M'Bride against Hoey, 2 Watts 436

The opinion of the Court was delivered by Kennedy, J. The only question presented in this case is, whether any other than the true owner, or some one authorised by him, can redeem unseated lands, sold in this state for non-payment of the taxes assessed on it. This question must be decided by a reference to the acts of assembly authorising the assessment of taxes on unseated lands, and the sale of them in case of neglect by the owners to pay such taxes.

By the act of the 3d of April 1804, all unseated lands within this commonwealth are directed to be assessed for the purpose of raising county rates and levies, in the same manner as other property. And in case such assessments should remain unpaid for the space of one year after being assessed, the lands were ordered to be advertised and sold by the sheriff or coroner of the proper county, under a warrant from the commissioners of the county, to be issued by them for that purpose.

The sheriff or coroner, after having made sale thereof, was requeued to take from the purchaser a bond, in his own name, with a warrant of attorney annexed, for any surplus money that might remain after satisfying and paying the taxes and costs accrued thereon, and to file such bond forthwith in the prothonotary’s office. By the fourth

section of this act, the bond, when taken and filed, is made a lien upon the land sold, from the date of the deed executed by the sheriff or coroner, in like manner as a judgment for the same amount; and the owner of said land at the time of sale, or his heirs, assigns or other legal representatives, may at any time within five years after such sale, cause an action to be entered on the docket of the prothonotary, in the office where the bond is filed, in the name of the sheriff or coroner, as one or the other may happen to be the obligee named in the bond, for the use of the said owner, his heirs, ' assigns or other legal representatives.

And if the money mentioned in the bond be not paid within three months after such entry, execution to be issued forthwith for the recovery of it. By a subsequent act of the 4th of April 1809, the powers vested in and duties enjoined on the sheriff, were transferred to, and required to be performed by the treasurer of the county. And again, by

an act passed afterwards, on the 13th.of March 1815, after appointing the second Monday of June .1816, (and the like .Monday .of. June]}every two years succeeding thereafter, for the sale of unseated lands by the treasurers of the respective counties where the taxes shall remain unpaid, and then making some other provisions on the subject, it is enacted by the fourth

section thereof, that “if the owner or owners of lands sold as aforesaid, shall make or cause to be made within two years after such sale, an offer or legal tender of the amount of the taxes for which the said lands were sold, and the costs, together with the additional sum of 25 per cent on the same to the county treasurer, who is thereby authorised and required to receive and receipt for the same, and to pay it over to the said purchaser, upon demand, and if it shall be refused by the said treasurer, or in case the owner or owners of lands so sold shall have paid the taxes due on them previously to the sale, then, and in either of these cases, said owner or owners shall be entitled to recover the same by course of law, but in no other case, and on no other plea shall an action be sustained.” The plaintiff in this case claimed under a sale and deed of conveyance made by the treasurer of Mercer county, on the 8th of July 1822, for taxes previously assessed on the land in question, as unseated.

The validity of the sale and the deed was not controverted, but admitted to be good. The defendants, however, in order to show that the plaintiff’s claim had been nullified, gave in evidence a deed of conveyance bearing date the 3d day of July 1821, showing a sale made of the land by Theophilus T.

Ware, as designated collector of taxes assessed by the United States on the land, to William Clark, one of the defendants: and that Mr Clark, claiming the land under this deed of conveyance and a right under the same to redeem it, on the 10th of June 1824 paid to the treasurer of Mercer county the amount of the taxes and costs for which it had been sold, beside the 25 per cent thereon.' The sale of the land to Mr Clark by the designated collector, tvas shown to be clearly void, and of no effect; and, indeed, admitted so t.o be on the argument before us.

The defendants notwithstanding, however, contended that the sale and deed of conveyance by the county treasurer to the plain lift were avoided by the repayment of the amount of taxes and costs, together with the 25 per cent thereon to the county treasurer, by Mr Clark, within the two years after the sale to the plaintiff.

Now by the express terms of the act of 1804, as also those of the act of 1815, the fee simple in the land is directed to be sold ; and the sale and the deed made by the county treasurer, in conformity to l hese acts, pass immediately a fee simple estate in the land so sold to the purchaser; subject, nevertheless, to be defeated, by the owner’s paying or causing to be paid, within the two years allowed for that purpose, the taxes for which the land was sold, and the costs, with the additional sum of 25 per cent, or at least tendering the same to the couuty treasurer.

The purchaser of the land at the county treasurer’s sale, having become thus invested with the fee simple estate in the land, it appears to me that it would not readily occur to any one, that any other than the owner of the land at the time of the sale, or his legal representatives, could divest the purchaser of his right by a performance of the condition.

