author: Chief Justice Agnew

text:
    Breisch et al. versus Coxe et al.

    1. Coxe, the owner of a number of tracts of unseated land, went to the treasurer to pay the taxes and received from him a tabulated statement of county, state and road taxes on the several tracts; he paid the whole amount and the treasurer gave him a receipt dated April 30th 1852, “ in full of all the taxes * * * upon the several tracts * * * above mentioned, the property of said Coxe.” Against one tract in the statement state and county tax was entered, but no road tax. Road tax for this tract had been returned to the commissioners by the supervisors January 8th 1852; it was sold for this tax June 14th 1852. Held, that the purchaser took no title.
    2. A sale of unseated land is void if there were an actual pre-payment of taxes.
    3. The Act of March 13th 1815, sect. 4, which forbids recovery by the owner, except in case of payment of taxes before sale, or redemption within two years, does not exclude recovery where the title is defective for other causes.
    4. The payment of tax is a duty, a failure of which is the fault of the owner, but he is not responsible for the steps leading to it.
    5. The owner must apply to the treasurer for the taxes assessed against his land, and he has performed his duty, although the officer fail to give him correct information.
    6. It is not the owner’s duty to search the tax books; the treasurer cannot lay them before him and compel him to search for himself.
    7. If the owner pays all the taxes stated by the treasurer, he has done his whole duty.
    8. A bon& fide attempt to pay all the taxes, frustrated by the fault of the treasure!’, stands as the equivalent of actual payment.
    9. The road tax in this case having been returned by the supervisors to the treasurer before the statement was made, the omission from the statement of taxes was his fault.
    10. The statement and receipt in this case, their correctness not being assailed, were clear evidence 'that Coxe asked the treasurer for the taxes assessed and due by him and paid all that was demanded.
    11. The owner is not bound to take notice of a sale of unseated land where the treasurer has no authority to make the sale ; the sale being void for want of jurisdiction.
    12. AVhere the treasurer has authority to do the act and he errs in the proceeding in which he exercises his authority, the owner must take notice.
    13. The limitation in the Act of April 3d 1804 does not apply to a case where the treasurer has no authority to make the sale because no tax appears to have been and was assessed, and the tax has not been due for a year and has been unpaid; nor when a bonR fide offer to pay has been frustrated by the negligence of the treasurer to give information of the taxes.
    March 9th 1876.
    Before Agnew, C. J., Shaeswood, Mercur, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Schuylkill county: Of January Term 1876, No. 49.
    This was an action of ejectment for a tract of land in North Union township, containing 400 acres and allowance surveyed on a warrant to Matthew Smith granted June 13th 1793, adjoining John Dunlap, Robert Robe, John Davidson, Thomas Rees and George Langs. The writ was issued June 9th 1870 at the suit of Charles S. Coxe, Franklin Coxe and Tench 0. Coxe, against Jacob Breisch, William Michael, Stephen Michael, Benjamin Bitter, Henry Lebo and Cornelius Wagner.
    On the 21st of October 1875, Charlemagne Tower was added as plaintiff as the alienee of an interest in the land in dispute.
    The case was tried on the same day before Pershing, P. J.
    The plaintiffs gave in evidence the warrant and survey October 12th 1793, bounded and containing as above stated. This title became vested in Tench Coxe about March 1st 1794. On the 20th of March 1801, Tench Coxe made an assignment for the benefit of his creditors to Peter S. Duponceau and others; the other assignees conveyed to Peter S. Duponceau ; he conveyed to Charles S. Coxe upon the same trust. Tench Coxe died having made a will which was proved July 17th 1822; he appointed Charles S. Coxe and others the executors with power to sell and convey his land. On the 30th of May 1830 a patent for the land in dispute was.issued to Charles S. Coxe “in trust for the assignees of Tench Coxe, deceased.”
    This land was sold for taxes of 1820, and conveyed by the county treasurer to John Schall on the 30th of July 1822; Schall assigned to Charles S. Coxe on the 11th of August 1829; Coxe then held for the same trust as he had previously to the sale.
    By various devises and other conveyances of persons claiming under Tench Coxe, deceased, his title, as well as that under the tax sale, passed to the plaintiffs in this case.
    The plaintiffs gave evidence of assessments, which did not appear to include road tax, on this tract as unseated in the name of Smith from 1821 to 1830 inclusive ; and from 1831 to 1870 inclusive in the name of “ Charles S. Coxe, grantee in trust for the estate of Tench Coxe, deceased,” and of the payment of the taxes.
    Defendants gave in evidence assessments in Union township, viz.:—
    1850. —Matthias Smith, 400 acres, valuation $200, — 80 cents and 60 cents.
    1851. —Same.
    Also: “ Extract books.”
    400 acres, Matthias Smith. County tax of 1850, 80 cents.
    State tax, 60. Road tax, $1.20.

      1851. — County tax, 80 cents. State 60; total $4.00; sold for $5.50.
    Also: Treasurer’s sale book for 1852.
    Matthias Smith to Joseph S. Patterson, sold for $7.63.
    . Sale held in Pottsvilie, June 14th 1852.
    Treasurer’s deed, dated ,11th September 1852; assignment on deed, dated February 3d 1855, from Patterson to Franklin Stewart.
    Patterson’s title became vested in Jacob Breisch and William Michael, October 12th 1869.
    There was evidence that the tract assessed as “Matthias Smith” was the same as that assessed “Matthew Smith.”
    Also: Return of road tax for 1850, made by the supervisors of Union township.
    Matthias Smith 400 acres; valuation $200. Road tax $1.20. Returned and filed in the commissioners’ office, January 8th 1852; copy returned into the treasurer’s office, January 2d 1852.
    The supervisors of Union township testified that no road tax had been paid to them on the Matthias or Matthew Smith tract.
    The plaintiffs in rebuttal gave in evidence,
    “ An account of all taxes assessed and unpaid on the land mentioned below, situate in Union and Rush townships, in Schuylkill county, the property of Charles S. Coxe, Esq., trustee of the estate of Tench Ooxe, Esq., deceased.”
    This paper was for the taxes of 25 tracts; it wag arranged in columns headed respectively, “County,” “State,” “Road,” “ School,” for each of the years 1850 and 1851.
    One of the tracts contained in the paper was the Matthew Smith tract, opposite to it in each year in the county tax column was “80,” and in the state “60.” There was nothing in either the road or school column; the total carried out against this tract was $2.80.
    Against some of the tracts was charged road tax in each year, and against some .there was no such charge. The whole taxes footed up $230.17, including costs of advertising.
    At the end of the statement was a receipt as follows:—
    “ Received April 30th 1852, of Charles S. Coxe, Esq., trustee of the estate of Tench -Coxe, Esq., deceased, two hundred and thirty dollars and seventeen cents, in full for the taxes, interests, and costs upon the several tracts, part of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, Esq., trustee of the estate of Tench Cox, Esq., deceased, and that sum being all the taxes assessed and now due on the said unseated land with the interests and costs thereon.
    Gr. D. Boyer,
    Treasurer of Schuylkill county.”

      Also: “ An account of all taxes assessed and unpaid on the lands mentioned below, situate in Union, Rush and Mahanoy townships, Schuylkill county, the property of Charles S. Coxe, Esq., trustee of the estate of Tench Coxe, Esq., deceased.”
    This paper was for taxes on twenty-six tracts. For each of the years 1850 and 1851, there was one column only which was headed “ Road.” For the years 1852 and 1853, the columns were arranged as in the former paper — a number of the tracts were charged with road tax in some of the four years, and not in others.
    The Matthew Smith tract had no charge of road tax for 1850, but was charged with road tax for 1851, and county, state and road tax for the other two years. The aggregate of taxes carried out against this tract was $10.80. The total of charges for taxes, interest on state tax and advertising, as footed up on this paper, was $659.25.
    To this statement was a receipt, as follows:—

