31 Pa. Super. 337 | Pa. Super. Ct. | 1906
Lead Opinion
Opinion by
This is an action of ejectment brought to recover possession of 207 acres of unseated land, said to be located in Logan township, Clinton county. The plaintiff claimed under a treasurers’ sale of unseated lands, made January 26, 1893, for the nonpayment of taxes attempted to be assessed for the years 1890 and 1891. The treasurers’ sale and the deed made in pursuance thereof are conceded to be regular, if there was a valid assessment of the land described in the writ of ejectment. It is also conceded that the title attempted to be made by said sale and deed was regularly conveyed to the plaintiff prior to the commencement of this «suit.
The parties, by agreement filed, waived a jury trial and submitted the case to the court under the Act of April 22, 1874, P. L. 109, and the court having entered a final judgment in favor of the plaintiff for the land described in the writ, the defendants appealed to this court.
The integrity of the judgment rests upon the sufficiency of the assessment of the land described in the writ as unseated land, for the years 1890 and 1891. The learned court finds as a fact that: “ 207 acres of unseated land in the warrantee name of ‘ Thomas Carothers ’ were assessed in Logan township, Clinton county, for the years 1890 and 1891 andwalued at f207.” The learned court also finds that “ on September 10,1794, a warrant was issued by the commonwealth to ‘James Carothers ’ for 400 acres of land adjoining land granted on the same day to William Hammer on the south. In pursuance of this warrant a survey was made December 2, 1794, and returned into the land office on September 28, 1795, as containing 407 acres and three
The court further finds, in substance, that although the whole of the land described in the warrant was formerly located in Centre county, by legal proceedings establishing the boundary lines between the counties of Centre and Clinton, 207 acres of the tract of unseated land in the name of “ Thomas Carothers ” were in the county of Clinton, and that this land was a part of the 407 acres, and the same land assessed and sold by the treasurer as above stated.
Exceptions were filed by the appellants to the findings of fact and conclusions of law, and among these exceptions is one attacking the validity of the proceedings of the commissioners appointed to run and mark the boundary lines between the counties of,Centre and Clinton. The view we take of this case does not require a decision upon the question of the validity of the work and report of said commissioners, and, for the purposes of the present decision, we will assume that the learned court is correct in finding that: “ The commissioners ran and marked the boundary line between the two counties and made and filed the drafts required by the statute.”
This brings us to the real question in the case, i. e., is the assessment sufficient upon which to rest a valid sale of unseated lands for the nonpayment of taxes ? It is conceded on all hands that the land intended to be assessed and sold by the county treasurer was a part of the 407 acres and three perches described in the warrant of September 10, 1794, and the survey of December 2,1794. Now, turning to that warrant and survey we find that it was in the name of “ James Crowthers ” and not “James Carothers,” as found by the learned court in his findings of fact. There is not in this record a scintilla of evidence upon which to rest the finding of fact that the warrant was in the name of “James Carothers.” In our opinion, the mistake of the learned judge in assuming that the name was “ Carothers ” led him to the erroneous conclusion that the assessment of the land in dispute for the years 1890 and 1891, in the name of “ Thomas Carothers,” was a valid assessment. We have already seen that the learned court found that the land in question was assessed in the warrantee name of “ Thomas Carothers,” but there is no evidence in the record that any land was warranted
A careful examination of the evidence convinces us that there is nothing in the assessment, upon which the tax title is based, which will lead to the identification of the land described in the writ. It is not identified in the assessment by the number of acres contained in the original warrant; it is not identified by the name of the warrantee, as the assessment is “ Thomas Carothers,” while the correct warrantee name is “ James Crowthers ”; there is no warrant number given in the assessment, no adjoiner, and there is nothing referred to in the assessment itself which will fill the requirements of the law as established by numerous cases. Note here that the assessment is neither in the Christian nor surname of the warrantee.
In Bachop v. Critchlow, 142 Pa. 518, the question of the validity of an assessment is considered, and on page 526 the Supreme Court, by Mr. Justice Clark, said: “ His treasurers’ deeds were not shown to cover the premises in dispute; the name of S. Critchlow had in no way been connected with the title to the land, good or bad. There must be some element of identity in the assessment itself, leading to a knowledge of the land assessed, — a description of the land, or some circumstance, number, or-adjoinder, associated or connected with it, ora name connected at some time with the title to the land, good or bad.”
