Stark v. Shupp

Mr. Justice Gordon delivered the opinion of the court, April 12th, 1886. This was an action of ejectment brought by the plaintiff, George W. Stark, for the recovery of a certain piece of land, situated in the township of Lemon, county of Wyoming. He claimed title by virtue of a tax sale, made by the treasurer of the said county under the 41st section of the Act of the 29th of April, 1844. In order to establish his right to the possession claimed, under the Act above stated, it behooved the plaintiff to show the treasurer’s authority to make the sale, and to this end it ought to have appeared that all material conditions and prerequisites had been complied with; as that a tax had been duly assessed upon the property by the proper officers; that such tax had not been paid, and that sufficient personal property could not be found on the premises out of which it could have been collected. Of the latter, the return of the collector is prima facie evidence, but the only proper proof of the former are the duplicates and assessments found in the commissioners’ office. It was in this that the plaintiff failed. It is true, that the assessment book,and the duplicate issued .by the commissioners to the collector of Lemon township, would have been entirely sufficient for the purpose for which they were offered, had it appeared from them, or either of them, that the taxes for which the land was sold had been properly assessed against it: Fager v. Campbell, 5 Watts, 287. But it is certain that land, whether seated or unseated, can be sold for no other taxes than those assessed upon it. Now, one of the objections to the assessment offered in evidence was, that it thereby appeared that the valuation included, not only the land in controversy, but also personal property, and that the assessment of four dollars and ninety-three cents, was not levied upon either separately but upon both jointly. This .being the fact the duplicate was properly excluded, for a levy of this kind would not sustain the treasurer’s sale, hence, its admission would have been to no purpose. We repeat, the land could be sold only for its own tax, properly assessed upon it, and not for a tax on personal property. As the tract in controversy was sold for this joint tax, it is dear that the sale was void. Under the Act of 1844, the collector has no power to return such a tax, neither has the treasurer power to collect it by a sale of' land. The plaintiff, as [400] we have already said, was bound, in order to sustain his case, to show the warrant under which the treasurer acted in the disposition of the land in controversy, and that warrant must have its foundation in some Act of Assembly, otherwise that officer had no jurisdiction whatever, and his deed was good for nothing. As, however, the plaintiff has failed to call our attention to any statute which warrants a .sale of land for a tax assessed jointly on real and personal property, we must hold that the court did right in directing a verdict for the defendant. The judgment is affirmed.