Mullen v. Brydon , 117 Md. 554 ( 1912 )

In December, 1909, Andrew Mullen instituted an action of ejectment against the defendants in the Circuit Court for Garrett County for the recovery of four lots of ground, numbered 88, 89, 91 and 92 on the plat of "Bloomington" in that county. After the suit had been brought Mullen died intestate as to these lots, and the plaintiffs, who are his only heirs at law, were made parties.

The defendants appeared and pleaded the general issue plea, and took defense on warrant. Warrants of re-survey were issued, and locations were made by both parties. These locations correspond.

The plea of not guilty interposed by the defendants was in legal effect a confession of possession and ejectment, and put in issue the title to the premises, the right of possession, and the amount of damages. Code, 1904, Art. 75, § 71.

Under the issues made by the pleadings it was an indispensable condition to the plaintiffs' right to recover that they should show a legal title to the lots sued for. The plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not by reason of any weakness, or defects of the title of the defendant. If it be shown that the defendant has a good legal title to the premises in controversy, or that the plaintiff had no legal title thereto no recovery can be had. These principles are elementary in the law of ejectment.

The record shows that the title of Andrew Mullen, the original plaintiff and the father of the present plaintiffs, to the lots involved in this suit was founded upon and derived from a tax sale and deed made by Richard T. Browning, the collector of State and county taxes of Garrett county. This sale was made under the provisions of Article 11 of the Revised Code of 1878, which were in force in Garrett county at the time the sale was made. The tax proceedings on their face show a substantial compliance with the requirements of law authorizing the sale.

The main grounds relied on to defeat the action were: First, adverse possession; secondly, that the sale was a nullity, because no taxes were due upon the lots at the time the collector levied upon and sold them.

It must be admitted that the collector had no power to levy upon and sell the lots, unless the taxes upon them were due and in arrear. Condon v. Maynard, 71 Md. 601. His power to sell was limited under the act to property upon which the overdue taxes had not been paid. If the taxes on the lots had been in fact paid prior to the levy and sale the whole proceedings of the collector were null and void, and conferred no title upon the purchaser. The invalidity of the proceedings for jurisdictional defects may be availed of by collateral attack upon the proceedings. Crean v. McMahon, 109 Md. 652, and cases there cited.

This case was tried before JUDGE HENDERSON in the Court below, and resulted in a verdict and judgment for the defendants, and from that judgment the plaintiff has brought this appeal. While a great deal of evidence was introduced at the trial bearing upon the question of adversary possession we are not at liberty to consider its legal sufficiency for the reason to be presently stated.

The evidence shows that in 1865, William A. Brydon was the owner of four military lots, containing about fifty acres each, located within the present limits of Garrett county. On the 17th of April, 1865, he conveyed these lots to the Savage and North Branch Coal Company, reserving, however, in the deed forty-five acres more or less. The four lots in controversy were included in the forty-five acre reservation, a large part of which had been laid out in lots, streets and alleys, and formed part of the town of Bloomington, then called "Llangollen."

In July, 1875, Brydon and wife conveyed the four lots involved in this suit to George G. McKey, and the lots were assessed to him in the assessment of 1876 and were sold under the tax sale referred to for taxes due for the years 1884 and 1885.

In December, 1875, Brydon and wife executed a mortgage to the National Bank of Piedmont on the forty-five acres reserved in the deed to the Savage and North Branch Coal Company, reserving, however, from the operation of the mortgage the lots sold to McKay. The mortgaged property was sold under the foreclosure proceedings, and was bought by the bank, and was conveyed by it in 1903 to Susan V. Brydon, wife of William A. Brydon, and in 1906, Susan V. Brydon and husband conveyed the property to the defendant.

There is evidence in the record tending to show that these lots were included in the forty-five acres reserved by Brydon in the deed to the Savage and North Branch Coal Company, that they were included in the assessment of Brydon, and that the taxes thereon for years 1884 and 1885 were paid by him long prior to the tax sale. This was a matter of fact to be determined by the Court below.

At the conclusion of the case, the plaintiff submitted five prayers, all of which the Court rejected. All of these prayers ignored the vital question as to whether the taxes for the years for which the property had been sold had been paid prior to the levy and sale, and for this reason none of them could have been properly granted.

The defendants' second and third prayers were granted and their first and fourth refused. Their second prayer submitted to the Court, sitting as a jury, the finding of facts which, if found, would make a title by adverse possession in the defendants and thereby defeated a recovery. Their third prayer asserted the proposition that the verdict should be for the defendants if the Court found that William A. Brydon was assessed on the tax books of Garrett county with forty-five acres of land for the years 1884 and 1885, and paid taxes on said land for said years prior to the tax sale given in evidence in this case, and that said forty-five acres included the lots in controversy, notwithstanding the Court should also find that said lots were separately and additionally assessed on said tax books in the name of George G. McKay, and that said McKay did not pay taxes thereon for said years 1884 and 1885. These prayers announced correct principles of law, and there was no special exceptions filed to either of them, and we are not, therefore, at liberty to decide, in the absence of special exceptions, whether there was in the case any legally sufficient evidence to support the hypotheses of facts stated in either prayer.

The plaintiffs reserved one exception to the ruling of the Court on testimony; but this exception was not adverted to in the argument, nor is it alluded to in the brief, and as it does not present any matter of importance we will treat it as abandoned.

Judgment affirmed, with costs to the appellees above andbelow.