Pendergast v. Young

• Decision Date: 14 May 1947
• Docket Number: 120.
• Citation: 53 A.2d 11,188 Md. 411
• Parties: PENDERGAST v. YOUNG.
• Court: Maryland Court of Appeals

53 A.2d 11

188 Md. 411

PENDERGAST v. YOUNG.

No. 120.

Court of Appeals of Maryland

May 14, 1947

Appeal from Circuit Court, Allegany County; William A. Huster, Chief Judge, and Walter C. Capper, Judge.

Petition by Patrick J. Pendergast against George G. Young, tax collector, and others for the purpose of redeeming from a tax sale certain realty. From an order dismissing the petition the petitioner appeals.

Order affirmed.

MARKELL J., dissenting.

Edward J. Ryan and William L. Wilson, Jr., both of Cumberland, for appellant.

Horace P. Whitworth, Sr., of Western-Port, for appellee.

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

MARBURY, Chief Judge.

Patrick J. Pendergast, an infant, by his mother and next friend filed his petition in the Circuit Court for Allegany County against the tax collector of the County, the County Commissioners of the County, and Catherine B. McHugh, executrix of John McHugh, deceased, and Catherine B. McHugh, individually, for the purpose of redeeming from a tax sale certain property known as 310 Grand Avenue, Cumberland. The petition was filed in the equity case in which the collector of taxes for Allegany County filed his report and had his sales ratified for the years 1935, 1936, 1937 and 1938.

It appears from this report of sale that on the 30th of January, 1937, there was due by Patrick Pendergast, the owner of the property in question, the sum of $44.37 for state and county taxes for the years 1935 and 1936. The report further shows that the collector, in accordance with the provisions of Chapter 433 of the Acts of 1927, made out bills for these taxes and annexed notices that unless such taxes, with accrued interest and costs, were paid within 60 days after receipt of such notices, he would proceed to collect the same by way of distress or execution. The report further shows that on January 20, 1937 he caused a copy of each of said tax bills to be served upon Patrick Pendergast, minor, by service on his mother, Mary S. Pendergast, who is also his guardian, with whom he resides at 310 Grand Avenue, in the manner provided by Section 43-BB of the Act of Assembly aforesaid, by leaving a copy of each of said tax bills with the said Mary S. Pendergast, guardian of Patrick Pendergast, minor, with whom he resides at 310 Grand Avenue, Cumberland. The taxes not having been paid on September 2, 1937, the tax collector, in accordance with the provisions of sections 190 to 198, inclusive, of Article 81 of the Code, 1929 Supplement, levied upon the property which was conveyed to Patrick Pendergast by will dated the 15th day of April 1934, to which will reference was made for the description of the property upon which was located one-half of a double, two story, frame building used for a dwelling. At the time of said levy copies of the tax bills were delivered to Mary S. Pendergast, guardian of Patrick, and thereafter the property was advertised for sale and sold for $180 to the County Commissioners of Allegany County. The sale having been duly reported, and an order nisi passed upon it, it was ratified by the Court on November 12, 1937.

The petition recites that the County Commissioners sold the property to John McHugh, now deceased, by deed dated February 14, 1939, and that McHugh, by his will dated April 1, 1940, devise the property to his sister, Catherine B. McHugh. The petition alleges that at the time of the aforesaid tax sale the petitioner was an infant, having been born January 26, 1927, and that in the tax sale proceedings no guardian was appointed and no answer was filed by guardian ad litem. The petition further states that the petitioner is now ready and willing to redeem his interest, and asks that all the parties be required to show cause why he should not be allowed to do so. Upon the passage of an order to that effect, an answer was filed by the County Commissioners. The other defendants did not answer, and a decree pro confesso was obtained against them. When the case was heard, the only testimony offered was that of a real estate operator who said that the property at the present time is worth $2,250; that in 1936 to 1938, when the property was assessed at $1,600 he would say that the value of it was $2,000. On this state of the record Judges Huster and Capper, sitting as chancellors in the lower court, passed an order on October 1, 1946, dismissing the petition, from which the petitioner appeals.

Two points are made in the appellant's brief. One is that the tax collector failed to comply with the law and procedure, and the other is the appellant has a legal right under the law to redeem his property.

The tax sale was made under sections 197 to 206, inclusive, of Article 81 of the Code as authorized by the local law of Allegany County, Chapter 433 of the Acts of 1927. By Section 197 the collector must first leave with the party by whom the taxes are to be paid, or at his usual place of abode, if such party resides in the County, a statement showing the aggregate amount of property with which the person is assessed, and the amount of taxes due thereon with an annexed notice that unless the taxes are paid within 30 days he will proceed to collect by way of a distress or execution. By Section 198 it was provided that if the taxes were not then paid, the collector should levy and advertise and sell the property for cash to the highest bidder. This sale must be reported to the Circuit Court for the County and after such notice by publication as the Court should provide, and no cause shown, the sale would be ratified and the purchaser should on payment of the purchase price, have a good title to the property. There is a general provision in Section 204 that whenever real estate shall be sold by a collector, the owner thereof prior to the sale may redeem the same by paying into Court to be paid to the purchaser thereof 'within the period of twelve calendar months from the date of such sale, the amount of the purchase money, with interest thereon at the rate of fifteen per cent. per annum from the date of the sale.'

These sections were repealed by Chapter 761 of the Acts of 1943, which provided for a method of foreclosing the right of redemption by a purchaser. By Section 90 of that act any purchaser can at any time after the expiration of one year and a day from the date of sale file a bill in equity to foreclose any right of redemption. The right to redeem continues until barred by the decree of the court in which the foreclosure proceeding is filed. In Section 89 I this is applied to prior sales, whether or not the deed has been delivered. Any proceeding to foreclose the right of redemption must be filed within two years from the date of the certificate of sale. This act, however, does not apply to Allegany County, and, therefore, in no way affects the question before us.

The appellant first contends in his brief that the service was not legal because the infant was not in possession, and on the face of the proceedings actually was never served with notice of the tax levy. This contention apparently was not made in the lower court, because the Chancellors in their opinion said 'there is no contention in this case that this law was not fully and minutely complied with.' However, the service as stated in the report is that a copy of the tax bills was left with appellant's mother and guardian 'with whom he resides at 310 Grand Avenue Cumberland, Maryland.' The statute, as we have stated, provides that the bills and notices should be left with the party by whom the taxes are to be paid, or at his place of abode. It is to be presumed from the wording of the report and, in the absence of any proof to the contrary, that they were left at the place of abode of the infant which was on the property to be sold. There is no distinction in the act between infants, parties non compos, and parties sui juris. The purpose of the notice whether served on the party or left at the party's usual place of abode is to enforce the right of the state to compel such party to contribute...