Shaw v. City of Allegheny

Mr. Justice Stekkett delivered the opinion of the court, January 3d, 1887. It is at least doubtful whether we should consent to review a perfunctory judgment such as this appears ,‘to be by the admission of the learned judge who entered it. In the brief opinion accompanying the record he says: “By agreement of counsel, the facts set forth in the affidavit of claim are to be considered as a case stated, and it is desired to have the case decided without delay so as to get it before the, Supreme Court this term. The late day when it is submitted, (October 22d) and that without argument, makes it impossible for the court to give the case a full consideration.” The practice of unduly speeding causes through courts of original jurisdiction and disposing of them sometimes without any, and often, as in this case, without “ full consideration,” for the purpose of bringing them into this court, is a growing evil that ought to be corrected. According to the theory of our system.of jurisprudence, the parties litigant, as well as the appellate court, are entitled, in every ease, to a full consideration and deliberate judgment of the court below. Waiving, in this case, the doubt above expressed, the agreement of counsel in the nature , of a case stated presents for consideration two general questions, which, as we interpret the agreement, are to be disposed of on their merits and without regard to technicalities : 1st. Whether the taxes which plaintiff alleges he was compelled, by stress of legal process, to pay, and which he now seeks to recover, continued to be a lien on the property after he acquired title thereto by purchase at sheriff’s sale in July, 1878? 2d. Whether, under the circumstances, the payment of the taxes and costs to prevent sale of the property by the sheriff was, in the legal sense, a voluntary payment ? The Act of February 27th, 1860, (P. L. 85,) relating to the lien of municipal taxes in the city of Allegheny, declares “such liens shall have priority over and be fully paid and satisfied before any lien whatever (except other taxes) on said real estate.” The Act of April 14th, 1863, relating to the collection of the taxes, provides that if they cannot be collected for want of goods and chattels on which to levy, the receiver of .taxes or [53] treasurer shall certify the fact to the city solicitor whose duty it shall be to file said certificate in the office of the prothonotary, 'and “ he shall enter the same on the judgment docket as judgments are entered, and a writ oí fieri facias shall forthwith be issuable thereon, by virtue of which the sheriff..... shall levy upon and, sell the real estate upon which said taxes have been assessed,.....which sale shall vest in the purchaser of said real estate, all the right, title and interest of the defendant in' said writ.” The taxes in question for 1877 and 1878, having been assessed while Dr.' Hartmeyer owned the property and prior to the sheriff’s sale, under which plaintiff acquired title, were of course liens thereon at-the time of the sheriff’s sale. According to the well settled rule, as to the divestiture of liens by judicial sales, it cannot be doubted that these tax liens, except perhaps the “Park, tax,” were divested by the sale on execution against Dr, Hartmeyer, and the lien creditors were remitted to the proceeds sale for payment of their respective claims. If the property was sold for a sum insufficient to pay the tax liens, it was the fault of the collector or receiver of taxes, whose duty it was to guard the interest of the city and see that it was bid up to a sum at least sufficient to pay them. But, the result was that plaintiff, as purchaser at the sheriff’s sale, acquired the property divested of the tax liens. The facts, bearing on the second question, are substantially these: Several months after plaintiff acquired title and took possession of the property, certificates were filed under the Act above quoted, and without notice to him, judgments were entered for the taxes of 1877 and 1878, as though the liens therefor had not been divested. Plaintiff’s property having been levied on and advertised by the sheriff, he appealed to the equity side of the court for relief, but it was denied, and he was thus compelled either to submit to á sale of his property, by which his title thereto might be imperiled, or pay the taxes and costs. On the eve of the sale he chose the latter alternative and paid the city’s unjust demand under protest. In a legal sense, was this a voluntary payment? We think not. In Union Insurance Company v. City of Allegheny, 101 Pa. St., 250, 257, it is said of the Insurance Co., which was similarly circumstanced, except that it did not apply to the court for redress, that “by application to the equitable powers of the court, or by bill in equity, execution might have been stayed and the claim removed from the record.” That is just what plaintiff in this case endeavored to do, but without success; and therein is the distinction between that ease and this. Belief, in the form suggested in that case, was asked, but it was refused, as we think, erroneously; and plaintiff was Com [54] pelled to choose one of the two alternatives above mentioned. If there is anything, against which equity should relieve, it is an act of injustice and oppression, such as the city was pro? ceeding to commit by exposing plaintiff’s property to sale on liens which had been previously divested by sheriff’s sale. It has been contended by defendant in, error, that having applied for an injunction to restrain the city from proceeding to sell his property, plaintiff was bound to pursue that remedy to the exclusion of every other. In view of the refusal of the court to grant the relief he was entitled to, we are not prepared to say he was; but, aside from that, we do not understand that any such technical question is presented by the case stated. Plaintiff’s counsel agreed at bar to relinquish his claim, for amount of “Park taxes” paid by him, on the ground that the liens therefor were not divested by the sheriff’s sale. These, amount in the aggregate to $14.00. For the amount of the remaining taxes, the lien of which was undoubtedly divested, aggregating $469.84, including costs paid by him, plaintiff is entitled to judgment. Judgment reversed, and judgment is now entered, on the case stated, in favor of plaintiff and against defendant for four hundred and sixty-nine dollars and thirty-four cents, with interest from July 1st, 1885, and costs.