According to the principles of the common law, if a man made a feoffment in fee, by way of mortgage, upon condition to be void upon payment of money by the feoffor, at a day, and a stranger of his own head tendered the money, the feoffee was not bound to accept it; Litt. sec. 334; though tendered for an infant; 1 Bac. Abr. (by Wilson) tit. Conditions, p. 662. But if a doubt could exist, in any case, with respect to a question of this nature, it appears to me that the words of the several acts of assembly on this subject are even more than sufficient to dispel all doubt from this case. First, by the fourth

section of the act of 1804, it is “the owner of the laud at the time of the sale, his heirs, assigns, or other legal representatives” who are authorised to enter an action in the prothonotaiy’s office, on the docket, for the amount of the bond filed, for the surplus money, and to prosecute the recovery of it by execution for their own use. By the terms of the act, no other than the owner of the land at the time of the sale, his heirs, assigns, or other legal representatives, has any right whatever to demand or receive the money upon this bond.

This being the case then, I take it that it necessarily follows that no other can release or discharge the purchaser from bis obligation.

If no one but the owner of the land at the time of the sale, his heirs, assigns, or other legal representatives have the right to receive the surplus money clue on the bond, and to give a sufficient acquittance, of which a doubt cannot be entertained, if the terms of the act of assembly are to be regarded at all; I would ask, then, what would be the situation of the purchaser of the land, if any other than the owner of it at the time of the sale, or his legal representative, or some one authorised by him or them, has the power and capacity to redeem 1 If a stranger can redeem, the inevitable consequence may be, that the purchaser may by this means have his title to the land set aside, and be afterwards compelled by the owner, at the time of the sale, or his legal representatives, who are unwilling to take it, to pay the amount of his bond.

This would be so unjust and unreasonable, that if the words used in the act would even admit of such construction, but at the same time were susceptible of a more reasonable one, it would be the duty of the court, in expounding it, to prefer the most rational of the two. But the right of redemption is given by the fourth

section of the act of 1815 : therefore let us next turn to the terms of it, and we shall see that it is given to the “ owner or owners of the land,” and they alone are thereby authorised to do it, or to cause it to be done, by offering or making a legal tender within two years after the sale, of the amount of the taxes for which the lands were sold, and the costs, together with the additional sum of 25 per cent on the same to the county treasurer.

Having done this, they are authorised to maintain an action of ejectment for the recovery of the lands, if necessary; and it is further expressly declared that in no other case Shall they be entitled to recover the land, excepting when they shall have paid the taxes due on it previously to the treasurer’s sale. It has, however, been argued that this construction may work injustice to judgment creditors, and in some instances deprive them of a security which otherwise they might have for the payment of their debts.

This, perhaps, is barely possible ; but it is most likely that no great loss will ever be sustained by it. • And unless we depart from the plain import and meaning of the terms employed in the act, I do not see how the right of redemption can be extended to judgment creditors; for they are not considered owners of, nor as having a right, in any respect, to the land: at most, they have but a lien on it, which is neither a jus ad rem nor jus in re.

It is evident, from the terms of the act, that their rights or interests never once entered into the view or contemplation of the legislature, in framing and passing the act. The same argument might be urged, with like force and reason, in favour of permitting a judgment creditor to enter into the lands of his debtor, where he had been disseised of them for nearly a space of twenty-one years, and to make claim on behalf of his debtor, in order to prevent the statute of limitations from running and barring his right, by which the creditor might possibly lose his debt.

But such a thing, I presume, has never been thought of, and certainly could not be sustained for a moment if it were. The very circumstance, however, of no provision having ever been made for the security of creditors, in such cases, is conclusive evidence that the loss, if any, sustained by them on such account has been very inconsiderable indeed. It is the interests alone of the owners of unseated lands, at the time of the sale of them for taxes, that the legislature intended to provide for, by securing to them the right of redemption for a limited time. Then who is the owner1?

There can be but one good title for the same land; and whoever is invested with it must be considered the owner of the land. It is clear that Mr Clark had no title at all to the land in question at the time the plaintiff bought it; nor had he any at the time he undertook to redeem it, and, therefore, as owner of it he could not redeem. Neither did he show that he had any authority from the owner to redeem as agent for him; nor that his act in redeeming was ever approved and accepted of by the owner of the land. For the owner having the right to redeem may do it either himself in person or he may do it by another.

Fácil per alium, facit per se. So it may be that if a stranger do it without the knowledge or authority of the owner, and he afterwards, within the two years, approve of and adopt it, that it would be good ; but until the owner does so approve of it, the purchaser at the county treasurer’s sale cannot be considered as divested of his estate in the land. The maxim omnis ratihabitio retro trahitur et mandato mquiparatur would probably apply in such case. Co. Litt. 206 h, 207 a; 1 Bac. Abr. (by Wilson) tit. Conditions 662. Judgment affirmed.