Polk v. Rose ex rel. Cinnamond

Goldsborough, J., delivered the opinion of this Court: The appellees, the complainants' below, filed their bill of complaint against the appellant in the Circuit Court for Baltimore city, alleging that they were the owners of certain houses and lots on the north side of Columbia street, in said city, and being seized and possessed thereof, the appellant set up a claim to said lots under an alleged title by a tax deed from Augustus M. Brice, the collector of taxes for the State and city, and that the appellant, by virtue of Ms pretended title, was not only interfering with the appellees right of property by requiring their tenants to pay the rents of the property to him, but that his conduct operated to cast a cloud upon their title. The appellees further allege that they obtained their title to said houses and lots by deed from George R. Cinnamond* trustee, under a decree of the Circuit Court for Baltimore city, by which decree Cinnamo-nd was authorized to sell the above property as the property of one Adam J. List. They further allege and charge that the -sale for taxes under which the appellant claims title, is utterly void under the laws of this State, and after assigning the reasons for this allegation, pray for an injunction for the purposes therein stated and for general relief. Injunction was issued as prayed. The appellant subsequently filed his answer, denying most of the allegations of the bill, but admitting that the appellees obtained a deed from Cinnamon d, trustee, as stated in the bill, but that the sale made by him to the appellees* was not made until seven months after the appellant had purchased from the city collector. [159] A motion was made on the filing of the answer for a dissolution of the injunction, but the Court continued it until final hearing. Commission was issued at the instance of the? appellees to take testimony, which being taken by them, (the-appellant declining to take any,) and the commission returned,, the cause was set do»& for final hearing, and being heard,» the Circuit Court on the 21st day of December, 1864, passed a final decree making the injunction perpetual, and further-decreed that the de-iidlfrom Price to the appellant “be declared utterly null and void, so far as it covers or affects the lot? belonging to the complainants mentioned in the proceedings.” In the review of the merits of this case, we propose to examine the claim and pretentions of the appellant. He relies on his title derived through the deed from the collector;- and it becomes imprtant to ascertain what are the requisitions of the law to make such a title valid. To sustain the' power of the collector which is a specially delegated one and must he strictly pursued, see 10 G. & J., 374, 11 G. & J., 56. 7 H. & J., 79. A series of the acts preliminary in their character, are required by law to precede the execution of the power. Each and every step, from the-assessment of the property for taxation, to the consummation ©f the title by delivery of the deed to the purchaser, ia a separate and independent fact. All of these facts from the beginning to the end of the proceeding must exist, and if any material link in the chain of title is wanting, the whole is defective for want of sufficient authority to support it. • The party claiming under the power is chargeable withnotice of every irregularity in the proceedings of the officers, and the-onus is upon him to show the faithful execution of the power.. This requisition is especially applicable to the purchaser at a tax sale. There is no hardship in,this. At such sales itt is notorious that the amount paid by purchasers is uniformly trifling in comparison with the value of the property sold»!— [160] See Blackwell on Tax Titles, 65. While the maxim of law '•'■omnia rite jprcesiimuiUv.r is appropriate only to judicial proceedings, no intendment in respect to the exercise of it is to be made in favor of a specially delegated power; so that every act, the performance of which is made a condition precedent to the validity of the acts of a special agent, whether appointed for a public or private purpose, must be be shown by proof. The omis is upon the purchaser at a tax sale, he must establish affirmatively that the officers acted strictly in conformity with the law. The acts of the officers are matters in pais; their existence is not made out by intendment but must be proved. Tested by this exposition of the law, has the appellant offered any evidence of the validity of his tax title ? He took none under the commission. He.cannot rely upon his answer to the bill under sec. 103 of Art. 16 of the Code. Nor upon the recitals in his deed, for it is stated in Blackwell 73 that “the recitals in a tax deed are not evidence against the owner of the property, but the facts must be established by proof aliundeP This rule of law is sustained by numerous authorities cited by the author. While the appellant has failed to show the regularity of the proceedings of the collector as preliminary to the validity of his title, the evidence in the record offered by the appellee’s, exhibits numerous irregularities. It appears from the evidence of Adam J.List, that he resided on the premises sold, at the time of the levy and sale; that he had personal property amply sufficient to pay the taxes alleged to be due, but no distraint was made thereon. In this, the collector failed to comply with the 50th section of the 81st Art. of the Code. He also failed to make any return to the Appeal Tax Court, that he could find no personal property as required by the 54th section. He also failed to perform the duty imposed on him by the 60th section. It is [161] in evidence that the property liable for taxes, consisted of two separate houses, and that the lot on which they stood was susceptible of division, and that either of the houses would have sold for a sum more than sufficient to pay the taxes due, and yet the collector, disregarding the provisions of the 60th section, sold the whole without any regard to the rights of the owners. The appellant, however, insists, that the appellees are not entitled to the relief they seek, because a Court of Equity lias no jurisdiction to grant it, but that the remedy of the appellees, if they have any, is at law; and that if the Court as a Court of Equity has jurisdiction, still the allegations in the bill are defective, and subject to exception, because the complainants, in claiming title to the property in question, have failed to exhibit the judicial authority under which George R. Cinnamond, professing to act as trustee, sold the same to them. 2nd, Because there is no averment that the taxes were not due, or that any other person ever paid them. There are other exceptions designed to show that the averments in the bill arc defective. These, with the others, will be hereafter considered. We shall first consider the question of equity jurisdiction, and upon this we entertain no doubt. The bill in this case, is a bill quia timet. The complainants allege that the defendant is vexatiously using his pretended deed and title thereunder against them, not only interfering with their tenants by demanding rent from them, hut is throwing a cloud or suspicion over their title. In such case, a Court of Equity may decree that the deed of a party thus acting be can-celled. See 1 Story's Eq., section 694. See also, Blackwell on Tax Titles, 482, whore it is said: “ Should a sale and conveyance take place under the proceedings alleged to be illegal, the owner, because of his possession, could not test [162] their legality by an action of ejectment.” See also, Holland vs. The Mayor & C. C. of Bdltimore, 11 Md. Rep., 197. (Decided June 27th, 1866.). In this case, this Court fully recognized the jurisdiction of Courts' of Equity, because it will prevent a multiplicity of suits, and will not allow a title otherwise clear to be clouded by a claim, which, cannot be enforced either at law or in equity. In the case at bar, the appellees could not resort to an action at law,, because they have not been, dispossessed. The conclusions arrived at in the case of' Holland vs. The Mayor & C. C., and the authorities there cited’, are conclusive on this point. The objection of a want of averment, that the taxes were not due, or that any person had paid them, has no'force. On the contrary, the fact that the taxes were due and unpaid, formed a part of the' appellant’s proof, upon udiieh he must rely to establish his title. Though there is no'special prayer in the bill for a cancellation of the appellant’s- deed, we think the Court below had authority to extend that relief under the-general prayer for relief. The objection that the appellees have not. exhibited the authority under which Cinnamond, as trustee, sold the property, is not tenable. It wus a judicial- sale, and the power to sell being recited in the deed given to the appellees, the maxim “id cerium est, quod certu-m, reddi potest f is applicable, as is also the maxim, “ omnia rite prmsumunhur.” He will sign a decree affirming the decree of the Circuit Court, with costs to the appellees. Decree qffirnwd^