Oppenheimer v. Levi

Pearce, J., delivered the opinion of the Court. Samuel Ellinger and wife, in 1869, leased the lot of land now in controversy, situated in Baltimore County, to Lena Sachs for ninety-nine years reserving to the said Ellinger and his heirs a yearly rent of fifty dollars payable one-half February 1st, and the other half August 1st; and the lessee covenanted for herself, her personal representatives and assigns to pay this rent and the taxes upon the lot. The leasehold estate therein, by deed of assignment made December 31st, 1884, became vested in the appellee, Jacob Levi, and his wife, Babet Levi, who on February 16th, 1887, assigned the same to Wm. H. Dryden.

In 1890, the taxes for a previous year being in arrear, the fee in the premises was sold by the Collector of Baltimore County to Jacob Levi, the appellee, to whom it was conveyed by said collector on January 23rd, 1891. This deed however, was not placed upon record until June 13th, 1896. Samuel Ellinger died July 6th, 1891, and shortly thereafter his heirs conveyed to the appellant, Amanda Oppenheimer, the reversion in, and the ground rent issuing out of, said lot. On May 8th, 1896, Levi united with Dryden fn conveying to Henry Toner and wife, a lot of ground designated as the lot described in the Ellinger lease, but which through error was made to embrace a lot but fifty feet square, instead of fifty feet by one hundred and fifty feet, and this was conveyed “subject to the annual rent reserved in the orig ³⁰¹ inal lease from Samuel Ellinger and wife to Lena Sachs.

On December 21st, 1900, Toner, whose wife in the meantime had died, conveyed the lot to Jacob Levi, the appellee, subject to the payment of said annual rent. Levi paid the annual rent from the time he acquired the leasehold estate, December 31st, 1884, down to the time of the conveyance by himself'and Dryden to Toner, May 8th, 1896, and Toner paid the same from May 8th, 1896 to December 21st, 1900, when he assigned to Levi, who has refused to pay the subsequently accruing rent, claiming the fee by virtue of said tax sale, and the subsequent assignment to him. Thereupon Amanda Oppenheimer and her husband, on January 15th, 1901, filed a bill alleging all the facts above recited, and averring that the tax sale mentioned and the various subsequent conveyances constituted a cloud upon her title to the reversion and rent, for the removal of which she was entitled to relief in equity. The bill also alleges that at the time of this tax sale, this lot was assessed to Jacob Levi, and had been so assessed for several years, and that the tax sale was void for several reasons, not necessary to enumerate here.

The bill further charges that notwithstanding the assignment from Levi to Dryden in February, 1887, Levi remained, and continued to be, the real owner of the leasehold, and that he paid the ground rent continuously from 1884 to 1896 to Samuel Ellinger and those claiming under him; that' the lot was assessed up to the time of the tax sale, to Levi, and that notice that the taxes were overdue, and that sale would be made if they were not paid, was served upon him, who was the real owner of the leasehold, and as such bound to pay said taxes, and then specifically charges “ that by his fraudulent acts and concealments he encouraged, promoted, and procured the said sale with the intention of acquiring the fee-simple interest in said lot for the trivial sum of $46.00 for which the same was sold ; * * * * and that the payment by him of the purchase-money at such tax sale was but the payment of the taxes and expenses which he was under obligation to pay;” ³⁰² The prayer of the bill is : 1st. That the tax sale may be declared void. 2nd. That the deed from the collector may be declared void and be vacated and annulled. 3rd. That a decree may be passed declaring the appellant to be seised in fee of the reversion in said lot, and to be entitled to collect the rent reserved in the original lease from Ellinger.

The appellee demurred to the bill, and assigned the following grounds : 1st. That the bill stated no sufficient case to' entitle the plaintiff to relief. 2nd. That the Court had no jurisdiction to hear and determine the matter. 3rd. That the plaintiff’s remedy, if any, was in a Court of law. 4th.

That there was a full, complete, and adequate remedy at law. 5th. That the plaintiff had neither the legal title to, nor the possession of the property. At the hearing, the Court sustained the demurrer and dismissed the bill, holding in the opinion filed, that as there was no allegation of possession by the plaintiff at the time the bill was filed, the case was governed by the case of Textor v. Shipley, 77 Md. 474 , and those which preceded it, in all of which it is held that there must be such averment of possession, followed by proof, to warrant a decree for plaintiff. There can be no doubt that such is the general rule of equity, and that as such it is firmly established in this State by numerous decisions.

