
    Smith against the executors of Merchand.
    
      Monday, September 24.
    If there-24th March, male previous of moneyVpaíd by a purchaser at a aser at a sale f , , . . , , e for taxes do not appear to have been made to the real owner, but is to the original warran5. on a demurrer to evidence, such original warrantee will be presumed to he the real owner.
    The Act of 29th March, 1817, authorising the recovery ot certain money i was not an Act dissolving a contract without the consent of parties. Tho a nr 9.9th March. 1817, authorising recovery money com-
    ERROR to the Court of Common Pleas of West-county.
    
    This was an action brought by .the executors of David Merchand, the plaintiffs below, against Jacob Smith, late one of the commissioners of Westmoreland county, for the recovery of a sum of money, paid by the said David to the said Jacob, while a commissioner as aforesaid, on account of sundry tracts of land sold by the commissioners of Westmoreland county, and purchased by.the said David-* The action was founded on an Act of Assembly; passed the 24th of March, 1817, entitled “an Act authorising the recovery of money in the hands of certain commissioners.” By this Act it was enacted, that the purchasers of any lands sold at commissioners’ sales for taxes, previous to the year 1800, or their heirs, executors or administrators should be authorised to recover any sums of money, paid to any commissioner, beyond the amount of the taxes and costs, for which such lands were sold, and which had not been paid by the said commissioners to the real owner' of such land, or into the county treasury: provided, that before suit commenced, a bond of indemnity with sufficient sureties to such commissioners, should’ be tendered, and a release of all interest in or title to such lands under such sale, be duly executed by such purchasers, or by their executors or administrators, (who were authorised by the said Act to execute such deed,) and to be recorded in the office of the recorder of the county, in which such sales were made. (.See Pamph. Laws, 174.) : ' ‘ ,
    The plaintiffs, in support.of their action, gave evidence of the sale by the commissioners of Westmoreland county, of sundry tracts of land, of which David Merchand became the purchaser, and the payment by him to the defendant, one of the commissioners, of the sum of 567 dollars, beyond the amount of the taxes and costs, for which the lands were sold. They also gave evidence of a bond of indemnity with sureties, executed by,them, and tendered to the defendant, and of a deed of release from themselves to the persons in whose name the taxes were laid, and as the property of whom the lands were sold, duly executed and recorded in the office of the recorder of Westmoreland .county, before the commencement of this suit. To this evidence, the defendant demurred, and the Court below gave judgment for the plaintiffs.
    
      'Forward, for the plaintiffs in error,
    urged several reasons in support of the demurrer.’
    
      1. The deeds from the commissioners were not produced.
    2. The release is to the person, as whose property the land was sold. The true owner is not always indicated by the name °f tbe person, as whose property the land is sold.
    3. The Legislature had no right to vacate a contract. It is not to be presumed that the commissioners’ sale was void, or that the owner of the land considered it as void.
    Alexander, contra.
    There was no contract between the original owner and Smith, because, when the sale was made, in 1796, the commissioners had no power to sell more land, than would pay the taxes.
   The opinion of the Court was delivered by

Tilgiiman, C. J.

The counsel for the plaintiffs in error, has relied principally on two points. 1st. That the release does not appear to have been made to the proper persons : the commisioners often take for granted, that the lands belong to the persons for whose use the original warrants issued, whereas very often, such warrantees are, not the owners at the time of the sale for taxes. The answer to this objection, is short and decisive. The demurrer confesses every thing, which the jury might have inferred from the evidence, and when taxes are laid on land, as the property of the warrantees, and they are sold as such by the commissioners ; this is prima facie evidence of property, and the jury may infer, in the absence of all other evidence, that the property was in such warrantees. The 2d point made by the plaintiff in error is, that the Act of Assembly, on which this action is founded, was void, because it dissolves a contract without the consent of the parties. But this does not appear to be the fact. The parties to the commissioners’ sale, were, the commissioners and the purchaser. The commissioners were but trustees, for the benefit of the public, appointed under the authority of the Legislature, and subject to their controul. They pretend to no private right. There was therefore no invasion of any right of theirs. And as to the other party, the purchaser, his consent is proved by the bringing of this suit, which is founded on a dissolution of the contract. The truth is, that this Act of Assembly was very salutary ; it corrected a great^public abuse. Most of these commissioners’ sales were void, because not conducted according to law; and the owners of the land, knowing them to be void, would not receive the money paid by the purchasers,-beyond the amount of taxes and costs; consequently this money remained in the hands of the commissioners, to their private benefit. The Act of Assembly was made to authorise the récovery of this money, and is confined to cases, in which sales had been made previous to the year 1800, that is, at least seventeen years before the passing of this Act. Now, surely when the money had lain thus long in the hands of the commissioners, without demand by those persons who had been the former owners, it was sufficiently evident, that these persons considered the sale as void, and never intended to demand the money. Besides, these former owners were no parties to the contract of sale, and no contract of theirs was violated, by dissolving that contract. But, even if they had any subsisting right under that contract, it is not taken away by this Act of Assembly'; on the contrary, the Act provides,' that before the plaintiffs-could recover against the commissioner, they should give him an indemnifying bond. But, if it should ever happen, that a suit should be brought by the person,-whose land was sold for taxes, against the commissioners for the surplus received by them, beyond the amount of taxes and costs, (an event extremely improbable, as it could only be, when the land had been sold by the commissioners', for more than its value;) it would be difficult to support the action, against the strong presumption arising froqj an acquiescence of seventeen' years. Be that as it may, however, it is the opinion of the Court, that the Act of Assembly violated no contract against the consent of any person, whose consent was necessary, and was therefore valid. The judgment of the Court of Common Pleas is to be affirmed.

Judgment affirmed.  