Hollinger v. Devling

105 Pa. 417, 1884 Pa. LEXIS 120

Opinion

Mr. Justice Green

delivered the opinion of the court, October 6, 1884.

We would gladly relieve the defendant in this case from his dilemma, if it were possible to do so. But we are quite unable to discover any method bj*- which this can be done, consistently with legal requirements which are so plain and so directly applicable to the undisputed facts of the case, that they can not be disregarded. The whole case is in a nutshell. The tract of land in question, known as the “Jacob Meyer” tract, was sold for taxes on June 10, 1872. It was purchased at the tax sale by John Irwin, Jr., who afterwards sold it to the plaintiff.' The defendant, Hollinger, was the owner of the tract at the time of the sale. His defence now is that he redeemed it within the time appointed by law. Whatever acts were done in the way of redemption were done in writing. There were no verbal communications whatever. The whole of the writings which passed between the defendant and the treasurer in connection with the alleged redemption consist of four letters and a receipt. They are as follows:—

Lancaster, Pa., June 18,1872.

Treasurer oe Centre County.

Dear Sir: — Are there any taxes assessed and unpaid on my tract of coal land situated in Rush township, near Philipsburg? If so please advise me of the fact, stating amt. and I will remit.

Yours truly,

Amos Hollinger.

Per Zercher.

Lancaster, Pa., Juno 22,1872.

James F. Weaver, Treas., Bellefonte, Pa.

Dear Sir: — Yours of 20th inst. to hand in regard to taxes on my tract of coal land. The following is a copy of your statement: Taxes, 130.19; costs, $4.87; bond, $60. There must certainly be something wrong about that bond business. Probably you mean 60 cents. Please let me know immediately. Is there no way of giving me notice in writing whenever there is tax assessed on my land, stating the amt. so that. I know when and how much to pay. I am willing to pay for the notice if required.' This thing of having to redeem my land every few years is annoying to me.

Yours truly,

Amos Hollinger.

Per Zercher.

Treasurer’s Oeeioe, Belleeontb,

26th June, 1872.

Amos Hollinger, Esq.

Dear Sir: — My statement is from the record:

Taxes for 1870 and ’71, .... $30.19

Costs, ...... 4.87

Bond over and above taxes and costs, . . 60.00

All you will have to pay $35.06, with 25 per cent, added. The bid was tax and cost in the first place and then other parties run it up on him to $60 above tax and cost. You can redeem any time within two years from the 10th June, 1872, and the costs will be no more than it is at present. Tax sales only occur every two years, and only once during a treasurer’s term, so we know nothing in regard to the whereabouts of parties owning land. Tax to save costs of adv. etc. should be paid each even year by the 10th March. You have not to pay till Mar. 1874, and every two years thereafter by the 10th

Mar.,......$35.06

If you wish to redeem, remit 25 per cent., . . 8.77

Total, ...... $43.83

Yours, etc.,

Jas. F. Weaver,

Treasure?'.

Lancaster, Pa., Feb’y, 26, 1873.

Mr. James F. Weaver,

Treasurer of Centre Co. Penna.

Dear Sir: — Enclosed I hand you check for Forty-three dollars, amt. taxes on our coal land known as the “Jacob Rush tract,” near Philipsburg; this as per your advice of 26th June 1872, settles all claims for taxes up to March 10, 1874. Please send me a receipt and oblige,

Yours truiy,

Amos Hollingeb.

Per Zebcheb.

Received Bellefonte, 27th Feb’y, 1873, of A. Hollinger, Esq., his c’k for Forty-three for redemption-money on the Jacob Rush tract of unseated land in Rush twp, Centre Co., said tract having been sold to E. J. Pruner for taxes of 1870 and ’71, on the 10th June, 1872. ' .

Jas. F. Weayeb.

Treas. Centre Co.

Sib.: — As the taxes on U. S. land are only collected every even year, your lands will, and cannot be sold before tlie 2nd Monday of June ’74. By paying on or about the 1st March, ’74, you will avoid the extra expense of adv. same for sale. Yours, etc., ' J. F. Weayeb.

