
    [Philadelphia,
    Dec. 23, 1822.]
    BURD and another against RAMSAY.
    CASE STATED.
    Taxes due for seated lands are not a lien on real estate, but only a personal charge against the owner or occupant.
    The defendant was indebted to the plaintiffs on an assigned mortgage, dated the 16th January, 1812. Judgment was entered by the plaintiffs on the bond accompanying the mortgage, on the 12th November, 1817. On the alias venditioni thereon, returnable to December Term, 1820, a sale was made on the 20th November, 1820, of the mortgaged premises, on the following conditions: “Cash in ten days, or the property sold again at the risk of the purchaser: all arrears of ground rent and taxes will be paid out of the purchase money, if the bills thereof are brought to the sheriff's office within ten days from the time of sale, after which the property will be accountable.” The premises were purchased by the plaintiffs. The sale, exclusive of taxes, after deducting costs and arrears.of ground rent, produced less than the debt and interest, for which the execution issued. A bill against the defendant for the taxes of the years 1818 and 1819, was presented to the sheriff by the collector, within the ten days, which the plaintiffs objected to his paying, and they gave verbal notice to the collector to collect the taxes from the premises, which was afterwards repeatéd on the 21st December, 1820. A distress was afterwards made, and abandoned by the collector. The defendant, prior to the year 1819, resided on the mortgaged premises, and still resides there. The' property on the premises had been assigned for the benefit of ere--ditors, previous to the distress.
    The question for the opinion of the court is, whether the plaintiffs are not entitled to take out of court the sum claimed by the' collector for taxes, on the ground that they were not a lien on the premises sold.
    Gibson,■ for the plaintiffs,
    referred to the 7th, 8th, 12th, 15th,-16th, 18th, 19th, 20th, 21st, and 23d sections of the act 11th Jlpril? 1799, entitled, “An Act to raise and collect county rates and levies,” Purd. Dig. 100, to show that the taxes were merely a personal charge, and are no-where in any part of the act relating to this; subject, declared to be a lien on land, or treated as such. They are assessed on the person in respect of property real or personal, and the remedy for their recovery is personal, by distress and sale of goods, or imprisonment of the person of the delinquent, where goods cannot be found.
    There is a lien created by the act: but it is on the property of the collector, and even that is limited to two years. The express creation of a lien in this case shows, that the legislature did not intend a lien for the tax, or they would have provided for it in the same1 manner. Liens on land are matters of positive enactment; they are attended with inconveniences in many instances, and ought not to be implied on slight grounds. The great object of the law was, that the taxes should be speedily collected; within one year: and if they were a lien until paid, it would induce the collector, and all concerned, to relax in the performance of their duty. Besides, if they were alien, there is no mode by which it can be enforced: no proceedings of sale of lands can take place by the authority of the collectors. In the case of unseated lands, which are expressly subjected to sale for non-payment of taxes, the legislature have provided a specific remedy to enforce the lien: and if they had contemplated it in x-bspect to other real estate, they would have carefully established a system by which the title might be transferred, and rendered secure to.a purchaser. It is a strong argument against the lien, that in the case of unseated lands, the law expressly provides the lien, and gives á remedy for its enforcement.
    
      Binney and Rawle, contra.
    The usage so far back as it can be traced, has been to treat the taxes as a charge upon land; and such has uniformly been the understanding. When lands háve been sold on a venditioni exponas, the sheriffs have always paid the arrears of taxes. Some taxes are personal in their nature, or are laid on personal property, or in consequence of occupancy: none of these ought to affect the land: but a tax on land is very different: it ought to bS considered as a charge on land unless the contrary be expressed. The remedies against the person and goods are no where described in the acts of assembly as exclusive, and are therefore to be deemed additional remedies which exist with the lien. The lien resembles that of a mortgage, which is not impaired by the existence of a remedy against the person of a mortgagor, or the bond accompanying the mortgage, 3 P. Wms. 360. Great inconveniences to the public will ensue, if the land is considered not liable to taxes. A great deal of land belongs to absentees, and it would be absurd to consider that as a personal tax. Where the owner is absent or unknown, the tax must be laid on the land or not at all. The question whether thex’e exists a lien, will be detenninéd by ascertaining whether the tax is treated in the acts of assembly as a charge on the land; for if it be a chai’ge on the land, then it is a lien, in the same manner as the land tax in England. . Wood/. Land. & Ten. 97. TheedY. Starkey, 8 Mod. 314. Jeffreys case 5 Co. 67. Bowls v. Cells, Cowp. 452.
    
