Everhart v. Nesbitt , 182 Pa. 500 ( 1897 )

Opinion by

Mr. Justice McCollum,

The land in suit was included in the deed from Paul Aten to Martin Crippen, dated September 26, 1873, and it was all of the Turner tract that the former could convey to the latter. In 1882, and in at least seven of the eight years previous thereto and directly following Aten’s conveyance to Crippen, the land was separately assessed by the proper officer in the unseated list. In the first three years of the period thus defined the .assessed valuation of it was #108, or #3.00 per acre; in the fifth and sixth years, #360, or #10.00 per acre; and in the seventh, eighth and ninth years, #540, or #15.00 per acre. In 1876 the land was sold by the county treasurer for taxes levied on one or more of these assessments, and A. D. Dean, as attorney for Martin Crippen, and on his request, became the purchaser of it. On August 8, 1881, Dean conveyed the same to Crippen’s administrator who, on July 18, 1882, paid the taxes upon it for the years 1879, 1880 and 1881. While the land in question was separately assessed and valued as above stated, the land assessecl to Martin Crippen was returned in the seated list as unimproved, and was valued in 1874, 1875 and 1876 at $5.00 per acre, in 1877 and 1878, at $2.40 per acre, and in 1879, 1880, 1881 and 1882, at $3.00 per acre. It is a reasonable inference from the above recited facts that the Turner tract was separately assessed in the unseated list from 1874 to 1882, inclusive, and that the taxes levied on the separate assessments of it made prior to 1882 were paid by Martin Crippen or his estate. It may also be reasonably inferred from them that the separate assessments of it in the lifetime of Martin Crippen were made with his knowledge and consent, and that like assessments of it subsequent thereto were recognized and approved by his administrator.

In 1884, that part of the Turner tract included in Aten’s deed to Crippen was sold by the county treasurer, for taxes levied on the separate assessmentof it in 1882, and purchased by James M. Everhart, the plaintiff in this suit. His claim of title to it is contested by the defendants on three grounds: (1) The assessments to Crippen from 1874 to 1882 included it and, as Crippen or his estate, prior to the sale under which the plaintiff claims, paid all the taxes levied on these assessments, the sale was unwarranted and void; (2) if there was a valid assessment and sale of the Turner tract the treasurer’s deed of it “ was so in-descriptive as to be inoperative,” and (3) the defendants were purchasers without notice or knowledge of any separate assessment of it.

The main support of the first ground of defense lies in the fact that the acreage mentioned in the assessments to Crippen corresponds substantially with the acreage mentioned in Aten’s deed to him. This was undoubtedly a circumstance to be taken into consideration by the jury in determining whether the Turner tract was included in the Crippen assessments, but it was not, in and by itself, conclusive that their claim of inclusion was well founded, nor fatal to the plaintiff’s contention. “If the quantity in the assessments was too great it does not follow that the disputed land was included nor, if not enough, that it was excluded. The quantity returned and assessed would be a fact to consider in ascertaining if the land in dispute was a part of the tract assessed: ” Kramer v. Goodlander, 98 Pa. 370. The separate assessments and valuations of the Turner tract and the payments by the Crippens without protest or complaint of the taxes levied thereon were inconsistent with the inclusion of it in the assessment of the tract valued at $3.00 per acre. These were matters proper for the consideration of the jury in determining whether the Turner tract was included in the Crippen assessments. Whether it was so included was a question for them to decide on the relevant and competent evidence in the case. This was the view taken of it by the court below, and this appears to have been in accord with the view of it entertained on the trial by the learned counsel for the defendants.

The defendants have not brought to our notice any decision of any court in Pennsylvania to support the se'cond ground of their defense. They have cited adjudications of the courts of other states which seem to give color to it, but these were undoubtedly made in accordance with the legislation regulating and governing tax sales within their respective jurisdictions. The numerous decisions of the courts of Pennsylvania relating to sales of unseated lands for taxes are certainly not in clear accord with the adjudications referred to, and while they may not cover the exact point in question their trend is obviously adverse to this branch of the defendants’ contention. In Miller v. Hale, 26 Pa. 432, as in this case, the treasurer’s deed to the plaintiff was attacked as defective. This court in its opinion said: “ The question, then, upon this deed was whether it described the land assessed, and that was properly submitted to the jury as a question of fact. That land by whatever name it was sold, was the debtor for the taxes imposed, and if it was sold and conveyed to the plaintiff in satisfaction of the assessment, lie acquired a good title. The name of the warrantee and of the township are circumstances of designation but not conclusive. The identity of the tract assessed must be fixed to the satisfaction of the jury — if by the warrantee and the township, very well — if by other circumstances of designation, equally well: 1 W. & S. 166; 4 Harris, 404. The evidence here tended to identify the tract conveyed with that assessed and sold; and having proved satisfactory to the jury, it must be so to us.” In our case the defendants frankly admitted in their printed argument that the defect in the deed was the result of the treasurer’s mistake in describing the land, and that it was within the power of the court to correct it, or to consider that as done which ought to have been done, but in connection witli this admission they characterized the plaintiff’s claim as without merit, and maintained that the treasurer’s error was therefore fatal to it. We cannot assent to this view of the treasurer’s mistake, because, aside from the admission above stated, the evidence in the case clearly and undisputedly identified the land described in the deed as the land assessed and sold and now in question.

The specifications of error which relate to rulings upon offers of evidence are not sustained. The evidence admitted under these rulings was relevant to the questions already discussed, and proper for the consideration of the jury. As to the claim of the defendants that they were purchasers without notice of a separate assessment and sale of the land in question, it is sufficient to say that the treasurer’s sale of it to Dean, as hereinbefore stated, was recited in Willard’s deed to them, in his deed from the sheriff and in the sheriff’s deed to Smith, and that, at the time of the sheriff’s sale to Willard, public notice of Ever-hart’s title was duly given.

The specifications of error are overruled.

Judgment affirmed.