Harper v. Farmers' & Mechanics' Bank , 7 Watts & Serg. 204 ( 1844 )

The opinion of the Court was delivered by

Rogers, J.

This is an ejectment to recover 424 acres 22 perches of land, claimed by the plaintiff on a warrant to Moses Foulk, dated the 4th March 1806, surveyed the 20th December 1794, of which George Ege was the owner. A judgment was obtained against Ege to the April term 1S20, on which there w’as an execution, levy and inquisition on the Mount Holly iron-works, of which the tract in dispute, as the plaintiff alleges, constitutes a part. The property was sold, and plaintiff was the purchaser.

The defence is rested on two groundsr

1. That the levy does not embrace the land in dispute.

2. That it was regularly sold at a treasurer’s sale for taxes, and that the title under that sale is vested in the defendant.

To meet the first ground of defence,-it was material to prove that before the levy was made by the sheriff, George Ege claimed title to the land covered by the warrant to Moses Foulk; and for that purpose the plaintiff offered in evidence a certified copy of the record of the board of property, in a proceeding in which the said George Ege and Thomas Thornburgh were plaintiffs, and Samuel White was defendant. They also offered in evidence a certified draft of a tract of land surveyed in the name of Samuel White, on a warrant for 200 acres, dated the 8th September 1814. These two pieces of testimony, although offered separately, and not in their proper order, must be considered together as one whole, for they are inseparably connected, and serve to explain each other. The transaction appears to have been thus: William Linn, the deputy-surveyor, surveyed a tract of land on a warrant granted to Samuel White for 200 acres. At the time of the survey, a family was residing on the land! George Ege claimed part of the tract by virtue of the Moses Foulk warrant, and the other part was claimed by Thomas Thornburgh, by virtue of a warrant to himself. These facts the deputy-surveyor, as he was bound to do, (vide Sergeant Land Law, 173, and the Act of 22d January 1802; 3 Smith Laws 480), noted on the survey, and certified the same to the surveyor-general, particularly describing the respective claims by blue and red lines. This was in the nature of a caveat against accepting the survey, and prevented the surveyor-general from issuing a patent to White, until the expiration of ten years from the time of the return, without the order of the board of property after hearing the parties. And in pursuance of this, this pi'oceeding, it cannot be doubted, was had. The parties were all present, for George Ege and Thomas Thornburgh, the caveators, were plaintiffs, and Samuel White was defendant; and, after a full hearing, the board decided in favour of the plaintiffs. Taking it altogether, there is not even an imperfection in the record. Undoubtedly the court had jurisdiction; no petition or citation was necessary; the return of the deputy-surveyor being in the nature of a caveat, and it manifestly appearing that all the parties in interest were present at the hearing. It is said that the paper offered is not a full copy, and that the certificate is defective ; but it does not strike me that it is liable to this objection. It purports to be the whole record, and we cannot intend it to be otherwise, unless something appears in the certificate itself, or on the record, indicating the reverse. We must take it that it embraces all that remains in the office; for even if the record was incomplete, it would be no objection to its admission in evidence. In Edmiston v. Schwartz, it is ruled that where the prothonotary certified that a paper offered in evidence was truly copied from .the records of the Court of Common Pleas of Cumberland county, it was' sufficient evidence that it was a copy of the whole record. So a certificate from the prothonotary that a paper contains a copy of the record, means a copy of the whole record. Voris v. Smith, (13 Serg. & Rawle 334). The deputy-secretary of the Land Office certifies that it is a true copy of the proceeding, as recorded in Minute Book No. 8, pp. 272-3, remaining in the office of the secretary of the Land Office. This we cannot but understand as being a certificate of the whole proceeding of the board of property, recorded in the minute book of the Land Office, the proper and only place of recording such proceedings, according to the usages of the office. We cannot suppose there is any other place or manner of making such entries. Taking, therefore, the two bills of exception together, we think the court was right in admitting the testimony for the purpose for which it was offered.

