McReynolds v. Longenberger ( 1868 )

The opinion of the court was delivered, by

Thompson, C. J.

It was said in Laird v. Heister, 12 Harris 452, that the authority of the treasurer to sell unseated lands for taxes depends upon facts; viz., that the land was unseated at the time of the assessment: that a tax appears to have been, and was in fact assessed upon it by the proper assessing officers, and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves an exemption from the penalties of the Acts of 1804 and 1815. The substance of this is to be found in many cases prior and subsequent to that decision.

The want of an assessment in fact, by some competent authority, is not such an irregularity as is cured by the Act of 1815: Stewart v. Shoenfelt, 18 S. & R. 360; Bratton v. Mitchell, 1 W. & S. 310; Miller v. Hale, 2 Casey 432. It is an essential to a valid sale, and the want of it is more than a mere irregularity.

Was there such an assessment shown by the plaintiffs below ? The learned judge who tried the case ruled, as a matter of law, that there was, and this ruling is the foundation of one of the principal errors in the case; and, although not first in the order of presentation, will be first considered.

The document of which this ruling was predicated is before us, and we are not able by inspection to see on its face ®e evidence of a valid and legal assessment of the taxes of 1818 and 1819, for which the land in controversy was sold by the treasurer of Columbia county in 1820. The book containing the list in which the Catharine Longenberger tract is found charged with the county taxes for these years, does not in any part express that it is the unseated land book of the county, nor that it is a transcript of the unseated lands furnished by the commissioners to the treasurer for those years. No warrant to the treasurer to sell accompanies the list. The list is not identified by intrinsic evidence as the work of the commissioners or their clerk; neither the names nor the handwriting of either are shown upon it. It seems to us, therefore, that in the absence of all evidence of identity it was not competent for the court to declare it a list of unseated lands, showing a legal assessment of these taxes by the commissioners. But it is claimed on part of the plaintiffs that there was extrinsic evidence to identify the book as belonging to the commissioners’ office, and as containing a list of unseated lands made out by their direction, with the taxes carried out by their authority, because produced from the commissioners’ office. Even granting this, it would have been for the jury to consider and pass upon the testimony, especially as it was shown that the office in which it was found was also the treasurer’s office. The custody of the book was equivocal. It was not even primá facie therefore, the commissioners’ book from this circumstance, so as to authorize the court in assuming it so to be. On the face of the book it bore unmistakable evidence that it was a treasurer’s book, for it contained the treasurer’s sale lists for the years 1820 and 1822. If it was the latter, and the extrinsic evidence was equally strong that it was, as that it was the former, and the intrinsic evidence being stronger, it was not to be assumed by the court as evidence of a valid assessment. The treasurer is not an assessing officer, nor is his book evidence of an assessment: Bratton v. Mitchell, 7 W. & S. 259. Standing thus, it required proof to establish it to be an unseated land book, or list, furnished by the commissioners, and the proof was for the jury. Indeed, it seems to me that its character as primá facie a book of the commissioners’ office, or list furnished the treasurer by them, is to be somewhat affected by the fact that no road taxes appear on it for the years 1818 and 1819. It can hardly be that no transcripts were returned by the supervisors. This could take place only on the supposition that no taxes had been laid for township purposes in those years, or that it had all been paid, which on unseated lands at that period, would have been very extraordinary.

We are, therefore, of opinion that the court erred in treating the book in question, under the circumstances, as sufficient, evidence of an assessment of the taxes for 1818 and 1819, and in receiving the deed for the land in question without proof of an assessment. It was receivable only on an offer to follow it by proof of a legal assessment. That was not proposed. There was no error in receiving the testimony of the custody of the book, and from whom it was produced; but as that did not aid the book, the deed was not receivable without, something more definite. This sustains the 1st assignment of error. These views also sustain the 5th, 6th, 7th, and 8th assignments of error, being answers of the court, on the hypothesis that the book in question was in itself primá facie evidence of a valid or sufficient assessment of the taxes on the Catharine Longenberger, for the years 1818 and 1819 ; and we need no further elaborate our views on the question.

