Alexander v. Ellis

16 A. 770, 123 Pa. 81, 1889 Pa. LEXIS 634

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1889
• Docket: No. 117
• Status: Published

Opinion

OPINION,

Mb.. Justice Williams :

In 1844 the tract of unseated land in the warrantee name of John Barron, No. 4278, containing ten hundred and forty-four acres, was owned by T. W. L. Freeman. In 1845 he projected on paper a division of his tract into eleven lots, but no lines were run on the ground, nor was there any natural monument or other mark indicating the subdivision or the position of any one of the lots. In the same year he conveyed eight hundred and forty-four acres of the tract, covering all the lots except Nos. 7 and 10, to Charles D. Freeman. He soon after conveyed No. 7 to H. R. Norman, and No. 10 to J. L. Jones, as containing one hundred acres each. The tract continued to be assessed as a whole in the name of the original warrantee, and in 1850 it was advertised for sale by the treasurer of Jefferson county for the non-payment of the taxes of 1848 and 1849. Before the sale, David McLaughlin paid the taxes upon one hundred and six acres, and the treasurer, deducting the money paid from the whole amount of taxes and one hundred and six acres from the number of acres at which the tract was assessed, proceeded to sell the warrant as containing nine hundred and twenty-six acres to Robert Orr. In May, 1852, Magee, who had succeeded to the title of Charles D. Freeman to eight hundred and forty-four acres of the tract, sent his agent to the office of the county treasurer to redeem his lands. He paid the redemption money upon the whole tract, as it was sold, and took the treasurer’s receipt therefor, in which, after acknowledging the payment by Magee of the sum of $53.74 in full for the redemption money, the treasurer described the land as a tract “warranted in the name of John Barron, No. 4278, and containing eight hundred and forty-four acres.” It had been sold by the same description, except that the quantity of land had been stated to be nine hundred and twenty-six acres. The tract redeemed was the same that had been sold as the John Barron, No. 4278; and the variance in stating the number of acres it contained was in an immaterial matter of description.

*

The question raised upon these facts, is whether the redemption by Magee divested the title of the purchaser at tax sale as to the whole tract, or only to so much of it as was actually owned by Magee when the redemption was made. This question is answered by considering the nature of the transaction. The treasurer is a public officer. What acts are necessarily performed by him in the sale and redemption of unseated lands are done by him as the agent of the law. The act of 1815 provides that the owner may offer the money necessary to redeem his lands from a sale for taxes to the county treasurer, “who is hereby authorized and required to receive and receipt for the same,” and pay it over to the purchaser. The payment of the money to the treasurer is, prima facie, a payment to the purchaser, and divests his title. If the purchaser denies the sufficiency of the redemption for any reason, he must show affirmatively that he has not taken the redemption money before he can be heard to deny the effect of the payment to the treasurer. The legal presumption is that the treasurer has paid the money to him, and it is very clear that ho could not be allowed to hold the money and the land at the same time. This consideration alone would dispose of the question now raised. The legal effect of the receipt of the treasurer for the redemption money due upon any given tract of land is shown by Bubb v. Tompkins, 47 Pa. 359. In that case the treasurer had, by mistake, failed to include the taxes paid by the purchaser after the tax sale, with the redemption money, and had given the owner a receipt in full for the redemption of the tract without noticing his mistake. The act of the treasurer was held to constitute a valid redemption of the land, and the purchaser was required to look to the treasurer for the money which bis mistake had left uncollected.

But there is another reason why the redemption by Magee was effectual as to the whole tract. The assessment was made upon the tract as a whole by its number and the name of the warrantee. It was sold as a whole by the same description. There were no division lines on the ground. Whether an examination was made upon the surface of the tract, or upon the tax records, the tract and its assessment were entire. When Magee came to redeem the eight hundred and forty-four acres in the warrant to which he had title, he had no safe course to pursue except to redeem the tract. He owned fully nine tenths of the land sold by the treasurer as warrant No. 4278, but be could not point out wbat belonged to bim on tbe ground, or distinguish it from what was not his, for it was not separated from the body of the tract by lines, or located by any natural landmark. The payment of the whole redemption money, was therefore the only prudent, if not the only possible, method of redeeming his own land. If, upon the facts of this . case, he had offered pa^t of the amount necessary to redeem the tract, it is probable that the treasurer would have declined to receive it; but, if he had received it, would the purchaser have been compelled to accept less than his bid, and the interest allowed by law from the treasurer ? Could a tract which had been assessed and sold as a whole, and which was undivided on the ground, be split up in the hands of the purchaser by the payment of fractional parts of the redemption money to the treasurer ?

These questions show the wisdom if not the necessity of the redemption by Magee of the entire tract as sold. If the several part owners had complied with the requirements of the" law by returning their separate holdings for taxation, they would have been separately assessed, each with his own land. In that case Magee would have had no possible interest beyond his own lines, and no standing from which to redeem the separate lot of any other owner which might be sold by the treasurer. All the lots so assessed and sold would require to be separately redeemed, and such redemption could be made only by or on behalf of the owner or his lien creditor. But as we have seen, none of the part owners of No. 4278 had returned his land for taxation, or caused his lines to be run on the ground, and it is to be presumed that for this reason the tract continued to be assessed as a whole. The taxes were a lien upon the land, and in the absence of any division upon the ground or upon the tax records, they were a lien on the whole tract. The whole tract was sold for their non-payment. The whole redemption money was paid in due time by one who owned a large but unseparated part of the tract, and this divested the title of the purchaser absolutely. The court below was in error in its rulings upon this question, which is the controlling question in the case.

The judgment is therefore reversed.

See Putnam v. Tyler, 117 Pa. 570.