Huston v. Foster

The opinion of the Court was delivered by Gibson, C. J. By the common law, which views every invasion of the sanctity of property with peculiar jealousy, an authority to divest the title of another is required to be strictly pursued, and as the maxim omnia rite presumuntwr is appropriate but to judicial proceedings, no intendment in respect to the exercise of it is to be made in favour of what does not appear; so that every act whose performance is made a condition of the divesture, must be shown by proof. It is this principle which requires the assignees of a bankrupt, in an action against a third person, to show the. commission and the regularity, of the proceedings under it up to the assignment by the commissioners : and it was a misapprehension of, perhaps its existence—certainly of its nature and extent, which baffled the attempts of the legislature to remedy the inconvenience of its application to sales of unseated land for taxes. The object was not attained till the act of 1815 dispensed with the principle altogether: the curative provision of which, however, has been said in the argument to be adapted only to sales by the treasurer and not to those by the commissioners, having bought in for the benefit of the county. The remark is undoubtedly just; and why ? Because those sales were never in need of it; the common law principle, which it was intendedto subvert, being inapplicable to a-disposition by the owner himself. Here it is admitted that the title had passed from the original proprietor to the county, which was disposing, by the instrumentality of its officers, Of its own land ; so that in an action between its vendee and a wrong-doer, every intendment is to be made in support of the sale. The act, indeed, points out a mode by which an indefeasible title may undoubtedly be vested in the purchaser; but I am unprepared to say that its provisions in this particular are not barely directory ; or that the admitted want of an intermediate link would be [479] fatal to the title between the purchaser, and any one but the county or a person standing in privity to it. But were it otherwise, no such want of a link is shown or admitted here, the reliance of the defendant being on the absence of proof by the other side. As to the offer to redeem, or rather to appropriate money paid on general account to the taxes due on this particular tract, that could not have been done without the consent of the former owner; and taking for granted that M’Cahen was authorized to act for Mrs Cadwallader, yet when he called on the commissioners to do so, the day of redemption had gone by, and the title of the county had become indefeasible. The objection to the deed for want of the corporate seal, rests on different ground. Originally a deed under the common seal of county commissioners was utterly void ; though it appears, by the Lessee of Watt v. Gillmore, 2 Yeates 330; Lessee of Simon v. Brown, 3 Yeates 186, and M’Cay v. Dickinson College, 5 Serg. & Rawle 254; that such a seal had been sometimes used. How far its use has since been sanctioned it might not perhaps, be necessary to determine. But we find the legislature declaring, in the act of the 11th of April 1799, that “ the commissioners of each county within the commonwealth shall have and use one common seal for the purpose of sealing their proceedings; and copies of the same, when signed and sealed by the commissioners, and attested by their clerk, shall be good evidence of such proceedings on the trial of any cause in any of the courts of this commonwealth.” This provision seems to relate rather to the record of transactions in the office, that may require an act of authentication, than to a single determinate act in pais, which going into the hands of the grantee, is susceptible of authentication as other conveyances are. Certainly the mode of authenticating these deeds is not so conclusively directed by statute, as to exclude the mode of execution authorized by the common law, before county commissioners were recognized as a quasi corporation. Every consideration of policy requires a deed thus executed to be sustained; nor does the recognition of it imply that the use of the common seal in similar cases is necessarily to be held bad. Many titles might be shaken by it; and it certainly would not conduce to the repo.se of the community, to hold the commissioners strictly to the observance of technicalities. Even where they have affixed their common seal to their individual signatures, it would require no great stress of ingenuity to take it separately for the seal of each, adopted for the occasion. However that might be, the presence of the private seals of the commissioners puts the validity of the instrument beyond the reach of dispute, and authorized the unqualified direction given by the judge that the plaintiff was entitled to recover. Judgment affirmed.