Suburban Development Corp. v. Perryman

• Decision Date: 05 October 1977
• Docket Number: No. 1,1
• Citation: 281 Md. 168,377 A.2d 1164
• Parties: SUBURBAN DEVELOPMENT CORPORATION, Assignee, v. William D. PERRYMAN.
• Court: Maryland Court of Appeals

Page 168

281 Md. 168

377 A.2d 1164

SUBURBAN DEVELOPMENT CORPORATION, Assignee, v. William D. PERRYMAN.

No. 1.

Court of Appeals of Maryland.

Oct. 5, 1977.

Browne L. Kooken, Landover (Dukes & Kooken, Landover, on the brief), for appellant.

Thomas F. Mudd, La Plata (Mudd, Mudd, Munday & Heinze, P.A., La Plata, on the brief), for appellee.

Argued Before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

PER CURIAM:

We granted certiorari in this case to consider the apparent conflict between Maryland Rule 625a, which gives the circuit court a thirty-day revisory power over its pre-enrolled judgments, and sections 112 and 113 of Article 81 of the Maryland Code (1957, 1975 Repl.Vol.), which declare that tax sale foreclosure decrees shall, except for fraud or lack of jurisdiction, be conclusive. However, we do not reach this question (as the Court of Special Appeals should not have in Perryman v. Suburban Dev. Corp., 33 Md.App. 589, 365 A.2d 570 (1976)), since an inspection of the record reveals that the appellant in the initial appeal, the respondent here, by his own action waived his right to appellate review. Accordingly, the judgment of the Court of Special Appeals must be reversed and the case remanded to that court with direction that it dismiss the appeal. ¹

Following the sale of two Clifton-on-the-Potomac lots by the treasurer of Charles County for non-payment of real estate taxes, the purchaser at that sale, appellant-respondent William D. Perryman, instituted these proceedings in the Circuit Court for Charles County to foreclose the rights to redeem possessed by persons having an interest in the property. When no one answered the petition or otherwise opposed the granting of the relief prayed, the trial judge signed separate foreclosure orders for each of the two lots one filed on September 3, 1975 (Lot 22, Block A), and the other twenty-two days later on September 25 (Lot 18, Block C). Twenty-six days after this first foreclosure order was filed and four days following the second, appellee-petitioner Suburban Development Corporation, a lien creditor, filed its Rule 625 a motion seeking to vacate the two foreclosure orders so as to permit redemption of the lots. The circuit court, having concluded that the revisory power over its judgments authorized by that rule extended to tax foreclosure of the right of redemption actions, by order vacated the decrees as requested. In this order the court also instructed Suburban to file "its Petition For Redemption as to both lots and to tender all sums of money for taxes, interest, costs of sale, penalties and other allowable expenses, on or before the 12th day of January, 1976." When Suburban filed its redemption petition in compliance with this directive, the court ordered that "the amount necessary for redemption of the properties described above (in the petition), be and it is hereby fixed at $532.95 for taxes and interest as to Lot 22, Block A, and the amount of $356.55 for taxes and interest as to Lot 18, Block C, and the amount of $598.25 for all other costs and expenses." ² The record then shows that when (i) the deputy treasurer certified she had received payment from Suburban of all amounts due for taxes, interest and penalties, and (ii) a "RECEIPT OF COSTS" subscribed to by Perryman's attorney was filed reciting "I HEREBY ACKNOWLEDGE the receipt of the sum of $586.25 as costs due as ordered herein," the court directed "that the Bill for Foreclosure be and is hereby dismissed." Thereafter respondent Perryman noted a timely appeal to the Court of Special Appeals, in which he succeeded in having the foreclosure orders of September 3 and 25 reinstated. Perryman v. Suburban Dev. Corp., supra. We conclude, however, that Perryman has, by his own action in accepting payment of the $586.25 under the circuit court decree, effectively forfeited his right to appellate review.

It is a well-established rule in this State that unless the decree also adjudicates a separate and unrelated claim in favor of a litigant, he cannot, knowing the facts, both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal. Kneas v. Hecht Co., 257 Md. 121, 123-24, 262 A.2d 518, 520 (1970); Dubin v. Mobile Land Corp., 250 Md. 349, 353, 243 A.2d 585, 587-88 (1968); Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966); Turner v. Wash. Sanitary Comm., 221 Md....