6 Watts 435 | Pa. | 1837
The opinion of the Court was delivered by
The argument built on the temporary exemption of donation lands from taxation, is that they are not within the jurisdiction of the fiscal officers, or the operation of those laws which authorize sales of unseated lands; and it would, perhaps, be conclusive were the jurisdiction bounded in respect to them as it is in respect to seated lands. But the words of the act of 1804, which is the groundwork of the succeeding legislation, distinctly embrace them while they are only excepted for a period by a par
By the seventh section of an act of the legislature, passed the 1st day of March 1780, Smith’s L. 489, it is enacted, “ that all lands, which have been, or may hereafter be granted within this state, to any officers or soldiers of the line of this state, by virtue of any resolution of congress, or law of this state, as a reward for their services, shall be, and are hereby exempted from taxation, for, áñd during the life of such officer or soldier respectively, unless the same shall be transferred to any other person.” This enactment is again .introduced into a subsequent act, passed oil the 16th of March 1785'; and in the very same terms, forms a provision of the 33d sect. 2 Smith’s L. 2S7. After the passage of these acts, the land in question was granted under the directions of an act .passed on the 24th'of March 1785, by the commonwealth to John Carleton, as a reward for his services, performed as a soldier of the Pennsylvania line, to be held by him during his life or ownership thereof, according to the express enactment and provision of the above act, free and exempt from all liability to taxation.
In accordance with-this view, and upon this ground the decision of this court, would seem to have been made in Finney v. The Commissioners of Mercer county, 1 Serg & Rawle 62, where it Avas held, that land granted by this state to an officer of the Pennsylvania line, is not subject, while owned by him, to county or road taxes; nor in short, to taxes of any kind, it may be added, according to the principle of that decision. This exemption of the land from taxation has, very properly, as I conceive, been regarded as forming a part of the contract under Avhich the grantee obtained the land from the state.- The late chief justice, in delivering his opinion in Finney v. The Commissioners of Mercer, county, says, “ it is to be considered as a- contract between the government and the army, and the Avords being spoken by the legislature, are entitled to- a liberal construction in favour of the soldier. But there needs no liberality of construction.' The plaintiff asks no other than the literal and common meaning of the expressions of the law.”
The act of assembly, passed on the 3d' of April 1804, under which unseated lands are'made taxable, and the mode of selling them pointed out in case the taxes are not paid, in the second section thereof, Stroud’s Purd. Dig. 948, declares that,“all unseated lands within the commonwealth, held by individuals, companies,- or bodies corporate, either by improvement, Avarrant, patent or otherwise, shall, for'the purpose of raising county rates and levies, be valued and assessed iti the same manner as other property.” But unless this be considered a repeal of the exemption previously
It is said, however, that the late chief justice, in delivering the opinion of the court, in Creigh v. Wilson, 1 Serg. & Rawle 41-2, has declared the words, “ where the recovery is effected,” must be considered as having a reference to all cases of land sold for taxes. But it would be dealing very unfairly with that learned and distinguished judge, to suppose that he meant to include the case of a soldier’s land being assessed and sold for taxes. The question raised there, was, whether the clause respecting improvements applied as well to the lands of owners under no disability as to those under the disabilities therein mentioned. The counsel of the plaintiffs in that case, contended that the clause extended only to the lands of minors and insane persons residing within the United
If, however, the least shadow of doubt could be raised, in respect to a soldier’s land not being embraced in the clause relative to improvements, a reference to a supplementary and subsequent act of the 13th of March 1815, Purd. Dig. 953, (by Stroud,) would at once remove it; and make it as clear as the sun at noom-day, that consistently with the .plain, common, and' also literal meaning of its provisions, taken together with those of the prior acts, cited above, a soldier, whose'land, such as that in question, is taxed and sold on account thereof, cannot be deprived or kept out of the possession of it, until he shall have paid the purchaser at such sale, the value of the improvements made thereon by him after his purchase. The fourth section 'of this last act, enacts that, “if the owner or owners of lands sold as aforesaid, (thus referring to the lands before mentioned, which are made expressly liable to taxation,) shall make or cause to be made, within two years after such sale, an offer or legal tender of the amount of the taxes, for which the said lands were sold, and the costs, together with the additional sum of 25 per cent, on the same, to the county treasurer, who is hereby authorized and required to receive and receipt for the same, and to pay it over to the said purchaser, upon demand, and if it shall be refused by the said treasurer, or in'case the owner or owners of lands so sold, shall have paid the taxes due on them, previously to the sale, then, and in either of these cases, said owner or owners shall be entitled to recover the same by due course of law, but in no other case and on.no other plea, shall an action be sustained.” Then, after repealing so much of the principal act, as required notice of the taxes being due, and the sale to be made therefor, to be given in certain public newspapers, a proviso is added in the following words: “That when the owner or owners of land sold as aforesaid, shall, at-the time of such sale, be an orphan or orphans, or insane, and residing within the United States, two years
The case of Gilmore v. Thompson, 3 Watts 106, has been relied on to support the claim of the defendants to be paid the value of their improvements. That case, however, was decided expressly upon the ground, that the land was liable to taxation, and that the tax assessed thereon was paid before the sale; thus bringing it within one of the two cases expressly provided for by the terms of the 4th section of the act of 1815, wherein it is declared that the owner shall recover his land upon paying for the improvements made thereon by the purchaser after the sale. The only plausible objection to the decision there was, that the provision allowing to the purchaser the value of his improvements, was intended only to be applicable where the owner was an orphan or insane, and residing within the United States at the time of the sale; but the plaintiff not being either an orphan or insane, was therefore entitled to recover the possession of his land without paying for the improvements. This objection, however, had been previously overruled in Creigh v. Wilson, under the act of 1804; and the act of 1815, as it was conceived by the court, not being materially different in its terms, as to this point, from the act of 1804, it was therefore rather looked upon as settled.
