White v. Ballantine

Mr. Justice Gordon delivered the opinion of the court, November 22d 1880. [191] The property in dispute was sold to James W. Ballantine, the defendant, on a levari facias issued on a judgment, obtained on a municipal claim for grading the street or streets adjacent to this property, which claim was filed January 30th 1874. At that time Nathaniel Ballantine was in the possession of the property, and against him the scire facias was issued and judgment obtained. It seems, however, as was afterwards determined by an action of ejectment, that the fee of the property was in E. C. White, the plaintiff, and that the possession of Ballantine was only that which he had acquired as White’s mortgagee. • This then is a summary of the facts upon which.this case rests, and the question involved in, and arising from them is, what title did the defendant acquire by his purchase at the judicial sale ? The plaintiff contends that inasmuch as the scire facias and judgment were in the name of Nathaniel Ballantine, the tenant of the property, the sale falls within the provisions of the Act of 6th January 1864, and passes to the purchaser no more than Ballantine’s title, whatever that may be. On the other hand, it is insisted by the defendant that he thereby acquired the entire title by virtue of the terms of the Act of 24th February 1871. We think, then, that this contention must be determined by the construction put upon this last named act. If this statute does not cover the case, then the hypothesis of the plaintiff must prevail, and, in that event, since there was no service of the scire facias upon White, the owner, the purchaser took nothing but Ballantine’s interest. The question thus presented is not a new one, and our task is rendered light by the opinion of our brother, Mr. Justice Paxson, in the case of Emrick v. Dicken, filed on the 5th of January last, and reported in 11 Norris 76. The case here cited is full in point, for the claim filed, the scire facias and judgment, were against an “ unknowm owner,” and though George Emrick, the owner, was without notice, and, at the time, resident upon the property, it was nevertheless held that the purchaser took a good title under the Act of 1871. That was a case where the equities of the owner were much stronger than in the case in hand. There, there was no notice to the owner; here the assessment was against the plaintiff’s mortgagee, and there is no pretence that he was without notice. But even were he without notice, we cannot see any hardship in a law which makes the result complained of possible only through the negligence of the owner. Had the plaintiff complied with the requisitions of the.statute, as in good faith he was bound to do, personal notice of the sci. fa. must have been given to him, or the sale un'der it would as to him have been worthless. Who then was to blame if the plaintiff’s property was assessed in a wrong name ? Not the city officers, for there was no registration of the premises to which they could refer. They did what they could — what was proper under the circumstances — they assessed the property in the name of the person in [192] possession, and who at that" time claimed to own it. And, indeed, if we should concede to the plaintiff what his counsel contends for, in his fourth point to the court below, that is, that he had no title when the assessment was made, then, of course, Nathaniel Ballantine was in fact the owner, and there can be no exception taken to that assessment on any ground. But as, even in the face of such an admission, we can scarcely suppose that it was intended thus to cut up the plaintiff’s case by the roots, especially as the verdict in ejectment, rendered in December 1872, determined the case in White’s favor, we prefer to rest the case on the Act of 1871. . This act was passed for the protection of these municipal claims. They are, as was said in the case above cited, a charge against the property alone, and the proceedings on them are not personal but in rem. Previously to the passage of the act above mentioned, if a property was assessed in a wrong name, and the owner could avoid notice, he wholly escaped from his legitimate share of public burden; his property was improved and enhanced in value at the expense of the city. The Act of 1871 is, therefore, a valuable one, and should be enforced' according to its intent and purpose. By it ample provision is made whereby the property owner may protect himself, and if he neglects to take care of his own interests he has no one to blame but himself. Judgment affirmed.