McClements v. Downey

Opinion by Rice, P. J., This was an action of ejectment for a part of a tract of land — 453 — in the warrantee name of John Bowsman or Bousman, in Pine township. The plaintiffs claim under two tax sales of unseated land in the name of John Bowman in Green township; the first in June, 1852, to James Mitchell, and the second in June, 1856, to James Dixson. It is claimed that both of these titles became vested in Bernard McCaffrey, the plaintiffs’ ancestor. Pine township was set off from Green township in 1849. The principal questions are: (1) Whether the Doyle improvement seated the whole tract. (2) Whether the failure to give a surplus bond invalidated the sale of 1856. (3) Whether an assessment of land in the name of John Bowman, in Green township, sufficiently identified a tract in the warrantee name of John Bousman or Bowsman, in Pine township. 1. The evidence went to show that Michael Doyle made an improvement on the Bousman tract as early as 1849; that he cleared thirty or forty acres; that he built a house and barn, raised crops, and lived on the tract, and that he claimed about ninety acres. It is stated, in the appellant’s history of the case, that he went into possession under a contract with the owners for the sale of ninety-eight acres, of which seventy-five were part of the Bousman tract and the residue part of the Meyers tract adjoining, and that Ms purchase was surveyed off to him. Unfortunately for the plaintiffs the record of the evidence, as returned to us, wholly fails to show these important facts. It does not appear in the evidence what his title was, or that he had any title prior to his deed of September 29, 1852 (which was after the treasurer’s sale in question), or that the boundaries of Ms claim were defined by any contract or deed or by lines run or marked on the ground, or in any other way prior to the sale of 1852. The special findmg of the jury is : “ we do not find any marks or lines to identify the Doyle tract from the remainder of the tract prior to 1851.” An entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purpose of residence or cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 W. 504; Kennedy v. Daily, 6 W. 269; Wallace v. Scott, 7 W. & S. 248; Mitchell v. Bratton, 5 W. & S. 451; Wilson v. Watterson, 4 Pa. 214. Nothing is better settled than this: Biddle v. Noble, — 454 — 68 Pa. 279. See also Jackson v. Stoetzel, 87 Pa. 302, where many of the cases will be found collected. But where an intruder designates the part that he claims, by lines distinctly marked upon the ground, he is only liable for the taxes of the part claimed by him, and the remainder of the tract may be sold as unseated: Campbell v. Wilson, 1 W. 503; Harper v. McKeehan, 3 W. & S. 238. If, however, he does not designate or limit his possession or claim by metes or bounds or lines made upon the ground or in some other way, his entry and possession will be considered as giving the character of seated land for the purposes of taxation to all lying within the bounds of the tract or survey as previously designated into which he has entered: Mitchell v. Bratton, 5 W. & S. 451; Jackson v. Sassaman, 29 Pa. 106; Green v. Watson, 34 Pa. 332. The case of Ellis v. Hall, 19 Pa. 292, is sometimes referred to as authority for the proposition that there is a distinction between an improvement by the owner and one by a mere intruder, and that in the latter case the seating of the whole tract depends wholly upon the .intention of the intruder — whether to appropriate the whole or only a part of the tract. There is a distinction, it is true, and Judge Loavkib did suggest in that case that the intention must necessarily enter into the question; for, says he, no man can properly be charged with taxes on land which he does not claim to own or use, nor beyond the extent of his claim; but he did not say, and the case is not authority for the proposition, that a mere claim of a certain number of acres without in any way defining the boundaries of the claim works a severance. In a later case the court stated this question: “ But is it true, where an intruder enters upon a tract of unseated land, clears and cultivates a part of it, without any intention of appropriating the residue, that he is only liable for the taxes of the part cleared and cultivated by him, and that the remainder of the tract remains unseated and may be assessed and sold as such ? ” This it will be noticed is the precise question before us. After an elaborate discussion of Ellis v. Hall, this conclusion was reached: “ A tract of land may be severed by an intruder or by operation of law, and when its entirety is once destroyed, a part may be seated and a part unseated, but the intention of an intruder will not destroy its entirety unless that intention is evidenced by an open and notorious act, such as marking the extent — 455 — of his claim upon the ground, thereby indicating to the owner and to the public how far his possession extends: ” Jackson v. Sassaman, 29 Pa. 106. In the case of Biddle v. Noble, 68 Pa. 279; it appeared that one Middleton had made an improvement on a