The doctrine so plainly laid down in the above case is not new, as we find, in substance,' the same rule in Lyman v. City of Philadelphia, 56 Pa. 488. In that case Agnew, J., on page 499, said : “Authorities were also multiplied to show that it had often been held that the land must be in somewise identified from something appearing in the assessment; and that the assessment of lands is a matter resting upon the written evidence of it found or once actually existing in the commissioners’ office.” In that case the assessment was : “ Turnbull John, 401 acres, at 25, $100.25, tax, 80.” The attempt was
In our opinion, there is no material difference in that case and the present one. If an assessment in the name of John Turnbull was not good as to the land of James Trembel, how can it be said that an assessment of 207 acres of land in the name of “ Thomas Carothers ” will sustain a tax sale of a part of 407 acres of land warranted in the name of “James Crowthers ” ?
In Fisk v. Corey, 141 Pa. 334, we find the same doctrine plainly stated. The Supreme Court, by Mr. Justice Clark (p. 347), said: “ There is no evidence upon the face of the assessment sufficient to go to a jury upon the question of identification ; . . . . Although the decisions were not formerly to this effect, it is now well settled that the land must be in some way identified, from something appearing in the assessment; and this rests the proof of identification solely upon wliat is found or once existed in the commissioners’ office: Philadelphia v. Miller, 49 Pa. 440; Lyman v. Philadelphia, 56 Pa. 488. . . . Assessment is, from its legal requirement, and the necessity for preserving its evidence, a written entry, and must depend upon the records of the commissioners’ office, and not upon parol testimony, or the private duplicate of the assessor.”
The learned court below seems to have felt the necessity of helping out the assessment by parol and other evidence. One of his material findings of fact is that “ it appears on their draft filed in the commissioners’ office of Clinton county that 207 acres of a tract of unseated land in the name of ‘ Thomas Carothers ’ were in the county of Clinton, and has for its adjoiners the William Boyd and William Hammer tracts.” But this matter was in no way connected with the assessment, and it was entirely incompetent evidence for the purpose of attaching the “Thomas Carothers” assessment to the “James Crowthers” land. ^ Again the learned court finds that: “ The location of the James Carothers tract of land on the ground is well established by the testimony of the surveyors, and .adjoins the William Boyd and William Hammer tracts for which it calls.” But this finding of fact is wholly immaterial because there is
We think it of some consequence that the owners of the 407-. acre tract believed it to be all in Centre county, and it was offered to be proved that this tract was all assessed in that county and the taxes regularly paid thereon. This fact relieves the owners from any culpability in seeking to escape the payment of taxes on the land.
We find in^ the record the testimony of H. A. Myers, assessor' of. Logan township, that he did not and would not assess any of the James Carothers land to “ Thomas Carothers,” because he supposed it was in Centre county, and he knew it as the “ James Carothers ” tract nearly all of his lifetime. Samuel Elgin, another assessor of Logan township for 1891, testified
In our opinion, the weight of the evidence indicated that the land was not generally known in the neighborhood of its location as the “Thomas Carothers” tract, but by some people as the “James Carothers.” We therefore conclude that the learned court erred in finding as a fact that the land in question was ever so generally known by the name of “ Carothers ” as to justify assessing it in that name. But possibly the evidence would justify a finding that an assessment of the land in the name of “ James Carothers ” would be sufficient. But we cannot assent to the conclusion that an assessment of this land in the name of “ Thomas Carothers ” was sufficient to lead to its identification. It is fairly deduoible from the evidence that “Thomas Carothers” was, as to the land in question, a myth.
The learned court below in support of his conclusions relied on Woodside v. Wilson, 32 Pa. 52; Strauch v. Shoemaker, 1 W. & S. 166 ; Glass v. Gilbert, 58 Pa. 266; Franklin Coal Co. v. Bertels, 109 Pa. 550, and McClements’ Appeal, 2 Pa. Superior Ct. 443.
In Woodside v. Wilson the plaintiff recovered under a treasurers’ deed for 100 acres of land, assessed as part of tract No. 1,302, in the name of .E. Rockwell, and sold for the taxes of 1850 and 1851; and gave evidence on the trial to show that the assessor intended to assess No. 152, a donation tract in Richmond township, included in the eighth district of donation
In Strauch v. Shoemaker, the real question decided is stated in the syllabus thus : “ When unseated land is sold for the payment of taxes, the title of the real owner, whatéver it may be, passes to the purchaser, whether it be assessed and sold in his name, the name of the warrantee or a stranger, and whether
In Glass v. Gilbert it is held as stated in the syllabus : “ To pass title by tax sale, the assessment must contain some element either of circumstances -or name which leads to identification of the land. Although there be no other element of description, if the name in which it is assessed has become linked to the land by some known claim of title or possession, it is a source of identification and will support the assessment.” In that case Agnew, J. (p. 290), said: “ In this case Benjamin Combe’s name became associated and connected with the land by his purchase of the Whitman claim, and this afforded a means of identifying the land assessed in his name as 800 acres in Rush township.” Thus it clearly appears that the assessment was in the name of a person claiming to own the land or an interest therein.
