
    In re Application of the County Collector for Judgment of Sale Against Lands and Lots Returned for Non-Payment of General Taxes and Pettiton of Robert Burroughs for Tax Deed. — (Lester J. Cruikshank et al., Petitioners for Rehearing and Other Relief, v. Robert Burroughs, Respondent.)
    (No. 71-2;
    Third District
    — December 29, 1971.
    
      J. Michael Mathis, of Peoria, for appellant.
    Walter W. Winget II, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Peoria County which upon petition of Lester and Darlene Cruikshank, Appellees, vacated its previous judgment ordering the issuance of a tax deed to Robert Burroughs, Respondent, Appellant.

The facts are substantially undisputed. On September 12, 1969, respondent’s predecessor in interest filed its petition in the Circuit Court of Peoria County requesting the issuance of a tax deed to the premises in question. The petition recited the sale of the premises for the nonpayment of the second installment of 1966 general real estate taxes. January 12, 1970, was designated as the extended date for redemption. Notices were served which shall be more particularly described later, and, on January 23,1970, Burroughs, as assignee of the original petitioner, appeared and presented documentary evidence and gave oral testimony concerning the service of notice. On January 30, 1970, a judgment was entered ordering the tax deed in question in this case.

On February 27, 1970, Lester Cruikshank and Darlene his wife, filed their petition seeking a rehearing and other relief. According to the petition the Cruikshanks were the owners and occupants of the premises in question, it was improved with a frame residence worth approximately $9,000 and was at all times pertinent to the controversy occupied by them together with other members of their family as a residence. Except for the second installment of taxes due in 1966, the Cruikshanks had paid all general taxes prior and subsequent thereto.

As a basis for seeking rehearing and other relief the petition of the Cruikshanks as amended specified several irregularities in the judicial proceeding. According to the petition Lester Cruikshank as owner, occupant and person in whose name the general real estate taxes were last assessed, did not receive notice of the application for tax deed as required by statute and the failure of the respondent to comply with the statute was fraudulent.

Accompanying the petition and paid to the Clerk of the Court was the amount necessary to redeem from the tax sale. After hearing on the petition for rehearing and other relief the court ordered the tax deed judgment vacated and directed the Clerk to pay to the tax sale buyer the redemption funds in the Clerk’s possession.

According to the testimony of Robert Burroughs he went to the Cruikshank residence twice on October 6, 1969, (morning and afternoon) and again on the afternoon of October 8,1969, not finding either of the Cruikshanks at home on these occasions. On the evening of October 10, 1969, he again went to the home at which time Darlene Cruikshank was there and at that time he served a notice upon her. Upon being advised that her husband was not home Burroughs asked when he might be there and received the response that he would be there the following morning. Burroughs went to the house on the following morning, October 11, but no one was there. According to Mrs. Cruikshank she laid the notice which she had received on the desk and told her husband later that she thought it had something to do with taxes.

On October 11, 1969, Burroughs sent a notice to Lester Cruikshank at his residence address by certified mail, return receipt requested, addressee only. Although Burroughs testified at the ex parte hearing where he made proof of notice that the return receipt was signed by Lester Cruikshank it appeared at the later hearing that it was not so signed but in fact had been signed by Mrs. Cruikshank. The certified letter containing the notice was received by the Cruikshanks on October 15, 1969, and, according to Mrs. Cruikshank, she laid it on her husband’s desk mentioning that he had something regarding taxes. Lester Cruikshank did not see the notices and nothing was done about the matter until on or about January 23, 1970, at which time Mrs. Cruikshank endeavored to redeem the property, her efforts including a telephone call to Matt Burroughs, father of respondent, who advised her that consent would not be given for the Clerk to accept late redemption. The judgment ordering the tax deed was entered January 30, 1970, and at about this time Burroughs indicated that he would sell the property back to the Cruikshanks but the record does not reveal whether any price was proposed.

It was the theory of appellees in the court below, renewed in this court, that Lester Cruikshank was not served with notice as required by statute and that such failure was both fraudulent and an appropriate defense in the tax deed proceeding. On the other hand the appellant claims in seeking to reverse the action of the trial court that the facts do not constitute fraud sufficient to render the judgment void.

