Goodman v. Sanger

85 Pa. 37 | Pa. | 1877

Chief Justice Agnew

delivered the opinion of the court, October 1st 1877.

In this case only one question may be considered, that is, whether there was sufficient evidence of a redemption of the land by the heirs of Philip Meyer, or by the Bank of the United States, from the tax .sale in 1816 to the commissioners of Northumberland county. That a presumption of a grant or an abandonment of title may arise from lapse of time and non-claim, when these point to the fact as a probable thing, is not disputable. The cases cited by the defendant in error prove this. Many precedents will be found collected and commented upon in Carter v. Tinicum Fishing Co., 27 P. F. Smith 315-16, and Brown v. Day, 28 Id. 139-40. •But time and non-claim, to become the foundation of such a presumption, must accord with the other facts in evidence, reasonably leading to this presumption. The presumption is not of law, but a natural inference to be drawn by a jury, of which there must be sufficient evidence, and ought not be submitted to them if really repelled by the other evidence. This is precisely the point before us. Do the facts in evidence accord with the presumption of a redemption to be drawn from the lapse of time and the alleged non-claim of the commissioners of Northumberland county ?

To clear the case of a confusion of ideas between abandonment of title and redemption from sale, and from the effect of a payment of subsequent taxes, some things must be first noticed. And first it must be remembered that after the lapse of five years from the tax sale, the title of the county became absolute, and nothing but a redemption by the permission of the commissioners could adeem the title of the county; and it must be remembered that the tract remained in a wild and unseated state until the year 1871 or perhaps 1872. The legal or presumptive possession was, therefore, in the county in the meantime. It is next to be noticed that if a redemption existed, it is obvious it must have been made before, the year 1840, that is, in the interval between the years 1816 and 1840, when the commissioners of Northumberland redeemed the land from the sale in Columbia county made in 1838. After 1840 a permissive redemption only could be made, and it is not pretended there is any evidence to justify this presumption. The utmost effect of the subsequent facts would be to help to sustain a redemption prior to 1840.

