Broughton v. Journeay

The opinion of the court was delivered, by

Woodward, C. J.

— Seated lands may be sold for taxes, when personal property is not found upon them, in the same manner as unseated lands ; but the owner shall have the right to redeem at any time within a year after receiving “ actual notice from the treasurer of the county where such lands lie that they have been soldand the mode of redemption is by “ paying the amount of taxes and costs due thereon, with interest from the time when said taxes fall dueAct of 29th April 1844, § 41, Purd. 954.

As this is a summary mode of divesting an owner’s title, and there is no curative provision for laches as in the Act of 1815, relating to sales of unseated lands, it is obviously necessary that the notice of the sale which the treasurer is required to give should be precise and full. In Arthurs v. Smathers, 2 Wright 43, it was said that unofficial and unauthorized notice is no notice within the statute. It must, then, be an official act by the treasurer, the evidence whereof should remain in his office. I do not say it must be written notice, though, to exclude doubt and such a conflict of evidence as we have upon this record, it would be well if written notice were required. But whether written or oral, the notice should be distinct and full, and the evidence of its service, which becomes a muniment of title, should be preserved in the archives of the treasurer’s office.

Now what have we here in the nature of notice ? The tract of land in question, having been assessed with certain taxes in the seated list, and with other taxes in the unseated, in the name of Gr. B. Webb, was sold on the 11th June 1860 by the treasurer to A. S. Davis, and a deed made therefor. On the same day, it was sold by the treasurer to W. R. Scott for taxes assessed against it in the name of Henry Keys, who, like Webb, had been a former owner.

In 1857 Keys had mortgaged the tract to A. Journeay & Co., and in 1860 this mortgage was closed, and A. B. Richmond bid in the land for Journeay & Co., a New York firm, and in 1862 conveyed it to Albert Journeay, the plaintiff below and defendant in error. He brought this ejectment against the owners of the Davis title, and the only proof of notice of the tax sale was by Jesse Smith, the treasurer for 1862-3, who swore that Journeay called at his office in May, June, or July, 1863, to see about this land. “ I hunted up the record,” says the witness, “ and showed-him where it had been sold, during Mr. Smull’s term for taxes-, to Mr. Davis, the defendant in this suit.”

A. B. Richmond, on the other hand, swore that he went with Journeay to the treasurer’s office on that occasion and found the deed to Scott, and found no other. “ Smith told Journeay in my presence that if we satisfied Scott, that was all there was against the land; Smith said nothing about the Davis sale; I am positively certain of this.” Journeay subsequently obtained a deed from Scott for his title.

The Davis title depended essentially upon this fact of notice, and this contradictory evidence was all the proof that was submitted in support of it. We are clearly of opinion that it was insufficient. Journeay going to the office to make investigations for himself, even if he discovered the sale to Davis, was not in receipt of that formal and official notice which it was the treasurer’s duty to communicate to him. And what proof of an official act can parol testimony that is so contradicted be regarded ? When titles depend upon official acts of the first importance, better proof must be provided than this record furnishes, and the public officer who disables a party from furnishing better comes far short of his duty.

But even if we were to treat that inspection of the treasurer’s books by Journeay as the statutory notice required, the land was redeemed in the summer of 1863. Judge Church swore that betweén the 10th and 15th of July 1863 he tendered to Mr. Davis $41 in legal-tender notes, the amount of tax, costs, and interest. This was the same summer as the notice that Smith proves, and was a valid redemption of the tract, if the tender to Davis, the purchaser, iitstead of the treasurer, was sufficient. The statute does not prescribe to whom the redemption-money shall be paid. Prom analogy to the redemption of unseated lands, and for the sake of official records, we would suppose the treasurer would be the proper party to be paid; but it does not lie in Davis’s mouth to complain that the money was tendered to himself. To extricate the title from all doubt, it was Journeay’s interest to pay the money to the treasurer, that his books might show the redemption, and this is our reason for intimating that that was the proper place of payment; but we hold that Davis has no right to complain of the irregularity, and that, as to him, it was a good redemption, which would have defeated his title even if the statutory notice had been given.

The judgment is affirmed.