McMahon v. Crean

71 A. 995, 109 Md. 652, 1908 Md. LEXIS 140

• Court: Court of Appeals of Maryland
• Decided: January 13, 1909
• Status: Published

Opinion

Burke, J.,

delivered the opinion of the Court.

This is a suit in ejectment instituted in the Court of Common Pleas by four of the children of Charles and Catherine Crean, deceased. • The plaintiffs claim title to the lot sued for under the will of Edward Burns, who died seized thereof in 1862. The lot was a leasehold, subject to an annual ground rent of two hundred and forty dollars. The title to this leasehold was acquired by Edward Burns under an assignment from Benjamin V. Eichardson. The property is located on the west side of Market Space in Baltimore City, and at the time of the death of Edward Bums was improved by two brick houses, known as ATumbers 40 and 42 Marsh Market Space. Bums bequeathed the property to Charles and Catherine Orean during their lives, and immediately after the death of the survivor “unto the living issue of the aforesaid Charles and Catherine Crean, share and share alike, absolutely.” Charles Crean died in 1884, and Catherine, the surviving life tenant, in 1889.

. The State and City taxes on this property for the years 1876, 1877 and 1878 being in arrears and unpaid, it was sold on October 15th, 1879, for non-payment of these taxes by Charles Webb, the Collector of City and State Taxes. The sale was made at the Exchange Building, on Second Street, in the City of Baltimore, and was sold to the Mayor and City Council of Baltimore in fee, $1,025.00. The sale was reported by Mr. Webb, the Collector, to the Circuit Court for Baltimore City, and was by that Court finally ratified and confirmed on.the 22nd day of September, 1882. The prop -erty was conveyed to the Mayor and City Council of Baltimore by Henry S. Taylor, Collector, by deed dated December U, 1883, and on March 19, 1884, by deed of that date, the City, in consideration of the sum of thirteen hundred dollars, granted and conveyed the property to the defendant in this ■suit, who paid the full purchase price and took possession of the property on the date of the deed, and has been in continuous possession to the present time. At the date of the purchase by the defendant the property was in bad condition and was not tenantable, and in order to put it in condition to be •rented Mr. McMahon was obliged to spend from sixteen to eighteen hundred dollars for necessary repairs. The improve■ments placed by him upon the property were destroyed by the great fire of 1904, and the property was rebuilt by the defendant at a cost of about five thousand dollars.

■ The case was tried below before the Court without the intervention of a jury and resulted in a vei’dict and judgment in favor of the plaintiffs and the defendant has brought this appeal. In a per curiam opinion filed December 9th, 1908, we said: “It is admitted that the'suit must fail if the appellant acquired a good title under the tax sale and the deed mentioned. The Court below held that the defendant took no title under the tax sale—first, because the preliminary notice given was insufficient, and, secondly, because the place of sale was not that authorized by law. The property was sold at the Exchange Sales Room, but, in the opinion of the Court below, the property could only be sold either on the premises or at the Courthouse door of the City. Some additional reasons .have been urged against the defendant’s title. It is insisted he took no title under the deed because the deed was not made by the Collector who made the sale. We hold that the proceedings under which the tax sale was made show a sufficient compliance with all the prerequisites of the law relating to tax sales in Baltimore City, and that the defect urged against the deed upon which the defendant relies has been cured by subsequent legislation. We decide that the defendant has shown a good title to the land sued for, and that the judgment must be reversed without awarding a new trial.” That judgment was accordingly entered.

Assuming for the moment the validity of the proceedings under which the tax sale was made, and that the deeds of December 7th, 1883, and March 19, 1884, operated to pass the legal title to the property first to the Mayor and City Council and then to the defendant, it cannot be questioned that the last-named deed afforded the defendant a complete bar to recovery in this suit. We said in Textor v. Shipley, 86 Md. 438, that “the title of the defendant is founded upon and derived from the tax sale (Burroughs on Taxation, 346; Hussman v. Durham, 165 U. S. 147; Hefner v. North Western Ins. Co., 123 U. S. 751), for although he did not purchase at the tax sale, his grantor, the City, did, In Hefner v. The Insurance Company, supra, it is said: “If the tax deed is valid, then from the time of its delivery it clothes the purchaser, not merely with the title of the person who had been assessed for the taxes and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars and extinguishes all prior titles and incumbrances of private persons, and all equi ties arising out of them.” Hill v. Williams, 104 Md. 604; Hill v. McConnell, 106 Md. 574.

