2 Pa. Super. 443 | Pa. Super. Ct. | 1896
Opinion by
This was an action of ejectment for a part of a tract of land
The plaintiffs claim under two tax sales of unseated land in the name of John Bowman in Green township; the first in June, 1852, to James Mitchell, and the second in June, 1856, to James Dixson. It is claimed that both of these titles became vested in Bernard McCaffrey, the plaintiffs’ ancestor.
Pine township was set off from Green township in 1849.
The principal questions are: (1) Whether the Doyle improvement seated the whole tract. (2) Whether the failure to give a surplus bond invalidated the sale of 1856. (3) Whether an assessment of land in the name of John Bowman, in Green township, sufficiently identified a tract in the warrantee name of John Bousman or Bowsman, in Pine township.
1. The evidence went to show that Michael Doyle made an improvement on the Bousman tract as early as 1849; that he cleared thirty or forty acres; that he built a house and barn, raised crops, and lived on the tract, and that he claimed about ninety acres. It is stated, in the appellant’s history of the case, that he went into possession under a contract with the owners for the sale of ninety-eight acres, of which seventy-five were part of the Bousman tract and the residue part of the Meyers tract adjoining, and that Ms purchase was surveyed off to him. Unfortunately for the plaintiffs the record of the evidence, as returned to us, wholly fails to show these important facts. It does not appear in the evidence what his title was, or that he had any title prior to his deed of September 29, 1852 (which was after the treasurer’s sale in question), or that the boundaries of Ms claim were defined by any contract or deed or by lines run or marked on the ground, or in any other way prior to the sale of 1852. The special findmg of the jury is : “ we do not find any marks or lines to identify the Doyle tract from the remainder of the tract prior to 1851.”
An entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purpose of residence or cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 W. 504; Kennedy v. Daily, 6 W. 269; Wallace v. Scott, 7 W. & S. 248; Mitchell v. Bratton, 5 W. & S. 451; Wilson v. Watterson, 4 Pa. 214. Nothing is better settled than this: Biddle v. Noble,
2. The legal proposition involved in the ruling which is the subject of the first and sixth assignments of error is, substantially, that when unseated land is sold by the treasurer for an amount equal to the taxes and costs, and the deed recites the fact that they were paid by the purchaser, and does not recite the giving of a surplus bond, the presumption is that none was given; therefore, the purchaser asserting such title in an action of ejectment must prove the due and legal assessment of all the taxes for which the land was sold; it is not enough for him to prove that some of them were regularly levied and assessed. This is putting a pretty heavy burden on the purchaser; but assuming-for present purposes the correctness of the ruling as an abstract legal proposition, what proof of an assessment must the purchaser furnish in order to make out a prima facie case ? Let us examine this question with reference to the facts of the present case. In this examination we are not to be understood as dealing with the evidence by which those facts are to be
Co. St. School Road.
1852. $1.20 $1.20 $2.80 $4.00.
1853. 1.60 1.20 2.80 4.00.
1854. 1.60 1.20 4.00.
1855. 4.00.
Total, $29.60.
