Kelly v. Nice

• Decision Date: 23 June 1922
• Docket Number: 54.
• Citation: 119 A. 333,141 Md. 472
• Parties: KELLY v. NICE et al.
• Court: Maryland Court of Appeals

119 A. 333

141 Md. 472

KELLY v. NICE et al.

No. 54.

Court of Appeals of Maryland

June 23, 1922

Appeal from Circuit Court of Baltimore City; Carroll T. Bond, Judge.

"To be officially reported."

Suit by Caleb Guyer Kelly against Henry W. Nice, executor, and others. From a decree sustaining a demurrer to, and dismissing, the bill of complaint, plaintiff appeals. Affirmed.

Peter Peck, of Baltimore, for appellant.

C Alex. Fairbank, Jr., of Baltimore (J. Calvin Carney, Benjamin L. Freeny, and Edwin T. Dickerson, all of Baltimore, on the brief), for appellees.

THOMAS J.

This appeal is from a decree of the Circuit Court of Baltimore city sustaining a demurrer to, and dismissing, the bill of complaint of the appellant.

The bill, which is an amended bill and was filed on the 27th of December, 1921, alleges that, in 1905, August Weber and Emma Weber, his wife, leased to Henry A. Ulrich, his executors administrators, and assigns, the property in Baltimore city known as 1728 North Monroe street, for 99 years, renewable forever, reserving an annual rent of $67.91, and thereafter on the 12th of April, 1906, conveyed the reversion to the appellant; that in March, 1914, Ulrich assigned the leasehold interest to Paul C. E. Hauser; that the ground rent being in arrear, the appellant notified Ulrich in June, 1917, that ejectment would be instituted against him, and that in July 1917, Ulrich informed the appellant that he had assigned the leasehold interest to Hauser; that in December, 1918, the appellant sued Hauser in ejectment and obtained a judgment against him, "and recovered possession of said property thereunder on or about October 18, 1919"; that some time thereafter the appellant learned that the property had been "attempted to be sold in fee simple on December 11, 1916, by William C. Page, the city collector, *** for alleged nonpayment of taxes amounting to $184.82, for the years 1913, 1914, 1915, and 1916, to Henry Nice," and that said sale had been finally ratified and confirmed by circuit court No. 2 of Baltimore city, and that a deed "in fee simple" for said property, dated February 26, 1918, had been executed and delivered by said collector to Nice, and recorded among the land records of Baltimore city; that the appellant, upon learning of said "attempted tax sale," and upon advice that the same was illegal and void, in January, 1920, brought suit in ejectment against all the parties claiming through and under Nice; that Ulrich and Hauser did not notify him that said taxes were due and unpaid, and that they either had no knowledge of said tax sale, or, with knowledge thereof, fraudulently withheld the same from the appellant; that during the pendency of said ejectment suit against Hauser, and prior to the judgment therein, Nice, by lease dated September 29, 1919, and recorded among the land records of Baltimore city, leased the property at an annual ground rent of $72 to Louis Skolkin and Rebecca Skolkin, who, on the same day, executed a mortgage of said leasehold interest to the "Western Permanent Building Association of Baltimore City, Incorporated," and that Nice also conveyed the reversion to James H. Townsend and Hattie C. Townsend, who thereafter, by deed dated July 12, 1920, conveyed the same to Martha A. Freeny; that in the second ejectment suit the appellant conclusively proved that said "pretended" tax sale was void, but that the court declared in an oral opinion that, as the appellant was only the owner of the ground rent, and hence not entitled to possession, his remedy was in equity; that the said Skolkins "are in possession and occupancy of said property," and the said Martha A. Freeny continues to persist in her claim that she is the owner of said property, and is collecting from the Skolkins "the rent issuing therefrom"; that under the circumstances, the appellant is without any complete and adequate remedy at law, because "he cannot resort to the ordinary ejectment against the defendants Henry Nice, James H. Townsend and Hattie C. Townsend, Western Permanent Building Association of Baltimore City, Inc., and Martha A. Freeny, for the reason that these persons are not in possession, and he cannot resort to the ordinary remedy of ejectment against the defendants Louis Skolkin and Rebecca Skolkin, for the reason that your orator also is in possession of said property under the proceedings" in the first ejectment case against Hauser, "and for the further reason that, if your orator were only the owner of the ground rent, he would not be entitled to possession and could not sue in ejectment."

The bill, which was filed against Henry Nice, James H. Townsend and Hattie C. Townsend, Louis Skolkin and Rebecca Skolkin, the Western Permanent Building Association of Baltimore City, Inc., and Martha A. Freeny, and to which Henry W. Nice, executor of Henry Nice, deceased, was subsequently made a party, after further alleging the several grounds upon which the tax sale was void, then prays (1) that the defendants be required to answer; (2) that said Nice, the Townsends and Martha A. Freeny be required to pay into court $271.64, the amount of ground rent due the appellant "up to and including April 10, 1921"; (3) that the tax sale be declared null and void; (4) that said defendants be enjoined from asserting any title to the property under said sale or any deed from Henry Nice or those claiming through him; (5) that the said Skolkins be required to bring into court "the ground rent issuing out of said property as the same becomes due under the original lease; (6) that the said defendants be enjoined from selling, mortgaging, or otherwise disposing of the reversionary or leasehold interest in said property; (7) that the order ratifying the tax sale be "declared null and void," and (8) for general relief.

In the case of Polk v. Pendleton, 31 Md. 118, Chief Judge Bartol said:

"The rule governing *** courts of equity in cases of this kind, is thus stated *** in Orson v. Smith, 18 Howard, 265: 'Those only who have a clear legal and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.' The same rule was recognized by this court in Crook v. Brown, 11 Md. 173, where it was said, 'The complainants have not the legal title and are not in possession, which we take to be essential facts in such cases.' Such suits are instituted to protect a party who is in possession and has a clear title, against vexatious litigation, by persons setting up unjust and illegal pretensions, and the ground of equity jurisdiction is, that being in possession he cannot have a remedy at law."

This general rule has been repeatedly recognized and followed in this state by the later decisions. Textor v. Shipley, 77 Md. 473, 26 A. 1019, 28 A. 1060; Helden v. Hellen, 80 Md. 616, 31 A. 506, 45 Am. St. Rep. 371; Oppenheimer v. Levi, 96 Md. 296, 54 A. 74, 60 L. R. A. 729; Stewart v. May, 111 Md. 162, 73 A. 460, 18 Ann. Cas. 856; Waring v. Nat. Sav. & T. Co., 138 Md. 367, 114 A. 57.

The material allegations of the bill now under consideration...