Lamb v. Irwin

The opinion of the court was delivered, October 30th 1871, by Agnew, J. We think the court erred in withdrawing from the jury the question of the agency of Richard Irwin for Richard L. Clark and his heirs, and of the offer to redeem alleged to be made by Benjamin May. The facts collected together and summed up in the 4th point of the defendants below were undoubtedly some evidence of Judge Irwin’s agency in payment of the taxes for Clark, and if unexplained might lead to the conclusion that he had been employed by Clark or his heirs to attend to the land and prevent its sale; for it is not probable that any one would volunteer for distant owners and strangers to redeem and to pay taxes. It is true that Judge' Irwin gives a very natural explanation of his interference, which, if true, would prevent any inference from his acts that he was acting for the Clarks. But here is just where the learned judge below erred in not submitting the fact to the jury with proper instructions. Judge Irwin is the party, and the explanation came from himself as a witness. His credibility, therefore, ought to have been passed upon by the jury. Nor while the high character of the witness might in this case avail much, it is too important to be overlooked, that since the Act of 1869, making parties witnesses in their own causes, their credibility has become a question of great importance in settling controversies. They are now often found standing as exact antipodes to each other, and a jury must determine their relative credibility to arrive at a verdict. The finding of the alleged agency would have vitiated the treasurer’s sale, and therefore it was a material fact in the cause: Bartholomew v. Leach, 443 7 Watts 272; Comegys v. Carly, 3 Id. 380; Reed v. Stanly, 6 W. & S. 376 ; 1 Casey 354. It is argued that the portion of the charge of the court assigned for error was the expression of an opinion only upon the fact, when the judge said the evidence was too slight to estop Irwin from becoming a purchaser at treasurer’s sale. We might be induced so to consider this part standing alone, but we must interpret it by the answer of the judge to the defendants’ 4th point, where he says distinctly the evidence of agency is too slight to disqualify the plaintiff from purchasing at treasurer’s sale. A jury, listening to both portions of the charge, could scarcely avoid the conclusion that they were instructed to disregard the evidence. We discover no error in the principles given to the jury governing the offer of Benjamin May to redeem the land from all tax sales. Undoubtedly the failure to find the sale, which was overlooked, must have been the fault of the treasurer exclusively, and therefore the party must have distinctly and clearly called his attention to the demand for a search for all sales. He must not permit him to rest under the supposition that a particular sale only is asked for in order to redeem. If Benjamin May did not know of the sale of 1852, as he swears, he could not call the attention of the treasurer to it, and the oase would then turn on the distinctness and clearness with which he made known to him the request to redeem from all sales theretofore made. It does not appear in the evidence found in the paper-book that May knew of the sale of 1852, and if there were no question of credibility of the witness, it was an error on part of the court to say that if he did not call attention to the sale of 1852, the redemption is not good, and the verdict should be for the plaintiff. We should feel loath to reverse for this alone, for it is quite probable the credibility of May, as to his want of knowledge of the sale of 1852, may have been questioned before the jury. But for the former error the judgment is reversed, and a venire facias de novo is awarded.