Hill v. Ellis

Decision Date11 December 1941
Citation23 A.2d 112,41 Del. 402
CourtDelaware Superior Court
PartiesROBERT CLARK HILL v. WILLIAM J. ELLIS, JR., and CHARLES G. JONES

Proceeding by Robert Clark Hill against William J. Ellis, Jr., and Charles G. Jones for a rule to show cause why return of tax sale should not be confirmed.

Rule discharged.

Superior Court for Sussex County, October Term, 1941.

Petition for rule to show cause why return of tax sale should not be confirmed.

The rule to show cause is discharged.

Houston Wilson for petitioner.

Isaac D. Short, II, for respondents.

LAYTON C. J., sitting.

OPINION

LAYTON, Chief Justice:

The petitioner is the City Manager of the City of Rehoboth, and as such he is charged with the collection of municipal taxes. The respondent, William J. Ellis, Jr., is the owner of two lots of land, designated as lots 36 and 37, Block 17 Rehoboth Heights Development Company, against which taxes in the sum of $ 6.98 were levied for the year 1938. In addition the respondent was assessed with a capitation tax of one dollar.

The taxes were not paid, and on June 29, 1940, the petitioner, after due proceedings, sold both lots of land apparently as one lot to the respondent, Jones, for the sum of $ 305. Although, under the statute, the return of the sale should have been made to the ensuing October term of this court no return of the sale was made or attempted to be made until July 11, 1941, when the petitioner prayed for the issuance of a rule requiring the respondents to show cause why the sale of the lands should not be approved and confirmed. The respondent, Ellis, was in the military service of the United States, and counsel was appointed by the court to protect his interest.

The procedure provided by the charter of Rehoboth for the sale of lands for unpaid taxes (Ch. 161, Vol. 41, Del. Laws, Sec. 27) directs the filing of a petition in this court stating certain facts. The petition is not presented to the court for action. The prothonotary records the petition, and endorses on the record an order to "sell the lands and tenements herein mentioned or a sufficient part thereof for the payment of the amount due". The statute proceeds to declare:

"Each sale of lands and tenements shall be returned to the Superior Court, aforesaid, at the ensuing term thereof following the sale. At the return of said sale the Court shall inquire into the circumstances and either approve or set aside the sale. No sale shall be approved by the Court if the owner be ready at the Court to pay the taxes * * * due the City, together with penalty, interest and costs, if any. If it set aside the sale, the Court may order another sale and so on until the tax * * * is collected.

"If the sale shall be approved by the Court, then at the expiration of one year from the date of the sale (which shall be known as the redemption year) the City Manager shall * * * execute and deliver a deed to the purchaser * * *, which shall convey the title of the taxable * * * provided, however, that within the redemption year, the owner * * * shall have power to redeem the lands on payment of the cost, the amount of the purchase money and twenty per cent interest thereon to the purchaser * * *. If the purchaser refuses to accept the same or in the event the purchaser * * * cannot be located within the State of Deaware, then, in either event, it shall be lawful for the owner * * * to pay the amount of the redemption money to the City Manager * * * and, upon taking from him a good and lawful receipt therefor, such receipt shall be considered for all intents and purposes as a valid and lawful exercise of the owner * * * of * * * his * * * power to redeem the land so sold."

The petitioner contends that the statutory direction for the return of the sale at the ensuing term of the court is directory only; that the sale has all the attributes of a judicial sale; and that the court, in the exercise of its inherent power over its own processes, may allow the return to be made, and if otherwise regular, may confirm the return.

Statutes authorizing sales of land for delinquent taxes are strictly construed in favor of the owner of the land; and all requirements of the law designed for the benefit and protection of the owner are to be regarded as mandatory and are to be strictly enforced. There are decisions to the effect that the statutory requirement with respect to the time of making return of the sale is directory only. Free v. Greene, 175 Md. 36, 199 A. 857, 117 A. L. R. 717; Langley v. Batchelder, 69 N.H. 566, 46 A. 1085; Brien v. O'Shaughnesy, 3 Lea (Tenn.) 724. In 3 Cooley, Taxation, 4th Ed., § 1450, it is said that a report of the sale by the officer who has made it is commonly provided for sometimes for the purposes of a record exclusively, and sometimes, also, because some other officer than the one who made the sale is to execute the deed; and where the case is such that a report is of no importance to the landowner, he would probably not be heard to complain of a failure to make return, or of errors or imperfections in it. But, by the great weight of authority, a statutory requirement that a sale of land for taxes be returned at a fixed time, is mandatory, and the omission of the officer conducting the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT