Arthurs v. Smathers

The opinion of the court was delivered, by Thompson, J. — The first three assignments of error, nominally but two in fact, relate to the same thing: the notice required to be given to the owner of seated lands sold for taxes under the provisions of the Act of 29th April 1844: Dig. 791. It is there provided that “ the owner or owners of all such lands shall have the right to redeem them at any time within one year after receiving actual notice from the treasurer of the county where such lands lie, that they have been sold,” &c. The supposed materiality of the testimony of John Heath, which was rejected by the court, consisted in proving that the witness, not the treasurer, but a relative of the owner of the land, had informed the latter of the sale of the land for taxes, and that he was authorized by him to redeem it, but did not. . Notice of the sale was the object of the testimony. This was very important, if it had been from the proper source, but it was not. The treasurer is the party to give it, by the express terms of the statute. We see no alternative, nor are we disposed to look for any, for the requirement of the statute. The owner has a right to await the notice from the proper source, and, in the mean time, rest secure that after it does come, he has a year to redeem. Unofficial and unauthorized notice is no notice within the statute, and to hold it to be so would be a virtual fraud on the owner. It required a statutory provision to dispense with the proofs requisite in regard to ordinary sales for taxes. Under the Act of 1804, none were good, because the requisites could never be made out. The Act of 1815 remedied this by dispensing with proof of many things supposed to be requisites by the Act of 1804. But we have no dispensation of the requisites of [44] iiotice in this case, and it is indispensable that it be given as required by the treasurer. . It will be easy for the purchaser to procure the notice to be given by him, and if he desires to avail himself of the chances of holding under the sale, he should be active in ascertaining the owner’s residence, and in moving the treasurer to give the notice. The rejection of the evidence, as well as the charge on this point, were accurate. As we have not the points of the plaintiff on our paper-books, we cannot say whether the court erred in answering them or not. The rules of this court, in 6 Harris, require the points to appear on the paper-books, when they are the foundation of any assignment of error.' This has been neglected in this case, and the consequence is, that we must dismiss the assignments of error to the answer of the court to the points. The plaintiff having shown that the land in controversy was actually seated and occupied by residence and cultivation up to, and including part at least of the year 1849, and that it was sold in 1852 for the taxes assessed for 1851, the court seemed to be of opinion that the period of dereliction of possession was too short to give the character of unseated to the premises. At the time of the assessment, but little over one year had transpired. It could not have returned to a state of nature in that time. This was obvious, and to this condition it must have returned to bring it within the designation of unseated. This has been frequently held. It was right, therefore, on part of the court, to hold- it not subject to assessment and sale as unseated, if-the facts were true. Under these circumstances, the other alleged errors were harmless, but we will notice them. In Laird v. Heister, 12 Harris, followed by Thompson v. Chase, not reported, this court qualified, or rather perhaps explained, remarks to be found in several cases, amongst which are Larimer v. McCall, 4 W. & S., Commonwealth v. Woodside, 2 Harris, and Milliken v. Benedict, 8 Barr, in regard to changing lands actually unseated, .from the seated list to the unseated. Those cases, in which it was said that this could not be done without notice to the owners, were, on examination, thought to be exceptional — that is, the land, it seemed, had been placed on the seated list by arrangement between the owners and the commis•sioners, and, in such case, it was thought necessary, to protect them from loss by a sale for taxes on the unseated list, to notify them of the transfer. It is likely the exceptional character of some of these cases may not always have been regarded, and their doctrine sometimes applied where the exceptional- character did not exist. Laird v. Heister and Chase v. Thompson corrected this, and asserted that outside of these exceptional cases, the proper assessing officers could and ought to make the change [45] without being put to the trouble of notifying owners of a fact of which they must already be aware, namely, that their lands were unseated, or, in default of doing so, losing the taxes. I say nothing of the policy or wisdom of the exceptions; but there was nothing favouring them in the Acts of Assembly, and outside of them it is very doubtful whether the commissioners could .do any act which might embarrass or impair the assessment and collection ■ of -any species of tax which the law provided for the levy of, in a general and unexceptional way. But it is not the purpose of this opinion to disturb the decisions alluded to. It is enoiigh to say the present ease is not within their principles, and the learned judge was wrong when he said that the land in question could not be placed on the unseated list after having once been assessed as seated, without notice to the owner. It is true there is no error assigned in this portion of the. charge, and we will not in this case reverse on account op it, .but we thought it necessary to notice it, as by affirming the charge in manner following, we might be supposed to affirm this doctrine also. The fifth assignment is not sustained. We do not understand the learned judge as denying that the records of the commissioners’ office are evidence of assessment; the Act of 12th April 1842 expressly makes them so. Not that the marking opposite the name of the owner in an indiscriminate duplicate of seated and unseated lands, the word “unseated,” would be primá facie evidence of assessment in that character, but only as coupling a supposed absence of authority so to mark it, with a want of a transfer of the land to that list, so as to give jurisdiction to the treasurer to sell it, as sufficient to warrant a sale. It was certainly necessary that it should have been transferred to the treasurer’s unseated list, and if not done, the sale would not be good. But while we are required to notice assignments of error as we do this; still we think no determination of the point could help the sale of 1852, so as to make a title under the circumstance noticed before, viz.: that the land was actually seated so shortly before the assessment of the tax on which it was sold. There are other points discussed on the paper-books, but they are not upon assignments of error, such as the validity of the judgment of Wood & Oliver v. Heath, and we cannot notice them. Judgment affirmed.