Shalemiller v. McCarty

[188] The opinion of the court was delivered, May 13th 1867, by Thompson, J. — We think the learned judge of the Common Pleas committed no error in his answers to the defendant’s points, or in charging the jury that the plaintiffs were entitled to recover. The uniform understanding and belief of the profession and people of this Commonwealth, for over half a centui-y, has been, that a purchaser of unseated lands for taxes, when he receives his deed, takes but an inchoate or inceptive title, which requires the lapse of two years from the date of sale to ripen into an absolute title. This it will do if the land be not redeemed in the mean time. The only certain interest the buyer has up to that time, by virtue of his purchase, is in the money paid, and 25 per cent, on that amount on redemption. He is not invested with any title to the land whatever, because the owner’s title is not divested: 10 Watts 412; 6 W. & S. 509 ; 3 Casey 154; 9 Id. 98. If the owner’s title be not divested, the incidents of title remain, one of which is, in the absence of actual possession, to draw the possession to the title, and to enable the owner, upon his constructive possession, to maintain trespass. This exists up to the last moment before the two years have closed in. After that, and not before, is his title divested, if he do not redeem. Up to that time he would not be a trespasser by entering on the land and cutting timber, or doing any other act affecting the freehold. This is by reason of title. And for the same reason, he may bring suit against a trespasser on the lands, any time within the two years, without redeeming. So fully was this understood to be the law, that the proviso to the 20th section of the Act of 12th April 1842, allowing for improvements in all cases of recovery against the tax title, prohibits the allowance for improvements within the two years provided for redemption. The 25 per cent, was intended to compensate the purchaser, if the land was redeemed; that he should also be entitled to the profits of it, was never thought of. Under such a construction of the law, as contended for by the plaintiff in error, all the timber might be stripped from the land within the two years, and leave it not worth redeeming. There is no error in the record, and the judgment is affirmed.