Thomas v. Hardisty

Hammond, J.,

filed the following concurring opinion.

I concurred in the result in this case because Code, 1957, Art. 57, Sec. 17, seemed to insure the title to the property of the landowner in possession against any rights of entry by the holder of the tax title who had been quiescent for over five years. That section requires an entry or an action to bring about the right of entry to any land in Montgomery County, or so much of Takoma Park as is in Prince George’s County, that has been sold for taxes, within five years after the day of sale.

In the case before us the landowner lived in the property before the tax sale and has continuously remained in possession for over seven years since the tax sale. I think that Sec. 17 of Art. 57 was not repealed by the tax sales law of 1943 and that it entitled the landowner to the relief he sought in his bill to quiet title. As I read the section, it applies only *538 to those who seek to enter and not to those already in possession. There would seem to be no necessity, under the statute, to apply the period of limitations to one already in possession, who seeks no more than a declaration of his right to remain in possession.

The decision of the majority was that the court lacked jurisdiction in the proceedings to foreclose the right of redemption because the description of the property used in the tax sale and in the foreclosure proceedings was inadequate and irregular. The heart of the majority opinion is found in the sentence: “No policy in favor of protecting tax titles acquired through proceedings in rem can make a description which describes land as situated in one part of a county adequate to describe land situated in another.” The property was described as owned by Henry Granville Thomas, Jr., and as consisting of “9^4 ac & Imps, Sweepstakes”, located in the 4th Election District of Montgomery County. The property is actually situated in the 10th Election District. The mistake in the election district sounds more serious when described arithmetically than it actually is, geographically, since the 4th and 10th Election Districts of Montgomery County are contiguous, and the land is in the same part of the County as the description indicates it to be. A description in a tax sale has two purposes—to warn the owner and to attract buyers. Josenhans, Inc. v. Jenkins, 203 Md. 465, 472 . The description we are concerned with might have been inadequate to notify prospective purchasers of the location of the property and, so, insufficient to support a tax sale that was duly attacked prior to the decree foreclosing the right of redemption. However, if the owner had read the description either in the advertisement of the tax sale or in the notice by publication in the foreclosure proceedings, he would iiistantly have known that his property was being referred to. This fact makes it plain that the Circuit Court for Montgomery County had jurisdiction. Although the proceeding is in rem and he need not have been, the landowner was a resident, the land is in the County, and the advertisement could not have failed to warn the landowner H. Granville Thomas, that his nine and three-quarter acres in Montgomery County, known *539 as Sweepstakes, was being dealt with. In determining the validity of the proceedings to foreclose only the effect of the description on the owner need be considered.

The Tax Sales Act of 1943 sought to make tax sales immune from attacks not asserted in the proceedings to foreclose the right of redemption other than lack of jurisdiction or fraud in that proceeding. Since the passage of the Act, this Court has faithfully protected its purpose. As a result, the intent of the Act to make tax sales titles valid and marketable has been effectuated. The majority opinion cannot fail seriously to weaken, if not to destroy, the legislative purpose and the prior holdings of this Court in carrying out that purpose in Thomas v. Kolker, 195 Md. 470 ; Oppenheimer v. Micbar Co., 192 Md. 192 ; Shapiro v. National Color Printing Co., 191 Md. 194 ; Gathwright v. Mayor & City Council of Baltimore, 181 Md. 362 ; James v. Zantzinger, 202 Md. 109 ; and Sanchez v. James, 209 Md. 266 . Never before have prior irregularities been allowed to effect a foreclosure decree or to serve as the basis of a finding of lack of jurisdiction. Now I fear, tax titles have again been made doubtful and litigation as to them invited by unnecessarily—and I think erroneously—basing the decision on a very unsettling ground when the same result properly could have been reached on another ground.