Polk v. Rose

• Decision Date: 27 June 1866
• Parties: ROBERT M. POLK v. JACOB ROSE & CHARLES CRONHARDT, USE OF LYDIA CINNAMOND.
• Court: Maryland Court of Appeals

25 Md. 153

ROBERT M. POLK v. JACOB ROSE & CHARLES CRONHARDT, USE OF LYDIA CINNAMOND.

Court of Appeals of Maryland

June 27, 1866

A purchaser at a tax sale is chargeable with notice of every irregularity in the proceedings of the officers in regard to the sale.

APPEAL from the Circuit Court of Baltimore city:

The bill in this case was filed by the appellees against the appellant, to set aside a sale to him of real estate made by the collector of Baltimore city, for the payment of taxes and for an injunction restraining the appellant from attempting to collect the rents of such real estate, and concluded with a prayer for general relief.

The allegations of the bill and facts of the case are stated in the opinion of this Court. The appeal is from an order of the Court (ALEXANDER, J.) setting aside the deed of the collector and making perpetual the injunction before issued.

The cause was argued before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.

Wm Price and Benjamin Price for the appellant:

1st. The appellant's counsel insisted upon their exceptions to the allegations of the bill, which they contended were fatal to the complainant's case.

2nd. They insisted upon their exceptions to the evidence.

3rd. They contended that the remedy of the complainants was at law, if they had any. Drury vs. Conner, 1 H. & G., 229. Richardson vs. Stillinger, 12 G. & J., 479. Adams' Equity Doc., 375 & '6. Clark vs. Morse, 18 Johns Rep., 442. Sto. Eq. Pleading, 131, ( a). -- Id. ____ 241, et. seq.

Wm. F Frick, for the appellees:

The appellant, on this appeal, relies only on three points: 1st. His exceptions to the bill. 2nd. His exceptions to the evidence. 3rd. That the complainant's remedy is at law, and not in equity.

It is virtually conceded by him, that the sale for taxes was unauthorized and void. No point is made to the contrary. And the total failure to countervail the complainant's proof, or to offer any evidence in support of the averments in the answer may justly be treated as an admission that no such proof can be had. It may, therefore, be taken as conclusively established:

1st. That List, the owner, was never served with any notice of thirty days, as required by the provisions of the 1 Code, Art. 81, sec. 49.

2nd. That there was sufficient personal property belonging to him, on the premises, to answer for the taxes in arrear, but no levy or distraint thereon was ever made as required by the 50th section, and no return made to the Appeal Tax Court, that no personal property could be found as required by the 54th section.

3rd. That the lot sold was clearly capable of division, without material injury to the owner, into two lots, either of which would have sold for more than the taxes due, and yet that the collector made no such division, nor did he comply in any respect with the provisions of the 60th section, requiring him before proceeding to sell an entire lot for taxes, to have the previous direction and authority of the Appeal Tax Court to do so, in manner and form as prescribed by that section. Vide sections 49, 50, 51, 54, 56, 59, 60, Art. 18, 1 Code. 2 Code, p. 332. Balto. Rev. Ordinances of 1858, p. 33, secs. 26 and 27, title, "Collector." The period of redemtion, one year and a day, the Ordinance extends to two years. No deed can be given until the expiration of the two years.

If any of these prescribed preliminaries were wanting, the sale by the collector was void. Specially delegated powers to sell for taxes must be strictly pursued, and when the statute prescribes the mode of executing the power, it can be executed in no other way. Sharp vs. Speer, 4 Hill, 81. Beatty vs. Knowler, 4 Peters, 167. Barrickman vs. Comm's Harford co., 11 G. & J., 56. State vs. Merryman, 7 H. & J., 91. Swann vs. Mayor & C. C. of Cumberland, 8 Gill, 154. Root vs. State, 10 G. & J., 374. Blackwell on Tax Titles, 65 to 70. The only question, then, is whether the complainant's relief against that sale was in equity, and whether they have made out a case upon their bill.

