County Commissioners v. Clarke

When property is Exempted from Seizure and Sale by a Tax collector — Duty of Tax collector — Insuffi- ■ dent, proof of the Publication of the Notice to be given by the County Commissioners in reference to Taxes due and unpaid — Sufficiency of the Notice of the Sale of property for Taxes — Order required by the Act of 1870, ch. 112, upon a Report of the Sale of land for Taxes. After a decree has been passed by a Court of Equity for the sale of real estate, and trustees have been appointed to make the sale, the property is under the control and jurisdiction of the Coqrt, and a 'tax collector has no power to seize and sell the same or any part thereof for taxes due. Where real estate on which taxes are due, lias been sold under a decree of a Court of Equity, the duty of the tax collector is to apply to tlie Court to have the taxes paid out of the proceeds of sale. Tlie certificate of a printer that the notice given by the County Commissioners in reference to taxes due and unpaid, was published for thirty days, beginning Eebruary 21st, 1869, is not sufficient proof that the notice was published “once a week for four weeks,” as required by Art 81, sec. 56, of the Code. Tlie proof in this respect must be affirmative and certain, and not left to conjecture and inference. A notice of the sale of property for payment of taxes due and in arrear, set up “ at the Court House door and at three other of the most public places in tlie comity,” is a sufficient compliance with the requirement in Art. 81, sec. 59, of the Code, that the notice shall bo put up “ at llie. Court House door and at the most public places ill such comity.” It is not required that the notice should be put up at all tlie most public places in the county. The order required by the Act of 1870, eh. 112, to bo given by the Circuit Court, upon the report of a sale of land for taxes in arrear, warning- all persons interested in the property sold to appear by a day certain, and show cause, if any they have, against its ratification, is not final and conclusive; irregularities upon the face of the proceedings in relation to such sale, are open to examination at the final hearing for ratification.

Appeal from the Circuit Court for Prince George’s County. Oil a creditors’ bill filed in the Circuit Court for Prince George’s county, in equity, by Paulina A. Berry and others against Rachel M. Berry and others, a decree was passed on the 9th of November, 1865, for the sale of the real estate of John E. Berry, Sr., deceased, and Daniel Clarke and Alonzo Berry were appointed trustees to make sale of the same. On the 9th of November, 1867, certain portions of this estate •were sold by the trustees. On the 27th of May, 1868, an order of ratification nisi was passed; exceptions were filed to the ratification of the sale, and on the 30th of April, 1869, the Court (Ford and Magruder, J.) passed an order referring the cause to the auditor to make a statement of the claims of the complainants and of the other creditors of the deceased John E. Berry,'Sr., with their relative and positive liens, upon pleadings and proof then in the cause, and such further proofs as might be produced before him upon the usual notice to the respective parties. Pending these proceedings, and while the case was before the auditor, Nathan Masters, a collector of State and county taxes for- the second collection district of Prince George’s county, for the years 1866 and 1867, made sale of a portion of said real estate, and on the 27th of October’, 1870, filed in the Circuit Court of said county a report showing that as such collector he left .at the dwelling house on “Independence,” a part of the real estate of John E. Berry, Sr., deceased, and the place of abode of Rachel M. Berry, one of the executors of John E. Berry, Sr., a statement showing the aggregate amount of taxes of every description, with which the said John E. Berry, Sr., was assessed, with a notice annexed thereto, that unless the taxes so due were paid within thirty days thereafter, he would proceed, by way of distress or execution, to collect the same; that the said taxes so due not having been paid as required, and finding no personal property of any kind out of which to make the same,- he returned to the county commissioners of said county, among others, the said tract of land, containing two hundred and fifty acres, on which the State and county taxes for the years 1866 and 1867 had not been paid, and the amounts due thereon, together with the name of John E. Berry, Srv the person in whose name the saíne was assessed and chargeable with the payment of the same, and certified to the said commissioners that he could find no personal property in the said county liable for or chargeable with the payment of the said taxes. That- thereupon the said county commissioners caused an advertisement, expressing the name of said tract or parcel of land, so far as could be ascertained, and the location thereof, and the amount of taxes due