58 Md. 46 | Md. | 1882
delivered the opinion of the Court.
By the will of the late Alexander Gould, deceased, the testator directed certain portions of his. real estate to be sold by trustees named in the will, and the proceeds thereof to he distributed as therein directed. Upon a bill filed in the Circuit Court of Baltimore City, by some of
By the terms of sale, the trustees were bound to convey the property sold to Bernei, free and clear of all taxes and assessments to the first day of January, 1816. On the 28th of September, 1815, there had been an assessment made by the city authorities upon the property along Hanover street, for the gradings paving and curbing of that street, under Ordinance No. 88, of October 13th, 1814; and the amount of the tax or assessment properly 'chargeable to that part of the property sold to Bernei was 83,536.
It appears that there were two several assessments upon two different parcels of property belonging to the estate, situate on Hanover street; and it is admitted that bills for the two assessments so made were delivered to Alexander Gould, one of the trustees, on the 30th of November, 1815, with demand of payment; and the assessments not being paid, a second bill for each amount, calling for payment within thirty days of the date of the delivery of such bills, were delivered to said trustee on the 5th of April, 1816. But there being a question raised as to the legality of the assessments, the trustees determined to withhold payment until the question was settled by the Courts. That question, however, was finally decided by this Court, in the case of Scharf vs. The City of Baltimore, 56 Md., 50, in favor of the City.
There is no question made as to the correctness of the amount of the claim asserted hy the city, nor is there now any question made as to the legality of the original assessment; but the single question is, whether the limitation of the statute just cited forms a har to the ■claim, under the peculiar circumstances which we have stated? The Court below held that the claim was not barred; and in that opinion this Court fully concurs.
Indeed, it may be very seriously doubted whether the statute above quoted lias any application whatever to the collection of a tax or assessment such as that involved in this case. It might well he argued that its provisions were only intended to apply to the ordinary taxes levied for revenue, as distinguished from the special assessments imposed, in making improvements, upon adjacent property, because of the special benefits imparted to such property. In the case of the City of Baltimore vs. Greenmount Cemetery Co., 7 Md., 517, the exemption of the ground of the Cemetery Company, hy its charter, was, that it should “not be liable to any tax or public imposition whatever
But without deciding that question, we find in the facts of this case a full answer to the contention on the part or the appellant.
At the'time of the assessment of the tax in question, the property upon which the assessment was made was under the jurisdiction and control of a Court of equity; and the sale subsequently made, was made and -ratified to the purchaser upon the terms, that the property sold should he conveyed to him free and clear of all taxes and assessments to the first of January, 1876. The taxes or assessments due at the time of sale, became a charge upon the proceeds of sale; and if the city collector had attempted, by the summary proceeding of distress and sale, to enforce the assessment against the property, the Court would have restrained such proceeding, for the protection of the purchaser. County Comm’rs vs. Clarke & Berry, 36 Md., 206. The proof clearly shows that due notice was given to the trustees of the charge on the property, and that due demand was made for payment of the assessment, within the time prescribed by law. And such being the case, it became the duty of the trustees, as well- by the terms of the sale as by the express terms of the statute (Act 1874, ch. 483, sec. 63,) to pay all assessments and taxes binding on the property. With this knowledge and duty on their part, the trustees received and held the amount of money in question, applicable to the payment of the assessment due, in trust for the city. And having so received the money and set it apart for the express purpose, the trustees cannot now he allowed to avoid their duty, and take advantage of their own delay, by setting-up the defence taken in this case. Even if it he conceded that the statute relied on applies to the collection of an assessment such as that in controversy, wre are clearly of
We must therefore affirm the order from which the appeal was taken.
Order affirmed, and, cause remanded.