43 A. 857 | Md. | 1899
This is an appeal from a judgment of the Superior Court of Baltimore City, on a verdict rendered by the Court, sitting as a jury, in an action on the bond of William Woodward Baldwin, guardian of Columbus C. Baldwin, brought in the name of the State of Maryland for the use of D. Frank Hull, Collector of State and County Taxes for Washington County. In the case of Baldwin v.Washington County,
1. The first question to be considered is, whether the defendants, who are sureties on the bond, are responsible, even conceding their principal to be so. It will be admitted at the beginning of the discussion that it does not necessarily follow that sureties on a guardian's bond are liable because the guardian is. Their responsibility must depend upon the extent of the obligation created by the terms of the bond and the statutes which can be read into it. This bond is in the exact language of that prescribed by the statute, and therefore is unlike the one in State v. Hill et al.,
Their liability for the property certainly did not cease when the ward became of age, but they could be sued at any time within twelve years from that date, at least for the benefit of the ward, if the guardian did not account with him during that time.State, use Henderson v. Henderson,
The requirement to pay taxes on the property cannot properly be said to impose new duties on the guardian or to add new responsibilities to the sureties, such as were not contemplated by the contract when they went on the bond, for he was required to pay taxes, as one of the duties imposed upon him by law, and indeed as a consequence of his having taxable property; and, notwithstanding the ward is of age, the sureties were responsible for the proper payment of the money or delivery of the property in the *592 guardian's hands. It is not contended that they are liable for any additional amount not in the guardian's hands when the ward became of age, except, of course, the income or interest, and they were already responsible for the property and its income until the guardian settled his account. The guardian is entitled to be credited with all sums he properly pays out of his income, or even out of the principal, when duly allowed by the Court, and by section 9 of Article 81, supra, he is expressly allowed credit for taxes paid. The only possible difference is that instead of being responsible to one person (the ward), they are responsible for the proper payment to those entitled to be paid, but that responsibility they assumed when they went on the bond. The law, then, required their principal to pay the taxes on taxable property in his possession, and it being one of the duties required of him, they undertook the proper performance of it by him, just as they did his other duties. It is, therefore, in no sense imposing any new obligations on them or adding to the risks they assumed when they became sureties.
Nor can the fact that after the taxes were levied, but before this suit was brought, the guardian settled his final account, and the ward executed a release of the defendants, affect the question. The settlement of the accounts between them cannot bind others who are not parties to it. If, as we have determined, the guardian and the appellants as sureties on his bond, were responsible for the taxes, neither of them could be relieved of the liability by such settlement. In an action on a guardian's bond it was held in Spedden v. State, 3 H. J. 251, that accounts passed in the Orphans' Court were not final and conclusive on either the guardian or the ward, but were onlyprima facie evidence of the amounts due, etc. See also State
v. Baker,
It is said that if the plaintiff's theory is correct, there would be no end to the liability of the sureties, but we do *593 not see how such results can follow. In the first place, the right of action on the bond would be barred at the end of twelve years from the time the ward became of age. In Henderson's case,supra, the majority of this Court held distinctly that the limitation ran from the time the ward became of age and not, as was urged in the dissenting opinion, from the time of the new breach. As, after the expiration of the time fixed by the statute, there could be no recovery by the ward against the guardian and his sureties for the property or its value, manifestly when that right of recovery ceased, a tax could not be imposed on the property so as to bind the sureties. But there would be no necessity for the sureties incurring liability for that time. It is true that section 255 of Art. 93 of the Code, cited by the appellants, which provides for the Orphans' Court,ex-officio, requiring executors, administrators and guardians to make reports, etc., when in default, concludes by saying that "no guardian shall be thus summoned, ex-officio, to appear before the Court after his ward has arrived at legal age," etc., but that does not preclude a proceeding at the instance of an interested party, such as a surety or a ward, to require the guardian to settle an account.
