Bowie v. Ford

• Decision Date: 18 May 1973
• Docket Number: No. 238,238
• Citation: 304 A.2d 803,269 Md. 111
• Parties: Helen BOWIE et al. v. Parran FORD et al.
• Court: Maryland Court of Appeals

Page 111

269 Md. 111

304 A.2d 803

Helen BOWIE et al. v. Parran FORD et al.

No. 238.

Court of Appeals of Maryland.

May 18, 1973.

James P. Salmon, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief), for appellants.

Allen S. Handen, Prince Frederick (Handen & Singerman, Prince Frederick, on the brief), for appellees.

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

DIGGES, Judge.

This case is a sequel to Kaylor v. Wilson, 260 Md. 707, 273 A.2d 185 (1971). There, this Court decided that an enrolled decretal order dated May 4, 1938 which finally ratified a tax sale could not be collaterally attacked for fraud in a trespass quare clausum fregit action. A substantial portion of the material facts here are matters of record and are undisputed. In fact, by stipulation, the parties agree that our opinion in Wilson, supra, 260 Md. at 709, 273 A.2d at 186, accurately recites the history and the findings of fact by the trial judge in the previous law suit and correctly traces the chain of title of the property as developed at the trial of this case. With this stipulation, we will set forth the facts here as we did in the prior case: '(That) appeal flow(ed) from a proceeding instituted in 1967 to challenge a 1938 tax sale. The appellees, Parran Wilson and the other heirs or devisees of James W. Wilson, filed an action in trespass quare clausum fregit against Harry W. Kaylor the appellant. This represented an attempt to set aside any title Kaylor may have obtained in a 13.7 acre tract of land located on the Patuxent River near Dunkirk in Calvert County. Kaylor acquired the land through a tax sale which was finally ratified by the Circuit Court for Calvert County in 1938. That same court, (then) sitting in 1970 (Loveless, J.), ruled that in spite of the broad bar contained in Art. 81, § 99A against challenges to ancient tax sales, an attack based on fraud or lack of jurisdiction was still permissible. Judge Loveless ultimately determined that because no taxes were overdue on the property at the time it was sold, the county treasurer was without power to conduct the sale and the circuit court lacked subject matter jurisdiction to ratify it. He then entered judgment against Kaylor for nominal damages and costs. This appeal followed. To gain some perspective over the dispute, we must unravel a double helix of conflicting chains of title.

The initial chain of title began when Mr. James W. Wilson purchased 50 acres of land, including the 13.7 acres in question, through a 1916 tax sale. Although the deed executed at the time of this sale was not recorded until January 1930, the entire 50 acres, instead of being assessed separately, were carried on the books in combination with another 25 acres owned by the Wilsons as a single 75 acre tract. Allowing for a sale of 2 acres by 1949, the appellees attempted to prove that they paid taxes on the entire 75-73 acres from 1916 to the date of trial.

The other chain of title began when Kaylor entered this relatively uncomplicated picture in March 1930, some two months after the recordation of the deed to Wilson's 50 acre tract. He first appeared as president of the Silica Tile Company, when it contracted to purchase 20 of the 50 acres. This contract was recorded and the 20 acres were transferred on the county land and assessment records to Silica's name. Appellant suggested this was done to insure that Silica would receive the tax bills and pay the taxes as provided in the contract. Nearly a year later, on February 4, 1931, Silica contrated to sell 6.3 acres of the 20 to Kaylor personally. On the next day James Wilson and his wife similarly agreed to convey their remaining interest in the same 6.3 acres to Kaylor. Following the death of the elder Wilson in 1932, the family honored this contract and the 6.3 acres were finally transferred to Kaylor in 1937. It was the remaining 13.7 acres of the 20 that fomented the present controversy.

Silica went bankrupt in May of 1931 and Kaylor (for his third appearance) was appointed one of the receivers of the company's assets. Among these assets was Silica's interest in the 20 acres, subject to Kaylor's right to acquire the 6.3 acres under the February 4th and 5th, 1931 contracts. With court approval the receivers sold the corporation's interest to Charles E. Henson, then one of Kaylor's employees. Henson immediately deeded his interest to Mr. and Mrs. Kaylor, but this did not complete the circle: In 1933 the Kaylors conveyed their interest to Benjamin H. Grubb, yet another Kaylor employee, who apparently resided on the property. Keeping in mind that the 20 acre tract had been listed in 1931 on the assessment records in Silica's name, but without reduction in the number of acres assessed to Wilson, it turned out that neither Grubb nor his predecessors (Silica, Henson, or Kaylor) paid any taxes under their equitable chain of title from 1931 to 1934. Although the land was sold at a tax sale, the Wilsons now claim they had paid their taxes on the property for those years. The coup de grace came in 1938 when Kaylor (his last appearance until trial) acquired the property through the tax sale. The resulting treasurer's deed contained a full metes and bounds description of the entire 20 acres, even though Kaylor had already obtained legal title to the undisputed 6.3 acres in 1937 directly from the Wilson family.

