Brown v. Hays

The opinion of the court was delivered, January 3d 1871, by Agnew, J. — This case has leading features which, being determined, will render it unnecessary to consider the assignments of error in detail. The first and most important fact which, to a great extent, rules the case is, that lot No. 4023 of 1026 acres is one tract of land, and belongs to a single ownership. It all lies in Polk township, except an insignificant parcel caused by a slight deviation from the northern boundary of the tract in running the line of Polk township, leaving 16 acres in a narrow triangle lying within the township of Heath. Until 1859 it had all been assessed and taxed in Polk township, and Hays, the plaintiff, had paid the taxes accordingly. In 1359 the assessment was returned originally as 1026 acres in Polk township; but by some action of the [234] county commissioners not clearly explained, the assessment had been altered to 726 acres in that township. In the same year the duplicate and supervisors’ return for Heath township exhibits an assessment of 300 acres of No. 4023 in Heath township. It was on this return the treasurer’s sale took place in 1860, under which the defendants claimed. Joseph Henderson, the clerk of the commissioners, is unable to state at whose instance the change from 1026 to 726 acres in Polk township was made — all he can say is, he thinks it was on the representation of the assessor, or some one else in whom the commissioners had confidence. The strong probability is, it was caused by the incorrect, indeed false assessment made for Heath township ; and unless it was done by way of revision by the board of assessors it was irregular. If the testimony of Henderson, the clerk, proves anything, it is that this alteration in the assessment of 4023 in Polk township was not done at the instance of the board of revision; for he “ don’t know (he says) that there was any board of revision about it.” The 2d section of the Act of 3d April 1804 directs all unseated lands “ to be valued and appraised as other property; and both the 8th section of the Act of 1799 (3 Smith’s Laws 395), and the 2d and 4th sections of the revised Act of 15th April 1834 commit to the proper assessor the duty of taking the account, and making the return and valuation of the taxable property within his township. In Respublica v. Deaves, 3 Yeates 465, it was held that under the Act of 1799 the valuation of the assessors is binding on the county commissioners; and by a parity of reason, the return of the tract which fixes its identity and liability to taxation is more so. The 6th section of the Act of 15th April 1834 expressly provides for the assembling of the assessors, on a day to be appointed by the commissioners, to make the returns of the several assessments, when it shall be the duty of the assessors to point out errors, and if the errors be established, the commissioners shall correct the returns accordingly. This being the legal system for the correction of errors in the assessment, it is an important fact that in consequence of Hays’s residence in a remote part of the state, and his paying the taxes of 1859 by the hand of another no't familiar with his lands, he had no notice of the assessment in Heath township. Having always before paid his taxes for his lands as lying in Polk township, he had no reason to suppose that his land was taxed elsewhere. His payment to the treasurer of all the taxes assessed in Polk township unquestionably operated to discharge all the land lying in that township from sale. The payment was for the taxes of lot No. 4023 in Polk township and not merely for 726 acres of land. The assessment was made by the number of the lot and also in the name of the original warrantee ; indicating clearly the intent to assess the lot as a whole, and as a single ownership. As [235] further evidence that there was no intent to divide the land lying in Polk township, there is no assessment of the remaining 284 acres actually lying in that township. Indeed the assessor of Polk township had no authority to divide the tract or return that portion of the lot lying in Polk township in separate parcels. The acts relating to the assessment of unseated lands are plain, and require the assessor to assess and return the lands in his township in single tracts according to their ownership. He may follow the sale or division of'the tract by’the owner, but he has no power himself to cut up the property of a single owner and return it in parcels. The acts on this subject are collated by Huston, J., in Morton v. Harris, 9 Watts 326, showing conclusively that the entire process of assessment from the beginning to the end contemplates taxation and sale by single tracts following the title of the owner. The same principle governs even in the case of interfering surveys so far that when the assessment is made upon the younger survey, it is made upon the entire tract. See McCoy v. Michew, 7 W. & S. 390 and 391. This being the duty of the assessor, Hays would not be bound to know from the quantity of 726 acres that there had been an actual division of this tract in Polk township, the tract being assessed both by number and name of original warrantee. The number of acres is simply descriptive and would not overturn the number of the tract, the name of the warrantee, and the duty of the assessor. An argument still more conclusive may be drawn from the effect of a sale under the assessment in Polk township, had Hays omitted to pay his taxes in that township. As to this effect Williston v. Colkett, 9 Barr 38, is directly in point. Thus the assessment was of No. 4483, original quantity 999 acres, present quantity 200 acres, warrantee James Wilson, present owner A. J. Underhill. The treasurer’s deed following this assessment was for 