Gill v. Sommer

• Decision Date: 20 July 1948
• Docket Number: 188.
• Citation: Gill v. Sommer, 191 Md. 204, 60 A.2d 683 (Md. 1948)
• Parties: GILL et ux. v. SOMMER et ux.
• Court: Maryland Court of Appeals

60 A.2d 683

191 Md. 204

GILL et ux. v. SOMMER et ux.

No. 188.

Court of Appeals of Maryland

July 20, 1948

Appeal from Baltimore City Court; E. Paul Mason, Judge.

Action of ejectment by John M. Sommer and Olive H. Sommer, his wife against Albert W. Gill and Josephine M. Gill, his wife.From a judgment for plaintiffs, defendants appeal.

Judgment affirmed.

Paul R. Kach, of Baltimore (Paul M. Higinbotham, of Baltimore, on the brief), for appellants.

B Harris Henderson, of Baltimore (George M. Mullen and L Franklin Gerber, both of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This case, like Shapiro v. National Color Printing Co., Md.,60 A.2d 679, involves the validity of a tax sale in Baltimore, but unlike that case arises only under the laws in force before the Act of 1943, ch. 761, and the Act of 1941, ch. 540, and the Act of 1937, ch. 511(section 65 of Baltimore City Charter, 1938 Edition), amendingsection 48 of the Charter, 1927 Edition.This is an appeal from a judgment for plaintiffs, in an action of ejectment by the taxpayers against the purchasers at the tax sale.

In 1920plaintiffs, as tenants by the entireties, acquired in fee, by deed from Joseph Fekl and wife, 'three lots of ground * * * together described' as begining at the east corner of Keene Avenue and Center Avenue (later Winthrope Avenue) and running southeasterly 90 feet, with an even depth of 200 feet to the centre of a ten foot alley.On the first sixty feet plaintiffs built a house, which they occupy, No. 3600 Keene Avenue.The whole 90 feet was used and enclosed as a house and yard.The 30 feet was not transferred on the tax books from the name of Fekl to plaintiffs, though until 1929 it was the duty of the clerks of courts to report conveyances to the tax officials for the purpose of such transfer.Code of 1924, Art. 81, sec. 15;Acts of 1841, ch. 23, sec. 37.Whether the 60 feet was transferred does not appear.On the tax books, at and before the time of the tax sale, the property was carried as two properties, 60 feet at the corner as No. 3600 Keene Avenue and the remaining 30 feet as an 'unimproved lot.'Plaintiffs evidently were unaware (perhaps unmindful) of such separate assessments.In November, 1934they obtained a building association mortgage on 3600 Keene Avenue (the whole 90 feet, he says) for $500, principally to pay overdue 1933 and 1934 taxes (aggregating $356.56), which the building association paid and deducted from the proceeds of the loan.Evidently the building association, like plaintiffs, was unaware that these taxes on 3600 Keene Avenue did not cover all the property, and that on the southeastern 30 feet 1931, 1932, 1933 and 1934 State and City taxes and 1930 State taxes, all aggregating $89.20, were then in arrears.

A tax sale of the 'unimproved lot' was made on February 7, 1935, reported February 7, 1936, and ratified November 21, 1944.The property was conveyed by deed on December 6, 1944, by the Collector to the City and on December 7, 1944, by the City to defendants, who lived across the street from the property.It was sold, under authority of an ordinance approved November 4, 1944, to defendants for $500.They paid a deposit on account in September 1944.Sommer testifies that: In January, 1945, he learned for the first time that the lot had been sold for taxes.No notice of any sale of the property was received by him personally or left at the house or posted on the property.Mrs. Sommer testifies that she never received any notice, by mail or otherwise, of any tax sale of the property.

The records of the Collector's (now Treasurer's) office show, at the time of the tax sale, unpaid 1930 State taxes (83 cents), 1931, 1932, 1933 and 1934 State and City taxes ($7.62, $7.78, $8.53--plus $56.43 paving tax--and $8.01) on the 30 foot lot.From these records were filed with the report of the tax sale three bills for these taxes, one for 1930, one for 1931, 1932 and 1933, and one for 1934, all in the name of Joseph Fekl, 'Location--NES Keene Ave. 60' E. Winthrope Avenue,''improvement--unimproved lot. size lot--30' X 195'.'Each of these bills purports to bear on the back, under the caption 'This Is a Final and Legal Notice Personal Delivery Is Being Made As Required By Law,' a notice 'that unless charges are paid within thirty days from this date, the property will be advertised the sold to satisfy the indebtedness,' signed 'by order of the collector, J. Goucher, bailiff. 2-2-33 delivered Olive Summers, owner, 3600 Keene Avenue.8-9-33 A/P. Franklin, Jr., set up in presence of A. S. DiDomenico.'The above italicized parts of the signatures are typewritten.There is no manual signature, initials or other identifying mark.The present employee in charge of tax sales testifies that these records mean that bills for these taxes were delivered by Goucher in person to Olive Sommer, owner, 3600 Keene Avenue, on February 2, 1933, and were posted on the property by Franklin in the presence of DiDomenico on August 19, 1933.The report of sale alleges that bills[1] were mailed in accordance with Chapter 229 of the Acts of 1916(sec. 54, Charter, 1938 Ed., which provides that any notice required by law to be given by the Collector shall be deemed prima facie to be served if mailed in a prescribed manner) or [2] were left at the last known residence of one of the persons in arrears or [3] were left upon the premises.The transcript also contains, with little explanatory testimony, four bills, with no manual signatures or initials, (1) for 1930 and 1931 State and City taxes, with notice signed ' J. Goucher, Bailiff 2/2/33 Delivered Olive Summers, 3600 Keene Ave., owner,'(2) for undated paving tax [same as amount for 1933 filed with report of sale], with notice similarly signed, (3) same, with notice signed ' A. P. Franklin, Jr., Bailiff.Delivered Set up in presence of A. S. DiDomenicoAug. 19, 1933,'(4) for 1931 and 1932 State and City taxes with, notice similarly signed.

Neither Goucher nor Franklin testified.No manual signature or initials of either were offered in evidence and identified by anyone.DiDomenico testified, but had no personal recollection at all about this particular case.He handled hundreds in which premises were posted in his presence.Neither he nor Franklin were regular employees of the Collector's Department.They only worked there about two or three months in a year.In slack seasons they used men from other departments.

The Collector, before advertising property for sale, was required to [1] give to the person or persons in arrears, or to one of them or[2] mail pursuant to the Act of 1916, ch. 229;Charter, 1938 Ed., sec. 54, or[3] leave at his or her or their residence or last known residence and[4] if no such residence is known, leave upon the premises, not less than thirty days 'notice of his intention, if the bill is not paid, to enforce the payment thereof by distraint or execution.'Charter, 1938 Ed., sec. 56.The report of sale alleged, in the...