2. The learned judge received the treasurer’s deed to Erick, under the sale in 1822, for the taxes of 1820 and 1821, without question as to the assessment, and held it indefeasible by the defendants, “under the evidence of recoveries in ejectment by the parties holding title, and the lapse of time.” It would have.been satisfactory to have had the views of the learned judge on these points more in extenso. The defendants were in possession under the original warrantees, and could only be dispossessed by force of a better title. If anything was predicated of the sale in 1820, as divesting that title and reducing the occupants to the position of mere intruders, we have seen that that sale had not that effect; itself being, as it appeared below, for want of requisites, without effect. The “lapse of time” spoken of, I suppose, has reference to the Act of 1804, and not to the law arising under an adverse-possession for twenty-one years. Nothing like the latter appears in the case. If the former was in the mind of the learned judge, then the inquiry follows: — Is the holder of the tax title, when plaintiff, entitled after five years to recover without showing requisites ? In view of the act and the decisions under it, we think not. The words of the statute illustrate this. They are: “ No 'action for the recovery of said land (land sold for taxes) shall lie, unless the same be- brought within five years after the sale thereof for taxes, as aforesaid.” ' No suit against the owner of the tax-title by the original owner, whether the latter be in or out of possession, will lie after five years. But the owner of the tax-title may bring suit against the original owner at any time — but then he must show requisites; that is, that there was an assessment of the taxes by some competent authority; that they were due over a year, and remained unpaid when the sale took place. It may not be inaptly said, that the statute operates to paralyze the activity of the original title as an assailant of the tax-title after five years. But when the tax-title becomes the assailant, such is not the case. It must then come backed by the authority of the law in the requisites necessary to be shown. This is the rule laid down in Bigler v. Karns, 4 W. & S. 137; Hole v. Ritten-house, 7 Harris 305; and Sherman v. Woodburn, 10 Barr 511. On these grounds we see no good reason for the view taken by the learned judge. Whether the sort of recoveries had under the Frick title ought to have any effect to vary the rule, we need not say conclusively at this time; but it strikes us, the principle is not varied by them. We do not see that the plaintiffs’ tenants were fraudulently induced to attorn to the defendants. If there was anything of that, it does not appear at this time.

This deed was not entitled, in our opinion, to be received and to have the effect allowed to it in the charge, as the case stood on the trial below. We have not omitted to notice the special objection, that the deed recites a sale for road taxes, when the book, the only evidence on the subject, showed that no road taxes were returned for the years 1820 and 1821. We have not been able to discover the erasure of this recital in the deed, so as to make it read a sale for county taxes. Even supposing the book evidence, which without extrinsic support we do not think it was for the reasons given, there was no assessment to support that sale, if we are right in regard to the first deed. We think, therefore, the 9th, 10th, 11th and 12th assignments of error are sustained; and this leads inevitably to the conclusion, that the 14th is also sustained, which is to the charge wherein the jury was instructed, “ that upon the whole case the plaintiffs are entitled to recover, and the verdict should be in their favor.”

3. We agree there was a change in the terms used in the Act of 1815, as to the time for commencing the sales of unseated lands by the Act of 29th March 1824. In the first of these acts, the sales were to commence at the expiration of every two years after the second Monday in June 1816; and in the latter act, the provision is to commence the sales on the second Monday of June every two years. No distinction in fact has ever been made, or attempted before, between these acts in practice, so far as our experience goes, and if there be any, we regard it as a mere irregularity, and cured by the Act of 1815. . This error is not sustained.

