78 Pa. 129 | Pa. | 1875
delivered the opinion of the court, May 10th, 1875.
The argument in this case took a wide range, involving questions of abandonment, seisin, possession, casual entries, and other matters often important in determining questions of title. But the true attitude of this casé presents only a single principal question, to wit: Whether the two plaintiffs, Israel Day and Samuel Saylor, had, in the year 1860, such claim or color of title to the Samuel Harvey tract as enabled them rightfully to pay the taxes. ■ If they had, then the taxes being paid, and accepted .,by the treasurer in fact, and the misapplication of the money to the wrong tract being wholly his fault, as found by the jury, he had no right or authority to sell the land; the tax' sale to S. J. Hollinshead, after payment of the taxes, was void, and the plaintiffs were entitled to recover: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315.
Then, had these plaintiffs such claim or color of title as authorized them to pay the taxes on the tract warranted in the name of Samuel Harvey ? Had they such a title as the law would enable them to pi’otect by payment. This must be determined by the facts in evidence. A warrant was issued in the name of Samuel Harvey, on the 17th September 1792, for four hundred acres of land on Trout creek, near the Lehigh, in Northampton county, upon which a survey was made on the 19th of November 1792, of four hundred and thirteen and three-quarter acres and allowance, the same land now in controversy. Wayne county was cut off from Northampton in the year 1798, by a line from the Delaware river to the mouth of Trout creek, on the Lehigh, running by this tract, and leaving it, as it was supposed, until recently, in
The fact that the Samuel Harvey tract was assessed as unseated,
Bearing on this question are some of the decisions as to the right of redemption. Thus, in Shearer v. Woodburn, 10 Barr 511, a purchaser from one who had purchased at sheriff’s sale the claim of one who had exercised acts of ownership over land, and been the reputed owner for years, was deemed to have such title as entitled him to redeem. Redemption presupposes a valid sale for unpaid taxes, and requires a clearer right to redeem after such a sale than to pay taxes before the sale, in self protection.
There is another class of cases bearing on this right to protect such a claim of title, to wit, those establishing a presumption of title arising from great lapse of time. In this case there had been no claim by the warrantee, or any one under him, for a period of over eighty years at the time of trial, and no adverse claim or interruption of the title by sheriff’s sale in 1806, for fifty-four years, at the time of the sale for taxes. In Taylor v. Dougherty, 1 W. & S. 326, a case of one claiming a warranted tract against an intruder without title, Chief Justice Gibson said : “ The land was warranted and surveyed in 1773, in the name of Henry Kepple, of whom nothing has since been heard during a period of near seventy years, while they, under whose title the plaintiffs claimed, exercised the only ownership over the warrant, of which, as a title to wild land, it was susceptible. They paid the only taxes for it that ever have been assessed upon'it, and this from 1805 till the trial of the cause (1840). Surely, if the beneficial ownership had
Another class of cases gives strength to the position of Day and Saylor as claimants under color of title, viz., those holding that even a treasurer’s deed before the Act of 1815, or one which may not be maintained against the owner of the land, will enable the holder of the tax deed to recover against an intruder: Foster v. McDivit, 9 Watts 344, 345. Now, clearly, a title such as would enable the possessor of it to recover against an intruder would be sufficient to enable the same party to pay the taxes on the land he can thus recover. In doing this he is performing a public duty and injuring no one, for the true owner is benefited by his act, and his title saved from a sale, while the subsequent purchaser from the treasurer had not then come into existence, and had then no rights to be affected. As the owner of even a defeasible title he ought to be permitted to protect himself by payment, for the true owner may never come, or may be barred by lapse of time, and the title may never be defeated. Thus we have in the case before us a holding of the title for fifty-four years, repeated sales and conveyances of the two tracts as one, a joint holding of both under the same title, actual possession of one longer than to give title by limitation, and the use of the other by means of backwater and cutting timber, a dying seised and devise of both as one body of land, and subsequent conveyances in continuation of this unity, and payment of taxes as they were demanded, without any adverse claim of title whatever. Clearly such a claim of ownership entitled Day and Saylor to pay the taxes in 1860, and thus avert a sale.
In regard to the only other question, that as to the sufficiency of the search for the letter to James H. Stroud, it seems to us,
Judgment affirmed.