Rupert v. Delp , 7 Pa. Super. 209 ( 1898 )

Opinion by

Beaver, J.,

The plaintiffs, claiming under a purchaser at treasurer’s tax > sale, brought their ejectment against the defendant who claimed under the owner at the time the sale was made. The sale occurred June 9, 1884, and the action of ejectment was instituted April 14,1896, nearly twelve years after the sale. “ Is the holder of the tax title, when plaintiff, entitled after five years to recover, without showing requisites ? In view of the act (1804) and the decisions under it, we think not. The words of the statute illustrate this. They are: ‘No action for the recovery of said land (land sold for taxes) shall lie, unless the same be brought within five years after the sale thereof for taxes as aforesaid.’ No suit against the owner of the tax title by the original owner, whether the latter be in or out of possession, will lie after five years, but the owner of the tax title may bring suit against the original owner at any time, but then he must show requisites; that is, that there was an assessment of the taxes by some competent authority, that they were due over a year and remained unpaid, when the sale took place. It may not be inaptly said that the statute operates to paralyze the activity of the original title as an assailant of the tax title after five years; but, when the tax title becomes the assailant, such is not the case; it must then come backed by the authority of the law in the requisites necessaiy to be shown: ” McReynolds v. Longenberger, 57 Pa. 13.

One of the requisites or indispensable elements of a good title under a treasurer’s sale, where the land sold for a sum greater than taxes and costs, is a surplus bond: Cuttle v. Brockway, 24 Pa. 145.

The deed from the treasurer to the purchaser in the present case was lost. Its existence was proved by the record of its acknowledgment in the prothonotary’s office. If anything appeared in the recitals in the said deed as to the giving of a surplus bond, it could not be shown. The compliance, on the part of the county treasurer, with all the necessaiy legal requirements to vest a good title in the purchaser at treasurer's sale might well be presumed, for, as was said in Cuttle v. Brockway, supra, “ There is nothing to which the maxim omnia prsesumuntur rite esse acta applies with so much force as to a tax title.” If there were nothing in the case which tended to rebut this presumption of regularity, and tbe giving of a surplus bond, the maxim above quoted might well be held to supply tbe lack of proof occasioned by tbe loss of tbe deed and to strengthen tbe entry in tbe treasurer’s sales book in regard to tbe surplus bond, but tbe purchaser at tbe treasurer’s sale, when asked, on cross-examination, in regard to bis having given a surplus bond, said, “ I have no recollection — no distinct recollection — of that at all. All I remember is that I paid tbe amount — eight dollars and some cents. I paid tbe whole sum.” On bis redirect examination be testified as follows :

“ Q. Did tbe amount of tbe sale exceed tbe taxes claimed and costs? A. Yes, sir. Q. A little in excess? A. Yes, sir. Q. What did you do with tbe surplus ? A. I paid it to tbe treasurer. Q. You are sure that you didn’t give a bond? A. I have no recollection of giving any. Q. Nor signing any paper? A. I don’t recollect of that. Q. You don’t mean to say that you did not ? A. I don’t say that I did not nor that I did. Q. You can’t say, Mr. Rupert, that you did not? A. No, sir.” Tbe definite thing which tbe witness seemed to remember with distinctness was that be paid tbe entire purchase money, including tbe amount which was in excess of the taxes and costs. This would tend to rebut tbe presumption of tbe giving of a surplus bond. It follows that tbe defendant should have been allowed to show tbe fact “ that tbe plaintiffs have not filed a surplus bond, as required by tbe act of assembly,” if that was part of tbe offer, rejection of which is complained of in their first assignment of error, and scarcely justified tbe court in saying in its charge to tbe jury, as complained of in tbe fifth assignment of error, that “ All other conditions of tbe purchase were in fact carried out, so far as this case is concerned.” Tbe question of tbe giving of a surplus bond was, under all tbe evidence, in so much doubt that it should have, been submitted to tbe jury, with instructions that, if they found that no surplus bond had been given, tbe sale was invalid and tbe verdict sboidd be for tbe defendant.

Tbe owner of tbe land at tbe time of tbe treasurer’s sale was Lavinia Myers, a daughter of John Brough, in whose name tbe land bad been assessed prior to 1884. According to tbe treasurer’s testimony, Cornelius Myers, her husband, came to tbe treasurer’s office May 22, 1884, told him that bis wife was interested in a tract of land and wanted the taxes paid and, in answer to the question of defendant’s counsel upon cross-examination, “ Q. He said his wife was interested in the Brough land and wanted to pay all the back taxes on the Brough land?” he said, “Yes, sir; all we had against him, and the only record we had was on that sale list. If there was any back of that, it never had been returned, and we could not sell for what we didn’t have.” As a matter of fact, however, the assessor of the township in which this land was situated had returned the land in the name of Cornelius Myers (John Brough lot), apparently without any direction of Myers and upon his own motion, after inquiry in the neighborhood, based upon information received from persons living in the vicinity. There apparently is no doubt of a bona fide intention on the part of Myers to pay all the taxes assessed upon the property of his wife up to the time of payment on the 22d of May, 1884. Having no knowledge of the assessment in his own name, he asked to pay the taxes on the John Brough land. Either because of a faulty assessment on the part of the assessor or of the failure of the treasurer to make the proper examination for all the taxes assessed upon the John Brough land, Myers did not pay, because not asked to do so, the taxes for 1883, for the nonpayment of which the land was sold. Was this the fault of the treasurer or of the agent of the owner ?

In Baird v. Cahoon, 5 W. & S. 540, under somewhat similar circumstances, Mr. Justice Sergeant said: “We are of opinion that the court below erred in charging the jury that it was immaterial whether the nonpayment of the taxes was owing to the neglect of the agent or of the treasurer, or both, as we think the determination of the case must depend upon that question. The officer has duties to perform as well as the owner, when the latter comes to him to pay up the taxes on his unseated lands. Various acts or omissions of the officer may occur constituting such neglect on his part that the owner ought not to suffer by it, which cannot be defined beforehand but must depend upon the particular circumstances of each case. By whose neglect it was here that the tax in Washington township was not paid, when the agent called to pay Mr. Baird’s taxes — whether of the agent or the treasurer — was a question for the jury to decide, as well as they could from the evidence.”

In the. case under consideration we are of opinion that the question as to whether the nonpayment of the tax on the Brough lot, assessed in the name of Cornelius Myers, for the year 1883, was due to the neglect of the agent of the owner or of the treasurer, or of the assessor in making the assessment, was one for the jury, and should have been submitted to them for their finding: Breisch v. Coxe, 81 Pa. 336; Pottsville Lumber Co. v. Wells, 157 Pa. 5. It follows that the testimony contained in the offer, the rejection of which constitutes the second assignment of error, should have been received, as hearing upon the question as to whose failure or neglect the nonpayment of the taxes of 1883 was due.

The court submitted to the jury the question of the identity of the land sold with that for which the ejectment was brought and charged in effect that, if they found the land sold by the treasurer to be identical with that in the possession of the defendant, the verdict should be for the plaintiff. The other questions of fact hereinbefore referred to should also have been submitted to them for their finding. Having failed to so submit them, we think the court erred, and the first, second and fifth assignments of error are sustained.

Judgment reversed and a new venire awarded.