thereon, together with the name of the person chargeable with the payment of the same, to be inserted in the “ Marlboro’ Gazette,” a newspaper published in Upper Marlboro’, in the said county, for thirty days — the first publication having been on the 21st day of February, 1869 — and giving notice, that unless the taxes due on the said land or real estate should be paid to the said collector within the space of thirty days after the completion of the publication of said notice, the land so charged, or such part thereof as might be necessary to raise the sum due thereon, should he sold to the highest bidder for the payment of the same. The report further showed that the time mentioned in the said advertisement having expired, and the said taxes not having been paid, the said county commissioners did direct the collector as aforesaid, after twenty days previous notice, at the Court House door, and at three other most public places in said county, and by publication in a newspaper having general circulation in said county, to sell to the highest bidder the said tract of land, or such part thereof as might be necessary to pay the said taxes so as aforesaid due; and in pursuance of said direction and authority, the collector as aforesaid, having previously given the legal notice, did cause the said land to he advertised for sale for more than twenty days, in the “ Marlboro’ Gazette,” a newspaper published in Upper Marlboro’, in said county, and having general circulation therein, and by notice set up at the Court House door of said county, and at three other of the most public places in said county — the first notice having been on the 9th day of June, 1869, and continued to the 1st day of July, 1869, the day of sale — on which 1st day of July, 1869, at the time and place named in said notice, he offered the said land for sale to the highest bidder, for cash, but receiving no bid for the same, withdrew the said land and postponed the sale. The report further stated that Alonzo Berry, one of the executors of the said John E. Berry, Sr., paid to the aforesaid collector, as such, a portion of the taxes due for the year 1866, leaving a balance due for said year of $46.47; which amount, together with the whole tax for 1867, not having been paid, he, as such collector, left at the dwelling house on said land, the usual place of abode of Rachel M. Perry, one of the executors of the said John E. Berry, Sr., notice of the amount of taxes due on said land, and stating that unless the same were paid within thirty days, with interest, the same would be collected according to.law; which said time having expired, and the taxes not having been paid, the collector as aforesaid proceeded to lay off so much and such part of the land as would be adequate and sufficient to pay the taxes due as aforesaid, and laid off and surveyed forty acres and twenty-eight perches of land. The collector further reported that he then proceeded to advertise the said land, or so much thereof as would be necessary to pay the taxes due, in lots or parcels, on Thursday, the 29th day of September, 1870, at the hour of 12 o’clock, M., (having previously given the legal notice in writing to the owners thereof, by leaving the same at the dwelling house on the premises,) in the “ Marlboro’ Gazette,” and by advertisements set up at the Court House door of said county, and at three other most public places in said county — the first notice of sale having been on the 7th day' of September, 1870, and continued to the 29th day of September, 1870, the day of sale — on which 29th day of September, 1870, at the time and place named in said notices and advertisements, he offered a portion of said land at public sale, for cash, to the highest bidder; he first offered a portion of said lot so laid off as aforesaid, but receiving no bid for the same, he then offered the whole of said lot, containing forty acres and twenty-eight perches, when the same as offered was sold to Luna Alden McCullough, wife of George McCullough, Esq., of Prince George’s county, Maryland, she being then and there the highest bidder for, the same and purchaser of said lot of land, at and for the sum of $360; the said amount being the amount of taxes and interest, and the costs and expenses of sale; and that the said sum of $360, the purchase money for the said land, was paid in cash by the said purchaser to the collector aforesaid. Accompanying ting report were the printed notice of the county commissioners, the surveyor’s certificate, the advertisements of sale of the property, and the certificate of the printer, in which he stated that the notice by the county commissioners of taxes due by the estate of John E. Berry, Sr., deceased, for the years 1866 and 1867, was published in the “Marlborough Gazette” for thirty days, beginning the 21sp of February, 1869; that the annexed notice of the sale of land of the estate of John E. Berry, Sr., deceased, was published for three successive weeks in the “ Marlborough Gazette,” beginning the 9th