JUSTICE WELCH delivered the opinion of the court:

The dispute in this case pertains to the ownership of a tract of land. Maurice Killionand Nina Killion (plaintiffs) contend that they acquired ownership of the disputed tract viaadverse possession. Roscoe Meeks (defendant) contends that he acquired ownership afterpurchasing a quitclaim deed from the Marion County trustee, who, in turn, had acquired theland via a tax deed. On January 29, 2001, plaintiffs filed a complaint in the circuit court ofMarion County seeking a declaration that they are the rightful owners of the disputed tractand seeking to enjoin defendant from entering the disputed property. Defendant respondedwith a motion to dismiss, filed pursuant to section 2-619 of the Illinois Code of CivilProcedure (735 ILCS 5/2-619 (West 2000)), contending that the issuance of the tax deedextinguished plaintiffs' claim of ownership by adverse possession. The circuit court granteddefendant's motion to dismiss. Plaintiffs now appeal. We affirm.

On appeal, plaintiffs raise the following three issues: (1) whether the circuit courterred in granting defendant's motion to dismiss pursuant to section 2-619 of the Code ofCivil Procedure, (2) whether the circuit court's dismissal of plaintiffs' complaint was in errorwhere the circuit court failed to join a necessary party, and (3) whether the circuit court erredin denying plaintiffs leave to amend their complaint.

According to the record, plaintiffs and defendant own adjacent tracts of land. Defendant purchased his tract from the Marion County trustee in January 2000. Plaintiffspurchased their tract in 1957. According to plaintiffs' deed, their property is a rectangularparcel. Its boundary begins at a point 120 feet east of a point on the north line of CormickStreet. The boundary then extends 80 feet east along Cormick Street, 207.5 feet north fromCormick Street, 80 feet west, and then 207.5 feet south. Defendant's property, according tohis deed, is directly west of plaintiffs' property, and it is also rectangular. Its boundarybegins at a point on the north line of Cormick Street. The boundary then extends 120 feeteast along Cormick Street (to the point where plaintiffs' property begins), then 207.5 feetnorth of Cormick Street (this is a common boundary with plaintiffs' property), 120 feet west,and 207.5 feet south. According to the deeds, the western border of plaintiffs' property isthe eastern border of defendant's property.

According to plaintiffs' complaint, the dispute in this case arose when defendant"caused fill dirt to be deposited" upon the eastern portion of defendant's property asdescribed in defendant's deed. Plaintiffs' complaint alleges that they had acquired ownershipof this portion of defendant's property (approximately 18 feet east-west and 207.5 feet north-south) by adverse possession. Plaintiffs claim that they have been in open, notorious, andcontinuous use of this property for more than 20 years. (In fact, plaintiffs contend they haveused this property for about 40 years.) Plaintiffs sought a declaratory judgment and apermanent injunction.

On July 9, 2001, a hearing was conducted pursuant to defendant's motion to dismiss. After hearing arguments from the parties, the circuit court granted defendant's motion. Thecircuit court stated, "[T]he [relevant] statute *** and the common law supporting the statuteplainly says [sic] that claims for adverse possession, the kind of claim that arises over time,*** is [sic] extinguished [by the tax deed]." Plaintiffs' motion to reconsider was denied onDecember 12, 2001. We now turn to the issues raised by plaintiffs on appeal.

The first issue raised by plaintiffs on appeal is whether the circuit court erred ingranting defendant's motion to dismiss. Plaintiffs begin by arguing that the circuit courterred in granting defendant's motion to dismiss because defendant "improperly attacked[plaintiffs'] complaint by [section] 2-619 motion." Plaintiffs contend that defendant shouldhave filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735ILCS 5/2-615 (West 2000)) and not section 2-619. Because this is the first time plaintiffshave raised this argument and this argument was not presented to or considered by the circuitcourt, this argument is waived. See American National Bank & Trust Co. v. City ofChicago, 192 Ill. 2d 274, 280 (2000) (waiver applied where the plaintiff failed to raisebefore the trial court the argument that the defendant's section 2-615 motion to dismissshould not have been considered by the trial court because portions of the motion shouldhave been included in a motion brought under section 2-619).

