Cooper v. Holmes

17 A. 711, 71 Md. 20, 1889 Md. LEXIS 77

• Court: Court of Appeals of Maryland
• Decided: May 10, 1889
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

There are what purport to be four bills of exception in this record. The last is the only one which is signed and sealed by the’ Judges of the Circuit Court. The questions intended to be presented by the others are consequently not before this Court. Each distinct exception which embraces an independent proposition of law, must be signed and sealed by the Court below before it can lie regarded as a valid exception to be considered by this Court. Ellicott vs. Martin, Love & Co., 6 Md., 509. The facts stated in one exception can not be looked to in disposing of a question raised under another, unless the two are connected by some apt reference. Gist’s Adm’r vs. Cockey & Fendall, 7 H. & J., 134. We think there is sufficient reference to connect these papers, designated exceptions. Hopkins and Hull vs. Kent, 17 Md., 113; Baltimore & Ohio R. R. Co. vs. State, use of Fryer, 30 Md., 54. But, if this were doubtful, we would have no difficulty in treating the record as containing but one exception, in which all the evidence is set out, and by which the rulings of the Court upon the prayers and the instructions are alone brought up for review. There are no spaces left between these so-called exceptions and no places provided for the signatures and seals of the Judges, and they practically and substantially form one continuous and connected narration of the testimony adduced on the trial. At the end of what is numbered the fourth exception appear the signatures and seals of the Judges.

John Cooper was the owner of a life estate in about three hundred acres of land lying in Prince George's County. This land was assessed to him and in his name. The appellants were the owners of the remainder. Cooper failing to pay the State and county taxes for several years, the property was sold by the treasurer and collector of the county for the sum of live hundred and fifty dollars — a few dollars more than was needed to pay the taxes in arrear, interest thereon and costs. After Cooper's death the remainder-men instituted an action of ejectment against the appellee, who claims title under the collector’s deed, and this appeal is taken from the judgment rendered against them in that case. All the papers relating to the tax sale have been lost, and there is no record of them. Resort was had at the trial to parol proof to establish their contents.

Under the Act of ,1872, ch. 384, as amended and reenacted by the Act of 1874, ch. 483, 0ode, Art.. 81, sec. 52, it has been settled in Guisebert vs. Etchison, 51 Md., 478, and in Steuart vs. Meyer, et al., 54 Md., 454, that when a sale has been made by a tax' collector, and has been reported to the proper Court and there finally ratified, ‘ ‘ the order of confirmation operates only to relieve the purchaser of the onus of proof, and to cast the onus of showing the illegality of the proceedings upon the party resisting the sale. ***** Until such proof is offered by the assailing parly, the sale, if ratified and confirmed, stands -good and effective, by operation of the statute. ’ ’ By this legislation, when an order of ratification is produced the burden of proof is changed, and it becomes necessary for the party assailing the jnoceedings to show some defect sufficiently grave to vacate them. But it is quite apparent that this is not required until such an order is shown. The loss of the order, if properly proved, would authorize the admission of secondary evidence of its contents. It is stated by Mr. Hill, who prepared the collector’s deed to the purchaser, that he procured an order of ratification. The docket-entries in the tax sale case also show that such an order was filed. - This is all the evidence in the record on that subject. The contents of the order are not given or pretended to be given. The paper is characterized or described as an order of ratification; but whether it is such or not can only be determined when its contents are made to appear.

What has just been said with regard to the effect of the order of ratification has relation to sales made under the statutes alluded to. It is claimed, however, that the sale in question here was made under a local law, the Act of 1882, ch. 317, which, it is insisted, does not give to the order of ratification the force and effect accorded it by the Act of 1874, ch. 483. There is some difference between the two statutes, and wherever they conflict, if they do conflict at all, the local law must prevail. Code, Art. 1, see. 10. The general law declares that if no cause, or an insufficient cause, be shown, the sale shall, by order of the Court, “be ratified and confirmed, and the purchaser shall, on payment of the purchase money, have a good title to the property sold. ” The local law provides for no order nisi, but directs the Court to ratify the sale, if it shall appear that the collector “has complied with the requirements of this Act and the existing laws of the State of Maryland not inconsistent with the provisions of this Act, * * * * either party to have the right of appeal to the Court of Appeals; and if not redeemed within the time prescribed by existing law, the treasurer shall convey the same in fee simple to the purchaser thereof. ”. Whilst the general law declares that the purchaser shall have a good title; the local law, omitting those words, uses others of substantially the same import, viz., “the treasurer shall convey the same in fee simple to the purchaser. ” The difference between the Acts consists rather in the form of expressing the same design, than in any substantially repugnant provisions. We think the object aimed at in both is the same; the modes of declaring it being somewhat dissimilar. That object was to give to the order of ratification in each instance the effect ascribed to it in the cases we have cited.