The foregoing papers constitute the entire evidence as to the fact of redemption. It was proved orally that there was a tract called the “ Jacob Rush ” tract in Rush township, Centre county, and that it was sold for taxes on June 10, 1872, and also that the amount necessary to redeem it was $>41.21. It is beyond all question that the papers in evidence establish an actual redemption by Hollinger of the Jacob Rush tract. His own letter remitting the check for payment of the redemption money so declares, and the treasurer’s receipt, returned to him the next day, expressly states that the money was received as the redemption money of that tract. On this testimony the court directed a verdict for the plaintiff, and it is this direction which constitutes the substance of the principal assignment of error. It is contended that the court below should have left to the jury the question .whose mistake it was that led to the misapplication of the redemption money to the Rush tract, instead of the Meyer tract. But the difficult}'- is that there was no - evidence to send to the jury on that question. In truth it was not proved that there was any mistake in the case. Both the defendant and his clerk who wrote the letter remitting the money, were examined* as witnesses and neither of them testified that there was any mistake in the letter. Neither of them said that it was intended to pay the redemption money on the Jacob Meyer tract, or that having such an intention the “Jacob Rush” tract was named in the letter by mistake for the “Jacob Meyer.” They did not even testify that the defendant did not own the Rush tract, or have any interest in it. How then could the court leave it to the jury to say there was a mistake, when the defendant himself did not say so ? Even if it be conceded that there was an intention to redeem the Meyer tract, it is absolutely certain that no such intention was expressed, and it surely would never do for us to declare as the law, that an unexpressed intention to redeem one tract, should be permitted to confer a title by redemption, against an actually expressed intention to redeem another tract by the same redemption payment. In this case the treasurer acting upon the explicit authority of the defendant, applied the redemption money precisely as he was directed to do, to the redemption of the Jacob Rush tract. He entered the redemption of that tract upon the Redemption Book kept for that purpose, and paid the redemption money to E. J. Pruner, who had purchased the Rush tract. Certainly lie had a right to do this. Indeed he was bound to do it, and he was so bound as the direct consequence of Hollinger’s own act in remitting him the money as the redemption money of the Rush tract. This consideration is intensified by the circumstance that the redemption money remained in his hands until September following its receipt in February, 1873, thus affording Hollinger the amplest opportunity to correct the mistake before the money was paid over to Pruner, the purchaser of the Rush tract. It appears then that the redemption of the Rush tract was completed by the payment of the money in question, and the written authority of the defendant. After this result has been accomplished by means of the defendant’s own act, we cannot think it proper that he should be heard to say, that this same act of redemption has operated to redeem another and distinct tract, simply because he had an unexpressed intention to that effect. Titles which depended upon such indefinite and uncertain eoirditions as these would have but little value.

The case is still more serious against the defendant than the foregoing' considerations indicate. He sent the money to the treasurer on February 26, 1873, and on the 27th, the treasurer sent him a receipt in which he expressly stated that the money was received as the redemption money on the Jacob Rush tract, which had been sold for taxes to E. J. Pruner. It was certainly the duty of the defendant to read the receipt, and take notice of its contents. He at least knew whether he intended to redeem the Rush or the Meyer tract, and when he was notified that he had redeemed the Rush, he should have corrected the mistake if there was any. He had time until June 10, 1874, in which to do this, but he never did it. In such circumstances, if there are unfortunate consequences arising, first out of his own express act of negligence in giving a mistaken direction to the treasurer, and secondly, from his own protracted omission to correct the mistake when he was distinctly and promptly notified of it, he cannot complain if he must bear those consequences. They are of his own production. The theory that the mistake might have been made or caused by the treasurer is too far-fetched for practical use. There is not a particle of evidence to support it. There is not a word in either of his letters indicating that the money was dué on the Jacob Rush tract. The letter probably written by him on June 20, 1872, ought to be in the possession of the defendant, as it was addressed to him, but it was not produced and is not in evidence. In order to justify an inference of mistake by the treasurer, we would be obliged to assume that he wrongly stated in that letter that the Rush and not the Meyer tract was the one upon which the redemption money was due. But of course no court could make such an assumption in the absence of the letter and of any evidence of its contents, and therefore no jury could be permitted to make such a finding. Hence we see no error in the court passing upon the whole case, and directing a verdict upon all the testimony in favor of the plaintiff. There was no dispute about the facts, and all the controlling facts were evidenced by writings. The testimony offered and rejected, could not be of any moment in the cause. The plaintiff’s title was good or bad, altogether independently of the matters contained in the alleged notice. It depended only on the fact of redemption, and no amount of notice could affect that fact, or its legal consequences. There was no secret trust or equity in the case.

Judgment affirmed.