Karger v. Stead, No. 45.

• Court: Court of Appeals of Maryland
• Writing for the Court: MARKELL, Judge.
• Citation: 64 A.2d 155
• Parties: KARGER et al. v. STEAD et al.
• Decision Date: 10 February 1949
• Docket Number: No. 45.

64 A.2d 155

KARGER et al.
v.
STEAD et al.

No. 45.

Court of Appeals of Maryland.

Feb. 10, 1949.

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.

Affirmed.

64 A.2d 156

Noah A. Hillman, of Annapolis, for appellants.

No appearance for appellees.

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

MARKELL, Judge.

This is an appeal from an order contained in a ‘memorandum and opinion’ filed April 13, 1948, in which the court said, ‘On May 1, 1947, I filed an opinion and order herein sustaining the demurrer of the defendant, Elizabeth B. Stead, to the amended bill of complaint. On May 19, 1947, the plaintiffs filed what they called a motion to permit a reargument * * * some time later * * * the matter was set down for hearing. I listened carefully to everything the plaintiffs' solicitor had to say, and have re-examined the authorities cited in my opinion, and have read some others. I still feel that the conclusion reached in my opinion is right’, 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

64 A.2d 157

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...