Brashears v. CollisonBrashears v. Collison
- Reporters:
- ,
- Before:
- Collins
delivered the opinion of the Court.
This is an appeal from a’ decree denying the reopening of a decree of foreclosure of property sold at tax sale as to some interested parties, and reopening and declaring null and void the decree of foreclosure áS to other parties..
The facts of the case are substantially as follows. Nicholas G. Collison died testate in Anne Arundel County oh or. about: May ,30, 1908, seized and possessed, among other things,‘’ of certain rеal..estate including a tract of
Under the provisions of Chapter 761, of the Acts of 1943, known as the Tax Sales Act, Code, 1951, Article 81, Section 72-90 inclusive, which provided a proceeding wherein the equity of redemption of former owners of real estate sold at tax sale could be foreclosed, a tax sales certificate was issued on September 8, 1944, to Minnie E. Collison, showing the sale of the real estate purchased by her at the tax sale. The said Minnie E. Collison, on September 20, 1944, assigned the certificate of tax sale to Thomas E. Collison, a nephew of her husband, but not One of the grandchildren named in the
Since the execution of that deed Thomas E. Collison and wife have been in possession of the property, built a store thereon, have had plats prepared, and caused
David W. Collison died on or about July 30, 1950, without leaving any child or children or descendants surviving. The only child ever born to David W. Collison died in infancy in 1896, twelve years before the death of Nicholson G. Collison. On September 19, 1953, some of the residuary devisees in the will of Nicholas G. Collison filed a bill of complaint wherein they prayed that the tax sale herein and the proceedings for the foreclosure of the right of redemption be declared null and void, and the property sold for the purposes of partition. A demurrer was sustained to that bill. On March 16, 1954, four of the grandchildren, named as residuary devisees in the will of Nicholas G. Collison, filed a petition in the foreclosure case praying that the proceeding therein be reopened; that the tax sales be declared null and void; and for other and further relief. After answer filed, testimony was taken in open court by the chancellor. He decreed on October 15, 1954, that the petition be dismissed as to so much of the land as was conveyed by Thomas E. Collison and Etta Mae Collison, his wife, to the Barnes, the Ormes and J. D. Hedin. He further decreed that the decree of foreclosure be reopened and declared null and void as to the petitioners, appellants
From that decree the appellants, petitioners, B. Raymond Brashears and Rose Brashears, his wie.; David Clifton Dawson and Yetive C. Dawson, his wife; Elsie Winstead Hutchinson and Orion Neely. Hutchinson, her husband; Myrtle Collison Yоung and William O. Young, her husband, hereinafter designated as appellants,, and Thomas E. Collison and Etta Mae Collison, his. wife, hereinafter designated as cross-appellants, appeal to this Court.
Chapter 761, Section 90M, of the Acts of 1943, Code, 1951, Article 81, Section 111, provides: “(Decree of Court Conclusive.) No application shall be thereafter entertained to reopen any final decree rendered, . under the provisions of this sub-title except on thе ground of lack of jurisdiction or fraud in the conduct, of the proceedings to foreclose. If the final decree of the court foreclosing all rights of redemption is set aside on the ground of lack of jurisdiction, the amount required to redeem shall be the amount required by the provisions of this sub-title, and in addition thereto, the reasonable value, at the date the decree is set aside, of all improvements made on the property by the purchasеr and his successors in interest.”
. It is provided by Chapter 761, Section 90C, of- the Acts of 1943, Code, 1951, Article 81, Section 10Í, as follows: “(Parties.) The plaintiff in any proceeding . to. foreclose the right of redemption shall be the holder , of the certificate of sale. The defendants in any such proceeding shall be the following: (a) The owner of the property as disclosed by a search of the Land Records of the County, of the records of the Register of Wills of..the County, and of the records of any court of law. or. equity of the County, (b) If the property be subject to a ground rent, the parties defendant shall be the owner of the fee simple title and the owner of the leasehold title as
The first question before us is whether the appellants, the grandchildren named in the will of Nicholas G. Collison as residuary legatees, were necessary parties defendant in the proceedings to foreclose the right of redemption.
We are of opinion, as found by the chancellor, that the petitioners here were necessary defendants in the foreclosure proceedings and, therefore, as to them the court had no jurisdiction to forclose the right of redemption, they being owners of a remainder interest in the propеrty sold at tax sale. The decree of foreclosure as to them was null and void. It was said by this Court in
Ringgold v. Carvel,
196 Md. 262, 273, 76 A. 2d 327: “The will under consideration devises a contingent remainder to the grandson’s children and grandchildren, living at the time of his death, and by the residuary clause gives the reversionary interest to his son for life with remainder to the son’s children and grandchildren
Counsel for Thomas E. Collison and Etta Mae Collison, his wife, not presently representing them in the case before this Court, who filed the foreclosure proceedings for them, testified in effect that in his opinion it was not necessary to make the grandchildren named in the will of Nicholas G. Collison parties defendant. The chancellor, in his opinion, in finding that the decree was obtained by fraud in law, said the following: “He [the solicitor for Thomas E. Collison and wife] decided that it was not necessary to make sаid grandchildren parties defendant by name and have subpoenas personally served on those who were residents of Maryland, or to actually name those who were non-residents in the order of publication. I have no doubt that in so doing he conscientiously believed that he was right. I do not mean, for an instant, to suggest that [he] deliberately intended to perpetrate a fraud. I know him too well for that. But, I do think that he was wrong in his opinion, and that said decree, having been obtained without said grandchildren being named as defendants when he knew who they were and could easily have obtained their addresses if he had tried, said decree must be regarded as having been obtained by fraud in law. * * * A decree obtained without making those persons parties whose rights are affected by it is, as to them, fraudulent. * * * It was argued by counsel for Mr. and Mrs. Thomas E.
