Foust v. Ross

[505] The opinion of the Court was delivered by Huston, J. Previous to the Act of 1815, the courts in this state had decided, that in showing title to lands sold for taxes, the purchaser must at the trial show that every step directed by the Acts of Assembly for assessing, advertising, and selling lands not inhabited, and for which the owners had not paid the taxes, must be literally and strictly complied with. These requisites, thus called for, were so numerous, and the evidence that they had been complied with, was so various, and, none of it being on record, so liable to accident and destruction by those interested, that it was supposed no title so acquired could be valid. It was also liable to this inconvenience, that the older the title, the more difficult it was to produce all the evidence required. At length, the Statute of Limitations was called in to aid such titles. At first the sales were made by the commissioners; and, strange as it may seem, their deeds were executed by two or more of them as a corporate act, and one seal was affixed, though they had no common seal. These sales were soon determined to give no title; and the sales and the deeds too, in common parlance, were spoken of as void. Yet in M’Coy v. Trustees of Dickinson College, a deed of this kind was admitted in evidence, as showing that the purchaser held under colour of title, that he claimed under his deed, and of course adversely to all others, and as designating the extent of his claim. In Read v. Goodyear, (17 Serg. & Rawle 350) the land was sold in 1803; the purchaser had paid the taxes from that time to the trial, more than twenty-one years; the former owner had never paid or offered to pay any taxes. The purchaser, and those claiming under him, held the land, though no proof of the regularity of the proceedings to sell could be given. I refer to that case as showing the state of things at, and previous to that decision, and the grounds on which it was held that the negligence of the owner was held to be sufficient to justify a jury in finding that the former owner had abandoned his claim and the land. In Royer v. Benlow (10 Serg. & Rawle 306) Chief Justice Tilghman had said, neglect to look after land, or pay taxes for more than twenty-one years, would justify a jury in presuming an abandonment. In Foster v. M’Divit (9 Watts 344), it is said an exact compliance with all the requisites prescribed by the laws, is only necessary as between the former owner and the purchaser. An actual possession, or such constructive possession as a purchaser at a tax sale has, is all that is required against one who enters without right. All that is required of a plaintiff in ejectment, in the first instance, after showing such title as he purchased to have been granted by the commonwealth, is to prove that the land was sold for taxes assessed, and exhibit his deed as against an intruder. This is such a prima facie title, as to put the defendant to the necessity of showing a better right. A trea [506] surer’s deed, and subsequent payment of taxes, is sufficient to recover against one who enters without title. If this case, which had but lately beén published, had been seen at the trial below,-we may suppose this cause would not have been brought to this court. The present case comes before us on bills of exceptions to testimony, and on exception to the charge of the court on the effect of that testimony. Some of the evidence offered by the plaintiff would at first view appear irrelevant; or, at least, such as would only have been proper .as rebutting evidence. The case, however, is in some respects under peculiar circumstances. A defendant in ejectment may show an outstanding title in a third person; but it must be a valid subsisting title; not one abandoned, derelict, or barred by the Statute of Limitations. The plaintiff first showed a warrant, 30th of August 1792, to Mary Custard, and a survey and return on it for 4014 acres. Now, this showed title to have been at one time in Mary Custard, or whoever owned that warrant; and the plaintiff must show a better title, or a transfer of that title to himself, or it would he an outstanding title against him. He was proceeding to show a transfer of that title by a sale for taxes; that sale was before the Act of 1815. He must then show a strict compliance with every requisite prescribed by every Act for the sale of unseated land; or, according to the cases above cited, show what would amount to an abandonment of the title of Mary Custard by its owner; as the above cases show, that not looking after the land, or paying taxes for twenty-one years, may be sufficient evidence of this: but upwards of thirty years makes a lapse of time which, though perhaps not stronger in law, yet is as good in law, and strikes the mind as more conclusive. The plaintiff relied on a deed from the sheriff of Luzerne county, dated in 1809, and the payment of taxes since. It was not necessary to go further back, but if he could show that Mary Custard had been taxed from 1805, by the.assessments in the commissioners’ office, had never paid those taxes, and the land had been directed to .be sold before 1809, had been publicly advertised in the “ Luzerne Federalist,” “ Democratic Press,” and “ United States Gazette,” in 1809 ; though all the newspapers could not be produced, showing a continuance regularly for the prescribed time in each of these