Lyman v. City of Philadelphia

| Pa. | Jan 7, 1868

The opinion of the court was delivered, January 7th 1868, by

Agnew, J.

Lyman v. City.

The main and only important question in this writ of error, is the same which was decided by us upon a former writ of error in the same case, reported in 13 Wright 440. That ease was heard before three of the judges only, one of them (the Chief Justice) dissenting. The last hearing was before a full bench, and the same result reached by four of us, the Chief Justice still dissenting. The simple question, stripped of all verbiage, was whether an assessment of 400 acres of land merely made in a name wholly unknown to any title or possession, ever connected with the land in suit, and, without any other circumstance or means of identification to be found in any of the written evidences of the assessment, is an assessment of the land in controversy sufficient to support a sale of it for taxes. It was held upon the former hearing, and we continue of that opinion, “ that a sale without description, circumstance or name, having any known relation to the land is bad.”

In consequence of the supposition that certain general expressions in former cases, were intended to indicate the opinion of this court that any sale would be supported, if by some independent parol proof it could be shown that it was meant to assess a particular tract; all the cases in the books were examined and collated, and it was shown in the former opinion that in every one there existed some element of identity in the assessment itself leading to a knowledge of the land assessed. This element consisted of a name connected with a title of some kind once existing in connection with the land, or of a number or a known designation, an adjoiner, a settlement or some other circumstance to lead to a knowledge of the land that was assessed. The case of Stewart v. Schoenfelt, 13 S. & R. 360, so much insisted on in argument, is no exception; and this is shown most clearly by Huston, J., in Bratton v. Mitchell, 1 W. & S. 312. Authorities were also multiplied to show, that it had often been held that the land must be in some wise identified from something appearing in the assessment ; and that the assessment of lands is a matter resting upon the written evidence of it found or once actually existing in the commissioners’ office.

That it is the intention of the law that the assessing'officers should ascertain the subject of an assessment, was shown from the acts of the legislature providing the mode of making the assessment, the notice and the proceeding to sell, and the right and manner of redemption ; and arose also from the reason and necessity of the thing: 1st. To enable the owner to perform his duty by paying his taxes, or to redeem if his land be sold for non-payment ; 2d. To enable the officer to ascertain the taxes of the citizen who offers to pay, and to receive them when offered — and in case of non-payment to enable him to sell the land and convey it by some available description in the deed he delivers, and in the bond he takes back for the purchase-money; and 3d. To enable the purchaser to know what land he buys, and to secure him in the purchase of some known parcel of land. An assessment without this element, which leads to the identity of the thing sold, is as useless to the receiving or selling officer and the purchaser, as it is to the owner himself. Hence, the irrelevancy of the often repeated assertion, that the owner should take the consequences of his omission to return a proper description of his land ; and if he cannot find his land assessed, let him make an immediate return of it and pay the taxes, and thus save himself from injury. But how does this inform the officer what land is the subject of the indescriptive assessment, and what security does it give to the innocent purchaser ? It is gross dishonesty and injustice to the latter. He buys upon the presumed correctness of the official act,.and then is left to discover, that he has obtained nothing but a shadow ; that the assessment was a myth and the sale an official sham, which had extracted his money from his pocket without an equivalent. The former opinion did not put the case upon the necessity of notice to the owner only, but upon the ground that the means of knowledge must exist for the protection of all parties concerned.

Calling the proceeding a matter in rem does not help the case. A thing to be a subject of a legal proceeding must have some means of ascertainment. If it be a movable, the officer may seize it to answer the process ; if it be immovable .he must describe it by some name or circumstance connected with it, otherwise \no one but himself knows what is the subject of the proceeding. Titles which should rest only in the. breast of the officer making the levy, attachment or assessment, would be of all things the most transitory and uncertain. The official act must therefore afford some clue to the thing proceeded against. But what clue does an assessment of 400 acres of land furnish to a certain survey of 401 acres and 57 perches, among hundreds of 400 acre tracts in the same township and county; or what clue does the name John Turnbull afford to a warrant in the name of James Trembel, without a single other circumstance to help out the infirmity of the assessment ? To call proof in aid of this wholly vague and unknown thing, is simply to ask some one (be he commissioner, assessor or treasurer) to say that by John Turnbull he meant James Trembel, and by 400 acres he meant a certain 401 acres and 57 perches of land lying in a certain place. Such a title hangs on a breath and dies when it expires, and its only mission is to put men by the ears and to bequeath a legacy of strife, expense and trouble to the owner, the purchaser, and the state.

