Tilghman v. Cruson

4 Del. 341

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

Booth, Chief Justice.

—In the action of trespass the plaintiff must show that he was in possession when the trespass was committed; and if the land is under lease to a tenant, the landlord cannot maintain trespass for entering and cutting trees; for this is an injury to the tenant’s possession; and he must bring trespass, though the landlord might have another remedy. But if the lease reserves the timber land, the landlord being in possession may maintain this action.

The principal question is under the plea of justification by authority of a purchaser of the trees at the collector’s sale, for payment of taxes. The law for the collection of taxes, Dig. 379, &c., authorizes a collector to levy and make the taxes from the tenafit, or occupier of the premises, or in case such collector shall notfce able to find goods or chattels of the tenant, or to collect the same from the tenant or occupier, to levy upon and sell so much of the timber or grass growing on the premises, as will be sufficient to satisfy the taxes and costs. The primary duty of the collector is to levy th'e taxes out of such goods of the tenant as he may find ? but if he find none, he is to proceed to sell the timber or grass growing, after giving notice in five or more of the most public and convenient places, having reference to the object of procuring a good sale, which would be effected rather by posting notices in the neighborhood, than at a distance. But admitting there was some irregularity in the proceedings of the collector, for want of proper notices, or want of demand or levy on the tenant, the purchaser is not bound to inquire into these matters further than to know that the person selling had lawful authority for his proceeding, and not. whether he was proceeding with perfect regularity. It was so decided in the case of Williams vs. Hickman, 2 Harr. Rep. 463; which was the case of a purchaser at a constable’s sale, where there had been no appraisement, the Court held that though an appraisement was necessary to the legality of the sale, the want of it would not affect the rights of a purchaser at such sale; much less make him, as is contended in this case, a trespasser for taking away the property purchased at the sale.

Whitely, for plaintiff. Rodney, for defendant.

Verdict for defendant.