Guisebert v. Etchison

• Decision Date: 18 June 1879
• Citation: Guisebert v. Etchison, 51 Md. 478 (Md. 1879)
• Parties: WILLIAM H. GUISEBERT v. THOMAS ETCHISON and MARY E, ETCHISON, his Wife.
• Court: Maryland Court of Appeals

51 Md. 478

WILLIAM H. GUISEBERT v. THOMAS ETCHISON and MARY E, ETCHISON, his Wife.

Court of Appeals of Maryland

June 18, 1879

APPEAL from the Circuit Court for Frederick County.

The case is stated in the opinion of the Court.

Plaintiff's 7 th Exception.--At the trial the plaintiff offered the following prayers:

1.If the jury shall find from the evidence in the cause, that the real estate mentioned in the declaration in this cause, was sold for payment of State and county taxes in arrears for the years 1870 and 1871, by the tax collector for said years, on the 11th October, 1872, to the plaintiff, and that said collector reported the said sale, and the proceedings had in relation thereto, to the Circuit Court for Frederick County and that said real estate is situated in Frederick County and that the said Court did order notice to be given by advertisements to be published in "The Republican Citizen" and "The Valley Register," two newspapers printed in Frederick County, warning all persons interested in said real estate sold, to be and appear by the 18th March, 1876, to shew cause, if any they had, why said sale should not be ratified and confirmed; and shall further find, that said Court, on the 27th March, 1876, passed an order ratifying and confirming said sale--no cause to the contrary thereof being shewn, that then the plaintiff has a good title to said real estate, and the verdict of the jury must be for the plaintiff.

2.That if the jury shall find from the pleadings and all the evidence in the cause, the matters and things stated in the plaintiff's first prayer, that then their verdict must be for the plaintiff, even though the jury should find that said collector did not first leave with the person by whom the taxes were to be paid, or at his usual place of abode, or set up on the said real estate, or deliver to the person in possession thereof, a statement shewing the aggregate amount of property of every description with which said person was assessed, and the amount of the taxes due thereon, with a notice annexed thereto, that unless the taxes so due were paid within thirty days thereafter, he would proceed to collect the same by way of distress or execution to be levied on said real property.

3.That if the jury shall find from all the evidence and pleadings in the cause, the matters and things stated in the plaintiff's first prayer, that then their verdict must be for the plaintiff, even though the jury should find that said collector sold more of said lot of ground than was sufficient to discharge the taxes and charges thereon due, and that said sale was made without the written order of the County Commissioners of Frederick County.

The defendants offered four prayers; it is necessary to state only the second and third, which are as follows:

2.That if the jury shall find from the evidence in this cause, that the taxes and costs claimed to be due, amounted to less than $20, and that the lot or land sold by the collector, was a town lot in the Village of New Market, with a front of about 33 feet front on the main street, and running back to an alley, with a depth of about 330 feet, worth from $600 to $1000 at the time of sale by collector; and they shall further find from the evidence, that a lesser quantity than the whole of said lot could have been sold to pay said taxes and costs, then the sale under which plaintiff seeks to recover was irregular and void, unless they should further find that the collector did attempt to sell some portion less than the whole, or that the County Commissioners were of opinion that said lot would not admit of division without material injury to the owners thereof, and had, previously to sale, directed the collector to make sale thereof to the extent of the ground sold, and unless an entry of such authority to such collector was previously made upon the minutes of the proceedings of said Commissioners.

3.That unless the jury shall find from the evidence that the taxes for 1870 and 1871, upon the real estate mentioned in the declaration, were due at the time of the collector's sale, offered in evidence in this cause; and shall further find that prior to proceeding, by way of execution, to collect said taxes, Lloyd Herring, the collector, first left with Byron Etchison, or at his usual place of abode, or set up on the land or premises to be sold or delivered to some person in possession thereof, a statement showing the aggregate amount of property of every description, with which said Etchison was assessed, and the amount of taxes due thereon, with a notice annexed thereto, that unless the taxes so due are paid within thirty days thereafter, said collector will proceed to collect the same by way of distress or execution, to be levied on said real or personal property that the verdict must be for the defendants.

The Court(LYNCH and BOUIC, J.,) rejected the plaintiff's prayers, and granted the second and third prayers of the defendants.The plaintiff excepted, and the verdict and judgment being for the defendants, the plaintiff appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER ALVEY and ROBINSON, J.

