The opinion of the court was delivered, May 11th 1874, by
Agnbw, C. J.
This case appears to have been well tried by the learned judge below, and his opinion so carefully adapted to the facts it was our intention to affirm it without an opinion. But it seems to us on reflection one subject, the assessment, requires notice in order to advert to a proper distinction, the absence of which might lead to a misapplication of our decision. “ The want of an assessment in fact by some competent authority is not such an irregularity as is covered by the Act of 1815. It is essential to a valid sale and the want of it is more than irregularity.” This is the language of the late Chief Justice Thompson, in his opinion in this case upon a former writ of error, 7 P. F. Smith 27. Of necessity this assessment applies to the very taxes for which the land is sold, and therefore to the year for the taxes of which the land is sold; for it is clear that the assessment for other years cannot be for the taxes of the year for which the sale is made. The 4th section of the Act of 13th March 1815, curing irregularities in the assessment, does not cure the want of any assessment. Hence we said at this term in the case of Greenough v. TheEulton Coal Company, 24 P. F. Smith 486, that “ while the triennial assessment is the basis of the subsequent assessment and the valuation then fixed will remain unless changed by reason of alterations in the property, it does not per se constitute the annual assessment of the property with taxes. The charging of lands with taxes is an annual process, for the reason that neither the property itself, [23]*23nor its ownership, necessarily continues the same for triennial periods,” we held therefore in that case that the fixing of a rate for a certain year is not to be referred to a preceding triennial assessment made two years before, so as to constitute a complete assessment for the subsequent year. This was stated as a legal proposition, and not in relation to any reference the commissioners themselves might make in fact to a former triennial assessment in making the assessment of the subsequent year. Looking then to what the late Chief Justice said himself in this case, as well as to the undoubted law of assessments, it is plain he did not mean, in Heft v. Gephart, 15 P. F. Smith 510, referred to by the defendant in error, to unsay what he had said in this case, and to hold that a mere triennial assessment two years before with the fixing of a rate for a subsequent year, is in itself an assessment for the subsequent year. His language is somewhat general, but must be read in view of the facts of the case which he was discussing. In that case there was not only the triennial assessment in evidence, but there was a paper evidencing an assessment for the year in question, 1853, made out by the clerk of the commissioners, containing a list of the tracts, and columns headed, “number of acres,” “warrantee’s names,” “ valuation per acre,” “valuation per tract,” “ owners.” This contained the taxes assessed on the tract from 1851 to 1856. The important question in the case was presented in the plaintiffs’ point that if the jury should find the paper writing purporting to be a valuation and return for the year 1853 regular, the absence of legal evidence of the rates fixed by the commissioners, &c., is so entirely wanting that the tax could not be said to have been due one year, at the time of sale. There was therefore in that case not only the triennial assessment, but also evidence tending to establish the annual assessment for the year in question. That the whole opinion is to be read in the light of these facts is shown by the concluding sentence, on this part of the case, in which the Chief Justice said : “ The valuation and return by the assessor as shown by the paper attached to the assessment book was a question of fact for the jury and they have found in favor of it.” It cannot be doubted that there must be evidence of an assessment regular or irregular for the particular year, and this brings into view the effect of the last clause of the 21st section of the Act of 12th April 1842, Pamph. L. 266, declaring that “ all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” It was in view of this provision, and especially referring to it, the Chief Justice, in Heft v. G-ephart, asserted that the return of the triennial assessment, attached as it was to the original assessment (the paper in question) both for that year, brought from the commissioners’ office, was sufficient evidence of the assessment. The Act of 1842, therefore, without dispensing with the necessity of proving an assessment for [24]*24the particular year, widens the range of the evidence by bringing into the case “all records of the commissioners’ office charging lands as unseated with arrears of taxes.” Papers in that office will now support the fact of an assessment, that before the act would not he evidence of an assessment per se. It is on this foundation the case of Hess v. Herrington, 23 P. F. Smith 438, decided in 1873, was rested in part, by Sharswood Justice. In that case there was no evidence of an actual valuation and return by the assessor, but there was an actual assessment and charging of the lands with taxes by the commissioners themselves. The assessment ivas irregular, but the Act of 1842, by helping out the evidence of an assessment, helped out the assessment itself. There may be no actual assessment in evidence, but there may be evidence from records and papers in the commissioners’ office, from which an assessment may be inferred: and this it was the purpose of the Act of 1842 to sustain. The fact of the assessment being sustained, any irregularity in making it is then covered by the Act of 1815. The contest in the case before us is therefore narrowed to the single question