Mullen v. Brydon

Büriíe, JV, delivered the opinion of the Court. In December, 1909, Andrew Mullen instituted an action of ejectment against the defendants in ¡the Circuit Court for Garrett County for the recovery of four lots of ground, numbered 88, 89, 91 and 92 on the plat of “Bloomington” in that county. After the suit had been brought Mullen died intestate as to these lots, and the plaintiffs, who are his only heirs at law, were made parties. The- defendants appeared and pleaded the general issue plea, and took defense on warrant.

Warrants of re-survey were issued, and locations were made by both parties. These locations correspond. The plea of not guilty interposed by the defendants was in legal effect a confession of possession and ejectment, and put in issue the title to the premises, the right of possession, and the amount of damages. Code, 1904, Art. 75, sec. 71. ⁵⁵⁹ Under tbe issues made by tbe pleadings it was an indispensable condition to tbe plaintiffs’ right to recover tbat they should show a legal title to tbe lots sued for.

Tbe plaintiff in ejectment must recover, if at all, upon tbe strength of his own title, and not by reason of any weakness, or defects of tbe title of the defendant. If it be shown tbat tbe defendant has a good legal title to tbe premises in controversy, or that the plaintiff bad no legal title thereto no recovery can be bad. These principles are elementary in tbe law of ejectment. Tbe record shows tbat tbe title of Andrew Mullen, tbe original plaintiff and tbe father of tbe present plaintiffs, to tbe lots involved in this suit was founded upon and derived from a tax sale and deed made by Richard T. Browning, the collector of State and county taxes of Garrett county.

This sale was made under the provisions of Article 11 of tbe Revised Code of 1878, which were in force in Garrett county at the time tbe sale was made. Tbe tax proceedings on their face show a substantial compliance with tbe requirements of law authorizing tbe sale. Tbe main grounds relied on to defeat tbe action were: First, adverse possession; secondly, that tbe sale was a nullity, because no taxes were due upon tbe lots at tbe time the collector levied upon and sold them. It must be admitted tbat the collector bad no power to levy upon and sell tbe lots, unless tbe taxes upon them were due and in arrear.

Condon v. Maynard, 71 Md. 601 . His power to sell was limited under the act to property upon which the overdue taxes bad not been paid. If the taxes on the lots had been in fact paid prior to the levy and sale the whole proceedings of the collector were null and void, and conferred no title upon tbe purchaser. Tbe invalidity of the proceedings for jurisdictional defects may be availed of by collateral attack upon tbe proceedings.

Crean v. McMahon, 109 Md. 652 , and cases there cited. This case was tried before Judge HeNdeesoN in the Court below, and resulted in a verdict and judgment for the defendants, and from that judgment tbe plaintiff has brought this ⁵⁶⁰ appeal. While a great deal of evidence was introduced at the trial bearing upon the question, of adversary possession we are not at liberty to consider its legal sufficiency for the reason to be presently stated. The evidence shows that in 1865, William A. Brydon was the owner of four military lots, containing about fifty acres each, located within the present limits of Garrett county.

On the 17th