Bailey v. Stouter

• Decision Date: 01 September 1985
• Docket Number: No. 557,557
• Citation: 66 Md.App. 180,502 A.2d 1125
• Parties: Robert Pendelton BAILEY, Jr. et al. v. Doris Lee STOUTER. ,
• Court: Court of Special Appeals of Maryland

Page 180

66 Md.App. 180

502 A.2d 1125

Robert Pendelton BAILEY, Jr. et al. v. Doris Lee STOUTER.

No. 557, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Jan. 16, 1986.

Hillel Abrams of Silver Spring, for appellant.

Lawrence E. Finegan (Rosenstock, Burgee & Welty, P.A., on brief), Frederick, for appellee.

Argued before WILNER, ALPERT and ROBERT M. BELL, JJ.

WILNER, Judge.

The dispute before us concerns a 96-acre tract of improved property in Frederick County that was sold at a tax sale in November, 1980. At issue is the validity of the subsequent decree of the Circuit Court for that county foreclosing the former owners' statutory right of redemption.

The property was once owned by Philip L. Culler, who died in 1954. He left the bulk of his estate, including the property in question, to his daughter Pearl C. Bailey (Pearl) and two of his grandchildren, James T. Bailey (James) and Philip R. Bailey (Philip), in trust. Upon the death of certain life beneficiaries, the income from the trust was to be paid to Culler's grandchildren until the youngest of them turned 40, at which time the trust estate was to be liquidated and distributed to the grandchildren. In 1957, upon the trustees' petition, the Circuit Court for Frederick County, in Equity No. 18,779, assumed jurisdiction over the trust.

Pearl died in March, 1978, leaving James and Philip as the surviving trustees. In August, 1978, they and the other grandchildren petitioned the court to appoint Lulu Bailey Sween (Lulu), who was one of the grandchildren, as a substitute trustee. The petition gave no addresses for any of the grandchildren, but it did reveal the married names of three of them--Lulu, Alice Bailey Dunberger, and Janice Bailey McLeaf. It also, of course, revealed the fact that Pearl had died. The petition was denied, and so James and Philip remained the sole trustees and thus the sole legal owners of the property.

In apparent neglect of their fiduciary responsibilities, James and Philip failed to pay the taxes on the property, and so, as we said, the property was sold at a tax sale in November, 1980. Appellee purchased the property at that sale for $4,250. In December, 1981, James and Philip, as trustees, attempted to redeem the property, but the check they sent to the county treasurer "bounced."

In January, 1982, appellee filed a bill of complaint to foreclose the owners' right of redemption. Named as defendants, in addition to the county treasurer and one life beneficiary, were Pearl, James Philip, the other six grandchildren and "all persons having or claiming to have an interest in the property described herein."

The county tax records at that time showed the owners of the property to be "Pearl C. Bailey, et al., c/o Kenneth Andrew Bailey, P.O. Box 71, Leonardtown, Maryland." Notwithstanding, appellee issued no summons for either James or Philip at that address. Instead, she had summonses issued for James at an address stated to be in Washington, D.C. (409 79th Avenue, Yorkshire Knolls, Seat Pleasant) and for Philip at an address in Frederick (413 Biggs Avenue). A summons was issued for Kenneth Andrew Bailey (Kenneth), who was also one of the grandchildren, at "Leonardtown, Maryland." Everyone else, except the county treasurer, who was served with process, was proceeded against exclusively through publication. In an affidavit made part of the bill of complaint, appellee's trial counsel asserted that he had searched the land records, the records of the register of wills, "and of the Courts of Law and Equity of Frederick County" and that, as a result of that search, he had been "unable to ascertain any information as to the present addresses of those respondents whose whereabouts are listed as unknown." The published notice identified Lulu Sween, Alice Dunberger, and Janice McLeaf by their birth name, Bailey.

The summons for James was sent to the D.C. address by registered mail. It was returned undelivered. The summons for Philip was returned by the sheriff non est with the notation "no one heard of this subject at this address." Although under former Md.Rule 112a, then in effect, it was the duty of the clerk, "as a matter of course," to reissue the summons, that was not done. Claiming to have no further information as to the whereabouts of James or Philip, appellee relied upon the notice by publication, which included James and Philip among the named defendants, to provide appropriate notice. Kenneth was personally served in Leonardtown. Aside from the county treasurer, he was the only defendant so served.

