Shearer v. Woodburn

Burnside, J. It has seldom fallen to our lot to consider two such shabby titles as this case presents. The warrant and survey of Archibald Gardner (for the land in controversy) had been sold for taxes by Treasurer Boden, in January, 1810, to Andrew Mateer, who, for aught that appears, never looked after his purchase, and never paid any taxes during his life; nor did his heirs after him. These heirs of Mateer were hunted up by Shearer, in 1846, and their title purchased. But for a period of thirty-five years the purchase of Mateer was never inquired after. The reason is obvious. The sale of unseated land for taxes was made prior to 1815; and it is well known that a good title could not be established under the sales for taxes prior to the act of 1815. An exact and punctual adherence to the laws could alone divest the title on a sale for non-payment of taxes: 2 Yeates, 100, 312; 1 Wash. C. C. R. 333. In all these cases, and in many others, the purchaser was held to strict proof of everything directed by the letter of the law to be done. This was impracticable; and the title of the original owner irresistibly prevailed: 6 Barr, 211. In this case (Dikeman v. Parrish), it is shown that this rule was relaxed as against a mere intruder who was a trespasser, and entered without right. Against such a person the law would seem to have clothed a purchaser, where his abandonment was not obvious, with constructive possession. [513] Here the abandonment was beyond a period required by the statute of limitations; and there was no error in the court’s rejecting this deed. The plaintiff, conscious that he could not make title and hold the land under the sale for taxes to Mateer in 1810, had it returned as unseated in 1843, 1844, and 1845, and had it again sold on the 8th June, 1846, by Ilackett, the treasurer, when he purchased it for the sum of $5.75. The plaintiff then rested. The defendant then showed the treasurer’s receipt for the redemption-money. It was contended that Woodburn had no right to redeem. It is true that in McBride v. Hoey, 2 W. 439, it was ruled that unseated land sold for taxes can only be redeemed by the true owner, or one authorized by him. There the person redeeming had no connexion with the land; was a stranger to the premises. It was held in Patterson v. Brindle, 9 W. 98, that a power to take care of land carries with it a power to pay the assessed taxes, or to redeem if it be sold as unseated by the treasurer. The law on this subject was more fully considered by the Chief Justice in Orr v. Cuningham, 4 W. & S. 294, where it was held that the act of Assembly declares that the right to redeem is in the owner, to guard the purchaser from the officiousness of strangers. The decisions have gone on the letter of the statute, that a tender by one Avho has not an interest in the land, may be rejected. Yet the laAV alloAVS, and the case goes far to establish, that an antagonist claimant may redeem. The treasurer has no right to determine on the titles of the parties. The redemption is atoII put by the Chief Justice on the principle of a patent which •will enure to him Avho has the right. The tender by either of the adArcrse claimants will enure to the true owner. No good reason can be given why the claimant under an imperfect title should not haA'e the power to redeem, and let it enure to the true owner of the land. The redemption here avoided the treasurer’s deed, and left the title of the parties as they respectively stood before the sale. After this review of the plaintiff’s title, it is. almost superfluous to review the defendant’s title, as it has long been settled that the plaintiff must recover on the strength of his oato title, and not on the Aveakness of the defendant’s: Addis. 390; 2 S. & R. 65; 3 Ib. 283. The defendant claimed title under John Harper, Avhose acts of ownership Avere something like the defendant’s fancy, viz., in hooking the timber and bark. But the defendant had this advantage : the title under which he claimed had paid the taxes for more than twenty-five years. The land Avas reputed to belong to Harper, and, in 1842, it was levied on as Harper’s land, and regularly sold [514] by the sheriff of Perry county to Thomas Paxton, who afterwards conveyed to Woodburn, the defendant. The defendant fully proved his offer. But the plaintiff insists he has equity on his side, and to establish it, he proved by one McKeehan, that Shearer went to Harper in 1841 or 1842, and was told by Harper that the land belonged to Andrew Mateer’s heirs; and thus he was induced to purchase. I agree that, if the defendant fraudulently induced the plaintiff to purchase a bad title, he cannot avail himself of the rule which requires the plaintiff to recover on the strength of his own title: 2 S. & R. 65. But the defendant gave the plaintiff no encouragement to purchase the Mateer title. The encouragement alleged was given by Harper, when the judgment was against him, and about the time of the sale, and no purchase was made until more than three years after the sale to Paxton, who sold to Wood-burn. I am well satisfied the plaintiff has failed to make out a title to enable him to recover on every point; and that the other errors assigned raise no question which requires consideration. Judgment affirmed.