Jannenga v. Johnson
220 A.2d 89
Md.
1966
Check Treatment

*1 v. JOHNSON, et al. JANNENGA 266, September Term, [No. 1965.] *2 3, 1966. Decided June Oppen- Horney, Marbury,

The argued cause was heimer, McWileiams, Barnes JJ. West, whom Marion West and W. with

Sherman B. brief, for appellant. West & Venables Cullins, Jr., Joseph whom was Morris Topf with S. brief, for Anna one of the brief filed for Jawitz, appellees; other appellee. Court, majority opinion delivered the

Barnes, J., at Horney, Concurring p. concurs. J., which infra. effect of a raises the issue of the failure to com- This case proceedings by pub- ply an owner’s lication to in property Art. at a tax conveyed

to Code (1957) §107 sale. In 1960 Mrs. Anna tenant (appellee),1 surviving Jawitz

the entirety, was the sole owner of parcel improved land located city Hyattsville, Maryland. city The of Hyatts ville collected its own taxes each until it year was notified that beyond a certain 1961 in this date—January instance—the taxes were to be at office paid county treasurer. Prior to January furnished the city Plyattsville treasurer with a list of who had persons paid not their 1960 taxes. This list included the name of the Mrs. appellee, Jawitz. (or her her) lessee for her paid municipal at the office on city’s but the January town clerk and treasurer had failed notify county treasurer of their had; treasurer, payment. The county knowing the taxes been paid, sold the property the appellant Roy Jannenga. (Jannenga), at a tax sale conducted pursuant to Code (1957) Art. §§70-123, $87.44. assessed for $12,440.00.

On March a Jennenga filed petition to foreclose the^ rights owners’ redemption of in several of parcels land which he had purchased at tax sales. Included in this petition was Mrs. Jawitz, a property. Mrs. nonresident of Maryland, was Jawitz’s of proceeded against by publication pursuant to Code (1957) show, Art. however, The record does not §107. Jannenga complied with the any of provisions of Maryland Rule 105 which must be followed where an action is main- a against tained nonresident by order of publication without per- sonal State, service of within process or a where resident is. against order of proceeded if publication as he were a non- resident. Maryland Rule 105 a.

There is no a evidence that of copy the order publication on was served Mrs. personally (Maryland Rule 105 d Jawitz 2) ; or that a copy published notice was sent to Mrs. Ja- by registered witz mail. (Maryland Rule 105 e). No affidavit Although 1. appellee, Mrs. is the real the case was Jawitz docketed the lower court and in this Court “Roy Jannenga as Johnson, al”, Amelia Anne et because Amelia Anne was Johnson among the first defendant named (including a number of them Jawitz) brought suit rights redemp- to foreclose the taxpayers. tion of the former owners and was mailed or that Mrs. such showing filed other means of the pro- notified personally had been Jawitz subject redemption her equity

