
    ROBINSON VS. CAMERON COUNTY.
    Where land was sold at Treasurer’s sale for unpaid taxes, and redeemed sub - sequently, and an action was brought against the county for the redemptio n money more than six years after the redemption ; held that the Statute of Limi - tations was a good defence.
    Error to Common Pleas of Cameron County. No. 135 May Term, 1877.
    This was an action of assumpsit brought by Wm. J. Robinson to use of J. R. Clark against the County of Cameron for 1786.42 redemption money. On June 14th, 1864, Robinson purchased two tracts of land to which he claimed title at Treasurer’s sale ; so as to perfect the title. J. F. Clark also claimed title, and on June 12, 1866, redeemed these two tracts of land. On August 12, 1874, these disputes as to the title were settled, Clark conveying to Robinson his interest in the land and Robinson assigned to J. F. Clark his right to the redemption money, who reassigned it soon after to J. R. Clark. On February 5, 1875, Clark made a demand upon the County Commissioners for the money which they refused to pay, and suit was brought on April 12, 1875. The charge of the Court was as follows, per
    Wilson, J.:
    In June, 1864, warrant No. 4962 and warrant No. 4963, each containing 990 acres, situate in Shippen Township, in Cameron County, were sold at Treasurer’s sale for taxes which had previously been assessed against them as unseated lands, and were purchased by Wm. Robinson, the plaintiff, one on the 14th day of June and the other on the 16th day of June, 1864, for taxes and costs.
    J. F. Clark claimed title to said warrants, and on the 12th day of June, 1866, went to the Treasurer’s office and paid to the Tr easurer of Cameron County $546.14, the amount necessary to redeem said warrants. The Treasurer gave J. F. Clark a receipt of that date in full for the redemption of those warrants, and also mark ed them redeemed on the book. Robinson paid the taxes on the lands the two years intervening between the time of his purchase and the time of redemption by J. F. Clark.
    On the 12th day of August, 1874, Wm. Robinson and J. F. Clark compromised their adverse claims of title by J. F. Clark conveying his interest in the lands to Wm. Robinson, and tbe latter assigning tbe redemption money to J. F. Clark, which was soon after reassigned by him to J. R. Clark, the present use plaintiff.
    A few days prior to the 12th day of April, 1875, the plaintiff called upon the Commissioners of Cameron County and demanded payment to him of the redemption money. The Commissioners refused payment, wherefore on the 12th day of April, 1875, this action of assumpsit was commenced to recover the same.
    The defendant alleges that the county is not liable for the redemption money paid to the Treasurer, and maintains that the liability is upon the Treasurer, and that the action, if maintained at all, must be brought against the Treasurer.
    This position we negative, and instruct the jury that the County is liable for monies paid tbe Treasurer of the County to redeem lands sold for taxes.
    The Act of 1840 requiring the Treasurer to pay redemption money to his successor, and making it the duty of the County Auditors to charge the Treasurer in the same manner that other money received by him is charged, and the same to be paid to the purchaser or their legal representatives when called for, by orders drawn by the Commissioners of the County upon the Treasurer, as in other cases, determines this position against the defendant, whatever doubts may have been entertained prior to the enactment of this statute.
    As a further defence in this case the defendant has pleaded the statute of limitation. The undisputed evidence is that the re. demption money claimed was paid to the Treasurer on the 12th day of June, 1866, and this suit was not commenced until the 12th day of April, 1875, eight years and ten months after the plaintiff had a right to demand and receive the money claimed in this action.'
    The plaintiff answers and says that the evidence is unchallenged that no demand was ever made in this case until two or three days before this action was commenced, and hence no' cause of action accrued or could have been sustained by plaintiff until after demand.
    
      The facts as alleged on both sides are undisputed, and it is not easy to gainsay either legal conclusion demanded.
    Ordinary diligence would have informed Mr. Robinson that the redemption money was.paid on or before the expiration of the two years from the time of his purchase. J. F. Clark, his assignee, had knowledge absolute, he having paid the money.
    From the position we are driven to determine that the defendant must remain indefinately liable to demand an action at the will or even caprice of the plaintiff, or that the plaintiff be reasonably diligent in demand as well as action, and that both the right of demand and right of action must take the same fate and die on the same perch. We think the latter the better policy, nearer just and more in accord with recent decisions and warranted by the principles determined in Campbell vs, Boggs, 12 Wright, 524, and 9 Barr, 410, Laforge vs. Jayne.
    We therefore instruct the jury that the plaintiff’s claim is barred by the statute of limitations, and the verdict must be in favor of the defendant.
    Clark thereupon took this writ of error.
    
      R. Brown and J. C. Johnson, Esqs., on behalf of the plaintiff in error argued:
    1st. That under the Act of April 28th, 1840, P. Dig. 308, Sect. 22, P. Laws 471, Sec. 15, the County is made trustee to keep the redemption money until demanded, and that no right of action accrues until.demand.
    2nd. That where there is a direct trust, the statute does not begin to run until demand and refusal: Thompson vs. McGraw, 2 W. & S. 163; Johnson vs. Humphrey, 14 S. & R. 394; Phila. W. & B. R. R. Co. vs. Cornell, 4 Casey, 339; Girard Bank vs. Bank of Penn Township, 3 Wright, 92; Laforge vs. Jayne, 9 Barr, 410; Barton vs. Dickens, 12 Wr. 518; Campbell vs. Boggs, 12 Wr. 524.
    3rd. The limitation on an action formed on a statutory liability is twenty years: Cork and Bonden Railway Co. vs. Grode, 76 Eng. Common Law Reports, 824,
    
