profits of certain land "during the term of her natural life." And in the seventh item the testator devises his homestead farm, subject to the right of his widow, Catharine, to reside on the same "during the term of her natural life," and to receive one third of the rents and profits "during her life."

After having made five annual payments of $125 to the widow, the appellant discovered that the words "per annum "had been omitted in the clause creating the charge on the land devised to him. Being interested, he naturally inferred that the words in said clause,

during all the term of her natural life,' were meaningless, although so often used in their proper sense in other parts of the will where money and rents are directed to be paid to her during said period. That he did not sooner discover the omission is not surprising. It seems plain that he took the land subject to an annual payment during the life of the widow.

The testator used apt words to express his intention, and the several devises, subject to annual payments to the widow, are in similar phrase as respects the duration of the charge. Had the testator intended to charge one devise with a single small payment he would have simply directed its payment to his widow, and not have repeated that phrase, omitting a word, thereby rendering the phrase senseless. It is a fair inference from the whole will that the words " per annum were omitted from said clause by mistake.

It is unnecessary to repeat the reference to the authorities, made by the master and court below, which establish the principle that a word may be supplied where it is a clear inference from the whole will that it was omitted by mistake.

Decree affirmed and appeal dismissed, at costs of the appellant.

D. B. KUNES et al., Plffs. in Err.,

v.

John MCCLOSKEY et al.

1. The rights of purchasers at a tax sale are fixed by the sale; the subsequent payment of the purchase money and the delivery of the deed relate back to the

sale.

2. The purchaser has an inchoate title the moment the property is knocked down to him, which becomes perfect with the payment of the purchase

money.

3. The deed from the commissioners is not the title; it is merely the evidence of the title. It is a mode of assuring and preserving such evidence. Accidental priority in the delivery of respective deeds is unimportant.

4. During the period allowed by law for redemption from a tax sale, the equitable title is in the owner; the legal title is in the county treasurer or commissioners, as the case may be, as security for the unpaid taxes and costs. 5. After the time of redemption has expired

6.

7.

an equity remains in the owner, sufficient to warrant the commissioners in permitting redemption at any time before a public sale to other parties. The county commissioners can only convey by deed what they have previously sold by public sale, excepting perhaps a conveyance to the owner by way of redemption.

When land embraced by a junior title is only in part included under an elder warrant and survey, and the land embraced by each warrant and survey is assessed as two distinct tracts for the same years as unseated and sold at the same time to two different purchasers, the purchaser of the tract assessed in the name of the person to whom the elder warrant was granted or the person claiming the land under it, will be entitled to the land embraced within the interference of the two surveys, in preference to the purchaser of the land assessed under the junior warrant. The seniority of the title must be looked to in each case, and be made the test of right between the two purchasers. (Argued February 17, Decided March 21, 1887.)

JANUARY Term, 1886, No. 312, E. D., before Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ.

Error to the Common Pleas of Centre County, to review a judgment on a verdict directed for plaintiffs in an action of ejectment. Reversed.

This action was brought by John McCloskey and Matthias W. McCloskey, against D. B. Kunes and Joseph B. Poorman, to recover possession of 392 acres and 80 perches of land in Curtin Township. The contention in this case is for the alleged interference between two surveys on the warranty names of " Joseph Taylor" and "Robert Irwin," respectively, the title to which interference is based upon treasurer's sales for taxes assessed in the name of each survey, for the years 1872 and 1873.

At the trial before SIMONTON, P. J., the following facts appeared:

The Joseph Taylor tract of 413 acres was sold at the regular biennial sale, June 8, 1874, to the commissioners. The Robert Irwin tract, of 392 acres and 80 perches, was sold to the same commissioners at an adjourned sale, August 3, 1874.

February 12, 1884, the commissioners sold the Joseph Taylor tract to D. B. Kunes, and the Robert Irwin tract to John McCloskey. There was no positive and conclusive evidence as to which of the tracts was sold first on that was dated and delivered to him on that day. day; but it appeared that McCloskey's deed sioners, tendered the purchase money for the On the same day Kunes went to the commisJoseph Taylor tract, and demanded a deed. The commissioners, being busy with other sales, stated that it would be impossible for them to make out all the deeds for tracts sold that day, and requested him to wait until he should again come to town. Kunes made another demand later in the same day, but was met with the same reply. February 23, being the next time

"If the taxes were paid on neither tract, and the commissioners did purchase both, they, therefore, owned the interference; they owned what was included in either of the surveys or included in both. When they sold them and made the first deed, they conveyed all that was within the interference, because they owned it at that time; when they came to make the second deed to the defendant afterwards, they had nothing to convey except what was outside of the interference. The plaintiff then, in this case, became the owner of whatever was within the interference; and, therefore, on the first point we instruct you that he got the better title from the commissioners."