papers, it was not error to. admit all this evidence; it had a bearing to prove a total dereliction or abandonment by the former owner, which, in this case, was as essential to the plaintiff, as to show a sale, not in all respects regular, .to himself. The warrant to sell for unpaid taxes, signed by the three commissioners, was objected to, but no reason is stated except that it was directed to the sheriff of Luzerne county, and not to Jacob Hart, sheriff of Luzerne. Now this was no objection. The sale-book, as it is called, of Jacob Hart (that is, a book in which he entered the tracts sold, and the purchasers, and the price) was [507] offered. In this case it was not necessary, because the deed was in the hand of the counsel to be given in evidence next. But perhaps the two were offered together; the book might have been omitted; it was not an error for which to reverse. If this book had been offered to supply the place of a lost deed, it might, without other evidence, have been a question of more difficulty; if offered, as in a late case, to prove that tax had been assessed and was due, it would not alone have proved it. The admission of the deed by the sheriff for the tract in question was then offered and objected to. There was on it a certificate of the prothonotary and seal of court, that it had been acknowledged in open court. The commission and oath of office of the sheriff had been given in evidence; these were unnecessary; there was no error in admitting the deed. Plaintiff then showed the payment of taxes since by himself, as per receipts, until this suit brought. Plaintiff then offered a paper, dated 3d of July 1816, found on file in commissioners’ office, according to the Act of 1806, stating that this tract was owned by the plaintiff, William Ross. There was no mark showing when filed in the office. Alone, it would have been an immaterial paper — would not have been any evidence of title—but, being directed by Act of Assembly, and as connected with other evidence in this cause, there was no error in receiving it. By the 3d section of the Act of 3d of April 1804, no action shall be brought for the recovery of lands sold for taxes, unless the same be brought within five years after such sale. The court held this only applied to cases where the purchaser entered into possession; so that a writ might be served on him. The Act of 29th of March 1824, prescribed a mode of giving notice to the purchaser, when he did not live on the lands or in the county, and gave former owners two years from that time, within which to commence suits. Now, although both these provisions were for the benefit of the former owner, and to protect the purchaser, if no suit was brought against him within the prescribed period, yet it is impossible not to see their bearing on a case like this. If the owner, Mary Custard, has lost all right by law, and the title of the purchaser is indefeasible against such owner, it is not easy to see why such purchaser, who has taken possession, or paid taxes, has not a good title against an intruder. The defendant showed no title; and the court told the jury, that on the evidence the plaintiff was entitled to recover. This is here objected to, as taking the facts from the jury. When there is evidence, especially parol evidence, on both sides, generally the facts must be left to the jury; but when the defendant gives no evidence, and shows no right, but objects to the title of a plaintiff in ejectment, it very much resembles a demurrer to evidence, the decision of which is always with the court. In this case the [508] question was, whether by law, taking into view the length of time beyond twenty-one years, the plaintiff had shown a title which gave a good right of entry against one who had no right, but was recently in possession without right; and in such a case it was not only the right, but the duty of the court, taking into consideration the Acts of Assembly, and the settled construction of them, to say, as was said here, that the plaintiff was entitled to recover. But in this court an objection was taken, which was not mentioned at the trial, and not assigned for error. This might be a sufficient cause for not noticing it here; but it is thought best to remark on it. The deed from the sheriff to Ross was in due form, and on it was a certificate under the seal of the court, and official signature of the prothonotary, that the deed had been duly acknowledged in open court. But it was objected that the docket was not exhibited to show that the acknowledgment was duly entered on it; and in support of the objection the plaintiff in error cited Bellas v. M’ Carty, (10 Walts 21); Patterson v. Stewart, (10 Watts 470). In neither of these cases was the deed produced with the certificate of the acknowledgment, under seal of the court, endorsed on it; and in both these cases it was shown or admitted that no entry of the acknowledgment had ever been made on the docket. It has not been decided that an entry under seal and signature of the acknowledgment, is not in any case primA facie evidence. The cases cited only show that a majority of the court decided that this may be rebutted, by showing that such acknowledgment was not and never had been on the docket. If in this case the deed as offered was evidence, and nothing was shown to contradict the official certificate, that certificate must be taken to be true. Judgment affirmed.