Guisebert v. Etchison

Bartol, C. J., delivered the opinion of the Court. This is an action of ejectment-instituted by the appellant to recover a house and lot in the town of New ⁴⁸⁵ Market, in BTederick County, in tbe possession of tbe appellees. The plaintiff claims title under a deed from Lloyd H. Herring, collector of taxes, made in virtue of a seizure and sale of the property for taxes in arrear for the years 1870 and 1871. The aggregate amount of State and County taxes for those years was $13.20 ; and including costs at the time of the sale, amounted to $19.80.

The sale to the appellant was for $20. The proof in the case shows that the property sold, consisted of a lot and improvements, with a front of 33 feet and a depth of 330 feet, worth from $600 to $1000. It was also proved that it was susceptible of division; there was a stable on the alley in the rear, which with a depth of 165 feet, one-half of the lot, could have been sold for from $50 to $125 ; that lots upon the alley were frequently so sold. The defence rests upon three grounds : 1st.

That the collector had failed and omitted to give the preliminary notice required by the Code, Art. 81, sec. 49, as amended by the Act of 1872, ch. 384. 2nd. That in the advertisement of sale, no sufficient description was given of the property; it being designated only as “a lot in New Market.” Alexander vs. Walter, 8 Gill, 240 , 241. 3rd. That the sale of the whole lot was excessive ; the collector having sold “more than was sufficient to discharge the taxes and legal charges due thereon,” contrary to sec. 60, Art. 81 of the Code; and that no order or direction was given by the County Commissioners to sell the whole lot as provided by sec. 60. Dyer vs. Boswell, 39 Md., 466 .

We think all these grounds of defence were well taken, and are fatal to the right of the appellant to recover, unless he is right in the position assumed by his prayers, that these objections cannot be made in this case, and that ⁴⁸⁶ the defendants are concluded from raising them by the order of the Circuit Court, ratifying and confirming the sale, made under and in pursuance of Art. 81, sec. 63, of the Code, as amended by the Act of 1872, ch. 384. The decision of the case, therefore, turns upon the construction of the Act of 1872. Before the passage of that Act the law was well settled, that in order to sustain a title derived under a sale by a tax collector, the onus was upon the purchaser to prove affirmatively that the proceedings by the collector were regular and in conformity to the statute, whose provisions must be shown to. have been, in all respects, substantially complied with. Polk vs. Rose, 25 Md., 153 ; Beatty vs. Mason, 30 Md., 410 ; Dyer vs. Boswell, 39 Md., 465 .

The Act of 1872 changed the pre-existing law in some material respects. Instead of requiring the collector to report the sale to the County Commissioners as was provided by the Code, the Act of 1872 requires him “to report the sale together with all the proceedings to the Circuit Court;” and provides that the Circuit Court, “shall examine the proceedings, and if the same appear to be regular, and the. provisions of law in relation thereto have been complied with, shall order notice to be given by advertisement, published in such newspapers as the Court shall direct, warning all persons interested in the property sold, to be and appear by a certain day, in the said notice to be named, to show cause, if any they have, why said sale should not he ratified and confirmed; and if no cause,