Diener v. Wheatley
| Decision Date | 10 December 1948 |
| Docket Number | 42. |
| Parties | DIENER v. WHEATLEY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; John B. Gontrum, Judge.
Suit by James B. Wheatley against A. J. Diener, administrator, to enjoin sale of leasehold interest in realty and to decree complainant to be legal owner thereof. From a decree overruling a demurrer to the complaint and motion to dissolve the injunction prayed therein, defendant appeals.
Decree reversed and complaint dismissed without prejudice as to further proceedings.
H. Richard Smalkin, of Towson (Smalkin & Hessian, of Towson, on the brief), for appellant.
T Lyde Mason, Jr., of Baltimore, (Cornelius V. Roe, of Towson on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS HENDERSON, and MARKELL, JJ.
This is an appeal by A. Jerome Diener, Administrator of the Estate of Charles W. Davis, deceased, appellant, from a decree of the Circuit Court for Baltimore County, dated April 2, 1948 overruling a demurrer to the bill of complaint and refusing a motion to dissolve the injunction prayed therein, said bill having been filed on November 4, 1947, by James B. Wheatley, appellee.
The bill alleges that on October 29, 1940, James B. Wheatley purchased from Thomas C. Hunter, Treasurer of Baltimore County, a property described in said bill, which property was sold for the non-payment of State and County taxes for the year 1937. The appellee received a deed from the Treasurer dated November 2, 1942, which deed was recorded among the Land Records of Baltimore County. The description of the property in the deed was 'Lot 50 x 166, south side of Chesapeake Avenue, 105 feet West of Schoolhouse lot; Improvements; assessed to Charles W. Davis for 1937'. '* * * the word 'West' was an error and should have read 105 feet East of Schoolhouse lot which covers the property sold at said tax sale and which was the only property owned by Charles W. Davis in 1937, and located on the southside of Chesapeake Avenue, Towson, Maryland.' On August 15, 1946, the appellee purchased the ground rent on the above described property. On October 3, 1947, A. Jerome Diener had himself appointed administrator of the estate of C. W. Davis, deceased, for the purpose of attempting to divest the appellee of his title to the above described improved property. The appellant, as administrator of the estate of C. W. Davis, has advertised the leasehold interest in the above described property for sale at public auction at the Court House door in Towson, Maryland, on November 5, 1947, at 10 o'clock A. M. The appellee alleges that, if the above described sale is consummated, it will divest him of his property and cause him great loss and injury.
It is stipulated and agreed as follows:
Appellee prayed that the appellant be enjoined from proceeding with the sale of his said property; that appellee be decreed to be the legal owner of said property; and for other and further relief. Upon that petition the Chancellor on November 3, 1947, ordered that the writ of injunction be issued as prayed upon the filing of a bond in the penalty of $1,000, liberty being reserved to the appellant to move for the rescinding thereof.
A demurrer was filed to that bill of complaint alleging as special grounds that the appellee had adequate remedy at law to try the title to the property; that the bill of complaint shows on its face that the alleged tax sale did not convey the locus in quo property to the appellee and the description therein does not refer to the property in question but on the contrary to another property; that the court has no jurisdiction to grant any other relief prayed. From a decree overruling the demurrer and the motion to dissolve the injunction an appeal is taken here.
Chapter 761 of the Acts of 1943, of course, was not in effect at the time of this tax sale.
The appellee contends that here the Court should so construe the conveyance as to give effect to the real intention of the parties and should not confine itself to a single word or phrase. Brown v. Reeder, 108 Md. 653, 657, 71 A. 417; Weinbeck v. Dahms, 134 Md. 464, 466, 107 A. 12; Logsdon v. Brailer Mining Co., 143 Md. 463, 475, 123 A. 113; Maryland State Fair v. Schmidt, 147 Md. 613, 621, 128 A. 365; Beranek v. Caccimaici, 157 Md. 144, 145, 145 A. 369. We must bear in mind, however, that the power of a tax collector to sell property because of non-payment of taxes is not conferred by contract but is a special statutory power exercised in an ex parte proceeding which divests the owner of his property without his consent and possibly without his actual knowledge. Stewart v. Wheatley, 182 Md. 455, 457, 35 A.2d 104.
As appointed out in the case of Hickey v. Peck, 180 Md. 289, at page 299, 23 A.2d 711, the effect of the order of ratification is only prima facie in support of the sale and not conclusive. The sale under the order of confirmation affords evidence of a good title until successfully attacked by evidence showing illegality in the proceedings upon which it is founded. Guisebert v. Etchison, 51 Md. 478; Steuart v. Meyer, 54 Md. 454, 465, 466; Shapiro v. National Color Printing Co., Md., 60 A.2d 679; Gill v. Sommer, Md., 60 A.2d 683.
This Court has not hesitated to say that where, for instance, no legal or sufficient notice was given of the time and place of sale, the whole proceeding is rendered null and without effect. Hickey v. Peck, supra, 180 Md. at page 299 23 A.2d 711. In the case of Richardson v. Simpson, 82 Md. 155, 33 A. 457, decided December 6, 1895, after the enactment of the Act of 1874, Chapter 483, Section 51, in the advertisement the collector described the property as follows: The deed referred to described 'Three Brothers' as a tract containing 103 acres. The Court in that case in holding the sale void pointed out that the sale was under a summary proceeding where a special power had been executed. The failure of the official to advertise a sufficient description of the property to be sold deprived him of authority and jurisdiction to proceed at all and invalidated the deed which he subsequently made, even though ratified by the court. The Court further pointed out that this is especially true when the insufficient and indefinite description has arisen from or can be traced to the neglect of the public...
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