We do not understand why no one but the ward can sue a guardian's bond. The fact that no case has been found where it has been done, does not of itself settle the question. Fortunately it does not often occur (and we know of no such case in this State, at least), that a guardian, after going into Court for the purpose of testing the validity of a tax imposed upon property in his hands and after the question is settled against his contention by the appellate Court of the State, will still undertake to avoid the payment of them. No better illustration of the importance of permitting some one other than the ward to sue, could be furnished than this case. But section 65 of Art. 81, which expressly gives the right of action on the bond, for the use of the State, to recover the taxes, is of itself an answer to the statement that no one but the ward can sue, and section *594
nine requires him to pay the taxes and allows him credit for them. Of course the bond is required mainly for the protection of the ward, at least he is the one most likely to be affected by the default of the guardian, but the condition of it is in terms broad enough to cover the rights of others interested in the estate, if there be any, as well as the ward. The guardian must deliver up the property agreeably to the order of the Court, or the directions of law, "and shall in all respects perform the duties of guardian." When it is once established that his duty is to pay the taxes, does it not come within the very letter of the undertaking of the sureties? And, if that be so, can it be possible that no one but the ward (who is more interested from a financial standpoint in not paying the taxes than the guardian is) can sue, and that if he will not, and the guardian and the property are beyond the reach of the tax authorities, that the taxes cannot be collected? Neither reason nor authority sustains such contention. The cases of State, use Murray v. Murray,
2. It is next contended that the plaintiff (meaning Hull) has no right to sue, and several reasons were assigned. In the first place, it is said that section 65 of Art. 81 provides that on failure to pay the taxes the bond shall be put in suit "for the use of the State." The suit must be in the name of the State, and it certainly does not mean that it must be brought by the "State of Maryland for the use of *595
the State of Maryland." The State must act through some officer or agent, and as D. Frank Hull was the Collector of State Taxes for Washington County, a suit brought as this was, so far as the State taxes are concerned, would be for the use of the State. The State is and must be the legal plaintiff, as the bond is given to it, and there is no provision in the statute for the suit to be brought in any other way. In Fridge v. State, supra, it was determined that in a suit on a guardian's bond, in which an infant was the equitable plaintiff, "it was not necessary for the purposes of the suit to enter the use at all, although it is usually done in such cases, it might have been carried on as well without it, as with it. And being done, her nonage could not form the fit subject of a plea, the action not being brought in her name." The Court referred to State v. Dorsey, 3 G. J. 75. There the suit was on a tax collector's bond, and was brought for the use of the Levy Court of Baltimore County, which became extinct after the suit was brought. The Court said "the judgment is entered in the name of the nominal, the legal plaintiff, and it is nothing to the defendant who may be entitled to the equitable interest;" and again, "there is no necessity for the purposes of the suit, to enter the use, whether it is brought for the benefit of an individual or a corporation; nor if entered, does it make any difference to the defendant how it may vary or change as to the person asserting the same right. It does not affect his defence, nor can any change of the use become a fit subject of plea. The judgment is in the name of the State, and will be for the use of whoever is entitled to the beneficial interest." In Wallis v. Dilley,
But it is contended that section 82 of Article 81 limits the right of the tax collector to proceed, to one year, after the expiration of the term for which he was appointed, unless his time be extended by the Court under section 38, of Article 26, of the Code. Section 82 was not intended as a limitation on the collector as to time within which he can receive taxes placed in his hands for collection, but as an extension of the time within which he could resort to all remedies the law furnished him during his term. It provides that "he shall be allowed the term of one year after the expiration of the time for which he was appointed, to collect all balances due him in the same manner as he could collect the same before the expiration of his term of office." *597 And section 38 of Art. 26 authorizes the Court to extend the time of a collector who has failed or neglected to collect taxes within the time prescribed by law, which extension may be limited in the discretion of the Court, and may be renewed as may be deemed reasonable. When that is done he can proceed by distress or any way authorized during his term, but even if Hull was not authorized to collect the taxes in the ordinary way after the year, and they were still due to the State and county, the plea "that the alleged cause of action did not accrue within one year before this suit" was manifestly bad, as there was no such limitation fixed by law. If, in point of fact, no order was passed extending his time, which, by the statute, is made a matter of record, and therefore easily ascertained, the defendants could, under the case of Wallis v. Dilley, supra, have had the proper use entered, if they deemed that necessary for their protection. Inasmuch, then, as the State was the legal plaintiff, and it is admitted that the taxes had not been paid, "the judgment is entered in the name of the State for whoever is entitled to the beneficial interest," and a plea that Hull was not entitled to receive the taxes was no answer to the suit, even if it be admitted that in a suit in his own name he would have been compelled to allege and prove that his time had been extended.