"We instruct you that the plaintiff is entitled to a verdict for the lands described in the writ." Verdict and judgment were for plaintiffs, and defendant took this, writ, assigning, inter alia, as error the portions of the charge given above.

Messrs. William H. Blair, D. H. Hastings and Wilbur F. Reeder, for plaintiffs in error:

County commissioners can only convey by deed what they have previously sold by public sale. This has often been decided. Their powers being derived from the statute, all acts beyond the authority conferred are ultra vires, and therefore void.

Hunter v. Albright, Watts & S. 423, 425; Fritz v. Brandon, 78 Pa. 342; Brandon v. Fritz, 94 Pa. 88.

Messrs. Orvis, Bower & Orvis, for defendants in error:

When the commissioners made their deed to Kunes on February 23, 1884, they had no title to the interference, as they had already conveyed that to the plaintiffs below on February 12, 1884. After receiving the money of the plaintiffs and delivering to them the deed February 12, nothing which the county commissioners could do would impair or affect the title they had conveyed.

Brown v. McCormick, 6 Watts, 60; Banks v. Ammon, 27 Pa. 172; Washabaugh v. Entriken, 34 Pa. 74; Miller's App. 84 Pa. 391.

When the money is paid and the deeds delivered at different times, he who has the oldest conveyance from the common grantor has the better title.

Fritz v. Brandon, 78 Pa. 357; Hunter v. Albright, 5 Watts & S. 423; Diamond Coal Co. v. Fisher, 19 Pa. 267.

Mr. Justice Paxson delivered the opinion of the court:

The first assignment of error raises the only question of importance in this case. In that portion of the charge embraced in said assignment the learned judge below instructed the jury in substance that, inasmuch as the county owned both the Joseph Taylor and the Robert

Irwin tracts, it therefore was the owner of what was included in either of the surveys or included in both; that when the commissioners sold them and made the first deed, they conveyed all that was within the interference, because they owned it at that time; that when they came to make the second deed to the defendant afterwards, they had nothing to convey except what was outside the interference. The learned judge thereupon instructed the jury that upon this branch of the case, the plaintiff got the better title from the commissioners.

Each of these tracts had been sold for taxes by the county treasurer. The Joseph Taylor, containing 415 acres, was sold by the treasurer of Centre County to the commissioners at the regular biennial sale June 8, 1874, for $89.12. The Robert Irwin, containing 392 acres and 80 perches, was sold by the same treasurer to the same commissioners, at an adjourned sale on the third of August of the same year for $45.22.

On the 12th of February, 1884, the commissioners sold both of these tracts. They sold the Robert Irwin to John McCloskey, plaintiff below, for $26, and delivered him their deeds therefor, dated the same day. They sold the Joseph Taylor to D. B. Kunes, defendant below, for $84, for which they delivered him their deed on the 25th of the same month.

The court below ruled, as has been stated, that the deed to the plaintiff, being prior in point of time, conveyed the title to the interference.

This might be so, if in point of fact there was any priority of the one deed over the other, and such deed by its terms and the understanding of the parties, conveyed such interference.

The difficulty in the way of this view of the case is that both tracts were sold upon the same day; and there is no evidence in the case that points with any degree of certainty as to which tract was first sold. At most there was but a scintilla, by far too little to base thereon an adjudication as to the rights of property.

It may be that in the case of a sale by the commissioners of two tracts upon the same day, the law might regard fractions of a day in order to ascertain the relative rights of the parties. No such attempt was made in the present instance, and in its absence we must regard the accidental priority in the delivery of the respective deeds as unimportant. The rights of the parties were fixed by the sale, and the subsequent payment of the purchase money and delivery of the deed relate back to that event. The purchaser has an inchoate title the moment the property is knocked down to him, which becomes perfect with the payment of the purchase money. The deed from the commissioners was not the title itself; it was merely the evidence of the title. It is a mode of assuring and preserving such evidence which experience has shown to be the most convenient method.

If we concede, however, that the plaintiff's deed has priority as a conveyance, it by no means follows that it operates as a conveyance of the interference. That it was not intended by the parties so to operate seems clear, from the fact that so far as this evidence shows none of them knew of the interference at the time of the commissioner's sale. It was not known to either of the parties or the commissioners.

