DuBois v. Hepburn,
35 U.S. 1 (1836)

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U.S. Supreme Court

DuBois v. Hepburn, 35 U.S. 10 Pet. 1 1 (1836)

DuBois v. Hepburn

35 U.S. (10 Pet.) 1


Construction of the fourth section of the Act of Assembly of Pennsylvania passed 15 March, 1815, providing for the sale of lands for taxes.

The law of Pennsylvania authorizing the redemption of lands sold for taxes ought to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, especially where the time allowed is short, an ample indemnity given to the purchaser, and a penalty is imposed on the owner. The purchaser suffers no loss; he buys with full knowledge that his title cannot be absolute for two years; if it is defeated by redemption, it reverts to the lawful proprietors.

It would seem not to be necessary for the purposes of justice or to effectuate the objects of the law that the right to redeem should be narrowed down by a strict construction.

It comports with the words and spirit of the law to consider any person who has an interest in lands sold for taxes as the owner thereof for the purposes of redemption.

Any right which in law or equity amounts to an ownership in the land, any right of entry upon it, to its possession or enjoyment, or any part of it which can be deemed an estate in it makes the person the owner so far as it is necessary to give him the right to redeem.

The law does not require a payment or tender; an offer and refusal is made equivalent to a receipt of the money by the treasurer, and authorizes a recovery of the land by suit as if no sale had been made.

The plaintiff in error instituted an ejectment for a tract of land situated in Lycoming County, in the State of Pennsylvania, and exhibited a title, regularly deduced, under a patent granted to Joseph Fearon, dated 19 September, 1796.

The title claimed by the defendant was derived from a purchase at a sale of the land made by the Treasurer of the County of Lycoming on 12 June, 1826, for county and road taxes, regularly assessed on the same; the county taxes prior to 1 February, 1825, and the road taxes on 22 April, 1825. The whole of the land in controversy was sold for five dollars and fifty-two and a half cents, the alleged amount of the taxes and costs. On 15 July 1826, the treasurer of the county conveyed the premises to the defendant.

It appeared in evidence that the heirs and legal representatives of Joseph Fearon, the patentee of the land in controversy, were the children of Abel Fearon and Robert Fearon and the brothers of Joseph Fearon, both brothers having died in the lifetime of the patentee, and on 26 March, 1825, partition of the real estate of Joseph Fearon was made between the two branches of the Fearon family, by which the premises in this ejectment were, inter alia, allotted to the heirs of Abel Fearon in consideration of a moiety of the lands of the intestate having been allotted to the heirs of William Fearon. On 27 March, 1827, partition of the portion of the real estate allotted to the heirs of Abel Fearon, and the tract of land in controversy became the property by this partition of Jacob Fox and wife, late Elizabeth Fearon, from whom the plaintiff in the ejectment held, by intermediate conveyances, the premises in controversy in fee simple.

The plaintiff, in order to overthrow the alleged tax title set up by the defendant, gave in evidence an alleged redemption of the said tract, No. 5615, by a tender both to the county treasurer and the defendant, within two years after the said sale, of the full amount of the said taxes and costs and twenty-five percentum upon the aggregate amount thereof, as called for by law.

Page 35 U. S. 3

The case came on for trial by a jury at January term, 1833, and the plaintiff's counsel requested the court to instruct the jury

"1. That under the act directing the mode of selling unseated lands for taxes, and its several amendments and supplements, any person may legally pay the taxes due on such land."

"2. That any man who may legally pay such taxes may legally redeem such land sold for taxes within the term specified in said acts."

"3. That any person has a right to redeem such land so sold by a payment of the tax, costs, and percentage, within the time named in the said acts."

"4. That any person having or believing himself to have an interest in the lands so sold has a right to redeem the same within the period named in the said act."

"5. That any person connected by blood or by title with the owner or supposed owner of the lands so sold has a right so to redeem the same."

"6. That any person having the charge of such lands from the owner, during his life, after his decease intestate, and without a countermand of such charge, has a right to redeem such lands so sold."

"7. That the treasurer under the said acts is an officer ministerial, and not judicial, and that he is bound to receive, under the above acts, the redemption money for the land so sold under the facts severally above set forth."

"8. That the treasurer has no authority to decide in whom the title or ownership of such lands so sold and offered to be redeemed, is vested."

"9. That the refusal of said treasurer to receive the redemption money for lands so sold is equivalent to and dispenses with a tender of the same."

"10. That if the plaintiff Oliver S. Wolcott and the defendant Andrew D. Hepburn were citizens of different states at the time of the action brought -- that is to say that Andrew D. Hepburn was a citizen of Pennsylvania, and Oliver S. Wolcott was a citizen of Connecticut, or of any other state of the United States, the jurisdiction of this Court attached, and that such jurisdiction

Page 35 U. S. 4

was not divested by any change of citizenship or domicile by the said Oliver S. Wolcott, after the institution of this suit."

"11. That a citizen of the United States, born in the State of Connecticut, who resided until his marriage and settled there upon his marriage, gained thereby a citizenship and domicile by origin; which is not divested or changed unless there be proved a citizenship and domicile acquired by the said Oliver S. Wolcott elsewhere, in some other state or jurisdiction."

