Coxe v. Deringer

Mr. Justice Woodward delivered the opinion of the court, May 10th 1875. [289] The cases of Cuttle v. Brockway, 12 Harris 145, Iron Co. v. Fales, 5 P. F. Smith 90, and Heft v. Gephart, 15 P. F. Smith 510, have closed against all debate the question of the application of the maxim omnia prcesumuntur esse rite acta to tax sales under the Act of 1815. The ground of the objection made by the defendants below to the deed to the Luzerne commissioners of the 2d of December 1820, was that the sale had not been made on the second Monday of June, nor on any other day to which it was shown to have been adjourned. The fourth section of the Act of 13th of March 1815, declares that “ no alleged irregularity in the assessment or in the process shall be taken or construed to affect the title of the purchaser” of unseated land for taxes, “but the same shall be declared to be good and legal.” The sale in this instance was made on the 8th of November 1820. The deed was delivered in pursuance of it. No action of ejectment was brought by the owner within the statutory period of five years. The subsequent records in the offices of the commissioners and treasurer were made up on the assumption of the regularity of the proceedings. The deed recited the offer of the land “ for sale agreeably to law.” The absence of entries of adjournment from day to day was a defect of form and detail. It was “irregularity in the process,” and not the omission of any essential requisite to support the title the commissioners acquired. The facts made out a case to warrant at least such a binding direction to the jury as was given in Huzzard v. Trego, 11 Casey 9, that they ought to presume the adjournments to have been duly made. In the absence of countervailing proof, there was no substantial error in the peremptory instruction to that effect in the charge of the court below. In disposing of the questions relating to the sale by the commissioners to Henry'Deringer on the 8th of July 1826, too much significance was attributed to lapse of time. If possession of the land had been taken by Deringer, the long period intervening between the date of the sale and the date of the trial, would perhaps have áfforded, with the other evidence in the cause, ground for assuming that the formal provisions of the Act of 1824 had been complied with, as á presumption of law. It certainly would have warranted a charge that such a compliance ought to be inferred by the jury, as a presumption of fact. But “ mere lapse of' time,” it was said by Lowrie, C. J., in Alexander v. Bush, 10 Wright 62, “ proves nothing in favor of a title, for the older it is,, without any claim being made under it, the weaker it is, and the-weaker are all presumptions in its favor.” It is true that Read v. Goodyear, 17 S. & R. 350, decided that, where land is sold for-taxes and the warrantee makes no claim for twenty-one years, and pays no taxes during that time, it may be left to a jury to presume-ouster or abandonment by him; and that length of time strengthens a title founded on a sale for taxes. In Sorber v. Willing, 10 [290] Watts 141, however, the facts in Reed v. Goodyear were said by Gibson, C. J., to have been indistinctly stated, and among them was the omitted fact that there had been an entry by the purchaser at the treasurer’s sale. The curative provisions of the Act of 1815 were held in Jenks v. Wright, 11 P. F. Smith 410, not to be applicable to a sale by county commissioners under the Act of the 29th of March 1824. The evidence in this case did not warrant the assertion by the court of the regularity and validity of the sale to Deringer as a presumption of law. But there was proof of the payment of the taxes from 1826 to 1840. At the time of the sale the land was the property of the county, and as such the commissioners conveyed it. The deed executed by them on the 5th of June 1827 recited the performance of all the conditions requisite to support the title they conferred on their grantee. The proceedings were spread upon the county records, and their regularity has never been assailed by the county authorities. All these were facts for the consideration of the jury, and under them they should have been left at liberty to find whether the directions of the Act of Assembly had been duly pursued, and whether the title of Deringer was, therefore, valid. With the remark that the evidence offered by the defendants to prove that all adjournments of treasurers’ sales have been noted on the sales-book since the year 1838, was irrelevant to any apparent issue in the cause, what has been said disposes of the first six specifications of error. The general offer by the plaintiffs, to which the seventh assignment of error relates, was unobjectionable. Under it there was, perhaps, no necessity for showing the date of the purchase of the four tracts other than the one in controversy belonging to Deringer, and the deeds for them, but this could not have led to any confusion or embarrassment on the trial. The five tracts were treated as a single body of land, and each tax-receipt related to them all. The evidence affecting the Samuel Rope tract involved a reference to the others, and it was admissible, as evidence is always admissible of extraneous facts with which the subject-matter of a suit is inseparably connected. The eighth, ninth, twelfth and thirteenth specifications are founded on the rulings of the court in regard to the sale of the land in controversy by the treasurer to the commissioners in 1828 for the taxes of 1827. The deed recited the sale to have been made on the 25th of November 1828. If it was valid, it divested the title Mr. Deringer had acquired by his purchase in 1826, and an outstanding title, as to him at