Plaintiffs' next argument is, "Assuming Plaintiff [sic] properly attacked [the]complaint by [section] 2-619 motion, the court still, nonetheless, erred in granting saidmotion." Plaintiffs argue that the circuit court erred in granting defendant's motion todismiss after concluding that the tax deed extinguished plaintiffs' claim of ownership byadverse possession. Plaintiffs contend that the circuit court's decision was in error becauseplaintiffs acquired title to the disputed property by adverse possession prior to the issuanceof the tax deed and that, therefore, the tax deed did not extinguish their title. We disagree.

Although we have not found an Illinois case directly on point and the parties cite tonone, defendant relies heavily on Crawford v. Love, 243 Ill. App. 3d 977 (1993), where asimilar issue was addressed. In Crawford, the defendants took possession of a disputed tractof real estate in 1960. In 1969, nine years into the 20-year adverse possession holdingperiod, the clerk of Cook County issued a tax deed conveying the premises to a tax salebuyer. Crawford, 243 Ill. App. 3d at 978. Although the tax deed was issued in 1969, thedefendants continued their possession of the disputed tract until 1987.

Apparently, sometime during 1987, the plaintiff, relying on her tax deed, filed acomplaint to assert her rights over the disputed property. The defendants argued that theplaintiff was precluded from asserting any rights over the disputed property because thedefendants had obtained ownership of the property by adverse possession. The plaintiffargued that the tax deed tolled the running of the limitations period on the defendants'adverse possession claim. The circuit court agreed with the plaintiff, and the appellate courtaffirmed the circuit court.

In its analysis, the court turned to the Revenue Act of 1939 (the Act) (Ill. Rev. Stat.1969, ch. 120, par. 482 et seq. (repealed by Pub. Act 88-455, eff. January 1, 1994 (1993 Ill.Laws 3497-831) (now see 35 ILCS 200/22-5 et seq. (West 2000)))), which governed theissuance of tax deeds. The court noted that prior to a 1951 amendment of the Act, almostany defect or deficiency, no matter how minute, in a tax deed proceeding that led to theissuance of a tax deed made a deed suspect and generally void. Crawford, 243 Ill. App. 3dat 979. The General Assembly then amended the Act in 1951 to meet an alarming increasein the rate of tax delinquencies. The amendment to the Act rendered tax titles incontestableexcept by direct appeal and provided a tax buyer with assurance that his title and rights tothe property would be unimpaired. The court noted in Crawford that this amendmentrepresented "the final action in a long battle between the court and the legislature as to themerchantability of land titles derived from annual tax sale proceedings." Crawford, 243 Ill.App. 3d at 979.

Then, in 1965, the General Assembly again amended the Act by adding section 266b(Ill. Rev. Stat. 1969, ch. 120, par. 747b (now see 35 ILCS 200/22-70 (West 2000))). Thissection specifically provided that a tax deed shall not extinguish or affect easements,covenants running with the land, or rights-of-way for water, sewer, electricity, tax,telephone, or other public service uses. Crawford, 243 Ill. App. 3d at 980. In Crawford, thecourt then took note that an enumeration of one or more certain or specific items in a statuteexcludes other things or items that are not mentioned in the statute. Crawford, 243 Ill. App.3d at 980. Interestingly, a claim of ownership by those who obtained property throughadverse possession was not protected by this amendment.

In ruling that the tax deed tolled the period of limitations regarding an adversepossession claim, the court stated: "We need not only look to the 1951 amendments to theRevenue Act to vest the grantee of a tax deed with rights superior to that of an adversepossessor. As early as 1890, Illinois tax deeds have defeated the continuity 'of the runningof [an adverse possessor's] title, because no 20 years had elapsed from the time he entereduntil the title accrued under the tax-title.' " Crawford, 243 Ill. App. 3d at 980 (quotingDaveis v. Collins, 43 F. 31, 34 (N.D. Ill. 1890)). The court recalled, "[A] tax deed issuedpursuant to a judicial process grants to the purchaser a new and independent title, free andclear from all previous titles and claims of every kind and character." Crawford, 243 Ill.App. 3d at 980. In concluding that the tax deed tolled the running of the 20-year holdingperiod for an adverse possessor, the court stated, "We recognize the strong public policystatement which the several amendments to the Revenue Act represent, in encouraging therecognition, validity[,] and commercial acceptability of tax deeds ***." Crawford, 243 Ill.App. 3d at 981.