A laborious research has been made by counsel into the ancient legislation of the state to prove that while the law was very particular at one time in ascertaining the subjects of taxation, it became afterwards, towards the close of the last century, more loose. But the best answer is the Act of 1804 itself, which crowns the column so laboriously raised. In the 2d section it provided that “ all unseated lands within this Commonwealth, held by individuals, companies or bodies corporate, either by improvement, warrant, patent or otherwise, shall, for the purpose of raising county rates or levies, be valued and assessed in the same manner as other property.” Turning to the manner in which “ other property” was valued and assessed, we find in the 7th section of the Act of 1799 that the assessors are required to make a just and perfect return of the names of all the taxable persons, and of all 'the taxable property mentioned in the 8th section of the act. The 8th section required the assessor to take an account of all the names and surnames of all the taxable inhabitants in their township, and of all the property therein enumerated, viz., all lands held by patent, warrant, location or improvement; houses, lots of ground, grist-mills and various other kinds of mills specified ; all negroes and mulatto slaves; all horses, mares, &c., above the age of four years ; all offices and posts of profit, &c. Now it is impossible to conceive of any adequate performance of this duty by the assessor without connecting the subjects of taxation with an ownership real or apparent. It would be no “ perfect return” for the assessor to return so many “ tracts of land,” so many “ mills” of each kind, so many “ horses and cattle,” without returning also the name of the supposed owner, or to return “ an office or post of profit,” without the name of the incumbent. Now by the very terms of the 2d section the same duty is to be performed as to the unseated lands “ held by individuals, &c.,” and it would be ho execution of the duty to return them without the name of a real or apparent owner, or some specification which would tend to identify the land, which the tax officers had valued and assessed.- On the contrary, the very 5th section of the Act of 1804, passed to prevent sales from being avoided by the assessor’s mistake in the name of the real owner, presupposes his duty to return it in the name of some one he believes to be the true owner. In the very nature of the thing an assessment implies that the thing is specifically returned for taxation, and this thing can be known only by something which tends to designate it, whether it be a name or a circumstance, or both. Without this nothing is really assessed, for it is the return which, by the very terms of the law, constitutes the evidence of the assessment; and this is a full and conclusive answer to the argument that by the terms of the Act of 1815 no alleged irregularity in the assessment, or in the process or otherwise, shall be construed or taken to affect the title of the purchaser. Affect his title to what ? If nothing capable of identification be returned, what is to be affected ? If no discoverable thing be returned, how can anything be sold ? It is not irregularity, but the absence of anything to be sold. And if this subject can be supplied by evidence wholly dehors the assessment, what is to prevent fraud or perjury from applying it to my land or his, as well as to the particular tract for which a suit is brought ? The guess can be made in one direction as well as in another.

It is not intended to repeat all that is contained in the former opinion. What has been said now answers all the errors assigned upon the question of designation. On this question the court below submitted to the jury the subject of the identity of the land assessed quite as favorably as the evidence warranted.; for when all the evidence was in, the case seems to have stood in little better position than it did before, when we said of it that the assessment several years before in the name of John Trembel (the warrantee’s name being James Trembel) cannot be resorted to under a subsequent assessment in the name of John Turnbull, there being no other circumstance of identity.

As to the error assigned upon the question of redemption nothing need be said, as the verdict of the jury for the defendants for that part of the land lying in Mahanoy township was evidently not founded upon the redemption of 1840. Had it been, the redemption would have destroyed the title also which the plaintiffs claimed under the sale of 1836. It is evident that the jury found for the plaintiffs in favor of the tax sale of 1836, against the redemption of 1840, and against the defendant’s claim to be an innocent purchaser, without notice of the prior unrecorded deed of Sarah A. Cochran.

The error assigned to the rejection of the evidence, recited in the first assignment of error, needs but little notice. The cross-examination of Pinkerton shows that he did not possess the knowledge of Hoff’s general reputation for truth, requisite as a ground to enable him to give his own belief in Hoff’s oath. Pie says, “ I never heard it said he had a good reputation. I never heard his reputation spoken of. I have heard people say he has lied.” A ■witness must state his own knowledge of another’s general good reputation before he will be permitted to say he would believe him on oath, otherwise he has no legitimate foundation for his belief. In some of the states the secondary question as to belief is not permitted at all.

