Ash against Ashton, 3 Watts & Serg. 510

The opinion of the Court was delivered by Kennedy, J. In regard to,the first error, it is contended by the counsel for the plaintiffs in error, that the deed of conveyance from the State was inadmissible because no attainder was shown. That it being the duty of Alexander Bartram to surrender himself and take his trial according to the requisition contained in the proclamation, it was therefore to be presumed that he did do so, until the contrary was proved.

Such, a presumption, however, would not only be contrary to the rule of láw which makes it incumbent upon the party alleging compliance or performance to prove it, but likewise contrary to the general practice, at all times, of those who become fugitives from the criminal justice of their country. It is rare indeed that 'any such feel themselves bound to return and put themselves upon their trial. But if any one does do so, a record of it is invariably made.

Indeed, it must be made, so that he, or any others interested in showing the fact of his return and his taking his trial, can easily do it, by producing the record made thereof, or a certified copy of it. The admission of the evidence was also objected to because no registry of the attainder was shown. But the proclamation and the Act of Assembly on the subject were produced, and they are a sufficient registry of the attainder, so far as regarded the party himself, his heirs or assigns, in the absence of proper evidence proving that he did return, as required by the proclamation, and abide his legal trial.

The registry required by the 7th

section of the Act to be made of the names of persons attainted or to be attainted of high treason by virtue of the Act, and of all their real and personal estates and interests vested thereby or otherwise in the State by reason of such attainder, was evidently intended for the benefit of such as might have claims to or upon such estates. The 9th

section of the Act seems to show, pretty clearly, that this was the main object of it, by making it the duty of the President or Vice-President and council, to cause the registry, or a copy of it, to be kept by the secretary open for public inspection, and directing him to transmit copies of it to the Justices of the Supreme Court or one of them ; also to the sheriff of the county within which any forfeited real estate was situate, which was to be open to the inspection of every person; so that all persons having claims to or upon such estate might, agreeably to the 14th

section of the Act, file the same, if against the personal estate, in the secretary’s office, within three months from the date of the entry of the registry kept by him ; and, if against the real estate, within six months from the entry of the registry to be kept by the sheriff of the county where such estate lay; in order that their claims, if just, might be allowed or satisfied; or if not filed within the term prescribed, the consequence would seem to be that they would be lost.

But this being the real object of the registry required by the Act, a neglect to make it could not be necessary to vest in the State a right to the estates of those attainted under the Act of high treason, nor yet devest the State of such right after having vested. A neglect, however, to make such a registry, and to deposit and forward copies of it, as directed by the Act, might leave the estates forfeited subject to the rights of all those having claims to or upon the same, in the hands of the vendees of the State. This would seem to be the most that could result from such neglect on the part of the State.

It is also further objected, that the land was not taken and sold by the State, until after the treaty of peace was concluded between the United States and Great Britain, the 6th

article of which declares “ that there shall be no further confiscations made, or any prosecutions commenced against any person or persons, for or by reason of the part which he or they have taken in the present war; and that no person shall, on that account, sutler any further loss or damage, either in his person, liberty, or property; and that those who may be in confinement, on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecutions so commenced be discontinued.” But the attainder of Bar tram had taken place upwards of five years before the making of this treaty; and his estate, within the State, not only became forfeited immediately upon his attainder, but vested in the State, according to the express provision in the close of the 5th

section of the Act, “ without any office or inquisition thereof, thereafter to be taken or found,” so that the 6th

article has no application whatever to this case. Dietrick v. Mateer, (10 Serg. & Rawle 153). We therefore consider the evidence admissible. The first question raised by the second error is, whether the five years’ limitation, contained in the Act of 1804, is still in force or not; for if it be, it would seem to be applicable to this case, and would form a bar to the recovery of the plaintiffs.

The defendants claiming, as we have seen, under a county treasurer’s sale of the land, for taxes assessed on it, and having been in the possession of it, under such sale, upwards of five years previously to the bringing of this action, would seem to be entitled to protection in their possession, even under the most unfavourable construction for them that could well be given to the Act.

The words of it are, “ no action for the recovery of said lands shall lie, unless the same be brought within five years after the sale thereof.” In this case 18 years had elapsed after the last sale of the land for taxes, before this action was brought; but the defendants were willing to waive all that portion of the 18 years, during which they and those under whom they claimed, were not in the actual possession.

This certainly was granting all possible indulgence to the owners of the land at the time of the sale for taxes, that the Legislature could have intended; and indeed, I think, more than was intended, if the language of the Act is to be regarded as truly indicative of their intention in this particular; for it declares expressly that no action, for the recovery of the land, shall lie by him after five years from the sale.

I am inclined strongly to believe, that the design of the Act was, if the purchaser at a tax sale took possession of the land within five years thereafter, that then the owner at the time of the sale, should bring his action within the five years; or if the purchaser did not take the possession within that period, then the owner should be bound to do so, otherwise his right to the land should be for ever gone. The opinion of the late Chief Justice Tilghman was, that the five years commenced running from the date of the sale for taxes. Parish, v. Stevens, (3 Serg. Sf Rawle 298).

