Prince George's Homes, Inc. v. Cahn

• Decision Date: 12 July 1978
• Docket Number: No. 171,171
• Citation: 283 Md. 76,389 A.2d 853
• Parties: PRINCE GEORGE'S HOMES, INC., et al. v. Albert M. CAHN.
• Court: Maryland Court of Appeals

Page 76

283 Md. 76

389 A.2d 853

PRINCE GEORGE'S HOMES, INC., et al. v. Albert M. CAHN.

No. 171.

Court of Appeals of Maryland.

July 12, 1978.

Joseph S. Casula, Upper Marlboro, for appellants.

James C. Chapin, County Atty., Carl A. Harris, Deputy County Atty., and Steven M. Gilbert, Associate County Atty., Upper Marlboro, on brief, for amicus curiae Prince George's County, Maryland.

James R. Bucher, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

DIGGES, Judge.

This case presents the question whether a purchaser of real property at a tax sale, who has timely filed suit to foreclose the rights of redemption but who has not concluded those proceedings for a period of nine years, may obtain a foreclosure decree after the property has been sold a second time for subsequent delinquent taxes and suit has been filed by the assignee of the second purchaser to likewise foreclose the rights of redemption. We conclude that under the circumstances here, it was error to dismiss the original purchaser's foreclosure action.

The occurrences which resulted in the litigation now before this Court are not complicated. In March of 1965 Albert M. Cahn, the respondent, purchased four lots in Maryland Park Terrace at a tax sale conducted by the collector of taxes for Prince George's County. See Md.Code (1957, 1975 Repl.Vol. & 1977 Cum.Supp.), Art. 81, §§ 70-123C. Within the statutorily prescribed time period after a year and one day from the date of sale but within two years of that date, See id. § 100(a) (1975 Repl.Vol.) ¹ Cahn filed a proceeding to foreclose the rights of redemption in the property. He took virtually no action toward obtaining a final decree of foreclosure for the next seven years, however, and on May 14, 1974, the tax collector conducted a second sale of the property; this time the county bought the lots and later assigned its tax sale certificate to the petitioner, Prince George's Homes, Inc. When the petitioner filed its bill of complaint to foreclose the rights of redemption, naming as defendants the record owners of the property and the respondent, Cahn promptly filed a petition to redeem; his long-pending foreclosure proceeding was ultimately consolidated with the one more recently instituted by Prince George's Homes. The circuit court then granted the petitioner's motion for summary judgment, finding as a matter of law that since Cahn "did not exercise his right to foreclose the rights of redemption in (the) property acquired at the first tax sale by obtaining a final decree within the time limited by statute (two years) . . ., the subsequent sale of the property by the County to Prince George's Homes, Inc. for all taxes currently in arrears extinguished and voided all rights the defendant Albert M. Cahn had acquired under the tax certificate he purchased on March 1, (1965)." The court's consolidated final decree thus denied both Cahn's petition to redeem and his bill to foreclose rights of redemption, and vested Prince George's Homes with an indefeasible fee simple title to the property.

Unhappy with this resolution of the matter, Cahn appealed to the Court of Special Appeals, which reversed the circuit court's judgment, holding that (1) the trial court erred in denying Cahn's petition to redeem in the foreclosure proceedings brought by Prince George's Homes, since there is no statutory authority granted to the court to deny the right to redeem of an owner or other person having an interest in the property until that right has been foreclosed by final decree, and (2) the trial court erred in dismissing Cahn's earlier suit to foreclose the rights of redemption. On the latter point the court explained that the statute merely requires that such a suit be filed within two years in order to prevent a tax certificate from becoming void, not that it be concluded within that time; Cahn's interest in the property had thus not terminated and, since the tax collector has no authority to resell the property unless he first has the original proceedings concluded, the second sale was a nullity. Cahn v. Prince George's Homes, 38 Md.App. 280, 283-86, 378 A.2d 157, 159-61 (1977). We granted the petitioner's request that a writ of certiorari issue, and now, with somewhat different reasoning, affirm the judgment of the Court of Special Appeals.

