Cobb v. Barclay

Opinion by Beaver, J., The defendants’ offer, the admission of which constitutes the first specification of error, should have been rejected. The letter of the defendants to their attorney, unless the contents thereof were communicated to the county treasurer, was not competent evidence. The offer did not go far enough and the proof went no farther than the offer. In our view of the case, however, the plaintiff did not suffer by reason of the admission of this testimony, nor would any of the other specifications of error, if sustained, be' of any practical value to him. The law applicable to the admitted facts must rule the case for the defendants and sustain the judgment. The discussion of the various assignments of error, therefore, will serve no practical purpose. These are the admitted facts : August 5, 1890, the treasurer of Potter county sold to the commissioners a tract of land assessed to B. F. Berfild, being fifty acres of warrant No. 4926 in Wliarton township, for the taxes of 1888, alleged to he unpaid, and on September 1,1890, made a deed therefor. September 1, 1896, the commissioners of Potter county conveyed the lot above mentioned, by virtue of a public sale thereof, to the plaintiff, Cobb. It is also admitted that, notwithstanding the sale of August 5, 1890, by the treasurer to the commissioners, taxes were regularly assessed and levied upon the same lot for the years 1890 and 1891 and were unpaid, and that the taxes were returned to the county commissioners for collection. August 26, [576] 1892, the county treasurer sold the same lot to F. C. Leonard, who subsequently conveyed it to the defendants. There was no redemption in fact from any of these sales. Did the plaintiff acquire any title to the land in dispute by virtue of the sale and conveyance by the commissioners in 1896 to him? We thinlc not. This question is fully discussed and clearly ruled in Diamond Coal Co. v. Fisher, 19 Pa. 267, in which the facts are practically similar to those involved in the present case. It is true tli.;t the commissioners, in allowing the regular assessment of the tract purchased by them at treasurer’s sale in 1890, failed in the discharge of their duty, as provided by the 6th section of the Act of March 13, 1815, 6 Sm. L. 299, but, having attempted to collect these taxes by the sale of 1892 to Leonard, they divested their inchoate title previously acquired and had nothing to sell September 1, 1896, to the plaintiff. Both in morals and in equity they were bound by the treasurer’s sale to Leonard, the title under which fully matured before the sale to Cobb. They could not sell the land and keep it. Cobb had no title, therefore, which would support the action of trespass and the court below very properly directed a verdict for the defendant. The fact that the purchaser at the sale of 1892 was the attorney of the defendants does not militate in any way against the validity and practical effect of the sale. The defendants themselves could have purchased at that sale and the deed by the treasurer directly to them would have been perfectly valid. They had a right to cure any supposed defect in their title in this way. Judgment affirmed.