MASTERSON v. BEASLEY, ET AL.

JUDGES BURNET AND SHERMAN.

1828.

The authority of a person claiming to act as agent, for applicants to redeem land sold for taxes, is not a matter to be questioned by the purchaser, on certiorari after the recognition of such power by the common pleas.

The validity of the title of the applicant cannot be called in question on an application to redeem.

The applicant must shew that he, or those for whom he professes to act, are in some way connected with the title, as by deed, descent, contract, of possession under claim of title, either of which will be sufficient. So also an equitable title or naked possession.

This case was brought before the court at the last term, by appeal. The appeal was dismissed on the ground that the statute, under which the order was made, did not authorize such a proceeding, and that the right of appeal given by the practice act, was confined to adversary proceedings, conducted according to the course of the common law and did not extend to summary proceedings authorized by particular statutes.

The case has since been brought up by certiorari.

It appears from the record, that in November, 1826, an application was made by N. Beasley, as agent of the minor heirs of N. Massie, to redeem a tract of land sold for taxes. To support the application, Beasley produced the certificate of the Auditor of State, showing, that 100 acres of land charged with taxes in the name of John Jonett, had been sold to the plaintiff, (Masterson,) on 29th December, 1823, for the sum of $5-being the amount of taxes, penalty and interest, due thereon, for the years 1821, 1822 and 1823. He also produced the Auditor's receipt showing that the money had been deposited on the 20th December, 1825, for the redemption of said land as the statute directed. It was also proved that the applicants had given the notice required by law. Whereupon it was adjudged by the Court, that the applicants were entitled to redeem.

The transcript contained a bill of exceptions, taken by Masterson, setting out the notice, the publication, the certificate, and receipt of the Auditor-the patent to the heirs of Massie, and the deposition of Wm. Creighton, Jun. Esq. stating the heirship and ages of the applicants. It also sets out a deed offered in evidence by Masterson, executed by the Marshal of the District of Ohio, con. veying the land in question to one Charles Johnson, by virtue of a judgment and execution, in the circuit court of the United States, against the applicants, as heirs at law of N. Massie, deceased. On this testimony Masterson objected to the application, on the ground that the evidence was not sufficient to sustain it. The objection was overruled and an order of redemption was made. The reasons assigned for reversing the order were:

First: There is no proof of the right or title of the said Beasley, as agent of the said heirs, to the said land, or to redeem the same.

Second: There is not any proof in said record or proceedings, of the agency of the said Beasly, to apply for said redemption as such agent, according to the act of assembly.

Third: The said Masterson gave evidence, that the title was not in the said heirs of said Massie, or said agent, and that therefore, they had no right of redemption.

BRUSH for the plaintiff, in arguing the case, relied on two grounds.

First: That Beasley did not show such an agency as entitled him to make the application in the name of the heirs.

Second: That the legal title was in Johnson, and not in Massie's heirs; and, therefore, that no application to redeem could be sustained in their names, or for their benefit.

By the COURT.

The law for the redemption of land sold for taxes is equitable in its provisions, and ought to receive a liberal interpretation. It provides for the security of the purchaser, and protects his right in any event. If the land be redeemed, the purchaser's money and interest must be refunded in all cases, and if the appli. cant has not been under any legal disability, he must pay fifty per cent. in addition, and must also pay for any improvements which may have been made by the purchaser. Such being the conditions of a redemption, the purchaser can. not complain, nor can he expect a rigid construction of the statute against thə applicant.

An examination of the record, certified from the Common Pleas, shows that the proceedings, on the part of the applicants, have been technically correct.

The question whether Beasley, was legally authorized to represent the minor heirs of Massie, does not in any degree affect the merits of the case, nor does it concern the rights of the purchaser. The court below were satisfied with the evidence of his authority. The guardians of the minors have not questioned it, nor can the purchaser be permitted to do so. As the redemption is made in the name, and for the benefit of the heirs, there is no ground for apprehending the improper intermeddling of a stranger. It is a matter of but little moment, in what way the agent derives his power. He acts, as an attorney in fact, and if his authority is not disputed by his principal, no other person has a right to complain, because none other have been injured. The purchaser of the tax title, must receive every thing to which the law entitles him, before the order for a redemption can be operative.

