Appeal from the Circuit Court for Prince George's County; Bowie, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Marbury J., delivered the opinion of the Court.
To be resolved on this appeal is the question of which of the parties has superior claim to lots numbered 33 to 36 inclusive, in the subdivision known as "Shanabrooke's Resubdivision of Central Heights", College Park, Maryland. The appellants, J. Earl Keefauver and his wife, claim the property by virtue of tax titles and adverse possession, while the appellee James E. Richardson, Jr. presents his claim under a right of redemption.
Pursuant to Code (1957), Article 81, § 97, et seq., the appellants filed a bill in equity in the Circuit Court for Prince George's County to foreclose all rights of redemption in the subject property. The bill of complaint averred that in March 1916 lots 33, 34, and 35 then assessed in the name of James E. Richardson, through whom the appellee claims, were sold by the county treasurer at a tax sale for taxes due and in arrears for the year 1915, to the County Commissioners of Prince George's County. After the expiration of the prevailing statutory period for redemption these lots were sold and conveyed by the county commissioners in the fall of 1918 to J. Fred Keefauver, the original predecessor in title of the appellants. The bill further alleges that in 1935, lot 36, also being then assessed in the name of James E. Richardson and also having been duly sold at a tax sale to the county commissioners for nonpayment of taxes for the year 1934, was sold to the same J. Fred Keefauver, who died in 1951.
His interest in all four of the lots was inherited by his two sons, Lester and the appellant, J. Earl Keefauver. Lester died in 1956, and shortly thereafter his widow, and sole heir, sold and conveyed her undivided one-half interest in the lots to the appellants. In response to the bill of complaint the appellee, James E. Richardson, Jr., acting under Code (1957), Article 81, § 94 filed a petition to redeem the property. Immediately thereafter the appellants' counsel filed a bill in equity in the same court to quiet title in the property in themselves pursuant to Code (1957), Article 16, § 128. The bill of complaint in that suit alleged that possession of the property was in the appellants or their predecessors in interest, and that they had been in actual, open, notorious, visible, exclusive and continuous possession of the lots for a period of over twenty years prior to the institution of that proceeding.
Appellants then moved for consolidation of the second suit with the first proceeding. Appellee Richardson filed a motion ne recipiatur or to strike this second suit on the ground that the appellants, by first filing an action to foreclose the right of redemption, had caused to be created in the appellee a right of redemption which he otherwise would not have had, and that
such right could not be defeated by a claim of adverse possession.
At this stage of the litigation appellants' present counsel entered their appearance. After oral argument on both motions Judge Powers granted the motion to consolidate, but denied appellee's motion ne recipiatur or to strike, without prejudice to any point raised by appellee. Subsequently the appellee filed an answer and a motion for summary decree, advancing the same reasons as in his earlier motion, namely, that appellants had made a binding election when they chose to proceed under Article 81. The appellants in turn filed a motion to dismiss the first proceeding on the ground that it was a nullity, that filing it could in no way affect their vested fee simple title, which they claim they got either from the county commissioners or through adverse possession. After hearing on these last two motions the court, by Judge Bowie, denied appellants' motion to dismiss the first proceeding and granted appellee's motion for summary decree as to the suit to quiet title. From that action by the court this appeal was brought.
The Keefauvers contend here, as below, that they had a fee simple absolute title, either by virtue of transactions by their predecessor in interest with the county commissioners or by adverse possession for a period of more than twenty years. They further contend that the chancellor was in error in ruling that appellants subjected their title to appellee's right of redemption by the mere filing of the suit under Article 81 to foreclose.
At the outset, while the appellee does not argue before us that the lower court should have stricken the second suit, we think the court was in error not to have done so. This second suit was brought under Code (1957), Article 16, § 128, which clearly states that a bill to quiet title may be brought only "when no action at law or any proceeding in equity is pending to enforce or test the validity of such title, lien or encumbrance, or other adverse claim * * *." Since the first proceeding was to enforce or test the validity of ...