Gilmore against Thompson, 3 Watts 106

The opinion of the Court was delivered by Gibson, C. J. The provision for compensation under the act of 1804, was restrained to no particular case within the limitation of five years; on the contrary it was extended to every recovery for irregularity in the assessment, process or sale. The same provision was repeated in the act of 1816, when the legislature narrowed the ground of recovery to cases where the tax had been paid, previously t.o the sale, or subsequently by redemption.

Why then should not the provision for compensation be as broad, under either act, as the right of recovery, which is put by the latter on the same footing, whether it rests on previous or-subsequent payment of the taxes? It was introduced to protect all bona fide purchasers, without distinction, who should expend their money or their labour in confidence of the title. In this instance the land was accidentally the subject of double taxation, having been assessed in the names of different owners; and the tax laid upon it under the apparent title purchased by the defendant, had not been paid as such.

But the tax assessed in the name of the other apparent owner was actually paid; and as the land is liable but. to one tax, it follows that payment of it in either name discharged the dut]r. That was the ground on which the plaintiff himself sustained his right to recover.

Putting out of view then the circumstance of double assessment, as immaterial to the question, we have an ordinary case of actual payment of which the purchaser might know nothing; and as satisfaction of the duty gives, on the one hand, an equal right of recovery, whether it were before the sale or after it, so does it, on the other, give an equal right to compensation, with this difference perhaps, that in a case like the present, a defendant is entitled to claim for all improvements previous to the verdict, while those made after an offer to redeem might be deemed to have been made in the defendant’s wrong.

But there might perhaps be circumstances to justify a retention of the possession even after tender; as where the title of the party making the tender is doubtful: but that is not a point for present adjudication, and we intimate no opinion on it. Nothing can be fairer in the abstract than the principle of compensation; and though it may be abused in its application, it is the business of those who preside over the deliberations of juries to look to that — certainly not to restrain the- obvious design of the legislature for fear of such abuse.

In the case before us, the facts of double assessment and payment were unknown to the defendant; and as they were such as he might fairly contest, compensation was justly allowed him for all expenditures previous to the trial. Judgment affirmed.