Judge Loveless found that Kaylor had not produced sufficient evidence of exclusive possession to acquire title by prescription. Cf. Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959). He also determined as a matter of fact that the property had been doubly assessed for taxes since 1931, and though there had been a default in this regard under the Silica-Kaylor chain of title, the Wilsons had continuously paid the taxes on the property from 1916 to the present.' However, in Wilson we reversed the judgment of the trial court observing that an attack based on fraud, if it is permitted at all, 'can only be maintained through a direct attack in the same proceedings under Maryland Rule 625 or through an original bill for fraud.'

Seizing upon this suggestion, within thirty days of this Court's mandate, Parran Ford, together with three other of the appellees in Wilson, ¹ who are also the appellees here, filed a motion under Rule 625 in the original tax sale proceeding in the Circuit Court for Calvert County (Petition No. 909). By this motion they sought to strike and vacate the order of ratification as it pertained to the 13.7 acre tract. The motion alleges that this decretal order of ratification should be set aside because the purchaser at the tax sale, Harry W. Kaylor, the appellant in Wilson, obtained its passage by means of fraud. After the filing of an answer in these proceedings, but before the matter was heard by the trial court, Mr. Kaylor died and Helen Bowie, Laura B. Cox, and Jeannette Byler, individually as devisees under the will of Harry W. Kaylor and as personal representatives of his estate, were substituted as parties. These appellants contend here, as they did in the trial court, that because of the provisions of Maryland Code (1957, 1969 Repl.Vol.) Art. 81, § 99A, a court of this state is without jurisdiction to entertain such a proceeding and the petition should have been dismissed. ² Section 99A reads:

'When any tax sale made prior to January 1, 1944, has been finally ratified, then no court of equity or law in this State shall on and after June 1, 1966, entertain any proceedings to set aside or modify any title to any interest obtained in such sale.'

This contention was initially pressed at the trial level by a demurrer to the motion. Judge James H. Taylor overruled that challenge and later, following a full hearing, he concluded that the entire tax sale proceeding, including its ratification, so far as it pertained to the 13.7 acre tract, was procured by the fraudulent acts of Harry W. Kaylor. Accordingly, after deciding that § 99A did not bar an attack on this pre-1944 tax sale since the court was satisfied by clear and convincing proof that the ratification of the tax sale was procured by fraud, Judge Taylor set aside the ratification. We cannot accept this interpretation as to the effect of § 99A on ancient tax sales. In fact, a contrary result is compelled by our recent decision in Styers v. Dickey, 252 Md. 552, 250 A.2d 615 (1969). There, Judge Smith, speaking for the Court, after referring to the Legislature's recognition of the public interest in upholding the validity of ancient tax sales to insure the marketability of title to land derived through them, stated: 'The plain and simple meaning of section 99A is that since June 1, 1966, with reference to any tax sale made prior to January 1, 1944, which sale was finally ratified, the courts of this state are without jurisdiction 'to set aside or modify any title to any interest obtained in such sale." Id. at 558, 250 A.2d at 618 (emphasis added). Here we will not retreat from that statement nor will we, as did the trial judge, engraft implied exceptions on this statute of repose which was fashioned by the Legislature in order to insure the integrity of ancient tax sale proceedings.

But, accepting as we must the mandate of § 99A that the courts are without jurisdiction 'to set aside or modify any title to any interest obtained in such sale' (emphasis added), this does not dispose of this appeal. Remaining for our consideration is a determination of what interest in the 13.7 acres Harry W. Kaylor obtained through the ratified tax sale. This is necessary because, if the chancellor's finding is authorized by the evidence that there was clear and convincing proof ³ that the sale, as ratified, was procured by fraud perpetrated by Kaylor, the purchaser, then the interest he obtained from the sale would be that of a constructive trustee or ex maleficio, holding bare legal title, but with the equitable...