Nineberg v. County of Cook , 86 Ill. App. 2d 418 ( 1967 )

MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the dismissal of plaintiffs’ third amended complaint in which plaintiffs claimed damages for the alleged negligent issuance by the Registrar of Deeds of a new Torrens Certificate of Title.¹

Plaintiffs’ third amended complaint alleged the following facts:

Plaintiffs’ incompetent, Nick Onischuk, while competent and a bachelor, acquired the subject property (which was vacant) in 1929 and was issued a Torrens Certificate of Title showing ownership in himself. In July 1945 he was adjudicated incompetent in Cook County and committed to the Manteno State Hospital where he presently resides. On June 21, 1946, plaintiffs were appointed coconservators of his estate. On June 26,1946, a tax foreclosure proceeding for the nonpayment of general taxes on the subject property (which was still vacant) was filed in the Circuit Court of Cook County. No summons was personally served on the plaintiffs or on the incompetent. An affidavit was filed reciting that a diligent search had been conducted for Nick Onischuk, the necessary publication had been made and lis pendens notice of the foreclosure was duly filed. In July 1946 plaintiffs filed an inventory of the incompetent’s estate, listing the subject property as an asset thereof, but neither this document nor the fact of their appointment as coconservators was ever registered in Torrens.

The foreclosure sale occurred in December 1946. The assignee of the purchaser of the subject property obtained a tax deed in March 1949 by order of court. In that proceeding an affidavit was filed reciting that diligent search had been made for the record owner. Upon order of court the Registrar of Titles thereafter issued a new certificate of title. The original certificate, issued to Nick Onischuk in 1929, was never surrendered. Plaintiffs allege that neither they nor the incompetent received notice of any of the aforesaid proceedings.

Defendant’s motion to strike and dismiss plaintiffs’ third amended complaint was allowed, from which plaintiffs appeal.

Plaintiffs contend that there was a duty upon the registrar to conduct an investigation into the propriety of the court order by which the registrar was directed to issue a new certificate of title; that his failure to do so constitutes an omission, mistake or misfeasance of the registrar; and that therefore they are entitled to damages from the defendant. No question of contributory negligence is involved.

It is undisputed that plaintiffs cannot now attack the validity of the newly issued tax deed. Ill Rev Stats, 1965, c 30, § 86. Therefore, alleged improprieties in the proceedings in which the court ultimately directed the registrar to issue a new certificate of title are of no relevance in this case. The sole issue is whether the registrar is required to investigate the propriety of court orders which direct him to issue new certificates of title. We do not believe that it was the intention of the legislature to impose such a cumbersome burden upon the registrar. The fact that the original certificate had never been surrendered is insufficient to place the registrar on notice that the court order is improper, since the registrar is empowered by statute (Ill Rev Stats, 1965, c 39, § 120) to issue a new certificate under that circumstance upon order of court. That statute provides in relevant part:

A tax deed of registered land . . . shall have only the effect of an agreement for the transfer of title upon the register, and may be filed in the registrar’s office, and a transfer effected as in case of other deeds of conveyance.

But no certificate of title shall be issued thereon, except upon the surrender and cancellation of the outstanding certificate of title, or upon the order of court. . . . (Emphasis supplied.)

We find that the registrar issued a new certificate of title in complete accordance with the legislative mandates and therefore, as a matter of law, was not guilty of any “omission, mistake or misfeasance.” Therefore, the plaintiffs’ third amended complaint was properly stricken. The order appealed from is affirmed.

Affirmed.

ENGLISH, P. J., concurs.

1 Plaintiffs base their claim for damages on Ill Rev Stats, 1965, c 30, § 138, which provides:

Any person sustaining loss or damage through any omission, mistake or misfeasance of the registrar, or of any examiner of titles, or of any deputy or clerk of the registrar in the performance of their respective duties under the provisions of this act, and any persons wrongfully deprived of any land or any interest therein, through the bringing of the same under the provisions of this act, or by the registration of any other person as owner of such land, or by any mistake, omission or misdescription in any certificate, or in any entry or memorandum in the register book, or by any cancellation, and who by the provisions of this act is barred or in any way precluded from bringing an action for the recovery of such land or interest therein, or claim upon the same, shall have a right of action for the damages thus sustained against the county in which such land shall be registered, and may file a claim with the county board, or bring an action at law against the county in which said land is situated for the recovery of such damages.