Gamble v. Cent. Penna. Lumber Co.

• Decision Date: 22 June 1909
• Citation: 225 Pa. 288
• Parties: Gamble <I>v.</I> Central Pennsylvania Lumber Company, Appellant.
• Court: Pennsylvania Supreme Court

225 Pa. 288

Gamblev.

Central Pennsylvania Lumber Company, Appellant.

Supreme Court of Pennsylvania.

March 17, 1908.

June 22, 1909.

Argued March 17, 1908.

Appeal, No. 345, Jan. T., 1907, by defendants, from judgment of C. P. Lycoming Co., June T., 1905, No. 450, on verdict for plaintiffs in case of Jefferson A. Gamble and W. H. Green v. Central Pennsylvania Lumber Company and the Elk Tanning Company.

Before MITCHELL, C. J., BROWN, MESTREZAT, POTTER and ELKIN, JJ. Affirmed.

Thomas H. Murray and Seth T. McCormick, with them C. H. McCauley, for appellants.—There was no assessment of warrant No. 5,666 for the year 1893: Laid v. Heister, 24 Pa. 452; Bratton v. Mitchell, 7 W. & L. 259; Wells v. Smyth, 55 Pa. 159; Lyman v. Philadelphia, 56 Pa. 488; McReynolds v. Longenberger, 57 Pa. 13; Greenough v. Coal Co., 74 Pa. 486.

There was no proof of the identity of the tract 5,666 as covered by the alleged assessment: Robinson v. Myers, 67 Pa. 9; Burgwin v. Bishop, 91 Pa. 336; Churchman v. Smith, 6 Wharton, 145; Jordan v. Stewart, 23 Pa. 244; Fisk v. Corey, 141 Pa. 334; McClement's App., 2 Pa. Superior Ct. 443; Hess v. Herrington, 73 Pa. 438; Marsh v. Nelson, 101 Pa. 51; Reading v. Finney, 73 Pa. 467; Breisch v. Coxe, 81 Pa. 336; Brown v. Hays, 66 Pa. 229.

The county commissioners abandoned their title under which plaintiffs claim, and the plaintiffs are now estopped from asserting it: Hunter v. Albright, 5 W. & S. 423; Diamond Coal Co. v. Fisher, 19 Pa. 267; Cobb v. Barclay, 9 Pa. Superior Ct. 573; Schreiber v. Moynihan, 197 Pa. 578; Feltz v. Coal Co., 203 Pa. 166; Murphy v. Packer, 152 U. S. 389.

Plaintiffs' location of 424 acres in question is unwarranted and without authority in law: Brotherton v. Livingston, 3 W. & S. 334; McCord v. Bergautz, 7 Watts, 487; Hess v. Harrington, 73 Pa. 438; Stewart v. Shoenfelt, 13 S. & R. 360; Diamond Coal Co. v. Fisher, 19 Pa. 267; Breisch v. Coxe, 81 Pa. 336.

Even if under the circumstances there was a right of election, this right had been exhausted by a prior and different location.

N. M. Edwards and C. La Rue Munson, of Candor & Munson, with them H. W. Whitehead and A. G. Miller, for appellees. —There was a legal assessment of warrant No. 5666 upon which the county treasurer's sale is based in this case: Hess v. Herrington, 73 Pa. 438.

The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity: Hubley v. Keyser, 2 P. & W. 496; Reynolds v. Longenberger 75 Pa. 13.

The identity of the tract as well as apparent mutilation of the record were all questions for the jury and all of which have been decided by the jury in favor of the plaintiffs in this case: Schreiber v. Moynihan, 197 Pa. 578; Marsh v. Nelson, 12 W. N. C. 214; Woodside v. Wilson, 32 Pa. 52; Diamond Coal Co. v. Fisher, 19 Pa. 273; McReynolds v. Longenberger, 75 Pa. 13.

The county commissioners did not abandon their title under which plaintiffs claim: Philadelphia v. Raup, 177 Pa. 396.