of June, 1869; and also for three successive weeks, beginning the 7th of September, 1870. On the report of sale the Court, (Magrudeb, J.,) on the 27th day of October, 1870, passed an order of ratification nisi. Exceptions were filed to the ratification of the sale by Laura L. Stewart, a creditor of the estate of John E. Berry, Sr., and a purchaser of a portion of the real estate from the trustees Clarke and Berry, who likewise objected to the ratification of the sale for the following reasons: 1st. Because the said real estate was decreed to be sold by an order of the Circuit Court for Prince George’s county, sitting in Equity, passed in the cause of Paulina A. Berry, et al. vs. Rachel 31. Berry, and others, on the 9th day of November, 1865, and the collector had no right or authority to sell the same or any part thereof, the said real estate being under the control and jurisdiction of the said Court or its officers, but the taxes due on the said real estate were a lien on the said real estate, to be first paid and satisfied by the trustees when the sale of the said real estate should be made by them. 2d. Because the said real estate was decreed to be sold by decree of the Circuit Court for Prince George’s county, sitting in Equity, passed in the cause of Paulina A. Berry, and others vs. Rachel W. Berry, and others, No. 484 — the said decree being dated the 9th day of November, 1865; and under the said decree the trustees made sale of the said real estate, as appears more fully by their report filed in the said cause, and the ratification of the said sale was still pending under the proceedings in the $aid cause, which are referred to at length, and are made a part of this exception as if they were fully set forth herein. And the collector had mo right to interfere with the jurisdiction of the said Circuit Court over the real estate, pending, the proceedings for the ratification of the said sale, and while the rights of parties to the said real estate were suspended by the order of the said Court, passed in the said cause, bearing date the 30th day of April, 1869. 3d. Because the statement and notice left at the dwelling house of Rachel M. Berry, on’e of the executors of John E. Berry, Sr., showing the aggregate amount of taxes with which the said John E. Berry, Sr., was assessed, was improperly left at the residence of the said Rachel M. Berry, as she Avas not the party by Avhom the taxes Avere to be paid — the taxes having accrued after the death of the said John E. B.erry, Sr., and not during his lifetime. 4th. Because the notice required to be given by the county commissioners by Article 81, section 56, of the Code of Public General Laws, does not appear to have been given according to laAAr, it not appearing that the notice Avas inserted once a Aveek for four AAreeks. 5th. Because the second notice Avas improperly left at .the residence of the said Rachel M. Berry, as she was not the party by whom the taxes were to be paid. 6th. Because the said notice was not in accordance with the requirements of the laAV. 7th. Because the collector had no authority to advertise the property under the advertisement of September 7th/ 1870, Avithout first obtaining another order from the county commissioners, in pursuance of the requirements and provisions of Article 81, section 59, of the Code, payment having • been made on account of the said taxes betAveen the date of 'the original order, and the offer of the- property for sale under the said first order, and the date of the advertisement of September 7th, 1870, under which advertisement the property. Avas sold, and the property urns advertised for sale for an amount different from the amount specified in the advertisement of the commissioners, bearing date the 21st day of February, 1869. 8th. Because it does not appear that notice of the said sale was given as required by law. 9th. Because the collector has returned or reported the property sold to a different person from the purchaser named in the schedule of tax sale filed with his report. 10th. Because the collector sold more land than was necessary to defray the proper charges and expenses. And a portion of the said charges and expenses should not be allowed. 11th. Because there was no sufficient notice of the amount of taxes due, and no copy of notice filed with the report. 12th. Because the report does not state where the advertisements of sale were stuck up. 13th. Because the lot laid off is not upon the outlines of said land, and will depreciate the value of the other portion. 14th. Because the charges for costs are excessive, and not according to law. 15th. Because the survey was not made by the county surveyor, nor by a person authorized by order of Court. The Court (Magruder, J.) sustained the first, second, third, fourth and eighth objections and overruled ihe others; and on the 28th of June, 1871, passed an order vacating and setting aside the sale. From this order the county commissioners and the purchaser at the collector’s sale appealed.