tract of eleven hundred acres. The owner, by article reciting that Middleton owned an improvement “ on which he now resides,” agreed to sell him two hundred acres, so as not to interfere with the claim of any other settler. There, as in the case at bar, the settler’s claim as to the number of acres was defined, but it was nevertheless held that the contract did not so define the land as to sever it from the remainder of the tract, and that, in the absence of a demarcation of the boundaries of the claim, by a survey, or by marks on the ground or by fences built or in some other visible and notorious way, the improvement had the effect of seating the whole tract. Applying these principles to the facts of this case, as they are presented to us on the record,we are constrained to hold that the tax sale in 1852 passed no title, for the reason that the evidence does not show such a demarcation of the boundaries of the Doyle improvement and claim by survey, by marks on the ground, or otherwise, prior to his deed of September 29, 1852, as would sever it from the residue of the tract and leave the latter liable to assessment and sale as unseated. 2. The legal proposition involved in the ruling which is the subject of the first and sixth assignments of error is, substantially, that when unseated land is sold by the treasurer for an amount equal to the taxes and costs, and the deed recites the fact that they were paid by the purchaser, and does not recite the giving of a surplus bond, the presumption is that none was given; therefore, the purchaser asserting such title in an action of ejectment must prove the due and legal assessment of all the taxes for which the land was sold; it is not enough for him to prove that some of them were regularly levied and assessed. This is putting a pretty heavy burden on the purchaser; but assuming-for present purposes the correctness of the ruling as an abstract legal proposition, what proof of an assessment must the purchaser furnish in order to make out a prima facie case ? Let us examine this question with reference to the facts of the present case. In this examination we are not to be understood as dealing with the evidence by which those facts are to be — 456 — established, but with the facts themselves, assuming them to have been established by competent and sufficient evidence. The plaintiffs offered to prove the following facts: (1) The commissioners certified the John Bowman tract in Green township to the county treasurer, with, the following taxes charged against it as unseated land. Co. St. School Road. 1852. $1.20 $1.20 $2.80 $4.00. 1853. 1.60 1.20 2.80 4.00. 1854. 1.60 1.20 4.00. 1855. 4.00. Total, $29.60. (2) The land was bought at treasurer’s sale in June, 1856, by the plaintiffs’ predecessor in title, for the foregoing taxes and costs. (3) The state and pounty taxes were regularly levied and assessed, and the school and road taxes against the land were regularly returned to the commissioners as unpaid. Under the statutes then in force the county commissioners were empowered, and it was their duty to enforce collection of the latter taxes in the same manner that county taxes were collected: Act of April 6,1802, sec. 7, 3 Sm. L. 515; Act of March 30, 1811, 15 Sm. L. 252; Act of June 13, 1836, sec. 7, P. L. 525. According to the offer they proceeded to perform this duty by charging against the land the taxes thus returned, and certifying the same to the county treasurer along with the county taxes. In declaring upon tins statement of facts, that there was no evidence of an assessment of the road and school taxes, and that therefore the sale was void because the purchaser did not give a bond for the surplus over and above the county and state taxes, we think the court failed to give due effect to the curative provisions of the act of March 14, 1815 (6 Sm. L. 300), and the provisions of the act of April 12, 1842 (P. L. 266), relative to the records of the county commissioners as evidence of an assessment. Where the treasurer upon a sale of unseated lands for taxes charged too much for costs, and thus appropriated the whole amount of the purchase money to the taxes and costs, whereas upon a correct calculation there would have been a surplus for which the purchaser should have been given a surplus bond, it was held that his — 457 — not having done so would not under the circumstances defeat his title: Gibson v. Robbins, 9 W. 156. Where the bond was given for a less sum than it ought to have been owing to the fact that part of the taxes for which the sale was made were not legally assessed against the land, it was held that it was such an error of the officers as the purchaser was not bound to look into, and would not affect his title: Frick v. Sterrett, 4 W. & S. 269. Two tracts of land were assessed in the name of George Cooper, one for taxes amounting to $2.34, and the other amounting to $15.52. In transferring them from the assessment books to the treasurer’s sale book the amounts were transposed so that the land in dispute, which had been assessed with $15.52 was sold for the taxes of $2.34. The amount bid was $6.00, and the surplus, after adding $2.87 costs, was 74 cents, for which the purchaser gave bond. It was held that this was an irregularity merely, which came within the curative provisions of the act of 1815: Bayard v. Inglis, 5 W. & S. 465. Want of assessment in fact by some competent authority is not such an irregularity as is cured by the act of 1815: McReynolds v. Longenberger, 57 Pa. 13. But the act of 1842, without dispensing with the necessity of proving an assessment, widens the range of the evidence by bringing into the case “all records of the commissioners’ office charging land as unseated with arrears of taxes:” McReynolds v. Longenberger, 75 Pa. 13. See also Bratton v. Mitchell, 7 W. & S. 259; Cuttle v. Brockway, 24 Pa. 145; Thompson v. Chase, 2 Gr. 367; Wells v. Smyth, 55 Pa. 159; Heft v. Gephart, 65 Pa. 510; Hess v. Herrington, 73 Pa. 438; Greenough v. Fulton Coal Co., 74 Pa. 486. None of the cases cited by the appellee is authority for holding that the deed is void if a surplus bond is not given under such circumstances as these. All that they decide is, that, where there is a clear surplus, the giving of a bond is indispensable, and that its place cannot be supplied by payment of the money: Connelly v. Nedrow, 6 W. 451; McDonald v. Maus, 8 W. 364. But in the present case there was apparently no surplus. The treasurer would not think of demanding nor would a purchaser think of tendering a bond under such circumstances. Therefore it may be fairly presumed that none was given. But the reason for presuming this is an equally good reason why the purchaser should not forfeit his title on — 458 — account of a possible irregularity for which he was in no wise responsible. If, as the plaintiffs offered to prove, the John Bowman tract was regulariy assessed as unseated land, with the county taxes heretofore mentioned, the treasurer had authority to make the sale, and a title would pass although there were no evidence of an assessment of the road and school taxes sufficient to support the sale: Bratton v. Mitchell, supra. And if the latter taxes were regularly returned to the commissioners by the proper local officers, and were charged against the land by the commissioners, and the land was sold for a sum sufficient only to pay the taxes apparently charged against it, and the costs, and the purchase money was paid, the omission to give a surplus bond, even if that is to be presumed, would not render the deed void. 3. There remains the question of identification. After an exhaustive review of all the earlier cases, Judge Agnew said: “ The result is that where the assessment wholly fails to lead to identification, so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed and the assessment is void: ” Phila. v. Miller, 49 Pa. 440. The doctrine of that case, as affirmed and explained upon a second writ of error, was further discussed in a still later case, and was declared to be “ that the assessment itself, which is the record that states the land upon which the duty of paying the taxes is imposed, must contain some element either of circumstance or name which will lead to identification. . . . : the assessment is void only where it wholly fails to lead to identification. But although there be no other element of description, yet, if the name in which the assessment is made has become linked to the land by some known claim of title or possession, the cases cited and commented on in the opinion show that it is a source of identification and will support the assessment: Strauch v. Shoemaker, 1 W. & S. 166; ” Glass v. Gilbert, 58 Pa. 266-290. These principles have been recognized and applied in later cases and may be considered as well settled: Lyman v. Phila., 56 Pa. 488; Brotherline v. Hammond, 69 Pa. 128; Hess v. Herrington, 73 Pa. 438; Franklin Coal Co. v. Bertels, 109 Pa. 550; Putnam v. Tyler, 117 Pa. 570; Fisk v. Corey, 141 Pa. 334. Identity of name is prima facie evidence of identity of tract, but the names “Bousman” or “Bowsman” — 459 — are not identical in orthography or sound with the name “ Bowman ” and it seems plain that the name “ John Bowman ” applied in the assessment to a tract in Green township does not of itself and without more identify a tract in the warrantee name of “John Bousman” or “Bowsman” in Pine township; especially where there is no evidence that there was not a John Bowman tract in Green township. If the case rested here the question would be, not merely whether the assessment was void, but whether the land assessed and sold was the land in controversy. The burden of proof was on the plaintiffs, and while the question of identity is one of fact, to be decided by the jury, a jury has no more right to infer the fact without proof than the court. Recognizing the necessity of other proof to connect the name given in the assessment with the tract in controversy the plaintiffs attempted to show 'that it was known in the community as the Bowman tract. The first witness, upon his direct examination, seemed to be uncertain whether the tract was known as the Bogman, the Bausman or the Bowman tract, and upon cross-examination