#### Freeman *v.*Cornwell.

In a trial by a judge without ajury, the judgment will not be reversed in a case where the evidence to support the findings of the court would have been sufficient to sustain a verdict had the case been tried by. ajury.

A sale of land for taxes is void where the owner of the land went to the county treasurer’s office in good faith for the purpose of paying the taxes on the land, and used reasonable diligence to ascertain and pay them, and failed to do so by reason of the owner being actually misled by the assessment and the treasurer’s advertised list of sales of unseated land.

It is not a neglect to use reasonable diligence to pay taxes where the owner called at the treasurer’s office and gave him a list of the lands designated by warrant numbers, but not the number of acres, etc.

Oct. 1, 1888.

Error, No. 182, Oct. T., 1887, to C. P. Forest Co., to review a judgment in ejectment by L. R. Freeman against J. C. Cornwell, Charles Bonner and others, tried without a jury, at May T., 1880, No. 10. Green, J., absent.

March 20, 1880, the summons was issued for warrant No. 5158, containing 500 acres, in Green township, Forest Co. The defendant pleaded not guilty, and abstracts of title were filed by both plaintiff, *501and defendants. The death of Jeremiah Bonner, one of the original defendants, was suggested, and his heirs substituted.

On the trial, the evidence was to the following effect, inter alia: In i860, John C. Cornwell and Jeremiah Bonner bought of Arnold Plumer four contiguous warrants in Venango county, containing 500 acres each, and numbered respectively 5155, 5156, 5157, and 5158. A township line intersected the block, throwing 5155 and 5156 in Kingsley, and 5157 and 5158 in Tionesta township. By Act of Oct. 31, 1866, these two townships, with others, were annexed to Forest county. In 1868, Cornwell and Bonner, by written articles, contracted to sell warrant 5158 to one Knapp, who took possession by cutting a road, erecting a shanty, etc., but, on Oct. 6, 1870, transferred his interest to Palmer & Childs. Knapp then refunded to Bonner the taxes the latter had paid on this warrant, in June previous, for 1869, which Knapp, as equitable owner, was liable to pay.

Bonner frequently ordered the lands assessed in his own name, but Plumer’s name was retained in the assessment list until 1870. In that year the eastern part of Tionesta township was erected into a new township called Green; warrants 5157 and 5158 fell into the new township and were assessed therein for 1871 — the former in the name of Jeremiah Bonner and the latter, as “ 5185 ” in the name of Palmer & Childs, the vendees in actual possession.

In 1870, Bonner went to the treasurer’s office to pay the taxes for 1868 and 1869. Warrant 5158 was miscalled 5150. Bonner paid the tax, requiring the treasurer to correct the number on the receipt. In 1872, Bonner called to pay his taxes for 1870 and 1871, and gave the treasurer a list, with numbers of warrants and townships. In the published list, Bonner found, under Green township, tract No. 5157 in his own name, and 5158,miscalled “ 5185,” in the name of Palmer & Childs. The true No. 5185 was advertised a few lines above. But the land-book showed taxes for 1871 only, charged against “ 5185,” in the name of Palmer & Childs, recently marked paid. After search by the treasurer, no taxes for 1870 could be found charged against 5158, 5185 or 5150. The tract in dispute was advertised and sold as No. 5180, 500 acres, Tionesta township, under the name of A. Plummer, warrantee or reputed owner, for unpaid taxes for 1870. It was designated in the same way in the assessment. . The plaintiff claimed as vendee of the purchaser at the tax-sale.

The opinion of the court below was as follows, by Brown, P. J.:

FINDINGS OF FACT.

“The land claimed by the plaintiff is warrant No. 5158, situated in Green township, formerly Tionesta, Forest county. The title was out of the commonwealth and in the defendants before the assessment of the taxes for the year 1870. It was assessed as unseated land for the taxes of that year, by a description sufficient to identify the same, and to support a sale by the treasurer, but in the *502assessment it was designated by the number 5180 and by that number 5180, and, for the non-payment of the taxes thus assessed, it was sold by the treasurer on June 25, 1872, and deeded to one L. F. Watson, whose title became vested in the plaintiff by deed from said Watson dated Dec. 19, 1879.

