81 Pa. 336 | Pa. | 1876
delivered the opinion of the court,
The first and important question in this case is, whether an offer to the county treasurer, of payment of all the taxes due upon unseated lands, and a payment by the owner, of all sums made known to him by the treasurer, is equivalent to an actual payment of the whole, and will prevent a valid sale of the land for an unpaid balance not made known by the treasurer ? It is undisputed that the sale is void if there be actual pre-payment of the tax. The 4th section of the Act of 13th March 1815, 6 Sm. Laws 301, is expressly on this point, and the right is recognised in many cases : Dougherty v. Dickey, 4 W. & S. 446; Hubley v. Keyser, 2 Penna. 496; Baird v. Cahoon, 4 W. & S. 540; Kennedy v. Daily, 6 Watts 269; Ankeny v. Albright, 8 Harris 157; Laird v. Hiester, 12 Harris 463.
But it is contended that a tender of payment is not within the express words of the 4th section of the act, which forbids recovery except in the case of redemption within two years, or a payment of the taxes before the sale. It is said, that being not paid in fact, the owner is bound to know it; the jurisdiction of the treasurer remains, and the purchaser will not be affected by an act or neglect of the treasurer not appearing in the proper books. The Act of 1815 is, indeed, very express, that the owner shall recover after a sale for taxes, “in no other case, and on no other plea,” than the two mentioned. Yet it has been held that these words were not intended to exclude recovery, where the tax title is obviously defective, for other good causes. Thus, in the cases of Sutton v. Nelson, 10 S. & R. 238, and Connelly v. Nedrow, 6 Watts 451, it was held that the omission of the purchaser to give a bond for the surplus of the bid over taxes and costs, is fatal; and that even payment of the whole bid to the treasurer is not sufficient. So in Bartholomew v. Leach, 7 Watts 472. it was determined that if the surplus bond contains no description of the land sold, it is fatal to the sale. In Coney v. Owen, 6 Watts 435, it was held that a sale for taxes actually assessed upon donation land, during the life of the soldier, is void; the soldier being entitled to exemption from taxes on such land during his lifetime. There was jurisdiction to sell in all these cases; in the soldier’s,
It must be conceded that the payment of taxes is a duty, and a failure to perform it is the fault of the owner. But payment is one thing, and the steps leading to it are another. Eor the latter, the owner is not responsible. He cannot assess himself, or know what is charged against him. He must await the action of the agents of the lawn He cannot pay until he is informed of what he is to pay. To perform the duty of payment he must apply to the treasurer for the taxes charged against his land. If this officer fail to give him the information on demand, on what just principle shall it be said he has not performed his duty ? It is said, there are the tax books open to inspection, let him search them. But this is neither his business nor his duty. As w7as said in Dietrich v. Mason, 7 P. F. Smith 40, the treasurer is the legal custodian of-the books and entries of the taxes necessary to show the sum to be tendered. This information it is his duty to give, and he cannot lay the books before the owner, and compel him to search for himself. The knowledge-of the latter may be inadequate to find what he needs. If then the owner pays all the taxes stated by the treasurer, he has done his whole duty. He can do no more: Baird v. Cahoon, 5 W. & S. 540 ; Laird v. Hiester, 12 Harris 464. His claim to be protected against a sale of his land for taxes he stood ready to pay, but which the proper officer has failed to present to him on demand, is quite as great as that of the purchaser to be protected against the act of the same officer in making a sale for taxes actually paid. Indeed, his equity is greater, for he has a prior title to the land, which has been wrongfully exposed to sale for an unknown trifle of tax. He would lose a valuable property, sold for no real equivalent, while the purchaser pays but a trifle of tax and costs, which, in most instances, he can have returned to him if the sale be void. In point of want of knowledge they stand upon a par; the owner’s ignorance of the tax being the equivalent of the purchaser’s ignorance of the attempt to pay it. As a matter of fact, too, purchases at tax sales are known to be full of risk, and rarely more than a tithe of the value of the land is bid. It is but just, then, that a bonfi fide attempt to pay all the taxes, frustrated by the fault of the treasurer, should stand as the equivalent of an actual payment. It is an almost universal rule, which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.
It is conceded that a similar offer to redeem land already sold for taxes, frustrated by a similar neglect of the treasurer, will stand good as a redemption. This has been too often decided to be denied: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2
The only inquiry remaining on this branch of the case is, whether the court was justified in considering the treasurer’s statement of account of the taxes, and his receipt of April 30th 1852, sufficient evidence on their face, that Charles S. Coxe, the trustee, called on the treasurer, and offered to pay all the taxes on the Matthew Smith tract. The paper is headed: “An account of all taxes assessed and unpaid on the land mentioned below, situate in Union and Bush townships, in Schuylkill county, the property of Charles P. Coxe, trustee of the estate of Tench Coxe, Esq., deceased.” In this paper the Matthew Smith tract is certainly and particularly set forth, and opposite to it, in the tax columns for 1850 and 1851, are placed the county and state taxes, but no road taxes, a blank being left in the column of road taxes. The receipt at the bottom is in these words: “ Received, April 30th 1852, of Charles S. Coxe, Esq., trustee of the estate of Ténch Coxe, Esq., deceased,, two hundred and thirty dollars and seventeen cents, in full, for the taxes, interest and costs, upon the several tracts, parts of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, Esq., trustee of the estafe of Tench Coxe, Esq., deceased, and that sum being all the taxes assessed and now due on the said unseated land, with the interest and costs thereon.” The receipt was signed by the treasurer, Gr. D. Bower, and on the same day acknowledged by him before an associate judge of Schuylkill county. This paper is very formal, and in the absence of evidence to impugn its correctness, is certainly very clear evidence to any reasonable mind, that Mr. Coxe called on the treasurer for an account of all the taxes then assessed and due on his lands, and paid all that was demanded of him by the treasurer. No one, in. view of the paper, can doubt that the omission of the road tax was the fault of the treasurer, and that the failure to pay it was no fault of Mr. Coxe.
Upon a consideration of the whole case we discover no error, and the judgment is therefore affirmed.