Steiner v. Coxe

Gibson, C. J. The exceptions to the deeds poll, that the proof of their execution was ex parte, have been properly abandoned. Affidavits of subscribing witnesses, preparatory to recording, have always been received as prima facie, whether the instrument were actually recorded or not. The exception to the plaintiff’s conveyance from the commissioners of Luzerne county is unfounded. The question involved — 25 — by it, is whether the statutes of 1815 and 1824 are susceptible of an interpretation to support titles to lands which have been redeemed after the five years, in pursuance of a practice which has prevailed to an almost unlimited extent; and if they are, it will be our duty to adopt it in order to prevent the general confusion, loss of property, and ruinous litigation, that would be produced by overturning some thousands of titles. To do so will not require us to strain the words of the legislature, or shake our own decisions. It will be necessary, however, to distinguish between redemption by permission and a right to redeem; for the one may be good independent of the other. County commissioners are directed to bid off lands which fail to fetch a price that will discharge the taxes and costs, not to re-sell them at a profit, but to prevent a loss. That is the primary, and ought to be the only intent. The principal object was payment of the tax: a subordinate one was to let the owner have his land again in a reasonable time and consistently with the first; and I would readily hold that the right of redemption survives the five years in the form of an equity, had the legislature treated the deed to the commissioners distinctly as a security. But the right to redeem is a thing of arbitrary creation; and as it exists only by force of the statutes, it cannot last in.,any form, beyond the prescribed period of its being. It is treated in them, not as an equity which survives, but as a right which expires with the years of grace. The county acquires a'title which is at first defeasible, but at last absolute; and with a strong inclination to do. so, I am unable to view it as I do the title of a mortgagee or trustee to sell, which gives him, after a sale on his mortgage or a conveyance, just so much of the proceeds as is necessary to discharge the encumbrance, and leaves the surplus to the debtor. That the legislature did not so view it, is proved by the absence of a direction to call for no more than the taxes and costs, and to leave the residue of the price in the hands of the purchaser, secured by a surplus bond, as in the case of a sale by the treasurer. A provision to that effect would have been a just and a salutary one; but it is not in the statute of 1815; and it is not our province to insert it. But.it is reasonable to suppose, the legislature would have inserted it, had the design been to treat the conveyance of the treasurer as a mortgage, and a sale on it. as a sale o» a mortgage. The legal effect of the omission of it is, that the comrr;«sioners hold the land for the county, after five years, as its absolute property. Its title is that of a creditor who has purchased on his own execution, or it may be fitly compared to the legal title of a vendor who has regained the possession by a verdict in eject — 26 — ment for purchase money, on terms of payment which.by our practice must be made ,at the day, to prevent the title of the vendor from becoming absolute. There is nothing in the terms of the enactment to put the consequence of the owner’s laches on the foot of a penalty or forfeiture; for the commissioners may sell without judgment or decree of foreclosure; and equity cannot relieve against the provisions of a statute, or enlarge a gratuity beyond the bounds set to it by the legislature. For this reason it is, that the former owner is not allowed to redeem, after two years, against a purchaser at treasurer’s sale, on tender 'of the taxes, costs, and rate per cent. The statute gives' him, as well as the owner of land sold at commissioners’ sale, all the ■ indulgence which the legislature supposed to be compatible with the public interest; and it is not in the power of equity to enlarge it. But though .the owner may not redeem by right, may he not do so by permission ? There certainly is nothing in either' of the acts, or in the object to be effected by them, which forbids it. The one declares it to be lawful for the commissioners, and the other authorizes them to sell ;- but there is no mandate to do so. The sale was provided as a means of collection; but the commissioners were not commanded to use it at the .first instant without regard to its necessity. The, end being attained without it, the county is indifferent to the destination of the land; and the commissioners are consequently not bound by any motive of policy to sacrifice the property of the debtor. It consists not with' the’justice or the, dignity of a free government to confiscate the estates of its citizens; or make them bear more than their respective proportions of the public burdens; or to speculate on their short-comings as sources of increased revenue. To prevent these statutes from doing more than was intended, there must be a constructive power, somewhere, to mitigate their severity when they would operate oppressively. Though the legislature might not see proper to enlarge the time of, redemption as a matter’of right, they might-choosé to have it done in particular cases, and under special circumstances, of which it would be. the province of the fiscal officers to judge. Executive officers have such implied powers as are necessary to carry their express powers into effect; and they necessarily have implied power to execute a statute according to its purpose. In Harris v. Monks, 2 Serg. & Rawle, 559, the court, acknowledging a difference between the practice of the land-office wffien it was regulated by the private Will of the proprietary, and its practice when regulated by public laws, held, that a survey adopted by the land-offices might be read in — 27 — evidence, though it had not been made by the proper deputy; and the same principle was held in Creek v. Moon, 7 Serg. & Rawle, 331, on the authority of the preceding case, and many others which were mentioned. From these, we are at liberty to conclude, that every thing-like discretion is not withheld from public agents whose action is prescribed by statute. The statutes before us have restricted the right of redemption to five years; but they have not excluded a- liberal' interpretation by those whose business it is to execute them according-'to their spirit instead