least, was subsisting in the county of Luzerne when the cause was tried. The books showing the assessment and the deed were given in evidence by the defendants. In their rebutting case, the plaintiffs showed what is called in the record a “ commissioners’ transcript-book,” containing a [291] charge against Mr. Deringer’s five tracts for taxes for the years 1827 and 1828, amounting to $29.58, the charge against the Samuel Rope tract being $5.58, made up of county and road taxes, each $1.86 for 1827, and $1.86 road tax for 1828. At the foot of the statement there is a credit of the entire amount of the charge dated the 10th January 1829. The treasurer’s sale book for the year 1828 was also produced by the plaintiffs, and the entry of the Samuel Rope tract on that book was permitted, under exception, to be given in evidence. The words “ paid before sale” were twice written, on the right and left margins of the entry. In the commissioners’ book of county rates and levies for 1826,1827 and 1828, the tract had been charged with taxes amounting to $3.72, and in the commissioners’ list to the treasurer for 1826 and 1827, a county tax for 1827 of $1.86, and a road tax for the same year and of the same amount were stated to be due. A pen appeared to have been drawn at some time through the figures “ 1.86” in both places where they occurred in this last book. This evidence was submitted to the jury on the question of the payment of the taxes of 1827 before the sale to the commissioners. The regular, authorized and authentic entry in the transcript-book showed the payment to have been made on the 10th of January 1829. The very language of the entry on the sale-book implied that it was made after the sale had taken place. It is said to be in the handwriting of Zurah Smith, the treasurer at the time. Let that be so, and it does not help the use of an unwarranted and illegal endorsement on a public record as evidence of a substantive and material fact. The entry was out of time and out of place. It was made after the sale, to which the treasurer had certified by his solemn deed. It was in contradiction of the explicit written statement of the credit appearing in the transcript-book. It was not an act done in the course of the current business of his office — it may have been made years after the transaction — from his letter to Deringer; it is not credible that he made it before the 4th of February 1829 — and it depended for its accuracy perhaps upon the recollection or declarations of other parties, or upon his own memory at the very best. No direct authority, is found upon this question. In Kennedy v. Daily, 6 Watts 269, all that was decided was, that when the word “ paid” appears on the margin of the entry of a tract of land in the treasurer’s sale-book, the purchaser could prove that the word was written after the sale, and that the same entry was usually made after the sale as well as before. In Ankeny v. Albright, 8 Harris 157, the letters “pd.” on the treasurer’s book were held to be no evidence' of themselves, that the taxes were paid before the sale. In the last case two former county treasurers testified that they always marked the taxes in this way after the land was sold and the money paid by the purchaser, and that they always marked them in the same way when [292] paid at any time. But it is manifestly essential to the security of property that muniments of title and .public records should be free from the hazards that would be involved in making evidence of legends like this. It was no part of the duty of Zurah Smith to endorse his recollection of past events on any of the books the law required him to keep as treasurer of the county. His statement of official facts in their appropriate places and their current order would be evidence always. His statement of a fact that rested only on his own recollection, or that of others, was not entitled to be weighed against his formal deed and a distinct, explicit and authentic record. The admission of the evidence to which the tenth, eleventh, and fourteenth assignments of error apply, was warranted by the authority of McReynolds v. Longenberger, 7 P. F. Smith 13. Other questions aside, the sale in 1834 to Charles S. Coxe vested the title to this land in him, if the taxes for the years 1832 and 1833 were not paid. The plaintiffs were permitted to prove the existence of receipts for taxes from 1826 to 1840 by witnesses who had seen them, the loss of the receipts themselves being alleged. While such testimony is admissible, it is exceptional in its character, and is capable of producing unjust results. It should be submitted to a jury under carefully guarded and measured instructions as to the precise point in dispute. That point here was the payment, before the sale of 1834, of the taxes for the two preceding years. As the cause must go back on other grounds, it is not necessary to express an opinion as to the sufficiency of the preliminary proof that was made of the search for, and loss of, the papers. But Dr. Clark, one of the executoi’s of Henry Deringer, had possession of the key of the closet containing the receipts for more than a year, and not only had access to them, but had charge of, and was responsible for, them. The necessity for some examination of his papers would seem clear. No evidence in the record traced these papers to the hands of the other executor, Theophilus T. Deringer. Still, applications for such documents to executors or their representatives is, in all cases, a proper and safe precaution. Everything involving substantial error that was embraced in the part of the charge to which the fifteenth assignment applies, has been adequately discussed. Judgment reversed, and a venire facias de novo awarded.