Dubois v. Hepburn , 9 L. Ed. 325 ( 1836 )

35 U.S. 1 (____) 10 Pet. 1

JOHN DUBOIS, LESSEE OF OLIVER S. WOLCOTT, PLAINTIFF IN ERROR,
v.
ANDREW D. HEPBURN.

Supreme Court of United States.

The case was argued at January term, 1835, by Mr. Tilghman and Mr. Anthony for the plaintiff, and by Mr. Jones for the defendant.

Mr. Justice BALDWIN delivered the opinion of the court.

The land in controversy was granted to Joseph Fearon by the commonwealth of Pennsylvania, by patent bearing date the 19th April, 1794, from whom the plaintiff deduced a regular chain of title to himself. The defendant claimed in virtue of a sale for taxes, on the 12th June, 1826, by the treasurer of Lycoming county; who, by his deed dated 15th July, 1826, conveyed the land to the defendant.

No question arose in the court below as to the original title of the plaintiff, or the regularity of the sale for taxes; the case turned upon the redemption of the land, pursuant to the fourth section of the law of Pennsylvania, passed 15th March, 1815, providing for the sale of lands for taxes. This section is as follows:

"If the owner or owners of land sold as aforesaid, shall make or cause to be made, within two years after such sale, an offer or legal tender of the amount of the taxes for which the said *lands [*18 were sold, and the costs, together with the additional sum of twenty-five per cent. on the same, to the county treasurer, who is hereby authorized and required to receive and receipt for the same, and to pay it over to the said purchaser on demand; and if it shall be refused by the said treasurer, or in case the owner or owners of lands so sold shall have paid the taxes due on them previously to the sale, then, and in either of these cases, said owner or owners shall be entitled to recover the same by a due course of law, but in no other case and on no other plea shall an action be sustained."

It appears by the record that before the 1st February, 1825, this land was assessed for county tax, ninety cents, and on the 22d April, 1825, with road tax, one dollar and twenty cents; it was sold in June, 1826, for five dollars and fifty-two cents, the amount of taxes and costs, and purchased by the defendant; that in May 1828, Robert Quay gave his son written directions to pay the county treasurer the taxes and costs for which the land was sold, together with the addition of twenty-five per cent.; whereupon the son offered to pay the same to the treasurer, who refused to accept it; on the ground that his father was not the owner and was not authorized to redeem the land: on a similar offer made to the defendant, he also refused for the same reason. No formal tender was made, or any specific sum offered; but the son had a sufficient sum with him to pay all that was by law necessary to pay, and offered to pay it.

At this time the title to the land was in this situation:

Joseph Fearon, the patentee, died in 1810, intestate and without issue, seized of the land in controversy, together with a number of other tracts of land in the same part of the country: he had two brothers, Abel and William, who died in his lifetime, leaving issue, to whom the estate of their uncle descended in equal shares.

The children of Abel Fearon were Robert, Joseph, Sarah, and Elizabeth; Sarah married Christopher Scarrow, and resided in England; Elizabeth married Jacob Fox, in England, in 1812; where they resided till 1827, when they removed to Philadelphia; where Robert and Joseph resided, and where Fox and wife continued to reside.

*19] *The children of William Fearon were John, William, Nancy, married to Samuel Brown living in Centre county, James, residing in Philadelphia, and Sarah, married to Robert Quay, residing in Lycoming county, in which the land in question is situated.

James Fearon was the administrator of his uncle Joseph, and paid some taxes on the unseated lands of which he died seized. It was understood that those heirs who, from their situation, could most conveniently do it, should look after the unseated lands in their neighbourhood; but no definite arrangement seems to have been made for the payment of the taxes due on the lands.

