Coxe v. Deringer

82 Pa. 236, 1876 Pa. LEXIS 223

Opinion

Chief Justice Agnew

delivered the opinion of the court, October 10th 1876.

It will be sufficient to consider the four propositions presented by the plaintiffs in error, instead of discussing the specifications of error in detail.

The first proposition cannot be sustained. There were facts to be submitted to the jury on the question whether the requirements of the Act of 29th March 1824 had been complied with by the commissioners, in making the sale to Henry Deringer of June 5th 1827. There had been no actual possession of the Samuel Rope tract until very recently. Henry Deringer had paid the taxes regularly on this tract, with a slight exception, for nearly forty years. It is not the case of one setting up payment of taxes against another in actual possession, exercising rights of ownership under a claim of title. The payment of taxes will not stand for actual possession to support a title under the Statute of Limitations, •but it is an assertion of title of a decided character, so much so it will extend even a tortious possession, beyond the pedis possessio of a trespasser: M’Call v. Neely, 3 Watts 73; Heiser v. Riehle, 7 Id. 37 ; Criswell v. Altemus, Id. 580. It was said in our former opinion, the county being the owner of the land the commissioners conveyed, the deed of June 5th 1827 recited the performance of the directions of the act, and this sale has never been impeached by the county. The conclusion then stated was that the facts were for the jury, upon the question whether the directions of Act of Assembly had been complied with. Opinion of Woodward, J., Coxe v. Deringer, 28 P. F. Smith 271. In Jenks v. Wright, 11 P. F. Smith 410, there was direct and positive proof that the sale was private, and the act not pursued. So in Hoffman v. Bell, 11 P. F. Smith 444, the deed was made after the treasurer had gone out of office, and therefore without authority. In no case has it been decided that the party claiming under a commissioners’ deed must prove the prerequisites of the sale positively under all circumstances. Natural presumptions arising from clearly proved facts which lead to a belief that the directions of the law have been fulfilled, must be submitted to a jury in this as in other cases.

The second proposition is sustained on the ground of the insufficiency of the evidence to overturn the fact of the sale set forth in the treasurer’s deed of 1828 to the commissioners. This fact lies at the foundation of the title of the county, of which the primary evidence is the deed itself. There are some recitals in a treasurer’s deed, which are only secondary evidence, and where, to support a sale, the recitals may be corrected by the original documents from which the recitals were derived: Turner v. Watterson, 4 W. & S. 171. But a sale is an independent fact in itself, not necessarily the subject of an entry in an original document, unless it happens, to be made voluntarily by the treasurer. The law requires no entry of it. The sale is itself an original act, done in pais, or, as it were, out of doors, and in point of time follows all the documentary entries relating to the tax for which the sale is made. It has nothing original to be referred to, by way of correction. Hence the treasurer’s deed is the primary and best, and, it may be, the only evidence of the fact of a sale. The sale is a necessary act, without which no deed can be made. The deed, when delivered, is therefore the proper evidence of the sale set forth in it, and cannot be avoided by loose and inconclusive evidence that no sale was made nothing less than clear and strong evidence of no sale being made should be permitted to overturn the solemn deed of the officer of the law. Any other rule would render tax titles very insecure.

This deed is found in the possession of the defendants over forty years after its date, and is given in evidence by them at the trial. No objection is made to the deed itself for any defect on its face, and no evidence was given to prove non-delivery to the commissioners or that they came to its possession surreptitiously. On the contrary, it came before the jury with the ordinary indicia of delivery, which, in the absence of countervailing proof, are legally sufficient according to the following cases: Blight v. Schenck, 10 Barr 285; Rigler v. Cloud, 2 Harris 361; Stinger v. Commonwealth, 2 Casey 428. Justice Sharswood, remarking upon the case of Blight v. Schenck, said that “ it recognised the doctrine that where an instrument is found sealed and delivered and there is nothing to qualify the delivery but the keeping of the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, it is a valid and effectual deed and that delivery to the party who is to take by it or any other person for his use is not essentialPennsylvania Co. for Insur anee, &c., v. Dovey, 14 P. F. Smith 267. This case does not need the doctrine of that case. Here we have not only the signing, sealing and acknowledgment, but possession by a subsequent purchaser under a tax sale of 1834, to whom it would be probably delivered by the commissioners, who suffered the land to be sold for the taxes of 1832,1833, assessed' in his name. But it is not necessary to strengthen the presumption of delivery, for both the plaintiffs and the defendants in error have argued the case as one of a delivered deed, and that the purpose of the evidence was to show that there was no sale to support the deed.