The jurisdiction of the Court is undoubted. The bill is a " quia timet " bill. It proceeds upon the theory, that the defendant holds a deed for the complainant's property, good on its face, but voidable for want of power and authority in the city collector to execute it. It alleges, that he is using that deed, by way of claim upon the property; interfering with the collection of their rents by the complainants, and throwing a cloud upon their title. The object of the bill is to have that cloud removed, to have a decree declaring the deed void, so far as it affects the complainant's property, and, as ancillary relief, to have an injunction restraining the defendant from interfering with the complainant's tenants or property, under the color of that deed.

There is no practicable relief at law for the injury that may be done to the complainant's title, by the constant holding up of a tax title in terror to tenants and purchasers. The holder of such a title may have his action of ejectment at any time within twenty years, and his claim may be vexatiously litigated at a distance of time when the proper evidence to repel it may be lost or obscured, or when the other party may be disabled from contesting it with as much ability and force as he could contest it at the beginning. The ground on which equity interferes is, that if an instrument or deed is one that gives no title, and ought, therefore, not to be used or enforced, it is against conscience for the party holding it to retain it, and it ought to be surrendered or cancelled. It is by that measure of relief alone that the cloud upon the title (as it is termed) can be removed. See Story's Equity, Vol. 2 secs. 694, and secs. 700, 700 a, and 701, and cases cited in notes.

The jurisdiction in such cases has also been supported on the ground that it tends to prevent multiplicity of suits. Carroll vs. Safford, 3 Howard's S. C. Rep., 453. Holland vs. Mayor & C. C. of Balto., 11 Md. Rep., 197, 463. Pettit vs. Shepherd, 5 Paige, 493. Yancey vs. Hopkins, 1 Munf., 427. Bacon vs. Corn, 1 Sm. & Mar. Ch. Rep., 354. 1 Blackwell on Tax Titles, 480, 488.

If the jurisdiction can be sustained, the averments in the bill are sufficient to bring the case within it. The exceptions do not reach the vitality of the bill.

To the first, it may be answered, that the gravamen of the case is not that the taxes were not due, but that the collector had no right to sell. To the second, that it is not averred that List was not the owner when the taxes accrued, but only that he had transferred his interest when the property was sold. Nor is this point (the 5th) in the bill substantially relied on. To the third, that the gravamen of the charge is that the collector did not comply with the provisions of the 60th section of Art. 18, by obtaining before the sale the authority of the Appeal Tax Court to make the sale entire, and this averment is true. And this is not inconsistent with the third charge in the bill that a further irregularity occurred in covering only a part of the lot by the description.--But this was not by way of division, but by way of mistake. If division had been intended, two lots would have been produced, with a house on each; not two lots with parts only of houses on each. The objections in charges three and four in the bill are quite distinct. To the fourth, it may be said that it was neither necessary to aver in the bill nor show by proof how Cinnamond became trustee. The complainants have proved the deed under which they claim, and they aver title and possession, and that is sufficient.

Lastly. The prayer for specific relief (in addition to the injunction,) is that the cloud which the defendant has thrown around the title by his claim under the tax deed shall be removed; that is to say, that said deed should be declared null and void. But even if the prayer for specific relief should be deemed to be indeterminately worded, there can be no doubt that the prayer for general relief would cover the vacating of the deed, that being the special relief to which the frame and structure of the bill necessarily points. Story's Eq. Pl., secs. 40, 41, 52, 33.

GOLDSBOROUGH J., delivered the opinion of this Court:

The appellees, the complainants below, filed their bill of complaint against the appellant in the Circuit Court for Baltimore city, alleging that they were the owners of certain houses and lots on the north side of Columbia street, in said city, and being seized and possessed thereof, the appellant set up a claim to said lots under an alleged title by a tax deed from Augustus M. Price, the collector of taxes for the State and city, and that the appellant, by virtue of his pretended title, was not only interfering with the appellees right of property by requiring their tenants to pay the rents of the property to him, but that his conduct operated to cast a cloud upon their title.

The appellees further allege that they obtained their title to said houses and lots by deed from George R. Cinnamond, trustee, under a decree of the Circuit Court for Baltimore city, by which decree Cinnamond was authorized to sell the above property as the property of one Adam J. List.

They further allege and charge that the sale for taxes under which the appellant claims title, is utterly void under the laws of this State, and after assigning the reasons for this allegation, pray for an injunction for the purposes therein stated and...