      “ Received 3d June 1854, of Charles S. Coxe, Esq., trustee of the estate of Tench Coxe, Esq., deceased, the sum of six hundred and fifty-nine dollars and twenty-five cents, in full for all the taxes upon the' several tracts, parts of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, trustee, as aforesaid, that sum being all the taxes assessed and now due on the said land with Tie interests and costs thereon.
    Isaac Ward, Treasurer.”
    Both receipts were duly acknowledged, but neither had been recorded, under the Act of March 9th 1847, § 1, Pamph. L. 279, 1 Br. Purd. 470, pi. 63.
    The defendants’ points were :—
    1. The tax sale of 1852 to Joseph S. Patterson is based on a regular assessment and sale of the land in suit. It appears, by the evidence of the defendant and that of the supervisors for Union township for 1850, that the road taxes for that year'were unpaid, and that Charles S. Coxe, having applied to the treasurer on the 30th of April 1852, and having paid the county and state taxes for 1850 and 1851, on land assessed to Charles S. Coxe, but not the road taxes, for the year 1850, he cannot take advantage. of any allegation that he was misled by the county treasurer in this suit, the same having been brought more than five years after the delivery of the treasurer’s deed to Patterson.
    2. Under all the evidence in this cause, the verdict of the jury must be for the defendant.
    3. Coxe paid but the state and county taxes, when in fact there were county, state and road taxes due. The records in the treasurer’s office were notice to Coxe, and he was not only presumed to know, but did, in'fact, have notice from the records that the road taxes were due, and from his own receipt that they were unpaid. Hence, if the jury believe that Coxe was not misled by the county treasurer, of which there is no positive evidence in this case, and neglected to pay the road tax, the defendant is entitled to a verdict. And this is so from the fact that the county.treasurer has no right to take less than the taxes due; and in such case it would be a fraud upon the county, and the receipt would not avail Coxe, who was a party to it, and which on its face showed that he had not paid the road taxes.
    The court charged:—
    * * * “ It appears that by some conveyances the title of this land was vested in Tench Coxe, and that a patent issued to Charles S. Coxe, in trust for the assignees of Tench Coxe, for the land in dispute. This was followed 'with an assessment of taxes for the years 1820 and 1821, and a treasurer’s sale to John Schall, in 1822. That was followed in 1829 by a transfer of Schall’s. title to Charles S. Coxe, thus putting the title to this land, as I understand it to.be conceded, in the same parties who held it prior to the tax sale. Then the plaintiffs produce assessments establishing payment of taxes from 1821 to 1870 inclusive — a period of almost fifty years. From 1831 to 1870, a period of nearly forty years, the land was assessed in the name of Charles S. Coxe, in trust for the heirs of Tench Coxe, deceased. This would show a title on the part of the plaintiffs, which would give them the right to recover, unless the defendants have shown a better title.
    “ The title on the part of the defendants is a tax title. It appears that in 1850 and 1851, this Matthew Smith tract was assessed for certain taxes, and that it was sold at treasurer’s sale to Joseph S. Patterson, and that his title was transferred to Franklin Stewart, and by him to Jacob Breisch. Mr. Breisch claims under this tax sale * * * It is alleged that as this is a junior tax sale, he has a right to retain the land under this tax title; and this raises the question in controversy here.
    “ On the part of the plaintiffs, this tax title of Mr. Breisch is met by receipt of the treasurer of the .county, in which it is shown that there is a full payment of all the taxes assessed on the-land of Charles S. Coxe, as the trustee of the Tench Coxe estate; and they claim that holding these receipts of the officer of the county for full payment of all the taxes, the sale of the land was invalid, and would vest no title in the purchasers. The first receipt is dated in 1852, April 30th. This is followed by a receipt from the county treasurer, in 1854, within the period allowed for the redemption of land sold for taxes, for six hundred and some dollars, which is also said to be ‘ all the taxes assessed and now due on the said land, with the interest and costs thereon’ — showing that Charles S. Coxe went to the office of the county, and, as it would appear from the evidence, was furnished by the treasurer of the county himself, all the taxes with the costs that were assessed upon the tract of land which he claimed to own. And it is held by the plaintiffs here that this is an effectual answer to the title set up by the defendant under the treasurer’s sale.
    “ There are other questions involved in this case, but we do not feel disposed to take up the time by discussing them. We have listened to the very able arguments of counsel in the case,' with an anxious desire to arrive at what was* the law which should govern us in giving instructions to you. [We are firmly impressed with the belief that these receipts are sufficient to sustain the position taken by the plaintiffs here; that the limitation of five years, found in the Act of 1804, would not apply to the facts of this case.] [We therefore instruct you that, under the evidence in this case, your verdict should be for the plaintiffs.”]
    The verdict was for the plaintiffs.
    The defendants took a writ of error; they assigned for error,
    1, 2. The parts of the charge in brackets.
    3, 4, 5. declining to affirm defendants’ points.

      F. F. Dewees and F. W. Hughes (with whom were J. J. Clark, O. P. Bechtel and Q-. E. Farquhar), for plaintiffs in error. —
    To authorize the sale of land for taxes, it must be unseated when assessed in fact; the tax must have been due for a year and unpaid : Laird v. Hiester, 12 Harris 453; McReynolds v. Longenberger, 7 P. F. Smith 13. The fact that the transcript for the road tax of 1850 was delivered to the treasurer only on the 20th day of January 1852, and the,sale in June 1852 was but an irregularity and was protected by the Act of 13th March 1815, sect. 4 ; 4 Sm. Laws 301, 2 Br. Purd. 1447, pi. 30. Land becomes debtor for the tax by being returned assessed and valued, and the rate per cent, fixed: McDermott v. Hoffman, 20 P. F. Smith 54. The presumption is, that township officers levied their rate per cent., and returned it when required by law: Heft v. Gephart, 15 P. F. Smith 510 ; McReynolds v. Longenberger, 25 Id. 24. It was a fact known to the supervisors of Union township that the assessment of “ Charles S. Coxe, trustee, &c., warrantee, Matthias Smith,” and the assessment of “ Matthew Smith” applied to the same land. Their return was entirely correct. To whom unseated land is assessed is a matter of no moment, provided it is in a name identified with the land or the title : Strauch v. Shoemaker, 1 W. & S. 176 ; Harper v. McKeehan, 3 Id. 238 ; Russell v. Werntz, 12 Harris 338 ; Philadelphia v. Miller, 13 Wright 440; Glass v. Gilbert, 8 P. F. Smith 266 ; Murray v. Guilford, 8 Watts 550 ; Dougherty v. Dickey, 4 W. & S. 446; Hunter v. Cochran, 3 Barr 105; Montgomery v. Meredith, 5 Harris 42; Levick v. Brotherline, 24 P. F. Smith 149. Land is liable for the payment'of several taxes levied once, and only once: Gilmore v. Thompson, 3 Watts 109. The treasurer has no power to exonerate the owner of land from the payment of taxes; he is merely an executive officer; all discretionary powers relating to such moneys and unpaid taxes are vested in the county commissioners : Steiner v. Coxe, 4 Barr 13 ; Philadelphia v. Miller, 13 Wright 440; Brown v. Commonwealth, 2 Rawle 44.
    The treasurer, in offering the Matthias Smith tract for sale in June 1852, asserted to thó public that not only the road but that also the state and county taxes were unpaid for the years 1850 and 1851: Laird v. Hiester, 12 Harris 464; Burd v. Patterson, 10 Id. 223. It is not essential to the validity of a sale of unseated lands for taxes, that it should be sold two years after the tax was assessed ; they may he sold at any subsequent sale: Paden v. Akin, 7 W. & S. 456:
    The question of the payment of redemption money is a very different one. There the treasurer is presumed to know the exact amount required to redeem, and if such redemption is made at the proper time, it is valid, though, by mistake of the county treasurer, the owner did not pay all the taxes that were against the land: Bubb v. Tompkins, 11 Wright 359 ; Dietrick v. Mason, 7 P. F. Smith 40 ; Liggett v. Long, 7 Harris 499 ; Irwin v. Trego, 10 Id. 368; Huzzard v. Trego, 11 Casey 11; Rogers v. Johnson, 17 P. F. Smith 49. In case of a mistake as to the amount paid, it must appear that the fault was exclusively that of the treasurer : Lamb v. Irwin, 19 P. F. Smith 436 ; Bubb v. Tompkins, 11 Wright 359. The duty of the owner is to see that the taxes unreturned were paid : Baird v. Cahoon, 5 W. & S. 540 ; Burd v. Patterson, 10 Harris 219.
    By the 4th sect, of the Act of 13th March 1815, supra, if the owner of land sold shall make within two years after such sale an offer of the amount of taxes for which the lands were sold, and the costs, together with an additional sum of 25 per cent, on the same, to the county treasurer, “ ahd if it shall be refused by the treasurer, or ib case the owner of land so sold shall have paid the taxes due on them previously to the sale, then, and in either of these cases, said owner shall be entitled to recover the same by due course of law, .but in no other case and on no other plea shall an action be sustained.” By the Act of April 3d 1804, sect. 3, 4 Sm. Laws 202, 2 Br. Purd. 1448, pl. 31, “no action for the recovery of said lands shall lie, unless the same be brought within five years after the sale thereof, for taxes, as aforesaid.” These acts are in pari materid, and limit the right of action by the owners of unseated lands against a purchaser, to five years : Ash v. Ashton, 3 W. & S. 510. The Act of 1815 repealed only so much of the Act of 1804 as it altered or supplied; the limitation, therefore, of five years, in the Act of 1804, is in full force: McCall v. Himebaugh, 4 W. & S. 164; Sheik v. McElroy, 8 Harris 25; Robb v. Bowen, 9 Barr 71; Burd v. Patterson, 10 Harris 219; Iddings v. Cairns, 2 Grant 88; Rogers v. Johnson, 17 P. F. Smith 43 ; Johnston v. Jackson, 20 Id. 168. Since the Act of March 29th 1824, 8 Sm. Laws 291, 2 Br. Purd. 1448, pi. 34, the limitation under the Act of 1804 commences from the sale and the delivery of the deed: Ash v. Ashton, 3 W. & S. 510; Bradford v. Dornseif, 2 Penna. R. 503; —Robb v. Bowen, 9 Barr 71, and the other cases above cited with it. The limitation is in full force, even when the conditions of sale upon which t)ie purchaser at tax sale relies, have not been complied with : same cases. The only method in which the owner can avoid bringing his action of ejectment within five years, is by taking actual possession of the land; there the owner of the tax title must show the requisites under-the provisions of the Act of 1815: Cranmer v. Hall, 4 W. & S. 36; Hole v. Rittenhouse, 7 Harris 305; Rogers v. Johnson, 17 P. F. Smith 43; McReynolds v. Longenberger, 7 Id. 29; Bigler v. Karns, 4 W. & S. 137 ; Sherman v. Woodburn, 10 Barr 511. The presumption of payment arising from the duty of the owner to pay his taxes is overthrown by the counter presumption that the officers of the county have not violated their duty hy selling the land after the taxes are paid : Ankeny v. Albright, 8 Harris 157. The defendants’ title cannot be swept away by an unauthorized and unwarranted receipt by the treasurer, false, as a matter of fact, unrecorded, and filed away for over twenty-three years among the private papers'.of the plaintiff. The record is the muniment of title upon which purchasers depend, and they are not bound to look beyond it to discover latent frauds, of which they have no notice, and to which there is nothing to direct their attention: Hoffman v. Strohecker, 7 Watts 86; Price v. Junkin, 4 Id. 85; Fetterman v. Murphy, Id. 424; Cadbury v. Duval, 10 Barr 272; Mode’s Appeal, 6 W. & S. 280.
    The court should have instructed the jury to render a verdict for the defendants: 1. Because the treasurer’s sale, upon which the defendant relied, was of unseated land, properly assessed for taxes, due one whole year and unpaid. 2. Because the purchaser fulfilled all the conditions. 3. Because the purchaser was not bound by any unauthorized declarations to Coxe, false in point of fact, of which he has nomotice, and especially was he not hound in the face of a contrary declaration of the treasurer, truthfully made in the course of his official duty. 4. Because Coxe was put upon inquiry as to the payment of taxes by reason of the treasurer’s sale of the Matthias Smith tract to Patterson, which involved the assertion that the taxes were unpaid, and was, therefore, hound to inquire into the truth of the fact asserted in his receipt, that all taxes against the land were included therein. 5. Because Coxe neglected to redeem from the treasurer’s sale of 1852. 6. Because Coxe allowed eighteen years to elapse without bringing his action of ejectment, whereby innocent parties, relying upon the law relative to tax sale, and the verity of the public record, have become involved.

