
    Bache vs. McCullough.
    A purchaser at treasurer’s sale cazx not maintain an action of trespass against the former owner for cutting timber before the time of redemption has expired.
    Error to Common Pleas of Lycoming county, No. 396 January Term, 1882.
    This was an action of trespass to recover the value of certain timber and hemlock bark. The case was tried without a jury, and the facts found, and the law applicable thereto, were as follows, per
    Elwell, P. J.
    The facts in the case, as found by the court from the evidence, are as follows:
    
      On the 8th day of June, 1874, the treasurer of Lycoming county sold to the plaintiff a tract' of unseated land in the warrantee name of Gallagher & Salmon, situate in Cummings township, and containing one thousand one hundred and fifty acres, for taxes which had been duly assessed thereon for county, road and school purposes, for the years 1872 and 1873, amounting, with the costs, to the sum of $272.60. A deed bearing date on the day of the sale was duly acknowledged in open court in said county, on the 10th day of October, 1874. The deed recites, what the records from the Commissioners’ office show, that said tract was assessed and charged with taxes for the year aforesaid, to the amount of $266.60, which remained unpaid. The treasurer’s sale book, as it now appears, has entered opposite the tract in question the words, “Sold June 8,1874, to John N. Bache for $5,010.” But it is manifest from inspection that the entry originally made has been erased, and the figures above mentioned going to show that the tract was sold for a larger-sum than that mentioned in the treasurer’s deed and receipt at the foot thereof, and it is therefore found as a fact that the amount bid by the purchasers did not exceed the taxes and costs.
    At the time the taxes were assessed for which the sal e was made, and down to the time of the sale by the treasurer, Gilbert & Bell were the owners of the tract. On the 28th day of March, 1874, by articles of agreement duly acknowledged and recorded, on the 3d day of April, 1874, they sold to Hubert McCollough, the defendant, all their rights, title and interest in all the hemlock bark on all the tracts of land owned by them in the townships of Cummings and Mifflin, in Lycoming county, for the consideration of fifty cents per cord for every cord of bark peeled and taken from said land. The felling of the timber to be subject to the interests of the grantors, who reserved the right to haul off the timber. The number of cords of bark to be peeled annually to be from five hundred to a thousand cords. In June, and the first four days of July, 1875, the defendant caused to be felled on the tract hemlock timber trees from which there were peeled three hundred cords of bark. It requires two thousand feet of timber to yield a cord of bark. '
    A small portion of the bark was taken to defendant’s tannery in the fall of 1875. The larger part of it was drawn away in January and February, 1876. Twenty-five cords remained on the tract until the spring of 1877, when that also was hauled away by direction of defendant.
    The bark on the trees as they stood was worth fifty cents per cord, and the timber from which it was taken was worth $100.
    The defendent did not know of the tax sale until notified by the plaintiff in 1878. The plaintiff had no knowledge that the timber had been cut until some time in that year.
    Upon these facts the question arises whether a purchaser of unseated lands, at a treasurer’s sale for taxes, can maintain an action of trespass against the former owner for cutting timber on the land within two years from the time of the sale.
    The act of 13th March, 1815“, section 1, authorizes the county treasurer to sell unseated lands for taxes in the cases therein mentioned, and to make and execute a deed or deeds in fee simple in the manner directed by the act to which it is a further supplement. The act of 3d April, 1804, 4 Smith’s Laws, 201, to which the act of 1815 is a supplement, authorized the sheriff to make sale of lands upon warrants of county commissioners, and to make deeds in fee simple to the purchasers and acknowledge same in open court. No provision was made for the redemption of lands sold; but minors and insane persons were given five years in which to bring suit, and in case of recovery, the value of improvements made by the purchasers were to be ascertained and paid for by the owner.
    By the fourth section of the act of 1815, Digest, 1447, the owner is given two years in which to redeem, by paying the amount of taxes for which the land was sold and the costs, together with the additional sum of twenty-five per cent, on the same.
    The right of redemption was an important amendment to the law regulating tax sales. It become a statutory condition of the treasurer’s deed, the effect-thereof being to qualify the positive provisions of the deed in regard to a present, absolute title in fee. The question of whether the title shall become absolute, or not, is made to depend upon the condition whether the owner shall or shall not redeem.
    The deed of the treasurer had no greater force and effect, because unqualified in its terms, than if if contained a clause embodying the provisions of the fourth section of the act, making it substantially a mortgage by operation of law, the ■equity of redemption to be cut off after the lapse of two years without any proceeding to foreclose. In the meantime the title of the owner remains. It may be the subject of the lien •of a judgment against the owner; it will descend to his heirs upon his death within the two years, and he may, before redemption, maintain an action of trespass against the purchaser for cutting timber upon the land; Shalemiller vs. McCarthy. 5 P. F. Smith, 186.
    It is contended that the opinion, of Thompson, J., in that case in holding that the title of a purchaser at a treasurer’s sale is not at once an absolute title, is outside of the case before the court. The heirs of the owner in that case redeemed "the land, but not until after they had brought an action of trespass against the purchaser for timber cut before redemption. Held that the action could be maintained. Now, if, as contended by the plaintiff’s counsel here, the purchaser had the absolute title by virtue of his treasurer’s deed, vesting him with the possession or immediate right to possession, and in pursuance of his title and right to possession he cut timber, his acts at the time they were done were lawful, and could not be made unlawful by the act of the owner in redeeming the land. Upon no other ground than that stated by Judge Thompson, to wit, that the right of possession remained in the owner, could the action have been sustained.
    In order to entitle the plaintiffs to recover it required that the Supreme Court shou d hold that the owner’s title and right of possession were not divested by the treasurer’s sale; that he could maintain trespass against the purchaser for cutting timber on the lands, and that, having the right to redeem up to the last day of the two years, and the right of possession, he was not a trespasser in entering upon the land and cutting timber or doing any other act affecting the freehold. The case decides that before redemption and to the end of two years the owner has all the incidents of title. The plaintiffs’ ■cause of action must have existed before suit was brought. Their redeeming of the land afterwards could not, upon any principle of law, make an act a trespass which, when done, was not only a trespass, but was the exercise of a positive legal right.
    I consider the judgment of the Supreme Court in that case as decisive of the rights of the parties to this action.
    During the two years the purchaser at treasurer’s sale has an interest in the land which may ripen into a title. If not redeemed within the time fixed by law his title then for the first time becomes an unqualified and unconditional fee.
    But this does not entitle him to maintain trespass against the owner or one holding under him, for acts done upon the land in the meantime. A mortgagor may sell, in the usual way, the timber, fire wood, coal, ore, fruit or grain found or growing upon the land, without violating th'e rights of the mortgagee. And he may continue so to do until the mortgagee stops him by ejectment or estrepement. The sale of these things are the usual means of raising the money to redeem the land from the mortgage; per Lowrie, J., Hoskins vs. Woodward, 9 Wright, 44. A mortgage has no estate, property ■or real interest in. the land until he takes possession. He may, however, maintain ejectment, but not until after condition is broken; Myers, Assignee, vs, White, 1 Rawle, 355.
    In England, and in States where a mortgage is treated as land and not as a lien, the tenant loses his crop upon the entry of the mortgagee, for he ii considered without title, and the mortgagee enters by paramount title, but even he cannot maintain trespass for the mesne profits; 3 Cruise Dig., 108; Coote on Mortgages, 351; 8 Wend., 584.
    
