WC & AN Miller Development Co. v. EMIG PROPERTIES

Decision Date01 February 1943
Docket NumberNo. 7802.,7802.
Citation134 F.2d 36,77 US App. DC 205
PartiesW. C. & A. N. MILLER DEVELOPMENT CO. v. EMIG PROPERTIES CORPORATION.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. George C. Gertman, of Washington, D. C., for appellant.

Mr. Walter R. Schoenberg, with whom Mr. Byron G. Carson was on the brief, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied April 12, 1943. See 63 S.Ct. 983, 87 L.Ed. ___.

RUTLEDGE, Associate Justice.

Plaintiff, Miller Development Co., seeks to have a tax deed from the Commissioners of the District of Columbia to the defendant, Emig Properties Corporation, declared invalid and the cloud created thereby on plaintiff's title to the property removed. The District Court held that the irregularities complained of do not invalidate the deed and dismissed the complaint. We affirm the decree.

The property, described in the complaint according to the records of the surveyor's office, is designated on the assessor's books for tax purposes as Lots 21 and 22 in Square 1476. Both lots were unimproved.

Plaintiff claims by mesne conveyances from the record holders of the titles in 1895. These were Mary J. B. Wright, owner of Lot 21, and her sister Martha L. Campbell, owner of Lot 22. Plaintiff also derives title through a tax deed issued pursuant to sales made in 1923 for nonpayment of taxes for the fiscal year ending June 30, 1922. Defendant claims under a tax deed issued to it in 1934 for nonpayment of taxes for the fiscal year ending June 30, 1931.

In brief, plaintiff contends defendant's deed is invalid because the lots were not assessed for the 1931 taxes in the names of their owners as required by statute; because the tax records show that the property had been redeemed from the sale when the defendant's deed was issued; and because the sale was a private one, not made in accordance with the Act of February 14, 1929, 45 Stat. 1173, which provides for sale through court proceedings. The last argument is that the 1929 Act repealed the pre-existing statute of 1902, cited later, in so far as it provided for private sales. The first argument, that the lots were not assessed in the names of the owners, requires for clarity delineation in detail of plaintiff's acquisition of title from the record owners, Mary J. B. Wright and Martha L. Campbell, and from the grantee in the tax deed issued pursuant to the sale for nonpayment of the 1922 taxes. Accordingly we set forth these chains of title and also that under which defendant claims.

Plaintiff acquired title from the record owners in 1895 as follows:

Lot 21. Mary J. B. Wright acquired the record title to Lot 21 in 1895. She died testate on March 13, 1921. By her will, probated on March 21, 1930, she devised Lot 21 to her sister Martha L. Campbell for life, with remainder in fee to Kate Wertz Fleck and her husband, Harry S. Fleck, equally. Harry S. Fleck and Kate Wertz Fleck by deed dated May 24, 1930, and recorded July 10, 1935, conveyed Lot 21 in fee to Frances J. Tarrant, who conveyed to the plaintiff in fee the following September.

Lot 22. Martha L. Campbell acquired the record title to Lot 22 in 1895. She died testate on December 1, 1918. By her will, probated March 21, 1930, she devised Lot 22 to her sister Mary J. B. Wright for life, with remainder in fee to Harry S. Fleck as trustee, in trust for J. Hurst Campbell during his life, upon his death one-half to Kate Wertz Fleck and the remaining one-half among the three children of Edith Wertz Irwin, deceased. J. Hurst Campbell subsequently died. By deed dated December 12, 1931, and recorded July 10, 1935, Kate Wertz Fleck, the children of Edith Wertz Irwin, and Harry S. Fleck, under the authority of court decree in Equity Cause 52117 dated November 9, 1931, conveyed Lot 22 in fee simple to Frances J. Tarrant. She conveyed it to the plaintiff in September, 1935.

Plaintiff acquired title pursuant to the sale for 1922 taxes in the following manner: Lots 21 and 22 were assessed for taxes on July 1, 1921, for the fiscal year ending June 30, 1922, in the names of Mary J. B. Wright and Martha L. Campbell, respectively. These taxes not having been paid, the lots were advertised for sale in the names of Mary J. B. Wright and Martha L. Campbell, and were bought in by the Commissioners at a tax sale held on June 10, 1923. Thereafter by deed dated April 23, 1929, and duly recorded the Commissioners conveyed both lots to James S. Fraser and his wife. On November 7, 1929, they conveyed Lots 21 and 22 to Harry S. Fleck. He in turn conveyed his tax title to Frances J. Tarrant, by the deeds referred to above in which his wife and the children of Edith Wertz Irwin joined, executed in 1930 and 1931, and recorded in 1935. The deed from Frances J. Tarrant to plaintiff, executed and recorded in 1935, purports to convey all the title she possessed in Lots 21 and 22.