The chancеllor further found that the petitioning grandchildren, the appellants here, were barred by laches from then coming in and questioning the decree of foreclosure. With this conclusion we do not agree. It is provided by Code, 1951, Article 81, Section 98, in part as follows: “ (Proceeding to Foreclose Right of Redemption — Must Be Brought within Two Years.) The holder of any certificate of sale, his heirs or assigns, may at any time after the expiration of one year and a day frоm the date of sale, file a bill in equity to foreclose all rights of redemption of the property to which such certificate relates, as hereinafter provided.
The right to redeem shall, nevertheless, exist and continue until finally barred by the decree of the court of equity in which the foreclosure proceeding is filed.
Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of salе, the said certificate shall be void and any and all right, title and interest of •the holder of the certificate of sale of his predecessors •thereof, in and to the property sold shall cease and all money received by the Collector on account of the said sale shall be deemed forfeited, and shall be applied by the Collector on the taxes in arrears on said property; * * (Italics supplied.) It is provided by Article 81, Section 90,
supra,
in рart as follows: “(Right of Redemption. Certificate of Redemption.) The owner or other person having an- estate or interest in the property
Laches is an equitable doctrine and its application depends upon the facts Und circumstances of each case. Its purpose is to do justice and it is never invoked unless it accomplishes that end.
Connelly v. Connelly,
190 Md. 79, 84, 57 A. 2d 276. It was said in
Long v. Long,
62 Md. 33, 69: “It was not therefore until the termination of the life estates, that the parties so claiming and holding could be regarded as holding by wrong as against those in remainder. In other words, the remaindermen in fee had no right of entry until the previous equitable life estates, protected by the legal estate in the trustee, had expired.
Preston v. Evans,
56 Md. 476;
Jackson v. Schoonmaker, 4
John. 390. And it has been deliberately held by this Court, that a court of equity in applying the Statute of Limitations analogically, as to the right of entry, will not permit the claim of a party to be affected by any devolution of timе short of that which would have barred him at law in an action of ejectment.
Dugan v. Gittings,
3 Gill, 138, 161;
Needles v. Martin,
33 Md. 619.”
Houck v. Houck,
112 Md. 122, 133, 76 A. 581. “Obviously, then, there must be a legal duty to do some act, a failure to do that duty and attendant circumstances which cause
prejudice
to an adverse party be-for the doctrine can be successfully invoked. Mere lapse of time, without more, unless of sufficient duration to amount to and constitute the bar of the statute of limitations, will not be sufficient.”
Demuth v. Old Town Bank,
85 Md. 315, 327, 37 A. 266. It is stated in 85 C. J. S., Section 853, page 232: “The method of forеclosure of the right to redeem lies within the legislative discre
It was said in Fisher v. Davis, (1930), 77 Utah 81, 291 Pac. 493: “The plaintiff has argued in his brief that the defendant’s title is barred by laches. It is not contended that the stаtute of limitations has run or adverse possession been established. It is merely contended that, because defendant permitted the tax sale proceedings to be had without objection and without the assertion of his title, he ought not now, in equity be permitted to assert his title. This contention is without merit. The defendant’s claim is one of legal title, and is governed by the statute of limitations. Laches apply to equitable demands. If a legal right gets into equity, the statute governs.” Thе appellees rely strongly on the case of Nohl v. Holloway, (1937), 179 Okla. 512, 66 P. 2d 497. In that case the owner of the land did not place the deed on record for twenty-two years and never paid any taxes on it. That case does not seem helpful here. Compare Phelan v. Roberts, (1938), 182 Okla. 202, 77 P. 2d 9; Street v. Dexter, (1938), 182 Okla. 360, 77 P. 2d 707; Jones v. McNabb, (1938), 184 Okla. 9, 84 P. 2d 429; Dickerson v. Fears, (1951), 205 Okla. 181, 236 P. 2d 472.
The chancellor, in finding that laches applied here in his opinion, quoted the following: “ ‘Irrespective of the statute of limitations, or in cases where the statute does not apply, the owner of land sold fоr taxes will be denied relief against the sale where he has delayed for a great and unreasonable length of time to seek redress; more especially * * * where it has passed into the hands of
We are, therefore, of opinion that the decree of foreclosure passed on December 28, 1944, for lack of jurisdiction, should be reopened as to all parties shown to be the owners of the property as disclosed by a search of the Land Records, the records of the Register of Wills, and the records of the court of law or equity of Anne Arundel County, not specifically named as parties defendant. The decree will therefore be affirmed in part and reversed in part, and the case remanded for further proceedings.
Decree affirmed in part and reversed in part and case remanded for further proceedings, costs to be paid by Thomas E. Collison and Etta Mae Collison.