Dietrick & Wilson v. Mason

The opinion of the court was delivered, by Agnew, J. — There are two questions in this case; one upon the right of Dart & Fitch to redeem their 200 acres of land from the sale for taxes of 307 acres; and the other, upon the effect of the county treasurer’s receipt for the redemption-money. The tract was sold as containing 307 acres charged with $17.80 taxes and $3.62 costs. It is admitted in the statement of the case that the 200 acres only were unseated, of which Dart & Fitch were the owners. The remaining 107 acres belonged to a different ownership, and were seated, and had been divided off by a line of survey running through the original tract before the assessment of the taxes for which the land was sold. It is clear therefore' that the assessment of the two parts as a single tract was irregular, and the sale conferred no title to the 107 acres of seated land. But a good title would pass under the sale for the 200 acres after the time of redemption had gone by: Mitchell v. Bratton, 5 W. & S. 451; Campbell v. Wilson, 1 Watts 503; Harper v. McKeehan, 3 W. & S. 238; McCord v. Bergautz, 7 Watts 487. But the assessment was irregular, and the 200 acres were chargeable with their own share only of the taxes. Yet being actually unseated and legally charged with their own proportion of the tax, the excess was at most only an irregularity in the assessment which would be cured by the 4th section of the Act of 13th March 1815. The treasurer having jurisdiction to sell for so much of the tax as was legally chargeable to the land, the purchaser would take a good title; yet this would not justify the sale for the taxes of the 107 acres, and it would be grossly unjust to demand their repayment before the owner of the unseated land should be permitted to redeem. The right to redeem is as perfect as the right to make sale, and it cannot be clogged with a condition that the owner shall pay the taxes of others for which no sale could legally be made. It is true, the words of the act are, he shall pay the amount of the taxes for which the land was sold; but this cannot mean that he shall pay the taxes of seated lands improperly included and illegally assessed and sold along with his. The proper meaning in such a case is that he shall pay the amount of the taxes for which his own land was sold. If it be said this will deprive the purchaser of a part of the money he has paid, the reply is that as to that he bought illegally. He bought 307 acres, but the 107 acres being severed and seated, he was bound to know that as to this part and the taxes assessed upon it, the sale was void for want of jurisdiction. As to the 200 acres, though they were irregularly assessed and [43] sold, jet lie was protected by tbe law if tbe owner did not redeem, and tbe advantage was so far on bis side. His remedy for tbe taxes of tbe seated part was not against tbe owners of tbe unseated part, but against tbe county wbicb bad illegally received bis money under a void proceeding as to tbe seated land. We are of opinion therefore that a redemption of tbe 200 acres by Dart & Fitcb could be legally effected by payment of tbe proportion of tbe taxes stated by tbe treasurer as chargeable to that part of tbe land, together with tbe costs and 25 per cent. But it seems that in making out tbe statement tbe treasurer by miscalculation made it $1.58 less than tbe true amount. It is argued that Dart & Fitcb were bound to tender tbe full amount, and that no duty lay upon tbe treasurer except to receive what might be offered to him. This is not tbe law. The parties acting in tbe redemption are tbe owner and tbe officer. Tbe owner must apply for tbe redemption, but the treasurer must furnish him with tbe means of making bis tender. Tbe treasurer is tbe legal custodian of tbe books and tbe entries of tbe taxes and costs containing tbe information necessary to know tbe sum to be tendered. This information it is bis duty to give, and be cannot even simply lay tbe books before tbe owner and compel him to search them for himself. Tbe knowledge of tbe latter may not be adequate to find what be needs. It is therefore tbe duty of tbe treasurer to state tbe taxes and costs to be paid, and if be misstate tbe amount, bis miscalculation or omission shall not defeat tbe redemption. The owner having called for tbe amount and paid all demanded for tbe redemption, cannot be involved in tbe loss of bis land by tbe mistake of tbe officer, but tbe treasurer must make good the deficiency to tbe purchaser. Tbe same principles apply also to tbe taxes subsequent to tbe sale payable under tbe Act of 1815. Tbe following authorities establish these principles : Price v. Mott, 2 P. F. Smith 315; Bubb & McHenry v. Tompkins, 11 Wright 359; Baird v. Cahoon, 5 W. & S. 540. Judgment affirmed.