61 Pa. 444 | Pa. | 1869
The opinion of the court was delivered, May 11th 1869, by
There is one question presented upon this record, the determination of which, according to the view we take of it, dispenses with the examination in detail of the errors assigned. Did the plaintiff below give in evidence such a primfi facie title as was sufficient to put the defendant upon proof of a better one ? It must be admitted that if he did, the defendants failed, according to the verdict of the jury, to show any right to the possession. With a perfectly good title, as it would seem, to a tract numbered 4886, they had by mistake settled upon and improved another
The plaintiff claimed as the purchaser under sale for taxes. He showed the title to be out of the Commonwealth by a warrant to Wilhelm Willink et al., dated February 3d 1784, a survey made thereon July 8th 1784, and returned into the land office September 16th 1784. He then gave evidence of an assessment of taxes on this tract, No. 4883, as unseated for the years 1818 and 1819, a deed of John Taggart, late treasurer of McKean county, to the commissioners of that county, dated May 1st 1826, reciting a sale made November 9th 1820, followed by a deed from the commissioners to John King, dated January 5th 1829. The title to the western half of the tract was then deduced from John King to the plaintiff, and payment of taxes by plaintiff was proved from 1830 to 1866 inclusive. The defendants had been assessed and paid taxes on No. 4886, as seated, supposing it to be their tract which they had settled upon and improved from 1845 tBH1846, when they went into possession.
The fatal defect in the plaintiff’s title, and which deprives it even of such prima facies as would impose upon the defendants the obligation of showing some color of title in themselves, is, that the deed of John Taggart, who styles himself late treasurer of McKean county, was executed by him after the expiration of his term of office. It was a mere nullity, as much so as if it had been executed by a stranger who never held the office: Donnel v. Bellas, 10 Barr 341; 1 Jones 341; s. c., 10 Casey 157. “ What power had Coleman (a late treasurer),” says Woodward, J., “to perform an official act on the 5th of January 1848 ? He was functus officio on that day as much as he was a month or a year thereafter. He could no more sell and convey than a dead man. And the county whose agent he had been, and who knew better than all the world beside that he had been superseded by another officer, could take nothing by a purchase from him. His act was simply null and void:” Cuttle v. Brockway, 8 Casey 49. It is not irregularity only; it is as though no deed whatever had been executed. The only question then is, whether the plaintiff, claiming under a tax sale, has a primá facie title as against a stranger without producing a treasurer’s deed, or showing that such a deed was executed and delivered.
I have looked very carefully through all the cases to find one in which there was no deed, but without success. In Kennedy v. Daily, 6 Watts 269, there was a deed duly executed by the treasurer while in office, but not acknowledged until after his term had expired. This was sustained on the practice, to disturb which would unsettle, as it was said, many estates. But besides that, the acknowledgment is no part of the deed. It is merely the appointed mode of authenticating it. In Hazzard v. Trego,
The learned judge in the court below appears to admit all this, for he said, as to the paper offered aá a deed, “ if a recent deed, we should hold it insufficient to pass the title of the warrantee.” He added, however, “ but after the lapse of forty-eight years without claim or payment of taxes by the warrantee, abandonment will be presumed.”
Judgment reversed.