James v. Zantzinger

Delaplaine, J., delivered the opinion ofthe Court. William V. James has appealed here from an order of the Circuit Court for Prince George’s County striking out a final decree which vested in him the absolute and indefeasible title to a tract of 17 acres of land which he had purchased from the County Treasurer at a tax sale. The tract was sold at auction on March 7, 1949, for nonpayment of taxes by the record owner, Richard R. Jacoby. On March 6, 1951, appellant filed a bill in equity to foreclose the right of redehiption of the property.

Two subpoenas were issued for Jacoby. The first was directed to Richard R. Jacoby, R. F. D., Bowie, Maryland; the second to Richard R. Jacoby, R. F. D., Bowie. Both were returned non est. On May 1, 1952, the Court passed the decree appealed from.

The County Treasurer thereupon conveyed the property to appellant by deed recorded on the land records of Prince George’s County. On August 19, 1952, Richard C. Zantzinger, a real estate broker, filed a petition to set aside the decree and annul the County Treasurer’s deed. He alleged that he contracted to buy the property from Jacoby in 1947, and that Jacoby gave him a deed for the propérty in November, 1951, but he failed through inadvertence to have the deed recorded. He also alleged that he sold a portion of the tract to Jack Miller for $2,500, and that Miller built a house thereon at a cost of approximately $7,500.

He complained that appellant bought the tract at the grossly inadequate price of $25, and that the decree would cause Miller to lose an investment of approximately $10,000. He argued that it would not bé equitable for appellant to keep the large benefit which the decree would permit. Petitioner attacked the decree on two grounds: (1) that the Court lacked jurisdiction, and (2) that appellant ¹¹³ was guilty of fraud in obtaining the decree. The chancellor agreed with both contentions.

The Maryland Tax Sales Act provides that the Collector shall deliver to the purchaser at the tax sale a certificate of sale, and the holder of the certificate may at any time after the expiration of one year and a day from the date of sale file a bill in equity to foreclose all rights of redemption of the property. Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of sale, the certificate becomes void. Upon the filing of the bill the Court issues a subpoena for all defendants who are residents of this State. The subpoena warns all defendants to appear on or before a certain day to answer the bill or to redeem the property, and contains a statement that in case of failure to do so a final decree will be rendered foreclosing all rights of redemption.

In any case where two successive subpoenas against a defendant have been returned non est, such defendant is deemed to be served by publication as if he were a nonresident. At the expiration of the time limited in the subpoena and order of publication, the Court passes a decree, which is final and conclusive. If the Court finds for the plaintiff, the decree vests in the plaintiff “an absolute and indefeasible title in fee simple in the property,” free and clear of all encumbrances except taxes accruing subsequent to the date of sale and public easements to which the property is subject. No application shall thereafter be entertained to reopen any such final decree “except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose.” Code 1951, art. 81, secs. 82, 98, 104, 110, 111.

First, the chancellor held that the two subpoenas were fatally defective for two reasons: (1) that Jacoby was not a resident of Bowie, but had moved some time previously to Anne Arundel County, and that appellant could easily have ascertained the correct address where Jacoby could have been served, but instead furnished ¹¹⁴ an erroneous address; and (2) that the address on the second subpoena, “R. F. D. Bowie,” was ambiguous. The law is established that a proceeding to foreclose the taxpayer’s equity of redemption is an action in rem, and therefore when noticé is given by publication to all persons interested in the property or by two subpoenas returned non est, the lack of any provision for personal service on the taxpayer of notice of the pendency of the proceeding is not a denial of due process of law. Gathwright v. Mayor and City Council of Baltimore, 181 Md. 362 , 30 A. 2d 252 , 145 A. L. R. 590. We recognize that the statutory provisions as to notice required to terminate the taxpayer’s right to redeem from a tax sale are mandatory and must be strictly followed.

For example, in Wilke v. Merchants State Bank of Richardton, 61 N. D. 351 , 237 N. W. 810 , the Supreme Court of North Dakota held that proof of the mailing of a notice of the expiration of the period of redemption from a tax sale to the nonresident owner at his “last known place of residence” was insufficient, because the statute required the notice to be mailed to the owner at his “ last known post office address.” However, we are of the opinion that the two subpoenas in the instant casé were sufficient. Each contained Jacoby’s last known address. There is no merit in the contention