Steuart v. Meyer
| Decision Date | 02 July 1880 |
| Citation | 54 Md. 454 |
| Parties | CHARLES C. STEUART and HELEN STEUART v. FREDERICK C. MEYER, and others. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court of Baltimore City.
The bill of complaint in this case prayed that the sale made to the appellee, Frederick C. Meyer, might be declared null and void; and that an injunction might be issued to restrain and prohibit said Meyer from taking possession of the premises in litigation, or setting up or asserting any title thereto under the pretended sale of the 14th of April, 1875, or demanding or receiving from Robert D. Morrison and Thomas R Presstman, receivers, the net rents and profits of said property in their hands as such receivers; and also that an injunction might be issued against the said Morrison and Presstman enjoining and prohibiting them from delivering up possession of said premises to said Meyer or to any one on his behalf, and from paying over to him, or to any one upon his order, the net balance of the rents and profits of said property, collected by them as such receivers. The Court (DOBBIN, J.,) passed a pro forma decree refusing the injunction asked for and dismissing the bill. From this decree the complainants appealed. A further statement of the case is contained in the opinion of the Conrt.
The cause was argued before BARTOL, C.J., MILLER, ALVEY and IRVING, J.
John P. Poe and Bradley T. Johnson, for the appellants.
The sale of the 14th of April, 1875, was absolutely void, because the preliminary notice, required by law, of the sale, was not given, the day of the sale being before, and not after the expiration of thirty days' notice. The proceedings show that notice of the sale was advertised twice a week for four successive weeks, i. e. on March 15th, 19th, 23rd, 27th and 30th--and on April 3rd, 6th, 10th and 14th. The first insertion being on March the 15th, and the last on April 14th, the day of sale. The statute requires, "That whenever it shall become necessary to sell any parcel of ground for the payment of taxes . the auditor, (now City Collector) shall first give thirty days' notice by advertisement published twice a week. that he will sell at public auction on the day in said advertisement mentioned which day of sale shall be after the expiration of thirty days' notice." Code Public Local Law, Art. 4, sec. 874.
A tax sale being in its nature a forfeiture, it is imperatively necessary that all the requirements of the statute prescribing the mode of sale, shall be substantially complied with. And in the construction of the statute, the leaning of the Court will be against the forfeiture. Unusual care is required in obeying the directions of the statute regarding notice. Cooley on Taxation, 334; Polk vs. Rose, 25 Md., 159, 160.
The statute requires the day of sale to be after the expiration of thirty days' notice. This case therefore must be distinguished from those which require an act to be done within thirty days, or on thirty days' notice; for there the act may be done on the 30th day. But where the day of the act must be after the expiration of thirty days' notice, it is manifest that the thirty days must fully expire before the day upon which the act can be done, or in other words the act must be done on the 31st day. The plain intention of such language is to give thirty clear days before the doing of the act. Robinson vs. Waddington, 13 Ad. & El., 753, (66 E. C. L., 753;) Comm. Bank of Oswego vs. Ives, 2 Hill, 356; 3 Chitty's Gen. Prac., 109; Judd vs. Fulton, 10 Barb., 118; Am. Law Register, (N. S.) April, 1877, p. 222; Alex. Br. St., 568, 570.
When the statute requires notice to be given of a certain number of clear days, both the day upon which the notice is served and the day of proceeding is excluded in the computation. Walsh vs. Boyle, 30 Md., 266. In other words, whenever a particular number of days is prescribed, the computation of the number is made by excluding the first day. This is now the universal rule. Young vs. Higgon, 6 M. & W., 52-- overruling ( Castle vs. Burdett, 3 T. R., 623; Rex vs. Adderly, 2 Doug., 463; Wallace vs. King, 1 H. Bl., 13;) Webb vs. Fairmaner, 3 M. & W., 473; King vs. Justices of Cumberland, 4 Nev. & M., 378, 30 E. C. L., 380; Regina vs. Justices of Shropshire, 8 Ad. & El., 173; Mitchell vs. Foster, 12 A. & E., 472; Hardy vs. Ryle, 9 B. & C., 603; Calvert vs. Williams, 34 Md., 672; Walsh vs. Boyle, 30 Md., 267; Sheets vs. Selden's Lessee, 2 Wall., 190; Bigelow vs. Wilson, 1 Pick., 485; Howman vs. Liswell, 6 Cowen, 659; Cornell vs. Moulton, 3 Denio, 12; Kim vs. Osgood, 19 Mo., 60; Gorham vs. Wing, 10 Mich., 486; Windsor vs. China, 4 Greenf., 298; Barr vs. Lewis, 6 Texas, 76; Ryle vs. Maulding, 7 Marsh., (Ken.,) 202; Blanchard vs. Hilliard, 11 Mass., 85; Armstrong vs. Scott, 3 Iowa, 433; Flint vs. Sawyer, 30 Maine, 229; Scott vs. Babcock, 3 G. Greene, (Iowa,) 133; Early vs. Doe, 16 Howard, 610; Burroughs on Taxation, 297; Zouch vs. Empsey, 4 B. & Ald., 512; Trustees of the Lutheran Church vs. Heise, 44 Md., 476.
