Brown v. Day

78 Pa. 129, 1875 Pa. LEXIS 106

• Court: Supreme Court of Pennsylvania
• Decided: May 10, 1875
• Status: Published

Opinion

Chief Justice Agnew

delivered the opinion of the court, May 10th, 1875.

The argument in this case took a wide range, involving questions of abandonment, seisin, possession, casual entries, and other matters often important in determining questions of title. But the true attitude of this casé presents only a single principal question, to wit: Whether the two plaintiffs, Israel Day and Samuel Saylor, had, in the year 1860, such claim or color of title to the Samuel Harvey tract as enabled them rightfully to pay the taxes. ■ If they had, then the taxes being paid, and accepted .,by the treasurer in fact, and the misapplication of the money to the wrong tract being wholly his fault, as found by the jury, he had no right or authority to sell the land; the tax' sale to S. J. Hollinshead, after payment of the taxes, was void, and the plaintiffs were entitled to recover: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315.

Then, had these plaintiffs such claim or color of title as authorized them to pay the taxes on the tract warranted in the name of Samuel Harvey ? Had they such a title as the law would enable them to pi’otect by payment. This must be determined by the facts in evidence. A warrant was issued in the name of Samuel Harvey, on the 17th September 1792, for four hundred acres of land on Trout creek, near the Lehigh, in Northampton county, upon which a survey was made on the 19th of November 1792, of four hundred and thirteen and three-quarter acres and allowance, the same land now in controversy. Wayne county was cut off from Northampton in the year 1798, by a line from the Delaware river to the mouth of Trout creek, on the Lehigh, running by this tract, and leaving it, as it was supposed, until recently, in Wayne county. It is found that a small portion only, probably ten or twelve acres, lie in Wayne county. In the year 1806 this Samuel Harvey tract and the Mary Harvey tract adjoining it on the northwest, another Samuel Harvey tract, and seven other tracts in the same vicinity, were sold as unseated lands for taxes by the sheriff of Wayne county, and conveyed together in one deed to Silas Kellogg. In 1807, Silas Kellogg conveyed two of these tracts (the Mary Harvey and the Samuel Harvey, the one in controversy) to John Stoddart. By deed dated in 1814, Joseph Tyson conveyed to James Tyson the undivided half of these two tracts, reciting a deed poll from John Stoddart, dated 24th May 1808, endorsed on the deed to Silas Kellogg for the same two tracts to Joseph and Jonathan Tyson. Jonathan Tyson also conveyed his undivided half to James Tyson in the year 1813. Before Jonathan had parted with his title he had built a saw-mill on the Mary Harvey tract, within a few perches of the northwestern boundary'of the Samuel Harvey tract. James Tyson built another saw-mill on the site of the old one, a few years prior to his sale to George Craig, and several houses also, which were occupied from time to time by tenants. The testimony tends to show that the boundary line between the Mary and Samuel Harvey tracts had not been marked on the ground. The pool of the saw-mill dam extended beyond this boundary into the Samuel Harvey tract, and the evidence shows that timber for the mill was cut on both tracts. In 1847, James Tyson conveyed to George/ Craig the two tracts, Mary and Samuel Harvey, and a third small parcel, surveyed in the name of George Solliday, containing thirty-four acres, all together, and described as one tract of eight hundred and fifty acres and twenty-five perches, and allowance. In 1851, George Craig conveyed the same property described as one tract to Amos Moore. In 1858, Amos Moore devised one-half of his property in Monroe county to .Stephen B. Moore, and the other half to be