“ The plaintiff’s right to the land depends on the validity of the tax-title. The land continued in a state of nature until some time in the fall of 1869, when, as before stated, it was assessed as unseated for the taxes of 1870.

“ No sufficient evidence to the contrary appearing, and upon the presumption that the assessor did what was his duty to do, namely, acquainted himself, by actual inspection, with the condition of the land with a view to its appropriate assessment as seated or unseated, we find that, when he did so inspect and make the assessment by fixing the valuation, it was unseated; but that, before the return of the warrant of the assessor into the office of the commissioners, it became seated by an entry and occupancy of such a character and so visible as to indicate a personal responsibility for the taxes, and we further find that the resolution of the county commissioners levying the taxes for the year 1870, was adopted on the 25th day of February, 1871.

“In the month of June, 1872, and before the treasurer’s sale of the tract in controversy, Jeremiah Bonner, one of the owners, went to the treasurer’s office, as he testified, for the purpose of paying the taxes on this with other lands. While it may be that a greater degree of vigilance and a more persistent effort on his part would have disclosed the fact that the tract assessed and advertised as No. 5180, was in fact No. 5158, we are not prepared to say that the failure to ascertain that fact was attributable to his fault, or want of reasonable diligence.

“ There was nothing in the appearance of Mr. Bonner, or in his manner of testifying, to discredit him. His credibility was unassailcd, and his testimony was distinct and positive, and from it we find that [Jeremiah Bonner, one of the owners of the land in controversy, before the sale thereof in June, 1872, for the taxes of 1870, went to the county treasurer’s office for the purpose, bona fide, of paying the taxes charged against the same, that he used reasonable diligence to ascertain and pay them, and failed to do so by reason of being actually misled by the assessment and the treasurer’s‘advertised list of sales of unseated lands, and by the condition of the records and books in the treasurer’s office.J,

CONCLUSIONS OF LAW.

[“ From the facts as found, we conclude that the treasurer’s sale of the lands in controversy made in June, 1872, was void and vested no title in plaintiff’s vendor,] and if no exceptions are filed to the findings of facts or the conclusions of law herein within thirty days after service of notice of this decision upon the parties or their *503attorneys, the prothonotary will enter judgment thereon in favor of the defendants.”

The plaintiff presented, inter alia, the following point of law, which was refused:

“ 2. It appearing by the testimony of the defendant, Bonner, that, when he went to the treasurer, in June, 1872, to pay his taxes, he gave the treasurer a list of his lands designating them by warrant numbers only; and that he did not give to the treasurer the name of owner or reputed owner in whose name the land in controversy had been uniformly assessed from 1850 to 1870, inclusive, and in whose name he had paid the taxes for several years; and did not give him the quantity of land in the tract, or the list on, or township in which it had been uniformly assessed before, his failure to pay the taxes on the land in controversy was attributable to no fault of the treasurer, but to the fault and negligence of himself alone.” The defendant presented, inter alia, the following point of law, which was affirmed:

“ 3. If the court find as a fact under the evidence [that Jeremiah Bonner, one of the owners of tract No. 5158, the land in controversy, before the sale thereof in June, 1872, for the taxes of 1870, went to the treasurer’s office for the purpose, bona fide, of paying the taxes charged against the same, and used reasonable diligence to ascertain and pay the same, and failed to do so by reason of being actually misled by the treasurer’s advertised list of unseated lands, and by the condition of the books and records in the treasurer’s office,] a subsequent sale thereof for the said taxes would be void and vest no title in plaintiff’s vendor.”