On this principle of computation, the thirty days which are to expire were not full until the 14th of April. The statute requires, however, the expiration of this time; i. e. thirty clear days--and it could not be said to have expired until the 15th of April.
The sale having been made on the 30th instead of the 31st day, is void. Cooley on Taxation, 335.
The sale is void for the further reason, that no statement of the amount of taxes claimed to be due and in arrear is pretended to have been served on Reinheimer; nor indeed could any have been served upon him, for he died in 1873. Act of 1874, ch. 483, sec. 11; Early vs. Doe, 16 Howard, 610; Cooley on Taxation, 278-79; Blackwell on Tax Titles, Ch. XII, p. 237, (4 th Ed.)
The report of the City Collector avers as follows viz:
"That thirty days prior to the proceedings hereinafter mentioned, bills setting forth the amount of taxes due on the said property to the State of Maryland and to the Mayor and City Council of Baltimore, respectively, and specifying the year or years for which such taxes were due, were delivered to Philip Haschert, employe of John Smith, residing at No. 334 Aliceanna Street, the owner of such property."
Now it is proved in this case that John Smith was not then the owner of the property, nor did he then live there, nor did Mary Haschert ever live on the premises. Vide Act of 1874, ch. 483, sec. 48.
None of the successive owners of the property being non-residents, the notice required by sec. 48 of the Act of 1874, ch. 483, in order to be effectual, must have been a personal notice left with the taxpayer, or at his or her usual place of abode. Notice delivered to a person in possession is wholly insufficient, unless the premises be in the actual occupation of the taxpayer himself.
The collector's official statement is, that bills were delivered to Philip Haschert, employe of John Smith, residing at No. 334 Alice Anna street, the owner of the property. This means, of course, that John Smith was the owner of the property, and that he resided there.
Hence, unless in point of fact No. 334 Alice Anna street was the abode of John Smith, bills left at that place with Philip Haschert, his alleged employe, were clearly insufficient. Now, John Smith did not reside on the premises at the time the bills are alleged to have been delivered to Philip Haschert, nor was he then the owner of the property. The collector's statement is, therefore, erroneous in two essential particulars, to wit: first, in stating that John Smith was the owner of the property; and secondly, in stating that he resided on the premises; and consequently, the sale having been made without the indispensable preliminary notice was void.
Thomas R. Presstman, John Johnson and Orville Horwitz for the appellees.
Under the Act of 1874, ch. 483, the Circuit Court of Baltimore City, in finally ratifying and confirming the sale in this case was exercising a special limited jurisdiction, and the statute not having provided for an appeal from its judgment in such cases, no appeal would lie, and as no appeal could be successfully maintained from its final order of ratification when exercising its special authority, so neither will this Court permit the appellants indirectly to do by appealing to its general jurisdiction, what they could not do by an appeal from its order exercising its special authority. Wilm. and Susq. Railroad Co. vs. Condon, 8 Gill and John., 443; Savage Manf. Co. vs. Owings, 3 Gill, 497; Carter and Wife vs. Dennison, 7 Gill, 157; Kinnear & Willis vs. Lee & Reynolds, 28 Md., 488; Steuart, et al. vs. Meyer, et al., 48 Md., 423.
The Circuit Court of Baltimore City had no jurisdiction in the case presented by the bill.
The matters and things alleged in the bill are matters and things already adjudicated by the Circuit Court in a cause between the same parties.
The matter in controversy has been already heard by the Circuit Court in the case of Ex parte Lot 888, Chas. C. Steuart, et al. vs. Meyer, et al., and decided in favor of the appellees, and from said decision an appeal has been taken to this Court to be here determined.
The only substantial question in the case already disposed of and appealed to this Court, viz., the want of a proper notice was properly disposed of, on the authority of the case of Walsh vs. Boyle, 30 Md., 269. The complainants have a full and adequate remedy at law.
The reasons assigned for the invalidity of the sale were assigned in the effort made to have rescinded the final order of ratification and were overruled. The allegation that a cloud upon the title is a ground for equitable interposition is unfounded. Stuart vs. Palmer, 74 N. Y., 188.
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