78 Md. 231 | Md. | 1893
delivered the opinion of the Court.
By section 41, of Article 49, of the Municipal Code of Baltimore City, it is enacted, in substance, that when any lots of ground are chargeable with the payment of taxes, and are subject to ground rents or leases for terms of years, renewable forever, the collector shall, in the-sale of such lots for non-payment of taxes, first sell only the leasehold interest, if it should sell for an amount sufficient to pay the taxes, but, if it should not, then that he shall sell the whole fee simple estate, provided these provisions “shall not apply to cases where the books of the city do not disclose the fact that the lot of lots are on lease as aforesaid, or unless the collector shall have actual notice of such lease prior to the sale thereof.” The city tax collector of Baltimore sold in March, 1891, for the non-payment of State and city taxes, the fee simple estate in a lot of ground on Druid Hill avenue, and the Mayor and City Council became-the purchaser. The sale was reported to the Circuit Court of Baltimore City, and was ratified in May, 1892. In October following, the city, through and by its comptroller, sold the lot to Clarence M. Ellinger, to whom it was thereafter conveyed. When the sale was made by the collector, the lot was subject to a lease for ninety-nine years, renewable forever, which was owned by J. Henry Weber, and the reversion or fee was owned by the appellee, Whittington. The unpaid taxes were due by the owner of the leasehold estate, but the collector sold the whole fee without having first offered, or having
It appears by the record that in 1883 proceedings were instituted in the Circuit Court of Baltimore City by Rebecca and Mary McKeen against J. Henry Weber for a sale of this same leasehold estate under a mortgage thereon, executed by Weber in 1881. Mr. T. Wallis Blakistone was appointed trustee to make the sale. He took possestion of the property, and collected the rents and profits, but owing to a depreciation in its value made no sale of it; In the meantime the ground rent was regularly paid to the appellee up to July, 1892, but the State and city taxes for the eight years beginning with 1882 remained unpaid. On the first day of December, 1890, Lewis N. Hopkins, city collector, filed a petition in the foreclosure proceedings representing that taxes for the years just mentioned were in arrear upon the property “decreed to be sold.” The petition further stated that the collector was unable to enforce the collection of those taxes by reason of the pendency of the foreclosure proceedings, and it prayed that the trustee might be required to pay the taxes out of the rents theretofore collected from the property, or that the collector might “be allowed to proceed to collect said taxes by sale of the property in the ordinary way.” This petition was signed by the late Mr. W. A. Hammond,
Notice is of two kinds,— actual and constructive. Actual notice may be either express or implied. If tiie one, it is established by direct evidence, if the other, by the proof of circumstances from which it is inferable as a fact. Constructive notice is, on the other hand, always a presumption of law. Express notice embraces not only knowledge, but also that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated. Wade on Notice, sec. 6. Implied notice, which is equally actual notice, arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the principal fact. 16 Am. & Eng. Ene. Lato, 790. Or, as defined by the Supreme Court of Missouri, in Rhodes vs. Outeali, 48 Mo., 370, “a notice is regarded in law as actual when the party sought to be affected by it knows of the particular fact, or is conscious of having the means of knowing it, although he may not empkw the means in his possession for the purpose of gaining further information.” It is simply circumstantial evidence from which notice may be inferred. It differs from constructive notice, with which it is frequently confounded, and which it greatly resem
With constructive notice we are not now concerned, and it is not pretended that the city collector had express notice, or knowledge personally, of the existence of the leasehold estate. But he became a part)'- to the equity proceeding, wherein a decree had been passed directing a sale of the leasehold interest. He did more. He asked, notwithstanding the decree had been long before signed and enrolled, that he be permitted to sell for the non-payment of taxes, under the summary process of distraint, the identical property previously decreed to be sold, and no other or different interest. And the property which had been thus previously decreed to be sold was not the fee simple, but only the' leasehold interest in the lot in question. He obviously knew there was a proceeding pending in the Circuit Court of Baltimore City, having for its object the sale of some interest in the property. He knew, further, the' equity proceeding interfered with the execution of his distraints, and he applied to the Court for leave to proceed, in spite of the decree, to sell the same property which had been decreed to be sold. We say he knew these things, and we say so not because the record shows that he was personally aware of them, as matters of actual knowledge, hut because the deputy city collector and the collector’s attorney, both of whom were his agents in this transaction, did have such knowledge — the one having sworn to the facts stated in the petition, and the other having signed the petition itself. So both the attorney and the deputy collector knew, or at least were
Notice to the attorney, as well as notice to the deputy, was notice to the collector, and was actual, and not merely constructive notice to him, for the principal is bound by and affected with notice to his agent; and he
We are, for the reasons we have given, of opinion that the collector liad, through the means we have indicated, such actual notice of the existence of the lease as to bring him within the proviso quoted from the City Code; and that he was, therefore, not authorized to sell the fee simple estate until he had first offered the leasehold for sale. It results, then, that the sale made by him was irregular, and the decree granting the injunction applied for by the appellee must be affirmed.
Decree affirmed, with costs in this Court and in the Court beloiv.