sold by his executors. In 1859, Stephen B. Moore conveyed his undivided half of eight hundred and fifty acres and twenty-five perches to Israel L. Day and Samuel Saylor, and on the same day the executors of Amos Moore conveyed the other undivided half of the same property to Day and Saylor. Thus it appears that these two tracts, Mary and Samuel Harvey, passed together into a single ownership so early as the year 1814, and have so continued until the time of the treasurer’s sale in 1860 to S. J. Hollinshead. From 1847 they were not only held together as a single ownership, but were with the small tract of thirty-four acres conveyed together as a single tract of eight hundred and fifty acres and twenty-five perches. The mill and houses on the Mary Harvey tract have been occupied under the several owners down to the time of trial, and timber cut on both tracts. No claim has been made' by Samuel Harvey, the warrantee, or taxes paid by Mm or any one under bim or Ms title. He is wholly unknown, except as his name appears in the warrant. So.far as taxes are shown to be paid by any one, it has been under the name of James Tyson and his successors, while the continued possession of the Mary Harvey warrant and joint ownership and use of it with the Samuel Harvey warrant, raise the presumption that all the taxes have been paid under that title. Here then was a boná fide claim of title under a sale supposed to be valid of the two tracts warranted in the names of Mary Harvey and Samuel Harvey, without molestation or interference of any one for a period of fifty-six years, and a joint ownership of the tracts as one, and control of both together as one body of land, conveying them together, and using them together by actual possession and improvement of one, and by backing up the water, and cutting timber upon the other. If such a claim of right cannot be protected from divestiture, by payment of taxes to prevent a sale, it is difficult to conceive of any interest in land but an absolute title, which can be so protected by payment. Had the division of Northampton county in 1798 thrown the Samuel Harvey tract entirely into Wayne county, as for many years it was believed to be, there would be no doubt of the right. Then the limitation of five years in the Act of 1804 would have confirmed the sheriff’s deed. Clearly it was color of title, and would give effect even to the general statute of limitations in case of actual possession, such as there was of the Mary Harvey warrant. How then can the mistake of locality in 1806 so derogate from the title to the Samuel Harvey warrant, as to prevent payment of the taxes upon it by the only known owner of it in 1860 ? Will a party claiming both tracts together as a whole, under a long line of conveyances, treating the ownership as one, and exercising control over both, be, by this mistake, when discovered after a lapse of years, stripped of his power to protect himself from a sale for taxes ? The effect of such unity of title to several distinct tracts (fifteen in that case) was strongly stated by Chief Justice Lewis, in the memorable case of Hole v. Rittenhouse, 1 Casey 491, in explaining the decision in Kite v. Brown, 5 Barr 291. This effect was perhaps too strongly stated in reference to its influence upon the Statute of Limitations, as was said by Thompson, J., in Warner v. Henby, 12 Wright 187 ; but the principle of this unity'of title and claim makes it clear that the owner may so treat his property. Thus, it was held in Burkholder v. Sigler, 7 W. & S. 154, that when an owner of a tract purchased a small parcel of adjoining land for the use of his mill, a levy and sheriff’s sale carried both, though without any description of the small parcel. It is common practice to levy and sell as one a farm composed of several parcels, but used as a whole, even where one of the parcels consists of woodland only.

