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Robins v. Garvine

Court of Chancery of Delaware, New Castle County

May 23, 1957

Estella ROBINS, Plaintiff,
v.
Mildred GARVINE, Defendant.

[36 Del.Ch. 452] Joseph Donald Craven of Craven & Hurley, Wilmington, for plaintiff.

John S. Walker and L. Robert Hopkins, Wilmington, for defendant.

MARVEL, Vice Chancellor.

In order to grant plaintiff the relief she requests after final hearing, namely recovery of real estate from its present owner

Page 52

of record, this Court would have to nullify a consummated tax sale. The property which plaintiff seeks to recover consists of a lot and home on Marsh Road in Brandywine Hundred.

The complaint named as defendant the person who acquired title to the property at such sale and prayed for an order restraining defendant from interfering with plaintiff's present possession and for an order directing defendant to convey the premises to plaintiff. Temporary relief was granted in the form of a restraining order maintaining[36 Del.Ch. 453] plaintiff in possession and enjoining the selling or placing of any encumbrance against the property in question by defendant. On the return of a rule to show cause why a preliminary injunction should not issue, defendant attacked the power of this Court to grant the relief requested, however, a preliminary injunction in the language of the restraining order was entered. This decision follows final hearing.

Plaintiff and her husband purchased the property in question in 1946. They proceeded to build on it the following year, personally doing much of the actual construction and thereafter established a home and a place for themselves in the community. Mr. Robins became seriously ill in 1954 and died in 1956.

In the spring of 1954, plaintiff and her husband went to the New Castle County Court House to inquire about and to pay any taxes that might have accrued on the Marsh Road property here involved. They were informed that County taxes assessed against such lands and its improvements had been paid. Dissatisfied with this report, Mr. Robins set about making further inquiry when he became faint and had to be assisted from the County Building. Consequently the full story concerning the tax status of what Mr. and Mrs. Robins believed to be their property was not disclosed to them. Thereafter, Mr. Robins' health deteriorated gradually. In 1954 he had been forced to give up his job, and until his death in June 1956, remained an invalid under the care of his doctors and his wife.

In April, 1956 plaintiff returned to the County Court House to follow up investigation of the tax status of what she believed to be her property and that of her husband's and was informed that on May 2 1952 such property had been sold to defendant as a result of a statutory proceeding to collect a County tax delinquency of $26.04. This sale had followed the entry of a tax judgment for the tax year 1949-1950 under the provisions of § 8722 of Title 9 Del.C., which sale was confirmed by the Superior Court of New Castle County on May 8, 1952 pursuant to the provisions of § 8730 of Title 9 Del.C. In addition to admitting the essential facts of the tax sale and pleading the statutes governing such sale, defendant's answer alleges that the [36 Del.Ch. 454] complaint fails to state a cause of action upon which relief can be granted in this Court and pleads laches.

Plaintiff recognizes that a collateral attack on a final judgment which adjudicated her rights in land is difficult if not impossible to sustain short of a showing of lack of jurisdiction or proof of extrinsic fraud or the like, and briefs her case as one in the nature of a bill quia timet or to quiet title, claiming that equity should not recognize defendant's title in the light of the facts and circumstances surrounding its conveyance to defendant. While it is well established that jurisdiction to entertain actions to clear or quiet title exists in this Court, Suplee v. Eckert, Del.Ch.,120 A.2d 718, plaintiff's case, which is in effect an attack on the regularity of the tax sale proceeding, if accepted, would permit her to relitigate in this forum matters which have been finally adjudicated against her interests in the Superior Court.

While it is regrettable that plaintiff should be exposed to being evicted from

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her home by the holder of record title as a result of a statutory proceeding of which plaintiff was apparently unaware until too late, to direct defendant to convey her record title to plaintiff for the reasons advanced by plaintiff would entail the vacating of a final judgment entered by a court of competent jurisdiction on grounds other than that of extrinsic fraud or the like.

In the Suplee case this Court decided that it had jurisdiction [1] to determine whether or not a purchaser at a tax sale in Sussex County acquired an unencumbered title or merely the 'title of the taxable' subject to liens of record against it. In the present case plaintiff asks this Court to re-examine and in effect to set aside a tax sale judgment which adjudicated her personal rights in real estate in New Castle County. Under the facts before me I am satisfied that such relief could be granted only as a result of an unwarranted attack on proceedings of the Superior Court of New Castle County.

[36 Del.Ch. 455] The tax sale of which plaintiff complains was confirmed by order of the Superior Court of New Castle County on May 8, 1952, a fact which plaintiff concedes. Such order may not in effect be set aside on plaintiff's application in the absence of a showing of lack of jurisdiction or of evidence of fraud or the like disclosing that plaintiff has not had her day in court. Plaintiff's proof fails on both scores.

Plaintiff charges irregularities and defects on the record and introduced evidence in an effort to prove that the Sheriff's return as to the posting of the tax sale monition was not in conformity with the actual facts, [2] that the writ of sale and the sale advertisements did not mention improvements on the property to be sold, that newspaper publication of the advertisement of sale was improper and that the Sheriff's return of sale did not show where handbills concerning the sale were posted. Finally plaintiff introduced evidence to the effect that the property for which defendant made a successful bid of $200 then had a market value in excess of $5000.

I conclude after trial that much of this evidence should not have been admitted in view of a judicially approved public policy concerning our property tax laws and the procedures therein provided for collection. The giving of actual notice to an interested party as to the assessment of taxes and even of the pendency of a tax claim is not a prerequisite to the validity of a proceeding to collect an asserted tax delinquency, Pottock v. Mellott, 2 Terry 361,22 A.2d 843. Actually much of plaintiff's evidence would have been of questionable weight in direct proceedings in the Superior Court in view of the general incontestability of a Sheriff's return in Delaware, Cohen v. Krigstein, 10 Terry 256,114 A.2d 225, and Abbott Supply Company [36 Del.Ch. 456] v. Shockley, Del.Super.,128 A.2d 794, although undoubtedly the inadequacy of

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