Henry Baldwin

“ The error of the conclusion to which the learned judge of the supreme court of Pennsylvania arrived, as is conceived, consists in this, that the sale vested the purchaser of a legal estate in the land, instead of an encumbrance in the nature of a mortgage; hence, he asserts, that 'until the owner approves of the redemption, the purchaser at the treasurer's sale cannot be considered as divested of his estate in the land.' McBride v. Hoey, 2 Watts 443.
In form, a mortgage is certainly a conveyance ”

“ Taxes on unseated lands have never been considered a charge on the person of the owner. The mode of recovery is by a sale of the land. Burd v. Semple 9, S. & R. 109, 114.
They also urged, that at the time the taxes were assessed and due, Quay was a tenant in common, in right of his wife, of the lands subsequently sold; and that, if before the sale their title was divested by the partition, yet, as the taxes were a lien on the land, it was Quay's duty to remove the encumbrance and prevent a forfeiture; otherwise Fox and wife might compel a new partition. ”

“ His admission is altogether adverse to the answer of the district judge to the seventh and eighth points of plaintiff's counsel, 'that, before the treasurer 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.' If the owner's approbation be sufficient, after the redemption, at any time within the two years; then the treasurer has no right to inquire by what authority any one offers to redeem; as the owner may, the next day, ratify the redemption by a perfect stranger. ”

“ If the court should, however, be of opinion that some interest in the land is necessary to authorize a person to redeem, it will then be proper to inquire whether the redemption by Robert Quay be good, under the circumstances of this case. ”

“ A law authorizing the redemption of lands so sold, 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. ”

“ He says, 'no one but the owner at the time of the sale, his heirs, assigns, or other legal representatives, have the right to receive the surplus money due on the land;' and consequently no other has the power and capacity to redeem. ”

“ A tax is not an encumbrance which is saved by a warranty, or the other usual covenants in a deed. There is no implied warranty in a deed of partition, except among co-parceners. 4 Cruise Dig. Art. 16, 17. Id. 434.
Mr. Justice BALDWIN delivered the opinion of the Court.
The land in controversy was granted to Joseph Fearon by the commonwealth of Pennsylvania, by patent bearing date the 19th April 1794, from whom the plaintiff deduced a regular chain of title to himself. The defendant claimed in virtue of a sale for taxes, on the 12th June 1826, by the treasurer of Lycoming county ”

“ 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. ”

“ The counsel for the plaintiff in error then briefly recapitulated the facts, showing that, originally, this tract of land, with many others, belonged to a certain Joseph Fearon, of Philadelphia, who died intestate in April 1810; that these lands descended to his brother's children, of whom Sarah, wife of Robert Quay, was one; that some of the heirs lived in England. ”

“ As regards third persons, the mortgagor is the owner, even of the legal estate. Presbyterian Congregation v. Wallace. 3 Rawle 128. An ejectment may be supported on a mortgage, 12 S. and R. 240. It is a lien and something more, 1 Peters 441. Although the words grant, bargain, and sell, are in a mortgage, and the forms of an absolute conveyance in fee are used, with a proviso that payment on a certain day shall alone render it null and void; yet, as Judge Huston said in Presbyterian Congregation v. Wallace: 'No lawyer, no man, no woman, can be mistaken in its import. ”

“ 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 domicil by origin; which is not divested or changed unless there be proved a citizenship and domicil acquired by the said Oliver S. Wolcott elsewhere, in some other State or jurisdiction. ”

“ No construction can be given to it, by which to make it operate as an acceptance of the partition made by the deed of 1825, or any release of the right of Mrs. Scarrow to claim her undivided share of the whole estate of her uncle. There was, besides, a fatal objection to the power of attorney, as there was no separate examination of Mrs. ”