It was urged, however, that Fritz v. Brandon, 78 Pa. 342, is in conflict with this view of the case. It is true Chief Justice Agnew, after commenting upon the cases of Hunter v. Albright, 5 Watts & S. 423, and Diamond Coal Co. v. Fisher, 19 Pa. 237, said: "And irrespective of the doctrine of these cases, if the tax sale in either name be sufficient to convey the title to the actual locus in quo, the title of Roseberry would prevail for he was first to pay the purchase money to the commissioners and obtain his deed. Prior in tempore potior est in jure. But it is sufficient that the title under the Gray surveys being good, the tax sales of Troxel and Immel were good.'

The language quoted indicates, what an examination of the case clearly shows, that the case referred to had already been decided upon other grounds. And when we examine the facts of which it was predicated, we find that although the two tracts had been sold by the commissioners upon the same day, to two different purchasers, one of said purchasers refused to pay the purchase money for several years, and only settled therefor after the matter had been placed in the hands of an attorney for collection, while the other purchaser paid the money and took his deed promptly. The difference between that case and the one in hand in this respect is too apparent to need comment. Here there was no delay on the part of the defendant. The evidence shows that he offered the purchase money on the day of sale and was clamorous for his deed.

This brings us to the question: What title did the commissioners sell? It is doubtless true that the title was absolute in the county, if the county chose to enforce such right. The time allowed by law for redemption had passed. It is equally clear, however, under the authority of Jenks v. Wright, 61 Pa. 410, and Steiner v. Cor, 4 Pa. 13, that the owner may redeem after the expiration of the five years, with the consent of the commissioners.

It was held in the latter case that a private sale to the owner, although the consideration was less than the amount in arrears, was valid in the absence of collusion, and that nothing but a corrupt agreement to defraud the revenue would avoid such conveyance. Such purchase was held to be a redemption; upon no other ground could such a transaction be maintained, as the commissioners have no power to make a private sale to a stranger for any price, whether more or less than the taxes in arrears.

In Jenks v. Wright the power of the commissioners to permit redemption after the term has gone by was said by Thompson, C. J., to be beyond dispute and to have been exercised in hundreds of cases, while in Steiner v. Cor it is treated as a custom, proper to be proved as a matter of evidence. Not as a custom to override the statute, but to aid in its construction.

The Acts authorizing sales of land by the commissioners or treasurer, are laws for the collection of taxes, and not for the confiscation of the property of the citizen, who from any reason may be unable to pay them, when due. It would be beneath the dignity of a great Commonwealth to seek to make gain out of the

provisions for redemption in case of both the treasurer and commissioner's sale. During the period allowed for redemption, the equitable title is in the owner; the legal title is in the treasurer or commissioners, as the case may be, as security for the unpaid taxes and costs. After the five years have elapsed, and in cases of sales by the commissioners, the owner loses his legal right to redeem. This is not because his equity entirely ceases, but because there must be a time certain when the commissioners may proceed, with or without the consent of the owner, to collect the taxes due. But an equity, not enforceable it is true, remains in the owner, sufficient to warrant the commissioners in permitting redemption at any time before a public sale to other parties, as directed by Act of Assembly.

The commissioners sold these tracts precisely as they bought them at the treasurer's sale, and by the same description. The commissioners' deeds respectively describe them only by their warranted names; no courses and distances or other boundaries or marks are given. They sold what they bought from the treasurer, and nothing else, and they sold them precisely as they had bought them.

The Joseph Taylor was sold by the treasurer to the commissioners on June 8, 1874; the Robert Irwin was sold by the same treasurer to the same commissioners on August 3, 1874. Both treasurer's deeds appear to have been dated in the same day, but as before observed, it was the sale that fixed the rights of the parties, and not a scramble for the first deed. The commissioners therefore acquired title to the Joseph Taylor before they acquired title to the Robert Irwin. The Taylor was the older survey and paramount title; hence, when they subsequently bought the Robert Irwin, they bought what was left outside of the Joseph Taylor, conceding there to be an interference as claimed.

Holding the two titles, therefore, in the manner above stated, it is conceded that the commissioners might, had they so willed, have sold this interference by metes and bounds. But they did not do so nor attempt it. They sold both tracts as they received them without any regard to location. The purchaser of the Joseph Taylor took by his deed just what the commissioners took by the treasurer's deed; so of the Robert Irwin. Suppose, instead of making this sale of the two tracts, the commissioners had sold them to the owners at private sale. This, under the authorities cited, would have been a redemption, although after the five years. Surely no intention of passing the interference would be presumed in such case.

