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 the same trustees, in the same proceedings and with a view to pay off the same indebtedness for the payment of which the property was sold in the first instance, and the money realized by it is always applied precisely as would have been applied the money bid at the original sale had that money been paid by the first purchaser. The resale is simply an execution of the decree for a sale. Its very name imports that it is not such a new sale as to be a distinct proceeding. [331] When the statute declares that the tax shall be paid each and every time the property shall be “ struck off,” the term “ struck off” must be understood in its usual and accepted sense and not in a narrow, contracted or literal one. “ In common parlance and in the language of the auction room, property is understood to be ‘ struck off ’ or ‘ knocked down ’ when the auctioneer by the fall of his hammer or by any other audible or visible announcement signifies to the bidder that he is entitled to the property on paying the amount bid according to the terms of the sale.” Sherwood v. Read, 7 Hill, 439. In all sales made under a decree in equity the Court is the vendor, acting for and in behalf of all the parties to the cause. The trustee is the mere agent of the Court, and the contract of sale is never regarded as consummated until it has received the sanction of the Court. Schindel v. Keedy, 43 Md. 413; Cunningham et al. v. Schley et al., 6 Gill, 224. If a judicial sale is set aside it cannot be pretended the tax is payable on the amount bid when the property was, in a limited sense, “ struck off,” because, being set aside, though the property was struck off, there was, in fact, no sale. And if, even though the property has been “ struck off” and the sale has been reported, the Court refuses to ratify the sale, there is, by reason of the refusal of the Court to sanction the sale, no sale at all; then, the mere striking off of the property by the auctioneer does not, in a judicial sale at least, create a liability to pay the duty. A literal adherence to the words of the statute would require that the tax be paid every time the property might be “struck off” in judicial sales though the sales were set aside, if the interpretation of the term “ struck off” insisted on for the State were adopted ; and as in such sales the Court is the vendor the tax would, under sec. 77, be payable, not out of the fund—because when the sale is vacated there is no fund—but by the Court—“ the person making the sale.” This obviously was never contemplated. The “ each and every time ” named in sec. 74, manifestly has reference to each and every time there is a completed and consummated sale and a payment of the purchase money. [332] (Decided November 20th, 1896). The design of this legislation was to raise revenue by the imposition of a tax or duty on sales and not on ineffectual efforts to sell; and hence the term “struck off” must be treated as signifying a consummated sale. This seems to be clear from the other provisions quoted above from the Local Code. • The tax is required to be paid by the person making the sale and is declared to be a lien on the property sold. The purchaser by sec. 80 has the right to deduct the tax from the purchase money, but not to deduct a tax due on some other antecedent purchase. In the case at bar, if a double tax or duty were imposed its payment would in fact be thrown on a junior creditor. The lien is given for the tax due and though the vendor is required to pay, it is a lien on the property, and may be discharged by the vendee out of the purchase money which he owes; but the statute nowhere gives him authority to deduct from the purchase money the amount of the tax or duty on some other sale at which he was not the purchaser. Concurring with the Court below, we affirm the order appealed from. Order affirmed.