Abromatis v. Amos

Thomas, J., delivered the opinion of the Court. This is the second appeal in this case. It is an action of ejectment brought by the appellees in the Circuit Court for Anne Arundel County on the 21st of March, 1912, to recover a farm or parcel of land in that County and the damages sustained by them. Process was issued for Peter Abromatis and was returned by the sheriff, “Served upon Joseph Abromatis, the person in actual possession of the lands described in the declaration, and a copy of the declaration and copy of summons left with him on the 3rd day of April, 1912.” On the 18th of December, 1912, leave was granted to' the plaintiffs to amend the declaration by changing the name of the defendant, who had “been inadvertently called Peter Abromatis,” to Joseph Abromatis, and the amendment was made accordingly.

Joseph Abromatis appeared by counsel and the case was tried on the issue joined on the plea of not guilty. The plaintiffs offered in evidence several deeds for the property mentioned in the declaration, including the deeds to Isaac Amos of William, and produced evidence to show that he died intestate in Harford County, Maryland, on January 6th, 1877, seized and possessed of the property, and that the plaintiffs were his only heirs at law. The defendant then offered in evidence the record of proceedings in a tax sale of the property, made in 1892, for the purpose of collecting taxes levied in 1890, and the several deeds under which the defendant claimed from the purchaser at that sale. This evidence was objected to by the plaintiffs and was admitted by the Court subject to exceptions.

The ³⁹⁷ plaintiffs subsequently filed a motion to strike out the evidence, but the Court overruled the motion. The plaintiffs excepted to that ruling, and the judgment being in favor of the defendant they appealed. This Court held in Amos v. Abromatis, 122 Md. 256 , that the tax sale was void, and that the motion to strike out the evidence should have been granted, and the judgment was reversed and ease remanded for a, new trial. The case was subsequently removed to Baltimore County for trial, and on the 3rd of February, 1915, the plea of not guilty was withdrawn by leave of the Court, and the defendant filed a motion to strike out the return made by the sheriff of Anne Arundel County of the summons issued for the defendant.

This motion having been overruled, the defendant filed a motion to rescind the order of the Circuit' Court for Anne Arundel County granting the plaintiffs leave to amend their declaration. The Court sustained a demurrer to this motion, and the defendant then filed a plea of not guilty, and the case went to trial again on the issue joined on that plea. During the trial the defendant reserved nineteen exceptions to the ruling of the Court on the evidence and the prayers, and has brought this appeal from a judgment on the verdict in favor of the plaintiffs for the property described in the declaration and three hundred dollars damages. The plea of not guilty admitted the possession and ejectment by the defendant, and only put in issue the title to the premises, the right of possession and the amount of damages of which the plaintiffs were entitled.

Code, Article 75, section 71; 1 Poe, secs. 275 and 630; Gibbs v. Didier, 125 Md. 486 ; Wallis v. Wilkinson, 73 Md. 131 ; Brooke v. Gregg, 89 Md. 236 . By agreement of counsel the deeds by which Isaac Amos of William acquired title were omitted from the record, and his title to the property is admitted, and the evidence offered to show that Isaac Amos of William died intestate, and that the plaintiffs are his only heirs at law is not contradicted, ³⁹⁸ so that the exceptions we are to consider are important only in SO' far as they relate to the questions of the defendant’s title and the amount of damages recoverable by the plaintiffs. The second, third, sixth, ninth, tenth, eleventh, fourteenth, fifteenth and sixteenth exceptions are to the rulings of the lower Court excluding the record of proceedings in the tax sale of the property referred to in the first appeal; the deeds from the purchaser at that sale and the successive owners of the land claiming through him, and evidence offered for the purpose of showing that Frank Fisher, to whom the tax bills and notice referred to in section 229 of Article 2 of the Code of Public Local Laws of Anne Arundel County was delivered as “tenant,” was in fact the agent of the plaintiffs. As we understand these exceptions and rulings of the Court, the deed to Peter Abromatis, executed on the 19th of August, 1904, the date of the alleged ejectment of the plaintiffs by the defendant, and the deed from his heirs at law to the defendant were admitted by the Court, for the purpose of showing that the possession of the defendant was bona fide, and that he was therefore entitled to be allowed for any permanent improvements on the property made in good faith.

Tongue v. Nutwell, 31 Md. 302 . Under the rulings of this Court on the former appeal the.evidence embraced in these exceptions was clearly inadmissible for the purpose of establishing title in the defendant. Assuming, without deciding, that notwithstanding the previous decision of this Court and the statement in the report of sale of the treasurer that the tax bill, &c., referred to in section 229 of the Code of Local Laws was delivered to Frank Fisher, “tenant,” it was permissible for the defendant to show that Frank Fisher was in fact the agent of the plaintiffs, the fact of such agency would not cure the defect in those proceedings. As pointed out in the opinion of this Court, section 230 of Article 2 of the Code of Public Local Laws, referred to provided that notice of the levy, &c., should be delivered to the owner, or at his residence, or mailed to him, or con ³⁹⁹ spicuously posted on the premises, whereas the report of sale shows that the notice of the levy, &c., was delivered to Frank Fisher, and we said: “Section 230 does not authorize the delivery of the notice therein referred to to any one except the owner of the property,” and that there was not a substantial compliance with either section 229 or 230 of the law.

The seventeenth exception is to the action of the Court striking out the testimony of the defendant offered for the purpose of showing that he had made improvements on the land. When asked if he had made any improvements he said he had some bushes and stumps moved in 1912. This evidence was objected to by the plaintiffs and admitted by the Couid subject to exception. The defendant was further asked to state what amount he expended for “cleaning up the stumps and removing the bushes,” whereupon the plaintiffs objected and the Court ruled that the evidence offered was not sufficient to support a claim for improvements, and granted the motion to strike it out.

The narr. alleged that the defendant ejected the plaintiffs in August, 1904, and the plaintiffs had offered evidence tending to show that the farm contained from forty to sixty acres of cleared or tillable land, and that the reasonable rental value of the cleared land during the succeeding years was about three dollars per acre a year. The defendant’s witnesses had stated that about fifty or sixty acres of the land was cleared and tillable, and that its rental value was from thirty-five to sixty dollars a year. These estimates were based upon the condition of the land as testified to by the witnesses, and none of them had reference to the rental value as enhanced by the improvements testified to by the defendant as having been made by him in 1912. It is stated in 22 Cyc. 26: “Tn the absence of a statute to the contrary, the general rule is that the amount which a bona fide occupant of lands is entitled to recover for improvements made thereon is not the cost of the improvements to him, but the amount which they enhance the value of the property to the owner,” and this is the rule ⁴⁰⁰ recognized in this State.

Jones v. Jones, 4 Gill, 87 ; McLaughlin v. Barnum, 31 Md. 425 ; Long v. Long, 62 Md. 33 . See also 15 Cyc. 222. Where however the rental value has reference to the improved value a different rule applies. Jones v. Jones, supra.

Without further evidence of the character and extent of the improvements claimed and „the extent to which it enhanced the value of the property, the evidence referred to was properly excluded. The first, seventh and eighth exceptions are to the admission of evidence offered by the plaintiffs to show the rental value of the property on the ground that the witnesses were not qualified to testify. Under section 71 of Article 75 of the Code, the plaintiff in an action of ejectment may recover damages for the ejectment and mesne profits down to the time of the termination of the case, and these mesne profits may be shown by proof of the probable rental value of the property. West v. Hughes, 1 H. & J.