Goodman v. Sanger

• Decision Date: 01 October 1877
• Parties: Goodman <I>versus</I> Sanger.
• Court: Pennsylvania Supreme Court

85 Pa. 37

Goodman versus Sanger.

Supreme Court of Pennsylvania.

June 14, 1877.

October 1, 1877.

June 14th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Columbia county: Of May Term 1877, No. 87.

Joshua W. Comly, J. G. Freeze, A. J. Dietrick and John W. Maynard, for plaintiff in error.—There was error in the permission to read a certain entry in sale book of treasurer of Columbia county, because entirely irrelevant, and the mortgage of John Nicholson et al. to the United States Bank in May 1797 was irrelevant, as it was not important whether the bank was noted as the owner or not. The payment of taxes after the expiration of five years from the day of the sale was not a redemption from the sale. Under the Act of 1815 redemption of lands by the treasurer differs from those sold to the commissioners. In the first a legal tender of taxes, costs and percentage destroys the treasurer's deed. In the latter, where the land is redeemed, the commissioners must make a deed. Mere payment of taxes will not operate as a redemption from sale.

The title being in the commissioners, it could only be divested by deed: Hoffman v. Bell, 11 P. F. Smith 444. The then commissioners had the deed from the treasurer to their predecessors in office; there was no deed of redemption endorsed upon it; there was no entry of any redemption by any person on the minute books or other books in the office; there was nothing in the treasurer's books to show that the taxes or redemption money were ever paid to him; in short, neither the commissioners, who sold in 1874, nor the purchaser, who then bought and paid his money, had any notice that any redemption money had been paid. If it is said that the defendant was in possession before the sale of 1874, and that should have put the plaintiff on inquiry, we admit this so far as inquiry could have procured any information.

A title to land, though unseated, cannot be lost by non-payment of taxes except by a treasurer's sale under the Act of 1815: Hockenbury v. Snyder, 2 W. & S. 240; Kelsey v. Murray, 9 Watts 111; Sailor v. Hertzogg, 10 Barr 316; Hoffman v. Bell, supra; Naglee v. Albright, 4 Whart. 300; Sorber v. Willing, 10 Watts 142; Devor v. McClintock, 9 W. & S. 80; Woodburn v. Farmers' and Mechanics' Bank, 5 Id. 450.

George F. Baer, S. P. Wolverton and C. R. Buckalew, for defendant in error.—Presumptions arising from lapse of time and non-claim should be submitted to the jury as a foundation of title by conveyances lost or destroyed: Carter v. Tinicum Fishing Co., 27 P. F. Smith 315; Kingston v. Lesley, 10 S. & R. 383; Foulk v. Brown, 2 Watts 214; Woodburn v. Farmers' and Mechanics' Bank, supra; Hastings v. Wagner, 7 W. & S. 218; Jackson v. Hudson, 3 Johns. 375; Orr v. Cunningham, 4 W. & S. 294.

Presumption of conveyance arises from lapse of time: Fox v. Thompson, 7 Casey 172; Galloway v. Ogle, 2 Binn. 468; Warner v. Henby, 12 Wright 187; Strimpfler v. Roberts, 6 Harris 283; McBarron v. Gilbert, 6 Wright 280; Robinson v. Williams, 6 Watts 281; Brown v. Day, 28 P. F. Smith 140.

The owner of the legal or equitable title may redeem: Dubois v. Hepburn, 10 Peters 23. The act allows redemption within five years: Steiner v. Coxe, 4 Barr 26; Coxe v. Walcott, 3 Casey 158; Diamond Coal Co. v. Fisher, 7 Harris 267; City of Philadelphia v. Miller, 13 Wright 440; Jenks v. Wright, 11 P. F. Smith 413.

Chief Justice AGNEW delivered the opinion of the court, October 1st 1877.

In this case only one question may be considered, that is, whether there was sufficient evidence of a redemption of the land by the heirs of Philip Meyer, or by the Bank of the United States, from the tax sale in 1816 to the commissioners of Northumberland county. That a presumption of a grant or an abandonment of title may arise from lapse of time and non-claim, when these point to the fact as a probable thing, is not disputable. The cases cited by the defendant in error prove this. Many precedents will be found collected and commented upon in Carter v. Tinicum Fishing Co., 27 P. F. Smith 315-16, and Brown v. Day, 28 Id. 139-40. But time and non-claim, to become the foundation of such a presumption, must accord with the other facts in evidence, reasonably leading to this presumption. The presumption is not of law, but a natural inference to be drawn by a jury, of which there must be sufficient evidence, and ought not be submitted to them if really repelled by the other evidence. This is precisely the point before us. Do the facts in evidence accord with the presumption of a redemption to be drawn from the lapse of time and the alleged non-claim of the commissioners of Northumberland county?

To clear the case of a confusion of ideas between abandonment of title and redemption from sale, and from the effect of a payment of subsequent taxes, some things must be first noticed. And first it must be remembered that after the lapse of five years from the tax sale, the title of the county became absolute, and nothing but a redemption by the permission of the commissioners could adeem the title of the county; and it must be remembered that the tract remained in a wild and unseated state until the year 1871 or perhaps 1872. The legal or presumptive possession was, therefore, in the county in the meantime. It is next to be noticed that if a redemption existed, it is obvious it must have been made before the year 1840, that is, in the interval between the years 1816 and 1840, when the commissioners of Northumberland redeemed the land from the sale in Columbia county made in 1838. After 1840 a permissive redemption only could be made, and it is not pretended there is any evidence to justify this presumption. The utmost effect of the subsequent facts would be to help to sustain a redemption prior to 1840.

The next fact to be remarked is that there is no record or documentary evidence of a redemption of right or by permission, while under the sixth section of the Act 13th March 1815, the evidence ought to appear both in the treasurer's and the commissioner's office. The letters Pd. B. opposite to the entry of the county tax of fifty-two cents in the year 1805 clearly is no evidence of redemption. And first the entry is confined to the county tax of that year, and is not carried forward to the taxes following either by words or signs. Next the county tax, fifty-two cents, of 1805 was not included in the taxes set forth in the deed. These make $4.19, just the sum of all the other taxes down to 1813, including the road tax of 1805. The road taxes in all were $1.88, from which, deducting the fifty-two cents, $1.38 are left, the precise sum mentioned in the deed; showing that the clerk or scrivener inadvertently deducted the fifty-two cents from the wrong sum. It is evident that these fifty-two cents were paid before sale, and were not included. This accords with another pertinent fact. The Bank of the...