The plaintiff presented the following additional points of law:

“ 1. There is no sufficient evidence of any payment of the taxes on the land in suit, for the year 1870, nor of any such offer to pay them, defeated by the fault of the treasurer, as will defeat the sale. *Answer:*The first additional point is answered in the negative. We do not think that the fault of the treasurer is the only ground on which the owner may claim that the sale for non-payment of taxes is invalid. We think if the failure to pay the taxes is occasioned by the fault of the assessor, or the commissioners, independently of or in connection with the treasurer, and that, by such default of the officials mentioned, the owner is actually misled and prevented from paying, after an honest, diligent effort so to do, he will be protected in his title against a treasurer’s sale for the taxes he has thus unsuccessfully endeavored to pay.” [3]

“ 2. Under all the evidence, the judgment must be entered for the plaintiff. *Answer:*The plaintiff’s second additional point is answered in the negative.” [4]

The plaintiff filed exceptions, alleging, inter alia, that the court erred, 1, in its finding of fact, as contained in brackets, quoting it [7] ; 2, in affirming the defendants’ 3d proposition of fact, being that part of defendant’s 3d point contained in brackets, quoting it, [8] ; *5044, in refusing to affirm plaintiff’s 2d point of law, quoting it [1] ; 5, in affirming defendants’ 3d point of law, quoting it [2] ; and, 6, in the conclusion of law contained in brackets, quoting it. [3]

The court overruled the exceptions and entered judgment in favor of the defendants. The plaintiff then took this writ.

/ *The assignments of error*specified the action of the court, 1, 2, 5,7, 8, in overruling plaintiff’s exceptions, quoting them; 3,4, in the answers to plaintiff’s additional points, quoting the points • and answers; 6, in directing judgment to be entered for the defendants.

*C. IT. Noyes,*with him *D. I. Ball, J. H. Osmer*and *E. L. Davis,*for plaintiff in error.

Bonner did not exercise sufficient care in his examination of the records of the treasurer’s office, and did not give the treasurer sufficient information to identify the tract.

In Burd’s Ex’rs *v.*Patterson, 22 Pa. 2x9, the distinct allegation by the treasurer of the payment of the taxes was held insufficient to defeat the treasurer’s sale of the tract. And yet, the responsibility of ascertaining whether there were any taxes to pay was cast upon the treasurer much more than in the case at bar.

In Stewart *v.*Shcenfelt, 13 S. & R. 360, the land was sold upon the assessment in the wrong township. It does not appear that the owner of the land knew of the latter assessment and sale within the time permitted to redeem the tract. The treasurer’s sale was sustained.

In Woodside *v.*Wilson, 32 Pa. 52, it was held that the assessment in the name of the former owner was a sufficient designation to correct errors of number.

In Dunden *v.*Snodgrass, 18 Pa. 131, a tract of land belonging to J. S. Riddle, part of No. 624, was assessed as No. 18, 125 acres, in the name of Wm. Powers. Wm. Powers had sold this land to J. S. Riddle some four years before the assessment. The number, 18, prefixed to the tract in place of the original number, 624, was arbitrarily used by the assessor for his own convenience, without any notice to the owner. The sale was sustained, the court saying, “ There was enough in this instance to lead him (the owner) to the truth.”

An assessment by the name of the owner, or of one long connected with the title, is a sufficient assessment: Woodside *v.*Wilson, 32 Pa. 32; Glass *v.*Gilbert, 38 Pa. 290; Strauch *v.*Shoemaker, 1 W. & S. 166; Miller *v.*Hale, 26 Pa. 432; Dunden *v.*Snodgrass, 18 Pa. 151; McCoy *v.*Michew, 7 W. & S. 390; Russell *v.*Werntz, 24 Pa. 337.

There is no reported case where the name of the owner or reputed owner of the land has been connected with it in the assessment that the sale has been defeated because of an assessment in a wrong warrant number.

An owner of unseated land is bound to take notice of the *505statute authorizing it to be sold for taxes, and of the entries in the county commissioners’ books: Cuttle *v.*Brockway, 32 Pa. 45.