As plaintiffs point out, Crawford can easily be distinguished factually from the instantcase. In Crawford, the 20-year holding period had not yet run before the tax deed wasissued. In the instant case, the 20-year holding period had run long before the tax deed wasissued. According to plaintiffs, this distinction is pivotal because the plaintiff in Crawfordnever had a claim of ownership because the 20 years had never run. Although we agree thatthe cases do present substantially different factual scenarios, we believe that the strongpublic policy of having tax deeds provide clear title remains and that the policy demands aresult similar to the Crawford case.

As the court pointed out in Crawford, "[A] tax deed issued pursuant to a judicialprocess grants to the purchaser a new and independent title, free and clear from all previoustitles and claims of every kind and character." Crawford, 243 Ill. App. 3d at 980. The courtalso pointed out that the Act was amended to provide a tax buyer with the assurance that histitle and rights to the property would be unimpaired. Section 22-55 of the Property TaxCode (the Code) (35 ILCS 200/22-55 (West 2000)), entitled "Tax deeds to conveymerchantable title," still provides, "This Section shall be liberally construed so that tax deedsshall convey merchantable title." Furthermore, section 22-70 of the Code continues toprovide that a tax deed will not extinguish certain easements and covenants, while sayingnothing about the preservation of the claims of ownership of an adverse possessor. 35 ILCS200/22-70 (West 2000).

The primary purpose of the Act was to render tax deeds incontestable and allow a taxdeed to create a new and independent title, free and clear from all previous titles and claimsof every kind. In re Application of the County Collector for Judgment & Order of SaleAgainst Lands & Lots Returned Delinquent for Non-Payment of General Taxes & SpecialAssessments for the Year 1983 & Prior Years, 206 Ill. App. 3d 22, 28 (1990). The policybehind the law has not changed and still prevails in the Code. The Code provides that oncethe statutory requirements are complied with and tax purchasers are issued a valid tax deed,they acquire merchantable title under the Code (35 ILCS 200/22-55 (West 2000)), free andclear from all previous titles and claims of every kind and character. General IronIndustries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439, 446 (1997). There is nothingin the Code that carves out an exception for the interests of an adverse possessor, and thiscourt is not the place to conduct such a carving. Accordingly, even though an adversepossessor has apparently satisfied the adverse possession requirements, we believe that theproper issuance of a tax deed extinguishes the claims of the adverse possessor. As a result,we find no error with the circuit court's decision to grant defendant's motion to dismiss.⁽¹⁾

The second issue raised by plaintiffs on appeal is whether the circuit court's dismissalof plaintiffs' complaint was in error where the circuit court failed to join necessary parties. Plaintiffs argue that the Marion County trustee or Marion County is a necessary party to thisaction and should have been joined. A necessary party is one whose presence in the suit isrequired to (1) protect an interest that the absentee has in the subject matter of thecontroversy which would be materially affected by a judgment entered in his or her absence,(2) reach a decision that will protect the interests of those who are before the court, or (3)enable the court to make a complete determination of the controversy. Treschak v. YorkvilleNational Bank, 237 Ill. App. 3d 855, 859 (1992).

On appeal, plaintiffs simply argue, "The Marion County Trustee, or Marion County,is clearly a necessary party as shown by the record." Plaintiffs present no further argumentor analysis demonstrating this alleged necessity. It is interesting to note that at the hearingon defendant's motion to dismiss, plaintiffs contested the circuit court's suggestion thatmaybe plaintiffs should have included the Marion County trustee or Marion County in theirsuit. Plaintiffs rejected the circuit court's suggestion, claiming that they did not believe thatjoining these parties was necessary because plaintiffs were not challenging the validity ofthe tax deed. It would appear that this argument is therefore waived. Nevertheless, becausewe do not believe that the Marion County trustee or Marion County is a necessary party tothis action, we reject plaintiffs' contention on that ground.

