M'Kee v. Lamberton

The opinion of the Court was delivered by Sergeant, J. When the case of Miller v. Keene, (5 Watts 350), came under the consideration of this court, it was not necessary to go beyond the particular circumstances of the case, which was that of a purchaser of seated land, sold for taxes, who knew when he purchased, that the land was seated at the time of the assessment and sale. That principle might rule the present cause as far as respects Lamberton; but as to M’Clelland, a sub-purchaser from him four years afterwards, the application of the principle would lead to the consideration how far he is to be visited with constructive notice. It would be difficult, if not impossible, to lay down any rule which could be a guide on such a point, since it is obvious that besides residence in the vicinity of the land, to which the court below seem to have confined it, many things may be constructive notice, that is to say, the means of obtaining knowledge, which the purchaser in the use of ordinary diligence, is bound to adopt. We are, however, of opinion that it is unnecessary to pursue this inquiry, because in no case whatever is the purchaser entitled to compensation for his improvements made on lands purchased at a sale for taxes, where the land was seated at the time of the assessment and sale. This was' intimated to be the true construction of the Acts of Assembly on the subject, in the latest case, of Coney v. Owen, (6 Watts 435), and the fullest consideration we have been able to give to it, satisfies us that it is the only interpretation of which the Acts admit. The sale of such land is altogether unauthorized and void, and passes no title or colour of title, it being only unseated lands which the Acts of Assembly authorize to be assessed with taxes, and sold for their payment. In respect to seated lands, there is no jurisdiction given to the assessors to charge the land itself with a tax; the remedy to recover the taxes being against the owner or the occupier personally. Nor is there any jurisdiction or power in the treasurer to sell such land, in any case whatever. If, then, the title in the purchaser is wholly null and void, in consequence of the conveyance being made under an assumed authority, without legal countenance, there is no reason why the intruder into [115] such land should compel the owner to pay for the improvements he has chosen to risk upon it, more than when one enters into another’s land under a pretended title, or by disseisin or trespass, in which cases it is a long-established principle of law, that he can not. The express tenor, also, of the 4th section of the Act of 24th of March 1815, confines the right to the value of the improvements to those cases in which a recovery is effected under the previous provisions of the Act, which are where the assessors and commissioners had jurisdiction over the subject, and*power to sell it because it was unseated, but by reason of the tender of the taxes within two years, or of the owner’s having previously paid the taxes, the land is recovered back by the owner, which may embrace other cases within the spirit of these provisions, though not within the express words, as was held in Coney v. Owen, in the case of a donation tract improperly assessed and sold for taxes. In all these cases the land is unseated; the public officers have jurisdiction over it to charge and sell it; but by reason of certain personal exemptions, or other circumstances, the title is defeasible by the owner. But where the land is unseated there is no jurisdiction : the whole proceedings are a nullity, and no kind of title passes. Where a tract of land is sold for taxes as unseated, the purchaser has, in most instances, the means of ascertaining whether it is so or not, by inspection of the land, survey, and inquiry: and indeed, he cannot begin to make improvements on it, without being on it, and having an opportunity of scrutinizing into its condition and character. If it is clearly unseated, he may go on and improve it, subject to the terms of the law, of being repaid the value of the improvements in case it is recovered from him. If it is found to have been seated at the time of the assessment, he knows his purchase is invalid, and it is a want of common prudence to proceed with improvements in such case. There are, it is true, extreme cases, in which a very strict inquiry would be necessary to ascertain the character of the tract purchased, as where a few acres have been cleared over into the tract by some adjoining occupant, which has been held to make it seated; or when the sale takes place several years after the assessment, and valuable improvements have been made by the owner during the interval, which is sometimes done, and has led to cases of extreme hardship on the other side, where the tax title has swept all the improvements together with the land. See Robinson v. Williams, (6 Watts 281). Another case may be mentioned, where a subsequent purchaser comes in after a lapse of years, and may be put to difficulty to ascertain whether the improvements existing on the ground were made before or after the assessment of the tax. But even in these instances, with proper caution and inquiry used on the part of the purchaser, the chance of loss could be guarded [116] against, and they could not alter the general rule of law applicable to the title. Lamberton’s title being null and void, M’Clelland’s title derived from him is no better, and the same principle applies to both. Judgment reversed so far as respects the value of the improvements, and affirmed as to the rest.