      Messrs. Newton and Green on behalf of defendant in error argued:
    1st. That the liability if any existed, was upon the Treasurer and not the County. Act of March 13, 1815, 6 Sm. Laws, 301; P. Dig. 1447, Pl. 30; Act May 8, 1855, P. Laws 519, P. Dig. 1450, Pl. 43; Act April 28, 1840, P. Laws 471, Sect. 15 P. Dig. 308, Pl. 22; Bubb vs. Tompkins, 11 Wright, 359; Price vs. Mott, 2 Smith, 315; Lamb vs. Irwin, 19 Smith, 436; Onderdonk vs. City of Brooklyn, 31 Barbour’s N. Y. Rep. 505.
    2nd. The statute of limitations is a bar in all cases except those exclusively within the jurisdiction of a Court of equity: Thum vs. Bloodgood, 7 Johnson’s Ch. 90; Lyon vs. Marclay, 1 Watts, 271; Downey vs. Garard, 12 Harris, 52; Lancaster County vs. Brmthall, 5 Casey, 38.
    3rd. The statute begins to run from the time the right accrued, not from the time of making demand: Alexander vs. Leckey, 9 Barr, 120; Stafford vs. Richardson, 15 Wend. 302; 13 Wendell, 267; 9 Pick, 488; 13 Pick, 418; 2 Mess. & W. 461; Laforge vs. Jayne, 9 Barr, 410; Downey vs. Garard, 12 Harris, 52; Finney vs. Cochran, 1 W. & S. 118; Walker vs. Walker, 16 S. & R. 379; Derrickson vs. Cady, 7 Barr, 31; Pittsburgh and Connellsville R. R. Co. vs. Byers, 8 Casey, 22; Morrison vs. Mullin, 10 Casey, 12; Barton vs. Dickens, 12 Wr. 518; Campbell vs. Boggs, 12 Wr. 524; Rhines vs. Evans, 16 Smith, 192; Steele vs. Steele, 1 Casey, 154.
    For plaintiff in reply. Suit was properly brought against the County. Potter Co. vs. Oswego Township, 11 Wright, 162.
   The Supreme Court affirmed the judgment of the Court below in the following opinion delivered October 1st, 1877:

Per Curiam.

We think the Court below decided this case correctly upon the statute of limitations. The action of assumpsit is an action upon the case and falls within the statute. The subject of the action is money merely paid into the Treasury. It is not a voluntary deposit, or other cause of action which arises on demand merely. True a demand is necessary to inform the County of the person who claims title to the money, but it is not a demand arising out of a contract or other ground of liability which makes the demand essential to the cause of action. The moment the money was paid into the Treasury the purchaser’s right to it accrued and a cause of action arose. When the two years from the day of the sale expired, his title to the land became absolute, and not before. At the end of that time, at least, a duty lay upon him to inquire whether a redemption had taken place, otherwise he must remain ignorant of the state of his title. In this case he lay by for over eight years before making a demand. Clearly this delay was at his own risk and we discover no reason why the statute should not apply to the case. It is quite as important that the county should have the benefit of the statute as a private individual. This case evidences the necessity of such a protection; for the County Commissioners were necessarily ignorant of the fact that the money had come into the Treasury, no account of it having appeared in the settlement before the Auditoi’s. The principles of Campbell vs. Boggs, 12 Wr. 524, and Rhine’s Administrators vs. Evans, 16 Smith, 192, are.properly applicable to this case, rather than those which govern technical trusts and stand on a different footing.

Judgment affirmed.

Note. — As between trustee and cestui que trust in express trusts the statute of limitations has no application and no length of time is a bar:

Zacharias vs. Zacharias, 11 Harris, 452; Lyon vs. Marclay, 1 Watts, 275; Finney vs. Cochran, 1 W. & S., 118; Johnson vs. Humphrey, 14 S. & R., 394; Martin vs. Jackson, 3 Casey, 506; Walker vs. Walker, 16 S. & R., 379; Fleming vs. Culbert, 10 Wright, 496; Kutz Appeal, 4 Wright, 90; Sterling’s Estate, 15 Pitts. L. J., 505: Webster vs. Newbold, 5 Wr., 482; Barton vs. Dickens, 12 Wright, 518; Dillebaugh’s Estate, 4 Watts, 177; Maury vs. Mason, 8 Porter, 211; Bertine vs. Varian, 1 Edw. Ch., 343; Redwood vs. Reddick, 4 Munt., 222; Chaplin vs. Givens, Rice Ch., 132; Pinkerton vs. Walker, 3 Hey, 221; Bryant vs. Pucket, 3 Hey,221; Haynie vs. Hall, 5 Humph 290; Armstrong vs. Campbell, 3 Yerg, 201; Pugh vs. Bell, 1 J. J. Marsh, 299; Thomas vs. Floyd, 3 Litt., 177; Piatt vs. Oliver, 2 McLean, 267; Coster vs. Murray, 5 John Ch. 522; Kane vs. Bloodgood, 7 John’s Ch. 90; Raymond vs. Simonson, 4 Blackf 77; Farnum vs. Brooks, 9 Pick 212.

Statute of Limitations does notapply where the liability of defendant is created directly by statute. Angell on Limitations, Sec. 80; Bullard vs. Bell, 1 Mason 243; VanHook vs. Whitlock, 3 Paige 416; Cork R. R. Co. vs. Grode, 76 Eng. Com. Law, Rep. 824; Lane vs. Morris, 10 Georgia 162; Shepherd vs. Hill, 32 Eng. L. & Eq.; Jones vs. People, 1 Saunders R., 38; Ward vs. Reeder, 2 Har & McHen, 154.  