      G. It. Kaercher and F. JB. Gowen, for defendants in error.—
    The sale to Patterson on the 14th June 1852, was void because the road tax had not been returned one whole year previous to the sale.
    By the Act of 30th March 1811, §1,5 Sm. Laws 251,2 Br. Purd. 1289, sect. 55 : “ No land shall be sold for road taxes until twelve months after the transcripts have been delivered to the treasurers, &c. In this case six months had not elapsed. This being a requisite, without which there was no authority to sell, the sale was void and no title passed to Patterson. The absence of the requisites of a valid sale involved exemption from the penalties of the Acts of 1804 and 1815: Laird v. Hiester, 12 Harris 463; McReynolds v. Longenberger, 25 P. F. Smith 13.
    Judge Coxe did all that was required from him when he paid all the taxes demanded of him in the accounts furnished by the treasurer, and sale on another and double assessment of the same land was void. The error of the officer will not deprive the owner of his land: Baird v. Cahoon, 5 W. & S. 541; Dougherty v. Dickey, 4 Id. 446 ; Laird v. Hiester, 12 Harris 464.
    The unseated land laws are intended to enforce the payment of taxes, and their purpose is fulfilled when the duty is performed. If it be sold after that, it is through the error of some officer, which cannot be visited on the owner. The sale involves an assertion by the treasurer that the taxes are unpaid, and the purchaser’ relies upon this or on his own investigations, and his title depends upon its truth: Halsey v. Blood, 5 Casey 319 ; Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 316; Philadelphia v. Lyman, 6 Id. 504: Dietrick v. Mason, 7 Id. 43.
    The curative provisions of the Act of 1815 and the limitation of the Act of 1804, protect the tax title against irregularities, after' the lapse of five years, not against the absence of the requisites of a valid sale.
    The requisites of a valid sale must be present, or the sale is void and no title passes: Laird v. Hiester, 12 Harris 463. That the land was unseated at the time of the assessment; that a tax appears to have been, and -was in fact, assessed, upon it by the proper officer, for one whole year, and remains unpaid, are requisite to a valid sale ; their absence involves exemption from the penalties of the Acts of 1804 and 1815: Hunter v. Cochran, 3 Barr 107; McReynolds v. Longenberger, 25 P. F. Smith 13; Ankeny v. Albright, 8 Harris 157; Levick v. Brotherline, 24 P. F. Smith 149; Wilmoth v. Canfield, 26 Id. 153 ; Rogers v. Johnson, 17 Id. 49. It matters not by whom the taxes were paid. It is enough that they were paid by somebody: Strauch v. Shoemaker, 1 W. & S. 176; Montgomery v. Meredith, 5 Harris 47. Being paid, the power of'the treasurer in relation to the sale of unseated land was exhausted. The lien of the unpaid taxes being divested, a' subsequent sale is invalid, as well against the owner as the person who holds the prior tax title; Dougherty v. Dickey, 4 W. & S. 146. An Act of 1804 does not apply : Irwin v. Trego, 10 Harris 371.
    May 8th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

The first and important question in this case is, whether an offer to the county treasurer, of payment of all the taxes due upon unseated lands, and a payment by the owner, of all sums made known to him by the treasurer, is equivalent to an actual payment of the whole, and will prevent a valid sale of the land for an unpaid balance not made known by the treasurer ? It is undisputed that the sale is void if there be actual pre-payment of the tax. The 4th section of the Act of 13th March 1815, 6 Sm. Laws 301, is expressly on this point, and the right is recognised in many cases : Dougherty v. Dickey, 4 W. & S. 446; Hubley v. Keyser, 2 Penna. 496; Baird v. Cahoon, 4 W. & S. 540; Kennedy v. Daily, 6 Watts 269; Ankeny v. Albright, 8 Harris 157; Laird v. Hiester, 12 Harris 463.

But it is contended that a tender of payment is not within the express words of the 4th section of the act, which forbids recovery except in the case of redemption within two years, or a payment of the taxes before the sale. It is said, that being not paid in fact, the owner is bound to know it; the jurisdiction of the treasurer remains, and the purchaser will not be affected by an act or neglect of the treasurer not appearing in the proper books. The Act of 1815 is, indeed, very express, that the owner shall recover after a sale for taxes, “in no other case, and on no other plea,” than the two mentioned. Yet it has been held that these words were not intended to exclude recovery, where the tax title is obviously defective, for other good causes. Thus, in the cases of Sutton v. Nelson, 10 S. & R. 238, and Connelly v. Nedrow, 6 Watts 451, it was held that the omission of the purchaser to give a bond for the surplus of the bid over taxes and costs, is fatal; and that even payment of the whole bid to the treasurer is not sufficient. So in Bartholomew v. Leach, 7 Watts 472. it was determined that if the surplus bond contains no description of the land sold, it is fatal to the sale. In Coney v. Owen, 6 Watts 435, it was held that a sale for taxes actually assessed upon donation land, during the life of the soldier, is void; the soldier being entitled to exemption from taxes on such land during his lifetime. There was jurisdiction to sell in all these cases; in the soldier’s, general jurisdiction, and in the others, specific jurisdiction, yet the sale was held void, for what may be termed fatal irregularities. The case before us must be determined, therefore, upon other considerations than the mere words of the act.

It must be conceded that the payment of taxes is a duty, and a failure to perform it is the fault of the owner. But payment is one thing, and the steps leading to it are another. Eor the latter, the owner is not responsible. He cannot assess himself, or know what is charged against him. He must await the action of the agents of the lawn He cannot pay until he is informed of what he is to pay. To perform the duty of payment he must apply to the treasurer for the taxes charged against his land. If this officer fail to give him the information on demand, on what just principle shall it be said he has not performed his duty ? It is said, there are the tax books open to inspection, let him search them. But this is neither his business nor his duty. As w7as said in Dietrich v. Mason, 7 P. F. Smith 40, the treasurer is the legal custodian of-the books and entries of the taxes necessary to show the sum to be tendered. This information it is his duty to give, and he cannot lay the books before the owner, and compel him to search for himself. The knowledge-of the latter may be inadequate to find what he needs. If then the owner pays all the taxes stated by the treasurer, he has done his whole duty. He can do no more: Baird v. Cahoon, 5 W. & S. 540 ; Laird v. Hiester, 12 Harris 464. His claim to be protected against a sale of his land for taxes he stood ready to pay, but which the proper officer has failed to present to him on demand, is quite as great as that of the purchaser to be protected against the act of the same officer in making a sale for taxes actually paid. Indeed, his equity is greater, for he has a prior title to the land, which has been wrongfully exposed to sale for an unknown trifle of tax. He would lose a valuable property, sold for no real equivalent, while the purchaser pays but a trifle of tax and costs, which, in most instances, he can have returned to him if the sale be void. In point of want of knowledge they stand upon a par; the owner’s ignorance of the tax being the equivalent of the purchaser’s ignorance of the attempt to pay it. As a matter of fact, too, purchases at tax sales are known to be full of risk, and rarely more than a tithe of the value of the land is bid. It is but just, then, that a bonfi fide attempt to pay all the taxes, frustrated by the fault of the treasurer, should stand as the equivalent of an actual payment. It is an almost universal rule, which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.

