John Dubois, Lessee of Oliver Wolcott, Plaintiff In Error v. Andrew Hepburn

• Decision Date: 01 January 1836
• Citation: 9 L.Ed. 325,10 Pet. 1,35 U.S. 1
• Parties: JOHN DUBOIS, LESSEE OF OLIVER S. WOLCOTT, PLAINTIFF IN ERROR v. ANDREW D. HEPBURN
• Court: U.S. Supreme Court

35 U.S. 1

10 Pet. 1

9 L.Ed. 325

JOHN DUBOIS, LESSEE OF OLIVER S. WOLCOTT, PLAINTIFF IN ERROR v. ANDREW D. HEPBURN.

January Term, 1836

ERROR to the circuit court of the United States for the western district of Pennsylvania.

The plaintiff in error instituted an ejectment for a tract of land situated in Lycoming county, in the State of Pennsylvania; and exhibited a title, regularly deduced, under a patent granted to Joseph Fearon, dated 19th September 1796.

The title claimed by the defendant was derived from a purchase at a sale of the land made by the treasurer of the county of Lycoming, on the 12th of June 1826, for county and road taxes, regularly assessed on the same; the county taxes prior to the 1st of February 1825, and the road taxes on the 22d April 1825. The whole of the land in controversy was sold for five dollars and fifty-two and a half cents, the alleged amount of the taxes and costs. On the 15th July 1826, the treasurer of the county conveyed the premises to the defendant.

It appeared in evidence that the heirs and legal representatives of Joseph Fearon, the patentee of the land in controversy, were the children of Abel Fearon and Robert Fearon, and the brothers of Joseph Fearon; both brothers having died in the life-time of the patentee: and on the 26th March 1825, partition of the real estate of Joseph Fearon was made between the two branches of the Fearon family, by which the premises in this ejectment were, inter alia, allotted to the heirs of Abel Fearon, in consideration of a moiety of the lands of the intestate having been allotted to the heirs of William Fearon. On the 27th March 1827, partition of the portion of the real estate allotted to the heirs of Abel Fearon; and the tract of land in controversy, became the property, by this partition, of Jacob Fox and wife, late Elizabeth Fearon, from whom the plaintiff in the ejectment held, by intermediate conveyances, the premises in controversy, in fee simple.

The plaintiff, in order to overthrow the alleged tax title, set up by the defendant, gave in evidence an alleged redemption of the said tract, No. 5615, by a tender, both to the county treasurer and the defendant, within two years after the said sale, of the full amount of the said taxes, and costs, and twenty-five per centum upon the aggregate amount thereof, as called for by law.

The case came on for trial by a jury, at January term 1833, and the plaintiff's counsel requested the court to instruct the jury—

1st. That under the act directing the mode of selling unseated lands for taxes, and its several amendments and supplements, any person may legally pay the taxes due on such land.

2d. That any man who may legally pay such taxes, may legally redeem such land sold for taxes, within the term specified in said acts.

3. That any person has a right to redeem such land so sold, by a payment of the tax, costs, and per centage, within the time named in the said acts.

4. That any person having or believing himself to have an interest in the lands so sold, has a right to redeem the same within the period named in the said act.

5. That any person connected by blood, or by title, with the owner or supposed owner of the lands so sold, has a right so to redeem the same.

6. That any person having the charge of such lands from the owner, during his life, after his decease intestate, and without a countermand of such charge, has a right to redeem such lands so sold.

7. That the treasurer under the said acts is an officer ministerial, and not judicial, and that he is bound to receive, under the above acts, the redemption money for the land so sold, under the facts severally above set forth.

8. That the treasurer has no authority to decide in whom the title or ownership of such lands so sold and offered to be redeemed, is vested.

9. That the refusal of said treasurer to receive the redemption-money for lands so sold, is equivalent to, and dispenses with a tender of the same.

10. That if the plaintiff, Oliver S. Wolcott, and the defendant, Andrew D. Hepburn, were citizens of different states at the time of the action brought, that is to say, that Andrew D. Hepburn was a citizen of Pennsylvania, and Oliver S. Wolcott was a citizen of Connecticut, or of any other State of the United States, the jurisdiction of this court attached; and that such jurisdiction was not divested by any change of citizenship or domicil by the said Oliver S. Wolcott, after the institution of this suit.

