concurring in part and dissenting in part:
I agree the order of the circuit court should be reversed. There is, however, no need for remand.
A review of the record, and considering the arguments of counsel, assumes the time for requesting tax deeds has expired and was expired at the time the application for sale in error was made.
Section 271.1 does not prohibit the issuance of tax deeds where a city has made advancements from public funds. The tax purchaser has two options, reimburse the city the money so advanced and get the tax deed, or apply for a sale in error. The tax purchaser was not required to seek a deed before he could claim relief under section 271.1.
Assuming arguendo the petitioner was required to seek a deed before claiming relief under section 271.1, he is for the same reason too late in applying for a sale in error because of destruction of the buildings.
Any actions taken by the purchaser for any type of relief, tax deed, or sale in error must be taken within the time limits of the Act. He was not prohibited by injunction or order of the court. He cannot now complain. The times for filing a petition for tax deed had passed at the time the application for sale in error had been made.
Section 271 is applicable to the facts in this case. That section in substance holds that unless the holder takes out the deed in the time provided by law and files the same of record within one year from and after the time for redemption expires, the certificate and the sale on which it is based, shall from and after expiration of such one year, be absolutely null and void with no right to reimbursement. (Ill. Rev. Stat. 1987, ch. 120, par. 752.) There is an exception that deals with those cases where there is an injunction or order of the court preventing the holder of the certificate from obtaining a deed. These limitations are not present in the instant case.
The plaintiff finds himself in a position caused by his own actions or inactions. He is not entitled to any relief. A tax purchaser cannot sit back, let the time limits pass to petition for tax deed, and later file an application for sale in error.
Thornton does not stand as authority for the plaintiff to recover under equity. The supreme court, in applying equity in Thornton, found the “plaintiff was not yet the owner of the fee [citation], nor even a certificate holder, but only a bidder in the process of making a purchase.” Thornton, 72 Ill. 2d at 405, 381 N.E.2d at 252.
The critical question is whether the time for applying for a tax deed had passed when the application for reimbursement was made. Pursuant to section 271, the plaintiff is too late to ask for any relief, reimbursement under the Act.
I disagree with the statement by the majority that a difficult problem would arise if liens were released after the time for obtaining a deed has lapsed and also defeat the certificate owner’s right to reimbursement. There is no problem. The purchaser is required by time limits to file the petition for tax deed. At the hearing on the petition, the purchaser knows whether the lien needs to be resolved. With no risk, at the hearing, if the lien is not released or paid, he can ask for the alternative relief of reimbursement.
The purchaser must take action to apply for tax deed within the time limits set by the Act (not more than five months nor less than three months prior to the last day or extended day of redemption). If the petition for deed is filed, the purchaser will have the benefits of section 271.1 until the trial court rules on the petition for deed. Allowing the time limits to pass for petition for deed should also deprive the purchaser of any benefits under section 271.1.
As stated above, section 271 affirmatively states that unless the holder “takes out the deed in the time provided by law,” the “certificate” shall “be absolutely null and void with no right to reimbursement.” Ill. Rev. Stat. 1987, ch. 120, par. 752.