It is conceded that a similar offer to redeem land already sold for taxes, frustrated by a similar neglect of the treasurer, will stand good as a redemption. This has been too often decided to be denied: Bubb v. Tompkins, 11 Wright 359; Price v. Mott, 2 P. F. Smith 315; Dietrich v. Mason, 7 Id. 40; Lamb v. Irwin, 19 Id. 436 ; Halsey v. Blood, 5 Casey 319. But it is said, that in the case of redemption, a duty lies on the treasurer to furnish the means of ascertaining how much shall be paid. Yet, wherein lies the difference? We have shown that the duty is precisely the same. A man cannot pay his taxes, without a knowledge of what they are, better than he can pay the redemption money without knowledge of what it is. If there be a difference, it is in favor of. the owner, who goes to pay before sale, for he is in no fault whatever, while he who suffers his land to be sold is in fault, and redemption becomes his necessity. ' Here the whole fault was with the treasurer. The ,road tax for 1850 on the Matthew Smith tract was certified into the treasurer’s office, on the 20th of January 1852. It was within the treasurer’s official knowledge on the 30th of April 1852, the day when he gave his receipt for all the taxes assessed and due on the Smith tract.

The only inquiry remaining on this branch of the case is, whether the court was justified in considering the treasurer’s statement of account of the taxes, and his receipt of April 30th 1852, sufficient evidence on their face, that Charles S. Coxe, the trustee, called on the treasurer, and offered to pay all the taxes on the Matthew Smith tract. The paper is headed: “An account of all taxes assessed and unpaid on the land mentioned below, situate in Union and Bush townships, in Schuylkill county, the property of Charles P. Coxe, trustee of the estate of Tench Coxe, Esq., deceased.” In this paper the Matthew Smith tract is certainly and particularly set forth, and opposite to it, in the tax columns for 1850 and 1851, are placed the county and state taxes, but no road taxes, a blank being left in the column of road taxes. The receipt at the bottom is in these words: “ Received, April 30th 1852, of Charles S. Coxe, Esq., trustee of the estate of Ténch Coxe, Esq., deceased,, two hundred and thirty dollars and seventeen cents, in full, for the taxes, interest and costs, upon the several tracts, parts of tracts, and parcels of unseated land above mentioned, the property of the said Charles S. Coxe, Esq., trustee of the estafe of Tench Coxe, Esq., deceased, and that sum being all the taxes assessed and now due on the said unseated land, with the interest and costs thereon.” The receipt was signed by the treasurer, Gr. D. Bower, and on the same day acknowledged by him before an associate judge of Schuylkill county. This paper is very formal, and in the absence of evidence to impugn its correctness, is certainly very clear evidence to any reasonable mind, that Mr. Coxe called on the treasurer for an account of all the taxes then assessed and due on his lands, and paid all that was demanded of him by the treasurer. No one, in. view of the paper, can doubt that the omission of the road tax was the fault of the treasurer, and that the failure to pay it was no fault of Mr. Coxe.

The next question is, whether the limitation óf five years, contained in the third section of the Act of 3d of April 1804, 4 Sm. Laws 202, is a bar to the plaintiff’s recovery ? That the limitation, is a bar in all cases of sales void for irregularity is well settled, and it applies to sales made since the Act of 1815 : Bradford v. Dornseiff, 2 Penna. 503; Ash v. Ashton, 3 W. & S. 510; McCall v. Himebaugh, 4 Id. 164; Robb v. Bowen, 9 Barr 71; Burd, Ex’r, v. Patterson, 10 Harris 219 ; Iddings v. Cairns, 2 Grant 88 ; Rogers v. Johnson, 17 P. F. Smith 43; Johnston v. Jackson, 20 Id. 164. But a distinction is stated in Rogers v. Johnson, supra, between a sale absolutely void from a want of jurisdiction to sell, and one merely void because-of a fatal defect in the proceeding. In one case, the treasurer has no authority whatever to make a sale; in the other he has; and he errs only in the proceeding in which he exercises his authority. The'owner is not bound to take notice of the former, for it is not to be presumed that an officer will do an act he has no authority to do; and he cannot be implicated in the consequences of the act where there is no power to bind him. But where there is authority to do the act, the owner must take notice, for then he becomes implicated in the consequences. Hence, if he would take advantage of an error of procedure, or an irregularity in the execution of the power, he must do it in due course of law, and time is part of the course prescribed. It was said, in Laird v. Hiester, 12 Harris 663, as a result of the cases, that the authority of a treasurer to sell unseated land for taxes depends on the facts, that the land was unseated at the time of the assessment; that a tax appeared to have been, and was in fact, assessed upon it by the proper ’officer; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the Acts of 1804 and 1815.” If, then, a boná fide offer to pay all the taxes of an unseated tract, frustrated by the negligence of the treasurer to give information of all the taxes charged against the land, is the legal equivalent of actual payment of the taxes in taking away jurisdiction to sell, as we have seen it is, the conclusion follows that the limitation of five years in the Act of 1804 does not apply to such a case. The want of authority to sell is as clear as when the taxes have been actually paid, and the owner is not bound to presume a sale, and follow up its consequences within five years. It is not a mere irregularity, which leavés the limitation in the Act of 1804 in full force. All the hardship attributed to the purchaser’s want of knowledge is as fairly imputable to a case of actual payment as it is to one of tendered payment. In neither does the fact appear so as to challenge his notice. In either case it is just as difficult for counsel to know the undiscovered defect. It is simply a want of knowledge of a fact, not .of the law. If the laud turn out to have been seated the effect is the same, and counsel cannot be expected to know it. It is, therefore, not a just ground of complaint that counsel cannot know how to advise as to such a title. No counsel is responsible for advice in respect to pnknown facts; but he can tell his client of these risks he must run.

Upon a consideration of the whole case we discover no error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Norwegian Street.
    1. The policy of the legislation of Pennsylvania relating to boroughs is to subject the highways in them to the control of their municipal authorities as exclusively as is consistent with the duty of affording protection to citizens.
    2. The general borough laws indicate the legislative intent to secure uniformity of plan and adequate municipal supervision in the establishment and maintenance of borough highways.
    3. By the Act of April 2d 1872, all petitions for viewers to lay out, &c., any street, &c., in Pottsville, “ shall be first submitted to the town council for approval, and no viewers shall be appointed by any court upon any petition which shall not be so approved.” An order for viewers to widen a street was issued by the Court of Quarter Sessions without such approval; notice of the time, &c., of the view was accepted by the president of the town council. Held, the court had no authority to issue the order.
    4. The acceptance of the notice by the president was not a waiver of the privilege of the council to approve the petition before its presentation to the court.
    5. The council could not waive the duty imposed by the Act of 1872; they were bound to exercise their judgment in deciding upon the propriety of the contemplated change.
    . 6. The approval of the council was a condition precedent to the appointment of viewers, and until their decision was made known, citizens could not intervene nor the court act.
    7. The Act of 1872 contained distinct negative words and was therefore mandatory.
    8. Whether a statute is mandatory or not depends on whether the thing directed to be done is of the essence of the thing required.
    9. Where in the courts the authority to proceed is conferred by statute and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory and must be strictly complied with.
    10. The rule in the Act of 1872 takes the place of all antecedent provisions as to the streets in Pottsville, and is the measure of the power and duty of both council and court.
    March 9th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Schuylkill county: No. 160, to July Term 1875: At the instance of Schuylkill county: In the matter of the widening of Norwegian street, in Pottsville.
    On the 4th of May 1874, a number of citizens of Schuylkill county petitioned the Court of Quarter Sessions of .that county for the appointment of viewers to “report upon the necessity of widening” Norwegian street between Sixth and Wood streets.
    By the Act of 2d day of April 1872, Pamph. L. 723, “all petitions to the Court of Quarter Sessions of Schuylkill county, for the appointment of viewers to lay out or vacate any street,' alley or lane in the borough of Pottsville, shall be first submitted to the town council of the said borough of Pottsville, for approval; and no viewers shall hereafter be appointed by the said court, or by any court, upon any petition which shall not be so approved by the said town council of the borough of Pottsville. All acts or parts of acts inconsistent with this act are hereby repealed.”
    There was no evidence that the petition had been submitted to the town council of Pottsville and approved by them.
    The court appointed viewers, in accordance with the prayer of the petition.
    The order required the viewers to give public notice by three or' more advertisements, put up at least ten days before the time of meeting, in the vicinity of the place to be viewed, &c. Notice was given by advertisements, in accordance with the order, and a copy of the notice was served on the supervisor, town clerk, auditors and president of the town council of the borough of Potts-ville. All these officers acknowledged, in writing on the notice, their acceptance of service.
    The viewers reported that they had widened Norwegian street between the points designated, to the width of thirty-seven feet six inches. They also assessed damages to a very large number of property owners along the line of the street. The damages amounted in the aggregate to fit,740. The report was filed June 22d 1874, and confirmed nisi June 23d 1874.
    Exceptions were filed August 18th 1874,-by E. W. Bechtel, solicitor for the county commissioners, three of which were:—
    1. The petition praying for the appointment of viewers was not presented to the town council for approval.
    2. The Court of Quarter Sessions has no jurisdiction to appoint viewers to lay out streets in the borough of Pottsville.
    4. The court failed to fix the width of the proposed road at the time of confirming the report of the vietvers nisi.
    On. the 27th of March 1875, Walker, J., delivered the opinion of the Court of Quarter Sessions on the exceptions, saying, amongst other things, on the first- exception,
    * * * “ The Act of 2d April 1872 requires the petition for viewers to he first presented to the town council for their approval. Whether this was done does not appear in evidence; but the record shows that notice of the time and place of the meeting of the viewers was served more than ten days previously upon the town council, supervisor, town clerk and auditors of the borough, and accepted in writing by them. This acceptance of the notice may be considered as a waiver of their privilege to approve first of the petition, especially as they appear before us through their solicitor, and ask for the confirmation of the report. Their objection, therefore, does not lie in the mouth of a stranger to make.” * * *
    And as to the 4th exception he said,
    “ The remaining exception is, that the width of the street was not fixed by the court.
    “ This is an irregularity which will prevent the final confirmation .of the report, unless another term (after the width is directed) be given to file exceptions or ask for a review. This report cannot now be confirmed, for it would he error, and if removed into the Supreme Court, that court would remand the record to us to fix the width and allow the time until the next term to file exceptions or ask for a review.
    “ The exceptions are therefore overruled, and the following order is made :—
    “ And now, March 22d 1875, the exceptions filed in this case are overruled, and the court direct the breadth of Norwegian street to be thirty-seven feet and six inches from Sixth street to Twelfth street, in the borough of Pottsville, and approve of the same, and the assessment of the damages.
    “ And the court do further order and direct that these proceedings be not entered of record, nor the street (of the width aforesaid) be taken, deemed or allowed, to be a public highway, until the next term of the court hereafter, in order to allow time to any one aggrieved to file exceptions to the confirmation of this report, or to ask for a review, under the provisions of the Acts of Assembly relative thereto.”
    On the 3d of May 1875 the county commissioners filed the following exception:—
    The damages are excessive, and the public interests will not be subserved by the confirmation of the report, and the payment of the damages.
    August 2d 1875, “The court confirm the report of viewers absolutely, and direct an order to issue to the supervisor of the borough of Pottsville, for the opening of said street, according to said report.”
    The errors assigned by Schuylkill county in the Supr'eme Court were that.the Court of Quarter Sessions overruled the exceptions, and made the order of August 2d 1875.

