1 Whart. 72 | Pa. | 1836
The opinion of the court was delivered by
The only principle that could produce an effect
on the event, has already been determined in Franciscus v. Reigart; where it was held that the conditional owner of the fee cannot defalcate taxes assessed on the land. What is there in this case besides ? It is not pretended that there was a separate assessment on the ground rent; and if there had been, what concern would the occupant have had with it ? The act of the 3d of April, 1804, subjects the tenant to taxes assessed on the land, and empowers him to recover it from his landlord by action or defalcation; but the tax on ground rent is chargeable on a distinct species of property. Besides, though the owner of it is usually called the ground landlord, the expression is evidently an inaccurate one. Subinfeudation no more exists here than it does in England, since the statute of quia empierres; and there is nothing like tenure, where the rent is not incident to the reversion. Now, such a rent as the present, is charged on the land, the instant the ground landlord parts with the fee, leaving in him but a condition of re-entry; and even the reservation of that may b.e omitted. And it may, by force of
The proposition also asserted here, that separate taxes, on separate subjects of taxation, separately owned by distinct persons, may' be indiscriminately assessed on the same subject matter, leaving the owners to settle their respective proportions of what would thus be made a common burthen, is still more extravagant. To admit that a tax on the quit rent may be assessed conjointly with that on the land, would deprive the rent-holder of his separate right of appeal, which, by a particular legislative provision, lies in this case to the Common Pleas. There was in fact and in law, therefore, no assessment on the quit rent, and no duty owing for it; but if that were otherwise, it would not be material to inquire whether there was error in the method adopted to ascertain the measure of its relative proportion; for,whether it were assessed jointly or separately, the occupant could not, by voluntary payment, make himself a creditor of the person properly chargeable with it.
But the exception to the jurisdiction is not sustained. We have already intimated. that an objection to competency, under the act for the establishment of Special Courts, must be addressed to the
Judgment reversed and a venire de novo awarded.