Breisch v. Coxe , 81 Pa. 336 ( 1876 )

Chief Justice Agnew

delivered the opinion of the court,

The first and important question in this case is, whether an offer to the county treasurer, of payment of all the taxes due upon unseated lands, and a payment by the owner, of all sums made known to him by the treasurer, is equivalent to an actual payment of the whole, and will prevent a valid sale of the land for an unpaid balance not made known by the treasurer ? It is undisputed that the sale is void if there be actual pre-payment of the tax. The 4th section of the Act of 13th March 1815, 6 Sm. Laws 301, is expressly on this point, and the right is recognised in many cases : Dougherty v. Dickey, 4 W. & S. 446; Hubley v. Keyser, 2 Penna. 496; Baird v. Cahoon, 4 W. & S. 540; Kennedy v. Daily, 6 Watts 269; Ankeny v. Albright, 8 Harris 157; Laird v. Hiester, 12 Harris 463.

But it is contended that a tender of payment is not within the express words of the 4th section of the act, which forbids recovery except in the case of redemption within two years, or a payment of the taxes before the sale. It is said, that being not paid in fact, the owner is bound to know it; the jurisdiction of the treasurer remains, and the purchaser will not be affected by an act or neglect of the treasurer not appearing in the proper books. The Act of 1815 is, indeed, very express, that the owner shall recover after a sale for taxes, “in no other case, and on no other plea,” than the two mentioned. Yet it has been held that these words were not intended to exclude recovery, where the tax title is obviously defective, for other good causes. Thus, in the cases of Sutton v. Nelson, 10 S. & R. 238, and Connelly v. Nedrow, 6 Watts 451, it was held that the omission of the purchaser to give a bond for the surplus of the bid over taxes and costs, is fatal; and that even payment of the whole bid to the treasurer is not sufficient. So in Bartholomew v. Leach, 7 Watts 472. it was determined that if the surplus bond contains no description of the land sold, it is fatal to the sale. In Coney v. Owen, 6 Watts 435, it was held that a sale for taxes actually assessed upon donation land, during the life of the soldier, is void; the soldier being entitled to exemption from taxes on such land during his lifetime. There was jurisdiction to sell in all these cases; in the soldier’s, general jurisdiction, and in the others, specific jurisdiction, yet the sale was held void, for what may be termed fatal irregularities. The case before us must be determined, therefore, upon other considerations than the mere words of the act.

It must be conceded that the payment of taxes is a duty, and a failure to perform it is the fault of the owner. But payment is one thing, and the steps leading to it are another. Eor the latter, the owner is not responsible. He cannot assess himself, or know what is charged against him. He must await the action of the agents of the lawn He cannot pay until he is informed of what he is to pay. To perform the duty of payment he must apply to the treasurer for the taxes charged against his land. If this officer fail to give him the information on demand, on what just principle shall it be said he has not performed his duty ? It is said, there are the tax books open to inspection, let him search them. But this is neither his business nor his duty. As w7as said in Dietrich v. Mason, 7 P. F. Smith 40, the treasurer is the legal custodian of-the books and entries of the taxes necessary to show the sum to be tendered. This information it is his duty to give, and he cannot lay the books before the owner, and compel him to search for himself. The knowledge-of the latter may be inadequate to find what he needs. If then the owner pays all the taxes stated by the treasurer, he has done his whole duty. He can do no more: Baird v. Cahoon, 5 W. & S. 540 ; Laird v. Hiester, 12 Harris 464. His claim to be protected against a sale of his land for taxes he stood ready to pay, but which the proper officer has failed to present to him on demand, is quite as great as that of the purchaser to be protected against the act of the same officer in making a sale for taxes actually paid. Indeed, his equity is greater, for he has a prior title to the land, which has been wrongfully exposed to sale for an unknown trifle of tax. He would lose a valuable property, sold for no real equivalent, while the purchaser pays but a trifle of tax and costs, which, in most instances, he can have returned to him if the sale be void. In point of want of knowledge they stand upon a par; the owner’s ignorance of the tax being the equivalent of the purchaser’s ignorance of the attempt to pay it. As a matter of fact, too, purchases at tax sales are known to be full of risk, and rarely more than a tithe of the value of the land is bid. It is but just, then, that a bonfi fide attempt to pay all the taxes, frustrated by the fault of the treasurer, should stand as the equivalent of an actual payment. It is an almost universal rule, which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.

It is conceded that a similar offer to redeem land already sold for taxes, frustrated by a similar neglect of the treasurer, will stand good as a redemption. This has been too often decided to be denied: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315; Dietrich v. Mason, 7 Id. 40; Lamb v. Irwin, 19 Id. 436 ; Halsey v. Blood, 5 Casey 319. But it is said, that in the case of redemption, a duty lies on the treasurer to furnish the means of ascertaining how much shall be paid. Yet, wherein lies the difference? We have shown that the duty is precisely the same. A man cannot pay his taxes, without a knowledge of what they are, better than he can pay the redemption money without knowledge of what it is. If there be a difference, it is in favor of. the owner, who goes to pay before sale, for he is in no fault whatever, while he who suffers his land to be sold is in fault, and redemption becomes his necessity. ' Here the whole fault was with the treasurer. The ,road tax for 1850 on the Matthew Smith tract was certified into the treasurer’s office, on the 20th of January 1852. It was within the treasurer’s official knowledge on the 30th of April 1852, the day when he gave his receipt for all the taxes assessed and due on the Smith tract.