3. The 3d assignment of error remains to be noticed. It presents a point of some novelty and importance in cases of this description. It arises on the rejection of that portion of the deposition of Christian Shrack, Esq., one of the administrators of Dr. Henry Bowers, deceased, under whom the defendants claim title, and was offered to show the existence of treasurer’s receipts for the payment of the taxes for the years for which the land in controversy was sold, as claimed by the plaintiffs. The proposition was to prove ancient receipts — receipts more than thirty years old, accompanying the muniments of title to the land, and found with them by the witness, when he received the title-deeds, and which were retained by him until his house was accidentally burned in 1852, being a period of fourteen years. Was this competent ? The learned court thought not.

The witness in substance testified that in 1841 or 1842, about the time an order for the sale of this land was obtained in the Orphans’ Court of Columbia county, he was in that county, and while there was informed, or heard, that the Catharine Longenberger tract had been sold for taxes about the year 1820 ; that he caused the records of the commissioners’ office to be examined, but with what result he does not say, but gives us to understand that on account of this information, on his return to his residence, he and his co-administrator examined the papers, and found with the title-deeds, receipts for taxes purporting to be treasurer’s receipts for the taxes of the years 1816, 1817, 1818, 1819, 1820, 1821, 1822, 1823 and 1824 for the land. He was not able to state the name of the treasurer or the particulars of the receipts further than that they purported to have been the treasurer’s receipts for the taxes of those years. When they were burned, together with the title deeds, by the burning of the house of the witness, the receipts for 1818, 1819, 1820 and 1821 were over thirty years old. Would they have been evidence without preliminary proof of execution, had they been produced and offered as such in court ? That they would, I think is maintainable on abundant authority.

The rule on this subject is, that when instruments are more than thirty years old, and are unblemished by any alterations, and obtained from the proper custody, they are said to prove themselves, and the bare production thereof is sufficient, the subscribing witnesses, or all living witnesses of the transaction, being presumed to be dead; and this presumption, as far as this rule of evidence is concerned, is not affected by proof that there are witnesses living. But it is essential that it appear that the instrument or instruments come from such custody as to afford a reasonable presumption in favor of their genuineness, and be otherwise free from just grounds of suspicion: Greenl. on Ev. § 21; and for this the learned author cites numerous authorities. The rule is stated in Sharswood’s Starkie, p. 292*, thus: “ It is in general essential to the reception of ancient instruments of this kind (old surveys, terriers, reports on the temporal rights of clergymen returned into the registry of the bishop), and indeed of all others, whether they be of a public or private nature, such as public surveys, inquisitions or ancient deeds, that the document should be established by the only kind of proof of which it is in general capable, that is, by proof that it comes out of the proper repository.” The same rule, says the learned author, p. 524*, “applies to other old writings, such as receipts and letters,” and cites the case of Bear v. Ward, before Dallas, C. J., in 1821, and again before Lord Tenterden in 1823, when an old letter purporting to be signed by the head of the family, and brought from among the' title-deeds of the family, was admitted to be read.

In Bertie v. Beaumont, 2 Price 303 (1816), rector’s receipts for tithes from 1743 to 1775, were offered, and it was objected that proof should be given of the rector’s handwriting, and that the receipts did not come from the proper custody, i. e., from the party to whom given. The reply was, the age of the receipts and their evident connection with the parties and the subject-matter. Thompson, C. B., said, among other things, “ They are produced by defendant’s solicitor who lives at Buckland, and he says he received them from the defendant for the purpose of preparing the defence;” and “that there is a reasonable inference (because of the occupation of land at Buckland) that they (the defendants) were so connected as to make this the proper custody. Seasonable evidence of proper custody is all that can be required, and is sufficient.” Graham, B., concurring with the Chief Baron, said, “ I certainly do not recollect a case where the proof of handwriting of a rector has ever been dispensed with; but it must often be that receipts go back beyond the memory of living witnesses, and there is an instance, I think, of a receipt admitted by Lord Hardwicke, which was seventy-four years old; and if seventy-four years could make it evidence, a much less time might do so.” In Bullen v. Michel, 2 Price 399, ancient entries of the monks of an abbey, were admitted without proof of handwriting. So in Wynne v. Tyrwhitt, 4 B. & Ald. 376, the syllabus of the case is,' that entries in a steward’s book, when thirty years old, and coming from the proper custody, were held admissible without proving the handwriting of the steward. Semble, that the rule applies to all written documents coming from the proper custody. Per Curiam: It is founded on the antiquity of the instrument, and the great difficulty, nay impossibility, of proving the handwriting 'of the party, after such a lapse of time.” Rex v. Ryton, 5 Term 259, “ a certificate from a chapelry, acknowledging the father of a pauper to be regularly settled in the chapelry, admitted.” Per Curiam: “ It was sufficient for the respondent barely to produce the certificate to the sessions without proving any account-of it.” In The Dean of Ely v. Stewart, 2 Atkins 44, it was declared by Lord Hardwick, that “ when the admittance of a copyholder is of thirty years’ standing, a copy of such admittance may be received, and it is not necessary it should be signed by the steward of the court.”

