67 Pa. 43 | Pa. | 1871
The opinion of the court was delivered,
This ejectment was brought in 1866 by Johnson and wife against Daniel Rogers, who claimed the lands in controversy by treasurer’s sales for taxes made in 1834. The land was wild mountain land, and Rogers took possession by pasturing his cattle upon it and by taking off timber from time to time, and paid the taxes from 1838 inclusive until the time of the trial. The plaintiff admitted his possession by bringing the ejectment. The jurisdiction of the treasurer to sell was undoubted. The land was unseated, the taxes regularly assessed, and were due and unpaid more than a year, the sales were regularly made and the deed executed, acknowledged and delivered; and the only irregularity complained of is, that Rogers paid to the treasurer, who receipted for the same, the whole of his bids, instead of giving bónds for the surplus over the taxes and costs. Is that irregularity cured by the limitation of five years contained in the 3d section of the Act of 3d April 1804 ? This is the only question. The case of Ash v. Ashton, 3 W. & S. 510, expressly decides the point in favor of- the purchaser at the tax sale. That case was determined in 1842, and has never since been doubted or overruled. Its ?authority is now questioned, and it is said the only reason given was the unsound one that the bond was not recoverable after five years. This is neither a correct nor a candid statement of the reasons given by Justice Kennedy, who delivered the opinion. His language was, that it “ could only be made available, according to ■ the express terms of the act, by causing an action to be entered on the docket of the prothonotary, in whose office it ought to have been filed within five years after the sale of the land.” How available ? Clearly he meant as a lien against the land, and not as a personal obligation. In regard to the owner’s remedy against the land, it makes no difference whether his title is gone
Much of the argument was rested on the treasurer’s sale being void, when no bond has been given for a surplus. This, however, is a mere play upon the word void — a' term merely expressive, in such a case as this, of a fatal irregularity in the sale, and not of a want of authority to make the sale. The 4th section of the Act of 1815 had declared that the owner should recover only on two grounds, viz., a previous payment of the tax, or an offer to redeem within two years. But the court, considering it unjust that the purchaser should hold the land without securing the payment of his bid, held that his omission to give a bond for the surplus was fatal to his title. This, however, is obviously only an irregularity, but because it is fatal, the sale has been termed void. But when the land is unseated, the tax duly assessed and unpaid, a sale regularly made and deed delivered, and the purchaser has in good faith paid his bid to the treasurer, the case bears no resemblance to a sale void from a want of authority or jurisdiction. In such a case there is no reason whatever that the purchaser should not be protected by the limitation in the Act of 1804. Within the five years the owner has his remedy, and may recover his land without redemption; and if he fails to bring his suit in time, he is no worse off as to the title than if there had been a surplus-bond, and he had failed to pursue it against the land within the five years during which it remains a lien.
The distinction between a sale absolutely void from a want of jurisdiction to sell, and one merely void because of a fatal defect in the proceeding is palpable. Thus, in McKee v. Lamberton, 2 W. & S. 114, and Cranmer v. Hall, 4 Id. 36, where the land was seated and the treasurer had no authority to sell, it was held that the purchaser was not entitled to be compensated for his improvements; while in Coney n. Owen, 6 Watts 435, and Gilmore v. Thompson, 3 Id. 106, where the' lands were unseated and the treasurer had general jurisdiction, but the sales were void because in the first case of exemption from taxation, and in the second because of a prior payment of the takes, the purchaser was held to be entitled to his improvements. There are other cases, even when the irregularity has deprived the owner of his surplus bond, where the sales have been sustained. Thus the sales were sup
It was argued that the limitation in the.Act of 1804 does not apply to a case where the owner is in possession. That is true, as was determined in Bigler v. Karns, 4 W. & S. 137, and Shearer v. Woodburn, 10 Barr 511. But that is where the possession is actual, and the owner is thus daily and hourly challenging the validity of the tax title. It is not so, however, in any other case, and it is settled that in all other cases the limitation runs from the time of the sale, and not from the time when possession is taken by the purchaser. Parish v. Stevens, 3 S. & R. 298, the first case decided under the Act of 1804, on this point, was overruled by Waln v. Shearman, 8 S. & R. 357, on the ground that an ejectment would not lie against a vacant possession.
But the Act of 29th March 1824 having provided a remedy for the owner in the case of a vacant possession, this court returned to the doctrine of Parish v. Stevens, and it is now held that the limitation runs from the time of the sale, and not of possession: Robb v. Bowen, 9 Barr 71; Sheik v. McElroy, 8 Harris 25; Burd v. Patterson, supra; Stewart v. Trevor, 6 P. F. Smith 385. In the last case Justice Strong, summing up the cases, says: Since the Act of 29th March 1824 the limitation is perfect at the end of five years from the delivery of the deed to the purchaser without regard to possession.” In the present case not only was there no possession in the owner, but the purchaser, at the tax sale, took possession by pasturing his cattle on the land, taking off timber, and paying the taxes, while the owner remained inactive, and admitted himself to be out of possession by bringing the ejectment against the purchaser.
In the argument, Donnel v. Bellas, three times reported (10 Barr 341, 1 Jones 341, 10 Casey 159), was relied on. But that case is wholly inapplicable. There the treasurer’s deed was never delivered, the purchaser gave only a note for his bid, the money was never accounted for by the treasurer, and within five years from the sale the owner of the tract paid the taxes and costs, and lifted the undelivered deed from the treasurer. The purchaser-
Judgment reversed, and a venire de novo awarded,