The only inquiry remaining on this branch of the case is, whether the court was justified in considering the treasurer’s statement of account of the taxes, and his receipt of April 30th 1852, sufficient evidence on their face, that Charles S. Coxe, the trustee, called on the treasurer, and offered to pay all the taxes on the Matthew Smith tract. The paper is headed: “An account of all taxes assessed and unpaid on the land mentioned below, situate in Union and Bush townships, in Schuylkill county, the property of Charles P. Coxe, trustee of the estate of Tench Coxe, Esq., deceased.” In this paper the Matthew Smith tract is certainly and particularly set forth, and opposite to it, in the tax columns for 1850 and 1851, are placed the county and state taxes, but no road taxes, a blank being left in the column of road taxes. The receipt at the bottom is in these words: “ Received, April 30th 1852, of Charles S. Coxe, Esq., trustee of the estate of Ténch Coxe, Esq., deceased,, two hundred and thirty dollars and seventeen cents, in full, for the taxes, interest and costs, upon the several tracts, parts of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, Esq., trustee of the estafe of Tench Coxe, Esq., deceased, and that sum being all the taxes assessed and now due on the said unseated land, with the interest and costs thereon.” The receipt was signed by the treasurer, Gr. D. Bower, and on the same day acknowledged by him before an associate judge of Schuylkill county. This paper is very formal, and in the absence of evidence to impugn its correctness, is certainly very clear evidence to any reasonable mind, that Mr. Coxe called on the treasurer for an account of all the taxes then assessed and due on his lands, and paid all that was demanded of him by the treasurer. No one, in. view of the paper, can doubt that the omission of the road tax was the fault of the treasurer, and that the failure to pay it was no fault of Mr. Coxe.

The next question is, whether the limitation óf five years, contained in the third section of the Act of 3d of April 1804, 4 Sm. Laws 202, is a bar to the plaintiff’s recovery ? That the limitation, is a bar in all cases of sales void for irregularity is well settled, and it applies to sales made since the Act of 1815 : Bradford v. Dornseiff, 2 Penna. 503; Ash v. Ashton, 3 W. & S. 510; McCall v. Himebaugh, 4 Id. 164; Robb v. Bowen, 9 Barr 71; Burd, Ex’r, v. Patterson, 10 Harris 219 ; Iddings v. Cairns, 2 Grant 88 ; Rogers v. Johnson, 17 P. F. Smith 43; Johnston v. Jackson, 20 Id. 164. But a distinction is stated in Rogers v. Johnson, supra, between a sale absolutely void from a want of jurisdiction to sell, and one merely void because-of a fatal defect in the proceeding. In one case, the treasurer has no authority whatever to make a sale; in the other he has; and he errs only in the proceeding in which he exercises his authority. The'owner is not bound to take notice of the former, for it is not to be presumed that an officer will do an act he has no authority to do; and he cannot be implicated in the consequences of the act where there is no power to bind him. But where there is authority to do the act, the owner must take notice, for then he becomes implicated in the consequences. Hence, if he would take advantage of an error of procedure, or an irregularity in the execution of the power, he must do it in due course of law, and time is part of the course prescribed. It was said, in Laird v. Hiester, 12 Harris 663, as a result of the cases, that “ the authority of a treasurer to sell unseated land for taxes depends on the facts, that the land was unseated at the time of the assessment; that a tax appeared to have been, and was in fact, assessed upon it by the proper ’officer; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the Acts of 1804 and 1815.” If, then, a boná fide offer to pay all the taxes of an unseated tract, frustrated by the negligence of the treasurer to give information of all the taxes charged against the land, is the legal equivalent of actual payment of the taxes in taking away jurisdiction to sell, as we have seen it is, the conclusion follows that the limitation of five years in the Act of 1804 does not apply to such a case. The want of authority to sell is as clear as when the taxes have been actually paid, and the owner is not bound to presume a sale, and follow up its consequences within five years. It is not a mere irregularity, which leavés the limitation in the Act of 1804 in full force. All the hardship attributed to the purchaser’s want of knowledge is as fairly imputable to a case of actual payment as it is to one of tendered payment. In neither does the fact appear so as to challenge his notice. In either case it is just as difficult for counsel to know the undiscovered defect. It is simply a want of knowledge of a fact, not .of the law. If the laud turn out to have been seated the effect is the same, and counsel cannot be expected to know it. It is, therefore, not a just ground of complaint that counsel cannot know how to advise as to such a title. No counsel is responsible for advice in respect to pnknown facts; but he can tell his client of these risks he must run.

Upon a consideration of the whole case we discover no error, and the judgment is therefore affirmed.