The county commissioners can only convey by deed what they have previously sold by public sale, excepting perhaps the single instance of a conveyance to the owner by way of redemption. The deed from the commissioners to the plaintiffs below limits their conveyance to the premises conveyed to their predecessors by the treasurer's sale of August 3, 1874. The recital is as follows:

'It being the same tract of land which J. B. Mitchell, treasurer of said county *** sold, granted and conveyed by deed poll, dated the 20th day of November, 1874, to the commis

January 14, 1884, John Donoghue presented a petition to dissolve the attachment, setting forth the proceedings in the Common Pleas of Washington County and alleging that said summons in covenant was served on Charles Donoghue alone and that the petitioner never authorized nor employed an attorney to appear for him in said proceedings; that the moneys in the hands of the Lehigh Valley Railroad Co., garnishee, is due for labor performed in the construction of a tunnel on such railroad and that Charles Donoghue is not and never has been a partner in such construction and has no interest therein.

A rule to show cause was granted and, after hearing, the court, February 23, 1884, filed an opinion in which it held that the judgment against John Donoghue, taken August 25, 1876, was irregular and erroneous, but it never having been reversed by a superior court or set aside by the Court of Common Pleas of Washington County in which it was entered, this Court of Common Pleas of Carbon County would not interfere, and continued the rule to show cause, to afford the defendant an opportunity to make application to the court in Washington County; whereupon, John Donoghue filed a petition in the Court of Common Pleas of Washington County to strike off the judgments of August 25, 1876, March 20, 1877 and June 4, 1877.

March 24, 1884, the Court of Common Pleas of Washington County granted a rule to show cause, which (after hearing, on answer and demurrer) was discharged by the court, STOWE, P. J., specially presiding, in the following or

der:

"I have no doubt that the judgment entered against Charles and John Donoghue, August 25, 1876, for want of an affidavit of defense, was absolutely void as to John. But this does not in any wise affect or invalidate the judgment against the latter, March 20, 1877, entered (as we understand the record to say or mean) "by consent of his counsel." If I am right in interpreting the record, and I have no doubt I am, the judgment is perfectly regular and cannot be set aside.

"The rule to set aside this judgment is therefore discharged."

John Donoghue then filed a petition in the Common Pleas of Washington County for a rule to show cause why the judgment of August 25, 1876, which was held absolutely void as to John Donoghue, by STOWE, P. J., should not be stricken from the record. The court after hearing, filed the following opinion:

“While I am still of the opinion that the judgment entered against petitioner, August 25, 1876, was absolutely void, I can see no necessity for ordering it to be stricken off. If the view I take of this case is correct, the judgment is a nullity, and ordering it to be stricken from the record will not in the least benefit the petitioner; for the supreme court would consider that as done which should have been done.

Interrogatories were filed by plaintiffs' attorneys and January 17, 1885, the court granted a rule on the garnishee to answer the same. It appeared from the answers of the garnishee that there was a balance due the defendant, John Donoghue, of $4,335.37. By a supplemental answer, alleging an error in the accounting by the garnishee, there appeared to be a balance due defendant of $3,600.73. The garnishee, further answering, amended the answer stating the amount due defendant, so that it should read as follows:

"The above balance of $3,600.73 is now due absolutely as between defendant and garnishee, not being subject to any contingency as to satisfactory completion of work; but garnishee has received notice from defendants' counsel of possible outstanding assignments made prior to service of attachment, and desires to be further informed on this subject before answering fully."

After hearing, on rule on the defendants and the garnishee to show cause why judgment should not be entered against the garnishee upon the answers tiled to the interrogatories, the court, DREHER, P. J., filed the following opinion:

"The judgment in this court was entered on a transcript of a judgment in the Court of Common Pleas of Washington County. The defendants interpose objections to the present rule for judgment against the garnishee that the judgment against John Donoghue (the only party to whom the garnishee is indebted) is void.

"In an opinion, heretofore given, we fully considered the question raised now, and held that while we considered the judgment irregular and erroneous, we had no power over it, and that the defendant must make his application to set aside, or open the judgment, to the Court of Common Pleas of Washington County. That court, on application of John Donoghue, refused to open the judgment, and that, notwithstanding His Honor, Judge Stowe, considered the judgment void.

"I am still of opinion that the judgment is not void, but only erroneous; and as the court of Washington County has refused to disturb it, it must stand as a good judgment until reversed by the supreme court.

"While Judge Stowe held the judgment taken for want of an affidavit of defense void, he held the judgment which we treated as a judgment in rem to be in personam.

"Let judgment be entered against the garnishee on its answers to the plaintiffs' interrogatories for the amount of the plaintiffs' judg ment, debt, interest and costs, in the usual form."

October 20, 1885, judgment was accordingly entered against the garnishee for the amount of plaintiffs' judgment and interest from May, 1877, to which judgment John Donoghue excepted.