It will be seen by these citations, that papers, other than deeds, accompanied by possession, prove themselves after thirty years, provided they are derived from proper custody. Receipts, Tetters and certificates of church registers and the like,- it is shown, prove themselves. The custody raises the presumption, after this lapse of time, of their validity, and stands for primary proof; the law presuming all witnesses to be dead. This is the rule in the cases referred to, and the principle is recognised by this court in Lau v. Mumma, 7 Wright 267. Receipts of a private nature exclusively, may not be within the rule — this we do not decide, however — but receipts from a public officer, like a county treasurer, have always, unlike receipts of third parties, been provable without calling the officers. This is because of his public official character; therefore, I do not think it an extension of the principle of the cases, to hold the doctrine applicable to treasurer’s receipts for taxes. It is an eminently conservative principle, for proof by living witnesses of a treasurer’s handwi'iting cannot always exist, and there must be some way to supply it, or very great wrongs in many cases might be the consequence. Here, if the witness is accurate, these receipts were at the time of their destruction, within the category of ancient documents, purporting to be over thirty years old, and evidence per se. They were in the possession of the proper custodian of the papers, derived from the owner of the estate, who, while in his custody, offered the land in pursuance of an order of the Orphans’ Court, for sale, on the faith of them. When the witness was called to testify, had the receipts been present, they would have then been long past thirty years old, and would, under the authority of the cases cited, have spoken for themselves; no legal presumption of the existence of any writings to prove anything about them existing. That presumption arises at thirty years; and it is on this ground that papers prove themselves. Was it not therefore competent to prove the destruction of what was at the time of the destruction testimony per se, and supply contents by secondary evidence ? If the witness had known the treasurer’s handwriting, the receipts being destroyed, it does not admit of a doubt but that he might have testified to the contents. This on the ground of supplying the best evidence the nature of the case admits of. The primary evidence having been put out of the power of the party, secondary becomes primary, and to conserve the ends of justice, the law under such circumstances permits it to be given. Testimony by lapse of time being complete in itself when destroyed, I see not why secondary evidence, first proving its destruction, may not on the same principle be given, as well as such evidence in regard to any other description of testimony. One species of evidence of writings is made so by antiquity, living witnesses being presumed to be dead, while another is capable only of being evidence by witnesses; being destroyed it is agreed it may be supplied. It seems to me no just distinction should exist between the admission of the evidence in either case. The necessity for the rule is the same in both if the loss be proved. Without further enlarging, we think the rejected deposition, or at least that portion included in the bill of exceptions, should have been admitted for whatever it was worth towards establishing the point for which it was offered. Mere defect of memory on the part of the witness, was not a reason for rejecting the testimony. This was a matter for the jury to consider when weighing its credibility. It would be thought remarkable, if a witness should speak definitely about the precise contents of the receipts, after such a lapse of time since their destruction. That they purported to be treasurer’s receipts for the taxes of 1818-19, was the great point of inquiry; the minutiae of contents operated on the question of the accuracy of the witness; and that was for the jury.

Judgment reversed, and venire de novo awarded.