McReynolds v. Longenberger

• Decision Date: 19 March 1868
• Citation: 57 Pa. 13
• Parties: McReynolds <I>et al. versus</I> Longenberger <I>et al.</I>
• Court: Pennsylvania Supreme Court

57 Pa. 13

McReynolds et al. versus Longenberger et al.

Supreme Court of Pennsylvania.

January 30 and 31, 1868.

March 19, 1868.

January 30th and 31st 1868.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Columbia county: No. 4, to October Term 1866.

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J. B. Packer, for plaintiffs in error.—To authorize a sale of unseated lands for taxes, there must have been an assessment by the county commissioners more than one year before the sale; a party claiming under a treasurer's sale must show such an assessment, and that the taxes remained due and unpaid for a year before the sale: Bratton v. Mitchell, 1 W. & S. 310; S. C. 7 Id. 259; Miller v. Hale, 2 Casey 242; M'Call v. Lorimer, 4 Watts 353; Laird v. Hiester, 12 Harris 452; Stewart v. Shoenfelt, 13 S. & R. 372. The book given in evidence by the plaintiffs was the treasurer's sale book, manifestly so designated at the caption of the list containing the name of Catharine Longenberger. There was no evidence showing that the other entry referred to by the judge was the work of the commissioners. The entry was not an assessment. The Act of April 11th 1799, 4 Dallas' Laws 508, requires a valuation: there was none here and as the presumption is that public officers do their duty, the entry could not have been the work of the assessor or commissioners.

But if the entry was erroneous, as assumed by the judge, a sale based on such entry would not be valid, for the owner would thus have his land sold without notice that the taxes were unpaid. The 5th and 7th sections of the Act of April 6th 1802, 3 Sm. L. 512, and the 1st section of the Act of March 30th 1811, 5 Id. 251, require an assessment of road taxes by the supervisors and a return to the county commissioners, one year before the sale, of which there is no evidence in the case. As to the sale of 1822, there was no sale-book given in evidence, showing the purchaser's bid, the amount of the taxes due, or when the sale was made, and the treasurer's deed could not be set up against the defendants. The treasurer's book is no evidence of an assessment.

By the Act of March 13th 1815, § 1, Purd. 992, pl. 18, 6 Sm. L. 299, the treasurer could not advertise unseated lands for sale until the expiration of every two years after the second Monday, which was the 10th of June 1816, and the first biennial period would not expire till the end of the 10th of June 1818, so that the sale could not be advertised until the 11th, and so in subsequent years, and therefore the advertisement upon the 10th of June 1822 was too early, and the treasurer's deed was void: Cromelein v. Brink, 5 Casey 522; Marks v. Russell, 4 Wright 372; Act of March 29th 1824, § 5, Purd. 992, pl. 19; 8 Sm. L. 291.

The deposition of Shrack should have been received. If the tax receipts purporting to have been executed by a public officer had been offered, they would have been admitted without proof of their execution as ancient papers, being produced from the proper custody: 1 Greenl. Ev. § 21, 142, 570; 1 Starkie on Ev. pp. 292, 521, 524; Bertie v. Beaumont, 2 Price 303; Bullen v. Michel, Id. 399; Wynne v. Tyrwhitt, 4 B. & Ald. 376; Dean of Ely v. Stewart, 2 Atk. 44; Manly v. Curtis, 1 Price 225; Law v. Mumma, 7 Wright 267. If the receipts would have been evidence, then, if they had been lost, their contents could have been proved. The extent and accuracy of the information of the witness were for the jury.

G. B. Nicholson and L. Hakes, for defendants in error.—The judge below properly decided upon an inspection of the books as to the assessments.

The defendants first allege that there was no assessment of taxes, and then take the ground that they had paid the taxes assessed for 1818 and 1819. They attempt to prove this by the deposition of Shrack. He does not recollect the name of any person who signed the receipts, nor their amount, nor that the persons signing had authority to do so, nor anything about them, except that he saw them in a bundle of title papers of Henry Bower. The admission of papers because ancient, presupposes that a document is produced, but the witness here did not pretend that he saw a paper purporting to be signed by Wilson, the treasurer, nor did he give any evidence of knowledge of the contents of any of the papers; his deposition was therefore properly rejected.

