Textor v. Shipley
| Decision Date | 01 December 1897 |
| Citation | 38 A. 932,86 Md. 424 |
| Parties | TEXTOR v. SHIPLEY. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Action by Anton Textor against Charles Shipley. From a judgment for defendant, plaintiff appeals. Affirmed.
Frederick C. Cook, for appellant. Thomas G. Hayes, for appellee.
Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER ROBERTS, PAGE, and BOYD, JJ.
This is an action of ejectment. The property in controversy is situated in Baltimore city, on the northeast corner of Grindell street and Riverside avenue. The case was tried before the superior court of Baltimore city, without a jury. The learned judge ruled that, under the pleadings and evidence, the plaintiff failed to show in himself any title or right of possession to the property in question. There was a verdict and judgment thereon for the defendant, Charles Shipley. The plaintiff has appealed. A number of questions were discussed at the hearing, but all of them--all that we think necessary to consider--are involved in the main question of the validity vel non of the proceedings in the circuit court of Baltimore, which resulted in the sale of the property mentioned, for the unpaid taxes of 1885 and 1886. The city became the purchaser at the tax sale, and subsequently sold and conveyed it to the defendant Shipley, who is now the appellee. The title of the defendant is founded upon and derived from the tax sale (Burroughs Taxn. 346; Hussman v. Durham, 165 U.S. 147, 17 S.Ct. 253; Hefner v. Insurance Co., 123 U.S. 751, 8 S.Ct. 337); for, although he did not purchase at the tax sale, his grantor, the city, did. In Hefner v. Insurance Co., supra, it is said: "If the tax deed is valid, then, from the time of its delivery, it clothes the purchaser, not merely with the title of the person who had been assessed for the taxes, and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and incumbrances of private persons, and all equities arising out of them." This being so, the controlling question in this case is as to the regularity and validity of the proceedings which resulted in the tax sale at which the grantor of the plaintiff purchased.
During the course of the trial, there was but one exception taken, and that was to the ruling upon the prayers, which resulted in the granting of the defendant's prayer, and the rejection of the four prayers of the plaintiff. By the defendant's prayer it was declared, as we have already seen, that the plaintiff had not shown any title or right of possession. All the rejected prayers are based upon the theory of the invalidity of the tax sale. The first and fourth ask the court to declare that the plaintiff had shown a good and sufficient title and right of possession, and that, therefore, he was entitled to recover. But, as we have seen, the sufficiency of the plaintiff's title prior to the tax sale is immaterial if the tax sale be valid, and whether this sale be valid or not we will briefly inquire.
The grounds of attack, on the tax sale proceedings, as set forth in the second prayer of the plaintiff, are that no levy was made upon the property, and, in the third, that "the tax-sale proceedings show that the city collector failed to leave with the person by whom were to be paid the taxes, *** or at his usual place of abode, a statement showing the amount of taxes due, *** with a notice annexed thereto that, unless said taxes so due were paid within thirty days thereafter, the said city collector would proceed to collect the same by distress or execution, as provided by law." These, together with the objection that the proceedings show that more land was sold than was necessary, constitute the case of the appellant.
First then, in regard to the sufficiency of the levy: It has been often held in this state that, when tax sales are under consideration, it is only necessary that it shall appear that there has been substantial compliance with the law in all the proceedings of which the sale is the culmination, and that the order of ratification is only prima facie, and not conclusive, evidence of the validity of the sale. Guisebert v. Etchison, 51 Md. 478; Steuart v. Meyer, 54 Md. 454; Cooper v. Holmes, 71 Md. 20, 17 A. 711; Richardson v. Simpson, 82 Md. 159, 33 A. 457. It was said in Cooper v. Holmes "that no presumption can be invoked against the regularity of the tax proceedings." We are of opinion that the levy in this case was sufficient. It appears by the return of the collector and bailiff that all the right, title, and estate of the owner were seized and taken by virtue of the laws prescribing the manner of collecting taxes in arrear. We are not to assume that these officers failed to perform their duty. If the plaintiff had any affirmative proof to show that, in point of fact, no actual entry was made, and that, therefore, no legal seizure or taking was possible, it was his duty to produce it. In the case of Duvall v. Perkins, 77 Md. 587, 26 A. 1085, relied on by the plaintiff, it affirmatively appeared that there had been no entry. There was no such evidence in this case. On the contrary, there is indorsed upon the levy the following: "Levy made in presence of J. J. Rock, this 18th May, 1887, by Charles M. Hope, bailiff." The word "levy" itself implies...
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