The lands remained undivided, or so far as appears, without any attempt at partition by the heirs till the 26th March, 1825; when Robert Quay and wife, Samuel Brown and wife, James and William Fearon, (who survived their brother John,) the children of William Fearon, executed a deed of partition to Joseph Fearon, Elizabeth Fearon, Christopher Scarrow and Sarah his wife, the children of Abel, the consideration of which is thus expressed: "For and in consideration of a quantity of land estimated in value equal to that hereinafter described, to be conveyed by a like release executed by the heirs and legal representatives of Abel Fearon, deceased, and for the sum of one dollar to them in hand paid," &c. "have remised, released, and for ever quit claimed, and by these presents do remise, release, and for ever quit claim unto Joseph Fearon," &c. "to have and to hold the said tracts of land, lots, and premises above described, unto the said Joseph," &c. "their heirs and assigns for ever," with covenant of special warranty. This deed included the land in question, and was recorded in Centre county, 26th May, 1825. Robert Fearon had previously died.

No special allotment was made by this deed to the children of Abel Fearon in severalty, nor do they appear to have ever conveyed to the children of William, or to have done any act accepting the partition made by the deed of March, 1825, either separately or jointly, as the representatives of their branch of the family, until Fox and wife removed from England to Philadelphia in 1827. On the 13th of November, 1827, a paper was executed, purporting to be an indenture of partition made between Joseph Fearon, Jacob Fox and wife, and Christopher *Scarrow and wife, reciting the deed of March, [*20 1825, and dividing among themselves, in severalty, the lands and lots conveyed to them by that deed; the tract in question was allotted to Fox and wife. This paper was signed by Joseph Fearon, Jacob Fox, and Elizabeth his wife, who acknowledged it the same day in due form, before a justice of the peace of the county of Philadelphia. It also purported to be executed by Scarrow and wife, by their attorney, Nathaniel Nunnelly, but was not acknowledged by him till the 4th of October, 1828; it was recorded in Lycoming county 25th October, 1828. That this deed was not, in fact, executed by Nunnelly in 1827, appears by his acknowledgment; which states it to have been done in virtue of a power of attorney executed by Scarrow and wife on the 5th June, 1828. That power appears to have been executed on the 25th June, 1828, constituting Nunnelly and Jacob Fox, the attorneys of Scarrow and wife, with power to Nunnelly alone, giving full authority over all their property held as one of the heirs of Joseph Fearon, the uncle. It took no notice of the deed of partition from the heirs of William Fearon to the heirs of Abel, but throughout was predicated on the fact of the estate of Joseph Fearon remaining undivided in the hands of the children of his two brothers as tenants in common. No construction can be given to it, by which to make it operate as an acceptance of the partition made by the deed of 1825, or any release of the right of Mrs. Scarrow to claim her undivided share of the whole estate of her uncle. There was, besides, a fatal objection to the power of attorney, as there was no separate examination of Mrs. Scarrow, or any acknowledgment by her; the proof of its execution was by the oath of a subscribing witness only. It was afterwards duly acknowledged on her separate examination, on the 8th of September, 1832.

On the same day, Scarrow and wife, by their deed, reciting the deeds of partition of 1825, made by the heirs of William Fearon, and of 13th November, 1827, by Joseph Fearon, and Fox and wife, Nunnelly their attorney, in October, 1828, confirmed them all according to their several allotments. This deed was regularly acknowledged in England on a separate examination, and recorded the 10th June, 1833.

*On the 16th April, 1830, Fox and wife conveyed the tract [*21 in question to Valentine, under whom the plaintiff claimed; which conveyance was ratified and confirmed by the deed of confirmation by Scarrow and wife, on the 8th September, 1832.

In March, 1827, James Fearon, the administrator of Joseph Fearon the uncle, was informed of the sale of several of the tracts of land belonging to the estate for taxes, of which the tract in question was one. In February, 1828, the treasurer of Lycoming county came to Philadelphia, where he met Jacob Fox, Nunnelly, and Joseph Fearon; he gave them a statement of the tracts which had been sold, and advised them to redeem them or they might be lost. Fox, at first, appeared disposed to redeem, but Nunnelly opposed it; Fox finally said he would run the risk, as they intended to start in a few days to see the lands; but he paid no attention to them, nor made any offer or attempt to redeem, till October, 1828, after the time of redemption had expired. Some negotiation took place between Fox and the defendant afterwards, concerning the land in question, which proved abortive. Fox continued to assert his claim to the land till he sold it to Valentine in 1830. Quay made the offer to redeem without any authority from Fox, but from a sense of duty to the heirs; who, he said, would reimburse him if it fell into their hands, and on the expectation that he would, at some time, own it.