The second error assigned, is not exactly true in point of fact. The sale by the Marshal, does not necessarily show that the heirs of Massie have been divested of their legal title. The validity of that sale depends on the legality of the judgment and subsequent proceedings, which the heirs are at liberty to contest, and having this privilege, they must be permitted to protect themselves and their possessions against others. If this objection, to the right of redemption by the heirs, should prevail, their right to contest the title claimed under the Marshal, would be of but little use, for, whatever might be the result of such a contest, their title would be lost by the collector's sale.

But the statute does not require the person, who applies to redeem, to show a legal title in himself. The only provision on that subject is, that if, on exami nation, it shall appear to the Court, that the claimant has a legal right to redeem such land, or any part thereof, the Court shall adjudge the same to him, &c. It is no part of the duty of the Court to decide questions of title on applications. like this. They are to enquire whether the party has a right to redeem, and not whether he has a perfect title to the land. In the Virginia Military District, where the land in question is situate, it may happen that one person claims under a junior entry not carried into grant, while another has the possession, and a patent on an elder entry, each party believing himself to have the better title. In such a case, it would be difficult to decide who had the right to redeem, if the construction of the plaintiff be correct. In a court of law the Patent must prevail. In a Court of equity, the person holding the junior entry might prevail.

This and similar cases will show the embarrassment to which the Court of Common Pleas, may be exposed, if they are to decide questions of title on applications of this kind.

A stranger having no interest in the land, will not incur the trouble and expense of redeeming it in his own name, nor his own right; but if such an attempt should be made, it could not succeed, because it is confessedly the duty of the Court, to require satisfactory evidence of a right to redeem.

The applicant must show that he, or those for whom he professes to act, are in some way connected with the title to the premises, as by deed, descent, contract, or possession under claim of title, either of which will be sufficient.

An equitable title, or a naked possession, may give a legal right of redemption under the statute, which was not intended to require investigations of title, further than may be necessary to prevent impertinent applications.

This being our view of the subject, it follows that the proceedings, and the order of the Court below, must be affirmed.

DECISIONS IN BANK.

1828.

WEYER v. ZANE.

A judgment of a court of competent jurisdiction, though rendered in a form of proceeding unknown to our practice, and apparently without service of process, cannot be treated as a nullity while unreversed.

This was a scire facias, to revive and have execution of a judgment recovered by the plaintiff, against the defendant, in the Court of Common Pleas of Belmont. county, at December term, 1813. The scire facias recited, that at the December term, 1813, a judgment was recovered against Anthony Weyer, then Sheriff of Belmont county, upon a motion to amerce, at the suit of Sterling Johnson for not collecting and paying the amount of an execution put into his hands, at the suit of Johnson, v. Zane. The scire facias then proceeded to recite, that at the same term, the said Sheriff "obtained a judgment against Samuel Zane and Elisha Woods, the substance of which is as follows, to wit: Upon a forthcoming

bond, for the delivery of property to satisfy an execution against Samuel Zane, in favor of Sterling Johnson, for the sum of two hundred and fifty-four dollars seventy-nine cents, with interest from the 19th day of August, 1813. And on motion of the plaintiff by his attorney, and it appearing to the court, that the plaintiff had this day been amerced in consequence of the defendants failing to deliver the property they had bound themselves to do, to satisfy the execution aforesaid: whereupon it is ordered and adjudged by the Court, that the plaintiff recover of the defendants the sum of five hundred and ten dollars, in damages, and his costs about his suit expended, which judgment is this day rendered for the plaintiff's security, in consequence of being amerced, and is to be satisfied. by the payment of the sum the plaintiff is amerced in." The scire facias proceeded to suggest, that Woods was deceased, and that the amount of the judgment on amercement v. Weyer, remained unpaid, and prayed that Zane might be summoned, to show cause why the judgment should not be revived and execution had against him.

