Dyer v. Boswell

Bartol, 0. J., delivered the opinion of the Court. This is an action of ejectment brought by the appellee, to recover from the appellant a tract of land containing one hundred acres, which formerly belonged to Elizabeth Boswell’s heirs, and to which the appellee claimed title under and by virtue of a sale made to him by Charles Ridgely, collector of State and county taxes for the years 1862 and 1863. The sale was made on the 5th day of October, 1865. The defendant filed nine pleas, to which a general replication was filed, and issue being joined, the case was submitted to the Court below without the intervention of a jury. ' In the progress of the trial, the plaintiff abandoned the sale for county taxes, and proceeded to offer evidence of title under a sale for State taxes. Three bills of exception were taken- by the defendant below. The first presents the question of the admissibility of evidence offered by the defendant, that at the time of the alleged levy by the collector for the State taxes of 1863, there was ample persqnal property on the premises to [469] pay the said taxes. In our opinion it was not error to exclude this testimony. The Code, Art. 81, sec. 51, provides that “the real estate of a delinquent tax payer may be sold to pay State taxes, whether there be personal property or not; the collector complying with the provisions of the two preceding sections.” The two preceding sections prescribe the steps to be taken by the collector, in order to collect State or county taxes by levy and sale of property, personal or real, and while by the 50th section it is made his duty to levy first upon personal property for county taxes ; this does not apply to State taxes, for which by the 51st section, the real and personal estate are alike answerable, and the collector may at his option, levy upon either. The last part of section 51, which requires the collector to comply with the provisions of the two preceding sections, has no reference to that part of section 50, directing the collector to levy upon the personal property; hut refers to the other provisions of sections 49 and 50, which proscribe the mode in which.preliminary notice shall be given, and the manner in which the levy and sale shall be made. By reference to the Act of 1844, ch. 236, sec. 5, it will be seen that for the collection of State taxes the collector was authorized to levy upon either the real or personal property of the delinquent. This provision is substantially embodied in sec. 51, Art. 81 of the Code. According to the true construction of this section, the collector may levy upon and sell real estate for State taxes, whether there be personal property on the premises or not. And therefore the evidence offered in the first bill ol exceptions was immaterial, and properly excluded. The second bill of exceptions was taken to the ruling of the Circuit Court upon the prayers, — that of the plaintiff was granted, and the six prayers of the defendant were refused. It is not necessary to notice these prayers separately, or to pass upon the several questions raised [470] by them and argued at the bar ; inasmuch as there are two objections, which in our judgment, are fatal to the plaintiff’s right to recover ; one of them based on the insufficiency of the notice of sale given by the collector, and the other growing out of his omission to set apart a portion of the land, by some certain description, and offer the same for sale before proceeding to sell the whole tract. First. — As to the notice, this declares that the collector would proceed to sell “ by authority, vested in him by the Commissioners of Tax of Prince George’s County, in accordance with the provisions of sections 56 and 59, Article 81 of the Code of Laws.” But those sections refer only to sales of property for County Taxes. The power to sell for State Taxes is not derived from the Commissioners of Tax, nor regulated by sections 56 and 59 referred to in the notice. Inserted in the notice is a statement of the taxes due, viz: County Tax for 1868.......................$2.55 State “ “ ‘‘ ....................... 1.25 The collector not having proceeded according to law in selling for County Taxes, that sale was abandoned by the plaintiff at the trial ; but as the collector by the terms of his notice advertised only a sale lor County Taxes; for that is the effect of declaring that his authority in the premises was derived from the Commissioners of Tax, and his proceeding in accordance with the 56th and 59th sections of Art. 81 of the Code; it is impossible to support the sale, as one made for State Taxes. Second. — It appears in proof that the State Tax due was $1.25 ; the sale was of one hundred acres of land, worth according to the evidence from twelve to fifteen hundred dollars. It was clearly the duty of the collector, to have offered a part of the land for sale, before proceeding to sell the [471] whole. He states in his testimony, that '•“'he thinks he first offered some part of the land, but don’t know what part; don’t know if the part he offered contained five or ten acres, and don’t think he had a right to know ; he did not offer any part by any certain description ; did not offer any part by any certain description, by which the part so offered could be known.” This was nota compliance with the law; such an offer, if any such was made, was equivalent to no offer at all of a part of the land. Article 81, sec. 60 of the Code provides, “ that nothing contained in the last preceding section, shall authorize any collector to sell more of any tract of land, than may prove sufficient to discharge the taxes, and legal charges due thereon.” This express provision of the Code has reference to sales of land for County Taxes; but it merely asserts a general principle which is applicable to sales made by sheriffs and collectors, and which has been often enforced, upon grounds of equity and reason which forbid such officers from selling in mass a whole tract of land, to pay a small sum of money when the sale of one or two acres would be sufficient. On this subject we refer to Nesbitt vs. Dallam, 7 G. & J., 512; Berry vs. Griffith, 2 H. & G., 337; Woods vs. Monell, 1 Johns. Ch. R., 505, 506; Tiernan vs. Wilson, 6 Johns. Ch. R., 411; Stead’s Ex’rs vs. Stead, 4 Cranch, 403. For the reasons stated, we think the Circuit Court erred in granting the plaintiff’s prayer, and in refusing the fifth prayer of the defendant. It has been settled by the cases of Polk vs. Rose, et al., 25 Md., 153; and Beatty, et al. vs. Mason, et al., 30 Md., 416 that it is incumbent upon a purchaser of land, at a sale by a collector of taxes, in order to support his title, to prove that all the requisites of the law subjecting the [472] property to sale for taxes, have been complied with. Unlike judicial sales, there are no presumptions of law in their favor ; but as the collector proceeds in the execution of a special power it must appear affirmatively by proof, that every thing has been done by him in accordance with the law ; without which the title of the purchaser must fail. (Decided 17th February, 1874.) In this case, as we have shown, the collector has failed to comply with the law in the particulars before slated, and without adverting toother defects in his proceedings, for the reasons stated, the judgment of the Circuit Court will be reversed. Judgment reversed.