City of Philadelphia v. Miller
| Decision Date | 01 January 1865 |
| Citation | 49 Pa. 440 |
| Parties | The City of Philadelphia versus Miller. |
| Court | Pennsylvania Supreme Court |
Franklin B. Gowen, David W. Sellers, F. Carroll Brewster, and John Bannan, for plaintiff in error.
Jacob Hoffman, E. Greenough Scott, and John W. Ryan, for defendant in error.
There are but two questions in this case which need to be noticed.
1. Whether an assessment of a certain number of acres of land, without any other description or means of identification, in the name of a person unknown, in connection with any title or possession of the land, will support a sale of the land as unseated for taxes.
2. Whether the evidence of the redemption ought not to have been received.
The tract in question was warranted in the name of James Trembel, and surveyed as four hundred and one acres and fifty-seven perches. The assessment was "John Turnbull, four hundred acres." Granting that the land itself is the subject of taxation, it is still on the ground of title. This is proved by the fact that no sale is valid till title be shown to be out of the Commonwealth, and by the mode of assessing the tax and giving notice of the sale, which always furnishes the name of the supposed owner. Ownership, whether named correctly or incorrectly, is the subject of the duty to the state to bear a proportion of the public burdens. Land is taxed, not as inanimate matter, which is insensate, and cannot respond to duty, but as property, to whose owner the law allows both time and place to respond, before his property shall be sold from him, and after a sale still affords the grace of redemption. But how can the duty be here proved, or the redemption be claimed, without a knowledge that the ownership has been subjected to the former, and a sale made demanding of him the latter? Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property. But how can the duty of the payment of taxes be performed without the identity of the subject-matter of the duty being made known to him who is to perform it, by name or by description? A thing, whether land or chattel, to be the subject of legal action, must be proceeded against by name or by description, but a name is descriptive only because it has become associated with the person or thing named. A name, therefore, which has never become connected in any manner with any title or possession of land, clearly infers no means of its identification. So the mathematical content expressed in figures is not a mark of identity peculiar to the land; but like a common noun, has no immediate or cognate relation to a particular tract. This is especially true where the quantity of all warrants almost invariably was four hundred acres. Identity is said to be matter for a jury. Certainly this is so; but from its very nature the fact of identity is dependent on circumstances which attach themselves to the land. It is because the thing described answers to the circumstances of description we are able to identify it. The evidence of identity is the record which contains the description and fixes the duty. Assessment is, from its legal requirement, and the necessity of preserving its evidence, a written entry, and must depend upon the records of the commissioner's office, and not upon parol testimony, or the private duplicate of the assessor. McCall v. Lorimer, 4 Watts 351, 355, is full on this point. And, as said by Justice Rogers, in another report of that case, 4 W. & S. 133, it is the assessment which confers the power to sell, in the same manner as a judgment on which an execution is issued. It is the assessment, therefore, which must contain the means of identification of the ownership, in order that the proprietor may pay his tax, or redeem if he fails to pay in time. It may be by a name, though it need not be, as the sale will be valid under the Act of 1803, though the land be not taxed and sold in the name of the real owner. But if by a name alone, it must be by one linked to it, or once associated with it, so that the chain which binds them together, when followed by the hand of the real owner, will lead him to it. If the owner be unknown, still it can be identified. It has some ear-mark; it lies somewhere, and adjoins somebody, and has some title associated with it, good or bad; something which will afford the owner the means of tracing his land, and paying his tax.
It is said, however, that every owner knows his land is taxed, and it is his duty to seek the officer, and offer to pay the tax, and this offer will stand as his excuse, and save his title. The answer is, that in the case which we are considering, where nothing exists in the assessment to lead to identification, it is useless and unjust. Useless, because the officer no more than himself can trace his property, or enable him to perform his duty by accepting his taxes. It is unjust, because the sale of the land thus becomes inevitable, and necessitates the payment of expenses and inconvenience in defending or recovering his title; and in order to preserve it compels him to perpetuate the evidence of an offer seemingly useless; for what person, told by the officer that he has no land assessed, would deem it necessary to preserve the evidence of an offer which bears no fruit? It is unjust also to the purchaser at the sale, for he is induced to bid for a worthless title, to be blown away by the breath of an oral offer, bearing no imprint on the public record, and if the officer should make a record of what the law makes no provision for, how can the purchaser know of a connection between the person who makes the offer and the land exposed to sale, which neither the owner nor the officer was able to trace? It is surely enough that a man's property may be assessed and sold in the name of another, but it is absolutely shocking to every sentiment of natural justice that any man's property should be forfeited without any description whatever, or means of knowing that his rights are in peril.
What is it to tell us, let the owner be vigilant and prompt, let him have his land duly assessed, and pay his share of the public burdens? Admitting the truthfulness of these legal injunctions, in their general application to duty, we cannot ignore the tendencies of the law, and the general habits and customs of the people, and the harshness of this rigid application to the present question. The assessment of taxes belongs to the public agents, and therefore is always left to their guidance, under an expectation, not often disappointed, that they will act faithfully and fairly. Notice to the tax-payer as a duty is cast by the law upon them, and opportunity for correcting errors afforded. Owners of unseated lands are for the most part non-residents, far away from their property. Under these circumstances, to erect the high standard of diligence thus set up for us, where the penalty of its non-observance is so greatly disproportioned, as is the loss of a man's whole estate to the pittance of tax imposed upon it, is to exact a duty most onerous, and higher than the law itself has given us. The penalty of the law for a failure to make a return of land for taxation is fourfold taxation, but not confiscation of estate. We should not be wiser than the law. It has made ample provision for notice to the owner; first by providing a description of the land, and a book wherein it may be found, and imposed on the county surveyor the duty of furnishing the means of making it. It has then provided for notice to him at least sixty days before the sale, specifying the township in which his land lies, the number of acres in the tract, and the name of the warrantee or owner, and recognised his residence by requiring publication in a daily paper of Philadelphia, as well as in a newspaper of the proper county. It thus sedulously guards the interest of the owner, and while it looks to the land itself as the subject of taxation and the means of payment, it carefully regards him as the object of duty and possessor of rights.
That the law itself designed identification is clearly proved by the returns it provided for. The county surveyor is required to make a correct return of all lands surveyed, including the number of acres in such survey or warrant, the names and surnames of the original warrantees, the waters on which the same are situate, the land contiguous thereto, and the township in which it lies. The owner is required, within a year of his purchase, under the penalty of fourfold taxation, to furnish a statement containing a description of the tract, the name of the person holding the original title, and its nature, number, and date, and the name of the grantor, and date of the conveyance to the person retaining the statement. Identification of the land itself being the main purpose, the provision allowing the owner a year to make his return answers the argument that by the terms of law the sale is valid, though the land is not assessed and sold in the name of the owner. Having a year to return his ownership, and the assessment continuing in the former name, it was requiring of him the least possible diligence to examine for taxes in the names of those under whom he claims title. But it does not follow from this that his land should be sold without any means of identification to enable him to perform his duty. There was another reason for the provision. Land is often claimed by adverse owners, and it is not the duty of the tax officers to decide between them. It is sufficient, therefore, if the assessment be in the name of one connected by some title with the land. There is no hardship in this, for owners seldom are ignorant of...
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