| Pa. | May 7, 1877
delivered the opinion of the court,
The precise point presented in this record, is the rejection of the deed of the commissioners of the county to Jay Gould, on the ground that the plaintiffs had not shown affirmatively, the publication of notice of the sale, pursuant to the provision in the Act of 29th March 1824. The deed recites the advertisement of a public 'sale at a certain time and place, an adjournment, and a sale by public vendue to Mr. Gould. The defendant in error would vary the question by referring to the terms of the second offer of the deed, as an admission that due publication had not been made. This fails to reach the true, question. The court having rejected the deed when first offered, because no proof had been given of the publication, the plaintiffs were forced to make a second offer in the hope of meeting the views of the court. Perhaps the offer did contain all the plaintiffs were then able to prove, after a lapse of eighteen years, but it does not follow that due publication had not been made. The simple question is whether the plaintiffs were entitled to give their commissioners’ deed in evidence.
Jenks v. Wright, 11 P. F. Smith 410, is no authority against this, for in that case the deed was received in evidence without objection, and the adverse party resorted to evidence to overturn it. It therefore simply decides that a commissioners’ deed regularly in evidence, may be shown to be invalid for a sufficient cause. The sale was private, and clearly void. The Act of 29th March 1824, provides that “ the commissioners of the several counties are hereby authorized to sell at public sale, all and any part or parts of the unseated lands which have been purchased for the use of the county.” The law having prescribed a public sale as the mode of exercising the authority, none other can be pursued. This follows from the general principles governing the performance of a mere authority coupled with no interest, and also from the duty enjoined by the Act of 21st March 1806, 1 Br. Purd. 58, pl. 5. So far the decision in Jenks v. Wright was that of the whole court. But when the learned and able chief justice passed beyond this point, he expressed his own opinion only. The case called for no decision on the question of publication. Publication, if made, would not sanction the invalid act of a subsequent private sale. But even the
Hoffman v. Bell, 11 P. F. Smith 444, had relation to the deed of a treasurer, not of the-commissioners. He had gone out of office, and of course had no authority to execute a tax deed. Hess v. Herrington, 23 P. F. Smith 438, is relied on. But the decision was against the objection made to the deed, and it repeated merely the general statement made in Jenks v. Wright, that sales by the commissioners are not within the curative provisions of the Act of 13th March 1815, and indeed merely meant that the act of a private person could not be cured, for it had no validity. But why does not the curative provision of the Act of 1815 apply to commissioners’ sales ? The answer had been already and forcibly given by C. J. Gibson, in Huston v. Foster, 1 Watts 478: “Because (he says) those sales were never in need of it, the common principle (viz., of strictness in adherence to authority), which it was intended to subvert, being inapplicable to a disposition by the owner himself.” After five years the title of the county is absolute, as held in many cases. It is shown very clearly by Chief Justice Gibson, in Steiner v. Coxe, 4 Barr 25, decided in 1846, and the first case, so far as I know, in which permissive redemption after five years was sustained. If the owner had a right to redeem after the expiration of the limit, his redemption would not be permissive. See also the following cases: Peters v. Heasley, 10 Watts 211; Kirkpatrick v. Mathiot, 4 W. & S. 254; Diamond Coal Co. v. Fisher, 7 Harris 267 ; Coxe v. Wolcott, 3 Casey 158 ; Russel v. Reed, Id. 169; City v. Miller, 13 Wright 456. But when divestiture of the owner’s title is involved, the curative provision of the Act of 1815 is applied even to sales by the treasurer to the commissioners : Peters v. Heasley, supra; Laird v. Hiester, 12 Harris 453. It should not be overlooked that the 2d section of the Act of 29th March 1824 expressly declares that the deed of the commissioners, when acknowledged before a justice of the peace, shall be good and valid to all intents and purposes for such title as the said commissioners had a right to convey. It must be borne in mind also that the authority to sell was not conferred by the Act of 1824, but first given by the 7th section of the Act of 1815. This section forbade a sale by them for less than the taxes, costs and accrued interest. A leading purpose of the Act of 1824 was to enable the commissioners to sell for the best price that can be obtained. The opinion in Jenks v. Wright suggests as a chief purpose of the Act of 1824, that notice to the former owners was required to enable them to exercise their permissive right of redemp
Returning to the original question, the right to give the commissioners’ deed in evidence in the first instance, we may notice that Huston v. Foster was followed by other cases ruling the same point: Peters v. Heasley, supra; McCoy v. Michew, 7 W. & S. 386; Russel v. Reed, supra. The current of authority therefore is in favor of the presumption that a sale recited in the deed as regularly made, was made according to law. To the cases above cited we may add Coxe v. Deringer, 28 P. F. Smith 271, and Coxe v. Deringer, 1 Norris 236. It is true these cases did not go the whole length of the former decisions, the facts not demanding it, and Jenks v. Wright seeming to stand in the way. In the second case the opinion leaned more strongly against the dictum in Jenks v. Wright.
We are of opinion that a legal presumption arises from the recital in the deed, that the commissioners did their duty and made the sale according to law. The presumption is prima facie at least; whether absolute we need not decide.
Judgment reversed and a venire facias de novo awarded.