    The 7th section of the act of 11th April, 1799, directs the com-missionei's to require the assessor’s to return the names of all taxable persons, and of all the property made taxable by the 8th section, and to proceed to quota the townships agreeably to the quantity and quality of. land and other taxable property. The 8th section contains an enumeration of the articles made taxable, commencing with all lands held by patent, &c. houses and lots of ground, and ground rents. By section 15, the county commissioners are empowered to discharge the collectors only in the case of mistakes or indigent persons. The 16th, and 19th give a very summary process against collectors, but the lien on their lands is to indure only for two years. The reason of this provision is, that two years are a sufficient time to proceed against them to the extremity of the law: but as for lands which are taxed, it would be impossible in all cases to collect the taxes within two years. The 25th section made the goods and chattels of all tenants occupying lands or tenements, liable to be distrained for taxes arising out of the same, as though they were the real owners, with the right of -defalcating the tax with the landlord on paying their rent. Whence this provision if the tax on the landlord be personal? The expressions of this section are very strong: it speaks of “ taxes arising out’ of such lands or tenements.” This section was repealed by the 6th section of the act of 3d April, 1804, relating to the selling of unseated lands for taxes, Purd. Dig. 638, and every tenant, occupying or possessing any lands or tenements, is made liable to pay all the taxes which, during such occupancy or possession, may thereon become due and paya-, ble, reserving the right to defalk or recover the same ágainst his landlord. They are liable personally: but they are liable only for those taxes which acerue during their own occnpancy: they are not made liable for those which were previously in arrear. Besides, there are many houses unoccupied for several years, the owners of which live out of the state. There is much real estate unoccupied belonging to minors, and to corporations. Transfers are oftensecretly made, and the owner cannot be known.. It is clear, that unoccupied lots in the city of Philadelphia cannot be sold as unseated lands: city lots are always mentioned in the acts of assembly as lots. On the 28th .MmA, 1814, pamph. 304. there was’a special act passed for the sale of the vacant lots in the city of Philadelphia for taxes in the same manner as unseated lands, which shows the construction given by the legislature on that point. In most of the states, taxes are a lien on land. Lands may be sold for taxes in Vermont, Rhode Island, Connecticut, and New YorJe. In New Hampshire improved lands are sold for taxes, under certain circumstances. Griff. Ans. to Quest. No. 94. In Massachusetts a táx is a lion on land, and not a personal charge, Rising v. Granger, 1 Mass. Rep. 48. The difficulty of enforcing the lien is made an objection to its existence: but it is of no weight, because there are many cases in which the law establishes a lien, and yet the party has no remedy to enforce it. Goods distrained could not be sold by the landlord at common law. So also an attorney has alien on his clients papers: an innkeeper on the goods of his guest: the owner of a ship on the goods carried for freight: and these are only a right to hold till payment, but not to sell. Under the law originally passed to give a lien to mechanics, there was no remedy provided for the enforcement of the lien. The legislature has considered the taxes as a lien. In the 21st section of the act of 11th April, 1799, Purd.. Dig. 105, provision is made to compel a sheriff or corner who receives any money for taxes, to pay over the same to the commissioners.
    
      Condi/, in reply.
    It is evident, on considering the different acts of assembly on this point, that the legislature have distinguished lands subject to taxation, into two kinds, unseated and seated: the foi’mer yielding no profit, are charged with the tax," and may be sold for it. The latter yielding profit, are not charged with the tax, but the pernor of the profits is liable to the tax. The goods of the occupier, though not on the premises, are liable. The tax cannot be deemed a lien, because a lien on land is a right to enter on the land, and to hold it until the owner .pays money. The only lien on land is by mortgage: a judgment is only a charge. The collectors have no right to enter on the land, and take the profits. The land, therefore, is not the debtor. A charge which cannot be carried into effect amounts to nothing. There was an application to the legislature last winter for an act of assembly to make seated lands subject to sale for taxes: but it was refused. The legislature thought there were liens enough already. As to the general understanding on the subject, we conceive it has always been in Philadelphia that the taxes are no lien.
   The opinion of the court was delivered by

Gibson, J.

The question is whether taxes due for seated lands are a lien on them, or only a personal charge against the owner or occupant. No lien is expressly created by any of the various acts of assembly on the subject, and the inquiry will therefore be, whether an intention to render the taxes a charge on seated lands can be collected from any or all of those acts, by implication. This implication must arise, if at all, from the 4th section of the original act, (act of 11th April, 1799,) by which the assessors are requested to take an account of the names of the taxable inhabitants within their respective districts, and of certain kinds of property made taxable, among which land is mentioned, together with almost every sort of building, as well as ground rents. There would be-little doubt if the question depended on this section alone; but I shall presently endeavo'r to show that it does not. With respect to the taxation of property, the principle adopted by the legislature, that the quantum of the assessment is to be regulated by the quantum of the property possessed, is a principle of natural justice, which has, Ibeliéve, been recognized by every legislature in the union; and to give full effect to it in practice, it was absolutely necessary to have returned along with the name of the taxable inhabitant, the various kinds and amount of the property in respect of which he was to be taxed. This, and not an intention to lay the tax specifically on the property, exceptin the case of unseated lands, was the object in hav-ving any thing returned besides the name of the person to be taxed. The tax can no more be said to be laid specifically on the land than on the personal property returned; and if both real and personal were specifically taxed, each would necessarily be. respectively liable in the hands of the owner only for what’was a charge on it: yet the whole of the personal property may be distrained, as well for what is assessed on the land, as what is assessed on it particularly', because the whole is one charge. There is then no reason to say there is a lien on the land, more than on the chattels returned: and with respect to them, the existence of a lien has never been pretended.