ceedings clearly f. Mrs. address -property. Jawitz’s Mortgage as records Albert tax Smith .appeared “c/o n Co.,300 Woodward Washington D. C.” Building, George’s for Prince 9, 1964, Circuit Court October On of re- foreclosing Mrs. equity decree a entered (cid:127)County Jawitz’s did not learn property. Mrs. subject (cid:127)demption a suit then forthwith filed February, until She decree -the aside the deed which the and set decree to vacate March the suit On Jannenga. delivered to treasurer a came up and the tax sale owner between the by Jannenga. filed judgment for summary a motion on hearing aside trial court the decree set vacated 8, 1965 (cid:127)On April followed. This appeal deed. Jannenga’s 180 A. 2d 475 (1962) Dorsey, Hauver to suits to foreclose Rule applied said that we resident, or, that in where a situations so redemption, case, against by order proceeded a nonresident in this .as section 107 of the notice re- publication 105 must be Rule with. complied of Maryland (cid:127)quirements that a decree provides setting Art. aside (1957) Code §113 conveyed at a tax .an owner’s not be reopened “except be conclusive sale shall or fraud in the conduct of of lack of the ground Hauver Dorsey, supra, held in We to foreclose.” -proceedings file an or other mere failure to affidavit evidence of n compliance of Maryland Rule 105 is not as such would void decree setting defect aside a jurisdictional *4 of redemption. an owner’s in makes no claim this case of actual fraud to set aside her of proceedings conduct redempt hold, however, that one may proceed ion.2 We example proceedings of actual fraud conduct of the An filing could have been a false case affidavit of in this com- compliance pliance Rule 105 where no with fact ¡been effectuated. re- he is section 107 of to publication pursuant of Mary- the provisions to comply that section quired by de- furnish the faith effort to good land and to make a inform reasonably as would fendant with personal such A failure to pro- property. him his against of the proceedings so may to do a faith effort good such notice or to make vide com- not have been not in that one amount to actual fraud does, defendant, but to deceive pelled malicious motives re- event, fraud since Jannenga, to constructive any amount deceive, failed to perform of moral or intent to gardless guilt issue Hamer legal upon did duty. pass at bar. of constructive fraud the case present with the comply The law declares this failure tendency Rule 105 to be fraudulent because its of pro otherwise not be notified might deceive those who es ceedings to their property rights except by pro Epstein v. United means of sentially publication. See forma States, 174 F. 2d 754 Bank Board 1949); Cir. v. (6th Edu York, cation City New 111 N. 2d N. Y. E. Co., Inc., (1953); Priddy Kernersville N. Lumber C. 2d 256 Archer (1963); S. 390 W. Griffith, E. S. ; Dumas, 735 (Tex. 1964) Ct. Sup. 117 Vt. Stroh

A. 2d Estate, In re (1951); Borton’s 393 P. 808 (Wyo. Greenwood, 1964); Devers v. 293 P. 2d (Cal. App. 1956). Barnett, 444, 449, Whitehurst v. 161 Md. 157 Atl. 737 our (1932), predecessors said: fraud, however,

“Constructive sometimes called ‘legal fraud’, is, nevertheless, fraud, although it rests more upon intent, presumption less upon furtive than moral fraud.”

This statement was quoted with recently approval by this Court in Tyler v. State, Secretary 397, 405, 229 Md. 184 A. 2d Fraud, 105 (1962). as would justify a final reopening decree section 113 of Article need not be vicious and deliberate. Constructive fraud satisfies the requirement of the statute. Kersh See Lake Drainage Johnson, Dist. v. 203 Ark. 315, 157 W. 2d S. 39 (1941); Clelland, Dawson v. 252 W. S. 2d 694 (Ky. 1952); Triplett v. Stanley, 279 Ky. 130 S.

6 2dW. v. District Court Judicial (1939); State Second Dist., 102 Mont. 57 P. 2d 809 Antonsen v. Pa (1936); Co., ; Container 120 P. 2d 148 (Cal. 1941) Mary App. St. cific v. Mary, 175 (La. 1965). St. App. So. The case at bar is to be from distinguished the decision of James, the Court in Sanchez A. Sanchez, In (1956). owners of land in Prince were George’s County Maryland residents of at the time of the filing of the suit to foreclose of redemption but had formerly resided in the District of Columbia. The District Columbia on address the land records of Prince appeared George’s and this County was the address counsel for given by the tax sale to the sheriff for The service. correct ad- dress of the owners Prince George’s County appeared assessment records in the treasurer’s office. Subpoenas issued, directed to the owners were twice the sheriff returned est, them both non and thereafter the tax sale purchaser pro- ceeded against the owners as nonresidents as then provided Act, Tax Maryland Article 104 of the 1951 Section Sale time, that Maryland Maryland only Code. At law required for nonresidents or those treated as by publication non- residents under Maryland the 1951 Section Code. All of the them statutory requirements complied It stipulated the tax sale was by purchaser. Sanchez there was no actual fraud involved and that was the over- later and attorney the tax sale sight purchaser’s overlooked in the tax The ma- current address was records. of the that under those cir- jority opinion Court was fraud nor lack of estab- cumstances neither tax sale foreclosure suit was lished and the decree in the valid. Sanchez, In Hammond was dissenting Judge opinion there was constructive fraud and that the tax decree should have been set aside. foreclosure Sanchez, Rule 105 has been promulgated Since indicated, which, requires giving as we have in the Rule. After Rule 105 was set forth the notice to the decision January (subsequent promulgated Mary- prior promulgation history of the law and duty on March it then became 1956) legal Sanchez Sanchez, the tax sale plaintiffs required notice. give *6 of the purchaser complied with all of law then and made a faith effort to the sheriff applicable, good give bar, the correct address the owners. the case at property tax the has shown no at all to effort the re give to and quired notice the owner has failed to file property the affidavit required Rule 105. by Maryland

