Goettel v. Sage , 117 Pa. 298 ( 1887 )

Opinion,

Mr. Justice Williams:

This was an action of debt upon a bond. The defence set up was failure of consideration. The question raised by the assignments of error is, whether the facts which the defendant proposed to prove in support of this defence should be allowed to go to the jury. It is necessary to examine the facts out of which this litigation arises in order to a proper determination of this question.

The evidence shows that lots Nos. 47, 67 and 68, containing two hundred acres each, adjoined each other successively, and that Alfred Pearce was the owner of two hundred acres located in such manner as to occupy part of each of the said lots as shown in the diagram below.

Prior to 1872 Pearce’s land was assessed in the manner following:

Owners. Numbers. Acres.

Alfred Pearce. 47-68. 200.

In the years 1872 and 1873 the number 47 was dropped by the assessor and the assessment was left to stand thus :

Owners. Numbers. Acres.

Alfred Pearce. 68 200.

The taxes thus assessed for 1872 and 1873 were not paid and the land was sold at treasurer’s sale. Sage, one of the plaintiffs below, and J. E. Muse, who not long after transferred his title to Sheasley, were the purchasers and received a treasurer’s deed which followed the description in the assessment. The west half of No. 68 was owned by other parties to whom it was regularly assessed and by whom the taxes were paid. The east half only was owned by Pearce and it was upon that the taxes were unpaid.

In November, 1883, Goettel, desiring to purchase the west half of No. 68 and being informed that Sage and Sheasley claimed title to it, applied to Sage to know if they were the owners. He was informed by him that they were, and that they had a tax title to it which he believed to be a good title. Negotiations were then opened by Goettel for its purchase. He was informed by Sage that while they believed their title to be a good one they would not warrant it to be so, but would convey only by a quit-claim deed; and that he had better get an attorney to examine the title as they would sell in no other way. Goettel accordingly employed an attorney to examine the records and ascertain the nature and validity of the title of Sage and Sheasley to the west half of No. 68. The attorney reported to him that he considered their title to be a good one, and Goettel then purchased the west half of No. 68 for two thousand dollars, paying seven hundred dollars in cash and giving the bond now in suit for the remaining thirteen hundred dollars. After the transaction was closed Goettel learned that the west half of No. 68 was owned by other parties to whom it was assessed and whose taxes had been paid; that Pearce never owned it; that it was at no time liable to sale for unpaid taxes; and that he had absolutely nothing for his money and his bond. He then tendered a re-conveyance to Sage and Sheasley and gave notice of his rescission of the contract. They declined the tendered re-conveyance and on the maturity of the bond brought this action.

The contention of the plaintiff below is that the defendant cannot now be heard upon the defence he sets up because they gave and he accepted a quit-claim deed. As there was no covenant of warranty, and no intentional fraud they insist that the plaintiff shall pay the consideration although he gets nothing whatever for it. This is against equity, and no rule of law requires it. Let it be conceded that Sage and Sheasley believed they had a good tax title to the west half of No. 68 and were honest in expressing their opinions about its validity to Goettel. Let it also be conceded that the attorney who examined the tax records and advised that the title was good, behaved with fidelity to his client, and that Goettel purchased the title because he believed it to be good. Nevertheless the fact is, for the fact must be taken to be as expressed in the offer, that the vendors, the attorney and the vendee were all mistaken. The land had not been in arrears for taxes and could not have been sold by the treasurer. The vendors had no tax title to it and Goettel got none from them.

A similar question was raised in the Commissioners v. Smith, 10 W. 391. There an action was brought to recover the amount bid at a tax sale upon a lot in Kittanning borough sold as unseated. The defence was that the lot was seated and under cultivation when the taxes for which it was sold were assessed. This was held to be a good defence both in the court below and in this court. In the opinion it is said that “ the land being seated was not within the power given to the county commissioners and their treasurer. The whole proceeding being coram non judice was void and it would be iniquitous to prevent the purchaser from showing it.” The case in hand is a stronger one than the Commissioners v. Smith, for the taxes on the west half of No. 68 had been paid and nothing but a blunder on the part of the assessor furnished a pretext for the claim that Sage and Sheasley had a tax title to it. Why then shall not the purchaser be permitted to show that all parties to the contract dealt under the influence of a mistake and contracted about a thing that had no existence, viz., a tax title to the west half of No. 68? There is no reason in morals or in law. This court recognized the right to rescind a contract made under the influence of mutual mistake in the recent case of Babcock v. Day, 104 Pa. 4, and in Wilson’s App., 109 Pa. 606, and in Johnson’s App., 18 W. N. 205. It is apparent that the defence set up by the defendant is one that he has a perfect right to make, and as the facts grouped in the offer were competent and pertinent evidence in support of it, the court erred in rejecting it.

Judgment reversed and venire facias de novo awarded.