      F. P. Betvees and Cf. F. Farquhar (with whom were F. W. Bechtel and F. W- Btcghes), for certiorari.
    — The Act of 1872, supra, is prohibitory. A clause is directory when the provisions contain mere direction and no more, but not so when they are followed by words of positive prohibition: Bladen v. Philadelphia, 10 P. F. Smith 466. The appointment of viewers in this case was not simply an irregularity; the terms of the act not being complied with, the appointment was absolutely void. It was not a privilege given to the town council to approve of the petition; it is a pre-requisite necessary for the petitioners to obtain, and without which the court are powerless and without jurisdiction to act upon the petition at all. A notice of unauthorized and prohibited proceedings by the court, served upon the president of council, town clerk, supervisor and borough auditors, cannot operate as a waiver of duties imposed by Act of Assembly : Angelí and Ames on Corporations 232, and cases cited. The county of Schuylkill is not a stranger. The report of viewers was confirmed, and the county is bound to pay in the neighborhood of $12,000 damages. Any resident of Schuylkill county could properly be an exceptant. When illegality in the opening of a public road is brought to the notice of the court, even by one who has no equity, they will correct the error: Appleby Manor Road, 1 Grant 443.

      B. B. McOool, contra.
    March 20th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

It has been the policy of all the recent legislation relating to the boroughs of the Commonwealth, to subject the highways within their limits to the control of the municipal authorities as exclusively as was consistent with the duty of affording protection to the interests of individual citizens. By the 9th section of the Act of the 1st of April 1834, it was made the duty of the burgesses elected and qualified under the provisions of the act, “ to cause to be opened all streets, lanes or alleys laid out by order of the proper court.” By the general borough act of the 3d of April 1851, the corporate authorities were empowered to survey and lay out necessary roads, streets, lanes, alleys, courts and common sewers ; to provide for widening and straightening them ; .to prohibit the erection of any obstructions to such opening, rvidening and straightening, and to their convenient use; to regulate the roads, streets, lanes, alleys, courts, common sewers, public squares, common grounds, foot-walks, pavements, gutters, culverts and drains, and the heights, grades, widths, slopes and forms thereof; to require and direct the grading, curbing, paving and guttering of the side or foot-walks by the owners fronting on them, and to cause the work to be done on the failure of the owners to do it, with power to collect the cost of the work and materials, as claims are by law recoverable under the provisions of the acts relative to mechanics’ liens. A supplement to the statute regulating boroughs was passed on the 22d of April 1856, which provided for the opening of streets and alleys in any borough subject to that statute, by proceedings in the court of quarter sessions of the proper county, upon the petition of the burgess and town council; and this, has been the exclusive form pursued since the enactment of the supplement.

The borough of Pottsville has not been made subject to the general borough laws; but the provisions quoted from the several statutes referred to indicate the general legislative intent to secure uniformity of plan and adequate municipal supervision in the establishment and maintenance of borough highways. Such an intent was manifested in the Act of the 22d of April 1856 (Pamph. L. 509), which authorized the town council of Pottsville, on the petition of citizens interested, to lay out and open all streets which the public convenience required. The Act of the 2d of April 1872, “relating to the opening and vacating of streets in the borough of Pottsville,” is to be read and construed in the light of the intent thus shown. It declares that “ all petitions to the Court of Quarter Sessions of Schuylkill county for the appointment of viewers to lay out or vacate any street, alley or lane in the borough of Pottsville, shall be first submitted to the town council for approval, and no viewers shall hereafter be appointed by the said court, or any court, upon any petition which shall not be so approved.” The petition for the appointment of viewers to report upon the expediency of widening Norwegian street was not approved by the town council, nor presented for their approval. Notice of the meeting of the viewers was served on the president of the council, the town clerk, the supervisor and the borough auditors, and accepted by them. This was deemed a sufficient compliance with the requirements of the statute by the court below, the acceptance of the notice being regarded as a waiver of their privilege to approve the petition before its presentation to the court.

The language of the Act of 1872 was designed to have a larger scope than to confer a mere privilege on the town council, of which they could take advantage, or which they could waive at their option. Like the general borough laws, this act sought to secure uniformity and symmetry of system in opening and improving the highways of the borough. It imposed a duty upon the municipal officers the responsibility for the discharge of which they could not evade. They were bound to exercise their judgment in deciding on the propriety of the contemplated change. And until the result of their deliberations was made known, private citizens could not intervene, and the hands of the - court were stayed. The approval of the council was a condition precedent to the appointment of viewers. Under any of the accepted rules for the construction of statutes, this act was mandatory. It contained distinct negative words, and there is a class of cases which hold that whether a statute is to be regarded as directory or not is made-to depend upon the employment or failure to employ negative-words which import that an act shall be done in a particular manner or time, and not otherwise: Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99; Bladen v. Philadelphia, 10 P. F. Smith 466. Perhaps Lord Mansfield’s rule in Rex v. Locksdale, 1 Burr. 447, is a better one, that whether a statute is mandatory or not depends on whether the thing directed to be done is of the essence of the thing required. Here, in order to confer jurisdiction on the court, the preliminary action of the town council was declared to be essential. There is another principle which is decisive in its application. In all cases in the courts where the authority to proceed is conferred by statute, and where the manner of obtaining jurisdiction is prescribed by statute, the mode of proceeding is mandatory, and must be.strictly complied with', or the proceeding will be utterly void: Dwarris on Statutes (Potter’s note) 29, and the cases there cited. The rule prescribed by the Act of 1872 has taken the place of all antecedent provisions regulating the streets of Pottsville, and this rule is the measure of the power and the duty of the council and the court alike.

A distinction was suggested on the argument between a proceeding to “ lay out or vacate” and a proceeding to “widen” a street. Very judiciously, however,-the suggestion was not pressed.

As the failure to present the petition for the appointment of the viewers to the town council was fatal to the whole proceeding, a consideration of the remaining assignments of error would be merely an abstract inquiry.

Damages to the extent of $12,000 were .imposed by the viewers on the county, and this appeal was taken on her behalf. With an interest so significant as this involved, there would be lamentable inefficacy in a legal system under which a doubt of her right to intervene as a party could be seriously entertained.

The order of the Court of Quarter Sessions confirming the report of viewers is reversed, the proceedings are quashed, and the petition is dismissed.


author: Mr. Justice Paxson

text:
    Gisaf versus Neval.
    1. A man seduced a female and induced her to submit to an operation for abortion, resulting in her serious sickness, and suffering. After her recovery he said he would buy her a house for what she had suffered for him. She contracted for a house, he gave her the purchase-money, and she paid for it before and at the time the deed was delivered to her. Reid, that no trust resulted to him, by his furnishing the purchase-money.
    2. A judgment was afterwards recovered against him, under which his interest in the land was sold. In ejectment by the purchaser against the female for the house, Reid, that the gift was executed, and she was not seeking to enforce a contract founded on an immoral consideration, although the criminal intercourse was continued after she received the deed.