Upon the state of the proof alluded to, bearing on this branch of the case, the Court instructed the jury as follows: “If, from the evidence, the jury shall find that a final order of ratification of the treasurer’s and collector’s report of sale of the real estate in dispute in this cause was passed by the Court, then the verdict of the jury must be for the defendant, unless the plaintiffs show by positive testimony, that there was some defect in said tax sale.” 2. “That the defendant having shown the final order of ratification of the tax sale of the property in dispute, and the plaintiff's having offered no legal evidence to entitle them to recover, the verdict must he for the defendant. ” No special exceptions were taken to these instructions. We think the first one bad, because it required the appellants to show by “positive testimony” that there was some defect in the tax sale. This is a higher and a different standard of proof than the law exacts. Positive evidence is that which, if believed, establishes the truth or falsehood of a fact in issue, and does not arise from any jnesumption. It is distinguished from circumstantial evidence. 3 Bouv. Ins., n. SOSI. The true question in trials of fact is, not whether it is possible that the testimony may he false, hut whether there is sufficient probability of its truth; that is, Avhether the facts are shown by competent and satisfactory evidence. Things ' established by competent and satisfactory evidence are said to he proved. 1 Oreen. Ev., sec. 1. But competent and satisfactory evidence is not necessarily “positive testimony;” because a fact may he fully established by circumstantial evidence, or by presumption, or by other evidence not designated testimony. Evidence legally sufficient to establish a fact which rendered the sale irregular, was all that the law required; and the restricted character of evidence, viz., “positive testimony,” named in the instruction, Vas entirely too narrow.

The second instruction is open to a more serious objection. By it the Court directed the jury as matter of law, that from the evidence before them, there had been a ratification of the collector’s sale. It was a conclusion or inference of law drawn from and based upon the facts proved. In our opihiou this conclusion was erroneous. The evidence in the case did not warrant it. The instruction is open to objection, not because it assumed a fact not proven, hut because it announced a legal conclusion not justified by the facts in evidence. As we have stated, the contents of the order of ratification were not pretended to be given. Whether, when shown, they would have amounted to a valid order of ratification, can only be a matter of conjecture, as the record now stands. The Court could not give to the order, mentioned by Mr. Hill, the effect of a complete and formal order of ratification, in the absence of all evidence as to whether it was such in fact or not. It could not, upon, a mere characterization of the paper by a witness, rule as matter of law, that the paper was, in fact, what it was only described to be. That was substituting the opinion or conclusion of the witness as to the effect of the paper for evidence of its actual contents.

There was no error committed in rejecting the prayers of the appellants. The second and sixth submitted questions of law to the jury. The second left it to the jury to find whether the tax proceedings were regular, and the sixth, whether the collector’s advertisement was insufficient and improper. The first imposed upon the appellee the duty of showing that the County Commissioners had passed an order directing the sale, and sought to preclude a recovery, because no evidence had been offered on that subject. But, as we have said, the final ratification of the sale throws upon the party impeaching it the obligation to prove a failure to comply with the provisions of the law, and no presumptions can he invoked against the regularity or validity of the sale. The third prayer declared that the advertisement did not sufficiently identify and describe the property. The whole advertisement is not set out in the record. That portion which is given shows that the property was situated in Bladeushurg district in Prince George’s County; that it contained two hundred acres, more or less, and was called “Pleasant Prospect,” and was assessed in the name of John Cooper. This was a sufficient description, and there was no error in rejecting the prayer. The seventh prayer, whilst entirely correct as an abstract proposition of law, Alexander vs. Walter, 8 Gill, 261; Ronkendorff vs. Taylor’s Lessee, 4 Pet., 362, was properly rejected, because it submitted no facts to the jury, and in reality permitted the jury to determine whether, under the principles laid down by the prayer, the advertisement was sufficient. The fourth prayer could not have been granted. Taxes are liens upon the propertj* itself, and not upon the interest of the life-tenant. If the latter neglects to pay the taxes the property charged with the lien may properly be sold. There is nothing in our general tax system which compels the collector to examine what title a party has to land with which he is assessed. The assessments are made by other officers, and he is not required to review or to verify their proceedings before making a sale.

(Decided 10th May, 1889.)

For the errors indicated the judgment will be reversed and a new trial awarded.

Judgment reversed, and neto trial awarded.