Barnes v. Webster

Hbndbrson, J., delivered the opinion of the Court. This appeal is from a decree of an equity court, passed on February 25, 1959, sustaining, without leave to amend, a demurrer to a bill of complaint seeking to set aside a tax sale held on August 8, 1935, and a deed to the Websters from the Treasurer and County Commissioners of Somerset County, dated January 19, 1944, as constituting a cloud upon the complainants’ title to a tract of land containing about 5 acres. The appellees contend that the demurrer was properly sustained on the ground that the bill did not allege that the complainants were in possession. While the demurrer does not in terms challenge the jurisdiction of equity, paragraph (18) does state as a ground of demurrer “that the Bill of Complaint in this cause does not allege that the Plaintiffs are in possession of the property to which these proceedings relate.” We think this statement is sufficient to raise the issue.

It is well settled that a bill to quiet title will lie where the owner is in possession. The ground of equity jurisdiction is that, being in possession, the owner is denied a remedy at law. See Thomas v. Hardisty, 217 Md. 523, 529 , Glorius v. Watkins, 203 Md. 546, 549 , Karger v. Stead, 192 Md. 230, 235 , Homewood Realty Corp. v. Safe Dep. & Tr. Co., 160 Md. 457, 471 , Kelly v. Nice, 141 Md. 472, 477 , Rosenthal v. Donnelly, 126 Md. 147, 154 , Textor v. Shipley, 77 Md. 473, 475 , and Crook v. Brown, 11 Md. 158, 173 .

But the cases make it clear that a complaint must allege possession. See also 4 Pomeroy, Equity Jurisprudence (5th Ed.), § 1396, and Miller, Equity Procedure, § 715. Equity lacks jurisdiction where there is an adequate remedy at law to oust the possessor. It was held in Baumgardner v. Fowler, 82 Md. 631, 640 , that where the lands in question were shown to be wild, uncultivated and unoccupied, and it was not shown that the tax purchasers had taken possession, the owner of record could invoke the aid of equity, although he had no other than constructive possession resulting from legal ownership.

The basis of equity jurisdiction was that ejectment would not lie under the circumstances. The scope of relief at common law, under a bill quia timet ⁴⁷⁶ to quiet title or remove a cloud, has probably been somewhat enlarged by Code (1957), Art. 16, sec. 128. Cf. Shapiro v. County Comm., 219 Md. 298, 301 .

But, unlike the statutes of some states, our statute has not dispensed entirely with the necessity of showing possession, actual or constructive. See Thomas v. Hardisty, supra, and Cherry v. Siegert, 215 Md. 81, 85 . That section authorizes a suit in equity to quiet title by a person “being in actual peaceable possession of lands * * * or, in the event said lands be vacant and unoccupied, in constructive and peaceable possession thereof, either under color of title, or under claim of right by reason of his or his predecessor’s adverse possession for the statutory period * * The bill in the instant case does not allege that the lands are vacant and unoccupied, nor does it allege any other facts tending to show that there is not an adequate remedy at law, which is sole ground of equity jurisdiction. In this respect the bill is clearly open to demurrer.

The appellees further contend that the bill is demurrable on the ground that copies of the various deeds, wills and