The next fact to be remarked is that there is no record or documentary evidence of a redemption of right or by permission, while under the sixth section of the Act 13th March 1815, the evidence ought to appear both in the treasurer’s and the commissioner’s office. The letters Pd. B. opposite to the entry of the county tax of fifty-two cents in the year 1805 clearly is no evidence of redemption. And first the entry is confined to the county tax of that year, and is not carried forward to the taxes following either by words or signs. Next the county tax, fifty-two cents, of 1805 was not included in the taxes set forth in the deed. Those make $4.19, just the sum of all the other taxes down to 1813, including the road tax of 1805. The road taxes in all were $1.88, from which, deducting the fifty-two cents, $1.38 are left, the precise sum mentioned in the deed; showing that the clerk or scrivener inadvertently deducted the fifty-two cents from the wrong sum. It is evident that these fifty-two cents were paid before sale, and were not included. This accords with another pertinent fact. The Bank of the United States held a mortgage from John Nicholson, the owner of the land, dated in March 1797, and paid the back taxes of nine years, viz., $5.33, which sum precedes the entry of fifty-two cents, and was marked in the same way, Pd. B., so that the entry Pd. B. opposite the fifty-two, in 1805, was without doubt paid by the bank, and probably at the same time, the road taxes of 1805 not being then returned, as was common. This is strengthened by still another fact. The mortgaged land was sold out by the state in the year 1807 upon her lien against John Nicholson, so that he had after that date no title to answer the mortgage to the bank. There is no reason, therefore, to suppose that the bank in 1816, or any time afterward, would redeem lands to which John Nicholson had no title to serve his mortgage. The court below held, and very properly, that there was no evidence to be submitted of payment of the taxes before the sale, and it is just as clear that there was none afterwards. As to the bank, we have seen it had nothing to redeem. • How then does the case stand as to Philip Meyer, the purchaser of the state of Nicholson’s title in, 1807? The law gave purchasers of Nicholson lands a long credit upon securing the payment by bond. Meyer gave his bond for the purchase-money, but died before it fell due and before the tax sale in June 1816, for on the 2d of January 1816 Yalentine Brobst (the surety probably) paid the money into the state treasury for the estate of Philip Meyer. It is evident, therefore, that unless the heirs of Philip Meyer were old enough to know the state of the land in July 1816, when the treasurer made his deed to the county commissioners of Northumberland, it is not probable they redeemed. The facts, however, repel any presumption of a redemption by them. Their deed was not obtained from the Commonwealth until the year 1836, and it was not until the year 1859 they began to sell the lands purchased by their father, this tract being but one of a number included in the purchase, and bought at thirteen and a half cents an acre. Strength is added to these by another fact. On the trial of this cause in 1876, Franklin P. Meyer, one of the heirs, as he is shown to be in the deeds, was called to prove who were the heirs of Philip Meyer. If he were the oldest child he would have been eighty-one years old to have béen in his majority in 1816. Besides the land had passed into the county of Columbia three years before, to wit, in 1813, rendering it still more improbable that the young heirs of Philip Meyer1 knew of a tax sale in Northumberland county in the year 1816. The power to make the sale had been reserved in the Act of 1813. In summing up these facts we can find nothing whatever to render a redemption probable; but rather the reverse and the negative is strengthened by these further facts. The commissioners of Northumberland, besides having no personal interest to quicken their diligence, were constantly changing; and like other officers of the county, being chosen from the body of the people, were not likely to have much knowledge of past county affairs. Before the end-of the five years allowed for redemption it is probable no member of the board knew of the title of the county, while the land being in Columbia county was no longer on the tax books of Northumberland, to remind the commissioners from year to year of the claim of the county. Nor was there anything in the condition of the land itself to remind them, it being tenantless and unseated until 1871 or 1872. When all those facts are summed up there appears to bo no room for a presumption that would attribute the lapse of time and inattention of the commissioners of Northumberland county to a redemption. On the contrary, they repel such a presumption, and tend to lead to the belief that this lapse of time and inattention were owing to a want of knowledge and to neglect, until discovery of the deed or some other circumstance called the fact to mind when the redemption of 1840 took place. It is a strong fact against redemption that the deed poll, which the sixth section of the Act of 1815 requires to be surrendered, remained in possession; and this fact is further strengthened by the redemption by Northumberland county in 1840.

If then no redemption took place before 1840, nothing has occurred since, sufficient to prove abandonment of title by Northumberland county or the acquisition of a now title by the former owners. There was no actual possession of the land and nothing therefore upon which the Statute of Limitations could take effect. The title of the county then being absolute, there was nothing inchoate or imperfect, which might be suffered to lapse from laches or inattention. In the case of an absolute title and its constructive possession, as a legal incident of unseated land, the non-payment of taxes by the owner creates no abandonment or forfeiture of title. Nothing less than a sale of the land for the unpaid taxes will extinguish his title. Nor will payment of taxes by another give him title without a possession to give effect to the statute, or other facts to create an estoppel. Non-payment of taxes by the owner and payment of them by an intruder in possession, may be evidence of an admitted ouster to the extent of the boundaries of the tract and thus to extend the pedis possessio to the Avoodland; but payment of taxes alone will not confer title where none exists. These principles are fully sustained by numerous cases, a few of which are referred to : Naglee v. Albright, 4 Whart. 300; Sorber v. Willing, 10 Watts 141; Sailor v. Hertzogg, 10 Barr 316; Mayor of Philadelphia v. Riddle, 1 Casey 263; Kelsey v. Murray, 9 Watts 111. The facts of Kelsey v. Murray are not reported, but it is obvious from the opinion the land aaus in the possession of tenants, and therefore it is no exception to the rule.

Judgment reversed and a venire facias de novo awarded.