Hunter v. Albright ( 1843 )

The opinion of the Court was delivered by

Kennedy, J.

The counsel for the plaintiffs in error admit, that the title to the land in controversy, which originated under the Little warrant and survey, was better than, and superior to any that could be claimed under the Capp warrant and survey, but as it was not. the title that was taxed, nor yet the owner of it, but the land described in the assessment, without regard to the title under which it might be held or claimed, and as the first assessment of taxes and sale by order of the commissioners on account thereof passed the title, no matter in whom it was vested, to the purchaser at that sale, and as the defendants have become the assignees of the first purchasers, they must therefore be considered as entitled to hold the land. For this, the counsel of the defendants relies on the 4th section of the Act of 3d of April 1804, and the case of Strauch v. Shoemaker, (1 Watts & Serg. 166). The 4th section of the Act declares, that “ sales of unseated lands for taxes that are now due, or that may hereafter become due thereon, made agreeably to the directions of this Act, shall be in law and equity valid and effectual to all intents and purposes, to vest in the purchaser or purchasers of lands sold as aforesaid, all the estate and interest therein that the real owner or owners had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner thereof.” And in the case of Strauch v. Shoemaker, it was held by this court, that an unseated tract of land taxed in the name of one who had previously had an inceptive title to it, which, however, had ceased long before by an abandonment of it, or neglect on his part to perfect it, and sold by order of the commissioners of the county on account of the same, vested in the purchaser at such sale, the title of the real owner who held it by a purchase from the Commonwealth. There can be no doubt, that the Legislature intended by the 4th section of the Act of 1804, to make the sale valid and effectual, so as to devest the real owner of the land of his right to it, whether taxed in his name or that of any other person who had a claim to it then or at any former period, or in whose name the title existed then or previously.

But, whether it was intended, to devest the real owner of his right, if taxed and sold in the name of one who never had had a claim of any kind to the land, or whose name had never been connected with the' title to it in any.way, may possibly admit of some doubt: for the words of the section are “ although the land may not' have.been taxed or sold in the name of the real owner thereof.” The use of the word “ real” may raise the question, with some at least, whether it was not inserted for the purpose of making the section applicable to cases only, where the land happened to be taxéd or sold in the name of those who at the time or previously had a defective claim to it, or who had been the real owners, but had parted with .their right, or whose names, without" being the real owners, had been connected with the title as trustees ; for'otherwise,-why insert the word “real” at all, as the section would have embraced those who had never pretended a claim to the land; or whose name had never been connected with the title to it, more precisely, clearly and certainly without the insertion of it. And this would seem to receive countenance also from the 1st section of the same Act, which directs the deputy-surveyors, upon the application of the commissioners, to make out, on oath or affirmation, a correct return of all the lands surveyed within their respective counties, which returns shall include a list of the number of acres contained in each and every warrant, and the names and surnam.es of the original warrantees; and it is also made the duty of' the county commissioners, to provide and keep a suitable book or books', in which they shall cause such returns to be entered. And-again, by the 2d section, it is provided, that all unseated lands.shall be valued and assessed in the same manner as other property.; which may have’reference to its being assessed in the names of. the owners thereof, as' other property is assessed; and comes to the conclusion, that the sales of such lands for taxes shall not be void, if assessed in the names of the warrantees, though "they are not the real owners.

But, still, whatever may have been the intention of the Legislature on this point; it can admit of but little, if any doubt, that when the same land sold, is wholly covered by each of two different titles, or warrants ■ and surveys, one of wffiich is older than the other, and a’sale is made of it for taxes assessed in the ñame of the party connected with the junior title, it will pass the right under the elder; but"when the land embraced by the junior title' is only in part included under the elder warrant and survey, as in this instance, and the land embraced by each warrant and survey is assessed as two distinct tracts' for the same years as unseated, and sold at the same time to two different purchasers, it will scarcely be pretended that the purchaser of the tract assessed in the name of the person to whom- the elder warrant was granted, or the person claiming the land under it, will not be entitled to the land embraced within the. interference of the two surveys, in preference to the purchaser of the land assessed under the junior warrant. The seniority of title must, of necessity, be looked to in such case, and be made the test of right between the two purchasers. In the present case, however, the land surveyed under the junior warrant was assessed with taxes as unseated, and sold on account thereof, and purchased by the commissioners of the county, no one being willing to bid the amount of the taxes and costs for it, before there was an assessment made on the land sold under the elder warrant and survey; but during the time that the commissioners held the land embraced by the junior warrant and survey, they caused the whole of the land within the limits of the survey made under the elder warrant to be assessed as unseated, and sold on account of the taxes so assessed to the plaintiff below without any reservation or exception of any part thereof. That the commissioners had a right to restrict the limits of their purchase to that portion of the land embraced within the junior survey, which did not interfere with or lie within the lines of the elder survey, cannot, I think, be questioned on any tenable ground. And I think it still less questionable, if possible, that by taxing that part of the land within the lines of the junior survey, while they were the owners of it, which was included within the elder survey as part and parcel of the latter, they must be considered as thereby disclaiming all right which otherwise they might have had under their purchase, to that part of the land surveyed under the junior warrant, which had been previously surveyed under the elder warrant. It must be so considered, for otherwise they had no right to assess or tax it as their property, or more properly, that of the county; but as the property of the claimant or owner of the elder warrant and survey, they certainly had.

The necessary inference then is, that Albright by his purchase became the owner of the whole of the land included within the survey made in pursuance of the elder warrant in the name of Little. The commissioners of the county, it is true, after the purchase by Albright, sold the whole of the land embraced within the survey made under the junior warrant; but had they a right, after having acted as they did, to sell that part of it embraced by the elder warrant and survey? Before they sold it, they had assessed taxes on it as part of the tract held under the Little warrant, and received those taxes out of the money arising from the sale made of it to Albright. And afterwards, when they sold to John Thomas, under whom the plaintiffs in error claim, they, if they sold the part in dispute, of course, charged it again with ■ taxes, and got the same out of the purchase money received of Thomas; thus assessing and réceiving taxes on the same land twice. Such conduct on the part of an individual would most unquestionably be condemned as unjust, and no one can doubt that the county, which is a corporate person, and acts by its commissioners, who are its representatives, is bound by the same rules and principles that govern individuals in their dealings with each other. The commissioners, therefore, after having purchased the land assessed under the Capp warrant, and while they held it by virtue thereof, by assessing and causing that part of it which is in dispute here, to be sold to the defendant in error as part of the tract held under the Little warrant, must be considered as relinquishing all claim to it, and having no right to sell it afterwards to John Thomas. We, therefore, think that the court below was right in instructing the jury that the plaintiff was entitled to recover.

Judgment affirmed.