Benzinger v. Gies

Briscoe, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellant, Harry M.. Benzinger, administrator c. t. a. of Mary A. [707] Myers, to recover certain leasehold property situated in Baltimore City, and now in the possession of the appellee. The defendants assert title under a deed dated the 30th day of March, 1893, from Lewis N. Hopkins, Collector of Taxes of the city of Baltimore, made in pursuance of a sale of the property for taxes, due and in arrear for the years 1889 and 1890. The deed and the tax sale proceedings are attacked by the appellant, and the questions here involved turn upon the deed and the sufficiency of this sale. There are two grounds of objection relied upon by the appellant to the validity of the deed, and the tax sale; first, because the Collector failed to give a legally sufficient notice of the sale, and secondly, because the description of the property given by the Collector in the advertisement of sale was defective, and was not according to the requirements of law, in that it failed to designate the property to be sold, with such certainty as identified it. If these objections are well taken they are fatal to the appellees’ case, and it will not be necessary for us to consider the other questions raised by the record. It has been too often decided by this Court to need but a passing notice, that the validity of tax sales depends on a substantial compliance on the part of the Collector with all the essential requirements of the statute. The notice required by the statute is jurisdictional. Baumgardner v. Fowler, 82 Md. 631. The power thus conferred being a special one, it must be executed in the manner directed by the statute. In the recent case of Richardson v. Simpson, 82 Md. 159, it is distinctly said, the failure of the officer to give a proper notice of the sale, or his omission to advertise a sufficient description of the property intended to be sold, 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. Now, in the case before us, the report of the Collector states, that thirty days prior to the proceedings bills setting [708] forth the amount of taxes due on the said property "and specifying the year or years for which such taxes were due, were delivered to Mary A. Myers at her residence, 1703 Lemon alley, in the city of Baltimore, the owner of such property; that upon each of such bills so delivered was printed a notice as follows: Notice printed on the tax bill for 1889. 'If this bill is not paid within thirty days from delivery payment thereof will be enforced by distraint or execution.’ ” Code, Art. 81, sec. 49. " And notice printed on the tax bill for 1890. ' If this bill is not paid within thirty days from delivery, a penalty of five per cent, of the gross amount will be added thereto and payment enforced according to law.’ ” Acts of 1890, chapter 205. It appears from the record and is not controverted by the appellee, that Mrs. Mary A. Myers died in the year 1881, so that notice for taxes due for the years 1889 and 1890 could not have been delivered to her at her residence, in the manner stated in the Collector’s report. No other notice is alleged to have been given. The statute prescribes the several and the specific modes by which notice is to be given by the Collector of Taxes in Baltimore City, before he proceeds to collect the same by way of sale and execution. He is required to deliver a copy of each tax bill to the person by whom such taxes are to be paid or one them, if more than one, or at his, her or their last known residence, or to his, her or their agent, or left upon the premises with a notice thereon, that unless the taxes so due are paid within thirty days thereafter, five per cent, of the gross amount thereof will be added to the bill, and at the expiration of thirty days, from the delivery of such bills, and notice, if the same be not paid, five per cent, of the gross amount shall be added to the bill as a penalty and collected in the same manner as the bill itself. Act of 1890, chap. 205. It is quite clear, we think, that neither the requirements of the statute as prescribed by the Code, Art. 81, sec. 49, [709] nor by the Acts of 1890, chap. 205, as to preliminary notice were complied with by the Collector. This being so it is fatal to the appellee’s case, and it becomes unnecessary for us to consider the other questions raised by the record. It therefore follows there was error in granting the prayer which directed a verdict for the defendant under the pleadings and evidence in the case. There was also error in refusing the plaintiff’s first, second and sixth prayers, which contained the law of the case. (Decided June 28th, 1898). The plaintiff’s third, fourth and fifth prayers relate to the admissibility of evidence, and in the view we have taken of the case need not be considered by us. For these reasons the judgment will be reversed, and pursuant to sec. 14, Art. 5 of the Code, a judgment will be entered for the plaintiff for the property described in the declaration, with one cent damages and the costs of this suit in this Court and the Court below. Judgment reversed and judgment under sec. if Art. 5, of the Code.