County Commissioners v. Clarke

36 Md. 206, 1872 Md. LEXIS 74

• Court: Court of Appeals of Maryland
• Decided: June 18, 1872
• Status: Published

Opinion

Brent, J.,

delivered the opinion of the Court.

This case is an appeal from the Circuit Court for Prince George’s county, before which proceedings were taken under the Acts of 1867, ch. 186, and 1870, ch. 312, for the ratification of the sale of certain real estate, made by a collector of taxes. Several exceptions have been filed as reasons why the sale should not be ratified, but it is only with the first, second, third, fourth and eighth that we have to deal, as the rulings of the Court below upon the other exceptions were not adverse to, the appellants, and are therefore not before us upon this appeal.

The first and second exceptions are substantially the same. They present the question whether, after a decree has been passed by a Court of Equity for the sale of real estate and trustees have been appointed to make such sale, a collector of taxes has the power to seize and sell the same, or any part thereof, for taxes due. The decree was passed the 9th of November, 1865. The taxes for which the land was sold were assessed for the years 1866 and 1867, and the collector’s sale took place the 29th of September, 1870. The land in the meantime had been sold by the trustees, under the decree in the equity case, but exceptions having been filed to the sale, the question of its ratification was still pending. So that both at the time of the imposition of the taxes and at the time of the collector’s sale, the land in question was under the control and jurisdiction of a Court of Equity. Under these circumstances it was not admissible for a collector to step in, and by a summary distress and sale divest the Court of its jurisdiction, and transfer the question of title to another tribunal. His plain and obvious duty was to apply to the Court for the payment of the taxes due, and as they had full power, the presumption is, that they would have directed their payment through their agents, the trustees, in a manner that would have occasioned no unnecessary delay, while at the same time the rights of all interested would have been properly protected.

The third exception is to the notice, upon the ground that it was not left with the party by whom the taxes were to be paid, or at his place of abode, as required by section 49 of Article 81 of the Code. The notice was left with Rachel M. Berry, one of the executors of John E. Berry, Sr. The taxes were not due during his lifetime, and were therefore not properly chargeable to his executors. The land upon which they were assessed had been devised by the will of John E. Berry, Sr., and his devisees, or some one of them having a present interest, would have been the proper parties upon whom the notice should have been served, if their title and possession had remained undisturbed. But proceedings were instituted in a Court of Equity on the part of creditors to sell the land, and a decree for its sale having been passed, these devisees had no such interest as rendered them chargeable with the taxes due. The property was in the constructive possession of the Court, and there was in reality no one with whom a notice, as a foundation for a sale by the collector, could have been left. As before stated, the proper and only course for the collector to pursue, so long as the land continued under the jurisdiction and control of a Court of Equity, was to make an application to that Court for an order that would, according to the circumstances of the case, be effectual in realizing to him the amount of taxes due.

The fourth exception is that the notice required by Article 81, section 56, of the Code to be given by the county commissioners, does not appear to have been given according to law, it not appearing that the notice was published “ once a week for four weeks.” The appellants have chosen to rely upon the certificate of the printer, which states that the notice was published “for thirty days, beginning February 21st, 1869.” This is not sufficient proof of a compliance with the requirement of the law. Johnson and Wife vs. Robertson, 31 Md., 488. It may be that a publication for thirty days was once a week for four weeks, (meaning four successive w.eeks,) but it by no means follows. It may have been inserted only every other week, and yet published the number of days stated in the printer’s certificate. The proof in this respect must be affirmative and certain, and not left to conjecture and inference.

The eighth exception is that the notice of sale was not in accordance with that part of section 59, Article 81, of the Code, which requires such notice to be put up “ at the Court House door, and at jtlie■ most public places in such county.” The statement of the collector, which is taken as proof without objection by either party,* shows that the notice was put up at “ three other of the most public places in said county.” This, it is insisted, necessarily implies there were other public places at which it was not put up, thereby rendering the notice insufficient, as the section referred to requires it to be put up at all the most public places. While it is essential that a party claiming title under a tax sale should show affirmatively that the collector had complied with every requirement of the law in regard to such sale, Polk vs. Rose & Cronhardt, 25 Md., 153; Beatty, et al. vs. Mason, et al., 30 Md., 409, such a reasonable construction must be put upon the law as will render his duties possible, and be in conformity with the true meaning and intent of the Legislature. The Legislature could not have intended that the notice should be put up at all the most public places in the county. It would be imposing a duty which could scarcely be performed, certainly not without great and unnecessary labor and expense. “ At the most public places ” must be construed to mean at more than one public place, and if this requirement is obeyed by the collector in good faith the ¡aw is substantially complied with. Its. object is to prevent secret sales, and the true question to be determined under its provisions is the sufficiency of the notice to accomplish that purpose. If the notices are put up at public places remote and distant from the property to be sold, although it might be a compliance with the letter of the law, yet it might indicate such bad faith on the part of the collector as would invalidate the sale. But in the present ease we can perceive no well founded objection to the notice given. We think the purpose and meaning of the law were complied with, and that the exception ought to have been overruled.

It lias been argued that the irregularities upon the face of the proceedings are not open for examination upon the final hearing, on the ground that all questions of that kind were finally decided by the Court before passing the order of publication provided for by the Act of 1870, ch. 312. That law, after providing that the collector of taxes shall report the sale of any land made by him, together with all the proceedings in relation thereto, to the Circuit Court of the judicial circuit where the land sold is situated, directs that “the Court to which such report shall be made shall examine the said proceedings, and if the same appear to be regular and the provisions of bjW in relation thereto have been complied with, shall order notice to be given by advertisement published in such newspapers as the Court stall direct, warning all persons interested in the property sold to be and appear by a day certain, in the said notice to be named,'to show cause/ if any they have, why said sale should not be ratified and confirmed.” It is true that this law imposes upon the Court the important duty of carefully examining the regularity of ' the collector’s proceedings, and of being satisfied that he has performed all things required of him by the law in making such sale, before granting the order for publication, yet the proceeding is entirely ex parte, and is not intended to be final and conclusive. The order is only preliminary, and all questions touching the validity of the sale properly arise upon the final hearing for ratification.

(Decided 18th June, 1872.)

In the present case wé think the Court below properly refused to ratify the sale, and its judgment will therefore be affirmed.

Judgment affirmed.