Judgment appellant to the affirmed,

pay the costs. filed in J., following the the opinion, concurring re- HornUy, sult.

The majority, in the order affirming of the lower court va- cating deed, its decree and aside the tax sale setting based their conclusion on the fact that the failure of the tax sale purchaser to comply provisions the of Maryland g 1—re- quiring the purchaser to make a reasonable effort in good faith to locate the property owner and warn her of the pendency — the foreclosure proceeding amounted to constructive fraud. Aside from the fact that it seems to me that the in majority, attempting James, to distinguish the instant case from v. Sanchez 209 Md. 120 A. 2d 836 (1956), have in effect adopted the dissenting in opinion Sanches overruled the majority opin- ion, affirmance, in my opinion, should have been based squarely ground, court, as did the lower that it had no jurisdiction to decree a foreclosure of the right to on which the beqn taxes had paid the tax prior sale.

Although 101 of Article 81 of the Code declares § court has equity jurisdiction to give full and relief un- complete der the tax sales statute in with general accordance ju- risdiction and practice and the of all provisions laws and rules of court as in except provided otherwise the statute and § prior given history fully land Rule 105 and its are Dorsey, 501-502, Hauver Md. 180 A. 2d (1963), supra.

provides that the final decree foreclosing right redemp tion is ground opened except conclusive be of lack or fraud in the conduct of the foreclo that, is sure clear under the collector of taxes proceeding, § to sell (the county authority treasurer had instance) only1 which taxes in arrears.” As stated property “upon are Fur taxes lien on real only unpaid property. constitute § thermore, designed while tax sales statute was present improve the method of so as foreclosing redemption titles, expedite as of marketable tax procurement out in 180 A. pointed Hauver 228 Md. Dorsey, Kolker, 470, A. and earlier Thomas (1962) indicating statute nothing there (1950), authorizing prop had intention of a sale legislature any erty for made. had been sale was paid Brydon, in Mullen v. predecessors, having

Our concluded 117 Md. that a tax collector (1912), 83 Atl. 1025 *7 and in due sell land taxes unless the power sale, of prop arrears went on to hold a sale at time of null to the sale was erty for taxes which had been paid prior The situa purchaser. and void and conferred no title And since there the situation there. tion here is identical with trea made slightest not the doubt that case, of this surer under the circumstances was null void in the first place acquired lower court never not, and, had no to decree foreclosure power because did it Any in fact exist. other that did not of a right Declaration 23 of the in conflict with holding would be § dis- man to be ought declaring that Rights (Due Process) by the his but or deprived seized of his freehold 523, 143 Hardisty, Thomas v. Also see law of the land. nor that neither holding 2d 618 (1958), A. § § to a void sale give validity 81 undertake of due process. so involve denial to do would any attempt only contex- but all instead of uses word 1. The statute “only” the Code means 81 of tually 73 of Article all as used § according New edition of “nothing the second Webster’s but” or Dictionary. International