Philadelphia v. Anderson

Opinion,

Mr. Justice Williams:

In the recent case of Crouse v. Murphy, 140 Pa. 335, in which an opinion was filed at the present term, we had occasion to note the evident purpose pervading the legislation of this state to protect bona-fide purchasers of real estate against unrecorded liens and encumbrances. The same general subject is brought to our attention from a different stand-point by the facts now before us. These are that Baxter purchased in 1878 a house and lot on the south side of Indiana street, in the Twenty-eighth ward of the сity of Philadelphia, from one F. C. Paxson. His conveyancer, in order to secure for his employer an unencumbered title to the premises he desired to buy, applied to the receiver of taxes, and requested him to “ Certify any taxes rеgistered against the above property in the name of Franklin C. Paxson, or that of any other person.” On the fifteenth of May, 1878, he received from the receiver’s office a certificate properly executed setting forth that “ On еxamining the register of unpaid taxes for the city of Philadelphia for the years 1873 to 1877, inclusive, I find nothing against the above-described premises except as per bill of 1877.” The conveyancer, upon the receipt of this certificate of no lien except for taxes of 1877, concluded the transaction, and the purchase money was paid over. Three years afterward, the city, in 1880, filed a claim against the same premises for the taxes of 1875. A writ of scire faciаs was issued on the claim in 1885, which was eight years after the certificate was made, and ten years .after the taxes are alleged to have accrued. The defendant replied to the writ with the certificate of the receiver thаt the city had no lien on the premises for the taxes of 1875, and with the fact that, relying on the certificate, he had paid over the purchase money. His position was that, if the certificate was true, the city had no lien, even if the taxes were unpaid. If it was untrue, he having been misled by it into paying out the money when it was in his hands, the city was estopped from alleging its untruth against him. The court below, entertaining a different opinion upon the effect of the certificate, directed a vеrdict in favor of the city. The defendant appealed, and assigns the ruling of the learned judge in the court below as error. The effect of the certificate is therefore the only question before us.

It is well to remember at the outset thаt taxes upon seated property were originally a personal charge against the owner, for which his personal property and his person were liable to seizure, but which were not a lien upon land: Burd v. Ramsay, 9 S. & R. 109. In regard to unseаted land a different rule prevailed; the land being treated ‍​​‌‌‌​‌‌​‌‌‌​​​‌​​​​​​​​‌‌​​​‌​​​​‌​‌​‌​​‌​‌‌‌‌​‍as the debtor, and not the owner. Payment was compelled by the sale of the land without any personal demand on the owner. In order to facilitate their collection, the legislature has from time to time made seated taxes a lien on the lands on which they are assessed, by a series of acts of assembly applicable to different portions of the state. In Philadelphia, they were made a lien, under certain limitations, as early as 1824, by an act passed on the third of February in that year.^* It provided that taxes imposed on real estate in Philadelphia “ shall be.....a lien on the said real estate on which they may hereafter be imposed or assessed,” and that such lien should have priority over liens for debts due to individuals by recognizance, mortgage, or judgment against the same real estate. The duration of this lien was limited by the act of 1845 to the first day of July in the year following that fоr which the tax is imposed, unless before that time the tax was registered in a book to be kept by the register of unpaid taxes, for that purpose. If it was registered in time, then the lien was continued to the end of five years from the time the lien began. If, before the expiration of the five years, a claim was filed for the tax in the office of the prothonotary, this continued the lien for five years from the entry of the claim. The tax was thus made a lien during the year for which it was levied and until the first day of July following, without any formal registry. The lien thereafter was lost unless the tax was entered on the register of unpaid taxes, and at the end of five years it ceased altogether unless proceeded for by claim filed in the Court of Common Pleas. A purchaser was therefore bound to take notice of the current taxes for six months after the end of the year. He was then bound to take notice of the registry for the balance of five years. After five years, he was not bound to inquire bejmnd the lien dockets. To enable him to know with certainty what the registry showed, the act of 1854^† made it the duty of the receiver “ to furnish certificates of all taxes and claims which are a lien on real estate,” and provided a fee to be charged for such service. The certificate held by Baxter was made under the direction of the act of 1854.^† Does it protect the purchaser who procures and acts upon it ? The court below ‍​​‌‌‌​‌‌​‌‌‌​​​‌​​​​​​​​‌‌​​​‌​​​​‌​‌​‌​​‌​‌‌‌‌​‍held that it did not, and gave three reasons for entertaining that opinion :

1. The receiver is an elective officer, over whose selection and term of office the city has no control, and for whose certificates she is therefore not responsible.

2. The law does not make it his duty to certify to the absence of liens, and when he gives such a certificate he “ becomes the special agent of the purchaser ” who asks for it.

8. The certificate, by reason of its form, or want of it, imposes no liability, even if it was the duty of the receiver to make certificates of search and no lien.

