Mullen v. Brydon

Büriíe, JV, delivered the opinion of the Court.

In December, 1909, Andrew Mullen instituted an action of ejectment against the defendants in ¡the Circuit Court for Garrett County for the recovery of four lots of ground, numbered 88, 89, 91 and 92 on the plat of “Bloomington” in that county. After the suit had been brought Mullen died intestate as to these lots, and the plaintiffs, who are his only heirs at law, were made parties.

The- defendants appeared and pleaded the general issue plea, and took defense on warrant. Warrants of re-survey were issued, and locations were made by both parties. These locations correspond.

The plea of not guilty interposed by the defendants was in legal effect a confession of possession and ejectment, and put in issue the title to the premises, the right of possession, and the amount of damages. Code, 1904, Art. 75, sec. 71.

*559 Under tbe issues made by tbe pleadings it was an indispensable condition to tbe plaintiffs’ right to recover tbat they should show a legal title to tbe lots sued for. Tbe plaintiff in ejectment must recover, if at all, upon tbe strength of his own title, and not by reason of any weakness, or defects of tbe title of the defendant. If it be shown tbat tbe defendant has a good legal title to tbe premises in controversy, or that the plaintiff bad no legal title thereto no recovery can be bad. These principles are elementary in tbe law of ejectment.

Tbe record shows tbat tbe title of Andrew Mullen, tbe original plaintiff and tbe father of tbe present plaintiffs, to tbe lots involved in this suit was founded upon and derived from a tax sale and deed made by Richard T. Browning, the collector of State and county taxes of Garrett county. This sale was made under the provisions of Article 11 of tbe Revised Code of 1878, which were in force in Garrett county at the time tbe sale was made. Tbe tax proceedings on their face show a substantial compliance with tbe requirements of law authorizing tbe sale.

Tbe main grounds relied on to defeat tbe action were: First, adverse possession; secondly, that tbe sale was a nullity, because no taxes were due upon tbe lots at tbe time the collector levied upon and sold them.

It must be admitted tbat the collector bad no power to levy upon and sell tbe lots, unless tbe taxes upon them were due and in arrear.

Condon v. Maynard, 71 Md. 601 . His power to sell was limited under the act to property upon which the overdue taxes bad not been paid. If the taxes on the lots had been in fact paid prior to the levy and sale the whole proceedings of the collector were null and void, and conferred no title upon tbe purchaser. Tbe invalidity of the proceedings for jurisdictional defects may be availed of by collateral attack upon tbe proceedings.

Crean v. McMahon, 109 Md. 652 , and cases there cited.

This case was tried before Judge HeNdeesoN in the Court below, and resulted in a verdict and judgment for the defendants, and from that judgment tbe plaintiff has brought this *560 appeal. While a great deal of evidence was introduced at the trial bearing upon the question, of adversary possession we are not at liberty to consider its legal sufficiency for the reason to be presently stated.

The evidence shows that in 1865, William A. Brydon was the owner of four military lots, containing about fifty acres each, located within the present limits of Garrett county. On the 17th of April, 1865, he conveyed these lots to the Savage and North Branch Coal Company, reserving, however, in the deed forty-five acres more or less. The four lots- in controversy were included in the forty-five acre reservation, a large part of which had been laid out in lots, streets and alleys, and formed part of the town of Bloom-ington, then called “Llangollen.”

In July, 1875, Brydon and wife conveyed the four lots involved in this suit to George G. McKey, and the lots were assessed to him in the assessment of 1876 and were sold under the tax sale referred to- for taxes due for the years 1884 and 1885.

In December, 1875, Brydon and wife executed a mortgage to the National Bank of Piedmont on the forty-five acres reserved in the deed to the Savage and North Branch Coal Company, reserving, however, from the operation of the mortgage the lots sold to McKay. The mortgaged property was sold under the foreclosure proceedings, and was bought by the bank, and was conveyed by it in 1903 to Susan V. Brydon, wife of William A. Brydon, and in 1906, Susan V. Brydon and husband conveyed the property to the defendant.

There is evidence in the record tending to show that these lots were included in the forty-five acres reserved by Brydon in the deed to the Savage and North Branch Coal Company, that they were included in the assessment of Brydon, and that the taxes thereon for years 1884 and 1885 were paid by him long prior to the tax sale. This was a matter of fact to be determined by the Court below.

*561 At tbe conclusion of tbe case, tbe plaintiff submitted five prayers, all of wbicb tbe Court rejected. All of these prayers ignored tbe vital question as to whether the taxes for tbe years for wbicb tbe property bad been sold bad been paid prior to tbe levy and sale, and for this reason none of them could have been properly granted.

Tbe defendants’ second and third prayers were granted and their first and fourth refused. Their second prayer submitted to the Court-, sitting as a jury, tbe finding of facts which, if found, would make a title by adverse possession in the defendants and thereby defeated a recovery. Their third prayer asserted tbe proposition that tbe verdict should be for the defendants if tbe Court found that William A. Brydon was assessed on the tax books of Garrett county with forty-five acres of land for 'the years 1884 and 1885, and paid taxes on said land for said years prior to tbe tax sale given in evidence in this case, and that said forty-five acres included tbe lots in controversy, notwithstanding tbe Court should also find that said lots were separately and additionally assessed on said tax books in tbe name of George G. McKay, and that said McKay did not pay taxes thereon for said years 1884 and 1885. These prayers announced correct principles of law, and there was no special exceptions filed to either of them, and we are not, therefore, at liberty to-decide, in the absence of special exceptions, whether there was in the case any legally sufficient evidence to support the hypotheses of facts stated in either prayer.

The plaintiffs reserved one exception to the ruling of the Court on testimony; but this exception was not adverted to in -the argument, nor is it alluded to in the brief, and as it does not present any matter of importance we will treat it as abandoned.

Judgment a-jjirmed, with costs to the appel-lees above and below.