dissenting:
The legislative mandate that our statutory provisions relevant to tax deeds shall be liberally construed so that tax deeds shall convey merchantable title need not be so implemented as to deprive the city of Bloomington of its lien to recover public funds spent upon the repair of the property involved.
The legislative policy supported by a legion of cases encouraging merchantability of tax deeds is not superior to the legislative policy that encourages cities and villages to repair or demolish buildings in the city or village. Section 11—31—1 of the Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 11—31—1), authorizes the repair or demolition of buildings and provides for a lien to the city superior to all prior liens except taxes. In Chicago v. City Realty Exchange, Inc., 127 Ill.App.2d 185, 262 N.E.2d 230, the court effectively subordinated such lien to the interests of a purchaser at the tax sale.
Section 271.1 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 752—1), as quoted in the majority opinion, provides that there is to be no order for the issuance of a tax deed until the claimant shall make reimbursement to the city, village or town of money advanced by it for repair or demolition. While the majority opinion properly concerns itself with the retroactive application of this statute and the possible constitutional issues that would arise in the event it is given retroactive application, it would be more appropriate to emphasize that the statute was and is jurisdictional. Even if given retroactive application, we have no constitutional issue presented because the statute specifically provides that, in lieu of reimbursement, the tax purchaser or his assignee may make application to have the tax sale set aside as a sale in error. Effectively, therefore, the statutory scheme gives the tax purchaser complete protection as indeed does the whole statutory scheme relating to tax sales.
The city in this case sought to foreclose its hen and also sought to recover upon the basis of unjust enrichment or quantum meruit. The majority opinion rejects this on the basis of laches.
The allowance of recovery on the basis of quantum meruit would in no way invalidate the tax deed. The city’s right to recover may be barred by its laches but such issue should properly be determined upon the merits not upon the pleadings.
In this case, Magdalene P. Schalk asserts as a basis for her immunity from the plaintiff’s sought relief that she was a bona fide purchaser for value. The conclusion reached by the majority opinion made it unnecessary to consider that asserted status. This record does not establish that she was a bona fide purchaser for value. Indeed, the affidavit purporting to establish this fact was written not by her but by one Geraldine D. Hoffmann. It is classic hearsay and Geraldine Hoffmann's statement as to the state of mind of Magdalene P. Schalk and the resulting conclusion that Schalk was a bona fide purchaser is neither pursuasive nor competent to establish such fact.