Master v. Master

• Decision Date: 14 December 1960
• Docket Number: No. 86,86
• Citation: 223 Md. 618,166 A.2d 251
• Parties: Leo A. MASTER and Naples Bay Shores, Inc. v. Sarah F. MASTER.
• Court: Maryland Court of Appeals

Page 618

223 Md. 618

166 A.2d 251

Leo A. MASTER and Naples Bay Shores, Inc. v. Sarah F. MASTER.

No. 86.

Court of Appeals of Maryland.

Dec. 14, 1960.

Harry L. Durity, District Heights, for appellants.

Jerrold V. Powers and Sasscer, Clagett & Powers, Upper Marlboro, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND. Judge.

Sarah Master, estranged from her husband, Leo Master, filed an original bill to set aside, as vitiated by fraud, a decree foreclosing rights of redemption after a tax sale. By the decree title to some 45 acres of land near Washington, formerly in the couple as tenants by the entirety, had become vested in Naples Bay Shores, Inc., a corporation in which the husband was president and treasurer. The chancellor, characterizing the husband's efforts as 'an extremely clever means of dissolving a tenancy by the entirety,' granted the relief prayed, and the husband and the corporation have appealed.

The couple were married in 1939, and in 1944 acquired some 26 acres of land in Prince Georges County. In 1945 they bought three contiguous parcels aggregating about 17 3/4 acres. The wife furnished the cash purchase price of the first parcel and the down payment on the second. Title to all the parcels was taken as tenants by the entirety. The couple and their three children moved into a house on the property known as 7701 Walker Mill Road, District Heights, Prince George's County, on which the family has continued to make its home. The couple have not lived together as husband and wife since some time in 1957, although each continues to reside on the property, on which are several houses.

On April 1, 1959, a county tax assessor, visiting the property in the course of his duties, happened to remark to the wife that it now belonged to Naple Bay Shores, Inc. As a result, the wife consulted a lawyer that same day. A week later her bill of complaint was filed on the basis of the lawyer's investigation which had disclosed to her for the first time the following: In March 1955 all of the property held by the couple as tenants by the entirety was sold by the treasurer of Prince George's County to Naples Bay Shores, Inc., for $225, for delinquent taxes for the year 1954. In March 1957 Naples had filed its bill to foreclose all rights of redemption in the property. The husband and wife had been sued as residents of Maryland on whom subpoenas were to be served at their residence at 7701 Walker Mill Road. Mortgagees living in Washington, and other possibly interested unknown individuals, were proceeded against by publication. The record in the foreclosure of redemption case includes a summons to the husband and wife, on which the deputy sheriff endorsed a statement that he served both of the parties named in the summons on March 11, 1957, at 2:30 P.M.

Thereafter Naples obtained a decree pro confesso in which the court noted it appeared that 'two of the defendants Leo A. Master and Sarah F. Master, his wife, were duly served with subpoenas by the Sheriff and returned on March 11, 1957,' and that service had been had on certain other defendants by publication and no defendant had answered. By the final decree of October 10, 1958, Naples was vested with fee-simple title to the property 'free and clear of all alienations and descents of the said properties and encumbrances thereon occurring prior to this decree * * *.'

On October 17, 1958, the treasurer of Prince George's County, pursuant to the direction of the decree, executed and delivered a deed of the properties in fee simple to Naples. On February 9, 1959, Naples, acting through the husband as its president, encumbered part of the property by a deed of trust securing repayment of a loan made to it by the Perpetual Building Association in the sum of $10,000. Except for this deed of trust, none of the property has been encumbered or alienated, record title to all of it remaining in Naples.

The property was assessed for taxes at $20,750 but the wife put a value on it of at least $3,000 an acre for the 44 3/4 acres.

The wife testified that she had never been served with a summons or any other paper by the deputy sheriff or anyone else and had not known of the tax sale, or of the foreclosure or of the deed to Naples or the deed of trust until her lawyer told her in April 1959 after the visit of the tax assessor. She said that on March 11, 1957, at 2:30 P.M., when she was supposed to have been summoned, she was as work as a beauty operator in a department store in Washington. The assistant payroll supervisor of the store testified that the company's records showed that the wife had been at work during the entire week of March 11, 1957, and that she had been paid for that entire week. When the husband testified, he did not claim that his wife had in fact been summoned, although the shertiff's return indicated that he and she had been summoned by the deputy sheriff at the same place and time.

The wife and two of the daughters of the couple testified that one evening (which the chancellor could have found, as he seemingly did, to have been when the property was advertised for sale for non-payment of taxes in 1955) her daughter told her mother that a school friend had that day shown her a newspaper clipping which advertised that the family property would be sold for non-payment of delinquent taxes. In the presence of the daughters the mother told the father, who said it was a mistake, that it must have been printed by mistake, that the taxes had already been paid and that he would look into it. The wife also testified Naples had never attempted to get her off the property.

The husband did not deny what his wife and two daughters had testified to, indeed, did not even refer to it. He testified only to the formation of Naples, his connection with it, its purchase at the tax sale (its first business transaction in Maryland--it had bought two parcels of land in Florida for investment and later sold one of them), that he suggested the purchase, that he had engaged the lawyers who filed the foreclosure of redemption proceedings, that he and the vice-president of the corporation attended the sale, that he knew the sale divested him and his wife of title to the property, that he signed the corporation check for the purchase price and that he personally did not have the money to redeem the property.

Appellants do no more than snipe at the wife's right to seek relief by an original bill to vacate an enrolled decree for fraud, apparently recognizing that at least since Burch v. Scott, 1 Bland 112, this Court has held such a procedure proper. See also Bachrach v. Washington United Coop., 181 Md. 315, 320, 29 A.2d 822; Falck v. Chadwick, 190 Md. 461, 466, 59 A.2d 187; Pugh v. Waclawski, 211 Md. 346, 350, 127 A.2d 376. In Thomas v. Hardisty, 217 Md. 523, 143 A.2d 618, an original bill to vacate a tax sale and cancel the collector's deed conveying the property sold was sustained.

Appellants' main fire is directed to contentions that the wife was incompetent to testify that the husband had said the taxes were paid; that she did not show she had not been summoned; that even if she had not been summoned the order of publication gave her constructive notice of the foreclosure case; that the evidence of fraud was insufficient; that the chancellor should have declared Naples' rights under the foreclosure decree and, finally, that the lender of the $10,000 to Naples was a necessary party.

Appellants hark back to the common-law rule that neither party to a marriage can testify against the other in a suit to which that other is a party. They concede that Code (1957), Art. 35, Sec. 1, now makes spouses competent to testify, but rely on the qualification of Section 4 of Article 35, that 'in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage * * *,' urging that it is applicable to the wife's testimony. We find nothing confidential in the challenged communication of the husband to the wife. It was made in the presence of children old enough to understand fully what was being said and it related to a matter of property in which the husband was purportedly acting not only in his own but in his wife's interests. Such a conversation has been recognized as not confidential. McCormick on Evidence, Sec. 84. See also 3 Jones on Evidence (5th Ed. 1958), Sec. 819, p. 1536, where it is said: 'Where the statute excludes private communications...