3. The fifth plea alleges that the taxes for 1893 were not levied within four years before this suit, and the defendants plead section 83 of Art. 81 of the Code "in bar of any recovery of such taxes as are legally barred by said statute." That section is as follows: "All taxes levied for county or city purposes shall be collected by the collectors of the counties or cities, respectively, within four years after the same shall have been levied; and if the same shall not be collected within four years, the parties from whom such taxes may be demanded may plead this section in bar of any recovery of the same." In Hebb v.Moore,
4. The only other question that we need refer to is the constitutionality of the tax thus levied on the property. Having determined in the case of Baldwin v. Washington County, that the situs of the property was in that county, we do not propose to enter into an extended discussion of the constitutional questions attempted to be raised. We will, however, correct some erroneous conclusions that the counsel for the appellants seem to have reached in reference to our statutes. In the first place, there is no provision in them requiring the guardian of a ward who owns real *599 estate out of the county where the guardian was appointed, to pay the taxes levied thereon in the latter county, and such is neither the law nor the practice in this State. The guardian of a ward who owns real estate in this State has it "under his care," but it is not property "in the hands of" such guardian which is intended to be assessed as provided for in section 9 of Art 81. of the Code. Real estate is assessed by the assessors, duly appointed under the statute in the county where it lies, and taxes are levied thereon by the County Commissioners and paid there. That is done whether owned by adults, infants or even corporations — the latter being done so as to give the benefit of taxation on property of that character to the county where it is situated, which for many years has been the policy of the laws of this State. The property reported to the County Commissioners by the Register of Wills is only assessed "if not before assessed," and as we intimated in Baldwin v. Washington County, the provision only applies to property that is liable to taxation under the laws of the State. There is no discrimination whatever against infants or their guardians, but they are only bound to pay taxes as others do — no more, and, so far as the law can prevent it, no less. The guardian has every opportunity to be heard before any new assessment is made, and to have any report of the Register of Wills corrected, if erroneous. The reports are required to be made on or before the first day of March, and the levies, in most cases, as in the case now under consideration, are not made until June. So if the guardian attends to his duties there is no possible danger of any unjust assessment against his ward. The agreed statement of facts in the former record, made a part of this, shows that the property assessed consists of stocks and bonds of corporations organized and located outside of the State, which, under our laws, are assessable. There is no justification for the claim made in the appellant's brief that all the property of an infant is taxable in the county of the guardian's appointment or that the Legislature has devised a plan *600 for taxing the property of a non-resident ward regardless of its location.
Nor is there any valid reason to contend that there is no provision in the law for notice. In addition to what we have said above, we refer to section 145 of the same Article of the Code, which expressly prohibits the County Commissioners from increasing the assessment of the property previously assessed, or adding any new property not valued and returned to them by the proper assessors or collectors, without notice as therein required.
It is also claimed that the law provides a different scheme of taxation for infants under guardianship from that of adults, but we fail to see any foundation for that. It is true the Register is required to make the return of the property in the hands of the guardian, but that is simply because the Orphans' Court has supervision over the ward's property, and is supposed to have an accurate account of that actually held by the guardian. The same thing is required of the Registers as to executors and administrators, and officers of corporations are required to give statements in much more detail of the property under their control.
We of course do not question the decisions of the Supreme Court of the United States, cited by the appellant, as to the right of a State to tax property outside of it limits when the owner is beyond its jurisdiction, but we do not deem them applicable to this case. In Baldwin v. Washington County, we held that thesitus of this property was in that county, and we have no reason to change the views therein expressed. Under our statutes property of wards in the hands of guardians, appointed in this State, is under the direct control of the Courts appointing them. This is necessary for the protection of the wards, and our Orphans' Courts make no distinction between resident and non-resident infants, if the latter come under their care. If the infant be a non-resident, a guardian can only be appointed if he has property in this State. Sec. 203, Art. 93. If he be a resident when the guardian is appointed and afterwards remove from the State, a guardian appointed at the place of *601
his new residence has ample power to have the property transferred to him under section 196 of that Article as construed by us in Bernard v. Trust Company,
Although we have not attempted to discuss each plea, prayer and exception separately, we have referred to such points as were urged at the argument and we will affirm the judgment.
Judgment affirmed, costs to be paid by the appellants.
(Decided June 22d 1899). *602