Louis Kann v. Caroline King Henry Randall Webb v. Caroline King

• Decision Date: 07 January 1907
• Docket Number: Nos. 16,17,s. 16
• Citation: 27 S.Ct. 213,51 L.Ed. 360,204 U.S. 43
• Parties: LOUIS KANN, Sigmund Kann, and Myer Cohen, Appts., v. CAROLINE KING. HENRY RANDALL WEBB, Executor, etc., Appts., v. CAROLINE KING
• Court: U.S. Supreme Court

204 U.S. 43

27 S.Ct. 213

51 L.Ed. 360

LOUIS KANN, Sigmund Kann, and Myer Cohen, Appts.,

v CAROLINE KING.

HENRY RANDALL WEBB, Executor, etc., Appts.,

v. CAROLINE KING.

Nos. 16, 17.

Argued March 8, 9, 1906.

Decided January 7, 1907.

Mr. William G. Johnson for appellants in No. 16.

Messrs. R. Ross Perry, R. Ross Perry, Jr., and E. S. Theall for appellants in No. 17.

[Argument of Counsel from 44 intentionally omitted] Messrs. J. J. Darlington and Leon Tobriner for appellee.

[Argument of Counsel from Page 46 intentionally omitted] Mr. Justice White delivered the opinion of the court:

These appeals are from a decree of the court of appeals of the District of Columbia, which adjudged that a tax sale of certain real estate in the District was void, and which relieved the lessee of the premises from a threatened forfeiture of the lease, asserted to have resulted from the failure of the tenant to pay the taxes to enforce which the tax sale was made. The complainant in the original bill was Caroline King, the lessee of the premises, and the defendants were Marianne A. B. Kennedy (the lessor) and Louis Kann, Sigmund Kann, and Myer Cohen, whom it was alleged claimed to be either the equitable or legal owners of the tax title in question. The defendant Kennedy died the day the bill was filed, and Henry Randall Webb, as her executor, and Maria G. Dewey, as her heir at law, were substituted as defendants.

The lessor prosecuted an appeal from an order granting an injunction pendente lite, restraining him, among other things, from prosecuting landlord and tenant proceedings, based upon a right of re-entry arising from the alleged forfeiture caused by the nonpayment of taxes and tax sale referred to in the bill. The court of appeals, on the face of the bill, sustained the order of injunction. 21 D. C. App. 141. The cause, having been put at issue by separate answers asserting the right of the lessor to forfeit and the right of the holders of the tax title, was tried on the merits and was decided in favor of the complainant. It was taken to the court of appeals on behalf of all the defendants except Mrs. Dewey, and the decree of the lower court, adjudging the tax sale to be void and relieving from the alleged forfeiture, was affirmed. 25 D. C. App. 182.

The origin of the controversy and the facts, as to which there is no dispute, are as follows:

The property in controversy, no. 715 Market space, in the city of Washington, was owned by and assessed for taxation in the name of Maria T. Gillis at the time of her death, intestate, in 1871. Marianne A. B. Kennedy, as the heir at law of Mrs. Gillis, took possession of the property as owner, without any administration upon the estate of Mrs. Gillis. After the death of Mrs. Gillis, continuously up to the making of the tax sale hereafter referred to, the property remained on the public records and continued to be assessed in the name of Mrs. Gillis, except that a small portion of the rear end of the premises was, at a time not shown, but prior to the tax sale before referred to, assessed for taxation in the name of Mrs. Kennedy and her husband.