      March 10th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1876, No. 54.
    This was an action of ejectment commenced May 7th 1872, by William Neval and Maria, his wife, for her use, against Mary Ann Gisaf and another, for a house and lot on Penn street in the city . of .Reading.,
    The premises had belonged to E. G. Fishburn, who on the 1st October 1868 conveyed them to Mary Ann Gisaf, who was then a minor.
    On the 25th of March 18.71, a judgment was recovered against William Neval on a note dated December 5th 1870. The plaintiff in the judgment alleging that all the purchase-money had been paid by Neval and that therefore there was a resulting trust in him, issued an execution and had the premises levied on ; Neval’s interest in them was sold by the sheriff to J ames Koch, who on the 7th of November sold to Maria Neval the wife of William.
    The facts as they appeared by the evidence on the trial September 2d 1875, before Van Reed, J., are as follows :—
    The defendant, when about thirteen or fourteen years of age commenced working with Neval — who was a married man — in his factory ; about a year after she came there he commenced attempting her seduction and after some time succeeded; the criminal intercourse was continued and her pregnancy was the result. He induced her to be operated on to produce abortion. A physician •procured by him operated on her and for a long time afterwards she was very sick, suffering very greatly. After she got well on one occasion, as she testified : “ He said he would buy me a house ; that he would pay me for having suffered for him.; he said he did not want me disgraced; that if I lost my good name it would be through him ; that he would keep my name up ; that he wanted me to be thought of as much as the rest. On the next day he said, ‘ Mary, I have made up my mind to make you a present of a house.’ He said I should look for a house. I found Mr. Fish-burn’s, the one I now live in.” Her father and Fishburn agreed upon the price, $4300; $200 were to be paid down. She told Neval, and he gave her that sum. On the 1st of October 1868, when the deed was made, he gave her $1600, in the afternoon, at the factory. They went to the law office of F. L. Smith, Esq., and by Neval’s instruction, she said she was of age, and that the $1600 were wages she had earned at the factory. Mr. Smith was to see that everything was correct. She paid it in the evening to Fishburn, in the office of the attorney of Fishburn, Mr. Schumaker, who prepared the deed. She then got the remainder of the money, $2500, from Neval, and she gave him a judgment-bond for it, He afterwards, June 21st 1869, gave .her the bond, with a receipt on it, saying to her that it was hers ; he had can-celled the bond in the office, and it was then all square. The deed for the house was handed to her, by Neval, at Sehumaker’s office, when the $1600 were paid. He told her not to give it up; to have it recorded next day.
    On cross-examination, she said: “ He owed me the money for my good character, and for the shame and disgrace he had brought upon me, and for that he bought me this house; by shame and disgrace, I mean I had intercourse with him.” She continued to have intercourse with him until some time in 1871.
    The defendant’s points were:—
    1. ' Under the evidence in the cause there was no resulting or constructive trust in William Neval at the time of the sheriff’s sale, and that therefore the plaintiff is not entitled to recover.
    2. The evidence of Mary E. Gisaf, that the money furnished her was a gift to her, rebutted the presumption of any resulting or constructive trust in William Neval.
    The court charged :—
    “ The plaintiff rests her claim on the sheriff’s deed of the 21st October 1871, to her for all the right and title which William Neval had in the property at the time of the rendition of the judgment in favor of Ross, Schott & Co., on the 25th March 1871. Had William Neval any title to this property at the time ? This is the question to be decided here. If he had, the verdict must be for the plaintiff; if not, then for the defendants. * * *

      “ It is in evidence that the $200 paid by Daniel Gisaf had been previously handed to Mary by Neval to be paid on the agreement.. Mary testifies that Neval had previously said to her that he would buy her a house. When the deed was delivered nothing was said by the parties — but a judgment bond was given by Mary to Noval for $2500, .payable in one year with interest, which was entered in the prothonotary’s office on the 2d day of October 1868, and subsequently cancelled by Neval, and as both say without any money having been paid by Mary. It is an admitted fact in this case, that Mary was a single woman and under the age of twenty-one years when the deed and judgment bond was executed. It is also conceded that Neval was a married man with a wife and children living. Both parties then resided and still reside in the city of Reading. It will now be necessary to go back in the history of this transaction.
    ' “ Neval, a married man, with a wife in full life, and Mary, a single woman and between fifteen and sixteen or sixteen and seventeen years of age, began some seven or eight years ago to have sexual intercourse with each other, and after this had continued for some time it resulted in her pregnancy. An abortion was procured, and she became dangerously sick for a time. * * * [The defendant testifies that Neval owed her and gave her the money for the shame and disgrace he had brought upon her.] [It is also in evidence, that after the delivery of the deed, and up to a few years ago, the parties continued criminal intercourse between them as before. * * * Now, the question arises, did this state of facts put the title of this property in Mary or in Neval. The law establishes a resulting trust in favor of one who pays the purchase-money, where the deed is to another.] [Now here, if the jury shall find that the purchase-money was paid by Neval, then a resulting trust would be created in his favor, which could only be defeated by the declarations and acts of the parties accompanying the transaction. If the nominee in the title be a wife, or a child, or a grandchild, or one to whom the purchaser stands in loco parentis, the moral obligation to provide for such a party is at once recognised and an advancement is presumed, but brothers are not within this rule. What presumption arises in favor of the defendants here? Who were the parties and what were their relations toward each other ? Was there any legal or moral obligation due from one to the other ? They were in pari delicto, and she could as little maintain an action against him as he against her.] * * * [In the absence of precedent, we are to decide this case upon the well-known principle of law that an immoral consideration will never support a contract. To hold this title to be valid in Mary under the evidence in this case, the court and jury would set a premium on immorality and encourage infidelity to the marriage relations.”]
    The verdict was for the plaintiff.
    The defendants took a writ of error.
    They assigned for error:—
    I, 2. The refusal of the court.to affirm their points.
    3-5. The first three portions of the charge in brackets.
    6. The last portion of the charge in brackets.

      J. S. Idvingood and F¡ L. Smith, for plaintiffs in error.
    — A trust by implication arises from the fact that the alleged beneficiary is the real purchaser, purchased with that intent and paid the purchase-money. The trust arises from the ownership of the purchase-money paid, and rests on no other foundation, and is the only efficient cause. Some intention must appear, so as to raise the trust: Wallace v. Duffield, 2 S. & R. 523; Silverthorn v. McKinster, 2 Jones 71; Lloyd v. Carter, 5 Harris 220; Morey v. Herrick, 6 Id. 129. The material point is the time when the rights of the respective parties vested: Edwards v. Edwards, 3 Wright 378. This transaction was no trust, but an executed gift: Shaw v. Read, 11 Wright 103. This rebuts the presumption of a trugt: Lynch v. Cox, 11 Harris 268 ; Strimpfler v. Roberts, 6 Id. 298. Although the money may have been in consideration of past illicit intercourse, it could not be recovered back : Fox v. Cash, 1 Jones 211; Lestapies v. Ingraham, 5 Barr 81; Shenk v. Mingle, 13 S. & R. 32; Turner v. Vaughan, 2 Wilson 339. When the money was given, the plaintiffs in the judgment under which the sale was made were not creditors; the gift was no fraud as to them, and they could not take advantage of it: Greenfield’s Estate, 2 Harris 489 ; Mateer v. Hissim, 3 Penna. R. 160; Chambers v. Spencer, 5 Watts 404.

      H. Q. G-. Reber and (?. F. Baer, for defendants in error,
    cited Lynch v. Cox, Edwards v. Edwards, supra, as to resulting trusts from payment of purchase-money; and as to immoral consideration, 2 Kent’s Com. 466; 1 Story’s Eq. § 296; Perry on Trusts, §§ 214, 216; Hill on Trustees 164; Priest v. Parrot, 2 Vesey, Sr. 60; Dean v. Negley, 5 Wright 317.
    May 8th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

We are unable to see anything in the evidence in this case to raise an implied or resulting trust. William Neval, plaintiff below, seduced Mary Ann Gisaf, defendant below, who was at the time a young girl, and in his employ. In order to hide the evidence of his crime and her shame, he advised and procured, an operation to be performed upon her, resulting in serious and protracted illness. After she recovered, to use her own words, “ William Neval said he would buy me a house ; that he would pay me for what I had suffered for him. He said he did not want me disgraced ; that if I lost my good name it would be through him.” Shortly after this a house was purchased by the defendant for $4300, the money for which was all furnished by Neval. This is the story, briefly stated, of this transaction, as it appears upon the record. That it was a gift of the money by Neval to the defendant, is clear from the evidence. That there could be no implied or resulting trust in such case, is too plain for argument.

That “an immoral consideration will never support a contract,” as was said by the learned judge of the court below, in that portion of his charge contained in the 6th specification, is doubtless true as an abstract proposition. But it has no application to this case. The defendant is not seeking to enforce such a contract. The contract, so far as one existed, has been fully executed. • This is the case of a man who has wronged a woman, who has made her a compensation for that injury, and who now seeks to recover it back. In this the law will not help him.' As he has sown, so must he reap.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Moody versus Snell et al.