      Before entry made by a mortgagee he cannot maintain trespass for acts of occupation, though after condition broken; Elloyer vs. Fletcher, 14 Pick., 525; 2 Wash., Real Property, 128.
    After condition broken he may have an action on the case in the nature of waste against a mortgagor in possession for cutting timber; Langdon vs. Paul, 22 Vermont R., 205.
    I have no doubt a bill in equity would lie to restrain the owner, whose lands have been sold for taxes, from stripping it of all its timber, or otherwise despoiling it of its chief value. He may also have remedy by an action upon the case. But if he has not within the two years the possession, or the immediate right of possession, he cannot maintain trespass; Wertzel vs. Marr, 10 Wright, 468. The cases to the same effect are numerous, and need not here be cited.
    In conclusion upon this part of the case, I may be permitted to say, that for more than forty years my own knowledge of the construction of the statute by the members of the bar, in regard to the title of a purchaser at tax sale, accords with the views expressed by Mr. Justice Thompson and Judge Jordan in Shalemiller vs. McCarty, supra, to the effect, that a purchaser of unseated land for taxes, when he receives his deed, takes but an inchoate or inceptive title, which requires the lapse of two years from the date of sale to ripen into an absolute title,
    The incidents of title and possession remain in the owner until the expiration of that time.
    Seated lands, upon which there is not sufficient personal property to pay the taxes, may be sold in the same manner as unseated land; but it has never been held or thought that the purchaser at a tax sale of such land could, as soon as he obtained his deed, maintain ejectment, dispossess the owner and enjoy the profits of the land. If permitted to do so, he might in that way deprive the owner of the means of raising the money to redeem, a result not within the intention of the legislature and in opposition to the construction of the statute by the Supreme Court.
    
      I hold for these reasons, that the plaintiff is not entitled to recover in this action for the cutting of timber by the defendant in the year 1875, nor for bark taken therefrom and carried away in the year 1875. and in January and February, 1876.
    In entering upon the land in 1877, and taking therefrom twenty-five cords of hark peeled from fallen trees in 1875, the defendant committed a trespass for which the plaintiff is entitled to recover damages in this action. These damages with the interest on the same, are found to be sixteen dollars, for which sum the plaintiff is entitled to judgment.
    And now, October 6th, 1881, it is found by the court that the plaintiff is entitled to judgment for the sum of $16.00 and costs.
    Bache then took a writ of error complaining of the ruling of the Court, holding that he could not recover for timber and bark removed before Bache’s title became absolute.
    
      Henry C. Parsons, Esq., for Plaintiff in error,
    argued that by the Acts of 1804 and 1815 a fee was conveyed to the purchaser at tax sale, not when the title became absolute. The purchaser has nothing further to do to complete his title. It would be unjust to allow the former owner to cut off all the timber, which constituted the sale value of the land.
    
      R. P. Allen and H. H. Martin, Esqs., contra,
    
    argued that the case is ruled by Shalemiller vs. McCarty, 55 Penna., 186.
   The Supreme Court affirmed the judgment of the Common Pleas on February 26, 1883, in the following opinion :

Per Curiam.

That the action of trespass will not lie is clearly shown in the opinion of the learned Judge of the Court below.

On the opinion the judgment is affirmed.  