Polk v. Pendleton

• Decision Date: 25 June 1869
• Citation: 31 Md. 118
• Parties: ROBERT M. POLK, and Mary, His Wife, v. SOPHIA C. PENDLETON.
• Court: Maryland Court of Appeals

31 Md. 118

ROBERT M. POLK, and Mary, His Wife, v. SOPHIA C. PENDLETON.

Court of Appeals of Maryland

June 25, 1869

Appeal from the Circuit Court of Baltimore City.

The bill of complaint in this case, was filed by the appellee against the appellants; its object was to have a tax sale, at which the appellants were purchasers of certain lots of ground in the City of Baltimore, declared void, and a deed for the property made by the City Auditor to them, set aside on the ground that the property belonged to the appellee that the tax sale was a nullity, and the deed was a cloud upon her title. The court below, (Pinkney, J.,) passed a decree in favor of the appellee, from which the present appeal was taken. The facts of the case are sufficiently stated in the opinion of the court.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, JJ.

Benjamin Price and Wm. Schley, for the appellants:

Polk claimed under color of title, whether it was good or bad, and he was therefore entitled to be warned. Hoye v Swan, 5 Md. 248, 250; Casey v. Inloes, 1 Gill, 500.

Polk was in possession of the property under color of title--that is by deed, purporting to be in fee simple--and receiving, undisputed, the rents from the property for six years, and the scire facias issued against the heirs only, not against Polk, who was the terre-tenant. Foster on Scire Facias, 73 Law Lib. 100, (N. B.) 175, 190, (marg.); 2 Saunders, 6 (N. 1;) Pennoir v. Brace, 1 Salk. 319; Doub v. Barnes, 4 Gill, 11; Hanson v. Barnes, 3 G. & J. 366; Prather v. Manro, 11 G. & J. 265, 266; Panton v. Hall, 2 Salk. 598; Code of Pub. Gen. Laws, Art. 75, sec. 94; Tidd's Appendix, 331, sec. 62.

The remedy of the appellee is at law. The Circuit Court of Baltimore had no jurisdiction in the cause. Tessier v. Wyse, 3 Bland, 40.

John T. Morris and E. Otis Hinkley, for the appellee:

The copy of the judgment record, and the Sheriff's deed to the appellee, show the regularity and sufficiency of all the proceedings. "Courts guard and maintain, with zealous vigilance, the titles of purchasers under Sheriff's sales." Tomlinson v. Devore, 1 Gill, 345; Tabler v. Castle, 22 Md. 94; Manahan v. Gorman, 3 Md. 463; Marshall v. Greenfelder, 8 G. & J. 349; Miles v. Knott, 12 G. & J. 442; Sasscer v. Young, 6 G. & J. 243.

The Circuit Court had jurisdiction in this case. Polk v. Rose, 25 Md. 156; Holland v. Baltimore, 11 Md. 186; Blackwell on Tax Titles, 482, 488-490.

The appellants were not terre-tenants, and were not entitled to be summoned under the scire facias.

Bartol C.J., delivered the opinion of the court.

It appears, by the pleadings and proofs in this case, that Robert W. Pendleton was, in his lifetime, seized in fee of a lot of ground in Baltimore City. In January, 1858, a judgment was recovered against him in the Superior Court of Baltimore City; he died in 1861. In 1864, the judgment was revived by scire facias issued against his heirs, and judgment having been entered thereon, a writ of fieri facias was issued, under which the lot of ground, mentioned in the proceedings, was sold by the Sheriff to the appellee, on the 11th of November, 1864, and conveyed to her by the deed of the Sheriff, dated November 23rd, 1864.

Before the death of R. W. Pendleton, to wit, in October, 1858, the lot in question was purchased by the appellant, R. M. Polk, at a tax sale, made for the collection of taxes in arrear, due by R. W. Pendleton, and was conveyed to him, and Mary, his wife, the present appellants, by the deed of McCubbin, the City Auditor, dated November 5th, 1859.

Immediately after this deed was executed, the appellants went into possession of the property, and continued in possession of the same, by their tenants, until the filing of the bill, and the issuing of the injunction in this case.

The bill alleges the several proceedings upon the judgment, under which the appellee purchased; and further alleges, that the tax sale to the appellants was void, and that they acquired no valid title thereby, because of the failure and omission of the City Auditor to comply with the requirements of the tax laws; and the defects and irregularities in the proceedings of the Auditor are particularly alleged in the bill.

The relief prayed by the bill is, "that the complainant may have the cloud upon her title removed; that the sale made by the City Auditor may be declared null and void, and his deed to the appellants be set aside; and that an injunction be issued to prevent the appellants from attempting to collect the rents of the property, or inter-meddling with the same;" there was a prayer also for a receiver and for general relief.

The injunction was granted as prayed, and, by the final decree, the same was made perpetual; the deed from the City Auditor was declared null and void, and was set aside, and the appellants were decreed to account with the complainant for the rents received from the property, as well before as after the order for injunction, and the cause was referred to the auditor to take the account, reserving all equities of the parties.

From this decree, the present appeal was taken.

The appellants offered no testimony in support of their tax title; they simply produced the deed of the City Auditor, under which they claim to have entered upon, and held possession of the property.

Their defense rests upon two propositions:

1st. That the title acquired by the appellee, under the Sheriff's sale, is invalid, because they were not warned, under the scire facias, as terre-tenants.

2nd. That a Court of Equity has no jurisdiction, the remedy of the appellee being at law.

1. Upon the first proposition, we concur in the opinion pronounced by the Judge of the Circuit Court, that the proceedings upon the judgment were regular. The appellants were not terre-tenants, entitled to be warned under the scire facias.

Where a sole defendant dies after judgment, it may be revived, and execution had against his lands, by suing out a scire facias against the heirs and terre-tenants, without proceeding against the personal representatives. See Tessier v. Wyse, 3 Bland, 40, and cases cited in note m.

Who are terre-tenants within the meaning of the law, whom it is necessary to make parties to the scire facias? All who are in possession, deriving title under the judgment debtor, such as heirs, devisees, or alienees, after the judgment. They are in, as of the estate of the judgment debtor, and before the judgment can be revived, and enforced by execution against the land, so as to divest their title, it is necessary to warn them by the scire facias, so that they may have an opportunity of making their defense, and of claiming contribution from others holding lands of the judgment debtor, bound by the judgment. Tessier v. Wyse, 3 Bland, 40; Warfield v. Brewer, 4 Gill, 268.

But where a...