The defendant demurred generally to the scire facias, and pleaded other pleas. In the Court of Common Pleas, judgment was given for the defendant, The plaintiff appealed to the Supreme Court, and the case was adjourned here. upon the question on the demurrer alone.

By the COURT.

The demurier assumes, that the judgment set forth in the scire facias, is so utterly irregular, as to be absolutely void and of no effect. We cannot adopt this opinion. The court that rendered it, was a court of competent jurisdiction over both parties and subject. However summary their proceedings, or however irregular, the solemn judgment of a competent and authorized tribunal cannot be treated as a nullity. There is an explicit and formal judgment, and, although the proceedings upon which it is predicated, may be unknown to our jurisprudence, still, as in all other judgments, they are not open for enquiry, except in a regular mode of re-investigation on writ of error or certiorari. It is seldom that the error complained of, is, in the manner of rendering the judg ment itself. Generally, it is founded on some of the intermediate matters, for mistake in which it is supposed that the judgment stands upon an incorrect conclusion, with respect to facts or principles. There is no substantial dis tiction between this and other cases, that we can perceive. The demurrer must be overruled and the cause remanded for hearing on the pleas.

SPURK v. VANGUNDY.

If the defendant in error die after assignment of errors and joinder it is not necessary to make his representatives parties but the court will proceed to judgment.

This was a writ of error, adjourned here for decision from Pickaway county. The declaration was in covenant, upon a covenant of seizin, in a deed for the conveyance of land, and contained no averment of an eviction. The cause was tried in the court of Common Pleas, October term, 1826, and a verdict

and judgment given for the plaintiff, to reverse which, this writ of error was brought.

After the assignment of errors, and the joinder in error, the defendant in error died.

Ewing, for plaintiff in error.

The court proceeded to judgment, and upon the authority of the case of Backus' adm'rs. v. McCoy, ante, 211, reversed the judgment.

GIST v. LYBRAND.

When the maker of a note removes from the state where he resided at the time of making it, the holder is not bound to make a demand of the maker to charge the endorser.

Where the endorser resided nine miles from the city and spent part of his time in the city, receiv ing letters and messages at a particular place, in the rout of a letter carrier, and proof given that notice of non-payment was put into the post office of the city directed to the endorser; after a verdict for the plaintiff a new trial was refused, though no proof was given to the jury that the city post office was the nearest to the residence of the defendant.

This cause was adjourned from the county of Knox, and came up for decision on a motion, for a new trial, made on behalf of the defendant.

It was an action upon the case against the defendant, as the endorser of a promissory note, made to Lybrand by Richard Ware, dated Philadelphia, Au gust 4, 1818, payable twelve months after date, and endorsed by the defendant to the plaintiff, before it became due.

One count averred, that when the note became payable, diligent search was made, for Ware to demand payment of him, but he could not be found, and thereupon the said note was protested for non payment, and notice thereof to defendant. Another count stated, that after the endorsement, and before the note became payable, Ware secrectly absconded from Philadelphia, and fled to parts unknown; and when the note became due, diligent enquiry was made for Ware to demand payment of him, but he could not be found, of which the defendant had notice.

The defendant pleaded the general issue.

Upon the trial, the defendant's counsel objected to the admissibility of the evidence offered by the plaintiff, to excuse the want of a personal demand upon Ware, the drawer, and also, to the evidence offered by the plaintiff, to prove Both these objections notice of non-payment to the defendant, the endorser. were overruled by the court, and it was for the alleged mistake of the court in these particulars, that a new trial was claimed.

First: As to the demand, the evidence offered by the plaintiff was the fol. lowing:

First: JOHN WARNOCK deposed, that he was well acquainted with Ware; prior to August, 1819, deponent was deputized to serve a warrant on Ware, for a debt of ninety-six dollars seventy-eight cents: went to Ware's house in Philadelphia: Ware was not to be seen: deponent called to him, and Ware Shortly after,. replied that he was not to be seen by any person on business.