200 acres, but the real quantity in the tract was 600 acres, being three times the quantity sold. The court below held the assessment to be too vague; but on a writ of error this court' decided that the deed passed the title to the whole 600 acres. “ No man (says Coulter, J.) who reads the assessment can doubt the intent of the officer to assess all the land which was unseated on the warrant in the name of Wilson. Such is the obvious meaning and import of the assessment; the number of acres was mentioned as descriptive.” It is true Coulter, J., laid some stress on the fact that Mann, the owner, had for two years before paid tax for only 200 acres, yet he did not rest the decision on that circumstance, but upon. the effect of the assessment as extending to all the unseated land remaining in No. 4483. So in the present ease had No. 4023 of 726 acres been sold for unpaid taxes, no one can doubt that the sale would have carried the entire quantity of No. 4023 lying in Polk township. There could be no presumption of an intent on part of the assessor to [236] cut off 284 acres of the tract lying in Polk township, or that the assessor of ITeath township would assess these 284 acres as lying in Heath township when the fact was not so. Then clearly the rule which would divest Hays of his title to the whole of lot No. 4023 lying within Polk township for the non-payment of the taxes assessed in Polk township, will sustain him against a sale made after he had paid all the taxes for Polk township, demanded of him by the treasurer, without notice to him that the residue of his tract was assessed in Heath township. The .question is not what would be the effect of a sale upon an irregular assessment of 300 acres in Heath township, had there been no payment of all the taxes assessed in Polk, but it is what is the effect of a previous payment of all the taxes against his lands lying in Polk township. His entire ownership in Polk was the subject of assessment and taxation, and the payment of the whole tax so assessed is co-extensive with the charge. But it is argued that the primá facie presumption is that the assessment of 300 acres in Heath township was made at the instance of Hays, and Clarke v. Dougan, 2 Jones 91, is referred to as authority for the position. But that was the case of a resident seated tract, where the heirs of Keely claimed by the Statute of Bimi.tations, and endeavored to extend a constructive possession to the lines of the warrant survey by an alleged payment of the taxes for twenty-one years. Keely, however, had suffered himself to be assessed sometimes for 50 acres, sometimes for 100 acres, sometimes for 200 acres, and sometimes for 300 acres, the-whole quantity in the survey. It was in reference to such a case C. J. (xibson said, it is the duty of the assessor to call on the owner for information in respect to the value and quantity of his property, and the presumption is he does it. But no such presumption can be made here. The tract was unseated, Hays, a non-resident living in Pittsburg, who had always paid his taxes in Polk township for his whole tract, No. 4023; the tract had been so originally returned in 1859, but the assessment had been altered without his knowledge- or consent, and he paid the taxes for 1859 by the hand of a stranger who had no special knowledge of his lands. In addition to all these circumstances, Mr. Hook, the treasurer, states that the 300 acres assessed 'in Heath township had not- been carried into his land-book when Darling paid the taxes for Hays, for the reason that he himself did not then know of that assessment. Under all these facts there is no room for a presumption of knowledge on part of Hays that his land had been divided in quantities by the assessors' or commissioners without even an ideal line of division, and 300 acres assumed to be in Heath township, when in fact only 16 acres were within Heath. Presumptions of law exist only when public policy or the ends of justice demand them. In fietione juris, semper ex237 istet equitas. But what equity would exist in such a case as this, to take from one his property who has honestly paid all that was demanded of him, or that he had any reason to believe he owed ? Looking at all the facts of this case, the judge committed no substantial or hurtful error in charging that if the taxes were paid on the tract as returned in Polk township, it would be a payment of all the taxes on the tract, and the tax on the 300 acres would be a double assessment, and a sale of it would be void. The language is not altogether precise, as there were 16 acres of the 300 which lay in Heath township on which taxes were not paid; but no question was made on the 16 acres, the great battle being for the recovery of the 300 acres, which the purchasers under the tax sale had surveyed off to suit themselves, there being neither line nor designation of the 300 acres by locality. What has been said answers also the argument founded on the curative provisions of the 4th section of the Act of 1815, and the decision in Stewart v. Bamfelt, 13 S. & R. 360, and Montgomery v. Meredith, 5 Harris 42, that though irregular the sale passed the title to the 300 acres. It is not necessary, therefore, to decide what would have been the effect of a sale of land lying in Polk township under an assessment of land as lying in Heath township, had there been no payment of the taxes for all the land lying in Polk township ; for as already shown, the payment' of the taxes in Polk township was co-extensive with the whole of No. 4023, lying in that township, and defeats the sale of the 284 acres in that township, on one of the express grounds provided in the act, as the reasons of annulling the sale. Perceiving no substantial error in the record, The judgment is affirmed.