The opinion of the court was delivered, March 19th 1868, by THOMPSON, C. J.

It was said in Laird v. Heister, 12 Harris 452, that the authority of the treasurer to sell unseated lands for taxes depends upon facts; viz., that the land was unseated at the time of the assessment: that a tax appears to have been, and was in fact assessed upon it by the proper assessing officers, and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves an exemption from the penalties of the Acts of 1804 and 1815. The substance of this is to be found in many cases prior and subsequent to that decision.

The want of an assessment in fact, by some competent authority, is not such an irregularity as is cured by the Act of 1815: Stewart v. Shoenfelt, 13 S. & R. 360; Bratton v. Mitchell, 1 W. & S. 310; Miller v. Hale, 2 Casey 432. It is an essential to a valid sale, and the want of it is more than a mere irregularity.

Was there such an assessment shown by the plaintiffs below? The learned judge who tried the case ruled, as a matter of law, that there was, and this ruling is the foundation of one of the principal errors in the case; and, although not first in the order of presentation, will be first considered.

The document of which this ruling was predicated is before us, and we are not able by inspection to see on its face the evidence of a valid and legal assessment of the taxes of 1818 and 1819, for which the land in controversy was sold by the treasurer of Columbia county in 1820. The book containing the list in which the Catharine Longenberger tract is found charged with the county taxes for these years, does not in any part express that it is the unseated land book of the county, nor that it is a transcript of the unseated lands furnished by the commissioners to the treasurer for those years. No warrant to the treasurer to sell accompanies the list. The list is not identified by intrinsic evidence as the work of the commissioners or their clerk; neither the names nor the handwriting of either are shown upon it. It seems to us, therefore, that in the absence of all evidence of identity it was not competent for the court to declare it a list of unseated lands, showing a legal assessment of these taxes by the commissioners. But it is claimed on part of the plaintiffs that there was extrinsic evidence to identify the book as belonging to the commissioners' office, and as containing a list of unseated lands made out by their direction, with the taxes carried out by their authority, because produced from the commissioners' office. Even granting this, it would have been for the jury to consider and pass upon the testimony, especially as it was shown that the office in which it was found was also the treasurer's office. The custody of the book was equivocal. It was not even primâ facie therefore, the commissioners' book from this circumstance, so as to authorize the court in assuming it so to be. On the face of the book it bore unmistakable evidence that it was a treasurer's book, for it contained the treasurer's sale lists for the years 1820 and 1822. If it was the latter, and the extrinsic evidence was equally strong that it was, as that it was the former, and the intrinsic evidence being stronger, it was not to be assumed by the court as evidence of a valid assessment. The treasurer is not an assessing officer, nor is his book evidence of an assessment: Bratton v. Mitchell, 7 W. & S. 259. Standing thus, it required proof to establish it to be an unseated land book, or list, furnished by the commissioners, and the proof was for the jury. Indeed, it seems to me that its character as primâ facie a book of the commissioners' office, or list furnished the treasurer by them, is to be somewhat affected by the fact that no road taxes appear on it for the years 1818 and 1819. It can hardly be that no transcripts were returned by the supervisors. This could take place only on the supposition that no taxes had been laid for township purposes in those years, or that it had all been paid, which on unseated lands at that period, would have been very extraordinary.

We are, therefore, of opinion that the court erred in treating the book in question, under the circumstances, as sufficient evidence of an assessment of the taxes for 1818 and 1819, and in receiving the deed for the land in question without proof of an assessment. It was receivable only on an offer to follow it by proof of a legal assessment. That was not proposed. There was no error in receiving the testimony of the custody of the book, and from whom it was produced; but as that did not aid the book, the deed was not receivable without something more definite. This sustains the 1st assignment of error. These views also sustain the 5th, 6th, 7th, and 8th assignments of error, being answers of the court, on the hypothesis that the book in question was in itself primâ facie evidence of a valid or sufficient assessment of the taxes on the Catharine Longenberger, for the years 1818 and 1819; and we need no further elaborate our views on the question.

2. The learned judge received the treasurer's deed to Frick, under the sale in 1822, for the taxes of 1820 and 1821, without question as to the assessment, and held it indefeasible by the defendants, "under...