whether there was sufficient evidence to go to the jury, that the commissioners in the year 1818 and 1819 had charged the lands with the taxes for which it was sold. It seems to us, though the evidence was slender, it was not so vague and uncertain as to have justified the judge in withdrawing it from the jury. The foundation for the charges in the book called the “ bound hook,” was laid by the introduction of the triennial assessment of 1817, the preceding year. This left it only a question of identity whether the hound hook containing the so-called returns of assessors for 1818 and 1819 were records of the commis • sioners’ office. Of this there was some evidence in the testimony of the clerk of the commissioners, in connection with the book itself. On its face the book was composed of two parts, one in each end of the book ; one part was manifestly the work of the treasurer containing his lists of unseated lands and the sales. In the other end the appearance was different. The entries were headed, “Returns of unseated lands,” for certain townships, including the township in question. The work of the treasurer is not found here, and the lists are such as would be made by the commissioners in charging the lands with taxes for the respective years. The clerk said, “ I call this a transcript of unseated lands, it must be the commissioners’ transcript, the books came from the commissioner’s office.” In cross-examination he said: “ It does not appear to me to be the treasurer’s book. It appears to me to be the book put into the treasurer’s hands to collect the taxes.” This testimony is weakened, but is not conclusively
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The opinion of the court was delivered, May 11th 1874, by
Agnbw, C. J.
This case appears to have been well tried by the learned judge below, and his opinion so carefully adapted to the facts it was our intention to affirm it without an opinion. But it seems to us on reflection one subject, the assessment, requires notice in order to advert to a proper distinction, the absence of which might lead to a misapplication of our decision. “ The want of an assessment in fact by some competent authority is not such an irregularity as is covered by the Act of 1815. It is essential to a valid sale and the want of it is more than irregularity.” This is the language of the late Chief Justice Thompson, in his opinion in this case upon a former writ of error, 7 P. F. Smith 27. Of necessity this assessment applies to the very taxes for which the land is sold, and therefore to the year for the taxes of which the land is sold; for it is clear that the assessment for other years cannot be for the taxes of the year for which the sale is made. The 4th section of the Act of 13th March 1815, curing irregularities in the assessment, does not cure the want of any assessment. Hence we said at this term in the case of Greenough v. TheEulton Coal Company, 24 P. F. Smith 486, that “ while the triennial assessment is the basis of the subsequent assessment and the valuation then fixed will remain unless changed by reason of alterations in the property, it does not per se constitute the annual assessment of the property with taxes. The charging of lands with taxes is an annual process, for the reason that neither the property itself, [23]*23nor its ownership, necessarily continues the same for triennial periods,” we held therefore in that case that the fixing of a rate for a certain year is not to be referred to a preceding triennial assessment made two years before, so as to constitute a complete assessment for the subsequent year. This was stated as a legal proposition, and not in relation to any reference the commissioners themselves might make in fact to a former triennial assessment in making the assessment of the subsequent year. Looking then to what the late Chief Justice said himself in this case, as well as to the undoubted law of assessments, it is plain he did not mean, in Heft v. Gephart, 15 P. F. Smith 510, referred to by the defendant in error, to unsay what he had said in this case, and to hold that a mere triennial assessment two years before with the fixing of a rate for a subsequent year, is in itself an assessment for the subsequent year. His language is somewhat general, but must be read in view of the facts of the case which he was discussing. In that case there was not only the triennial assessment in evidence, but there was a paper evidencing an assessment for the year in question, 1853, made out by the clerk of the commissioners, containing a list of the tracts, and columns headed, “number of acres,” “warrantee’s names,” “ valuation per acre,” “valuation per tract,” “ owners.” This contained the taxes assessed on the tract from 1851 to 1856. The important question in the case was presented in the plaintiffs’ point that if the jury should find the paper writing purporting to be a valuation and return for the year 1853 regular, the absence of legal evidence of the rates fixed by the commissioners, &c., is so entirely wanting that the tax could not be said to have been due one year, at the time of sale. There was therefore in that case not only the triennial assessment, but also evidence tending to establish the annual assessment for the year in question. That the whole opinion is to be read in the light of these facts is shown by the concluding sentence, on this part of the case, in which the Chief Justice said : “ The valuation and return by the assessor as shown by the paper attached to the assessment book was a question of fact for the jury and they have found in favor of it.” It cannot be doubted that there must be evidence of an assessment regular or irregular for the particular year, and this brings into view the effect of the last clause of the 21st section of the Act of 12th April 1842, Pamph. L. 