No one answered the bill of complaint, and so, on April 13, 1982, the court entered a final decree foreclosing the right of redemption and directing the Collector of Taxes to issue a deed to appellee. The deed was issued and recorded.

Lulu apparently learned of the tax sale in December, 1981, but did nothing positive to redeem the property. At some point in the spring of 1982, she learned about the foreclosure proceeding; on the day after the foreclosure decree was entered, she contacted counsel to see if redemption was still possible. In June, 1982, she and five other grandchildren filed a petition in No. 18,779 (the trust proceeding) to remove James and Philip as trustees and to substitute in their place two of their number (Lulu and Robert P. Bailey, Jr.) and their attorney Ralph L. Gastley, Jr. One of the grounds averred in the petition was the loss of the property at issue here. By decree dated September 16, 1982, the court removed James and Philip and made the requested substitute appointments.

On December 7, 1982, the new trustees, appellants here, commenced this proceeding with a motion to vacate the foreclosure decree and set aside the deed. They contended that appellee had failed to obtain proper service on James and Philip and had not given proper notice to the other persons interested in the property. As a result, they claimed that the court lacked jurisdiction to enter the decree. Specifically, they complained that (1) no process was issued for James or Philip at the address appearing in the county tax records, (2) James, in fact, was a Maryland resident and should have been proceeded against as such, (3) Philip should not have been proceeded against by publication in the absence of a second return non est or an affidavit that he was attempting to evade service, and (4) the other remaindermen were "necessary parties," no attempt was made to effect personal service on them, and an insufficient attempt was made to discover their "whereabouts."

After an evidentiary hearing, the court found that neither the service nor the notice was improper and therefore denied appellants' motion. This appeal followed, in which essentially the same questions are raised.

(1) The Remaindermen

At the hearing in the Circuit Court, appellants appeared to concede that the non-trustee remaindermen (i.e., everyone but James and Philip) had been properly notified through publication. In this appeal, their only complaint as to those persons goes to appellee's failure to use the marital surnames of Lulu, Alice, and Janice. We find no merit in that complaint (assuming, arguendo, that it was not waived).

Appellants rely primarily on two old cases for the proposition that notice by publication is insufficient as to a married woman when it identifies her by her birth name-- Morris v. Tracy, 58 Kan. 137, 48 P. 571 (1897), and Freeman v. Hawkins, 77 Tex. 498, 14 S.W. 364 (1890). Both cases did indeed so hold. Aside from the fact that there are contrary decisions ( see, for example, Pooler v. Hyne, 213 Fed. 154 (7th Cir.1914), cert. denied 238 U.S. 620, 35 S.Ct. 603, 59 L.Ed. 1493 (1915), and the Indiana cases cited therein), it is important to recall that, when those cases were decided, a married woman took her husband's surname by law. See Annot., Correct name of married woman, 35 A.L.R. 417 (1925). That was the stated basis for the holding in Freeman v. Hawkins and no doubt served sub silentio as the basis for Morris v. Tracy as well.

The law has changed. Married women are not now required to take their husband's surname and many, in fact, do not do so. The legal underpinning of those cases therefore no longer exists, and their precedential value is, at best, minimal.

The underlying rationale of those cases is not entirely lost, however. To a large extent, notice by publication is a fiction. See 58 Am.Jur.2d Notice § 6 (1971); 66 C.J.S. Notice § 6 (1950). Without substantial evidence in support it rests on the assumption that ordinary people regularly peruse the legal notice columns in the hundreds or thousands of newspapers published throughout the country looking for notices that may pertain to them. It is, of course, a necessary fiction, for it allows courts to proceed in cases where necessary parties cannot otherwise be given the constitutionally required notice. In the somewhat dubious expectation that the intended person might actually be in a position to see the notice, the idea is, first, to get his attention by listing his proper name and then, having attracted his attention, to give him fair and adequate information about the proceeding. To achieve the former purpose in the case of a married woman, the notice should, if possible, use the name that she uses. If appellee (through counsel) had indeed searched the records of the Circuit Court as (through counsel) she affirmed she did, she would have discovered the marital surnames apparently used by Lulu, Alice, and Janice. Those are the names that should have been used in the notice.

That is not to say, however, that appellee's failure to use the marital surnames in the published notice deprived the court of jurisdiction. We are not prepared to conclude as a matter of law that a married woman who adopts her husband's surname would not be sufficiently attracted to a published notice using her birth name at least to read the notice, and there is nothing in the record...