(2) The land was bought at treasurer’s sale in June, 1856, by the plaintiffs’ predecessor in title, for the foregoing taxes and costs. (3) The state and pounty taxes were regularly levied and assessed, and the school and road taxes against the land were regularly returned to the commissioners as unpaid. Under the statutes then in force the county commissioners were empowered, and it was their duty to enforce collection of the latter taxes in the same manner that county taxes were collected: Act of April 6,1802, sec. 7, 3 Sm. L. 515; Act of March 30, 1811, 15 Sm. L. 252; Act of June 13, 1836, sec. 7, P. L. 525. According to the offer they proceeded to perform this duty by charging against the land the taxes thus returned, and certifying the same to the county treasurer along with the county taxes. In declaring upon tins statement of facts, that there was no evidence of an assessment of the road and school taxes, and that therefore the sale was void because the purchaser did not give a bond for the surplus over and above the county and state taxes, we think the court failed to give due effect to the curative provisions of the act of March 14, 1815 (6 Sm. L. 300), and the provisions of the act of April 12, 1842 (P. L. 266), relative to the records of the county commissioners as evidence of an assessment. Where the treasurer upon a sale of unseated lands for taxes charged too much for costs, and thus appropriated the whole amount of the purchase money to the taxes and costs, whereas upon a correct calculation there would have been a surplus for which the purchaser should have been given a surplus bond, it was held that his
3. There remains the question of identification. After an exhaustive review of all the earlier cases, Judge Agnew said: “ The result is that where the assessment wholly fails to lead to identification, so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed and the assessment is void: ” Phila. v. Miller, 49 Pa. 440. The doctrine of that case, as affirmed and explained upon a second writ of error, was further discussed in a still later case, and was declared to be “ that the assessment itself, which is the record that states the land upon which the duty of paying the taxes is imposed, must contain some element either of circumstance or name which will lead to identification. . . . : the assessment is void only where it wholly fails to lead to identification. But although there be no other element of description, yet, if the name in which the assessment is made has become linked to the land by some known claim of title or possession, the cases cited and commented on in the opinion show that it is a source of identification and will support the assessment: Strauch v. Shoemaker, 1 W. & S. 166; ” Glass v. Gilbert, 58 Pa. 266-290. These principles have been recognized and applied in later cases and may be considered as well settled: Lyman v. Phila., 56 Pa. 488; Brotherline v. Hammond, 69 Pa. 128; Hess v. Herrington, 73 Pa. 438; Franklin Coal Co. v. Bertels, 109 Pa. 550; Putnam v. Tyler, 117 Pa. 570; Fisk v. Corey, 141 Pa. 334. Identity of name is prima facie evidence of identity of tract, but the names “Bousman” or “Bowsman”
The foregoing conclusion is based on the evidence actually before the court, which it must be understood related solely to the sale in 1852 and the assessments on which it was made. In the face of the plaintiffs’ offer, the rejection of which is the subject of the sixth assignment of error, it is not fair to assume that it was all the evidence which the plaintiffs could furnish to sustain the assessments upon which the sale of 1856 was
The authorities agree, if we understand them correctly, that an assessment is not required to contain in itself all the circumstances which are necessary and sufficient to identify the land without resort to other evidence. It must be a “ source of identification ; ” it must “ lead to identification.” For example, if the assessment be in the name of some person who has been an occupant of the land, or of some person who has claimed title to the land, those facts need not, and ordinarily would not appear on the face of the assessment, but may be proved by evidence aliunde. Where the circumstances which are relied on to show the association of the name given in the assessment with the land clanned, rest in parol, as they must in many cases, the question of identification must necessarily be submitted to the jury as a question of fact: Franklin Coal Co. v. Bertels, 109 Pa. 550; Woodside v. Wilson, 32 Pa. 52. Land lying in one township may pass under an assessment and sale for taxes describing it as lying in another, provided there are other means of description sufficient to identify the land, of which, generally, the jury are the judges: Stewart v. Shoenfelt, 13 S. & R. 360; Miller v. Hale, 26 Pa. 432. “ 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. . . . Until all the evidence bearing upon the question of the assessment is in, it would be unsafe for the court to pro
4. As the case must go- back for another trial, a word should be added as to the offer- of evidence, the rejection of which is the subject of the seventh assignment of error. A severance of the Doyle claim and improvement was effected by his deed of September 29, 1852. Thereafter the residue of the tract might be assessed and sold as unseated, if it was in fact so. Evidence that at the time of bringing suit (1880) it was all woodland, and that from the appearance and character of the land it had never been cleared, might not conclusively prove that it was unseated at the time of the imposition of the taxes for which the sale of 1856 was made, but it would have a tendency in that direction, and would be proper for the jury’s consideration.
The judgment is reversed and a venire facias de novo awarded.