It is true the county collected taxes on 400 acres in Cogan House township from the Elk Tanning Company, defendant in this case, but it is not proven anywhere in this case that the county knew or was led in any way to believe that this 400 acres in Cogan House township was the same that it had purchased at treasurer's sale in 1894, located in Lewis township. It has been repeatedly decided in this state that the payment of taxes will not confer title where none exist: Philadelphia v. Raup, 177 Pa. 396; Goodman v. Sanger, 85 Pa. 337; Naglee v. Albright, 4 Wharton, 291; Sorber v. Willing, 10 Watts, 141; Sailor v. Hertzog, 10 Pa. 296; Mayor of Philadelphia v. Riddle, 25 Pa. 259.

Under the evidence in this case the plaintiffs have the right of unrestricted choice of locality: Coxe v. Blanden, 1 Watts, 533; Erwin v. Helm, 13 S. & R. 151; McCord v. Bergautz, 7 Watts, 487.

OPINION BY MR. JUSTICE BROWN, June 22, 1909:

The title upon which the appellees recovered in the court below was acquired by them from a vendee of the county commissioners of Lycoming county, who had purchased the land in controversy on December 1, 1894, at a county treasurer's sale for unpaid taxes levied against it for the year 1893. This land formed part of a tract of 1,100 acres, for which a patent — No. 5,666 — was issued by the commonwealth to James Strawbridge on March 8, 1795. The appellants claim title under a tax sale held in the year 1821 for unpaid taxes for the years 1820 and 1821. The case as presented is that of one tax sale title arrayed against another.

The first position of the appellants is that there was no assessment by the township assessor or the county commissioners for the year 1893 of the land embraced in the Strawbridge warrant, No. 5,666, and that even if taxes were levied, legally or illegally, upon it, they were duly paid and discharged by the owner. It appears from the testimony that for the year 1893 the assessor of the township of Lewis, in which warrant No. 5,666 is located, failed to make a return of assessments of unseated lands in that township, but the commissioners of the county made assessments upon such lands for that year. That the assessments made by the commissioners were legal and formed the bases for sales for unpaid taxes is definitely settled. Reference need be made only to Hess v. Herrington, 73 Pa. 438, where, in passing upon this very question, we said: "There was evidence by a record from the office of the county commissioners that the taxes in question were assessed by them. The twenty-first section of the Act of April 12, 1842, P. L. 262, enacts that `all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.' By the fourth section of the Act of March 13, 1815, 6 Sm. L. 301, it is declared that `no alleged irregularity in the assessment, or in the process, or otherwise, shall be construed or taken to affect the title of the purchaser; but the same shall be declared to be good and legal.' The act of 1842 makes the record of the county commissioners evidence of an assessment in fact, and the act of 1815, to support the title of the purchaser, cures all irregularities in it. The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity. The county commissioners are the board of revision, with power to revise, correct and equalize the valuation of all property taxable by law: Act of July 27, 1842, P. L. 445; Act of April 29, 1844, P. L. 501. It would be no violent presumption if it were necessary to resort to it, that the valuation upon which the assessment was made, was settled by them in their capacity as a board of revision. But it is not necessary. In Hubley v. Keyser, 2 P. & W. 502, Mr. Justice HUSTON, speaking of the act of 1815, says: `The object was to make the sale and deed confer a title without proof of any one prerequisite, except that the land was unseated, and that a tax was charged by the commissioners, regularly or irregularly; that this tax was unpaid, and the land sold and not redeemed within two years.' In that case, the objection to the sale was, that there was proof that the assessors had not valued or returned the land as unseated for assessment. It was argued there, as here, that the valuation by the commissioners was unauthorized, and the assessment a nullity; but it was held otherwise by the court. Indeed, in citing this case afterwards, in Fager v. Campbell, 5 Watts, 288, Chief Justice GIBSON said: `The tax-book was an official document, and according to Hubley v. Keyser, it was both competent and sufficient to show that the land had been assessed.' Both these cases were prior to the act of 1842. It was, indeed, expressly decided in Devinney v. Reynolds, 1 W. & S. 328, that a tract of unseated land may be sold by the treasurer for the non-payment of taxes upon an assessment made by the commissioners, without...