At the outset it should be observed that the Cruikshanks filed their petition under Ill. Rev. Stat. 1969, par. 68.3 of ch. 110 and not par. 72 of the same Act. All of the cases cited by Appellant regarding fraud in relation to notice involve par. 72 proceedings. (Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620, Dahlke v. Hawthorne Lane & Co., 36 Ill.2d 241, 222 N.E.2d 465, Urban v. Lois Inc., 29 Ill.2d 542, 194 N.E.2d 294, Cherin v. R & C Company, 11 Ill.2d 447, 143 N.E.2d 235 and Sorini v. Klein, 109 Ill.App.2d 309, 248 N.E.2d 701.) As is pointed out by appellees, fraud is the gist of a par. 72 proceeding seeking relief from a tax deed judgment more than 30 days after its rendition. According to the authorities cited by appellant the rule is well established that a judgment ordering a tax deed is and should be free from collateral attack and the relief which may be afforded under par. 72 is dependent upon the existence of fraud or other reasons affecting the jurisdiction of the court.

As observed in Dahlke v. Hawthorne, Lane & Co., supra, “In the present case the trial court expressly found in its order for feed that all notices required by law had been given and, no direct appeal having been taken by the record owners, that determination is now conclusive unless vitiated by fraud. Thus, the question presented is not whether proper notices were in fact served upon Arthur Dahlke and other persons in possession, but whether the issuance of the deed was attended by fraud as the petitioner claims”. In Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620, the Court held that in a par. 72 proceeding the fact that the respondent’s agent could have been more diligent did not constitute fraud in die absence of evidence of a pattern of deception or intent to deceive.

Where the attack upon the judgment is direct as is the case where relief is sought within 30 days of its rendition, fraud is not the gist of the action. Error with respect to the finding of the trial court that all notices were given as required by law may be considered. Accordingly we find it unnecessary to determine whether respondent’s conduct amounted to fraud since in our opinion there is ample evidence supporting the trial court’s order determining that it had erred in the original determination in its judgment of January 30, 1970.

It is conceded that Lester Cruikshank was not served personally not less than ninety days prior to the expiration of the period of redemption as extended. The question remains whether the manner in which notice was given i.e. certified mail and publication, was sufficient.

Where the parties entitled to notices can not be personally served, Ill. Rev. Stat. 1969, ch. 120, par. 744 permits service by mail and publication only if the person to be served can not “* * * upon diligent inquiry be found in the county”. Whether diligent inquiry has been made is not susceptible of abstract definition apart from the facts and circumstances. However it is clear that such diligence not only depends upon what a person could learn by making inquiries but more importantly on what the person knows of his own knowledge. In the instant case Burroughs knew that Lester Cruikshank was an occupant of the residence located on the premises and that he resided there regularly with his family. Another aspect of the diligence problem relates to the interest of the person to be served, an aspect which is of special significance in a tax deed proceeding. Section 5 of article 9 of the Illinois State Constitution of 1870, provides in part as follows, “And the general assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires”. Although we do not agree with appellee’s suggestion that the provision in section 744 regarding notice by mail and publication is contrary to the constitutional mandate, we do believe that based on the constitutional language the framers thereof felt that personal service of notice on the occupants was of the utmost importance. Such importance is we believe related to the diligence which must be exercised in serving notices on the occupant.

After reviewing the testimony of Robert Burroughs and the Cruikshanks it is our conclusion that Burroughs did not use due diligence in attempting to serve the notice on Lester Cruikshank. The first two days that Burroughs went to the Cruikshank residence he went during the hours that Lester Cruikshank would ordinarily have been expected to be working. According to his own testimony he made no particular inquiries of Mrs. Cruikshank concerning her husband’s whereabouts and the indication that he would be home in the morning was general with no indication of any particular time. It also appears from the evidence that neither of the Cruikshanks made any effort to deceive Burroughs or endeavored to avoid or prevent service of notice upon Lester. The plain fact of the matter is that the record reveals practically no effort by Burroughs to serve the notice on Lester Cruikshank. The conclusion is inescapable from the testimony that if Burroughs wanted to find Lester Cruikshank he would have done so. The reason for the absence of such diligence may also be inferred from the record namely that the tax buyer assumed that so long as Mrs. Cruikshank received the notice the property would be redeemed. However Mrs. Cruikshank apparently relied on her husband’s seeing the notice and taking the appropriate action which was not done. Under these circumstances it is our view that the notice by certified mail and publication was not in accord with the Statute because the tax buyer failed to comply with the condition precedent thereto namely the exercise of due diligence in serving the notice personally upon the receipt of the property.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

SCOTT and DIXON, JJ., concur.  