Defendant acquired title in the following manner: Lots 21 and 22 were assessed for taxes on July 1, 1930, for the fiscal year ending June 30, 1931, in the name of Harry S. Fleck. The assessments not having been paid, the lots were advertised for sale in the name of Harry S. Fleck. There being no purchaser, the lots were bought in again by the Commissioners at a public sale held on January 14, 1932. On February 18, 1934, defendant wrote the Commissioners offering to purchase Lots 21 and 22 for "whatever taxes may be due the District." Pursuant to this letter, the Commissioners entered the following order: "Ordered that in accordance with Section 3, Act of July 1, 1902, permission is hereby granted Clayton E. Emig to purchase at private sale Lot 21 Square 1476, Lot 22 Square 1476 * * * upon payment of `all assessments, taxes, costs and charges due the District of Columbia of whatsoever nature' in full; provided, however, that no deed shall be issued on these lots if the taxes are paid by the owners thereof prior to the issuance of a deed." The Commissioners by deed dated March 17 and recorded March 20, 1934, conveyed Lots 21 and 22 to the defendant for all the taxes due thereon together with interest and costs for the fiscal years ending June 30, 1931, and June 30, 1934. On March 17, 1934, the date of the deed, the taxes levied against the lots for the first and second halves of the year ending June 30, 1934, were not in arrears, the lots had not been advertised for sale and had not been purchased by the Commissioners at any tax sale arising from nonpayment of 1934 taxes. But defendant paid the 1934 taxes as part payment for the tax deed.

For the fiscal year of 1940, Lot 21 was assessed for taxes at a valuation of $825 and Lot 22 was assessed at a valuation of $500, both lots being assessed as unimproved. At the trial plaintiff tendered defendant all taxes, interest and costs paid by it in connection with Lots 21 and 22 both prior and subsequent to the date of defendant's tax deed. Both plaintiff and defendant exhibited receipts for the taxes since 1935.

Plaintiff first says defendant's deed is invalid because the lots were not assessed on July 1, 1930, for the 1931 taxes, in the names of their owners as required by statute, i. e., under the wills of Mary J. B. Wright and Martha L. Campbell.1 The wills, probated on March 21, 1930, placed record title to Lot 21 in Harry S. Fleck and his wife Kate Wertz Fleck as tenants in common and to Lot 22 in Harry S. Fleck, in trust for Kate Wertz Fleck, John Irwin, Gwendolyn Irwin, and Lenore Irwin, who were the children of Edith Wertz Irwin. On July 1, 1930, Harry S. Fleck also held the tax title to the lots by deed, dated November 7, 1929, which he had received from James S. Fraser and wife. The assessment made July 1, 1930, for both lots was in the name of Harry S. Fleck.

It is not contended there was any irregularity in the tax deed to James S. Fraser and his wife. It was proper for the Commissioners to assess the lots for the 1922 taxes in the names of the deceased "owners" because the wills had not then been probated, and it is not shown that the Commissioners were given notice of their deaths or who were to be "owners" under their wills.2 Therefore, it would have been proper to assess the 1931 taxes in the name of the tax title holder if that person had been a stranger to the record title under the wills.3 The conveyance to James S. Fraser was made in accordance with Section 793 of Title 20 of the 1929 Code providing that such a deed shall be "prima facie evidence of a good and perfect title in fee simple."4 Title evidenced by a tax deed given in compliance with the statutory requirements expunges all the interests which spring from the record title and vests in the holder a new and complete title to the property in fee simple.5

Plaintiff refers to the deeds from James S. Fraser and his wife to Harry S. Fleck as "redemption deeds." It is assumed, without decision, that the other interests of the record title, under the wills of Mary J. B. Wright and Martha L. Campbell, would have been entitled to protection against Harry S. Fleck as the holder of the tax title secured from James S. Fraser and his wife, who had purchased the property after the redemption period had elapsed.6 But this does not require that the Commissioners be burdened with searching out the interests under the wills and making a decision on their validity in view of their apparent extinction by a valid tax title to a stranger.7 The burden was on Harry S. Fleck, as trustee, not upon the Commissioners, for the protection of the beneficial interests.8 However, this case is made easier because, even if assessment in the names of the record holders under the wills were required, the 1931 assessment in the name of Harry S. Fleck would be proper as to Lot 22, being in the name of the trustee,9 and the only irregularity would be that the designation of Lot 21 did not...

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