11. That a citizen of the United States, born in the State of Connecticut, who resided until his marriage and settled there upon his marriage, gained thereby a citizenship and domicil by origin; which is not divested or changed unless there be proved a citizenship and domicil acquired by the said Oliver S. Wolcott elsewhere, in some other State or jurisdiction.

12. That any person holding an interest in land as tenant in common, on which taxes have been previously assessed and are unpaid, has a right to redeem the said land from a sale for said taxes, within two years thereafter, although he has been divested of his interest in said land by a partition after said assessment, and before the sale for taxes.

The court, on the points presented by the counsel for the plaintiff, gave the following answers.

1. The law is as here stated. Any person may legally pay the taxes assessed on unseated lands, under the several acts of assembly of this commonwealth directing the mode of selling unseated lands for taxes.

2 and 3. But no one has a right to redeem such land so sold, but the owner or owners, his, her, or their agent or attorney.

4. Any person having an interest in land so sold, has a right to redeem the same within the period named in the said act, but a mere opinion without right of having an interest, confers no power to redeem.

5. Any person connected by title with the owner, or supposed owner of the land so sold, has a right to redeem the same, but the right does not exist in a relation by blood because of that relationship.

6. The decease of a person intestate being the owner of such lands is a revocation of the authority of one who had the charge of them from the deceased, yet, under some circumstances, he may redeem lands so sold which were under his charge, notwithstanding the decease of the owner intestate. But where the owner was of full age, and had actual notice, as in this case, from the county treasurer of the sale of the land for taxes, and of the name of the purchaser, and of the time within he had power to redeem, and disavows any agency, and declares he will incur all risque, the interference of another person to redeem, not asserting any authority from the owner to do so, would not affect the title of the purchaser of land so sold.

7 and 8. It is true that the treasurer, under the acts referred to, is a ministerial and not a judicial officer, but the said acts did not bind him to receive the redemption money for the land so sold under the facts severally above set forth. The decision of the county treasurer cannot affect the legal rights, either of the owner or purchaser, and he has no authority to determine in whom the title or ownership of such land so sold and offered to be redeemed is vested. But before he receives the redemption-money it is his duty to satisfy himself that the person tendering it is either owner, or agent, or attorney for the owner.

9. It lands are so sold and a county treasurer refuse to receive the redemption-money from a person duly authorized to tender it, it is not necessary to make an actual tender of it.

10 and 11. In substance these instructions have already been given to the jury, but I repeat them in the language of the plaintiff's counsel.

12. The court instruct you on this point as requested by the plaintiff's counsel. Its application, however, to the case before you must be tested by the facts connected with it and given in evidence. The county tax, for which in part the land in question was sold, was assessed prior to the 26th of March 1825, the date of the deed of partition to which Robert Quay is a party. But it appears, from the certificate of the supervisor of roads, that the assessment of the road tax on the land in dispute was made the 22d of April 1825, and filed in the proper office the 3d of May following, after Robert Quay and wife had parted with all their interest in the land. And by the act of assembly for the sale of unseated lands for taxes, unseated land may be sold for any part of the taxes due. This land being, therefore, sold for the arrearage of tax as well as for the assessment made before the execution of the deed of partition, Robert Quay could have no legal right derived from his having been once part owner of it, to tender all the taxes due for the purpose of redemption.

The defendant's counsel requested the court to instruct the jury as follows:

1. That if, from the testimony disclosed, they believe that Oliver S. Wolcott was not a citizen of the State of Connecticut on the 22d September 1830, but had lost his domicil then, the plaintiff cannot recover.

2. That from the testimony disclosed the taxes for which the land was sold were assessed, and that the deed from the treasurer to the defendant, on the face of it, vests in him a complete title to the land in controversy.

3. That under the fourth section of the act of the 13th March 1815, when lands have been sold for taxes, none but the owner, or his agent duly authorized, can redeem the land; and any offer made by a stranger and without authority from the owner to redeem lands so sold, would not affect the title of the purchaser at treasurer's sale.

4. That if the jury believe the testimony of Joseph F. Quay, of Robert Quay, sen. and Robert Quay, jun., they were neither of them the agent of Jacob Fox, under whom the plaintiff claims, when Robert Quay, jun. called upon William Harris, the treasurer, in May 1828, to attempt to redeem the tract of land in dispute,...