Madara v. Eversole

The opinion of the court was delivered, by Williams, J. The plaintiffs claimed title to the land in controversy under a sale by the treasurer for non-payment of taxes. In support of their title they gave in evidence “ The Assessment Books of Unseated Lands” in the commissioners’ office, showing that the tract was assessed as unseated for county, state and school taxes for the years 1854 and 1855 ; the treasurer’s “ Sale Book of Unseated Lands,” showing its sale by the treasurer to the commissioners in 1856 for the non-payment of the taxes; and the “ Commissioners’ Sale Book,” showing its sale by the commissioners in 1864 to Spang, one of the plaintiffs; and they followed this evidence by the deed of the treasurer to the commissioners, by the deed of the commissioners to Spang, both of which were duly executed and acknowledged, the former in 1856 and the latter in 1864, and by the deed of Spang to Madara, his co-plaintiff, for the undivided half of the tract. The court instructed the jury that this evidence, with the writ, established, primá facie, the plaintiffs’ right to recover the land in the possession of the defendant, unless some sufficient reason why they should not recover a verdict in their favor had been furnished by the defendant. The defendant alleged that the land was seated at the time the taxes were assessed, and that the treasurer had no authority to sell it, even if he did, for their non-payment. He gave evidence showing that about an acre and a half was cleared, near the line of the tract, some forty years ago by one Eishel; and that since that time it had been occupied, or used and cultivated by some one. And he proved by the testimony of Hoover, the owner of the adjoining tract, that he used it for farming purposes from 1854 to 1858 — that he mowed it in 1854, pastured it in 1855, and raised grain on it the following years. Upon the testimony of Hoover the court instructed the jury that the land was in point [165] of'fact seated, and not liable to taxation and sale as unseated in 1854 and 1855 ; and that the sale to the commissioners in 1856, assuming a sale, was void; and that their verdict, for this reason, should be for the defendant. This instruction withdrew the case wholly from the jury and was clearly erroneous, unless the facts testified to by Hoover were admitted by the plaintiffs. If they were not admitted, it was the province of the jury to determine, under proper instructions, whether the land was seated, or not, at the date of the assessments. Even if the testimony of Hoover' was uncontradicted, the court was not at liberty to assume the facts to be as stated by him, and give a binding direction thereon to the jury. But if the facts stated by him were admitted by the plaintiffs, then the legal conclusion arising from them was for the determination of the court. But we find no evidence of any such •admission in the record, nor anything from which it can be inferred unless it be the remark of the court that “ the testimony of Hoover, as to the occupancy of part of the land in controversy, is not disputed.” If the court meant that the plaintiffs admitted that the testimony of Hoover was true, then there was no error in declaring that it was legally sufficient to show that the land was seated, and not liable to taxation and sale as unseated. But if the court thought that his testimony was not contradicted by any evidence in the cause, its credibility was for the jury, and the case should have been submitted to their determination. The plaintiffs had given in evidence the assessment books which showed primfi facie that the land was unseated at the time it was assessed, and nothing but an express admission on their part that the facts testified to by Hoover were true, would have warranted the court in withdrawing the case from the jury. As it does not clearly appear that the plaintiffs made any such admission, the 1st assignment is sustained. But the court fell into a palpable error in instructing the jury that there was no sale of the tract by the treasurer to the commissioners in 1856; and that no title vested in them or their successors by his deed. In reference to this ground of defence the court say : “ And here there are no controverted facts.” If there were “no controvefted facts,” it is certain that the defendant’s evidence was in direct conflict with that given by the plaintiffs. In support of the sale the plaintiffs relied on the entry in the treasurer’s sale book of unseated lands, showing the sale to the commissioners, and upon his deed to the commissioners in pursu-' anee of the sale, which was duly executed and acknowledged, and which had remained in the commissioners’ office from 1856 until its delivery to the plaintiffs in 1864 by the commissioners together with their deed for the land. To rehut this evidence, the defendant proved by two of the commissioners acting as such in 1856 and by the clerk in the commissioners’ office at that date, that no [166] such sale had taken place. It is quite probable that, on the evidence of these witnesses, the jury would have found, if the question had been left to them, that in point of fact there was no sale of the land by the treasurer to the commissioners. But whether they would, or not, is wholly immaterial. It is clear that under the evidence the plaintiffs were entitled to have the question submitted to the jury for their determination. It was a question of fact, and the court erred in withdrawing it from the jury. We see no other error in the charge, but wé are constrained to reverse the judgment because of the binding instructions of the court on the questions of fact raised by the evidence. Judgment reversed, and a venire de novo awarded.