Jenks v. Wright

The opinion of the court was delivered, May 11th 1869, by Thompson, C. J.

By the 7th section of the Act of 13th March 1815, the county commissioners of the several counties were authorized to sell at public sale and convey any lands bid in by them at *413 treasurer’s sales of unseated lands, under the authority of the 6th section of the act, and remaining unredeemed, after the lapse of five years; hut the kind and length of notice to be given preceding such sales was not prescribed by the act. But afterwards, on the 29th March 1827, a supplement to the Act of 13th March 1815 was passed which, among other things, supplied this obvious deficiency, in which the notice to be given by the county commissioners was prescribed to be by publication, in all the newspapers of the county where the land lay, for the period of thirty days preceding such sale, “ particularly designating the tracts to be soldand in case no newspaper should be published in the county, then in one in the county next adjoining, and by six written or printed advertisements put up in public places in the proper county.

This precise statutory direction was an element in the power of the commissioners to sell, which if wanting, there being no provisions of law curative of irregularities, as in the Act of 1815, must necessarily render a sale, without the observance of these pre-requisites, void. The mandate of the law being so, its disregard would, as a general rule, be sufficient to render void the act of its ministers. But there was a two-fold purpose in requiring notice, and a designation of the tracts to be sold, beyond mere -form. One was to prevent favoritism in the sales; but the principal one was, doubtless, to reach the owners with notice, so that they might avail themselves of the permissive right to redeem after the lapse of five years, a practice everywhere allowed. The notice required to contain a designation of the tract proves this. The county, if selling as absolute proprietor, would be interested in nothing more than a general designation, sufficient only to attract purchasers. The special designation was intended to reach the eye of the owner, and if possible prevent the loss to him of his property for a trifle, by enabling him to redeem from the county before’ sale. Of course, after that, the commissioners would be powerless in regard to the land. That this was a principal reason for the required notice and a designation of the land previous to the sale, is strengthened by the consideration, that the Acts of Assembly for the sales of unseated lands by the county treasurer, or by the county commissioners, are tax laws, and the object of the sales is the collection of taxes. In authorizing this, the sacrifice of individual property as a forfeiture was not intended, and all these provisions were intended to prevent it, consistent with the duty to collect the tax: Steiner v. Coxe, 4 Barr 15. It is logical, therefore, to hold that until the county has parted with its title to lands bought in for non-payment of taxes, to others than original owners, by the performance at least substantially of the required pre-requisites to a sale, that the title remains in her, so far at least as such parties are concerned. The county might be estopped from asserting ■irregularities in its own sales, undoubtedly, if it attempted to do so.

*414 To apply these principles: After the lapse of five years from the sale of the land in controversy by the treasurer to the county commissioners, the latter sold and conveyed the land by private sale, to A. K. Wright, for the consideration of $25, under whom defence was made below. Advertisements there were none, and no designation of property, or public sale. This sale was in 1862 in September. In November of the same year, Andrews, guardian of the minor owners of the land, applied to the commissioners of Clearfield to redeem the land; this the commissioners permitted, received the redemption-money, and endorsed their conveyance of the land to him as guardian for the use of his wards, on the back of the treasurer’s deed, as directed by Act of Assembly, and'caused to be tendered to Wright the money paid by him to the county on his purchase. There was no laches imputable to the guardian for not sooner redeeming, as it was not until after repeated examinations, running through several years, that it was at last accidentally discovered that the land had been sold for taxes. Nor had Wright acquired any equity by expenditures in the way of improvements that we hear of, when he was offered his money back by the county commissioners, on the ground of a missale. •

As a purchaser from the county commissioners, we think Wright took no title. He was as much bound to. know the law regulating sales by them, as they; and he is presumed to have known that they were selling to him in disregard of the law, and which disregard would necessarily increase the liability of the original owners, for want of notice, to a loss of 60 acres of land for the small sum of $15 and some cents, if it could be held good. The rule of caveat emptor applied to him. The right of the commissioners to permit a redemption any time before sale is not to be disputed. It was recognised in Steiner v. Coxe, and has been practised in hundreds of cases. While we hold the private sale to Wright invalid, we at the same time hold that the transfer of the commissioners to the guardian, for the use of the owners, was only in form a sale and conveyance, and was in fact a redemption of the land from the sale to the commissioners. Steiner v. Coxe, supra. The previous sale being invalid, the redemption extinguished the title of the county by investing the owners with title.

It is not material in this view, to discuss the point whether a purchase at private sale from the commissioners in a case like this, would operate to redeem the land and nothing more. Even if there had been such privity as to authorize Wright to redeem for the heirs, a tender or reimbursement of the money expended by him in redeeming, would entitle them to call for a reconveyance, or enable them to recover the land in ejectment against him or those claiming under him.

As there is nothing else in the case important to be discussed, *415 without further elaboration or remark, we are brought to the conclusion, that the learned judge below erred in entering judgment on the reserved question in favor of the defendant, but should have given judgment on the verdict for the plaintiffs.

Now, May 11th 1869, the judgment of the Court of Common Pleas in this case is reversed and set aside: and it is considered and adjudged that judgment be, and is hereby entered for the plaintiffs on the verdict, with six cents damages and costs of suit. and of this writ of error.