Garris v. Dickey

Powers, J., delivered the opinion of the Court. On 5 March 1962 the County Treasurer of Prince George’s County conducted the regular annual tax sale of real estate on which taxes for the year 1961 were delinquent. One of the parcels sold was described as Lots 44 and 45, Block D, and improvements, in the subdivision of Deanwood Park, assessed to Malessia 1 L. Weaver. A Certificate of Tax Sale was issued by the Treasurer to J. Victor Dickey, purchaser.

On 25 February 1964 Dickey filed in the Circuit Court for Prince George’s County a Bill of Complaint to Foreclose Right of Redemption. The bill named numerous defendants, and described several separate parcels of real estate, all bought by Dickey at the same tax sale. Among the defendants listed in the caption was “Melessia L. Weaver, deceased, 206 G Street, N.W. Washington 1, D.C.” The pertinent paragraph in the bill alleged: “That Melessia L. Weaver is the record owner of Lots 44 and 45, Block D & improvements, Deanwood Park, Seat Pleasant 18th Election District. That the amount necessary for the redemption of said property is $127.36 plus taxes, interest and costs since March 5,1962.” In addition to the named defendants, the bill was brought against all of their unknown heirs, devisees, and successors, and against all persons having, or claiming to have, any interest in any of the real estate therein described.

Summonses were issued in the name and for the address of Melessia L. Weaver as shown in the bill, and were returned “non est”. An order of publication was entered and published. An affidavit of title search was filed. An affidavit was made and filed by Dickey’s attorney stating that he had “caused to be mailed to all of the nonresident defendants ⁶²⁰ copies of the Bill of Complaint herein filed, by Registered Mail”.

A decree pro confesso was passed by the court on 29 April 1964 against several of the defendants named in the bill, including Melissa L. Weaver. On 2 June 1964 a final decree was entered in the case, the relevant parts of which decreed that all rights of redemption of Melessia L. Weaver in Lots 44 and 45, Block D & Improvements, Deanwood Park, Seat Pleasant 18th Election District, be and the same hereby are forever barred and foreclosed; and that an absolute and indefeasible estate in fee simple in and to the said property be and it hereby is vested in the plaintiff, J. Victor Dickey. The Treasurer, as directed by the decree, executed and delivered an appropriate deed. A little over four months later, on 6 October 1964, Dolores Weaver Garris filed in the case a Motion to Vacate and Set Aside Final Decree.

A copy was mailed to Dickey’s attorney, who on 16 November 1964 filed an answer to the motion. A copy of the answer was mailed to the attorney who filed the motion for Mrs. Garris. From 16 November 1964 until 9 May 1972 the case was dormant. During this period of 7V2 years there were no proceedings of any kind.

On the latter date new counsel filed a motion for leave to file an Amended Motion to Vacate and Set Aside Final Decree of Foreclosure of Equity of Redemption, joining as co-movants Thelma Weaver Cummings and Clarence Weaver, asserting that the three were the children and sole heirs at law of Malessia L. Weaver, deceased. Leave was granted and the amended motion was entered as filed on 31 May 1972. Dickey, through new counsel, filed an answer. The Weaver heirs later caused to be added as parties Arthur A. Moore and his wife, who had purchased the property from Dickey in 1970, after having occupied it as tenants since October 1964.

Mr. Moore filed an answer, stating that he was the surviving owner, and that his title depended upon a determination of the title that Dickey conveyed to him. The first motion to vacate, filed by Mrs. Garris only, ⁶²¹ alleged that she was a daughter oí Malessia Langford Weaver, that the plaintiff knew the whereabouts of the heirs but did not serve any of them, and that the affidavit of search was fraudulent, in that records of the court indicated who the heirs were and it was known who had been paying taxes on this and other property. Dickey’s answer denied that he knew the whereabouts of the heirs and denied that the records of the court indicated the heirs. It further asserted that he gave the proper notice, that he had written a letter in September 1962 to the record owner advising of his purchase of the property at tax sale, that there had been no administration on the decedent’s estate, although she died in 1954, that he had expended $6,000.00 in improvements on the property, that the movant was guilty of laches, and that the foreclosure decree was conclusive.

The amended motion alleged more facts in more detail, in support of the same contention, that the decree was void. The answer put in issue the significant allegations. An evidentiary hearing on the amended motion to vacate was held before Judge James F. Couch, Jr. on 31 July 1973. Mrs. Garris, Mr. Dickey, and Mr. Moore testified.

Several exhibits were received. Evidence presented to the court showed that Mrs. Weaver, a widow, acquired the property in 1951. She never occupied it, but lived in another house in the same subdivision, a few blocks away. She died in 1954 leaving two daughters.

She also had a stepson whom the daughters looked upon as an heir. She left no will, and there was no administration on her estate until June 1966. At the time of the hearing that administration had not been closed. The address shown for Mrs. Weaver in the land records and tax records was 206 G Street, N.W., Washington 1, D.C., where her sister had lived at one time.