The remaining objection is to the charge, and this arises on the following state of facts: The land in dispute, the Moses Foulk tract, was part of a body of lands consisting of ten tracts, lying contiguous to each other, held under different warrants, called the Mount Holly estate, or Mount Holly iron-works. The property, as one whole, was returned and assessed by the proper officer of the county as seated lands, for taxes, for the years 1806, 7 and 8; which taxes, as the jury have found, were regularly paid by the owners of the property, under whom the plaintiffs claim. After-wards, it being discovered that the holder or owner of the tract in dispute had omitted to file a description of the land, as is directed in the Act of the 28th March 1806, and in that particular had failed to comply with the injunctions of the Act, the commissioners, without any notice whatever to the owners, proceeded to assess a fourfold tax, as is therein prescribed. For payment of these taxes, so assessed, the tract in dispute was sold, and the person under whom the defendant claims became the purchaser; and this, it is contended, vests in him a complete and indefeasible title. It has been repeatedly held that proof of payment of the tax avoids the title which a purchaser at a treasurer’s sale would otherwise acquire. Unless, therefore, there is something peculiar to this case which makes it an exception, the title of the defendant is defective. And this, it is contended, is the case, because the holder omitted to comply with the injunction of the Act of the 28th March, under which the tract in dispute was sold. It is assumed that this Act, as well as the Act of the 4th April 1805, to which it is a supplement, was intended to apply to the holders of more than one tract, lying contiguous to each other, to avoid fraud, the result of a contrary practice. This may in part be true, but not altogether, as the provisions of the Act apply as well to the owner of one warrant, as to the holder of several warrants lying in one body. The mischief would seem to have been, that the owner of unseated lands frequently withheld his land from taxation altogether; for remedy whereof, it is made his duty, under the penalty of a fourfold tax, to return it, with a particular description thereof, for taxation, in order that that species of property may contribute in proportion to the current expenses of the county. By the first Act, passed the 4th April 1805, the land is only liable to the imposition of a fourfold tax when secreted by the holder, implying by that term that it had been fraudulently concealed from the knowledge of the commissioners. In the Act of the 28th March 1806, which repeals the former Act, the word secretly is omitted, from which an .inference is deduced that the Legislature intended that the omission, proceed from what cause it may, should be conclusive of the right to impose upon the owner the penalty prescribed by the Act, and that, consequently, proof that the tax had been paid would not affect the title in the-hands of the purchasers. But this would not seem to be a legitimate inference, for the only charge which is made is, that under the first Act it would be necessary that it should affirmatively appear that the holder had been guilty of a fraudulent concealment; whereas, under the latter Act, whether it had been omitted by negligence or design, the penalty would be incurred. In either case, the holder being in default, it was thought just that he should suffer the penalty. But although this is so, yet does it apply to a case where there has been neither negligence nor fraud, but a bona fide payment of the tax assessed on the land, as seated, by the proper officers of the county, where, in truth, as it appears here, there has been the utmost good-faith, and where, if there has been a mistake, it is as much the fault of the assessors as the holders? We think it would be a harsh construction of the Act, if, under such circumstances, the holder should be deprived of his land under a proceeding of which he was ignorant, and when he had a right to believe that he had discharged all the demands of the county .against him. The primary intention of the supplement would appear to be, to extend the time for complying with the injunctions of the original Act. - That Act required the holders to file their claims within one year from its passage, viz., 4th April 1806; the supplement prolonged the time till the fourth Monday in November following. Where a person is the holder of several tracts contiguous to each other, held under different warrants, there is no doubt that it is his duty to give a description of each and every tract so held, the name of the person or persons to whom the original title from the Commonwealth passed, and the nature, number and date of such original title. And when he omits to comply with this injunction, he renders his unseated land liable to a fourfold tax as a punishment for his neglect. The very fact of such failure renders him obnoxious to the penalty. It is the duty of the commissioners, when such default is discovered, to assess on every such tract fo'ur times the amount of the tax to which such tract would otherwise be liable, and to enforce the collection in the same manner that taxes on unseated lands are assessed and collected. In the case in hand, the land was unseated, the holder neglected to file such a description as is required, it was duly assessed and sold by the commissioners, and Mr Woodburn, under whom the defendant claims, was the purchaser. And, if there was nothing else in the case, it must be conceded the title of the defendant could not be gainsaid. But the plaintiff alleges, and so the jury have found, that the tract in dispute, with other tracts lying contiguous and in one body, were assessed as seated tracts, and that the-taxes, this among the number, were duly paid. The only object of the several Acts on this subject is to secure the payment of taxes, and that each species of property, whether seated or unseated, should bear its proper share of the fiscal burthens. Here this object was more than effected, for the county have received, not one, but the amount of five taxes. We will suppose that at the time the commissioners were about to impose the fourfold tax, the holder, Mr Ege, had become aware of their intention, and had represented to them that the same tract had been already assessed as a seated tract, and as such the taxes had been duly paid; would it, notwithstanding this state of facts, have been the duty of those officers to assess and collect four times the amount of the tax to which the tract would have been otherwise liable 1 The affirmative of this proposition, it seems to me, would be difficult to maintain. The owner, with great propriety and force, could urge, “ It is true, I have not returned this as an unseated tract, but the assessors, in pursuance of their duty, have assessed it as a seated tract, by which the county has received more than they otherwise would be entitled to; for seated land is more valuable, and is therefore rated at a higher price than unseated. Of this I have not thought proper to complain, but have paid it regularly as proper officers have assessed it; and now you wish to subject me to a penalty by which the county will pocket five taxes, instead of one.” In the case of the holder of one tract, this injustice would be most glaring; but the iniquity of it where the owner holds several contiguous tracts, is the same. Here the assessment was of one body, as seated lands, the act of the assessor; in this the owner acquiesces, and I know of no law' which will prevent him from consenting that it should be taken as a seated tract, even where it is notoriously otherwise, and liable to taxation as such; for it is to the advantage of the county that it should be so assessed. Larimer v. M'Call, (4 Watts & Serg. 135). It is very true that it is advisable for the holders of several contiguous tracts to comply strictly with the terms of the Act; for, without this precaution, he necessarily exposes himself to great peril, for in many cases it would be very difficult for him to prove payment of the very tax, of which clear proof, it is granted, ought to be required. What, renders the case particularly hard is, that the owners of the Mount Holly iron-works paid the taxes, continued to pay them regularly, and were not aware that the property had been assessed or sold as unseated; for the first notice they had of the defendant’s title was at the trial of the indictment against Ege for cutting timber on the land in dispute.

When the owner neglects to pay the tax assessed on his property, he suffers for his neglect, and cannot with any propriety complain; but when he is no defaulter in that respect, and supposes he has discharged all his obligations to the county, he surely has a right to object to the loss of his money and land both. The holder here paid the taxes as they were assessed by the authorized officer; he acquiesces in their being so treated, paid more than could otherwise be demanded ;• and surely it is not unreasonable to rest under the belief that his larid would not be sold, at least without notice of such intention. And certainly we should have some charity for the course pursued by the assessor in assessing it as seated, when it is recollected that there is sometimes great difficulty in distinguishing one species of property from the other, and that it is the duty of the assessor in all cases to treat it as seated rather than unseated. . And there is less objection here, where both the owner and the assessor agreed that it fell within that description, and where, in truth, there was some reason to believe it was a seated tract.

Judgment affirmed.