If the tract had not been advertised at all, the validity of the sale would not be affected, for the law is expressly written that “ the neglect of such treasurer to cause the said publication to be made, shall not, in any case, invalidate any sale made in pursuance of the provisions of this Act.” 2 Purd., page 1675, ph 17-

All the cases in Pennsylvania hold, without exception, that the effort to pay taxes which will be accepted as the equivalent of payment, must not only be bona fide, as the court finds this was, but that its failure must be exclusively the fault of the treasurer. The,, learned counsel now opposed to us so argued to this court in Lamb *v.*Irwin, 69 Pa. 436, and his argument met with the court’s approval. And in Baird *v.*Cahoon, 5 W. & S. 540, Sergeant, J., declares that the question who was in default “ was the question in the case, whether the failure was due to the act or omission of the agent, or of the officer.” To the same effect areBreisch *v.*Coxe, 81 Pa. 336; Lairds. Hiester, 24 Pa. 452; Burd’s Ex’is *v.*Patterson, 22 Pa. 219. The Act of 1815 is clear and explicit as to what shall defeat the title of a purchaser at treasurer’s sale, and if jurisdiction to sell exists, nothing else will defeat it, except tender of the amount of the taxes within two years after the sale, or actual payment prior to the sale: 2 Purd. 1678, pi. 36.

*B. J. Reid,*with him *Samuel Griffith*and *Miles W. Tate,*for defendant in error.

This court will not reverse a judge’s finding of facts, on a case submitted, where the evidence should have been submitted to a jury, and the findings are not unwarranted by the evidence: Brown, Early & Co. *v.*Susquehanna Boom Co., 109 Pa. 70; Griffith *v.*Sitgreaves, 90 Pa. 161.

The tracts 5157 and 5158 were contiguous and in the same township; Bonner found 5157, in his own name, in Green township; he could not expect to find the other in Tionesta township in Plunder's name, and under a different number.

Dunden *v.*Snodgrass and Woodside *v.*Wilson, only support a sale in the name of a former owner, though by a wrong number, in the absence of evidence of an actual honest effort to pay the taxes. The remark of Mr. Justice Thompson, in the latter case, on page 57, that such a designation as he was discussing could not mislead the owners, was obiter dictum under the facts of that case, and, even if warranted by the facts showing a simple mistake of number, would be inapplicable to a case of compound error and confusion like ours.

In Burd *v.*Patterson, Edward Burd owned other lands in the county assessed in his own name, and on which the taxes were paid. The treasurer wrote in reply that the taxes on the Edward Burd lands were settled, and the agent did nothing more in the matter. The facts-are therefore radically different from those now under consideration, and the ruling upon them has no application to our case.

*506Oct. 29, 1888.

The language of Lamb *v.*Irwin, and other cases, cited to establish the principle that a sale for unpaid taxes is good unless the attempt of the owner to pay them was defeated by the fault of the treasurer exclusively, must be read in the light of the fact of those cases. In all of them the treasurer and owner were alone concerned, — no fault or blunder by any other officer being alleged. They certainly are no authority for the position that, no matter how grossly the assessor and commissioners may have blundered, their errors cannot be considered if the treasurer was free from fault.

It is not the owner’s duty to search the tax books; the treasurer cannot lay them before him and compel him to search for himself: Breisch *v.*Coxe, 81 Pa. 336; Dietrick *v.*Mason, 57 Pa. 43.

Stewart *v.*Shoenfelt, 13 S. & R. 360, is of little or no value as authority for plaintiff, for the reason that the court below sustained the tax sale on the express ground that the party contesting it was not the owner, but a mere intruder without title; and for the additional reason that the case proves too much, when it says, per Gibson, J., page 374, that “ where the land is unseated and a tax actually assessed under color of authority, .... nothing but proof of actual payment by the owner will affect the title of the purchaser;” a doctrine that was exploded long ago.

A bona fide attempt to pay all the taxes, frustrated by the fault of the treasurer, stands as the equivalent of actual payment: Breisch *v.*Coxe, 81 Pa. 336.

Per Curiam,

From the facts, as found by the learned judge, we are not prepared to say that his conclusion and judgment were wrong. We cannot reverse if the facts were such as warranted their submission to a jury, had the case not been withdrawn from that body by the submission of the parties. That they must have been so submitted, we have no doubt; hence, as the judge of the common pleas was, by that submission, substituted for the jury, we cannot reverse unless his conclusions were clearly unwarranted by the evidence. As this is not the case, as there was proof to show the misleading character of the assessments by which Bonner may have been deceived, nothing remains for us but an affirmance of the judgment.

The judgment is affirmed.