
    HOSIE VS. EGERTON.
    A grantor who covenants against incumbrances heretofore assessed, is not liable to -pay taxes for years subsequent to his conveyance, which were levied in obedience to a decree of Court made before the conveyance, to pay oil the indebtedness of a borough which had been cut oil from a township.
    Error to Common Pleas of Lackawanna County. No. 166 January Term, 1885;
    This case arose from a case stated as- follows:
    By deed dated the 15th day of December, A. D. 1881, and recorded in the office for recording deeds, etc., in and for said County, in Deed'Book No. 11, page 58, etc., the defendants above named, together with the heirs and devisees of said Jane Ann Egertou, deceased, conveyed to the plaintiffs above named, certain lands in the Borough of Archbald, in said County. The deed contained a covenant by the grantors that said premises were free and clear of all encumbrances, and that they would pay all taxes, rates and levies theretofore assessed upon the said premises.
    The plaintiffs gave to the defendants a bond and mortgage for the unpaid purchase money for said premises, bearing even date with said deed. Said mortgage is recorded in the office aforesaid, in Mortgage Book No. 3, page 462, etc.
    The deed, bond and mortgage aforesaid, are hereby made part of this case stated.
    The Borough of Archbald was formerly a part of the late Township of Blakely. By virtue of an act of Assembly, approved the 12th day of June, A. D. 1878 (Pamphlet Laws 184), proceedings in equity were commenced to No. 1 May Term, 1879, in this Court, at the suit of Peter Walsh, to ascertain the indebtedness of said township, and to apportion the same among the several boroughs carved out of the old Township of Blakely.
    The said indebtedness was duly ascertained, and oh the 17th day of February, A. D. 1881, the Court entered a decree apportioning to the said Borough of Archbald $8,741.07 of said indebtedness, and ordered that the sums apportioned to the several boroughs be paid by a special tax within three years, and that the said boroughs, by their proper officers, should assess and levy in the month of April in each year of the said three years, beginning with April, A. D. 1881, a tax of ten mills on the last assessed valuation.
    The said act of Assembly and the said suit in equity are hereby made part of this ease stated.
    The amount of said special.tax assessed upon the lands aforesaid, for the year 1881, was paid by the defendants.
    The amount of said tax assessed upon said lands for the year 1882, to wit: $112.18, was paid by the plaintiffs, and the amount assessed for the year 1883, to wit: $124.10 was paid by plaintiffs.
    Although the three annual assessments directed by the Court have been made, yet the part of said township indebtedness apportioned to said borough, has not been fully paid thereby, and it is agreed that a further assessment of ten mills will be necessary, and that the amount to be assessed upon said land will be $124.10 for the current year 1884.
    If the Court be of opinion that defendants were not and are not bound to pay any of said taxes for said year 1882,1883 and 1884, then judgment to be entered for the defendants for costs..
    Either party to have the right to sue out a writ of .error.
    The Court decided in favor of the defendants in the following opinion, per:
    Hand, J.
    Upon the facts of this case stated judgment must be entered for the defendants. It is not necessary to enter into an extended exposition of the law in this matter. The act of 12 J une, 1878, P. L. 184, giving the Court power to act, did not change the character of the taxes to be levied. It was passed alone for the purpose of ascertaining the indebtedness and apportioning it among the several boroughs. After the sale all taxes that were not then encumbrances were liable to be paid by the purchasers. None of the taxes paid by the plaintiffs were encumbrances until after the title had passed any more than any borough tax thereafter assessed would have been. The proceedings and order and decree of the Court did not, within the meaning of the Act, make a lien, nor an assessment nor an encumbrance. The ordinary and proper authorities levied and assessed the tax. The Court simply provided under the Act of Assembly a mode and a time for the proper municipality to pay its debts. The defendants were only liable for the taxes of 1881, the year in which their conveyance was made, and were not liable for the years .1882, 1883 nor 1884.
    Judgment is entered on the case stated in favor of the defendants for costs.
    
      Plaintiffs then sued out a writ of error complaining of the entry of judgment in favor of the defendant.
    
      S. B. Price, Esq. for plaintiffs in error
    argued that the taxes were assessed before the conveyance ; Act June 12, 1878, P. L. 184; Wells vs. Smyth, 55 Pa. 159. The taxes were an incumbrance even if not assessed; Shaffer vs. Greer, 87 Pa. 370; Hutchins vs. Moody, 30 Vt. 655; Mitchell vs. Pillsbury, 5 Wis. 407; Trotter vs. Page, 7 W. N. C. 469. Encumbrance does not mean liens only ; Seitzinger vs. Weaver, 1 Rawle 377; McKennan vs. Doughman, 1 P. & W. 417. It includes all adverse claims ; Cochran vs. Guild, 106 Mass. 29; Almy vs. Hunt, 48 111. 45; Blackie vs. Hudson, 117 Mass. 181; Carr vs. Dooley, 119 Mass. 294. Even if the taxes were assessed after conveyance, they related to and were an incumbrance from February 17, 1881.
    W. W. Lathrope, Esq., contra
    
    argued that as a general rule, a covenant against encumbrances is not broken by the subsequent assessment of a tax; Jackson vs. Sassaman, 29 Pa. 109; Cochran vs. Guild, 106 Mass. 29; Langsdale vs. Nicklans, 38 Ind. 289; Harlow vs. Bank, 63 N. Y. 399. In Trotter vs. Page, 7 W. N. C. 469, the assessment was made before the conveyance. In no case cited by plaintiff, has it been held that the annual tax for a year subsequent to the conveyance was an incumbrance. The covenant was “to pay. all taxes, rates and levies heretofore assessed;” and hence does not include taxes subsequently assessed ; Miller vs. Heller, 7 S. & R. 40.
   The Supreme Court affirmed the judgment of the Common Pleas on March 9, 1885, in the following opiuion :

Per Curiam

The learned judge committed no error in entering judgment in favor of the defendants on the case stated. The opinion of the Court filed on entering the same, fully sustains the conclusion, at which it arrived.

Judgment affirmed.  