Guisebert v. Etchison

Bartol, C. J.,

delivered the opinion of the Court.

This is an action of ejectment-instituted by the appellant to recover a house and lot in the town of New *485 Market, in BTederick County, in tbe possession of tbe appellees.

The plaintiff claims title under a deed from Lloyd H. Herring, collector of taxes, made in virtue of a seizure and sale of the property for taxes in arrear for the years 1870 and 1871. The aggregate amount of State and County taxes for those years was $13.20 ; and including costs at the time of the sale, amounted to $19.80. The sale to the appellant was for $20.

The proof in the case shows that the property sold, consisted of a lot and improvements, with a front of 33 feet and a depth of 330 feet, worth from $600 to $1000. It was also proved that it was susceptible of division; there was a stable on the alley in the rear, which with a depth of 165 feet, one-half of the lot, could have been sold for from $50 to $125 ; that lots upon the alley were frequently so sold.

The defence rests upon three grounds :

1st. That the collector had failed and omitted to give the preliminary notice required by the Code, Art. 81, sec. 49, as amended by the Act of 1872, ch. 384.

2nd. That in the advertisement of sale, no sufficient description was given of the property; it being designated only as “a lot in New Market.” Alexander vs. Walter, 8 Gill, 240 , 241.

3rd. That the sale of the whole lot was excessive ; the collector having sold “more than was sufficient to discharge the taxes and legal charges due thereon,” contrary to sec. 60, Art. 81 of the Code; and that no order or direction was given by the County Commissioners to sell the whole lot as provided by sec. 60. Dyer vs. Boswell, 39 Md., 466 .

We think all these grounds of defence were well taken, and are fatal to the right of the appellant to recover, unless he is right in the position assumed by his prayers, that these objections cannot be made in this case, and that *486 the defendants are concluded from raising them by the order of the Circuit Court, ratifying and confirming the sale, made under and in pursuance of Art. 81, sec. 63, of the Code, as amended by the Act of 1872, ch. 384.

The decision of the case, therefore, turns upon the construction of the Act of 1872.

Before the passage of that Act the law was well settled, that in order to sustain a title derived under a sale by a tax collector, the onus was upon the purchaser to prove affirmatively that the proceedings by the collector were regular and in conformity to the statute, whose provisions must be shown to. have been, in all respects, substantially complied with. Polk vs. Rose, 25 Md., 153 ; Beatty vs. Mason, 30 Md., 410 ; Dyer vs. Boswell, 39 Md., 465 .

The Act of 1872 changed the pre-existing law in some material respects. Instead of requiring the collector to report the sale to the County Commissioners as was provided by the Code, the Act of 1872 requires him “to report the sale together with all the proceedings to the Circuit Court;” and provides that the Circuit Court, “shall examine the proceedings, and if the same appear to be regular, and the. provisions of law in relation thereto have been complied with, shall order notice to be given by advertisement, published in such newspapers as the Court shall direct, warning all persons interested in the property sold, to be and appear by a certain day, in the said notice to be named, to show cause, if any they have, why said sale should not he ratified and confirmed; and if no cause, or an insufficient cause be shown against the said ratification, the said sale shall by the order of the said Court, he ratified and confirmed, and the purchaser shall have a good title.” *****

The appellant contends that the effect of the order of ratification, by the Circuit Court, under the Act of 1872, conclusively establishes the title of the purchaser notwithstanding any irregularities of the proceedings under which *487 the sale was made, and that the party in possession is thereby precluded from proving that in the seizure and sale of the property, the collector failed and omitted to comply with the provisions of the statute.

In this case the proceedings before the Circuit Court were ex parte, neither the defendants nor any party interested, appeared or excepted to the sale, nor were any of the objections here relied on presented to the Circuit Court. The order of ratification had not the conclusive effect ascribed to it by the appellant.

In our opinion the Act of 1872 is not to be so construed. The power to seize and sell property for taxes is conferred entirely by statute, and as said by Judge Cooley, “a statutory power must be executed according to the statutory directions, and presumptively any other execution is opposed to the legislative will, instead of in furtherance of it. It is therefore accepted as an axiom when tax sales are under consideration, that a fundamental condition to their validity is that there shall be a substantial compliance with the law in all the proceedings of which the sale was the culmination.” Cooley on Taxation, 324.

The Act of 1872, confers upon the Circuit Court, a special and limited jurisdiction, and again to quote from the same learned author, p. 358: “ The importance of this fact appears in that familiar principle that nothing is taken by intendment in favor of the action of a Court of special and limited jurisdiction, but it must appear by the recitals of the record itself, that the facts existed which authorized the Court to act, and that in acting the Court has kept within the limits of its lawful authority. And this principle is applicable to the case of a Court of general jurisdiction, which in the particular case is exercising a special and limited authority, as well as to the case of special Courts created for such special and limited authority only.”

Such being the nature of the jurisdiction conferred on the Circuit Court by the Act of 1872, it follows that where *488 it appears by the record, or by proof, that the material and substantial provisions of the law, have not been complied with, essential to render the sale valid, the order of the Circuit Court is not conclusive.

(Decided 18 June, 1879.)

As we construe the Act of 18*72^ the effect of the order of ratification by the Circuit Court, is to relieve the purchaser from the onus of proving, in the first instance, the regularity of the proceedings, that is, to establish for him a prima faeie case; but leaving it open for the party in possession to offer proof of the irregularity of the proceedings by the collector; apd to assail the title of the purchaser by proving that the provisions of the law have not been complied with. .

For these reasons we think the prayers of the appellant were properly refused, and that there was no error in granting those of the appellees.

As the questions raised by the appellant’s exceptions to the evidence are determined by the views we have expressed, it is unnecessary to notice them more particularly.

Judgment affirmed.