Woodland Oil Company v. Shoup , 1884 Pa. LEXIS 291 ( 1884 )

Chief Justice Mercury

delivered tbe opinion of tbe court, October 27th, 1884.

The title acquired by a purchaser of lauds at sheriff’s sale, differs very much from one which a purchaser takes in unseated lands on a treasurer’s sale for the non-payment of taxes. In the former case, on the acknowledgment and delivery of the deed, the purchaser tabes a title as full and perfect as the defendant held the same, and it relates back to the day of purchase. In the latter, the title of the former owner is not fully divested until the expiration of two years after the sale. If the purchaser bids more than the amount of the taxes due on the land and costs, he must give to the treasurer a bond for such excess. The giving of this bond is indispensable to his acquisition of a valid title. The payment to the treasurer of the whole amount of the purchase money, is not an adequate equivalent: Connelly v. Nedro, 6 Watts 451; McDonald v. Maus, 8 Id. 364. If he gives, the bond he has an inceptive title only. At the expiration of two years it may ripen into an absolute title. Until he does give it, he has no title whatever: Woodland Oil Company’s Appeal, 1 Pennypacker 480. His title is not vested until he pays the taxes and costs and gives this bond for the surplus: Donnel v. Bellas, 10 Barr 341. It is true, he may give it at any time within the two years during which the land is subject to redemption: Burd’s Executors v. Patterson, 10 Harris 219. If, however, the bond be given on the execution of the deed, or later, the purchaser cannot thereafter, before the expiration of the two years, enter on the land and cut timber, or do any other act affecting the freehold. He would become a trespasser thereby : Shalemiller v. McCarty, 5 P. F. Smith 186. During that time, the owner, in the absence of actual possession, has such a constructive possession as to maintain trespass for injury to the freehold: Id.

It is true, the Act of 13th June, 1883, P. L. 89, gives the purchaser of unseated lands at a tax sale a writ of estrepment against the owner or person acting under him, to stay waste prior to a redemption of the land. This Act, however, does not give the purchaser a right' to commit waste. It merely restrains the owner for the time being.

The timber in controversy here was not only cut before the passage of this Act, but it was cut before the execution of the surplus bond. The fact that it was afterwards given did not make the title of the purchaser retroactive in the enjoyment of the product of the land: nor did the other facts that the owner failed to redeem and afterwards collected the bond, cause the title of the purchaser as against the owner, to relate back of the giving of the same.' As previous thereto he had no title, ex nihilo, nihil fit.

As the title which a purchaser takes at an administrator’s sale of land under order of the Orphans’ Court is so dissimilar in point of time, the ease of Robb v. Mann, 1 Jones 300, is not applicable to the present ease.

It follows the learned judge committed no error in granting the compulsory non-suit and in refusing to take it off.

Judgment affirmed.