Caldwell v. Lord

89 A. 132, 27 Del. 440, 4 Boyce 440, 1913 Del. LEXIS 63

• Court: Superior Court of Delaware
• Decided: October 17, 1913
• Status: Published

Opinion

There is no claim made by the plaintiff that the petition and return are not in proper form, or that they do not comply with the provisions of the statute, but the objection is based on the principle of law that, where property is sold to pay taxes, each step from the creation of the power to levy the tax to the execution and recording of the deed, must be shown by the party attempting to establish title under the táx deed, and in support of this contention counsel cites a number of authorities.

[2] We have examined these authorities and find that they are decided under the common law. At common law, there can be no doubt, I take it, that it is necessary to show the creation of the power, the proper exercise thereof and the regularity of each step in the proceeding.

By the first paragraph of Section 14, c. 12, Revised Code (1893) 119, it is provided that such a sale shall be returned by the collector to the court, “and the court may inquire into the circumstances, and either approve, or set it aside. If it be approved, the collector shall make a deed to the purchaser, which shall convey the title of the taxable.” * * *

Since the statute requires the return of the sale to be approved by the court, it will be presumed that the court considered and passed upon all necessary requisites preceding the sale. The action of the court in this respect is not merely ministerial, but is rather judicial—that is, that the court satisfied itself con.cerning the regularity of the proceeding.

We are of. the opinion that under this statute the petition, return of sale and tax deed when admitted are prima facie evidence of the regularity of the sale. We, therefore, overrule the objection and admit the petition and return of sale. (Thereupon the tax deed was offered and admitted.)

The plaintiff failing to produce evidence to rebut thepresumption of regularity of the proceedings in the tax sale, upon request of the defendant, we give binding instructions to you, gentlemen of the jury, to find a verdict of not guilty of the trespass as alleged.

Verdict, not guilty.

Note.—Some time after the decision the court’s attention was called to the case of Guisebert v. Etchison, 51 Md. 478, 488.