Karger v. Stead
| Decision Date | 10 February 1949 |
| Docket Number | 45. |
| Citation | 64 A.2d 155,192 Md. 230 |
| Parties | KARGER et al. v. STEAD et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; James Clark, Judge.
Suit by Harry J. Karger and another against Elizabeth B. Stead and the Board of County Commissioners of Anne Arundel County and others, to redeem from a tax sale. From a decree sustaining a demurrer, plaintiffs appeal.
Noah A. Hillman, of Annapolis, for appellants.
No appearance for appellees.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
This is an appeal from an order contained in a 'memorandum and opinion' filed April 13, 1948, in which the court said , and 'denied' 'the motion filed by the plaintiffs herein on May 19, 1947.' There has been no final order dismissing the bill. An order sustaining a demurrer to an entire bill is appealable. Young v. Cockman, 182 Md. 246, 249, 34 A.2d 428, 149 A.L.R. 1006. Of course, an order overruling a motion for reargument is not. As the 'memorandum and order' shows on its face that a reargument in fact was granted and heard, we think it may properly be regarded as an order sustaining a demurrer and this appeal may be entertained and plaintiffs need not submit to a final decree in order to appeal.
The amended bill of Harry J. Karger and the administrator of the estate of his wife, Nancy J. Karger, against Elizabeth B Stead and the County Commissioners of Anne Arundel County, alleges that: Karger was in the Army from September, 1942 until August 13, 1945. His wife died November 22, 1940. He is her sole heir at law. She was an heir of her mother Sybil J. Bell, who is dead [and, therefore, it is argued, must have died before November 22, 1940]; other heirs being unknown. The wife, at the time of her death, was the holder, by assignment in 1937, of a mortgage from her mother on a lot and a small building, used as a dwelling, at Idlewilde, Anne Arundel County, acquired by the mother in 1931. No part of the mortgage debt or interest has been paid; the taxes from 1932 to 1936, inclusive, were paid by the mortgagee, 1937, 1938 and 1939 taxes by the mortgagor. The property was sold for nonpayment of 1940 taxes by the Treasurer of Anne Arundel County on October 14, 1941, to the County Commissioners for $51.13 and the sale was finally ratified December 7, 1942 [when it was reported is not stated].
Karger learned of the sale in April, 1944, long after it had been ratified. By inquiry through the Legal Assistance Division of the Judge Advocate's Office and the Committee on War Work of the Maryland State Bar Association, he learned that the County Commissioners had sold the lot to defendant Stead, and she had not finished paying, and no deed had been executed conveying it to her. In May, 1944 the Commissioners were 'requested to hold up settlement' until arrangement could be made with defendant Stead 'to release her interest', and she was asked to make some arrangement. She refused to relinquish her claim or interest.
Defendant Stead 'has been able to use' and, plaintiffs are informed, 'has used the premises since she arranged to purchase' them 'but has paid no taxes, nor made any payment to the plaintiffs for said use'.
Plaintiffs have a substantial interest in the property through Karger's wife, as mortgagee and heir [at the argument her interest as heir, not as mortgagee, was relied upon]. Plaintiffs are ready, able and willing to pay all taxes in arrears; a sufficient amount to do so has been placed in the hands of plaintiffs' solicitor, in trust [not paid into court]. Karger claims the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, U.S.Code Annotated, Title 50, sec. 560 and Article 87A, Maryland Code 1947 Supplement, 'Soldiers' and Sailors' Civil Relief'.
The bill prays a decree (a) setting aside the 'tax sale proceedings, upon payment of taxes in arrears and current taxes' and (b) that defendant Stead 'has no interest in the property' and that payments made by her to the County Commissioners be returned to her; and general relief.
The original bill was filed by Karger on August 30, 1945. On March 19, 1946 a demurrer of defendant Stead was sustained with leave to amend within 30 days. On February 24, 1947 letters of administration were granted on the estate of Karger's wife and an amended bill was filed by Karger and the administrator. On May 1, 1947 defendant Stead's demurrer to the amended bill was sustained, with 30 days in which to amend again. No demurrer or answer was filed by the County Commissioners. In this Court no brief was filed or argument made for either defendant. Vagueness of allegations in the bill are attributed by plaintiffs to the handicaps on communication while Karger was in the military service, but in two and a half years since he left the service little was done to clarify the bill. However, for present purposes we accept plaintiffs' interpretation of their own bill as alleging that Mrs. Karger's mother died before she did, though the amended bill alleges that 'the whereabouts' of the mother 'have for several years been unknown' to Karger and 'she is dead', and that Karger 'does not know where [she] is,' but her solicitor was advised that the County Commissioners have a letter addressed to her, returned [when?] by the post office marked 'dead'.
As Judge Clark says is his original opinion, Moreover, even if plaintiffs were in possession, there is no allegation showing that the sale was reported too late, which was the ground of invalidity in Free v. Greene, supra, and Queen v. Anderson, supra. Thus no question is presented as to the validity or construction of the Act of 1941, ch. 208, as applied to sales made and ratified after June 1, 1941.
As Judge Clark also says, plaintiffs' claim, under section 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, as amended, 56 Stat. 769, 50 U.S.C.A.Appendix, § 525 or section 500, 50 U.S.C.A.Appendix § 560, or both, a right to redeem this property from the tax sale; this is a bill for the redemption of the property. Karger, however, claims that under the Soldiers' and Sailors' Civil Relief Act of 1940 all or a portion of his period of military service must be excluded in computing the period for redemption and therefore his bill for redemption is in time. Like Judge Clark, we shall assume, without deciding, that 'Karger had, on August 30, 1945, when the original bill was filed, such an interest in the property as entitled him to redeem the same from the tax sale, (see Stewart v. Wheatley, 182 Md. 455 ) and that one seeking to redeem may maintain a new and original proceeding for the purpose, instead of paying the money into court in the case where the sale is reported, as provided for by the statute, supra, and as was, apparently, done in...
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