Marsh v. Nelson , 1882 Pa. LEXIS 218 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, October 2d 1882.

By .the Act of April 29th 1844, P. L. 501, “ all real estate within this commonwealth on which personal property cannot-be found sufficient to pay the taxes assessed thereon, and when the owner or owners thereof neglect or refuse to pay the said taxes, the collectors of the townships in which said lands lie shall return the same to the commissioners of the several counties; and the said lands shall be sold as unseated lands are now sold, in satisfaction of the taxes due by the said owner or owners.” But such lands shall not be sold until the owners shall have neglected to pay the said taxes for the space of two years; and the owners shall have the right to redeem them within one year after receiving actual notice, from the treasurer of the county, that they have been sold. No such sale divests the title of the original owner where he shows that there was sufficient personal property on the real estate sold to pay all the taxes assessed thereon, which might have been seized by the collector if .he had used due diligence.

The act of February 16th 1867, P. L. 214, provides, 1. “ That all lands in Potter, Warren, Bradford and Sullivan counties, which are assessed with any taxes that are returned to the. county commissioners, upon the oath of the tax collector that the taxes are unpaid, and that no personal property could be found upon said land out of which said taxes could be made, the oath of said collector shall be deemed conclusive of that fact, and the county treasurer shall be required to advertise ansell all such lands, in the same manner, and under the same regulations, as unseated lands are now sold for taxes.” And, 2. “ All lands heretofore sold for taxes, at treasurer’s sale,, which shall remain unredeemed for two years from the date of this act shall be deemed taken and held to have been returned, agreeably to the provisions of the first section of this act.” To understand this local statute, it is well to keep in view the general statute. Both sections refer to an existing or past state of things, to lands which are assessed and returned, or heretofore sold, and contain no direction for future returns or sales, except the sale of lands wdfich are returned upon the said oath of the collector. If returned without said oath they are not within the Act of 1867; and prior, the return was not required to be under oath. The direction for sale, though contained in more verbiage, means no more than the Act of 1844, which directs that “ the said lands shall be sold as unseated lands are-now sold.” No provision is made by the Act of 1867 for the redemption of lands sold after its passage; hence, there is no change upon this point. If it was the design to do away with the distinction between seated and unseated lands it is likely that the right of redemption would have been placed upon the same footing.

Being local, and prejudicial to the owners of lands, the Act of 1867 -should receive a strict construction. Though it may be called remedial, it is exceptional, and deprives the citizens of a few counties of rights enjoyed by citizens of other parts of-the state. Its words, taken in their usual sense, have no relation to future assessments and returns; they relate only to those already made. It seems akin to legislation which validates acknowledgments of deeds, or defective judicial sales, the object being to vest in the purchasers of all seated lands in said counties, heretofore sold, after the lapse of two years, a valid title, notwithstanding the purchasers under the Act of 1844 would have no title at all. The pith is the provision that the return upon the oath of the collector that no personal property could be found upon the land out of which said taxes could be made, shall be conclusive of that fact; and the sting upon the unwary owner who has had no notice, as prescribed by the Act of 1844, is, that after two years from the date of the act, the title to his land will be vested in another person. As respects sales not made, but which may be made on then existing returns, the owner would be entitled to actual notice from the treasurer, and the danger to his 'rights would not be so great, although he would have to redeem, because he could not prove «the truth against the false return.

No question now arises whether the legislature had power to enact that after two years a bad title should be good, or to legalize future sales upon false returns where, upon the real facts at the date of such returns, the lands were not subject to sale. But the real question is, whether the Act of 1867 is prospective as to assessments and returns. We see nothing in the general statute or the local which calls for departure from the ordinary meaning of the language of the local statute in order to give it a prospective intendment. The words u are assessed ” and “ are returned ” are consistent with the supposition of the law being always speaking, and if there were nothing else to consider would denote a continuing present. But the Act of 1867 must be construed with the Act of 1844. As already noted, this act does not require the collector to make the return upon oath, and consequently the prior act is not supplied as to future returns. Possibly some returns had been made upon oath; but if not, the second section would be quite as effective. The provisions relating to then existing returns and sales are clearly expressed. Only in the attempt to give the act prospective application does it-become defective and obscure. We are of opinion that it. does not operate to repeal the prior statute, except in those things which are plainly conflicting, and that the court below was right in all rulings resting upon the Act of 1844.

It was admitted that A. II. Nelson owned two pieces of land of thirty acres each in Tract No. 89. If one was unseated, that fact ought to have been stated then; everything in the case pointed to both as seated; the court so understood; and here it is too late to make the objection for the first time that there is no evidence that both were seated. One of the two lots was sold as part of number 88, t.o Watson. A mistake in the number will not vitiate the sale if the description .otherwise is such that the land.can be identified. Evidence aliunde is admissible for the purpose of identification. But when the description is hliko applicable to either of two lots, it is error tq submit the question of identity to the jury without evidence: Hess v. Herrington, 73 Pa. St. 438. ihe court rightly charged that there was no evidence to show that the lot sold was the one in controversy. Nor was there error in the ruling upon the offer set out in the tenth assignment. The part rejected was as applicable to one lot as the other.

Upon evidence properly submitted, under the instructions, the jury found that at the time the defendant took the mortgage, the plaintiff held “ open, notorious, visible and exclusive possession ” of the land which he had taken under the lease. Such possession was sufficient notice, and the mortgage was taken subject to the rights of the lessee. A tenant in actual possession under a valid lease may hold his term against a subsequent purchaser or mortgagee, though he had not paid the rent at the time the subsequent right was granted.

Judgment affirmed.