he admitted that it was likely that his first knowledge that it was called the Bowman tract was obtained only some ten or twelve years before, from Bernard McCaffrey, the plaintiff’s ancestor. The testimony of the second witness was equally vague and uncertain, and besides that, he admitted that he had only known the land about fifteen years. Even if it be conceded that it was competent to identify the tract by proof that it was known in the community by the name given in the assessment, the testimony above referred to — which is all there is upon the subject — was too vague and uncertain to warrant a finding that it was commonly known as the John Bowman tract. The learned judge was clearly right in holding that upon the evidence actually before the court and jury, there was no sufficient identification of the land assessed and sold. The foregoing conclusion is based on the evidence actually before the court, which it must be understood related solely to the sale in 1852 and the assessments on which it was made. In the face of the plaintiffs’ offer, the rejection of which is the subject of the sixth assignment of error, it is not fair to assume that it was all the evidence which the plaintiffs could furnish to sustain the assessments upon which the sale of 1856 was — 460 — made. In connection -with the other facts relative thereto, which we have heretofore considered, the plaintiffs offered to prove that the land in controversy was generally known as the Bowman tract, and that the owners knew that that tract was being sold. In ruling upon this offer as a whole the learned judge said that such evidence was competent and would be received. It is evident however that he had reference to the sale and deed of 1852; for he said, “ as to the deed made in 1856, that question is entirely settled by the ruling of the court.” It is argued and we think conclusively that it would have been useless to introduce the offered evidence as to the identification of the tract in the assessments and deed of 1856 in the face of this positive ruling that the sale was void because no surplus bond was given. We must assume therefore that if the deed had been admitted, the plaintiffs would have made good their offer as to the subject of identification. The authorities agree, if we understand them correctly, that an assessment is not required to contain in itself all the circumstances which are necessary and sufficient to identify the land without resort to other evidence. It must be a “ source of identification ; ” it must “ lead to identification.” For example, if the assessment be in the name of some person who has been an occupant of the land, or of some person who has claimed title to the land, those facts need not, and ordinarily would not appear on the face of the assessment, but may be proved by evidence aliunde. Where the circumstances which are relied on to show the association of the name given in the assessment with the land clanned, rest in parol, as they must in many cases, the question of identification must necessarily be submitted to the jury as a question of fact: Franklin Coal Co. v. Bertels, 109 Pa. 550; Woodside v. Wilson, 32 Pa. 52. Land lying in one township may pass under an assessment and sale for taxes describing it as lying in another, provided there are other means of description sufficient to identify the land, of which, generally, the jury are the judges: Stewart v. Shoenfelt, 13 S. & R. 360; Miller v. Hale, 26 Pa. 432. “ In making out an actual assessment of unseated land which has been sold for taxes, much liberality has always been shown by the courts in receiving evidence. . . . Until all the evidence bearing upon the question of the assessment is in, it would be unsafe for the court to pro — 461 — nounee upon its effect: ” Agnew, J., in Lyman v. Phila., 56 Pa. 503. The name Bowsman might very naturally come to be written and. spoken Bowman, and the tract come to be commonly known by the public and the taxing officers as the Bowman tract. ■ If these facts can be established by competent testimony, and if, in addition, the plaintiffs can prove that the owners knew that the tract assessed and sold in that name was the John Bowsman tract, we are of opinion that the question of identity should be submitted to the jury under properly guarded instructions. 4. As the case must go- back for another trial, a word should be added as to the offer- of evidence, the rejection of which is the subject of the seventh assignment of error. A severance of the Doyle claim and improvement was effected by his deed of September 29, 1852. Thereafter the residue of the tract might be assessed and sold as unseated, if it was in fact so. Evidence that at the time of bringing suit (1880) it was all woodland, and that from the appearance and character of the land it had never been cleared, might not conclusively prove that it was unseated at the time of the imposition of the taxes for which the sale of 1856 was made, but it would have a tendency in that direction, and would be proper for the jury’s consideration. The judgment is reversed and a venire facias de novo awarded.