Wolff v. Mayor of Baltimore ex rel. Hax , 49 Md. 446 ( 1878 )

Bowie, J.,

delivered the opinion of the Court.

This case was submitted to the Court below for determination without the aid of a jury upon a statement of facts, including all the evidence appearing in the record transmitted from the Court below to the Court of Appeals in the case of Mary L. Forrest vs. The Mayor and City Council of Baltimore, for the use of Christian Hax, as a part of said statement.

This, like the case referred to, is an action of assumpsit by the appellee against the appellant to recover the amount of certain assessments made by the legal plaintiff below, as a paving tax on certain lots in the city of Baltimore, levied pursuant to the ordinances of said City made in virtue of the charter and Acts of Assembly authorizing the same.

The right and power of the appellee to impose the tax and recover the same by action of assumpsit against the person owning the property when the assessment was made, were thoroughly examined and deliberately determined in the case referred to.

The only distinguishing feature in this case is the manner and time of the transfer of the title in the premises assessed to the appellant.

The application to have the paving done, addressed to the Oitv Commissioner, was signed hy Bartz, as the proprietor, and in the assessment or warrant made by the commissioner the amount due for paving in front of said lot was charged to Bartz as proprietor. The petition was received on the 12th of August, 1870, by the City Commissioner.

The warrant for the collection of the taxes was issued on the'11th of October, 1871; the appellant acquired his right and title to the property on the 20th of January, 1871, intermediate between the filing of the petition and the issuing of the warrant

In the case of Dashiell vs. The Mayor, &c., 45 Md., 615, the tax was erroneously assessed to Mrs. Dashiell, a former proprietor, instead of the defendant, who at the time the paving proceedings were commenced, as well as when the assessment was made, was confessedly the owner of them. In reply to this objection the Court said; “ whatever difficulty this mistake might have occasioned in a proceeding to collect the tax by process of distraint, it is, in our judgment, entirely competent for the plaintiff in this action of assumpsit to show that the defendant was in fact the owner of the lots and therefore liable to pay the tax assessed therefor.”

This case decides only that the actual owner of the lot is liable in assumpsit for the paving tax when the same person is the owner at the commencement and conclusion of the work, although a third person is erroneously described as owner in the warrant.

The question in this case is, which of several persons, who are successively owners between the commencment and the conclusion of the work, is liable for the tax.

To solve this question we must refer to the nature of the tax and the liability of owners in similar cases. The la.w has made no provision for such a change of ownership whilst the work is c‘ in fieri.” The tax is an improvement tax; the property is supposed to be enhanced in value by the work proposed to be done, whilst unfinished the benefit is contingent.

(Decided 28th June, 1878.)

The improvement is appurtenant to the land; only the person owning the land or lot when the paving is completed, can be permanently benefited as a proprietor.

“ Qui sentit commodum, débet sentiré et onus.” Like every other lien or incumbrance to which real estate is liable, the purchaser may by ordinary diligence ascertain its existence and protect himself if he chooses from liability as a purchaser.

The tax is recoverable by distraint against the property itself, but it cannot be a subject of action in debt or assumpsit in the absence of special legislation to the contrary, except against the actual owner after the work is done and completed.

Finding no error in the judgment appealed from, the same is afiirmed.

Judgment afflrmed.