The real thrust of the petitioner's argument here is that Cahn's failure to foreclose and obtain title within two years of the tax sale at which he purchased allowed the tax collector to resell the property, which in turn resulted in Cahn's tax certificate becoming "void and of no effect." In support of these propositions, the petitioner cites Bullard v. Hardisty, 217 Md. 489, 143 A.2d 493 (1958), and the announced legislative policy to encourage the foreclosure of rights of redemption and the decreeing of marketable titles to property sold by the tax collector. Md.Code (1957, 1975 Repl.Vol.), Art. 81, § 97. Unlike the petitioner, however, we find no authority, either in the statute or in Bullard, for the proposition that Cahn's tax certificate was voided; nor is it necessary to so construe the statute in order to further the legislative intention, even assuming we were at liberty to do so. Indeed, Bullard is precedent for our conclusion that the tax collector here should not have conducted the second sale.

We begin our discussion by reiterating that the statute specifically provides that "(u)nless a proceeding to foreclose the right of redemption is Filed within two years of the date of the certificate of sale, the said certificate shall be void . . . ." Code, Art. 81, § 100(a) (emphasis added). It could hardly be clearer that the tax certificate is void only if a proceeding is not Filed within the two-year period there is simply nothing, either in section 100 or elsewhere in the statute, to suggest that the certificate is nullified if foreclosure proceedings are not Concluded within that time and the tax collector thereupon resells the property for subsequent delinquent taxes. ² We simply may not read into the statute something that is plainly not there.

As for Bullard v. Hardisty, supra, we there held that the tax collector should not have conducted a second sale before the two-year period for instituting foreclosure proceedings under the first sale had expired,217 Md. at 492, 143 A.2d at 495, and that a petition by the second purchaser to redeem the property in foreclosure proceedings brought by the first purchaser was properly dismissed. Id. at 494, 143 A.2d at 496. We agree with the Court of Special Appeals that Bullard is substantial authority for the principle that if foreclosure proceedings are timely commenced, but have not been judicially terminated, the tax collector may not sell the property a second time; if the proceedings are not otherwise concluded in a reasonable time, his only recourse is to intervene and seek a termination of the action. We clearly stated the controlling doctrine in Bullard :

(T)he decisive issue as we see it is whether the Director of Finance had authority to make the second sale before the time for instituting foreclosure proceedings under the first sale had expired, or, if such proceedings had been commenced in due time before they had been either concluded or abandoned. In the event of such delay as to indicate abandonment, the collector could intervene in the proceedings for the purpose of having them concluded. (Id. at 492, 143 A.2d at 495 (emphasis added).)

Contrary to petitioner's contention, there is no intimation whatever in Bullard that, with a foreclosure action pending, the collector may simply resell the property and by doing so render the first tax sale certificate void; rather the statute and Bullard 's construction of it require the conclusion that the collector must first obtain a termination of that action. We pointed out in that case that the statutory power to sell real property for nonpayment of taxes should be complied with in every particular, and that section 96 of the statute provides that until a final decree foreclosing all rights of redemption is passed, the property continues to be assessed as though no sale had been made, with subsequently accruing taxes being additional liens against the property which must be paid by the tax sale purchaser before the collector will deliver a deed to him. ³ 217 Md. at 493, 143 A.2d at 495-96. The implication from the law, we said, is that during the two-year period in which a bill to foreclose may be filed, there could be no other tax sale, and that "subsequent taxes shall continue to accrue until the purchaser or holder of the certificate of sale has had an opportunity to file his bill and to secure a deed from the collector." Id. at 493-94, 143 A.2d at 496. Although the factual situation in Bullard made it unnecessary to decide whether there could be no sale Beyond the two-year period if suit were filed within that time, we think there is no other reasonable conclusion. The statute allows a purchaser two years within which to file proceedings; to permit the collector to resell immediately upon expiration of the two years would give the purchaser, if he has taken advantage of the statutorily-allowed time in which to file, No time in which to conclude those proceedings no "opportunity to . . . secure a deed from the collector." Id. at 494, 143 A.2d at 496. Since the legislature has not seen fit to impose a time period within which he must do so, See note 4 Infra and accompanying text, and since that is not a proper matter for judicial determination nor for ad hoc determination by the tax collector, it is eminently reasonable to interpret the statute as not permitting resale until the foreclosure proceedings are concluded an event which the tax collector may precipitate by simply intervening for the purpose of having the suit...