Donnel v. Bellas

• Decision Date: 05 August 1849
• Citation: 10 Pa. 341
• Parties: DONNEL <I>v.</I> BELLAS.<SMALL><SUP>(a)</SUP></SMALL>
• Court: Pennsylvania Supreme Court

Page 341

10 Pa. 341

DONNEL v. BELLAS.^(a)

Supreme Court of Pennsylvania.

August 5, 1849.

IN error from the Common Pleas of Northumberland.

The case was argued at the last term by E. Greenough, and now by Canby and Higins, for plaintiffs in error.—They referred to 2 Penna. 223; 21 Wend. 178; 4 W. 59; 3 W. & S. 529; 19 John. 345; Phil. Ev. 151; 3 East, 192; 5 S. & R. 267; 1 W. & S. 175; 6 W. & S. 511.

J. Pleasants and H. Bellas, contrà—Contended that, without a delivery of the deed, the plaintiffs had no legal title. That they had not an equitable title, because of the non-payment of the purchase-money, pursuant to the express directions of the statute; nor was there any payment, or compliance with the contract, until after the redemption by the heir of the former owner. Nothing but actual payment will save the owner: 13 S. & R. 374; and this rule should be applied to the purchaser. The object being the collection of the public dues, the allowing a credit to the purchaser is contrary to policy. Private transactions between the public officer and the purchaser cannot be received as such payment, as has been ruled in similar cases: 2 R. 199; 1 W. & S. 428; 9 John. 263; 1 Cow. 46; 9 W. 280; 15 S. & R. 162; 2 W. C. C. 192; 3 W. & S. 276. The fact that the treasurer held redemption-money paid on other tracts, cannot avail. For this was a debt due by him to Staples, and, without more, could never extinguish the debt due by Staples to him: 8 W. 39, 410. Besides, this would not enure to the benefit of Staples: 4 W. & S. 294. His laches alone would discharge a private vendor, much more a bargain of this kind, which is wholly unauthorized, if not forbidden by the statute: 1 J. C. R. 370; 4 Ib. 559; 13 Ves. 244; Sug. Vend. 277, 281. The charge was erroneous only in favour of the defendants. We contend that the treasurer could not give time to the purchaser, and substitute himself as the debtor of the county. But, be this as it may, as he never paid the debt, the right of the purchaser was never perfected.

Aug. 5. BURNSIDE, J.

This was an amicable action of ejectment. Bellas, the plaintiff below, claims the land in question, under a warrant of the 6th of December, 1784, to William Green; surveyed the 22d of September, 1789, 306½ acres, and patented to William Green, 23d of February, 1790, who, by deed of assignment, on the 15th of June, 1808, conveyed to William Witman. Judge Witman paid the taxes up to 1815.

The defendant below claims under a tax-sale. They gave in evidence, that the William Green tract was taxed from 1815 to 1824 inclusive, and that on the 16th of June, of the latter year, it was struck off to one Edward Staples, under whom the defendants claimed. It was in evidence, that Staples' first, and indeed only appearance in Northumberland county, was at the sales in June, 1824, when he bid off this tract and some fourteen others. He paid some money, part of which would seem to have been applied on the books of the treasurer, and gave a written memorandum to the treasurer Weiser, to pay on the acknowledgment of the deeds, at the next August court, the balance of $59.87. There was no money marked on the treasurer's books paid on the William Green tract. It was struck off at $9.51. The taxes and costs amounted to $9.20½. At the August court, Weiser, the treasurer, acknowledged the deed, and in the course of the ensuing winter he sent that deed, with others, to the city of Philadelphia, with the written evidence of the balance due; but, after diligent search, Staples could not be found. The papers were returned to Weiser, who went out of office. When Judge Witman died did not appear, but his son and administrator came to Sunbury in the latter part of 1828, or the beginning of 1829, when he called on Weiser and paid him $13.28½, the amount of taxes and costs due from 1815, and lifted the treasurer's deed, that had been made out, but not receipted on, for Staples; after this he applied to the Orphans' Court of Northumberland county for an order of sale, to pay the debts of his father, when the William Green tract was duly advertised, and sold as the property of William Witman, and the sale confirmed by the Orphans' Court, to Hugh Bellas, for $300. Was the title of Witman divested by the treasurer's sale, and was that title vested in Staples? The spirit and object of the several acts of the legislature which authorize the sale of unseated lands for the payment of taxes, are to compel and enforce the prompt payment of the annual assessments. Of the acts now in force on this subject, the first is the act of the 3d of April, 1804 (Purd. 1135, 4 Sm. L. 201), which directs the sheriff or coroner of the proper county, to give notice and advertise in the manner prescribed in the act, and to make sale of the whole or any part of such tract of unseated land as he may find necessary for the payment of the taxes due thereon, and of all costs necessarily accrued by reason of such delinquency, and to make and execute a deed or deeds in fee-simple to the purchaser or purchasers.

Then came the act of the 4th of April, 1809 (Purd. 1137, 5 Sm. L. 73), which transferred the power vested in the sheriff, to the treasurer of the respective counties.

Next followed the act of the 13th of March, 1815 (Purd. 1138, and 6 Sm. L. 299); which, in the 1st section, fixes the sales by the treasurer, to commence on the second Monday in June, in the year 1816, and at the expiration of every two years thereafter, to make and execute deeds to the purchasers, in the manner directed by the sheriffs in the act of 1804.

The 2d section provides for the case of the treasurer's death after the sale, and before the deed is made. The succeeding treasurer is to execute a deed or deeds, on payment of the purchase-money: Purd. 1139.

The 3d section directs the purchaser to make payment as soon as the deeds are tendered; and, if not paid, to bring actions; and when judgment is obtained, there shall be no stay of execution. It was soon demonstrated that there were still difficulties in obtaining prompt payment of the taxes and costs. Insolvent purchasers were common — difficulties arose in finding the bidders, to whom the deeds could be tendered. To remedy these evils,...