This brings us to the sufficiency of the evidence relied on. The first two facts on which most reliance is placed are that the treasurer made entries of the sales of other tracts at the same time, and made none of the sale of this tract. What then is the fact itself as to the Samuel Rope tract, the only one we are concerned in, and what is the value of the fact ? ■ The fact is simply an omission — a failure merely to make an entry; .and its value uncertain. Was it a failure of inadvertence or of intention ? Was it a slip of memory, or because no sale was made ? Who can say with certainty.? The treasurer has made no entry of a sale, but will this fact overturn a sale he alleges he made, and which he has consummated in the most precise form, by a deed solemnly executed and delivered, under the responsibility of his office and the sanction of his oath? Surely a solemnly affirmed act cannot be blown away by such a breath as this. Still worse and weaker are the next two facts relied on, viz.: that the treasurer on the 4th of February 1829 wrote .a letter to Henry Deringer and did not mention that the land had been sold to the commissioners in 1828, and that afterwards he received the taxes of 1828 and 1829 of Deringer, and said nothing of a sale in 1828 for the taxes of 1827. If Zurah Smith; the treasurer, were a party to be affected by his own acts or omissions there would be room for argument. But after the sale of 1828, he had no power whatever, by acts or declarations, much less by mere omissions, to impair the deed he had before solemnly and officially executed and delivered. The title under that deed was not to be withered by his breath, or his omission to speak of that which did not concern him. Frail, indeed, would be the tenure of any purchaser under such a deed, could such evidence be used half a century afterwards to stifle its voice. Of the same character are the omissions of the commissioners to perform the subsequent duties devolved on them by the Act of Assembly. Such irregularities are unfortunately too frequent. And what makes the error of the court more hurtful was the language and tone of the charge upon these weak and inconclusive facts. Referring to the letter of February 4th 1829, the judge said: “ When Zurah Smith wrote that letter, if the theory advanced by the plaintiffs’ counsel be true, there had been dealt a staggering, if not fatal blow at this very title,” and referring to Smith’s receipt for the taxes of 1828-29, he said: “ And yet when he executed and delivered that receipt to Mr. Deringer, or his agent, if the views of the counsel for the defendant are correct, a destructive and fatal dagger had been sticking for two whole years in the very heart of Mr. Deringer’s title.” The language of hyperbole is suited to the purpose of the advocate, who would enforce his thought by striking and intense expressions, in order to deepen its effect, and by the exaggeration lead the minds of his hearers into the fever of his own heated fancy. But weak and inconclusive facts when thus presented by a judge can only mislead. Jurors catching the tone and temper of their conclusions from the strong and figurative style of the judge, fail to give to the facts their true weight which a cool and fair statement is calculated to produce. There is . clear error in the tenth specification.

The third proposition of the plaintiffs' in error cannot be sustained. There was such evidence of the time of the payment of the taxes of 1832 and 1833 as was properly submitted to the jury. It came from several witnesses, not being confined to C. M. Deringer. It appeared that the receipts were continuous and complete, in biennial periods, from the year 1826, until the year 1844, a lapse intervening then for four years ; and beginning again in 1849 they continued in the same manner until 1868. They were regular in their form, character and time of payment early in the year. An illustration of their form, &c., was given in the receipt of January 5th 1830, viz., a statement in transcript form of the five tracts belonging to Mr. Deringer, giving the names, quantities, localities and taxes for each tract for the two preceding years, summed up together,-and a receipt at the bottom for the entire amount, with date. This precise, methodical and regular payment of the taxes on all the five tracts early in the year was strong evidence of Mr. Deringer’s punctuality. It proved his deep interest in the subject, which was not likely to fail in performance of his duty to protect himself. It was a very natural conclusion that a man who always paid his taxes promptly in biennial periods, previous to the time of sale, would have paid them in time in 1832 and 1833. This, therefore, was a question for the jury and not the court. Yet we are not unmindful of the necessity of holding a party to strict proof of the time of payment, when its purpose is to defeat a tax sale. The doctrine of McReynolds v. Longenberger, 7 P. F. Smith 13, ought not to be carried beyond its fair import. No question arose in that case upon the sufficiency of the evidence as to the time of payment, as shown in the receipts which had been destroyed; and indeed no objection was taken to the deposition on the score of time. The questions in this court arose upon the exclusion of parts of the deposition of the person who was the administrator of the owner, who had testified to the finding of the tax receipts in their proper place among the muniments of the owner’s title ; and the points decided were that on proof of their destruction by fire, and of their apparent official character, and the lapse of time since their dates being over thirty years, the evidence of their existence, character and possession was competent, in order to receive proof of their contents. The chief question was whether such instruments, when accompanying the possession and title of the land, proved themselves after a lapse of thirty years. What would have been their effect had the deposition been read and no other evidence of the time of the payment of the taxes than the mere years for which the taxes were assessed had been offered, was not determined. We make these remarks to guard against any inference that we now mean to give that case a wider range than its true character imports.

As this judgment must be reversed for error under the second proposition it is unnecessary to consider the alleged contradiction, stated in the fourth proposition, between the answers of the court to the defendants' first and third points, and that part of the charge asserting that the sale of 1834 was valueless, if the taxes for 1832 and 1833 had been paid by Mr. Deringer. No such contradiction need take place in a future trial.

Judgment reversed, and venire de novo awarded.