dissenting:
It is not disputed that Western National Bank of Cicero, as trustee, owned the property in question, and that Lyons redeemed as its agent, and as the agent of the beneficiaries under the trust. The redemption was made in apt time and the proper amount was paid to the county clerk. But because one of the deeds in the bank’s chain of title, executed back in 1937, had not been recorded, the redemption is now set aside, apparently because of a supposed requirement that one who redeems must show that he had “good record title.”
The opinion refers to the bank as “a stranger to the record title,” and “ a stranger to the chain of title.” It points out that the bank had “no interest of record” and that “completion of the record chain of title came too late.” The trouble with all of this is that there is no statutory requirement that one who would redeem from a tax sale must have good record title, and indeed such a requirement would run counter to section 5 of article IX of the constitution which provides that the right of redemption “shall exist in favor of owners and persons interested in such real estate.” The only “persons interested” in this real estate were the bank and the persons for whose benefit the bank held title, and Lyons redeemed as their agent. Of course the grantor in the 1937 unrecorded deed could not redeem, for it had no interest in the property.
The result of the court’s opinion is that there was no one who could redeem from this tax sale. This harsh and unusual result is reached by citing People v. Hess, 7 Ill.2d 192, and Conkey v. Rex, 212 Ill. 444, for the novel proposition that “Under the applicable constitutional and statutory provisions, a stranger to the record title has no right to redeem.” Neither case supports that proposition. The Hess case did not say anything about a stranger to the record title. What it said was this: “We think it clear that a complete stranger to property is given no right to redeem * * (7 Ill.2d at 197. Italics supplied.) It was there pointed out that the applicable “constitutional and statutory provisions do not require complete legal title.” (7 Ill.2d at 197.) In that case title to the property stood in the name of a corporation that had been dissolved, and the man who had owned the stock of the defunct corporation was permitted to redeem from the tax foreclosure. Of course his interest in the property did not appear of record. The Conkey case has no bearing upon the problem before us. There Rex sought to establish that a deed absolute on its face was a mortgage, from which he should be permitted to redeem. The court denied his contention because at the time the deed was executed, “Rex had no interest, legal or equitable, which he could assert, in the real estate; and as he had nothing which could be mortgaged, the deed in question cannot be regarded as a mortgage from him to Conkey.” 212 Ill. at 455.
The opinion makes it clear that it does not rest upon the fact that the redemption was made by Lyons as the agent of the owners of the property. There is no requirement that an owner redeem in person, and a corporation must act by agent. Long ago, in Houston v. Buer, 117 Ill. 324, this court upheld a redemption made by an agent who purported to act on behalf of an absent owner who had never authorized the agent to act for him. The court pointed out that the agent acted in good faith, and said: “His effort to save the land for his unheard from expected principal was well intended, and a very proper act, and we think should be sustained. We are of opinion that he was enough of an agent, in respect to the land, to redeem from the tax sale, and that he did make a valid redemption.” (117 Ill. at 329.) In the case before us, Lyons’s authority to act for his principals was not disputed.
I do not understand the last four paragraphs of the opinion, which seem to be based on section 30 of the Conveyances Act. (Ill. Rev. Stat. 1959, chap. 30, par. 29.) Apparently the first point sought to be made is that an execution creditor stands in the same position as a purchaser with respect to prior unrecorded conveyances. Then the opinion quotes from McNitt v. Turner, 83 U.S. 352, to the effect that the term “purchasers” includes purchasers at judicial sales. And finally the conclusion seems to be drawn that the tax buyer is protected from redemption by any one except those persons of whose claims he had actual or constructive notice when he purchased at the sale.
The difficulties with this process of reasoning are obvious. The purchaser at a foreclosure sale does not stand in the position of a judgment creditor armed with execution. The sale involved in McNitt v. Turner, 83 U.S. 352, was an administrator’s sale to pay debts, from which no redemption is permitted. (See In re Therens’ Estate, 189 Ill. App. 314, aff’d sub nom. Therens v. Therens, 267 Ill. 592.) The case was not at all concerned with the right to redeem from judicial sales. One who purchases at a foreclosure sale subject to a constitutional and statutory right of redemption, stands in a very different position. Unlike the purchaser in the McNitt case, he does not acquire title. What he acquires is “* * * merely a right to receive a deed if the premises are not redeemed.” Klein v. Mangan, 369 Ill. 645, 647; Hack v. Snow, 338 Ill. 28, 31; Hooper v. Goldstein, 336 Ill. 125, 135.
A host of cases have held that the owner of the equity of redemption can confess judgment, even after the foreclosure sale, and that the judgment creditor can redeem. (See, e.g., Wojcik v. Stolecki, 411 Ill. 443, 446; Nudelman v. Carlson, 375 Ill. 577, 581; Sebastian v. Gorecki, 339 Ill. 393, 398-399.) The equity of redemption may be transferred to a stranger after the foreclosure sale, and the stranger can redeem. (Johnson v. Zahn, 380 Ill. 320.) These instances, in which the redemptioner had no connection with the property until after the sale, are enough to show the obvious unsoundness of the proposition that redemption can only be effected by those whose interests were actually or constructively known to the purchaser at the time of the sale.
In Fransen v. Donichy, 9 Ill.2d 382, 387, it was held that the grantee of a contract vendee was the holder of an equitable interest in real estate and could redeem from a tax foreclosure. There the contract to convey was not recorded until almost two years after the foreclosure sale had been held. We there said, “Redemptions are looked upon with favor, and unless injury is to result to the purchaser at the sale a liberal construction will be given redemption laws. Mohr v. Sibthorp, 395 Ill. 418.” 9 Ill.2d at 387.
Mr. Justice Klingbiel joins in this dissent.
Mr. Justice House, also dissenting:
I agree with the Chief Justice that the failure of the majority to recognize the distinction between a stranger to the record title and a stranger to the title is a departure from the decided cases of this court and the constitutional mandate as to who may redeem. The position of the majority is even more tenuous in this case however, since the redeemer is a stranger to the record title only because there is a faulty link in the earlier record chain of title.
I see many problems, both administrative and judicial, if we adhere to this concept.