Before the passage of the Act of 1872, chapter 884 (Code, 1904, Art. 81, sec. 53), which required the Collector to report the sale, together with all the proceedings had in relation thereto to the Court for confirmation, a sale made by a Collector of Taxes could only be supported upon it being made to appear affirmatively that all. the provisions of the statute, authorizing the sale, had been strictly complied with. The power of sale vested in a Collector of Taxes is a naked pqwer, specially conferred by statute, to be exercised under a proceeding ex parte in its character, and the effect of which is to divest a citizen of his property without his consent, and often without his actual knowledge. It was therefore established, as an indubitable principle, that a purchaser, who claimed under a power of this nature, should show affirma tively and positively the regularity of the proceedings, upon which his title depended. Alexander v. Walter, 8 Gill, 239-260; Williams v. Payton, 4 Wheat. 77; Thatcher v. Powell, 6 Wheat. 119.

But to relieve the purchaser of this onus and to give encouragement tó purchasers at tax sales, the statute now in force (Act of 1874, chapter 483, section 51) provides that the Collector shall report the sale and the proceedings in relation thereto to the Courts mentioned in the.Act; and the Court, to which such report shall he made, shall examine the said proceedings, and if the same appear to- be regular, and the provisions of law in relation thereto- have been complied with, shall order notice to be given by advertisement, etc., to show cause, if any they have, why said sale shall not be ratified and confirmed; and if no sufficient cause be shown against the ratification, “the said sale shall, by order of said Court, be ratified and confirmed, and the purchaser shall, on payment of the purchase money, have a good title to the property sold.” This statute confers upon the Courts designated a special and limited jurisdiction, which attaches upon the report of the Collector; and though the sale may be confirmed by the Court, the order of confirmation operates only to relieve the purchaser of the onus of proof, and to- east the onus of showing the illegality of the proceedings upon the party resisting the sálei The effect; therefore, of the order of ratification is only prima facie in support of 'the sale, not conclusive ; the sale, under the order of confirmation, affording evidence of a good title, until successfully assailed by evidence showing illegality in the proceedings upon which it is founded. Gu isebert v. Etchison, 51 Md. 478. Until such proof is offered by the assailing party, the sale, if ratified and confirmed, stands good and effective,' by' operation of statute. Steuart v. Meyer et al., 54 Md. 465, 466, 467.

It is only necessary that there shall be a substantial compliance with the tax law under which the sale was made. Guisebert’s Case, supra; Textor v. Shipley, supra. The Court will presume that the Collector has discharged his duty, and no presumption will be invoked against tbe validity of the proceedings. But where it appears, by the record, or by proof that material and substantial provisions of the law have not been observed in making the sale it will be treated as utterly null and void. Under the Public Local Law of Baltimore City (City Code, 1879, Art. 47, section 44),- no sale could be made by the Collector for the payment of taxes until he has “first given to the person or persons so in arrears, or has left at his, her, or their residence, or last known residence, or if neither can be found on the premises, a statement of his, her or their indebtedness, and not less than thirty days’ notice of his intention, if the bill is not paid within the time named, to enforce payment thereof.”