As authority for the first of these ‍​​‌‌‌​‌‌​‌‌‌​​​‌​​​​​​​​‌‌​​​‌​​​​‌​‌​‌​​‌​‌‌‌‌​‍positions, Alcorn v. Philadelphia, 44 Pa. 348, is cited. The plaintiff in that case sought to hold the city for the negligenсe of the city surveyor in locating the lines of plaintiff’s lot at his request. This court held that the act of the city surveyor was in no sense that of the city, nor was the duty in which he was engaged a municipal duty. The location of lines between adjoining ownеrs, and surveying lots, was held to be “ not a duty incumbent on cities in their corporate capacity, .... but a private one falling on the lotowners themselves.” The city surveyor, like county surveyors and other public officers, is elected not to represent the municipality, but to serve the public as occasion may require, at the instance and upon the employment of individuals. But the collection of taxes is a municipal purpose. They are levied, collected, and disbursed under the authority and direction of the city, by officers appointed or elected for the purpose, who represent the city. When levied, the duplicates are charged to the receiver. He is the only authorized collector and receiving officer. He is required to open his books for the receipt of taxes on the first day of January of the year for which the taxes are assessed. His daily collections must be reported to the city contrоller, and his daily cash receipts deposited in the banks designated for that purpose. Taxes not paid during the year or within fifteen days thereafter he is required to enter upon the register of unpaid taxes, in order to continue their lien. If this is not done, the lien ceases, and the real estate may pass, by sale, discharged therefrom: Smaltz v. Donohugh, 11 W. N. 220. The entries on the register, if made in time, are valid liens on the real estate affected by them, and must be taken notice of and provided for in case of sale. These liens are not the result of legal proceedings in a court of record, which are notice to everybody, but of the act of the city in carrying the unpaid taxes upon the book kept for that purpose in the office of her receiving officer. This is the book of the city, made up by the officials who represent her, and remaining in their custody. It is the evidence of her demands upon real estate within her borders. A purchaser must take notice of this book, and to enable him to know with certainty what appears upon it, the law makes it the duty of the receiver of taxes to certify the liens against any particular piece of real estate. This is a speсific duty imposed upon him by law, as the representative of the city, the collector of its taxes, and the custodian of its records. In its discharge he represents his principal; speaks for it, and binds it. If his certificate is false and misleading, one who acts upon it in good faith has a right to insist that the city is bound by it. The city is not above the duty to deal fairly and justly with its citizens, and to speak the truth to them when the duty to speak for their information rests clearly on it.

The second reason does not seеm to us tenable. When taxes were made a lien on the real estate on which they were levied in the city of Philadelphia, it was necessary to provide some record of the liens unpaid at the end of the current year. For this purpose a book was provided, upon which unpaid taxes were to be entered. Taxes not appearing there were presumed to be paid, and they were not liens. Taxes appearing there were valid liens upon the rеal estate on which they were assessed. This book was thus made the lien docket of the city. It was the proper and the only reliable source of information open to the interested inquirer. It was kept by and in the custody of the receiver, whose duty it was to certify liens appearing upon it. When applied to, it was his duty, as the representative of the city, to state truly the liens against the real estate inquired about. Baxter’s conveyancer applied for a search, which made an examination for five years necessary. The receiver certified that he had examined for five years, viz., 1878 to 1877, inclusive, and that there were no taxes registered against the lot except those of 1877. It was as impоrtant to the purchaser to know that there were no taxes registered for 1875 as to know that there were taxes unpaid for 1877. It was the amount of liens the purchaser was interested to know and that the city was bound to tell him, for they were to be taken into consideration and adjusted in the purchase about to be closed. In giving this information, he was in no sense ‍​​‌‌‌​‌‌​‌‌‌​​​‌​​​​​​​​‌‌​​​‌​​​​‌​‌​‌​​‌​‌‌‌‌​‍the agent of the purchaser. He was discharging an official duty, viz., certifying the liens against the lot inquired about, and he was under a lеgal obligation to certify their amount truly.

Nor do we regard the form of the certificate as a matter of any consequence in this case. The purchaser applied for and had a right to receive a certificate in prоper form, informing him of the exact amount of the demands of the city for unpaid taxes. A certificate intended to convey the needed information was furnished, and relying on the truth of its statement, the title was taken and the purchase money рaid over. Having thus led the purchaser to pay the amount of the taxes of 1875 to his vendor as purchase money, the city cannot now be permitted to set up the mistake of its officer as a reason for compelling the paymеnt of the money a second time. If it was a mistake, as it was acted upon in good faith by the purchaser, the city cannot now assert a lien for the taxes of 1875, nor deny the facts which the certificate asserted.

The subject of the want of form in a certificate and of negative statements therein was considered in Ziegler v. Commonwealth, 12 Pa. 227, in which a certificate similar to the one before us was held sufficient in form to justify a recovery.

The judgment in this case is reversed, ‍​​‌‌‌​‌‌​‌‌‌​​​‌​​​​​​​​‌‌​​​‌​​​​‌​‌​‌​​‌​‌‌‌‌​‍and a venire facias de novo awarded.

Notes

* P.L. 18; 8 Sm. L. 189.

† Section 11, act of February 2, 1854, P. L. 30.

Case Details

Case Name: Philadelphia v. Anderson

Court Name: Pennsylvania Court of Common Pleas, Philadelphia County

Date Published: May 18, 1891

Citation: 142 Pa. 357

Docket Number: No. 139