Van Loon v. Engle

• Decision Date: 07 October 1895
• Docket Number: 107
• Citation: Van Loon v. Engle, 171 Pa. 157, 33 A. 77 (Pa. 1895)
• Parties: Ziba Van Loon, Appellant, v. Louis C. Engle and Maria Engle, his Wife, in right of said Wife
• Court: Pennsylvania Supreme Court

33 A. 77

171 Pa. 157

Ziba Van Loon, Appellant, v. Louis C. Engle and Maria Engle, his Wife, in right of said Wife

No. 107

Supreme Court of Pennsylvania

October 7, 1895

Argued April 16, 1895

Appeal, No. 107 Jan. T., 1895, by plaintiff, from judgment of C.P. Luzerne Co., Feb. T., 1892, No. 76, on verdict for defendants. Affirmed.

Ejectment for a vacant lot of land in the Second ward of the city of Wilkes-Barre. Before WOODWARD, J.

The plaintiff in this case relied upon a tax title, and the sole contention was whether the description in the proceedings leading up to the sale was sufficient to identify the land. At the trial plaintiff offered the return of property for the year 1884, of J. W. Gilchrist, receiver of taxes for the city of Wilkes-Barre, signed J. W. Gilchrist, collector, 31st of December, 1884, and indorsed "Filed December 31st 1884," page 3, "McGurk, J.; street, Washington ward, 2; valuation, 62.; county, 37.; bridge, .03; county sinking fund, .06; state, 1.05; city sinking fund, .13 school, .81; building, 43; poor, 31." The certificate reads as follows: "I, J. W. Gilchrist, collector of Wilkes-Barre, Luzerne county, Pa., do hereby certify that the foregoing taxes were assessed on the dates above stated, on the real estate of the above named persons, for the year 188 and the owners have neglected and refused to pay the same."

Defendants objected for the reason that it appeared from the return that it was for the year "188 ." Secondly, the return was under the act of 1881, and was not in accordance with the provisions of that act.

Plaintiff offered to show by the return that the certificate at the end of the return was a printed form; that in that printed form there were printed the figures "188 " for the year and that nothing was written after the figures 188.

The Court: On the 21st of February, 1880, J. McGurk bought of Messrs. Hand and Chase a town lot of land in the Second ward of the city of Wilkes-Barre, known as lot No. 66, on a map or plot referred to in the contract. The return of assessment of 1884, now offered in evidence and objected to, contains among other things the following: "McGurk, J., Washington, Ward 2." For the purposes of the present ruling it is stated and admitted that there is no other assessment of McGurk, J., shown by the return in question. This return now offered in evidence is objected to upon two grounds by the counsel for the defendants -- first, because the certificate attached thereto is not properly dated -- that the year for which the assessment in question was returned does not appear except by evidence furnished aliunde. Secondly, that the assessment and the advertisement of the property do not sufficiently describe the premises assessed and subsequently sold. We have considered both of these questions, and now say that under the act of 1881, entitled An act to make taxes assessed upon real estate the first lien and to provide for the collection of such taxes, etc., this return of assessment would be insufficient for the reason that that act requires the return shall contain a statement of the amount of each kind of tax returned, the names of the parties assessed with the same, the year when such taxes were assessed, a sufficient description by boundaries, or otherwise, of each separate lot or tract, and about the quantity of the same, etc. The description in this case clearly would not fulfill the requirements of the act of 1881, and would afford no basis for filing a lien upon property nor for an advertisement and sale thereof. Therefore in our judgment under the act of 1881, this evidence could not be admitted. It is objected, however, that this act is unconstitutional. It has been so decided by the two eminent judges of the Dauphin county district, as well as by the equally eminent Judge BARKER of the Cambria district of this state. The Supreme Court of the state have not yet expressed their opinion on the subject, and we do not express any opinion either. But we come now to a consideration of this offer, independently, entirely, of the act of 1881. Prior to that act, sales of seated lands for taxes were to be conducted as sales for taxes of unseated lands in Pennsylvania -- under the act of 1815 and other acts. We therefore naturally look to the requirements of the statute for the sale of unseated lands; and the law on this subject was that these lands should be advertised in their warrantee name, and that the number of acres either of the tract itself, or the number of acres of the tract to be sold as unseated, were to be stated in the advertisements. Now, in our opinion, in the present case, there is no such description of the premises in question as would be required in an advertisement for the sale of unseated lands -- no such description as would enable a purchaser to know what he was buying -- bidding on -- at sale; nor is the evidence such as to justify the theory that the ownership of the defendant was so notorious and long continued as to amount to notice -- identification of the property.