It thus appears, that before the execution of the deed of partition, on the 26th March, 1825, Robert Quay was, in right of his wife, entitled to an undivided share of the land in question, and continued so entitled until his interest was divested by the legal effect of that deed. The question is, when it took effect as a severance of the joint interest which all the heirs of Joseph Fearon had in his estate; it could not be by the mere delivery of the deed, by the heirs of William Fearon, to any other than the heirs of Abel Fearon, and on an acceptance by them individually. A partition is inchoate till made by all parties, or till made by one and accepted by the others: there must be a deed of partition, a partition in pais, or such acceptance of a deed or partition, as would amount to an estoppel, before the estate can be held in severalty. In this case, the heirs of Abel Fearon do not appear to have been conusant of the deed of 1825, at the time *22] *it was made; and neither of them had done any act which could amount to an acceptance of the allotment therein made, until its ratification by Fox and Joseph Fearon, by their deed of 13th November, 1827, dividing among the heirs of Abel Fearon the several tracts and lots of land conveyed to them undivided. But this left the partition open, till Scarrow and wife would become parties to it; which was not till the signature of Nunnelly, their attorney, in October, 1828, in virtue of the power of attorney executed in June, 1828. As, however, this power was not acknowledged by Mrs. Scarrow, so as to give any authority to affect her real estate, her interest remained undivided till the deed of confirmation of 8th September, 1832, which ratified the partition of 1825, by the solemn act of partition in 1827, among the heirs of Abel, according to the previous allotment, both of which were specially recited and confirmed. This being, in law, equivalent to a deed from them to the heirs of William Fearon, of the residue of the estate of Joseph Fearon, consummated the partition by the act of all the parties in interest. The deed of 1825 then took effect, as a divestiture of the interest of Quay and wife in the land in question by relation to its date; but while the partition was in fieri, the estate remained undivided. This was in accordance with the terms of the deed of 1825: the consideration of which was a conveyance to be executed by the heirs of Abel Fearon, of a quantity of land to be estimated equal to what was thus conveyed by the heirs of William. The intention of the parties thus corresponding with the legal effect of their deeds, it is perfectly clear that, till the consummation of the partition in 1832, Quay and wife held an undivided interest in the land in question, as owners thereof, in common with the other heirs of Joseph Fearon; and the only remaining question is, whether he had a right to redeem from a sale for taxes in May, 1828.

A law authorizing the redemption of lands so sold, ought to receive a liberal and benign construction in favour of those whose estates will be otherwise divested, especially where the time allowed is short, an ample indemnity given to the purchaser, and a penalty is imposed on the owner. The purchaser suffers no loss; he buys with full knowledge that his title cannot be absolute for two years; if it is defeated by redemption, it reverts to *the lawful proprietors. [*23 It would, therefore, seem not to be necessary for the purposes of justice, or to effectuate the objects of the law, that the right to redeem should be narrowed down by a strict construction. In this case, we are abundantly satisfied that it comports with the words and spirit of the law, to consider any person who has any interest in lands sold for taxes, as the owner thereof for the purposes of redemption. Any right, which in law or equity amounts to an ownership in the land; any right of entry upon it to its possession, or enjoyment, or any part of it, which can be deemed an estate in it, makes the person the owner, so far as it is necessary to give him the right to redeem. The decision of this case does not make it necessary to go further than to determine that Quay, as a part owner, had a right to redeem; that he caused an offer to redeem to be made to the treasurer within two years, as well as to the defendant, both of whom refused to accept the redemption money. This brings the case within the provisions of the law; it does not require a payment or tender; an offer and refusal is made equivalent to a receipt of the money by the treasurer, and authorizes a recovery of the land by suit, as if no sale had been made.

In instructing the jury that Quay had no right to redeem, there was therefore error in the court below; the judgment must consequently be reversed, and a venire de novo awarded.

This cause came on to be heard on the transcript of the record from the district court of the United States for the western district of of Pennsylvania, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the judgment of the district court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court, with directions to that court to award a venire facias de novo.