The fact that the Samuel Harvey tract was assessed as unseated, while the Mary Harvey was seated, does not dissever the joint ownership, or forbid the claimant to pay the taxes on the unseated tract. Assessment is the act of the law. The second section of the Act of 1804 required the deputy surveyors to return to the county commissioners all the lands in their districts, “ which return shall include a list of the number of acres contained in each survey or warrant, and of the names and surnames of the original warrantees, the waters on which the same is situate, the lands contiguous thereto, and the township, if known, wherein the same may lie.” This was a matter of public policy to obtain all the lands liable to taxation, unseated lands at that time being generally wild, and embraced in large unsettled districts in which even the townships were often unknown. This act was followed by that of 1806, requiring the owners of lands to furnish a list to the commissioners “of each and every tract” of unseated land held by them, with the name of the warrantee, under a penalty of a fourfold tax to be assessed on “ every trace ” not returned. This is the very view taken by the late Chief Justice Thompson, in Heft v. Gephart, 15 P. F. Smith 516-17. The law of assessment, therefore, does not change the right of the owner or claimant to pay the taxes according to his ownership. The question here is, had the plaintiffs a right to pay the taxes of the Samuel Harvey tract, not how they should be assessed ?

Bearing on this question are some of the decisions as to the right of redemption. Thus, in Shearer v. Woodburn, 10 Barr 511, a purchaser from one who had purchased at sheriff’s sale the claim of one who had exercised acts of ownership over land, and been the reputed owner for years, was deemed to have such title as entitled him to redeem. Redemption presupposes a valid sale for unpaid taxes, and requires a clearer right to redeem after such a sale than to pay taxes before the sale, in self protection.

There is another class of cases bearing on this right to protect such a claim of title, to wit, those establishing a presumption of title arising from great lapse of time. In this case there had been no claim by the warrantee, or any one under him, for a period of over eighty years at the time of trial, and no adverse claim or interruption of the title by sheriff’s sale in 1806, for fifty-four years, at the time of the sale for taxes. In Taylor v. Dougherty, 1 W. & S. 326, a case of one claiming a warranted tract against an intruder without title, Chief Justice Gibson said : “ The land was warranted and surveyed in 1773, in the name of Henry Kepple, of whom nothing has since been heard during a period of near seventy years, while they, under whose title the plaintiffs claimed, exercised the only ownership over the warrant, of which, as a title to wild land, it was susceptible. They paid the only taxes for it that ever have been assessed upon'it, and this from 1805 till the trial of the cause (1840). Surely, if the beneficial ownership had been in Kepple, he or his representatives would have claimed it long before. The presumption from time alone of an intermediate conveyance from him as a trustee, would be sufficient to go to a jury as primá facie evidence of the fact.” Hastings v. Wagner, 7 W. & S. 215, is a still stronger case, for there the land had been patented, and a deed from the third grantee, followed by a lapse of thirty years, was presumed in favor of those claiming title under it, while the actual possession of the land was in one claiming by settlement and residence. In that case, C. J. Gibson remarks, “ that to raise a presumption of a conveyance the question of possession is between not these two (to wit, the claimant and the settlor), but the presumptive grantor and the presumptive grantee.” The' doctrine of presumption is laid down quite as strongly by C. J. Black, in Strimpfler v. Roberts, 6 Harris 283. But it is unnecessary to enlarge, as this subject has so recently undergone investigation in the case of Carter v. The Tinicum Fishing Company, 27 P. F. Smith 310. In the present case there has been not only a continuous claim of title from 1806 to 1860, when these taxes were paid; but, also, the only possession of these two tracts ever known to be had of them.

Another class of cases gives strength to the position of Day and Saylor as claimants under color of title, viz., those holding that even a treasurer’s deed before the Act of 1815, or one which may not be maintained against the owner of the land, will enable the holder of the tax deed to recover against an intruder: Foster v. McDivit, 9 Watts 344, 345. Now, clearly, a title such as would enable the possessor of it to recover against an intruder would be sufficient to enable the same party to pay the taxes on the land he can thus recover. In doing this he is performing a public duty and injuring no one, for the true owner is benefited by his act, and his title saved from a sale, while the subsequent purchaser from the treasurer had not then come into existence, and had then no rights to be affected. As the owner of even a defeasible title he ought to be permitted to protect himself by payment, for the true owner may never come, or may be barred by lapse of time, and the title may never be defeated. Thus we have in the case before us a holding of the title for fifty-four years, repeated sales and conveyances of the two tracts as one, a joint holding of both under the same title, actual possession of one longer than to give title by limitation, and the use of the other by means of backwater and cutting timber, a dying seised and devise of both as one body of land, and subsequent conveyances in continuation of this unity, and payment of taxes as they were demanded, without any adverse claim of title whatever. Clearly such a claim of ownership entitled Day and Saylor to pay the taxes in 1860, and thus avert a sale.

In regard to the only other question, that as to the sufficiency of the search for the letter to James H. Stroud, it seems to us, when,all the witness testified to in his several examinations, for he was recalled twice, and made re-examination after the adjournment of the court, is considered, there was ample evidence of search to admit the contents of the letter ; especially in view of the time which had elapsed, the removal of papers, destruction of those that remained in the bank, and the want of knowledge as to where the letter had really been deposited. It would consume unnecessary time and space to enter into a labored examination of the evidence.

Judgment affirmed.