Eschbach v. Pitts , 6 Md. 71 ( 1854 )

Le Grand, C. J.,

delivered the following opinion.

This is an appeal from the court of common pleas of the city of Baltimore, under the act of 1849, ch. 88.

It appears from the record that Mr. Pitts, as permanent trustee of Mr. George E. Donaldson, an insolvent debtor, sold his leasehold interest in a certain lot of ground in Biddle street, in the city of Baltimore. Against the fund arising from the sale certain claims were interposed, among which, is that of the appellant for the paving of Biddle street. When the paving was done the property belonged to a Mr. Alcock, who subsequently sold it to a Mr. Hall, who leased it to the insolvent Donaldson. Exceptions were filed to the allowance of the claim of the appellant, which were sustained by the court. The appellant insisted, that the claim for the paving tax was a lien on the property which the trustee sold; this was denied by the other creditors, and their view of the matter was concurred in by the learned judge who decided the case below.

By the act of 1805, ch. 110, sec. 7, and the decision in the case of Alexander vs. Gheislin, 5 Gill, 138, it is made the duty of the trustee of an insolvent debtor to sell the property of the insolvent, free and discharged from all liens and incumbrances, reserving the settlement of all priorities and liens, until the final distribution of the fund. If, therefore, the paving tax is a lien on the property, the appellant is entitled in the distribution of the estate of Donaldson to a priority over the exceptants.

The tax is not imposed on the owner of the property but Oil the- property. It is true, a personal action against Mm may be maintained by the city, but this in no manner affects the specific liability of the property. The exigencies of society require there should be a summary mode for the collection of the public revenue, and accordingly, fVona time to time, the legislature have passed acts authorising the collection of public taxes by sale and distress. The act which particularly bears on this case, is that of 1840, ch. 63. It authorises the Mayor and City Council of Baltimore “to provide by ordinance or otherwise, for the prompt collection of taxes due to the city of Baltimore, and to that end may and shall have power to sell real as well as personal property, anything in any act or acts of Assembly, to the contrary, notwithstanding.” In pursuance of the power thus conferred the Mayor and City Council passed the ordinance No. 13, which was approved March 9th, 1841. The second section provides, where the taxes are not paid within a certain specified time, that it “shall and may be lawful for the collector of the city, and he is hereby authorised and required, after thirty days previous notice by advertisement as aforesaid, to sell to the highest bidder such lot or lots of ground, or such parts thereof, as may be sufficient to discharge the said taxes, costs and charges.” The third section of the same ordinance relates more specifically to “paving” tax, and makes it the duty of the collector to enforce the payment of the same.

I regard this ordinance as but a legitimate exercise of the power conferred by the act of 1840, ch. 63. It authorises the sale of real as well as personal property. There can be no doubt, that prior to the passage of these laws, personal property found on the premises coaid be sold for taxes due on the realty, and I regard the act of 1840, and the ordinance of 1841, as designed to give the same control over the realty as was previously possessed in regard to the personalty, which being easily removed, and the parties owning the lot on which the tax was imposed frequently becoming insolvent or removing from out the jurisdiction of the State, the city was subjected to great loss. It was to remedy this evil the ordinance was passed. I regard, therefore, the tax as a lien on the realty; as much so as though it were a judgment rendered in a court of law. It is true, it is not said in so many words, anywhere in the act of Assembly, nor in this ordinance, that it shall be a lien. Nor is it said in so many words in any act of Assembly, that a judgment rendered in a court of law shall be a lien on really, but it has been so held for a long time in this State and in England. A judgment is a lien on lands, because — and for no other reason — -the lands are liable tobe sold in satisfaction of the judgment. This was the view of the Court of Appeals, in the case of Miller vs. Allison, 8 Gill & Johns., 38. The principle being adopted in analogy to the statute of Elegit, Westminster the 2nd, 13th Edward 1, ch. 18. Prior to the passage of this statute a judgment was no lien, because until then the land could not be taken in execution. The statute does not point out any particular mode or manner of execution, but pimply authorises the debt to be made out of the land, it is this right, however, to make the debt out of the land, which creates the lien. This being so, I can perceive no difference in principle, between an authority in the Mayor and City Council of Baltimore to make the debt out of the land, and the power of a judgment creditor to do the same thing.

But whatever doubt there may be anywhere, as to the effect of the ordinance of 1841, there ought to be none, I think, in regard to the ordinance No. 24, approved March 28th 1843. That ordinance expressly makes the paving tax “a lien,’ on the property.

In regard to the plea of limitations, it may be'remarked, that it does not very satisfactorily appear, whether the court held the plea good or not. It is admitted that the claim which is set out in the record is correct, its payment being resisted on grounds independent of its verity. It cipes not appear from anything in the record when the work was done, and I cannot therefore see whether it was filed within three years or not. But, apart from this, I know of no principle of limitation, except that recognized in statutes which limits the duration of a Hen. Our statute of limitations applies to actions therein specified, and not to a proceeding like this. Had an action of assumpsit been instituted, perhaps the plea of limitations could have been successfully availed of. In such a case the proceeding would be in personam, and it well might be, that the debtor could avail himself of the statute; but where the claim is enforced against the thing, I repeat, I know of no principle which limits the duration of the lien, except such as is set out in some statute, or which is adopted in analbgy to its provisions. There is none such applicable to this case. For these reasons; I am of opinion the ruling of the Court of Common Pleas ought to be reversed and the cause remanded.

By Judges Écclesiíon and Mason: We concur with our brother, that the order of the Common Pleas ought to be reversed, ibut do not think it necessary to decide anything in regard to the Ordinance No. 13, of 1841. We think that of 1843 all sufficient for the purposes of this case.

Order reversed and cause remanded,.