Textor v. Shipley

Robinson, O. J., delivered the opinion of the Court. The appellant was the owner of the reversion in the lot of ground now in controversy, and one Charles H. Black was the owner of the leasehold interest. The city taxes for the years 1885 and 1886, being in arrear, the fee in the property was sold at public auction for the payment of these taxes, and was bought by Louis N. Hopkins, collector of city taxes. The sale was duly reported to the Circuit Court for Baltimore City, and was finally ratified.

On the 11th September, 1889, Hopkins, as collector, in pursuance of the ordinances of the Mayor and City Council, conveyed the fee to the Mayor and City Council of Baltimore, and on the 28th of December, 1889, the property was sold by the latter at public auction to Charles. Shipley, and by Shipley it was leased for ninety-nine years to Elizabeth Black. On the 13th of April, 1891, — more than three years after the property had been sold for taxes, — this bill was filed by the appellant for the purpose of removing the cloud cast on his title by the tax sale, and conveyances to which we have referred. The appellant alleges that he is the owner of the reversion, and that Charles H. Black was the assignee of the leasehold interest — that the property had been sold for taxes, but charges that the proceedings under which it was sold were irregular and defective, — that it was the duty of Black, the tenant, to pay the taxes; nevertheless, contrary to his duty in the premises, he entered into an unlawful arrangement with Shipley, by which the latter purchased the property and executed a lease of the same to Elizabeth Black, wife of Charles H. Black, the assignee of the leasehold.

The appellant prays that the deeds from Hop ⁴⁷⁵ kins, city collector, to the Mayor and City Council, and from the latter to Shipley, and the lease from Shipley and wife to Elizabeth Black, be declared void, and for other relief, &c. The demurrer to the bill was sustained by the Court below, and we think properly sustained, because it did not allege that the appellant was in possession of the property at the time the bill was filed. The object of a bill to remove a cloud upon title, or to quiet the possession of real estate, is to protect the owner of the legal title from being disturbed in his possession, and from being harassed by suits in regard to his title by persons setting up unjust and illegal pretensions; and it may be said, as a general rule, that the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff. Polk vs. Pendleton, 31 Md., 118 .

In such cases, one being in possession, he cannot have a remedy at law, and is obliged therefore to seek the aid of a Court of equity. If, however, the possession is in another person, his remedy is by an action of ejectment, and there is no ground for the interposition by a Court of equity, and for the reason that he has an adequate remedy at law. The*demurrer having been sustained, the bill was amended by averring that in pursuance of his right, and by virtue of the deed from Robert Rennert and wife to him, the appellant entered into possession of the annual rent or reversion thereby granted to him, and that the assignee of the leasehold interest attorned to him by the payment of the annual rent accruing under the lease. And to the amended bill the appellee again demurred.

The demurrer admits, of course, only such facts as are properly pleaded; and if facts are pleaded which are insufficient in substance or immaterial, such facts are not admitted by the demurrer to be true. And, this ⁴⁷⁶ being so, the averments in the original and amended bills, that the proceedings in the tax sale were defective and irregular, and that the deeds referred to were void, and created a cloud on the appellant’s title, — these and other like averments, — were insufficient in substance, and immaterial, without the additional averment, that the appellant was in possession at the time the bill toas filed. And there is no such averment either in the original or amended bill. He does aver in the amended bill, that he entered into possession of the annual rent or reversion, and that the assignee of the leasehold interest duly attorned to him by the payment of the annual rent accruing under the lease.

These averments may be true. The appellant may have acquired the legal title to the property by the deed from Rennert and wife to him, and he may have been at one time in possession through Black the assignee of the leasehold interest, because the possession of the lessee was the possession of the lessor or reversioner. But the several deeds filed by the appellant as exhibits and part of his bill, show that tK§ entire fee in the property had been, sold for the payment of city taxes, which were paramount liens on the property before the appellant acquired the legal title under Rennert’s deed. The title of the appellant to the reversion was subject to this lien; and when the lien was enforced by due and proper proceedings, the title of the appellant in the reversion and the title of the owner of the term of years or leasehold interest, were both gone.

And this being so, the appellant had neither the legal title, nor had he possession. The legal effect of the tax sale which was reported and ratified by the Circuit Court, was to vest, prima facie, the fee simple title in Hopkins, the purchaser, and his grantees. And though the draughtsman of this bill has displayed no. little ingenuity in setting