon the party. (Neiman v. City of Chicago (1962), 37 Ill. App. 2d 309, 185 N.E .2d 358, appeal denied (1963), 25 Ill. 2d 623.) An admission by counsel of a party upon the trial supersedes all proofs upon the point in question. (Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 328, 200 N.E .2d 149, affd (1965), 33 Ill. 2d 326, 211 N.E .2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.) As stated in Hunter, Trial Handbook for Illinois Lawyers sec. 68.15, at 943-44 (5th ed. 1983), “[w]hat constitutes a judicial admission must be decided under the circumstances in each case ***” and “[t]he attorney has prima facie authority to make relevant judicial admissions.” See also 2 Gard, Illinois Evidence Manual Rule 15:18, at 141-42 (2d ed. 1979), and Cleary & M. Graham, Illinois Evidence sec. 802.11 at 541 (4th ed. 1984).
In the instant case, the record established that not only did the general superintendent in writing represent that the Park District could not be involved in the property, such representation was approved by the general attorney. It certainly is reasonable and equitable to conclude that attorney Liss was merely representing in court the official position of the Park District as set forth by the general superintendent, who has the statutory authority to manage the affairs of the District. (See Park District Code par. 333.5.) As the supreme court said in American Car & Foundry Co. v. Industrial Com. (1929), 335 Ill. 322, 332, 167 N.E. 80, “[w]here an attorney is counsel of record for his client, his agreements and stipulations made in the conduct and management of the litigation must be considered as the agreement of his client, and if any of his acts are without sufficient authority as between him and his client, the remedy of the client is against the counsel.”
Under the circumstances and record of this case, I do not think it equitable to hold that the Park District was entitled to the requisite personal notice of the expiration of the period of redemption. In fact, not only had the Park District waived by their action any such requirement, but it is reasonable to assume that the Park District had actual notice of what was taking place and waited until the redemption period expired on September 27, 1978, before securing the sheriff’s deed on October 13, 1978. Then, in court, the Park District could yell, “Foul — see, we have a deed and did not receive notice.” The action of the Park District should not be condoned. It permits the Park District to hide behind technicalities with judicial sanction. I would reverse the judgment of the circuit court of Cook County.