    1. A devise was to “ my son, Lockwood and to his lawful heirs * * * but in case the said Lockwood should die without any lawful heirs, then the property to revert back and be equally divided among my children who may survive him, except the one equal third part of said property, which shall belong to his widow so long as she shall continue as such.” Held, that Lockwood took an estate tail.
    2. The surviving .children to whom was the devise over, would be collateral' heirs of the devisee; the testator therefore meant lineal descendants, by the words “ lawful heirs.”
    3. Lockwood conveyed the land by deed under the Act of Assembly to bar entails ; this cut off the devise over.
    4. Covert v. Robinson, 10 Wright 274; Criswell’s Appeal, 5 Wright 288, followed.
    March 13th 1876.
    Before Acnew, C. J., Sharswood, Mekcur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Bradford county: Of July Term 1874, No. 76.
    This was an action of ejectment, brought November 4th 1871, by Mahlon 0. Moody against Abram Snell, and others, for a tract of 160 acres of land in Ulster township.
    The land in question had belonged to Lockwood Smith, Sen. The question in the ease arose under his will, dated February 14th 1827, proved January 12th 1832, and containing amongst other things, as follows :—
    “First, I give unto my beloved wife, Rachel Smith, one-third of my estate, real and personal, so long as she shall remain my widow. I also do give and bequeath unto my beloved son, Lockwood Smith, Jr., and to his lawful heirs, one equal half part of my farm lying and being in the township of Ulster, and being the same which the said Lockwood Smith, now lives on, together with the appertenances ; but in case the said Lockwood should die without any lawful heirs, then the said property to revert back and be equally divided among my children, who shall or may survive him, except the one equal third part of said property, which shall belong to his widow so long as she shall continue as such. I also give and bequeath unto my beloved son, Platt Smith, the one equal half part of the farm on which I now live, situated as aforesaid, and to his lawful heirs, together with the appertenances, subject to the same conditions made respecting my son Lockwood; that is, should the said Platt die without any lawful heirs, then it shall revert back and be equally divided among my children who shall or may survive him, except the .one equal third part of said property, which his widow shall inherit so long as she shall remain as such.” * * *
    These provisions were followed by a number of small pecuniary legacies, to be paid by his executors to his daughter respectively, in one year from his death; but there was no residuary clause.

      On the 4th of November 1845, Lockwood Smith, the devisee, by deed of that date, for the purpose of barring the entail, duly acknowledged and recorded, &c., conveyed the premises to John C. Adams. Previously to bringing this suit, the title of Adams was vested in the defendants.
    Lockwood Smith, the devisee, and his wife died in 1856, without t children.
    The surviving children of the testator conveyed their interest in the land to the plaintiffs in the suit, September 16th 1871.
    The question was whether Lockwood Smith, the devisee, took an estate in fee with an executory devise over to the surviving children of the testator, or an estate tail which was barred by his deed to Adams.
    The court, Morrow, P. J., charged that the estate of Lockwood Smith, Jr., in the land in controversy under his father’s will, was an estate tail, which was barred by the deed from Lockwood Smith, Jr. to John C. Adams, dated November 4th 1845, and that under all the evidence in the case, the verdict of the jury must be for the defendants. ■'
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned this instruction for error. •

      Deiuitt Maynard, for plaintiffs in error.'
    — The testator contemplated a definite failure of heirs of the first taker; a failure within the life of the widow of his son Lockwood, Jr., and within the lives of the devisees over. This intention of the testator must prevail, if consistent with the rules of l'aw: Hauer v. Shitz, 3 Yeates 237. If this was the intention of the testator, the devise over has no tendency to create á perpetuity: Yard’s Appeal, 14 P. F. Smith 98; Rapp v. Rapp, 6 Barr 49; Eichelberger v. Barnetz, 17 S. & R. 293 ; Langley v. Heald, 7 W. & S. 96 ; Nebinger v. Upp, 13 S. & R. 65; Nicholson v. Bettle, 7 P. F. Smith 384; Porter v. Bradley, 3 Term R. 143; Eichelberger v. Barnitz, 9 Watts 447 ; Washburn on Real Prop., b. 2, § 21, p. 351.
    The devisees over take as purchasers, and not as heirs, either of the first taker nor of the testator. The word “ children” is a word of purchase : Guthrie’s Appeal, 1 Wright 9 ; Chew’s Appeal, Id. 23; Gernet v. Lynn, 7 Casey 94 ; Tyler v. Moore, 6 Wright 374.

      Smith Montayne and S. W. Patrick, for defendants in error.
    — The children of the testator were the brothers and sisters of Lockwood Smith, his lawful heirs, and the limitation to them, being the heirs of the first taker, created an estate tail in him: Yarnall’s Appeal, 20 P. F. Smith 335; Pott’s Appeal, 6 Casey 170; Price v. Taylor, 4 Id. 95; Dodson v. Ball, 10 P. F. Smith 493; Maurer v. Marshall, 4 Harris 377; Vaughan v. Dickes, 8 Id. 509 ; Braden v. Cannon, 12 Id. 168; Rancel v. Creswell, 6 Casey 158; McGunnigle v. McKee, 27 P. F. Smith. 81.
    .An executory devise over, when the first taker has a fee, may be bound by common recovery, or by conveyance for that purpose under our Act of Assembly: Taylor v. Taylor, 13 P. F. Smith 481 ; Preston on Abstracts of Title 401. An executory devise can be destroyed by common recovery suffered by the tenant in tail, which enlarges his estate into a fee, and excludes all subsequent limitations, whether by remainder or by the way of springing use or executory devise : 2 Preston on Estates 460 ; 1 Id. 401; 3 Id. 130; 4 Kent’s Com. 13 ; Lewis on Perpetuities 663 ; Dormer v. Parkhurst, 18 Viner’s Abridg. 413; 4 Bro. P. C. 353 ; Smith on Ex. Interests 116; Wild’s Case, 6 Rep. 1606.
    The main intent of the testator was to preserve the estate ■ in the first taker and his lawful heirs — immediate descendants. This is the rule in Shelley’s Case: Hays on Estates Tail, 7 Law Library 106; Doe v. Applin, 4 T. R. 82; Wynn v. Storey, 2 Wright 166; Haldeman v. Haldeman, 4 Id. 29 ; Criswell’s Appeal, 5 Id. 288 ; Covert v. Robinson, 10 Id. 274; Ogden’s Appeal, 20 P. F. Smith 509; Physick’s Appeal, 14 Wright 128 ; Nice’s Appeal, Id. 143 ; Smith on Executory Interest, sect. 475. Superadded words of limitation will not make “heirs of the body” words of purchase: Hawkins on Wills 184 ; 2 Jarman on Wills 337; Jesson v. Wright, 1 Bligh 1; Paxson v. Lefferts, 3 Rawle 59 ; George v. Morgan, 4 Harris 95; Karker’s Appeal, 10 P. F. Smith 142; Clark v. Baker, 3 S. & R. 470; Gause v. Wiley, 4 S. & R. 509; Caskey v. Brewer, 17 S. & R. 441; Vaughan v. Dickes, 8 Harris 509; Covert v. Robinson, 10 Wright 274; 4 Kent’s Com. 274. When the words are used to limit a fee given in the first instance, they are always words of limitation, and change the fee simple first given to a fee tail. The devise imports an indefinite.failure of lawful issue, or lawful heirs, at the death of Lockwood Smith, Jr. : Matlack v. Roberts, 4 P. F. Smith 148 ; Braden v. Cannon, 12 Harris 165; Amelia Smith’s Appeal, 11 Id. 9 ; Price v. Taylor, 4 Casey 95 ; Hauer v. Shitz, 2 Binney 532.
    March 20th 1876,
   Judgment was entered .in the Supreme Court,

Per Curiam.

— It is very clear that under the will of Lockwood Smith, his son, Lockwqocb Smith, Jr., would have taken an estate in fee simple, had it not been for the terms of the devise over. The principal devise was to him and to his lawful heirs : Criswell’s Appeal, 5 Wright 288. The devise over was in these words: “ But in case the said Lockwood should die without any lawful heirs, then the property to revert back and be equally divided among my children who shall survive him, except the one equal'third part of said property, which shall belong to his widow as long as she shall continue as such.” Had the principal devise been for life instead of in fee, the terms of the devise over indicating a definite failure of issue, the estate of Lockwood Smith, Jr.-, would have come to an end at his death without issue. But the words “ lawful heirs ” clearly meant “lawful issue,” as interpreted by the terms over, for the testator’s children, the brothers and sisters of Lockwood, would have been his heirs on leaving no issue, and therefore the testator must have meant lineal descendants, and not collateral, when he used the words “lawful heirs.” This being the case he gave to Lockwood, Jr., an estate tail, which could be barred by deed in the form prescribed by the act for barring entails. This being done, the devise over was cut off. This case falls directly within the decision in Covert v. Robinson, 10 Wright 274. And indeed is stronger, for in the will in that case there were no words of inheritance.