But this opinion was afterwards overruled by this court, in Wain v. Shearman, (8 Serg. Rawle 357), where it was settled that the five years did not commence running until actual possession was taken by .the purchaser at the tax sale, or by some one claiming under him. But it is contended here, that the Act of the 13th of March 1815, entitled “An Act to amend the.Act, entitled ‘An Act directing the mode of selling unseated lands for taxes, and for other purposes/ ” has annulled the limitation of five years, contained in the Act of 1804.

There is certainly no express repeal of this limitation of five years in the Act of 1815; but these Acts, being in pari materia, must therefore be considered as one Act only; and if it be that the Act of 1815, seeing it is the last will of the Legislature on the subject, contain in it anything repugnant to or inconsistent with the limitation clause of five years in the Act of 1804, it must be considered as a virtual repeal of the former in that particular. Or if any parts of the Act, to which the Act of 1815 is a supplement, or any other Act, be altered or supplied thereby, they are expressly repealed by the last

section of it. The 4th

section of the Act of 1815, seems to be the only part of it which has any bearing upon the question here.

By this section, the owners of lands sold for taxes, are allowed two years after the sale thereof, whether the sale be good or not, to redeem their lands, by paying or tendering to the county treasurer the amount of taxes for which the lands -were sold, and the costs incurred thereby, together with the additional sum of 25 per cent, thereon; and if the county treasurer shall refuse to receive the same, or the owners of the lands sold for taxes shall have paid the taxes previously to the sale, they, in either of these cases, but in no other, shall be entitled to recover the lands by due course of law.

In all the cases where the owners of lands, sold for taxes, are deprived of them by this section, unless they make a tender of the amount of the taxes, &c., as therein mentioned, within two years after the sale thereof, the limitation of five years must be considered as altered and supplied; because the owners, instead of having five years allowed them to assert their claims to the land, have only two, which is certainly a very material alteration.

In respect, however, to a case coming within the limitation of five years, mentioned in the Act of 1804, but not embraced within the provision of the Act of 1815, allowing only two years, there seems to be no reason why it should be considered as affected by this latter Act, because the alteration made thereby does not extend to it; consequently it remains as it did, under the Act of 1804, before the passage of the Act of 1815. The case now under consideration, is not a case where the sale for taxes has been avoided by a tender of the amount of taxes, &c., under the 4th

section of this latter Act, to which the limitation of two years is made directly applicable; but is a case of a sale for taxes, considered void under the provisions of the Act of 1804, inasmuch as no bond was given by the purchaser to the county treasurer, in conformity to the requisition of that Act, for the surplus of the purchase money, after paying out of it the taxes and costs. And that the sale, in such case, is void for want of such bond being given, and the owner of the land at the time of the sale, entitled to recover it, was settled in the cases of Sutton v. Nelson, (10 Serg. & Rawle 238), and M’Donald v. Mans, (8 Watts 364), notwithstanding the clause in the 4th

section of -the Act of 1815, which declares that the owners of lands sold for taxes, shall be entitled to recover in the case of a tender of the amount of the taxes, &c., as already mentioned, and where they shall have paid the taxes previously to the sale; “ but in no other case, and on no other plea, shall an action be sustained.” But it appeared plain, from the Act of 1815, that the Legislature did not intend to deprive the owner of the land of that security for the payment of the surplus money coming to him, which was afforded by the Act of 1804, by its making the bond, taken for the payment of it, binding upon the land as effectually and in like manner as a judgment, into whose hands or possession soever it might come.

And hence it became necessary, either to declare the sale void, or otherwise leave the owner of the land at the time of the sale, without that security for the payment of the surplus money, -which the Legislature, by the Act of 1804, expressly intended he should have, and which they certainly did not intend, by the Act of 1815, to take away. But as it was owing to the default of, the purchaser, that the bond was not given, it was held reasonable and right that the owner should recover his land in place of it.

But, then, it is proper to observe here, that if the bond had been given, the owners, or plaintiffs below, could only have made it available, according to the express terms of the Act, by causing an action to be entered on the docket of the prothonotary, in whose office it ought to have been filed, udthin five years after the sale of the land. Is there not, then, great propriety in saying, that they ought not to be permitted to recover the land, after the period has elapsed within which they would have had a right to have proceeded on the bond, had one been given and filed ?

It is, perhaps, not easy to discover any good reason why they should be allowed a longer time to proceed to. recover the one more than the other; for as regards the owners at the time of the sale, the loss is the same to them; but as regards, the interests of the State, the application of the limitation of five' years, in order to bar a recovery of the land by the owners, may be very important.

As regards the peace and quiet of the community, it would seem to be expedient that it should be applied; and as regards the wealth of the State, it would not be less so; because a protection to those in possession of the land, by the application of such a limitation, would be a great inducement with them to improve and render it much more productive and valuable than otherwise they would be likely to do.

But seeing the Act of 1815 does not affect or touch this case, and seeing the Act of 1804 does in plain terms do so, we are of opinion that it comes fairly within the limitation of five years, contained in this latter Act; and that the court below ought, therefore, to have permitted the defendants there to have given the evidence offered by them, and mentioned in their second bill of exceptions. Judgment reversed, and venire de novo awarded.