In 1890, Mrs. Kennedy leased in writing the premises to Henry King, Jr., the husband of complainant, for use as a fancy dry goods store, and by several extensions the period of expiration of this lease came to be October 1, 1908. By the lease the lessee, his executors and administrators or assigns, were bound, 'during the continuance and until the end and determination of the said term for which the said premises are demised, to pay or cause to be paid in each and every year thereof the taxes, general and special, of every character and description, assessed against and levied upon the said premises by the authorities of the general or local government.' The right to terminate the lease and to re-enter upon the breach of any of the conditions was stipulated. When the lease was made, King, the lessee, was engaged in the dry goods business in a store on Seventh street, not far from the Market space store. Under the lease he entered into possession of the Market space store and carried on, in addition, business there until his death on August 18, 1897. Sanctioned by an order of the probate court, an assignment of the lease covering the store on Market space was made to Caroline King, the widow. The business was thereafter conducted for a time solely in her name. She did not, however, actively supervise it. Her elder son, Harry King, who had been, during the latter years of his father's life, in general charge of the business for his father, remained in that capacity, after the death of the father, as the representative of his mother, assisted at the Market space store, in a subordinate capacity, by a brother, Joseph King, who, during the father's life, had also, in a subordinate capacity, been engaged in business at that place. From the making of the lease in 1890 to the death of King in 1897 it was the habit of Mrs. Kennedy, when the tax on the Market space store was about to become payable, to request the lessee to send her a check for the amount of the tax, and on the receipt thereof the tax was paid either by Mrs. Kennedy or her agent. This course was not, however, followed, after the death of King. The first instalment of taxes which fell due in November, 1897, soon after the death of King, was directly discharged by Mrs. King, who took and retained the receipt. This was done at the request of Mrs. Kennedy, who called at the Market space store about Christmas, 1897, and asked that the tax be paid. From that time no request was made by the lessor to the tenant, as the taxes fell due, to send her the money to enable her to pay them, nor is it shown that any express demands were made that the tenant pay the taxes directly. From the time of the payment, by the tenant, near the close of 1897, of the first instalment of taxes which fell due after the death of her husband, until the summer of 1900, a period of more than two and a-half years, no taxes whatever were paid upon the leased premises. In the interval the following taxes became overdue:

Second instalment of tax for 1898, due in May, 1898;

First instalment of tax for 1899, due in November, 1898;

Second instalment of tax for 1899, due in May, 1899;

First instalment of tax for 1900, due in November, 1899; and,

Second instalment of tax for 1900, due in May, 1900.

On July 24, 1900, the two instalments of the tax for 1900, due in November, 1899, and May, 1900, with accrued penalties, were paid by the tenant under the following circumstances: As testified by Harry King, he being concerned over past-due taxes owing on a large number of tracts of real estate owned by the estate of his father, it 'occurred' to him to have the 'bookkeeper go down to the tax office and inquire for the tax bills of 715 Market space.' The bookkeeper went and subsequently reported that the two instalments for 1900 were due, and Harry King paid them. The nature of the inquiry made by the bookkeeper at the tax office, and what occurred, is the subject of controversy, and we pretermit its consideration. Nearly a year after, in May, 1901, the two instalments of taxes for 1899, due in November, 1898, and May, 1899, with interest and penalties, along with the taxes for 1901, were paid by the tenant. The payment of the 1899 taxes was by way of redemption of a sale of the property for such taxes made on April 12 1900. There is no doubt that the payment of the arrears for 1899 was a result of the visit by the bookkeeper to the tax office. It will be observed that the payments which were made in 1900 and 1901, of taxes which were in arrears, did not embrace the second instalment of the tax of 1898, due in May, 1898. To enforce that instalment a sale had been made in April, 1899, and a certificate was issued to the purchaser a few days thereafter, which was subject to a right of redemption during a period of two years. In other words, when the instalments of taxes which were in arrears were paid on July 24, 1900, the property had been sold for the last half of the tax of 1898, and when the payment was made in 1901 of the arrears for 1899 the period for redemption had elapsed.

On July 25, 1901, Mrs. King received a letter sent from Rochester, New York, by one Wiltsie, stating that he had bought the property in April, 1899, at a tax sale to enforce the tax for the second half of the year 1898, and that he was entitled to a deed of the property, but would surrender the tax certificate if immediate payment was made of the amount of his, Wiltsie's, advance, viz., $143.93, together with the statutory interest at the rate of 15 per cent, and a charge for releasing, to be agreed upon. Harry King replied to this letter on July 30, 1901, and asked to be informed of the charge for redemption. Wiltsie answered on August 1, 1901, calculating the statutory interest at $50.38, and naming $100 as his fee or charge for releasing. To this letter reply was made that Harry King was out of town, and that on his return the letter of Wiltsie would be laid before him. On September 17, 1901, Wiltsie wrote King, and called attention to the fact that he had not heard from him, and requested to be informed by return mail when the matter would have attention. To this King replied, objecting to the charge of $100 for releasing, and stated that in his opinion $50 would be an equitable charge. The letter concluded as follows:

'Unfortunately we have paid you quite a considerable amount of money in the past for tax sales. We are not in- terested in this piece of property in any way except as tenant, as we are not the owners or the mortgagees. If it should meet with your approval send us a bill and we will send check.'

It was replied on September 24, 1901, that if the matter was attended to promptly $75 would be accepted for the release certificate, and that the papers had been sent to the Central National Bank of Washington, where, on payment...