That address was never changed. The property had been sold in 1959 in default of 1958 taxes. Dickey, who was also the purchaser at that sale, filed a foreclosure suit in February 1961. After a decree pro confesso but before final decree in that case the property was redeemed.

Mrs. Garris testified that her sister, Mrs. ⁶²² Cummings, arranged through an attorney for the redemption. The record in that case shows only that this property and the properties of two other owners were redeemed by one petition filed in the names of the record owners of the respective properties. Sometime between March and September 1962 Dickey received a telephone inquiry about the property from a woman whose name he understood to be Dolores Garrett. He told her that he had bid in the property at tax sale, and wanted to know if Mrs. Weaver was going to redeem it.

The caller said, “Of course it will be redeemed again, like I redeemed it the last time”. Dickey asked what her connection was, and if she was related. The caller replied that she didn’t see where that would be any of his business. He testified that he was unable to obtain any other information from her.

On 27 September 1962 Dickey mailed a letter to Mrs. Weaver at the address shown on the records, “the only address I knew”, and enclosed in the same envelope a carbon copy for “Mrs. Dolores Garrett”. In the letter Dickey said that he had bid the property in at the tax sale, that Mrs. Weaver might need some special help in connection with it, and if she would get in touch with him he might be able to help her get the matter straightened out. Mrs. Garris telephoned Dickey in response to the September 1962 letter. She told him that she was a daughter of Mrs. Weaver, and that her mother was dead.

She said that she was redeeming the property. She did not contact Dickey again, nor did she redeem the property. Almost a year and a half later the foreclosure suit was filed. In June 1964 Mrs. Garris went to the court house to pay the taxes, and was told that she was too late.

She saw an attorney, who in October 1964 filed the first motion to vacate the decree. The chancellor filed an Opinion of Court and a decree on 4 October 1973. He ruled that the movants were guilty of laches, which he held barred their right to relief. He found no need to consider the merits of the fraud issue raised by movants.

The decree denied the motion to vacate. The Weaver heirs filed this appeal from that decree. ⁶²³ Appellants here contend that the lower court was without jurisdiction to grant the decree of foreclosure because of Dickey’s failure to comply with certain requirements and because of actions by him which amount to constructive fraud, and contend further that the court erred in holding that their right to relief was barred by laches. We agree with the chancellor that the long and unexcused delay in prosecuting their claim, and the prejudice resulting from it, amounted to laches, and alone was sufficient to bar the appellants from asserting any claim to the property, whether meritorious or not. We choose, however, to consider first the merits of their motion to vacate, for if the motion had no merit, the presence or absence of laches is immaterial.

Let us examine the breadth of our inquiry. Hardisty v. Kay, 268 Md. 202 , 299 A. 2d 711 (1973) involved the reverse of the usual tax sale dispute. There the buyer, after having obtained a final decree foreclosing the right of redemption, balked at accepting a deed and paying the balance of his bid for the property. The former owners filed a petition to compel payment.

The purchaser contended that the decree was binding only upon the defendants. He filed a petition in the lower court to amend the decree by striking the portion affecting the property involved. The trial court denied the petition, holding that it was barred by Code, Art. 81, § 113, from even entertaining it. The trial court then entered judgment against the purchaser for the balance due.

The Court of Appeals affirmed. It quoted from the statute: “ § 113. Decree conclusive. No application shall thereafter be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose . . . .” The Court commented on the meaning of the law, saying, at 208: “The purpose for this provision and the others of ⁶²⁴ this Article is ‘to encourage the foreclosure of rights of redemption by suits in equity courts and for the decreeing of marketable titles to property sold by the collector.’ Art. 81, § 97. ‘In other words, the legislature has declared that the public interest in marketable titles to property purchased at tax sales outweighs considerations of individual hardship in every case, except upon a showing of lack of jurisdiction or fraud in the conduct of the foreclosure.’ Thomas v. Kolker, 195 Md. 470, 475 , 73 A. 2d 886 (1950).

See also Kaylor v. Wilson, 260 Md. 707, 712 , 273 A. 2d 185 (1971). Here, there is no allegation or suggestion of lack of jurisdiction or fraud. We think the legislature has been explicit in its language and clearly expressed its intention that a final decree is conclusive and no application shall thereafter be entertained unless it falls within the exempted categories.” Appellants contend that in securing the decree of foreclosure Dickey was guilty of constructive fraud. They also argue that the lower court lacked jurisdiction to pass the decree of foreclosure, for the reasons that Dickey failed to comply with Maryland Rule 180, that the order of publication was not published once a week in each of four successive weeks, that the requirements for notice where service is by order of publication were not met, and that the affidavit of mailing did not comply with the applicable rule.

The constructive fraud alleged is that Dickey, knowing that, the record owner was deceased, and knowing that the property was redeemed in the earlier foreclosure case by Mrs. Cummings, as an heir, should have named or served Mrs. Cummings in the present case. What amounts to constructive fraud