C. V. S. Levy and Wm. P. Maulsby, Jr., for the appellant.

"It is a well settled principle that the judgment of a Court of competent jurisdiction, when coming incidentally in question, * * * is conclusive upon the question decided and cannot be impeached on the ground of informality in the proceedings or error or mistake of the Court in the matter on which they have adjudicated."Raborg vs. Hammond,2 H. & G., 50;Barney vs. Patterson's Lessee,6 H. & J., 182;Taylor & McNeal vs.Phelps, 1 H. & G., 492;Powles, et al. vs. Dilley, et al.,9 Gill, 241;Clark & Jackson vs. Bryant & Lunt,16 Md., 171.

We submit that the ratification of the sale by the Circuit Court was the decision of a Court of competent jurisdiction, upon a question within its jurisdiction.That as such it was offered in evidence of title in the suit in ejectment.That the judgment of the Court ratifying the sale thus offered was conclusive of the question decided by it.That the question decided by it was the regularity of the sale, and the fact that the purchaser had acquired a valid title to the property sold.

It is immaterial, we submit, whether the Court whose judgment is offered in evidence be a Court of original general jurisdiction or one of special limited jurisdiction; if it be a tribunal competent to pass upon the questions and parties upon whom and which it has rendered judgment, its judgment is conclusive.1 Smith's Leading Cases, 1079, 1112, (7 th Am. Ed.)

Where the judical tribunal has general jurisdiction of the subject-matter of the controversy or investigation, and the special facts which gave it the right to act in a particular case are averred and not controverted upon notice to all proper parties, jurisdiction is acquired and cannot be assailed in any collateral proceeding.Where the judicial tribunal has not general jurisdiction of the subject-matter but may exercise it under a particular state of facts, these facts must be specially averred and established, and when so established on a hearing of all proper parties cannot be impeached in any collateral proceeding.Bumstead vs. Bumstead, 40 Barbour, 661;Erwin vs. Lowry,7 Howard, 172;McCormick vs. Sullivan,10 Wheaton, 192;16 Com. Bench, 97; 3 Comstock, 46; 1 Peter, 159; 1 Selden, 454; 18 Maine, 152; 12 Maine, 415.

We submit that the Act of 1872, required the Court to revise and declare proper or the reverse, the proceedings had by the collector, and give an opportunity to the party to appear and make any defence which he might desire; that the Court has thus in this case established the facts necessary to be found before giving judgment, and that the provision for a hearing of all parties has the legal effect upon their rights as if they had been heard, and are therefore bound.Riley vs. Waugh, 8 Cushing, 220; Vail vs. Deven, 19 Barbour, 22, 28; 1 Smith's Leading Cases, 1110;Tax Sale,42 Md., 196.

John Ritchie, for the appellees.

Upon the point of how far the order of ratification of the sale concluded the defendants, we submit that the Circuit Court was exercising a special and limited authority, and it must, at least, appear by the recitals of the record itself, that the facts existed which authorized the Court to act.The same rule applies in the case of a Court of general jurisdiction, exercising in a particular case a special and limited authority, that applies to the action of Courts of special and limited jurisdiction; it must affirmatively appear that they complied with the conditions upon which their power rests, and their acts will have no force whatever beyond the strict scope of their delegated authority.If the proceedings by the collector were regular, and so appear from the facts of the record, a final judgment may possibly be sustained, or inquirable into only on appeal; but in this the record supplied by the collector himself, shows the proceedings to have been irregular; and it is only on finding them "to be regular and according to law," that by the terms of sec. 63 of the Act of 1872 itself, is the Court to order notice to be given, &c.SeeCooley on Taxation, caption Judicial Sales, p. 358, 359, 361, andMcClung vs. Ross,5 Wheat., 116;Thatcher vs. Powell,6 Wheat., 119;Francis' Lessee vs. Washburn,5 Hayw., 294;3 Sneed, 344;12 Ill., 409;42 Mo., 162;6 Iowa, 331;15 Ill., 279.

The same principle is recognized in Dyer vs. Boswell,39 Md., 465, which says, "While the maxim of law omnia rite pr sumuntur is appropriate only to judicial proceedings, no intendment in respect to the exercise of it is to be made in favor of a specially delegated power.The onus is...