of their letter, byre-straining them to their legitimate objects. As to the right to sell at the pleasure of the commissioners, it must be admitted that they are empowered ; but as to the necessity of selling, they are undoubtedly directory. It would impute an absurdity to suppose the legislature meant to require a sale in. order to raise a tax actually tendered at the treasury. To prevent a measure so wantonly oppressive, the commissioners must, in proper cases, be - allowed to exercise a dispensing power. I do not say that a private sale to a stranger would be within the bounds of their discretion, as it might be prostituted to purposes of private gain or personal favour; but a- private sale to the former owner, being essentially a redemption, is good to divest the title of the county, though not to alter the title of the owner. It is urged, in this instance, that the land was redeemed for' less than was due; whence an argument that the conveyance is void ; and had not the act of 1824 authorized the commissioner to sell for less, it would have been a formidable one; for their discretion-would scarce have extended to a remission of part of the public dues. But experience had shown that unpaid taxes wrere' frequently suffered to accumulate till the land could not be sold at all; and to sell for what it'would fetch, was found to be the best thing that could be done. With 'power to turn the' land to the best account, why shohld the commissioners be bound to sell it at public sale, even for less than could be had for it by redemption ? • If they can sell for less, they surely can compromise for-less ; especially as land is never publicly sold for its value, to say nothing of the costs and charges which must come out of the proceeds. They mecessarily have power to compromise for the protection of the interests they represent; and the debtor, acting in.go'od faith, is not responsible for their exercise of it. Having paid what Was. demanded, he is not to be prejudiced by their error in demanding too little ; and any compromise made in good faith, though founded on an erroneous estimate of the-value, revests the -title. Nothing but a corrupt agreement to defraud the revenue would avoid-the conveyance; — 28 — and without assuming the fact of collusion, the court would not reject it.- Being received, it inured to the party who owned the title, and brought back the contest to the question of right on original grounds. . The reading of opinions on the preceding part of the case was pertinaciously opposed; and as it was asserted that we had excluded opinions of counsel on another occasion, it is proper to state, for the sake of the future, the reasons for which we hold them to be admissible. Judicial opinion is entitled to respect beyond what it might claim for the intrinsic evidence of its accuracy'; but professional opinion, emanating from the highest or the humblest member of the bar, is to. be excluded, as evidence of the law. The judiciary would be degraded, if it were to try common law principles by certificates of counsel, as canon law principles are tried by certificates of bishops. But the reasons on which an opinion of counsel is rested may be entitled to a very different consideration. It sometimes contains arguments which, even where they fail to convince, afford valuable assistance to the judge in attaining his conclusion. Indeed a well reasoned opinion is neither more nor less than an argument, and not the worse for having been digested and reduced to writing before it is delivered at the bar. Nor is.it the less an argument that it is the actual opinion of the author of it. There are counsel who would not consciously risk their reputation by an unsound argument even in oral discussion. And there are others less scrupulous, who perhaps justly think it their duty to put their client’s case in its most favourable light, and leave the responsibility of the decision to those who are to make it. But though it would be criminal in a judge to surrender his own opinion to the influence of a name, it is plainly his duty to receive, with respect, the reasons delivered at the bar, from whatever source they may have been drawn. . The evidence to show the universality of redemption by permission was properly received; not, as was alleged, to prove a custom superior to the statutes, but to found an interpretation of them on the basis of the argument db inconvenienti. It was evidence to the court, not to the jury; and its reception, being matter of legal discretion, is not a subject of error. The remaining exceptions to evidence are plainly unfounded, or not pursued. But the exception to the charge is better founded. The plaintiff had shown a patent: and the court, holding it to be conclusive against the defendant as an intruder, withdrew every other part of the case from the jury. The abstract principle is undoubtedly a — 29 — sound one; for a plaintiff’s patent is itself evidence of title which it is necessary for the defendant to rebut. It is a conveyance from the primitive owner of the soil; and its recitals are evidence against one who claims- under him by a subsequent conveyance, or does not pretend to claim under him at all. The principle was stated in Taylor v. Dougherty, 1 Watts & Serg. 326, and many cases before it. But that the defendant was an intruder because he entered . under one who had purchased shanties put upon the land with the plaintiff’s consent, or because he had taken a void deed from the commissioners of the county after the commencement of the suit, is a position that cannot be maintained. It was a part of the case by the admissions of the parties, that Mr. Newbold, who is the actual defendant, claimed title under the plaintiff himself as á trustee for his use ; in support of which, he had shown that the tract in'question was allotted by Ruston, Church, Coxe, and .Company, to Mr. Church, as part of his share of the lands acquired by the concern ; and that the share of Mr. Church has been transmitted to_him by Mr. Church’s assignees. Whether the company .allotted the tract to Mr. Coxe by a new arrangement, or whether Mr. Anthony, "the agent of Mr. Church to patent his tracts in the agent’s name, had authority to convey the land in contest to Mr. Coxe, are questions of fact which have been unprofitably discussed before us, at the expense of much time, and which are remitted to the proper forum. We have to do with nothing but the isolated points raised by the assignment of error"; and for all besides, we refer the parties to the court below and a jury. Judgment reversed, and-a venire de novo awarded.