The record is clear that the Marion County trustee conveyed to defendant full legaland equitable title and that neither the Marion County trustee nor Marion County has aninterest any longer in the title to the property. Even so, plaintiffs now contend that one ofthese parties is necessary, yet they fail to argue how the Marion County trustee or MarionCounty would enable the court to make a decision protecting the interests of plaintiffs ordefendant or enable the court to make a complete determination of the controversy. Plaintiffs' complaint merely seeks a determination of ownership based upon plaintiffs'adverse possession claim versus defendant's tax deed claim. Plaintiffs in no way, shape, orform attack the validity of the procedures that surrounded the issuance of the tax deed. Therefore, because plaintiffs have failed to show that the Marion County trustee or MarionCounty is a necessary party in this case, we cannot say that the circuit court erred by grantingdefendant's motion to dismiss by failing to join the Marion County trustee or Marion Countyas a necessary party.

The third and final issue raised by plaintiffs on appeal is whether the circuit courterred in denying plaintiffs leave to amend their complaint. No written motion was everpresented to the circuit court, and the issue of amending their complaint was mentioned byplaintiffs for the first time at the hearing on defendant's motion to dismiss, after plaintiffswere asked by the court for their "last word." Plaintiffs then stated that if the circuit courtfound that defendant's motion to dismiss should be granted, plaintiffs would like "relief toamend under [the] fact that the statute does provide for any private easement or easementscreated in good faith." Although the circuit court stated that it did not believe that plaintiffshad a proper easement that is preserved by the statute, it commented in its final statementthat there might be a motion or some other cause of action for an easement that would notbe affected by the day's order. At the hearing on the motion to reconsider, immediately afterthe circuit court issued its ruling denying plaintiffs' motion to reconsider and after the courtagain asked plaintiffs for their "last word," plaintiffs asked for leave to file an amendedcomplaint regarding the question of easements. The circuit court noted that it would haveconsidered it before ruling on the motion to dismiss, and it denied plaintiffs' motion toamend.

On appeal, plaintiffs argue that the circuit court's decision refusing leave to amendwas an abuse of discretion. Plaintiffs contend that the circuit court was "well aware of thereasons for plaintiffs['] request for leave to amend" and that justice would have been servedby allowing the amendment.

In response, defendant argues that no written proposed amendment was tendered andno serious request was made to amend the complaint until after the final judgment wasentered. In light of these circumstances, defendant argues that it cannot be said that thecircuit court abused its discretion in denying plaintiffs' motion to amend.

The question whether to allow the plaintiffs to amend their complaint rests within thesound discretion of the circuit court. Cochran v. Perry County Road District No. 1, 295 Ill.App. 3d 1089, 1094 (1998). For a determination whether to grant a motion for leave toamend, the following four factors must be evaluated: (1) whether the proposed amendmentwould cure the defective pleading, (2) whether other parties would sustain prejudice orsurprise by virtue of the proposed amendment, (3) whether the proposed amendment istimely, and (4) whether previous opportunities to amend the pleading could be identified. Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). In the instantcase, there is nothing to indicate that the amendment would have cured a defective pleading(as opposed to creating a whole new cause of action), the circuit court indicated thatdefendant might be prejudiced by the late filing, the proposed amendment was clearly nottimely because plaintiffs consistently waited until their "last word" before bringing it up, andthe record provides no basis upon which it can be seriously argued that there were notprevious opportunities to amend the pleading. Based on the record in this case, we cannotsay that the circuit court abused its discretion in denying plaintiffs' motion to amend. Accordingly, we reject the third and final issue raised by plaintiffs on appeal.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.

Opinion Filed:  September 13, 2002

Justices: Honorable Thomas M. Welch, J.

Honorable Melissa A. Chapman, J., and

Honorable Richard P. Goldenhersh, J.,

Concur

Attorney Samuel E. Bauerle, 321 West McMackin Street, Salem, IL 62881

for

Appellants

Attorney Daniel R. Price, Wham & Wham Attorneys, 212 East Broadway,

for P.O. Box 549, Centralia, IL 62801

Appellee

1. We note that our decision is in conformity with other jurisdictions that have decidedthis issue. See Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643 (1985);Leciejewski v. Sedlak, 116 Wis. 2d 629, 342 N.W.2d 734 (1984); Label v. Cleasby, 13Wash. App. 789, 537 P.2d 859 (1975); Whiteman v. Mattson, 167 Colo. 183, 446 P.2d 904(1968).