County Commissioners v. Clarke

Brent, J., delivered the opinion of the Court. This case is an appeal from the Circuit Court for Prince George’s county, before which proceedings were taken under the Acts of 1867, ch. 186, and 1870, ch. 312, for the ratification of the sale of certain real estate, made by a collector of taxes. Several exceptions have been filed as reasons why the sale should not be ratified, but it is only with the first, second, third, fourth and eighth that we have to deal, as the rulings of the Court below upon the other exceptions were not adverse to, the appellants, and are therefore not before us upon this appeal. The first and second exceptions are substantially the same.

They present the question whether, after a decree has been passed by a Court of Equity for the sale of real estate and trustees have been appointed to make such sale, a collector of taxes has the power to seize and sell the same, or any part thereof, for taxes due. The decree was passed the 9th of ²¹⁹ November, 1865. The taxes for which the land was sold were assessed for the years 1866 and 1867, and the collector’s sale took place the 29th of September, 1870. The land in the meantime had been sold by the trustees, under the decree in the equity case, but exceptions having been filed to the sale, the question of its ratification was still pending.

So that both at the time of the imposition of the taxes and at the time of the collector’s sale, the land in question was under the control and jurisdiction of a Court of Equity. Under these circumstances it was not admissible for a collector to step in, and by a summary distress and sale divest the Court of its jurisdiction, and transfer the question of title to another tribunal. His plain and obvious duty was to apply to the Court for the payment of the taxes due, and as they had full power, the presumption is, that they would have directed their payment through their agents, the trustees, in a manner that would have occasioned no unnecessary delay, while at the same time the rights of all interested would have been properly protected. The third exception is to the notice, upon the ground that it was not left with the party by whom the taxes were to be paid, or at his place of abode, as required by section 49 of Article 81 of the Code.

The notice was left with Rachel M. Berry, one of the executors of John E. Berry, Sr. The taxes were not due during his lifetime, and were therefore not properly chargeable to his executors. The land upon which they were assessed had been devised by the will of John E. Berry, Sr., and his devisees, or some one of them having a present interest, would have been the proper parties upon whom the notice should have been served, if their title and possession had remained undisturbed. But proceedings were instituted in a Court of Equity on the part of creditors to sell the land, and a decree for its sale having been passed, these devisees had no such interest as rendered them chargeable with the taxes due. The property was in the constructive possession of the Court, and there was in reality no one with whom a ²²⁰ notice, as a foundation for a sale by the collector, could have been left.

As before stated, the proper and only course for the collector to pursue, so long as the land continued under the jurisdiction and control of a Court of Equity, was to make an application to that Court for an order that would, according to the circumstances of the case, be effectual in realizing to him the amount of taxes due. The fourth exception is that the notice required by Article 81, section 56, of the Code to be given by the county commissioners, does not appear to have been given according to law, it not appearing that the notice was published “ once a week for four weeks.” The appellants have chosen to rely upon the certificate of the printer, which states that the notice was published “for thirty days, beginning February 21st, 1869.” This is not sufficient proof of a compliance with the requirement of the law. Johnson and Wife vs. Robertson, 31 Md., 488 . It may be that a publication for thirty days was once a week for four weeks, (meaning four