For these reasons, we do not think this evidence is competent -- either in view of the act of 1881, or considered independently of that act. The objection is therefore sustained, the evidence excluded, exception by the plaintiff noted and bill sealed. [1]

Plaintiff offered in evidence certified list of seated lands, 1881, commissioners to treasurer of Luzerne county, on page 150, Wilkes-Barre city, Second ward, under the title Kind of Property, "Lot;" under the title Valuation, "62.;" under the title Owner or the Reputed Owner, "McGurk, J.;" under the title Description of Property, Adjoining Owners, etc., "Washington Street;" under the title Year, "1884;" under the title Bridge ".03" . . . . Sales book, folio 127: "Sold to Commissioners, 1886." On page 181, the following certificate: "Luzerne County ss. We, the Commissioners of the County of Luzerne do hereby certify the foregoing to be a true and correct transcript of the County, School, Poor, Borough and special taxes on the seated lands and lots in the said county, for the years 1883 and 1884, as taken and made up from the return of the collectors of the various townships, boroughs and cities for the said years. Witness our hands at said Commissioners' office this 3d day of June, 1885, etc." Objected to on the ground that the collector's return on which this is founded, being defective, this certified list of the commissioners is not admissible.

The Court: We will take the testimony as a record.

Defendants' counsel except, and bill is sealed.

Plaintiff's counsel offered in evidence treasurer's sale of seated lands entitled 1884 to 1889, Luzerne county -- page 127. Wilkes-Barre city, Second ward, 1886, sale, under the title Number of Acres, "Lot;" under the title Warrantee Name, "McGurk, J.;" under the title Year, "1884," under the title Bridge ".03," and various other taxes. June 21, 1886, sold to commissioners.

This offer was objected to for the reason that it was also one of the links in the chain of title in the tax sale; that it did not conform to the collector's return nor to the certificate of the commissioners to the treasurer, and that in order to create a good tax title, these must all conform with each other.

Objection overruled, exception noted, and bill sealed for defendants.

Plaintiff offered in evidence seated lands bought by commissioners' sales 1891, Luzerne county, 1880-18 , pages 140 and 141. Wilkes-Barre, Second ward, 1886, "McGurk, J.," 2.10, $4; November 17, 1891, resold to Ziba Van Loon for $3.15.

Defendants objected to the last offer, for the same reason as before.

The Court: We will take it down.

12th of August, 1886, deed R. A. Whiteman, treasurer of Luzerne county, to commissioners of Luzerne county, for one lot of land situated in the Second ward of Wilkes-Barre city, county of Luzerne, assessed to J. McGurk, consideration $6.01, sold for unpaid taxes, acknowledged 18th August, 1886.

Objected to for the same reason as before.

Same ruling.

15th of January, 1892, commissioners of Luzerne county to Ziba Van Loon, lot in the Second ward of Wilkes-Barre city, assessed in the name of J. McGurk, which was duly bid off by the commissioners, etc.

Same objection.

Same ruling.

Plaintiff offered in evidence the entire assessment of Wilkes-Barre city, Second ward, 1884, for the purpose of showing that in that year there was no other property assessed to McGurk, J., and no other assessment of any kind to McGurk, J., in that year.

Plaintiff rests.

Defendants' counsel moved the court to strike out all evidence relating to the admission of the certified list of seated lands, introduced by the plaintiff after the exclusion of the collectors' return, also the treasurer's sales book of seated lands, by which it was offered to show a purchase of this lot by the commissioners from the treasurer, also the sale by the commissioners to Van Loon; also the deeds from the treasurer to the commissioners and from the commissioners to the plaintiff in this case.

The Court: This evidence was admitted by the court as a matter of record, in order to exhibit the whole case, the court saying at the time that they would control the effect of it when the evidence was all submitted. On fuller consideration we do not regard it as competent to show title in the plaintiff, because of the reasons given in our ruling on the admissibility of the return of property by the receiver of taxes, etc. The motion to strike out is now allowed, and this evidence is stricken from the record.

Exception noted by the plaintiff, and bill sealed. [2]

The court charged in part as follows:

This is an action of ejectment brought by Ziba Van Loon against Louis C. Engle and Maria Engle his wife to recover...