But it is said that the commissioners of the county have a general jurisdiction over all unseated lands for the purpose of taxation, and in case of failure on the part of the owners thereof to pay the taxes when assessed, to cause the lands to be sold therefor; and hence the purchaser is not bound to look further and see whether the land taxed and offered for sale, belongs to a soldier or not, and thus ascertain whether it was liable to taxation or not; and accordingly buy or not buy, as he found it to be one or the other. This argument, however, if it proves any thing, would seem to prove too much; for it would go to establish the sale, and give to the purchaser the land also, as well as the improvements. Upon the same principle the commonwealth might have her lands taxed, sold and taken from her, or be improved out of them. But it cannot be questioned, I apprehend, that a purchaser at such sale is bound to know whether the commonwealth has parted with her title to the land selling or not; and if he be, and it be so, that she has, then it must be taken that he knows to whom, whether to a soldier or not, as a reward for his military services, which can be determined by inspection of the grant, the record of which is open to every one;
• Again it is said, that the great object of the legislature was to encourage persons to buy unseated lands when offered for sale on account of taxes, and afterwards to go on and improve them; and therefore, with a view to promote this end, the acts are to be liberally expounded, and by this means the case of the defendants will be brought within the spirit and equity of the acts, if not within the letter of them, so as to receive the value of their improvements. No doubt the design of the legislature was such as has been stated; but then it is a great mistake to suppose that the legislature ever intended that any lands should be either taxed, sold or improved at the expense of the owner, by the purchaser, except those which, under the acts of assembly on this subject, are made liable to taxation; and certainly not the lands of soldiers, such as that in question, as has already been clearly shown, and, indeed, not denied.
It has also been advanced as an argument in favour of allowing the claim of the defendants for their improvements, that it is no injury to the plaintiffs to be compelled to pay for them, because they will then have the full benefit of them; and that the defendants will be great losers if they should have to surrender the possession of the land without being paid for their improvements, which, in justice, ought not to be. I have shown already that, upon a fair construction of the acts of assembly, which are perfectly free from ambiguity, it is impossible to bring the land in question, as long as it remained the property of Carleton, within the operation of any part of these acts. In short, that it is not included within the acts authorizing the taxing of unseated lands for any purpose whatever. This being the case, and there never having been any contract, either express or implied between Carleton and the defendants or the plaintiffs and the defendants, whereby any right could accrue to the defendants to demand payment for their improvements, their equity to be paid for them is the same, and no more than that which every intruder or trespasser has who enters upon and improves lands without and against the consent of the owner. Yet in this latter case it must be admitted, I think, that no claim to compensation for doing so can be sustained in this state, either at law or in equity. It is therefore obvious, that the defendants have no right to any compensation for their improvements, which they can enforce, either at law or in equity. Had they exercised the precaution which the law requires of purchasers generally, it could not have happened to them.
Although the improvements may be of some benefit to the owner of the land, who is not obliged to pay for them in order to obtain
I therefore think the court below erred in admitting the evidence showing the value of the improvements, and in directing the jury to ascertain and report the value of them. The judgment as to the value of the improvements in favour of the defendants ought to be reversed, and the judgment in favour of the plaintiffs for the recovery of the land to stand.
Judgment affirmed.