In Helden v. Hellen, 80 Md. 621 , where a bill filed to remove a cloud upon the title failed to allege possession by the plaintiff, the bill was dismissed on demurrer, the Court saying : “ If the possession is in another, the remedy is by án action of ejectment; * * * * whatever may be the decisions elsewhere, no case in this State has gone so far as to maintain a bill in equity under the facts and circumstances of this case; ” and the rule was reaffirmed in ³⁰³ Keys v. Forrest, 90 Md. 132 , the latest case upon the subject n this Court. But while this is the general rule, there are some recognized exceptions to its application. In Crook v. Brown, 11 Md. 172 , applying the general rule to the facts of that case, Judge Tuck said: “ We know of no head of equity jurisdiction under which this (amendment to the bill) can be maintained. It would be substantially to give to a chancery suit the effect of an action in ejectment. * * * * There are some circumstances under which Courts of equity will amove a party in possession and put in another, but these are cases of peculiar character.” So in Livingston v. Hall, 73 Md. 395 , Judge Alvey said: “To maintain a suit of this character, it is, as a general rule, necessary that the plaintiff should be in the possession of the property.” And in Steuart v. Meyer, 54 Md. 467 , a case arising under a tax sale of property subject to ground rent, relief was granted notwithstanding the plaintiffs were not in possession, Judge Alvey saying: “ They are interested only in the annual ground rents and in the estate of the reversion; they are not entitled to the possession and could not therefore sue in ejectment for the recovery of the property.

Under the circumstances of this case, without resort to a proceeding like the present, the parties would be without adequate remedy for relief against the effect of the prima facie title in the purchaser.” In Textor v. Shipley , 77 Md. supra, it was argued that the decision in Steuart v. Meyer was in conflict with all the other cases in this Court on that subject and overruled the previous cases, but the opinion filed by Judge Robinson on the re-argument in Textor v. Shipley , in which Judge Alvey concurred, explained what were the circumstances alluded to by him in Steuart v. Meyer , and showed that in that case, when the bill was filed, the property in controversy was in the possession of receivers appointed by the Court, and that the plaintiff could not resort to the ordinary remedy by ejectment against Meyer as a disseisor, for the reason that he was not in possession of the property, and that in maintaining the jurisdiction of equity under the peculiar circumstances of that case it was not meant ³⁰⁴ to question the general rule laid down in the earlier cases, “ that those only who have a clear, legal and equitable title to land, connected with the possession; have any right to claim the interference of a Court of equity to give them peace, or dissipate a cloud on title. ” There are decisions elsewhere from Courts of repute that actual possession by a tenant is equivalent to actual possession by the landlord for the purpose of such a bill, but these are not consistent with the decision in Steuart v. Meyer , as explained in Textor v. Shipley , and need not be referred to. There are, however, well established legal principles, applicable to the facts of this case, which, in our opinion, take it out of the general rule and bring it within the exceptions in which equity has jurisdiction. These principles cannot be better stated than in the language of Judge Cooley, extracted from his Law of Taxation: “ Some persons, from their relation to the land or to the tax,.are precluded, from becoming purchasers on grounds which are apparent when their relation to the property and to the taxes is shown. The title to be given on a tax sale is a title based on the default of the person who owes to the public the duty to pay the tax> and the sale is made by way of enforcing that duty.

But one person may owe the duty to the public and another may owe it to the owner of the land by reason of contract or other relations. Such a case may exist where the land is occupied by a tenant, who, by his lease, has obligated himself to pay the takes. Where this is the relation of the parties to the land, it would causé a shock to the moral sense, if the law were to permit this tenant to neglect his duty and then take advantage thereof to cut off his lessor’s title by buying in the land at a tax sale. ***** There is a general principle applicable to such cases, which may be stated thus : That a purchase, made by one whose duty it was to pay the taxes, shall operate as a payment only; he shall acquire no right as against a third party by a neglect of the duty which he owed to such party. This principal is universal and is so entirely reasonable and just as scarcely to need the support of authority.

Show the existence of the duty and the disqualifica ³⁰⁵ tion is made out in every instance.”