Franklin Coal Co. v. Bertels, is authority for the proposition that: “ A sale of unseated land for taxes passes the title to the purchaser although the land may not have been taxed and sold in the name of the real owner. In such a case, however, the land must be identified and distinguished in the' assessment as the same land as that in controversy; and in case of dispute the question of identification is for the jury.” But that case must not be understood as holding that the question of identification can go to the jury, except on sufficient evidence. This is squarely ruled in McClements’ Appeal, 2 Pa. Superior Ct. 443, where President Judge Rice (p.459) said: “The
Franklin Coal Co. v. Bertels, is not very satisfactorily reported, but it does clearly appear that the land was' assessed for many years in the name of Joseph Newbold, and that it was surveyed for the heirs of Joseph Newbold, and it further appears that the land in question was commonly known by the people who knew- the tract, and by the taxing officers, as the Joseph Newbold tract. Upon this state of facts the court submitted the question of identification to the jury, and on appeal the Supreme Court said: “The questions of the identity of this tract being the one that was assessed and sold, as well as whether there was such a severance of a part of the tract by a distinct line of demarkation so as to leave the rest unseated, were well and carefully submitted to the jury.” That case is authority for the proposition that the identity of the land is for the jury where there is sufficient evidence, and -the Supreme Court agreed with the court below that the evidence was sufficient to carry the questions in dispute to the jury. We do not regard that case in conflict with Fisk v. Corey, 141 Pa. 334, and Bachop v. Critchlow, 142 Pa. 518, but if it can be regarded as in conflict with those cases, it must fall, becatrse they are much later and much more thorough discussions of the questions involved than we find in Coal Co. v. Bertels.
Our conclusion is, upon a careful consideration of the evidence and authorities, that if the present case had been tried before a court and jury, there was not sufficient evidence to carry to the jury the question of the identification of the land assessed in the name of “ Thomas Carothers ” in Logan township, and that the assessment will not support a tax sale of the 207 acres of the warrant granted in 1794 for 407 acres and three perches of land in the name of “ James Crowthers.”
The learned judge erred in not directing judgment in favor of the defendants, and the judgment is now reversed and judg
Dissenting Opinion
dissenting:
It is to be noticed that this case was tried by the court without a jury. It is needless, to say that the judge’s findings of fact, if there was any evidence to support them, are as conclusive upon appeal as a verdict of a jury. In order to reverse this judgment we must overturn the judge’s finding that the 207 acres of land assessed and sold in the name of Thomas Carothers was the land covered by the James Carothers warrant and survey. I am unable-to concur in the conclusion that this finding of fact is wholly unwarranted by evidence in the case. In addition to the facts stated in the opinion of the learned judge below, it is not out of place to call attention to the evidence tending to show that the commissioners appointed to run the county line designated this 207-acre tract as the Thomas Carothers tract in the map which they filed, that there is no tract in the warranty name Thomas Carothers, that it was known in the community by the name Thomas Carothers, that from 1878 to 1882 this tract was assessed in the name of Thomas Carothers, and also from 1884 to 1899 it was so assessed. Taking the evidence as a whole I do not think we can say as matter of law that the assessment was not sufficient to lead to identification. “ In making out an actual assessment of unseated land which has been sold for taxes, much liberality has always been shown by the courts in receiving evidence. . . . Until all the evidence bearing upon the question of assessment is in, it would be unsafe for the court to pronounce its effect.” Agnew, J.', in Lyman v. Philadelphia, 56 Pa. 488. As illustration of the principle, land lying in one township may pass under an assessment and sale for taxes ' describing it as lying in another, provided there are other means of description sufficient to identify the land, “of which, generally, the jury are the judges Stewart v. Shoenfelt, 13 S. & R. 360; Miller v. Hale, 26 Pa. 432. In McClements v. Downey, 2 Pa. Superior Ct. 443, we said: “ The authorities agree, if we understand them correctly, that an assessment is not required to contain in itself all the circumstances which are necessary and sufficient to identify the land without resort to other evidence. It must
The foregoing suggestions indicate tbe reasons which impel me to the conclusion that the judgment of the court below should be affirmed.