266, declaring that “ all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” It was in view of this provision, and especially referring to it, the Chief Justice, in Heft v. G-ephart, asserted that the return of the triennial assessment, attached as it was to the original assessment (the paper in question) both for that year, brought from the commissioners’ office, was sufficient evidence of the assessment. The Act of 1842, therefore, without dispensing with the necessity of proving an assessment for [24]*24the particular year, widens the range of the evidence by bringing into the case “all records of the commissioners’ office charging lands as unseated with arrears of taxes.” Papers in that office will now support the fact of an assessment, that before the act would not he evidence of an assessment per se. It is on this foundation the case of Hess v. Herrington, 23 P. F. Smith 438, decided in 1873, was rested in part, by Sharswood Justice. In that case there was no evidence of an actual valuation and return by the assessor, but there was an actual assessment and charging of the lands with taxes by the commissioners themselves. The assessment ivas irregular, but the Act of 1842, by helping out the evidence of an assessment, helped out the assessment itself. There may be no actual assessment in evidence, but there may be evidence from records and papers in the commissioners’ office, from which an assessment may be inferred: and this it was the purpose of the Act of 1842 to sustain. The fact of the assessment being sustained, any irregularity in making it is then covered by the Act of 1815. The contest in the case before us is therefore narrowed to the single question whether there was sufficient evidence to go to the jury, that the commissioners in the year 1818 and 1819 had charged the lands with the taxes for which it was sold. It seems to us, though the evidence was slender, it was not so vague and uncertain as to have justified the judge in withdrawing it from the jury. The foundation for the charges in the book called the “ bound hook,” was laid by the introduction of the triennial assessment of 1817, the preceding year. This left it only a question of identity whether the hound hook containing the so-called returns of assessors for 1818 and 1819 were records of the commis • sioners’ office. Of this there was some evidence in the testimony of the clerk of the commissioners, in connection with the book itself. On its face the book was composed of two parts, one in each end of the book ; one part was manifestly the work of the treasurer containing his lists of unseated lands and the sales. In the other end the appearance was different. The entries were headed, “Returns of unseated lands,” for certain townships, including the township in question. The work of the treasurer is not found here, and the lists are such as would be made by the commissioners in charging the lands with taxes for the respective years. The clerk said, “ I call this a transcript of unseated lands, it must be the commissioners’ transcript, the books came from the commissioner’s office.” In cross-examination he said: “ It does not appear to me to be the treasurer’s book. It appears to me to be the book put into the treasurer’s hands to collect the taxes.” This testimony is weakened, but is not conclusively rebutted by his further statement that the other end contained the sales of the treasurer made from Juno 12th 1820 for the taxes of 1818 and 1819, and that [25]*25the offices of the treasurer and commissioners have been kept together. This made it only a more difficult question for the jury to decide, but still it had to go to them for a decision. In corroboration there was also the evidence of the usage of the commissioners and their modes of dealing with the unseated lands as shown by other records of the office. That such corroborative evidence may be given follows from what has been said in various cases as to the mode of keeping their accounts of the unseated lands. See Heft v. Gephart, 15 P. F. Smith 518, and cases cited. Nor was the submission of the case to the jury contrary to the former decision in this case in 7 P. F. Smith 14. The former trial took place before the same judge in the court below, and he had charged that the assessment of 1817 and the “ bound book,” although the treasurer’s sales for 1820 are entered in the back part of the latter, contained in themselves sufficient primá facie evidence of an assessment by the commissioners to authorize the sale by the treasurer in 1820. In thus charging he assumed the part which the jury only ought to have determined, to wit: that this book was the work of the commissioners in that part of it and not that of the treasurer. Hence the Chief Justice in his opinion began on this point by saying, “was there such an assessment shown by the plaintiff below. The learned judge who tried the case ruled, as a matter of law, that there was, and this ruling is the foundation of one of the principal errors in the case.” He proceeds then on this basis to examine the characteristics of the book, and to show that it was for the jury to pass upon the testimony of identity ; and that it was not even primá facie the commissioners’ book “ so as to authorize (he says) the court in assuming it so to be.” “ The treasurer is not (he proceeds to say) an assessing officer nor is his book evidence of an assessment. Standing thus it requires proof to establish it to be an unseated land book or list furnished by the commissioners, and the proof was for the jury.”
The judge below having, in the last trial, submitted the case to the jury on evidence, meagre it is true, but not insufficient, we ought not to reverse him for doing what under the former opinion he was reversed for not doing.
Finding no error in the record, the judgment is affirmed.