Ashe v. Spears, 108

• Decision Date: 09 December 1971
• Docket Number: No. 108,108
• Citation: 263 Md. 622,284 A.2d 207
• Parties: Thomas J. ASHE v. Louis T. SPEARS et ux.
• Court: Maryland Court of Appeals

Page 622

263 Md. 622

284 A.2d 207

Thomas J. ASHE v. Louis T. SPEARS et ux.

No. 108.

Court of Appeals of Maryland.

Dec. 9, 1971.

Carlyle J. Lancaster, Hyattsville (Richard B. Bland and Lancaster, Bland, Eisele & Herring, Hyattsville, on the brief), for appellant.

James Ignatius Keane, College Park (DePaul & Willoner and Ronald Willoner, College Park, on the beief), for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SINGLEY, Judge.

In March of 1966, the appellant Ashe purchased for $1,500 at a tax sale less than an acre of land located near a shopping center at Marlow Heights in Prince George's County. The property, owned by Louis T. Spears and his then wife, Marie A. Spears (now Marie A. Dodson), had been sold for non-payment of taxes in the amount of $261.28. In November 1967, Ashe instituted a proceeding in the Circuit Court for Prince George's County to foreclose Mr. and Mrs. Spears' right of redemption. This was brought to a conclusion in April of 1968 by a decree vesting title in Ashe.

In August of 1969, Spears and his wife learned-they said for the first time-of the tax sale when a request was made of their real estate agent to remove a 'For Sale' sign from the property. In September they started proceedings to vacate the 1968 decree. From a supplemental decree vacating the earlier one, and voiding the county treasurer's tax sale deed upon payment of costs of redemption by Spears and his former wife, Ashe has appealed.

The core of the problem is whether Mr. and Mrs. Spears may successfully impeach the validity of service of process upon them. If they can, the decree of the lower court must be affirmed, and they will be able to redeem the property. If they cannot, the decree must be reversed, and title will remain vested in Ashe.

Until early February, 1967, Mr. and Mrs. Spears lived at 9508 Ardmore Road, Route 1, Landover, Maryland. At that time, because of domestic difficulties, Mr. Spears, who trained and raced horses, moved to Charles Town, West Virginia, and said that in November and December of 1967, he was at a track at Waterford Park, near Chester, West Virginia. Mrs. Spears stayed on in the house until 3 November 1967, when she moved to an apartment at Glendale, Maryland, but her son, Ralph T. Spears, continued to occupy the Ardmore Road house until about June of 1968.

On 6 November 1967, Ashe filed his action to foreclose Mr. and Mrs. Spears' right of redemption in the property which he had purchased at the tax sale. On the same day, a subpoena was issued, directed to Mr. and Mrs. Spears at 'Route 1, Ardmore Road, Landover, Md.' and delivered to the sheriff for service. On 7 December, the subpoena was returned with the notation 'non est Louis and Marie Spears unable to locate.'

On 11 December 1967, the subpoena was reissued and was returned on 22 December with the notation:

'Summoned Louis T. Spears and Marie A. Spears by personal delivery of and leaving a copy of subpoena and Bill of Complaint with said Louis T. Spears and Marie A. Spears at Hyattsville, Md. on this 21 day of December 1967.'

On 28 December, the court passed an order of publication, which was published in a local newspaper for four successive weeks, commencing 4 January 1968.

Forrest A. McDaniel, Deputy Sheriff of Prince George's County, called as a witness by Mr. and Mrs. Spears, testified that in December 1967, he was assigned to the County Service Building in Hyattsville. He said, after examining the first subpoena dated 6 November, which was directed to 'Louis T. Spears and Marie A. Spears, his wife, Route 1, Ardmore Road, Landover, Md.,' 'From looking at the address, it would have been more or less common procedure to non-est a paper issued with the address that was insufficient like this.'

After being shown the subpoena which was reissued on 11 December, Sheriff McDaniel admitted that he had been unable to recognize Mr. Spears and had no recollection of having served the subpoena on 21 December. He explained that he was serving, at that time, between 50 and 60 papers a month, all to people who came to his office. He was asked for an explanation of the return which he had endorsed on the second subpoena:

'(The Court): And when you say 'Personal delivery of and leaving a copy of the subpoena, bill of complaint with Louis T. Spears and Marie A. Spears,' what do you mean by that?

'(The witness): This would mean to me that someone who identified themselves to me as Mr. and Mrs. Spears, they came to me and identified themselves as this person and I personally served them with the copies of the bill of complaint and subpoena.'

Spears testified that he had lived at Ardmore Road for 15 years prior to leaving in 1967; that on 21 December 1967, he was at Waterford Park, where no attempt was made to serve him. Three photographs were offered in evidence showing Spears at Waterford Park on 29 November, 15 December, and 29 December, as well as a statement of account, issued by the race track, which showed that Spears had raced his horses with considerable regularity from 29 November to 16 December and from 26 December until the end of the month. Spears explained the inactivity which began 17 December and continued through 25 December by saying that the track had been closed for a week or more at Christmas. Spears was quite positive that he stayed at Waterford Park during this period, taking care of his horses.

Also admitted in evidence were the depositions of Robert F. Arnette, a trainer who had stabled his horses next to Spears' during the 1967 fall meet at Waterford Park, and Kenneth A. Clinton, a groom who had worked there for Arnette, and occasionally, for Spears. The thrust of their testimony was that Spears, who raced only three or four horses, simply had to be at the track every day to water, feed and exercise his horses, because the economics of the situation made the employment of other help unfeasible. It was only by this reasoning that they were able to put Spears at the track all through December, since neither could say that he was there on 21 December.

In the course of his deposition, Arnette put it this way:

'Q And you saw him every day in the month of December?

'A I could reasonably say yes because I can't remember no day that he wasn't there.

'Q And you would have noticed that?

'A Man, anybody would, because when a horse's water bucket gets empty they will rattle it, and it's most aggravating. And your neighbors talk about you maliciously if you neglect your horses, is what I mean.'

Mrs. Dodson, formerly Mrs. Spears, testified that on 21 December 1967, she was at her place of employment in Cheverly, Maryland; that she was not served with process, and did not go to the County Service Building in Hyattsville to...