George v. Messinger

The opinion of the court was delivered, May 17th 1873, by Mercur, J. The right of the plaintiff below to recover, was predicated on a treasurer’s sale of the land, as unseated, made in 1866, for the taxes of 1864. The defendant held- an earlier title, and claimed such a residence upon the tract and cultivation of it as to make it seated in 1864, and invalidate the plaintiff’s purchase of 1866. As the attempted redemption of a portion of the land in 1869, was in behalf of persons who had no interest whatever in the land, the fourth and fifth assignments of error are not sustained: Chadwick et al. v. Phelps et al., 9 Wright 105. The remaining five assignments will'be considered together. It is well settled that residence without cultivation, or cultivation without residence, will prevent land being sold for taxes, as unseated: Kennedy v. Daily, 6 Watts 269. Cultivation is sufficient for the purpose without regard to the value of the product or its adequacy to discharge the taxes: Wilson v. Waterson, 4 Barr 214. It is the actual residence, or actual cultivation, which changes the character of the tract. A mere intention to take up the one or to perform the other, will not suffice.' Residence or cultivation commences at the moment of entry, and if continued, must be considered as seating the tract. We do not wish to be understood as saying, that a term of residence might not be so short, or the cultivation so trifling, as to make the intent a controlling element in the case. Such, however, is not the case here. The acts necessary for a person to do to seat land which he owns, must not be confounded with those acts which are necessary to create a title in a pre-emptor. In the latter class of cases it was said, in Wilson et al. v. Waterson et al., supra, that the intention to use the land only, while timber remained, or for any other temporary purpose whatever, gives no pre-emption right. That was an attempt to establish a pre-emption right prior to the entry under which the other party claimed title. In this case, Dilworth was the owner of the land. In the autumn of 1859, he set men to work upon it. They built two houses and a barn. During the winter, one of the men remained upon it.‘ In each year thereafter some land "was cleared, and potatoes, hay, oats, rye and vegetables were raised thereon. Two or three more houses were erected thereon. So that in 1864 there were four houses standing upon it, and from three to four acres of improved land. During all these years, several families continued to reside upon the land. Most of the time several teams, sleds, wagons and chains were kept there. The personal property kept on the land in 1863 and in 1864, was worth from $500 [423] to $600, besides the logs cut thereon, which were worth from $400 to $500 more. In 1865 the log barn was torn down, and a framed barn built. It is not necessary that the owner should have been personally residing upon the land, or personally cultivating it. Nor is it necessary that the persons performing the work should have been technically his tenants under leases from him. It is sufficient that they were in possession under him, and were there engaged in his employ. Nor does it matter that these improvements which were made, were designed only to enable the occupant to cut the timber off the land, and to be abandoned when they had served that purpose. They were not trespassers. The work in which they were engaged was being done under the direction and for the benefit of the owner of the land. They were holding it under him and for him. It was well said by Justice Thompson, in Lackawanna Iron Company v. Fales, 5 P. F. Smith 98, “ residence with a bond, fide intention to hold it. as owner, or for the owner, and performing labor on it, such as mining coal, raising ore and the like, in the character of owner, would undoubtedly give the land the character of seated.” This' ease shows that it is not necessary that the value of the land must be enhanced, for the removal of the coal, as well as the removal of the timber, may lessen its value. Yet the act of doing such work upon the land may seat it. Nor do we think it necessary to prove that when these employees went upon the land, and made these improvements, they intended to make themselves personally liable for the taxes assessed upon the land. These acts were sufficient to seat it, if the evidence is believed. The owner of the land was personally liable, and there was abundance of personal property upon the land out of which the taxes might have been collected. The defendant below was entitled to an affirmative answer to his second and third points submitted, and the errors are sustained. Judgment reversed, and a venire facias ele novo awarded.