Upon the whole case in the writ of error of Lyman v. The City,

The judgment must be affirmed.

City v. Lyman.

The first four assignments of error relate to the reception of evidence bearing upon the question of the identity of the land assessed in the name of John Turnbull. All these offers were made in the first stage of the cause while the plaintiffs were giving in their evidence, and the objections appear to be all founded upon the idea that the assessments of the four hundred acres in John Turnbull’s name was void. But this was to ask the court to decide the case in advance of the evidence. In making out an actual assessment of unseated land which has been sold for taxes, much liberality has always been shown by the courts in receiving evidence. On the subject of assessments see the opinion in Wells v. Smyth, from Clinton county, decided in March last, at Philadelphia, (5P. F. Smith 159). Therefore, books, documents and papers from the. commissioners’ office, showing their proceedings in relation to the land alleged to have been assessed, have always been received. Until all the evidence bearing upon the question of the assessment is in, it would be unsafe for the court to pronounce upon its .effect.

We are unable to perceive the relevancy of the rejected evidence stated in the fifth assignment of error. The payment of the taxes subsequent to the sale would not affect a bond fide vendee of the commissioners purchasing in ignorance of this fact.

The sixth, seventh and eighth errors relate to the alleged redemption of the land by the city of Philadelphia in 1840. The evidence contained in the sixth and seventh was pertinent to the question as to what lands were embraced within the redemption and -was properly admitted. But the court erred in receiving in evidence the paper or memorandum stated in the eighth assignment. F. P. Dewees had stated that Mr. Loeser, the former attorney of the city, was dead, that he had searched among Loeser’s papers for a week or ten days, a great mass of papers and in great confusion, found no papers filed under the head The City of Philadelphia,” but found some he guessed belonged to the city; on being recalled he produced a paper, in the handwriting of Mr. Loeser, which he said he had found among a lot of loose papers. The paper itself is evidently a rough and imperfect draft, full of erasures. One of the purposes for which it was offered and admitted was to show the list of lands which the city claimed had been sold. The city having given in evidence the preamble and resolution of the commissioners of the county passed the 29th of February 1840, authorizing the redemption by the city of all their lands in Schuylkill county for a certain sum, and the county treasurer’s receipt dated March 7th 1840, for that sum, stated to be for the full amount of all the taxes charged upon the lands contained in a list of lands to which the receipt was appended, and the list to which it was thus appended being a full and accurate schedule of all the lands of the city, including the Brady, Scott and Grant tracts-underlying the Turnbull survey furnished by Mr. Loeser the agent of the city; the obvious intention and effect of the unfinished paper found in Mr. Loeser’s office, if received as a list of the only lands claimed by the city as sold for taxes, were to confine the intention of the city in redeeming to those lands only specified in this imperfect paper, and thereby to contradict the finished and perfect list upon which the parties finally acted and to which the receipt was appended. The language of the preamble and resolution of the commissioners and of the treasurer’s receipt, taken in connection with the list of lands to which it was subjoined, evinced the intention of the city to redeem from all sales for taxes, made before that time, of the lands contained in the schedule to which the receipt referred. But if the redemption were confined to the lands mentioned in this abandoned paper, then it was obvious the tracts covering the Turnbull survey were not embraced. Clearly a loose and useless castaway, such as this paper was, a first attempt to gather together the property, the act of an agent laid away because it was ound to be imperfect and supplied by a more full and correct list, was not competent for the purpose of derogating from the entire and accurate list finally furnished by the same agent, upon which the parties had acted. The bond, fide intention of the city to redeem all her lands was a vital element in the question of redemption: Dougherty v. Dickey, 4 W. & S. 146; Laird v. Heister, 12 Harris 453; Bubb v. Tompkins, 11 Wright 359. Of this the preamble and resolution, and the completed list of lands acted on and receipt in full, were potent evidence not to be blown away by such a paper as this, exhumed from the dust and rubbish of a dead attorney’s office. The court erred therefore in receiving the paper for this purpose.

We discover no serious errors in the ninth and tenth assignments. All the other assignments from the eleventh to the twenty-fifth are informal and will not be noticed.

, The judgment is therefore reversed in this writ of error of the City of Philadelphia to the judgment upon the verdict for the plaintiffs, and a venire facias de novo is awarded as to that part of the land described in the writ of ejectment which lies in Barry now Butler township.