4 Pa. 13 | Pa. | 1846
The exceptions to the deeds poll, that the proof of their execution was ex parte, have been properly abandoned. Affidavits of subscribing witnesses, preparatory to recording, have always been received as prima facie, whether the instrument were actually recorded or not.
The exception to the plaintiff’s conveyance from the commissioners of Luzerne county is unfounded. The question involved
But though .the owner may not redeem by right, may he not do so by permission ? There certainly is nothing in either' of the acts, or in the object to be effected by them, which forbids it. The one declares it to be lawful for the commissioners, and the other authorizes them to sell ;- but there is no mandate to do so. The sale was provided as a means of collection; but the commissioners were not commanded to use it at the .first instant without regard to its necessity. The, end being attained without it, the county is indifferent to the destination of the land; and the commissioners are consequently not bound by any motive of policy to sacrifice the property of the debtor. It consists not with' the’justice or the, dignity of a free government to confiscate the estates of its citizens; or make them bear more than their respective proportions of the public burdens; or to speculate on their short-comings as sources of increased revenue. To prevent these statutes from doing more than was intended, there must be a constructive power, somewhere, to mitigate their severity when they would operate oppressively. Though the legislature might not see proper to enlarge the time of, redemption as a matter’of right, they might-choosé to have it done in particular cases, and under special circumstances, of which it would be. the province of the fiscal officers to judge. Executive officers have such implied powers as are necessary to carry their express powers into effect; and they necessarily have implied power to execute a statute according to its purpose. In Harris v. Monks, 2 Serg. & Rawle, 559, the court, acknowledging a difference between the practice of the land-office wffien it was regulated by the private Will of the proprietary, and its practice when regulated by public laws, held, that a survey adopted by the land-offices might be read in
It is urged, in this instance, that the land was redeemed for' less than was due; whence an argument that the conveyance is void ; and had not the act of 1824 authorized the commissioner to sell for less, it would have been a formidable one; for their discretion-would scarce have extended to a remission of part of the public dues. But experience had shown that unpaid taxes wrere' frequently suffered to accumulate till the land could not be sold at all; and to sell for what it'would fetch, was found to be the best thing that could be done. With 'power to turn the' land to the best account, why shohld the commissioners be bound to sell it at public sale, even for less than could be had for it by redemption ? • If they can sell for less, they surely can compromise for-less ; especially as land is never publicly sold for its value, to say nothing of the costs and charges which must come out of the proceeds. They mecessarily have power to compromise for the protection of the interests they represent; and the debtor, acting in.go'od faith, is not responsible for their exercise of it. Having paid what Was. demanded, he is not to be prejudiced by their error in demanding too little ; and any compromise made in good faith, though founded on an erroneous estimate of the-value, revests the -title. Nothing but a corrupt agreement to defraud the revenue would avoid-the conveyance;
. The reading of opinions on the preceding part of the case was pertinaciously opposed; and as it was asserted that we had excluded opinions of counsel on another occasion, it is proper to state, for the sake of the future, the reasons for which we hold them to be admissible. Judicial opinion is entitled to respect beyond what it might claim for the intrinsic evidence of its accuracy'; but professional opinion, emanating from the highest or the humblest member of the bar, is to. be excluded, as evidence of the law. The judiciary would be degraded, if it were to try common law principles by certificates of counsel, as canon law principles are tried by certificates of bishops. But the reasons on which an opinion of counsel is rested may be entitled to a very different consideration. It sometimes contains arguments which, even where they fail to convince, afford valuable assistance to the judge in attaining his conclusion. Indeed a well reasoned opinion is neither more nor less than an argument, and not the worse for having been digested and reduced to writing before it is delivered at the bar. Nor is.it the less an argument that it is the actual opinion of the author of it. There are counsel who would not consciously risk their reputation by an unsound argument even in oral discussion. And there are others less scrupulous, who perhaps justly think it their duty to put their client’s case in its most favourable light, and leave the responsibility of the decision to those who are to make it. But though it would be criminal in a judge to surrender his own opinion to the influence of a name, it is plainly his duty to receive, with respect, the reasons delivered at the bar, from whatever source they may have been drawn. .
The evidence to show the universality of redemption by permission was properly received; not, as was alleged, to prove a custom superior to the statutes, but to found an interpretation of them on the basis of the argument db inconvenienti. It was evidence to the court, not to the jury; and its reception, being matter of legal discretion, is not a subject of error. The remaining exceptions to evidence are plainly unfounded, or not pursued.
But the exception to the charge is better founded. The plaintiff had shown a patent: and the court, holding it to be conclusive against the defendant as an intruder, withdrew every other part of the case from the jury. The abstract principle is undoubtedly a
Judgment reversed, and-a venire de novo awarded.