Hill v. Ellis
Decision Date | 11 December 1941 |
Citation | 23 A.2d 112,41 Del. 402 |
Court | Delaware Superior Court |
Parties | ROBERT 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.
OPINION
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:
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...
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