Osmer v. Sheasley

• Decision Date: 06 January 1908
• Docket Number: 28
• Citation: 219 Pa. 390,68 A. 965
• Parties: Osmer v. Sheasley, Appellant
• Court: Pennsylvania Supreme Court

68 A. 965

219 Pa. 390

Osmer v. Sheasley, Appellant

No. 28

Supreme Court of Pennsylvania

January 6, 1908

Argued October 25, 1907

Appeal, No. 28, Oct. T., 1907, by defendants, from judgment of C.P. Venango Co., Nov. T., 1905, No. 25, on verdict for plaintiff in case of Archibald R. Osmer v. Charles H Sheasley et al. Affirmed.

Ejectment for land in Sandycreek township. Before CRISSWELL, P.J.

The facts are stated in the opinion of the Supreme Court.

The court gave binding instructions for plaintiff.

Verdict and judgment for plaintiff. Defendants appealed.

Error assigned was in giving binding instructions for plaintiff.

The assignments of error are overruled and the judgment is affirmed.

Samuel S. Mehard, with him John L. Nesbit and James S. Carmichael for appellants. -- Whatever else the plaintiff may be, he is not a purchaser, bona fide, for a valuable consideration without notice: Everhart v. Nesbitt, 182 Pa. 500; Rixstine's Estate, 3 Pa. Dist. Rep. 227; Swank v. Phillips, 113 Pa. 482; Anderson v. Brinser, 129 Pa. 376; Hottenstein v. Lerch, 104 Pa. 454; Leonard's Appeal, 94 Pa. 168; Jamison v. Dimock, 95 Pa. 52; Berryhill v. Kirchner, 96 Pa. 489; Thompson v. Christie, 138 Pa. 230.

An unrecorded deed with possession taken thereunder and maintained, is sufficient notice to subsequent purchasers: Krider v. Lafferty, 1 Whart. 302; Harris v. Bell, 10 S. & R. 39; Hymen v. Gatta, 33 Pa.Super. 438.

The purchaser of land at a treasurer's sale has an inchoate title the moment the property is knocked down to him, which becomes perfect with the payment of the purchase money: Kunes v. McCloskey, 115 Pa. 461; Morrison v. Wurtz, 7 Watts, 437; Robb v. Mann, 11 Pa. 300; Stoever v. Rice, 3 Whart. 21; Duff v. Wynkoop, 74 Pa. 300; Lee v. Newland, 164 Pa. 360; Moorhead v. Pearce, 2 Yeates, 456; Bellas v. McCarty, 10 Watts, 13.

Peter M. Speer and J. H. Osmer, with them N. F. Osmer, for appellee. -- Notice of an incumbrance, claim or right, void or unenforceable in law, is, of course, inoperative, and notice of an invalid conveyance cannot make it good as against a purchaser for value: Cuttle v. Brockway, 32 Pa. 45; Bugbee's Appeal, 110 Pa. 331.

It is the duty of the purchaser to see that his deed is acknowledged and registered, and of every purchaser of a tax title to examine the record of acknowledgments for himself: Lee v. Newland, 164 Pa. 360; Canole v. Allen, 28 Pa.Super. 244.

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

OPINION

MR. JUSTICE MESTREZAT:

This is an action of ejectment to recover the undivided one-half of a certain tract of land, containing about seventy acres, situate in Sandycreek township, Venango county.

On the trial of the cause the plaintiff showed a complete paper title from the commonwealth to himself. It appears that the land in dispute with other lands was patented to George H. Bissell and others on April 10, 1860. In 1874 the undivided one-half of the seventy acre tract became vested in George H. Bissell, and the other undivided one-half in James Bishop and James A. Williamson. Williamson and Bishop were adjudicated bankrupts on February 16, 1875, and, after the death or resignation of other assignees, J. Q. Aymer Williamson was appointed assignee. By deed dated May 6, 1905, the assignee conveyed the interest of his assignors, being the undivided one-half of the seventy acres, to Archibald R. Osmer, the plaintiff. This deed was recorded in the recorder's office of Venango county on May 17, 1905.