But other provisions of this act and of subsequent acts conclusively show that the legislature never thought of creating a lien. By the 15th section of the original act, the remedy is by distress; or if personal property cannot be found, by commitment of the body: and by the 16th section, the collector is to act in the matter at his peril; for if he fail to pay the whole amount of his duplicate within three months after it has been put into his hands, he is to be charged with the balance unpaid, a transcript of which being filed in the prothontary’s office of the proper county, is to have the effect of a judgment. And further: by the 18th and 19th sections, the treasurer is required to issue his warrant commanding the sheriff to seize the body and estate of such delinquent collector, on the return of which the commissioners are authorised to issue their warrant commanding the property to be sold. From this it is plain the intention was that the commissioners should look to the collector alone, the whole amount of the taxes, with the exception of allowances for mistakes and insolvencies, being considered, at the end of three months from his receipt of the corrected duplicates, as actually in his hands. In this respect, therefore, the commissioners have nothing to do with the person or property of the taxable inhabitant, the collection being a matter exclusively between him and the collector, who alone is liable to. the county. There can be no outstanding taxes but in the hands of the collectors; and we accordingly find the practice to credit them as such on the treasurer’s books, is universal. The remedy against the collector is not in addition to a ■supposed remedy against the person or property of the taxable inhabitant; for by the supplementary act of the 2d of April, 1821, it was provided, that wherever the. collector had failed to collect the taxes within the time prescribed, he might maintain an action in his own name; thus giving him a personal remedy.for unpaid taxes as for his proper debt: -which is inconsistent with the notion that the commissioners have a direct claim against the taxable inhabitant, and that their remedy against the collector is cumulative. If they ever had such a claim it was transferred by this act; but the truth is they never had. The act was passed for equitable reasons; to restore to the collector, authority to usé compulsory means, which he had lost by indulgence beyond the period when all authority to proceed under his warrant, had ceased. Under this act therefore he collected the tax as a debt due not to the county, but to himself, and of which he had become the owner by substituting his own liability for that of the debtor. This act is repealed by the supplementary act of the 11th March, 1822, which authorises the collectors to proceed under their respective warrants at any time within three years from the date; but without in any respect impairing the effect of the 16th and 18th sections of the actof 1799, which fix the collectors for the amount of their respective duplicates to the county.'

The selling of hands for the trifling amount of taxes usually due on them, is always attended with inconvenience and vexation to the owners, who are often involved in trouble and expense, by the sheer neglect of the collectors, who seldom make a personal demand. This, and not the amount to be paid, has been the cause of the repugnance constantly evinced to acts of congress laying a land tax, which have always contained a provision for the sale of land itself, in default of payment. Our state legislature, on the contrary, have ever been guided by the wise policy of not looking to the land, in that class of cases which necessarily affords a reasonable probability of obtaining the tax from the person or chattels of the owner. They seem to have supposed, that on every tract in actual occupancy, sufficient personal property, would be found, to satisfy the demand by distress ; and the very few instances in which this might not be the case, were thought too unimportant to merit special provision. By the act of the 3d of Mpril, 1804, tenants in possession are made'liable, just as if they were the owners of the land, with an optional right of recovery, against th.eir landlords, or of defalcation out of the rent. Before this time,, the laws were founded on a supposition, for the most part true, that the owners of improved lands, re-sidéd on them, and in that case, the taxes could be obtained by the use of due diligence, from their persons or property. Since this act, however, nothing can be lost, except ifi cases of absolute insolvency; and the’collector will be entitled to an allowance on that ground.

It is remarkable that the person and the land are never both charged for money' due in respect of the land. Purchase money due the state is a charge on the land itself and not on the person of the grantee; and taxes on unseated lands, have never I believe been considered a charge on the person of the owner, wb a may abandon them whenever they are not worth the taxes. There is no other means of obtaining taxes due on. these, than a sale under the act of assembly. In the case of seated lands, there is no -other means than distress of the owner, or occupant’s chattels,- or commitment of the body, If the legislature had intended to create a lien, they would have provided some direct means of enforcing it; and the inference from the want of such a provision, is irresistible. It is altogether incredible, that they would have trusted to the uncertain and improbable event of the End being at some period, sold by the Sheriff, and of the purchase money being brought into court for distribution ; in which case, only, the lien would be availing. A lien without retention of possession, or any other means of rendering it produe-live, is altogether so worthless, as to preclude all idea of its having ever been in the contemplation of any one.

I am therefore of opinion, that the plaintiffs have leave to take the money claimed by the collector, out of court.

Judgment that the plaintiff have leave to take out of court the money which was claimed for taxes.  