9 Watts 341 | Pa. | 1840
The opinion of the court was delivered by
The plaintiff claims title by virtue of several con-’ veyances from Aquila and Charles Green. The original warrant for 150 acres, was issued to Joseph Long, under whom both parties claim. The 29th of October 1793, 100 acres, part of the tract, surveyed in the Long warrant, was sold for taxes; and a deed was made to John Patten, by the commissioner of Huntingdon county; and on the 16th of February 1-803, Patten conveyed to Charles Green. The 7th of February 1806, the remainder of the tract, about 4S acres was also sold for taxes, and was conveyed to Aquila Green. Afterwards, Aquila Green and Charles Green, conveyed" the whole interest in the Long warrant and survey to Thomas Wilson; Wilson conveyed to Huling, and Huling to the plaintiff. Charles Green and Aquila Green took possession of the property, exercised acts of ownership over it, by residence and otherwise; and Aquila Green built a house on what he supposed at the time, and continues to believe, was a part of the property. Wilson was in possession after his purchase, and it was proved by him, that he paid the taxes for twenty years. It also appears, that John Livingston, at the instance, and by the permission of Thomas Wilson, cleared and cultivated a little field within the lines of the survey,
The court charged the jury, “ That inasmuch, as the property was sold previous to the act of 1815, for taxes, and the plaintiff had not shown, nor pretended to show, a literal compliance with the directions of the acts, under which the property was sold, he was not entitled to recover, unless he proved, that he, and those under whom he claimed, had been in the continued and uninterrupted possession for twenty-one years. The court say, “ That they (the jury) must observe, that the plaintiff must recover by the strength of his own title, and not the weakness of the defendant’s. It is admitted the sales in 1793 and 1801 gave no .title, except the right of entry; which, if it was continued for twenty-one years, gave title. If you (the jury) cannot find, that the(purchasers in 1793 and 1801, and those claiming under them, had a continued and actual possession, the plaintiff is not entitled to recover, and you need not trouble yourselves about the defendant’s title.” The.court thereby instruct the jury, in effect, that unless the plaintiff, and those under whom he claims, had such a possession as would give title, by the act of limitations, he must fail in his action, without regard to the entry of the defendant, whether by right or by wrong, whether he had or had not a title to the land. It is only necessary to state the proposition, to be convinced, that in this direction, the court was in error.
Previous to the act of 1815, as has been correctly said, it was repeatedly held, that tofrest a title in the purchaser of lands sold for taxes, an exact and minute adherence to the directions of the laws is necessary. It must appear, that every direction and requisite of the acts has been judicially complied with. 2 Yeates 101, 812; 3 Yeates 284. But this rigid principle is only true, as between the purchaser at the tax sale, and the person who is the owner of the land, and those claiming under him. It cannot be intended to protect an intruder, or trespasser, for as against a person who enters without right, an actual possession, or such a constructive possession, as a purchaser at a tax sale obtains, is all that the law requires.' All that is requisite in a plaintiff in eject
It appears to have been proved that Wilson, who held the tax title, paid the taxes for twenty years. In Reed v. Goodyear, 17 Serg. & Rawle 350, since recognised in M’Call v. Auly, 3 Watts 73, it is ruled: that when land, for which a warrant has issued, has been sold for taxes, and the warrant holder makes no claim for twenty-one years, and does not pay nor offer to pay the. taxes accruing during that time, it may be left to a jury to presume an ouster or abandonment by him. That case, at the time it was decided, was supposed by some to be a little in advance of the law, but subsequent reflection, and I may add the experience of the profession, has convinced the' most sceptical that it is in accordance with sound policy.
It would be giving an unreasonable advantage to the owner to rule otherwise; for the owner will infallibly assert his claim or not, as the land rises or depreciates in value. This the principle above asserted is calculated to prevent, or at least to bring it within some reasonable grounds. If the jury then may presume an ouster, grant or abandonment, the silence of the former owner must enure to the benefit of the purchaser at the tax sale, however irregular that sale may be, provided he has added strength to his title, by payment of taxes subsequently assessed. The application of these principles will render it necessary to inquire whether the ownership of the tax titles, together with the subsequent payment of the taxes, gives title to the plaintiff, or, at any rate, such a prima facie right as can only be met by countervailing proof.
These several views, in the opinion of this court, render an examination of the defendant’s right necessary, and consequently the court were wrong in directing the jury that they need not trouble
■ But however these facts may be, this was not the only evidence on which the plaintiff relied, inavoidance of the sale to Reed. Livingston testified, that he cleared about two acres of the land in dispute. He farmed it, took three crops off it, plastered it, put it in clover, and left it until the year 1818. Afterwards, Alexander Stewart took possession, put it in ryé in 1822 or 1823, and the next year raised a crop on it. This testimony is confirmed by Alexander Stewart. The little field, of which they speak, was ón a different part of the survey. It is pretty clear that it does not give it the character of an unseated tract, and as such subject it to sale, because it is placed by the assessor on the unseated list, even if this be done without objection and with the knowledge of the owner. When a tract is seated, which may be either by cultivation or residence, as there is a want of jurisdiction in any person to sell, the sale is void; consent, at any rate, such as may .be inferred
But it is said that it would be wrong to reverse the judgment, because it was distinctly admitted on the trial that, unless the plain- •
As this cause goes down for another trial, we would recommend to the counsel to direct their attention to the effect of the ver-, diet in the action of trespass, on the plea of liberum tenementum. In 7 Watts 371, and in some other cases, a doubt has been expressed, whether a verdict and judgment on a traverse of liberum tenementiom is not conclusive of the title in ejectment. Although this point may, in another trial, have a material bearing, yet, as the case now stands, we do not think it right to rule that, as we have been requested, as it settles the matter as to the plaintiff’s title to recover from the defendant, even on a'naked possession.
Judgment reversed, and a venire de novo awarded.