Baumgardner v. Fowler

Briscoe, J., delivered the opinion of the Court. The plaintiffs are residents of the State of Pennsylvania and were the owners of four tracts of land situate in District No. 4 of Garrett County, and known by the patented names of Factories, containing 1,016acres; Mill Seat, 597acres; Pig Iron, 16 acres, and Log Yard, 14 acres. These lands were assessed on the books of Garrett County in the name of Thomas and Henry Baumgardner for the sum of $5,321.00, that is: Factory for $4,065, Mill [638] Seat for $1,195,'Pig Iron for $32.00, and Log Yard at $29.00. Subsequently the interest of Thomas was acquired by the plainriff, John D. Skiles, by deed dated the 22d of July, 1891. The taxes on these lands for the years 1890 and 1891, aggregating the sum of $123.20, remaining due and in arrear,'these four tracts of land were advertised and sold by the Treasurer of Garrett County to satisfy these taxes and were purchased by the defendants, James B. Fowler and.Catharine Burger, for the sum of $206. ■ It is conceded that the appellants never knew of the sale until after the tax deed had been executed, and after the expiration of the time for the redemption of the land. Subsequently an offer was made to redeem by paying the pur-, chase money and all necessary expenses, but this offer was refused by the purchasers. And this bill is filed by the appellants in the Circuit Court for Garrett County, charging that the tax sale was irregular and void, and asking that the Treasurer’s deed be annulled and set aside. The case was considered by the Court below upon bill, answer and proof, and from the order dismissing plaintiff’s bill this appeal has been taken. It has frequently been decided by this Court that the effect of an order of ratification of a tax sale by the Court, under the provisions of Art. 81 of the Code, is to relieve the purchaser from the onus of proving the regularity of the proceedings and to establish a prima facie case, but the party in possession can assail the title of the purchaser by proving that the provisions of the law have not been complied with. But it is contended on behalf of the appellees that the local statute of Garrett County under which this sale was had (Acts of 1890, chapter 566), provides that the order of ratification by the Court shall be conclusive as to the regularity of the Treasurer’s proceedings and of the sale, except in cases of fraud and collusion between the Treasurer and purchaser, and consequently, the appellants here are precluded from inquiring into the regularity of this sale. This was the ruling of the Court below and the ground [639] upon which the plaintiffs bill was dismissed. But we cannot assent" to this contention. In the case of Marx v. Hanthorn, 148 U. S. 172, the Supreme Court, in an opinion by Justice Shiras, lays down the conclusion reached by the Courts upon this subject: “ It is competent for the Legislature to declare that a tax deed shall be prima facie evidence not only of the regularity of the sale, but of all prior proceedings and of title in the purchaser, but the Legislature cannot deprive one of his property by making his adversary’s claim to it, whatever that claim may be, conclusive of .its own validity, and it cannot, therefore, make the tax deed conclusive evidence of the holder’s title to the land.” And Mr. Cooley, in treating the subject in his work on Taxation, says : “ That a tax-deed can be made conclusive evidence of title in the grantee is more than doubtful. The attempt is a plain violation of the great principle of Magna Charta, which has been incorporated in our Bill of Rights, and if successful, would in many cases deprive the citizen of his property by proceedings absolutely without warrant of law or of justice; it is not in the power of any American Legislature to deprive one of his property by making his adversary’s claim to it, whatever that claim may be, conclusive of its own validity. It cannot, therefore, make the tax-deed conclusive evidence of the holder’s title to the land, or of the jurisdictional facts which would make out title. But the Legislature might doubtless make the deed conclusive evidence of everything except the essentials.” Cooley on Taxation, 521. The effect then of the order of ratification in this case, not being conclusive as to the legality of all the previous proceedings, we are brought to the main question in the case, and that is, were the substantial requirements of the statute complied with by the officer in making the sale ? The statute prescribing the notice (Acts of 1890, chapter 566, sec. 52), requires that whenever it becomes necessary for the Treasurer to enforce the payment of taxes by a sale of realty, he shall advertise such real estate, or so much [640] thereof as may be necessary, once a week for three silccessive weeks, in one newspaper published in Garrett County and by handbills set up on and near said property, at the Court-house door and at five other places in the district where the property is located, &c. Now the proof shows that handbills were not posted on or near the property, as required by the statute. The Treasurer who made the sale testified that he did not know where three of the tracts were. This defect of notice we think is clearly fatal to the validity of this sale, and do not find it necessary to examine the other alleged illegalities in the proceeding of the Treasurer. In the case of Richardson v. Simpson, ante p. 155, it was said: “It cannot be seriously doubted that under a summary proceeding, where a special power has been executed * * the failure of the officer to give a proper notice of the sale, * * will deprive him of authority and jurisdiction to proceed at all, and will invalidate the deed which he subsequently makes, even though the sale may have been ratified by the Court.” And as applicable to tax sales, notices required to be given within a certain time, or any prescribed mode, must be so given and are mandatory requirements. Cooley on Taxation, 288. And it will be seen that the omission to advertise land for sale for taxes as required by a statute is not a mere irregularity but is a vital defect, and the validity of all subsequent proceedings depends upon a substantial compliance with such statutory requirement. The notice as required by the statute is jurisdictional. Blackwell on Tax Titles, 396. The case of Textor v. Shipley, 77 Md. 473, relied upon by the appellees, is entirely distinguishable from this. In the application of the rule laid down in Textor v. Shipley, supra, Courts have held that where a plaintiff has the legal title to lands that are wild, uncultivated and unoccupied, he may invoke the aid of a Court of Equity to remove a cloud upon his title, although he has no other than constructive possession resulting from legal ownership. There is no proof here that the tax purchasers have taken possession of [641] these lands under the deed. Consequently the plaintiffs could not sue in ejectment for the recovery of the property. (Decided March 24th, 1896.) For these reasons, we shall reverse the decree appealed from and remand the cause to the end that a decree may be passed declaring the sale and the order of ratification null and of no effect, and that the deed of the Treasurer be can-celled. Decree reversed and caiise remanded with costs.