Textor v. Shipley ( 1897 )

Fowler, J.,

delivered the opinion of the Court.

This is an action of ejectment. The property in controversy is situated in Baltimore City on the northeast corner of Grindall 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. Borroughs on Taxation, 346; Horseman v. Durham, 165 U. S. 147; Hefner v. North Western Ins. Co., 123 U. S. 751; for although he did not purchase at the tax sale, his grantor, the city, did. In Hefner v. Ins. Co., supra, it is said : “ If the tax deed is valid then from the time of its delivery if 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 is that no levy was made upon the property, and in the third that “ the tax sale proceedings show that the City’s 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; Stuart v. Meyer, 54 Md. 454; Cooper v. Holmes, 71 Md. 20; Richardson v. Simpson, 82 Md. 159. 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, 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 endorsed 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 seizure in the ordinary way by entry. Byer v. Etnyer, 2 Gill, 152; Webster's International Dictionary. But in the next place it was contended that the description of the lot as set forth in the levy or return is faulty and not sufficient. We think, however, it is ample. It could not well have been made more definite, unless it had been described by metes and bounds, which is not necessary. The description is “ all that lot of ground situate in the city of Baltimore, being on the northeast corner of Riverside avenue and Grindall street, improved by a two-story brick dwelling and a two-story brick stable.” The plat filed shows this is an exact location of the premises. Nothing more is required. Land taken in execution need not be described by metes and bounds. The description in the levy is needed for location and identification of the property, and not for exact description. In other words it need not be described with technical accuracy; (Berry v. Griffin, 2 H. & G. 337; Dorsey v. Dorsey, 28 Md. 388; Duvall v. Perkins, 77 Md. 586: Keely v. Saunders, 99 U. S. 441), provided a description is given by which the property may be readily located.

Again, it was contended that the tax sale was not advertised according to the provisions of the Local Code of Baltimore City of 1879, Article 49, sec. 5, which provides that the property to be sold for taxes in arrear shall be advertised for sale once a week for four successive weeks in two daily newspapers published in Baltimore. The sale was made on the 24th December, the day named in the notice, and it was published according to the above section of the Local Code, four successive weeks before the sale, namely, on the 23th November, the 2nd, 9th and 16th of December. The objection that the sale should have been had on the 23d instead of the 24th December, and that therefore the whole proceeding is irregular and void is sufficiently answered by the fact that the sale took place on the day fixed by the notice, and that that day, if not the day immediately following the expiration of the notice, was the next day thereafter. This, in our opinion, was sufficient to constitute a substantial compliance with the provisions of the Local Code relative to giving notice of the sale. We see no objection to the description of the lot as set forth in the advertisement.

It is further objected that there was a failure to give the preliminary notice prescribed by sec. 4, Art. 49 of the Baltimore City Code 1879, which provides that there shall be no distress for arrearages of taxes until the collector shall first give to the person so in arrears, or has left at his or their residence or last known residence or if neither can be found, on the premises, a statement of the indebtedness, and not less than thirty days notice of intention, if bill is not paid in that time, that payment will be enforced by distraint or execution. The tax proceedings show that the statements of indebtedness, commonly called tax bills, were delivered to the wife of the owner or person assessed at his residence No. io Riverside avenue. At the foot of these bills there was the following notice printed : “If this bill is not paid within thirty days from delivery, payment thereof will be enforced by distraint or execution.” It is urged that this notice is fatally defective because the name of the collector does not appear under it. But this objection might be urged with equal force against the statement or tax bill. It has never been supposed that a tax bill must be authenticated by the signature of any one, any more than any other bill or statement of indebtedness. It sufficiently appears that the taxes are due to the city or State, and the name of the collector upon whom the law has placed the duty of collecting them is printed on the tax bills. We are of opinion that the statement and notice taken together show what they are, and that the law in this respect has been complied with. When a delinquent tax-payer receives such a tax bill and notice it is impossible to suppose that there can be any doubt in his mind as to the amount of taxes he owes, and that if he does not pay in thirty days the collector will proceed by way of distraint or execution. It is said, however, that this notice should have been given to or left at the residence pf the plaintiff, who owes the fee. In answer to this objection it is sufficient to say that the notice was properly given to the owner of the leasehold interest under a lease for 99 years, he being the person who under our tax laws is assessed and considered as the owner. Mayor and C. C. v. Canton Co., 63 Md. 218.

(Decided December 1st, 1897).

The rule laid down in Dyer v. Boswell, 39 Md. 471; Margraff v. Cunningham, 57 Md. 585, and other cases, to the effect that where a part of the land taxed is sufficient to pay the taxes in arrear, the collector can sell only such part as has no application to a small city lot having a frontage of only twenty feet and a depth of one hundred and twenty feet, improved by a dwelling, stable and sheds.

Judgment affirmed.