"12. That any person holding an interest in land as tenant in common, on which taxes have been previously assessed and are unpaid, has a right to redeem the said land from a sale for said taxes, within two years thereafter, although he has been divested of his interest in said land by a partition after said assessment, and before the sale for taxes."

The court, on the points presented by the counsel for the plaintiff, gave the following answers.

"1. The law is as here stated. Any person may legally pay the taxes assessed on unseated lands, under the several acts of assembly of this commonwealth directing the mode of selling unseated lands for taxes."

"2 and 3. But no one has a right to redeem such land so sold, but the owner or owners, his, her, or their agent or attorney."

"4. Any person having an interest in land so sold, has a right to redeem the same within the period named in the said act, but a mere opinion without right of having an interest, confers no power to redeem."

"5. Any person connected by title with the owner, or supposed owner of the land so sold, has a right to redeem the same, but the right does not exist in a relation by blood because of that relationship."

"6. The decease of a person intestate being the owner of such lands is a revocation of the authority of one who had the charge of them from the deceased, yet, under some circumstances, he may redeem lands so sold which were under his charge, notwithstanding the decease of the owner intestate. But where the owner was of full age, and had actual notice, as in this case, from the county treasurer of the sale of the land for taxes, and of the

Page 35 U. S. 5

name of the purchaser, and of the time within he had power to redeem, and disavows any agency, and declares he will incur all risk, the interference of another person to redeem, not asserting any authority from the owner to do so, would not affect the title of the purchaser of land so sold."

"7 and 8. It is true that the treasurer, under the acts referred to, is a ministerial, and not a judicial, officer, but the said acts did not bind him to receive the redemption money for the land so sold under the facts severally above set forth. The decision of the county treasurer cannot affect the legal rights, either of the owner or purchaser, and he has no authority to determine in whom the title or ownership of such land so sold and offered to be redeemed is vested. But before he receives the redemption money it is his duty to satisfy himself that the person tendering it is either owner, or agent, or attorney for the owner."

"9. It lands are so sold and a county treasurer refuse to receive the redemption money from a person duly authorized to tender it, it is not necessary to make an actual tender of it."

"10 and 11. In substance these instructions have already been given to the jury, but I repeat them in the language of the plaintiff's counsel."

"12. The court instruct you on this point as requested by the plaintiff's counsel. Its application, however, to the case before you must be tested by the facts connected with it and given in evidence. The county tax, for which in part the land in question was sold, was assessed prior to 26 March, 1825, the date of the deed of partition to which Robert Quay is a party. But it appears, from the certificate of the supervisor of roads, that the assessment of the road tax on the land in dispute was made 22 April, 1825, and filed in the proper office 3 May following, after Robert Quay and wife had parted with all their interest in the land. And by the act of assembly for the sale of unseated lands for taxes, unseated land may be sold for any part of the taxes due. This land being, therefore, sold for the arrearage of tax as well as for the assessment made before the execution of the deed of partition, Robert Quay could have no legal right derived from his having been once part owner of it, to tender all the taxes due for the purpose of redemption. "

Page 35 U. S. 6

The defendant's counsel requested the court to instruct the jury as follows:

"1. That if, from the testimony disclosed, they believe that Oliver S. Wolcott was not a citizen of the State of Connecticut on the 22d September 1830, but had lost his domicile then, the plaintiff cannot recover."

"2. That from the testimony disclosed the taxes for which the land was sold were assessed, and that the deed from the treasurer to the defendant, on the face of it, vests in him a complete title to the land in controversy."

"3. That under the fourth section of the Act of 13 March, 1815, when lands have been sold for taxes, none but the owner, or his agent duly authorized, can redeem the land, and any offer made by a stranger and without authority from the owner to redeem lands so sold, would not affect the title of the purchaser at treasurer's sale."

"4. That if the jury believe the testimony of Joseph F. Quay, of Robert Quay, Sr. and Robert Quay, Jr., they were neither of them the agent of Jacob Fox, under whom the plaintiff claims, when Robert Quay, Jr. called upon William Harris the treasurer, in May, 1828, to attempt to redeem the tract of land in dispute, therefore plaintiff cannot recover."

"5. That if the jury believe the testimony of William Harris and what he has testified to in relation to the declarations of Jacob Fox when he saw him in Philadelphia, in March, 1828, and in Williamsport, October, 1828, neither of said Quays were the agent of Jacob Fox, nor can be plaintiff set up their acts now to defeat the defendant's title."

"6. That if the jury believes that the Quays made the offer to redeem, through Robert Quay, Jr., for their own benefit, all the acts of Robert Quay, Jr., in relation to the redemption are void as it regards the present defendant, and do not destroy his treasurer's title."

"7. That if the jury believes that Robert Quay made the offer to redeem under a mistaken supposition that he was the owner, or had an interest therein, and when he discovered the mistake disclaimed any further act, such offer to redeem cannot effect the title of the defendant as purchaser at treasurer's sale. "

Page 35 U. S. 7

The court gave the following answer to the defendant's points:

"That if it should appear from the testimony that Oliver S. Wolcott, lessee of the plaintiff, was a citizen, and domiciled in the State of Pennsylvania on 25 September, 1830, when this suit was brought, this Court has no jurisdiction,"

and the plaintiff cannot recover.

The jury found a verdict for the defendant, and judgment having been entered on the same, the plaintiff prosecuted this writ of error.

Page 35 U. S. 17

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