In this case the property was assessed to Mrs Crean, one of the life tenants, and the bills for taxes setting forth the amount of the taxes due on the property to the State and City, and specifying the years for which they' were due, were delivered to her. It is true that in the report of the Collector it is stated that on each of the bills delivered to her there was a printed notice stating that if this bill is not paid wdthin thirty days from delivery it will be subject to distraint or execution. Such a notice would be insufficient, because it is not such as the law requires, and if nothing else appeared by the record we would be constrained to hold the sale void. But looking at the whole record of the tax proceedings, it is apparent that this statement in the report of sale is erroneous, as two of the tax bills filed as exhibits with the report of sale contain a notice, printed in red ink across the face of each bill, to the effect that if the bill is not paid within thirty days from the delivery, payment thereof will be enforced by distraint or execution. These exhibits are copies of the entries in the assessment books of the City, and, as we understand the report, they are identical with the bills delivered to the owners. If, however, there should be any doubt upon this point, it should be resolved in favor of the validity of the sale, in the absence of satisfactory proof that this notice was not given. We are of opinion that these tax bills and the notice printed thereon show the character of the preliminary notice given by the Collector, and are sufficient to gratify the requirements of the law in this respect.

As to the place of sale. The property was sold at the Exchange‘Sales Room. This was held by the learned Judge below to be a defect which rendered the sale void.' He held that under Article 11, section 49 of the Code of 1878, the only places at which tax sales in the City of Baltimore could be made were either on the premises or at the Courthouse door of the City. It-has not been the custom in the city to make •tax sales at either -of these places, nor has it been the understanding of the City authorities that the law imposed such a requirement. Such a construction would unsettle many tax titles. This consideration, it is true, should not control the action of the Court if it appears that a plain mandate of the law has been disregarded; but the Court should not be insensible to the serious consequences which would inevitably result from such a construction.

In making this sale the Collector .proceeded under the Act of 1878, chapter 227, which made provisions for the sale of ground in Baltimore City■ for non-payment of'taxes. That Act provided that “whenever it shall become necessary to sell any part or parcel, of ground in the City of Baltimore, improved or unimproved, for the payment of any taxes or assessment of any nature or kind whatever, levied or charged, the Collector-shall first give notice by advertisement published once a week for four' successive weeks in two • of the daily newspapers published in said City, one of which shall be in the German language, that he will sell at public auction on the day in said advertisement mentioned; said notice shall state the name of the person, when'known, to whom such parcel of ground is assessed, the amount of taxes due on the same, and what improvements, if any, are on said parcel of ground; and in any such notice it shall be sufficient to describe the parcel of ground as located upon' whatever official plat of the City the said Mayor and'City Coitneil of Balti more shall from time to time adopt and designate for that purpose.”

This Act contained no direction as to the place of sale, but left that, we think, very properly and wisely, to the judgment and discretion of the City Collector. A comparison of the terms of this Act with the section of the Code of 1878 mentioned above will show the most irreconcilable conflict. This, in connection with the evident purpose of the legislature to provide by local law a different procedure for the sale of land in Baltimore City for the non-payment of taxes, is sufficient, upon familiar principles of statutory construction, to show that the place of sale named in the general law was not intended to control sales made under the Act of 1878, chapter 227. We are, therefore, of opinion that the tax sale was valid and its ratification by the Court vested in' the purchaser, the Mayor and City Council of Baltimore, under the statute, a good title to the property sold.

Hnder the authority of the case of Taylor v. Forrest, 96 Md. 529, Henry S. Taylor, Collector, had no power to execute a deed to the Mayor and City Council for the property sold by his predecessor, Mr. Webb; but this defect has been cured by section, 2 of the Act of 190.L chapter 281. This section provided that whenever any property in the City of Baltimore has been sold for taxes, pursuant to law, by one City Collector, and such sale has been reported by the City Collector who made the sale, but the deed for such property has been executed and delivered by the successor in office of the City Collector who made the sale and report as aforesaid, such conveyance shall be as valid to all intent and purposes as it would have been if made by the City Collector who made and reported the sale.

It would have been a perfectly valid exercise of power by the Legislature to have authorized the successor in office of the City Collector to make the deed, and this Act which validates the deed of such Collector cannot be said to violate any of the vested rights of the owner. His rights in the property were divested by the tax sale. Instead of designating some partic ular person to execute a deed to the purcháser for thé property sold, the Act merely validates the deed already executed. We see no possible objection to this. For the reasons assigned we reversed the judgment, without awarding a new trial.

Judgment reversed without awarding; a new trial. ‘