Robinson and others against Williams and another, 6 Watts 281

The opinion of the Court was delivered by Sergeant, J. Tire facts of this case are stated in the charge of the court, and the principal questions of law which have been argued here, upon the errors assigned, are first, whether a treasurer’s sale for taxes of lands unseated at the time of the assessment of the tax, but seated before the sale, is valid. Second, whether the authority to sell was duly exercised by the treasurer of Northumberland county, the lands lying in Hnion county. Third, whether the possession by the defendants* improvements made, and other special circumstances of the case give them a right, 1.

Various laws for the collection of taxes on unseated lands have been from time to time passed, but the existing line of demarcation between seated and unseated lands, in relation to the legal remedy for the recovery of county and road taxes, was drawn by the act of the 11th of April 1799, and its supplements, regulating the collection of taxes on seated lands, and the act of the 3d of April 1804, and its supplements, providing for the recovery of taxes on unseated lands.

The remedy for the former, was rendered altogether of a personal character, by distress and sale of the goods of the person charged, or by process against his person. No lien was created on the land, nor any recourse given against it. On the other hand, where the land was unseated, the assessment of the tax was made a charge on the land, and not on the person, and the only process to enforce its recovery, was by a sale of the land itself. In the case before us, the land was unseated when the taxes of 1805, 1806, 1807 and 1808, were assessed.

It became seated in 1809, and was sold in 1816, for these and other taxes accruing subsequently. It is undoubtedly a hard case, that the sale should be procrastinated for several years, and that after valuable improvements have been made on the land by the owner, it should be set up as unseated land, and sold for a trifling sum. But still, I have in vain sought any thing in the act of assembly, which would warrant us in saying that a sale in such case is null and void.

No intention is evinced in the acts to remit taxes which had been duly assessed, and left unpaid, because at a subsequent period the land became seated, and the seating it affords no new remedy for the taxes thus due. Taxes on unseated lands are not put into the duplicate of the collector; it contains only the assessments on the land while seated; nor is the owner, or any other, personally liable. If, therefore, the land could not be sold, there would exist no remedy whatever, and the taxes would be lost.

It was, perhaps, deemed unjust to the county and the public, that after several years of arrears of taxes they should be irrecoverable, because before the sale, the land, or a part of it was occupied or cultivated by the owner or some other person, and thereby became seated.

At any rate, the words of the act of assembly are too strong to be got over; for it enacts, that the treasurers of the several counties shall be, and they are hereby authorized and directed to commence on the second Monday in June 1816, &c., and make public sale of the whole, or any part of such tracts of unseated lands, &c., as will pay the arrearages of the taxes any part of which shall then have remained due and un paid for the space of one year before, together with costs, &c. Act of 13th of March 1815, sect. 1. 2.

We are of opinion, that the treasurer of Northumberland county was empowered to make sale under the act of 1815, for the taxes due and unpaid on land situate in the county of Union, assessed whilst it formed part of the county of Northumberland. The act of the 22d March 1813, 6 Smith’s Laws 59, provides, sect. 5, that all taxes and arrears of taxes, laid, or which have become due within the said county of Union, before the passing of the act, should be collected and recovered as if that act had not been passed.

The effect of this provision is to leave to the county of Northumberland, in respect to these taxes, the exercise of the same authority, as if the lands lay in Northumberland county. 3.

The court below were of opinion, that there were circumstances in the present ease, which entitled the defendant, Blister, to a verdict, namely: that the sale was not made for six or seven years after the land had become seated, and taxes paid and received on it as such, without any notice taken of the taxes on which the present action is founded — that the land had been set off into another county more than three years — that the defendant, Kister, had been permitted to progress with his improvements, without elairn or molestation, and pay his taxes on the land as seated for more than twenty-one years.

But we are of opinion, that none of these circumstances are sufficient to devest the title of the present plaintiffs. The distance of time at which the sale was made after the land was seated, and the receipt of taxes on it as seated, without notice of the arrears due, are immaterial, if the sale was authorized by law. The assessment of those arrears on the public books, and records of the county, was notice to the owner and all concerned, and it was their duty to inquire hito and discharge them.

The county officers are not required by law to give any other notice of the assessment to the debtor: and the receipt by the collector of the taxes assessed on the land after it became seated, cannot be considered as a waiver of prior taxes assessed and outstanding, whilst it was unseated. Nor is the circumstance of the land being set off into another county an objection; because we have seen, that by the act of 1813, it remained liable in the same manner, as if the county of Northumberland had never been divided. As to the defendant.

Blister’s possession, it appears, that it subsisted from 1809 to 18J3, a little upwards of twenty-one years: but' this possession cannot be deemed adverse and exclusive, so as to bring it within the act of limitations, except from the time of the plaintiffs’ purchase, which was not till 1816, which would make up an adverse possession of little better than fifteen years. Prior to the plaintiffs’ purchase the county had a lien upon the land, for the taxes which had been assessed, accompanied with a power to sell.

In this respect, it is analogous to a judgment, which constitutes a lien, with a right to sell the land by execution. From the time that a sale takes place, a title or claim accrues, to which the possession of the former owner becomes hostile and adverse, but not before. Here the time which elapsed after such title accrued to the plaintiff by the sale for taxes, being short of twenty-one years is not sufficient, and the prior period of possession cannot be taken into the account.

As to fhe improvements, (though it would seem, the mills have been for some time past, removed by the defendant, Kister, to another tract) the mere silence or inaction of the plaintiffs does, not take away their right. The defendant had the means of ascertaining the title, and was bound to search the county records for outstanding taxes.

However hard the decision may appear to be, under the peculiar circumstances of this case, I perceive no legal ground on which relief can be given to the defendant, and it is our duty to administer, the law as we find it, leaving it to the legislature to remedy the inconveniences which may appear in some instances to arise from the existing system. We are of opinion, that the court below erred on this point, and the circumstances relied on, do not prevent the plaintiffs from recovering.

It remains to notice the first error assigned, in the statement by the court, that there was nothing absolutely conclusive in the plaintiffs’ evidence of the delivery of the bond for the surplus money bid on the sale. It has been held in White v. Willard, 1 Watts 42, and Fager v. Campbell, 5 Watts 288, that the receipt of the treasurer is competent evidence, that a surplus bond was executed and delivered, which is enough for the title of the purchaser, who is not responsible for the neglect of the treasurer in omitting to have it filed.

It thus becomes prima facie evidence, and in the absence of any rebutting proof, must, like emprima facie evidence, be deemed conclusive. Here I perceive no evidence to rebut it, or to render the fact doubtful, and it is error to leave it to the jury to find a matter of which there is no evidence. The court ought to have instructed the jury, that in the absence of any proof to the contrary, the treasurer’s receipt should be deemed conclusive proof that the bond had been filed. Judgment reversed, and a venire facias de novo awarded*