Judgment affirmed.


text:
    Finnel versus Brew, to the use of Mack.
    1. Where a payment is made voluntarily, on an unfounded demand, or in ignorance of the law or legal circumstances of the case, it cannot he recovered back.
    2. Nothing occurring afterwards in the determination of new controversies between other parties, can be carried back to affect a transaction, which when it took place, was fair and just.
    3. Finnel held three judgments against Brew, who paid fifty dollars on them. Before an auditor, distributing the proceeds of a sheriff’s sale of Brew’s land, Finnel claimed and there was awarded to him the whole amount of the judgments; the fund did. not reach to pay all the liens, the report vras confirmed. Meld, that if Finnel could not eonscionably retain the fifty dollars, Brew could not recover, the retention being _ to the prejudice of the unpaid lien creditor.
    4. Brew’s interest, in the proper application of the fund to the liens against him, did not entitle him to the fifty dollars, nor authorize him to control it.
    5. The auditor’s report and its confirmation were conclusive against Brew’s claim.
    6. A decree, awarding money paid into court, is conclusive that the party to whom the fund is awarded is entitled to it.
    7 No matter, that can properly be litigated before an auditor to distribute a fund in court, can be examined in a collateral action.
    March 13th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Bradford comity: Of July Term 1874, No. 16.
    This action was originally brought before a justice of the peace, by William Brew against James Finnel. An appeal from his judgment was entered in the Court of Common Pleas, on the 6th of May 1872. The record was amended there so that the record should be William Brew to this use of John Mack.
    The circumstances in the case were as follows:— .
    Finnel was the beneficial plaintiff in three judgments in the Court of Common Pleas of Bradford county, against William Brew. On these judgments Brew paid Finnel $>50. Afterwards Brew’s real estate, on which these judgments were a lien, was sold by the sheriff. The proceeds of sale were brought into court, and L. P. Williston, Esq., was appointed auditor to report distribution. The auditor gave due notice of the time and place of hearing. A number of claims upon the fund were made by counsel, who were present representing them. William Brew was not present, nor was he represented. The auditor reported, awarding, amongst others, to Finnel the amount of his three judgments in full, without any deduction on account of the $50 previously paid, no mention of it having been made to him by Finnel, or on behalf of Brew. The fund did not reach to pay all the liens. On one held by John Meredith, amounting to $303.86, only $284.93 were paid. The report was confirmed at February Term 1871. Brew brought this suit before the justice January 4th 1872, to recover the $50 paid to Finnel before the sale of his land.
    The ease was tried February 17th 1874, before Streeter, P. J., upon the foregoing facts.
    The following were points of the defendant. They were answered in the negative :—
    2. In this case the money proved to be paid was voluntarily paid on a claim of right, to apply on a judgment or notes, and plaintiff cannot recover.
    4. If the jury find that plaintiff has paid defendant $50 for which he has no credit, plaintiff cannot recover, because said sum should apply to liens against the real estate of plaintiff sold, 'and plaintiff has no interest in the fund.
    The jury found for the plaintiff for $50, subject to the following reserved question : “ Is the auditor’s report distributing the fund arising from the sale of the real estate of plaintiff, in which distribution the $50 now claimed to have been paid to apply on judgments of the defendant was not applied — a bar to this action ?”
    The court delivered the following opinion on the reserved question :—
    “ Finnel the defendant had some judgments against the plaintiff which were entered upon the docket at Towanda, some three or four years ago. Brew paid Finnel some forty or fifty dollars which he claims was to be applied on the judgments entered at Towanda. Finnel made no such application of the money. Brew’s real estate was sold and an auditor appointed to distribute the money. Brew was not present and Finnel received the full amount of his judgments. Brew now sues to recover the money paid to Finnel to apply on the judgments, but which was not applied. The question reserved at the trial was, whether the auditor’s report was a bar to recovery in this action. If Brew had claimed this credit before the auditor and the matter had been passed upon, doubtless he would be estopped in this action, but he was not present and no such claim was presented to the auditor. The claim has never been adjudicated in any form, and while Brew might have Claimed this allowance before the auditor he was not compelled to do so. The reserved point is answered in the negative, and the prothonotary will enter a judgment upon the verdict.”
    The defendant took a writ of error and assigned for error answering his points in the negative; and entering judgment for the plaintiff on the reserved point.

      H. N. Williams, for plaintiff in error. —
    Money voluntarily paid under a claim of right without mistake or fraud cannot be recovered back : Bogart v. Nevins, 6 S. & R. 369 ; Irvine v. Hanlin, 10 Id. 219 ; Natcher v. Natcher, 11 Wright 494. The report of an auditor distribuing money in court confirmed by the court is conclusive of every issue that could have been properly litigated therein : Noble v. Cope’s Administrators, 14 Wright 18 ; Miller’s Appeal, 6 Casey 492; Bank of Northern Liberties v. Minford, 3 Grant 232. The auditor had full power to inquire into the payment of any part or all these judgments: Troubat & Haley, part 2,1077-8 ; Stewart v. Stocker, 1 Watts 135 ; Galway’s Appeal, 10 Casey 242. Having fixed the amount due Finnel, which was confirmed by the court, and remained unappealed from, every one was concluded as to the amount due and owing Finnel by Brew : Noble v. Cope, 14 Wright 17; Leeds v. Bender, 6 W. & S. 318; Finney’s Appeal, 3 Barr 312. Brew had a right to be heard there before the auditor : Towers v. Academy, 8 Barr 297 ; Longenecker v. Zeigler, 1 Watts 252; McDavitt & Hay’s Appeal, 20 P. F. Smith 373.

      H. W. Patrick (with whom were Poylc if McPherson), for defendant in error.
    March 27th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

When William Brew, the plaintiff below, paid the money- for the recovery of which this suit was brought, Finnel, the defendant, held three judgments against him, amounting to so’mething like $150. These judgments were due, payable and undisputed. The payment of the $50 was one which Finnel had the right to receive, and which it was the duty of Brew to make. A reference to authority to prove that an action cannot be maintained for money so paid, would seem to be superfluous. Even where the payment has been on an unfounded demand, or in ignorance of the law and legal circumstances of the case, if voluntary and without constraint, it cannot be recovered back: Colwell v. Peden, 3 Watts 328; Lackey v. Mercer County, 9 Barr 318; and Natcher v. Natcher, 11 Wright 496. No facts occurring afterwards in the determination of new controversies between other parties can be carried back to affect a transaction which, when it took place, was perfectly fair and just.

To entitle the plaintiff to .recover, he must be able to take advantage of the error of the auditor by whom the proceeds of his real estate were distributed after its sale by the sheriff. In that distribution the whole amount of the three judgments which Finnel held was allowed. As the verdict of the jury has established the payment of the $50 in dispute, the allowance -was to just that extent too large. Can the excess be restored to the plaintiff by means of this action ? The proceeds of the sheriff’s sale were insufficient to pay the liens against the plaintiff. If the amount Finnel had received from Brew had been deducted from the sum he claimed, it would have been applicable to the judgment of John Meredith, and a later judgment of 0. M. Myer would have been still left wholly unpaid. Thus the sale had divested the plaintiff of all interest in the land, and his creditors were the only parties who had a right to participate in the fund. Admitting that the defendant could not conscionably claim the $50, the mistake was to the prejudice of Meredith alone. The general interest which the plaintiff had in the proper application of the money in the sheriff’s hands .to the liens against him, was not such as to entitle him to the possession of .this particular sum, or to authorize him. to control' its disposition. The facts in Longenecker v. Ziegler, 1 Watts 252, were identical with those developed here, except that the judgment-debtor in that case had brought suit for the use of the creditor, who would have been entitled to receive the excess improvidently paid on an earlier judgment if the fund had been properly distributed. It was held that the action could not be maintained, on the ground that Longenecker had no right to the money beneficially, or even as trustee for the creditors, for the law is not'so unreasonable as to attribute to him the ownership of that of which it had itself divested him, and appropriated to the extinguishment of his debts.

The auditor’s report and its confirmation by the court are also conclusive against the plaintiff’s present claim. The duty of the auditor was to pass on the question which lies at the foundation of this controversy. He was to ascertain the parties who held liens against the property sold, and the amounts due to them respectively.- It has been urged in the argument that the plaintiff was not a party to the hearing, and could not be affected by the auditor’s action. It is true he had no right to any part of the money, but the due application of it to bis debts was as important to him as if he had been a participant in the distribution. Of all parties concerned in the proceeding, he had received from the very outset the earliest, the most direct and most constant notice. Cash’s Appeal, 1 Barr 166, decided that a lien-creditor who does not appeal from a decree distributing a fund raised by. a sheriff’s sale, cannot be relieved in the Supreme Court. In Finney’s Appeal, 3 Barr 312, it was held that if a lien-creditor did not claim at the time of the distribution, but permitted the residue to be paid to an assignee for the benefit of creditors, his claim to be preferred to the assignee came too late. A decree awarding money paid into court to one of several contesting creditors is, if unreversed and unappealed from, conclusive that the party to whom the fund is awarded is, and the contestants are not, entitled to it; and all matters that could have been properly litigated cannot again be examined in a collateral action : Noble v. Cope’s Administrators, 14 Wright 18. The remedy for any error by the auditor was in an application to the Common Pleas. This remedy was afforded in Beck’s Appeal, 3 Harris 406, where a mortgage-creditor petitioned for the correction of a mistake in the distribution of the proceeds of a sheriff’s sale at the next term of the court, but after the twenty days allowed for an appeal had expired; and it was held by this court that the Common Pleas had power to review its decision and to grant relief. In this case undoubtedly a mistake was made, but it could only be cured by reforming or reversing the decree upon the auditor’s report. That cannot be reached collaterally. It was final as to the question which it was the object of this litigation to present.

Judgment reversed.