State v. Second National Bank

McSherry, C. J., delivered the opinion of the Court. The Code of Public Local Laws, Art. 4, relating to Baltimore City, contains the following provisions : “ Sec. 74. ³²⁹ All real estate * * which shall at any time be exposed to sale at public auction within the city of Baltimore * * * shall be subject, each and every time they or any of them shall be struck off, to duties at the following rates.” “ Sec. 75. All real estate, * * goods and effects of deceased persons or insolvent debtors or property sold under an order or decree of any Court, at the rate of fifty cents on every one hundred dollars.” “ Sec. 77. The duties shall be calculated on the sums for which the property or goods so exposed to sale shall be respectively struck off, and shall, in all cases, be paid by the person making the sale.” “ Sec. 79.

The duty imposed on all sales of land, tenements and hereditaments or of any interest therein, at public auction in the city of Baltimore, shall be a lien on the said property when sold as aforesaid.” “ Sec. 80. Every purchaser of lands, tenements or hereditaments, or of any interest therein, purchased at public auction in the city of Baltimore, shall be bound to pay the auction duty on such sale and be entitled to claim the said payment as a credit on his purchase as aforesaid.” In October, 1895, a decree was passed by the Circuit Court of Baltimore City for the sale of certain mortgaged premises, and the sale was made in November following by the trustees named in the decree, and this sale was finally ratified in January, 1896. The purchaser paid to the trustees the sum of one thousand dollars when the property was knocked down, but he defaulted on the balance of the purchase money, and in February a petition was filed for authority to resell the property at the purchaser’s risk. With the consent of the purchaser a resale was ordered and was subsequently made and ratified.

The price realized at the resale was less than the amount bid at the original sale. An audit was then stated wherein the duty of one-half of one per cent, on the gross amount of the original sale was allowed under sec. 74 of Art. 4 of the Code of Public Local Laws ; and wherein, also, a further allowance was made of one-half of one per cent, on the gross amount of the pur ³³⁰ chase money bid at the resale. To the allowance of the duty on the sum bid at the original sale the Second National Bank of Hoboken, a creditor of the mortgagor, filed an exception, which the Court below sustained, except as to the sum of five dollars, that being the amount of the one-half of one per cent, on the sum of one thousand dollars paid to the trustees by the first purchaser. From the order sustaining the bank’s exception, the State claiming a duty on the amounts bid at both the original sale and the resale, has appealed.

The question thus presented is a narrow one. Concisely stated it is this: Is the State of Maryland entitled, under the statute quoted above, to a tax or duty on the sale originally made, which sale turned out to be ineffective because the purchase money never was paid, and also entitled to a further or additional tax or duty on the resale, which was ordered and was had merely to enforce the one that had not resulted in realizing the purchase money bid ? We think the learned Judge below rightly solved this question against the claim of the State. It is obvious the tax or duty is intended to be collected only when there has been a sale that is a consummated sale; and whilst under a judicial resale the property is in fact again put under the hammer, it is put there not as a new, distinct independent procedure, but as a means and solely as' a means to realize the money which the original but defaulting purchaser failed to pay.

The resale takes place under the original decree, supplemented'by an order. It is made by