Eschbach v. Pitts

Le Grand, C. J., delivered the following opinion. This is an appeal from the court of common pleas of the city of Baltimore, under the act of 1849, ch. 88. It appears from the record that Mr. Pitts, as permanent trustee of Mr. George E. Donaldson, an insolvent debtor, sold his leasehold interest in a certain lot of ground in Biddle street, in the city of Baltimore. Against the fund arising from the sale certain claims were interposed, among which, is that of the appellant for the paving of Biddle street.

When the paving was done the property belonged to a Mr. Alcock, who subsequently sold it to a Mr. Hall, who leased it to the insolvent Donaldson. Exceptions were filed to the allowance of the claim of the appellant, which were sustained by the court. The appellant insisted, that the claim for the paving tax was a lien on the property which the trustee sold; this was denied by the other creditors, and their view of the matter was concurred in by the learned judge who decided the case below. By the act of 1805, ch. 110, sec. 7, and the decision in the case of Alexander vs. Gheislin, 5 Gill, 138 , it is made the duty of the trustee of an insolvent debtor to sell the property of the insolvent, free and discharged from all liens and incumbrances, reserving the settlement of all priorities and liens, until the final distribution of the fund.

If, therefore, the paving tax is a lien on the property, the appellant is entitled in the distribution of the estate of Donaldson to a priority over the exceptants. The tax is not imposed on the owner of the property but ⁷⁶ Oil the- property. It is true, a personal action against Mm may be maintained by the city, but this in no manner affects the specific liability of the property. The exigencies of society require there should be a summary mode for the collection of the public revenue, and accordingly, fVona time to time, the legislature have passed acts authorising the collection of public taxes by sale and distress.

The act which particularly bears on this case, is that of 1840, ch. 63. It authorises the Mayor and City Council of Baltimore “to provide by ordinance or otherwise, for the prompt collection of taxes due to the city of Baltimore, and to that end may and shall have power to sell real as well as personal property, anything in any act or acts of Assembly, to the contrary, notwithstanding.” In pursuance of the power thus conferred the Mayor and City Council passed the ordinance No. 13, which was approved March 9th, 1841. The second section provides, where the taxes are not paid within a certain specified time, that it “shall and may be lawful for the collector of the city, and he is hereby authorised and required, after thirty days previous notice by advertisement as aforesaid, to sell to the highest bidder such lot or lots of ground, or such parts thereof, as may be sufficient to discharge the said taxes, costs and charges.” The third section of the same ordinance relates more specifically to “paving” tax, and makes it the duty of the collector to enforce the payment of the same. I regard this ordinance as but a legitimate exercise of the power conferred by the act of 1840, ch. 63.

It authorises the sale of real as well as personal property. There can be no doubt, that prior to the passage of these laws, personal property found on the premises coaid be sold for taxes due on the realty, and I regard the act of 1840, and the ordinance of 1841, as designed to give the same control over the realty as was