Having shown on the trial of the cause his paper title to the premises in dispute, a part of which title we have just referred to, the plaintiff rested. The defendants claim to own the whole of the seventy acres of land under a tax title. It is conceded that Bissell, Williamson and Bishop owned the seventy acres of land in 1874, the latter two owning the undivided one half and Bissell the other undivided one half thereof. It is claimed that the taxes on the land were not paid for the years 1892 and 1893; that it was returned by the collector and duly sold by the treasurer of the county for the unpaid taxes of those years to one Philip Engelskirger on June 12, 1894, and that by intermediate conveyances Engelskirger's title became vested in the defendants.

On the trial of the cause the defendants offered in evidence the deed from the treasurer to Engelskirger with an appended certificate of the prothonotary of the court that it was acknowledged in open court of common pleas of Venango county on August 30, 1894; and in connection therewith offered the petition of Engelskirger and the treasurer, presented to the court in 1905, praying for the entering or registering of the acknowledgment of the deed in the proper place in the records of treasurer's acknowledgments, and also the order of the court indorsed on the petition directing the registration of the acknowledgment as prayed for. The offer of the deed was also accompanied by an offer to show that it had been recorded in the recorder's office of Venango county on August 28, 1905. The plaintiff's counsel objected to the offer for the reasons, inter alia, that the offer of the certificate of the prothonotary of the acknowledgment of the deed is incompetent, immaterial and irrelevant; that according to the offer there was no record of the acknowledgment of the deed until after the title to the land had become vested in the plaintiff; and that the record as a subsequent record of the acknowledgment of the deed is immaterial and irrelevant and cannot affect the rights of the plaintiff in this case. Before the ruling on the offer the defendants' counsel said: "We further expect to show in this connection that the plaintiff has not only the knowledge that he decries for of the sale to Philip Engelskirger, but had received actual knowledge through the court of the claim of ownership by the defendants and the full extent of his ownership declared to him."

The court rejected the offer, stating its reasons as follows: "Where a deed of conveyance is consummated, binding between the parties, and the only thing lacking to give it effect as to all parties is notice, either actual or constructive, then of course notice is vital and important, but where the conveyance for any reason is void and not binding upon the parties, then notice of it to other parties is wholly immaterial, it is not binding upon any one. This alleged treasurer's sale appears to have been incomplete; no record of the acknowledgment of it was made in open court, such as is required. It is true that indorsed on the deed is a certificate of the fact that it was acknowledged in open court, but that is not a record, that is not a compliance with the act of assembly; the prothonotary either certified to an acknowledgment which never took place or he failed to make a record of an acknowledgment which did take place, and in view of this fact we are of the opinion that the objection to the offer should be sustained; the offer is overruled." This constitutes the first assignment of error.

The defendants then offered the treasurer's deed to be followed by proof of the identity of the land, of actual notice of the treasurer's sale by the plaintiff before his purchase from the assignee, proof that the defendants had been in actual and exclusive possession of the premises for more than five years prior to March 3, 1905; and of valuable improvements made by defendants on the premises.

The court, on objection by plaintiff, excluded the offer, saying: "From the evidence already offered it may be inferred and assumed that Mr. Osmer had full knowledge in reference to the land of the defendants; that he knew of their possession of the premises and that he bought upon the strength of the title as it appeared by the records; if he had gone to the records, as we may assume he did, he would have found no completed treasurer's sale of the land at the time of his purchase; having purchased with a knowledge of the records as they then existed, we should not and we could not properly change the records so far as to correct the same or perfect the title of the defendants; we are of the opinion that the offer should be overruled and the objection thereto sustained." This is the second assignment of error.

These rulings were fatal to the defendants' case, and the court directed a verdict for the plaintiff. The defendants claim that the plaintiff is not a bona fide purchaser for a valuable consideration, without notice, such as is protected in his title, under the circumstances of this case; and that the treasurer's deed, under the circumstances stated in the offer, will protect the purchaser or his assigns, against a subsequent purchaser from the party or his heirs, as whose land it was sold, with full actual notice. For these reasons the defendants claim that the court erred in directing a verdict for the plaintiff.

The sale of real estate for the payment of taxes is regulated by statute, which makes provision for the several steps necessary to be taken in passing a good title to the purchaser. He who claims real estate by virtue of a tax title must be able to point to a substantial compliance with all the essential requisites provided in the statute. Prior to the act of 1815, it was next to impossible to sustain a tax title if attacked in the courts. But that act came to the aid...