City of Baltimore v. Whittington

• Decision Date: 16 November 1893
• Citation: 27 A. 984,78 Md. 231
• Parties: MAYOR, ETC., OF CITY OF BALTIMORE ET AL. v. WHITTINGTON.
• Court: Maryland Court of Appeals

27 A. 984

78 Md. 231

MAYOR, ETC., OF CITY OF BALTIMORE ET AL. v. WHITTINGTON.

Court of Appeals of Maryland

November 16, 1893

Appeal from circuit court of Baltimore city.

Suit by Jacob Craft Whittington against the mayor and city council of Baltimore and Clarence M. Ellinger for injunction. From a decree for complainant, defendants appeal. Affirmed.

Argued before ROBINSON, C.J., and BRISCOE, BRYAN, FOWLER, and McSHERRY, JJ.

Thos G. Hayes, Jas. P. Gorter, Wm. S. Bryan, Jr., and F. W. Story for appellants.

F. C Slingluff and T. Wallis Blakiston, for appellee.

McSHERRY J.

By section 47, art. 49, of the Municipal Code of Baltimore City it is enacted, in substance, that when any lots of ground are chargeable with the payment of taxes, and are subject to ground rents or leases for terms of years, renewable forever, the collector shall, in the sale of such lots for nonpayment of taxes, first sell only the leasehold interest, if it should sell for an amount sufficient to pay the taxes, but, if it should not, then that he shall sell the whole fee-simple estate, provided these provisions "shall not apply to cases where the books of the city do not disclose the fact that the lot or lots are on lease as aforesaid, or unless the collector shall have actual notice of such lease prior to the sale thereof." The city tax collector of Baltimore sold in March, 1891, for the nonpayment of state and city taxes, the fee-simple estate in a lot of ground on Druid Hill avenue, and the mayor and city council became the purchaser. The sale was reported to the circuit court of Baltimore city, and was ratified in May, 1892. In October following, the city, through and by its comptroller, sold the lot to Clarence M. Ellinger, to whom it was thereafter conveyed. When the sale was made by the collector, the lot was subject to a lease for 99 years, renewable forever, which was owned by J. Henry Weber, and the reversion or fee was owned by the appellee, Whittington. The unpaid taxes were due by the owner of the leasehold estate, but the collector sold the whole fee, without having first offered, or having attempted to sell, the leasehold, as required by the section of the City Code to which reference has been made. There was no entry on the books of the collector showing that the lot was subject to a lease, and the single question involved in the case is whether, when the collector made the sale, he had "actual notice" of the existence of the lease. If he had, the sale was irregular. If it was irregular, the decree of the circuit court of Baltimore city, restraining by injunction the mayor and city council, and its grantee, Ellinger, from disturbing the possession of the owner of the reversion, must be affirmed.

It appears by the record that in 1883 proceedings were instituted in the circuit court of Baltimore city by Rebecca and Mary McKeen against J. Henry Weber for a sale of this same leasehold estate under a mortgage thereon executed by Weber in 1881. Mr. T. Wallis Blackiston was appointed trustee to make the sale. He took possession of the property, and collected the rents and profits, but, owing to a depreciation in its value, made no sale of it. In the mean time the ground rent was regularly paid to the appellee, up to July, 1892, but the state and city taxes for the eight years beginning with 1882 remained unpaid. On the 1st day of December, 1890, Lewis N. Hopkins, city collector, filed a petition in the foreclosure proceedings representing that taxes for the years just mentioned were in arrear upon the property "decreed to be sold." The petition further stated that the collector was unable to enforce the collection of those taxes by reason of the pendency of the foreclosure proceedings, and it prayed that the trustee might be required to pay the taxes out of the rents theretofore collected from the property, or that the collector might "be allowed to proceed to collect said taxes by sale of the property in the ordinary way." This petition was signed by the late Mr. W. A. Hammond, "city solicitor, attorney for petitioner," and was sworn to by the deputy city collector. Subsequently, an order was passed, requiring the trustee to pay the taxes within five days out of the funds previously collected by him "as rents from the property decreed to be sold," and directing, upon his failure to do so, that the property be sold in the ordinary way by the collector. The trustee did fail to pay the taxes, and the collector made, under authority of this order, the sale of March, 1891, already mentioned. It is upon these facts that the appellee relies to show that the collector had "actual notice" of the existence of the leasehold estate.

Notice is of two kinds,--actual and constructive. Actual notice may be either express or implied. If the one, it is established by direct evidence; if the other, by the proof of circumstances from which it is inferable as a...