Huber, Tax Collector, v. Weakland.

visors shall issue their duplicates for township taxes to the township tax collector, accompanied by a warrant authorizing and directing him to collect the same.

Section 5 of the Act of 1885 provides as follows: "The collector of taxes shall have all the power for the collection of said taxes, during his term of office, heretofore vested in collectors of county taxes under existing laws, and be subject to the same liabilities and penalties for neglect or violation of the duties of his office."

The above section 5 vests in the collector of taxes all the power heretofore vested in collectors of county taxes under existing laws. We find that the legislature has fixed the power of the collector of county taxes under an Act of Assembly approved April 15, 1834, P. L. 509, in section 21. Section 21 of this act reads as follows: "If any person shall neglect or refuse to make payment of the amount due by him for such tax within thirty days from the time of demand so made, it shall be the duty of the collector aforesaid to levy such amount by distress and sale of the goods and chattels of such delinquent, giving ten days' public notice of such sale by written or printed advertisements, and in case goods and chattels sufficient to satisfy the same, with the costs, cannot be found, such collector shall be authorized to take the body of such delinquent and convey him to the jail of the proper county, there to remain until the amount of such tax, together with the costs, shall be paid, or secured to be paid, or until he shall be otherwise discharged by due course of law."

It will be noted that this section authorized the levy of the amount of the taxes, if not paid upon demand, by distress and sale of the goods and chattels of the delinquent, indicates the method of procedure, and then provides that if the goods and chattels sufficient to satisfy the same, with costs, cannot be found, then the collector is authorized to take the body of the delinquent and convey him to the jail of the proper county, there to remain until the amount of such tax, together with the costs, shall be paid, or secured to be paid, or until he shall be otherwise discharged by due course of law.

The sections of the various acts of assembly cited above are all in full force and effect and without question authorize and empower a township tax collector, in the event that the taxable neglects or refuses to make payment of the amount due by him within thirty days from the time of demand so made, then to levy upon the goods and chattels of the delinquent, give ten days' public notice of the sale by written or printed advertisement, and sell the same, and in the event that the proceeds of the sale of the goods and chattels are not sufficient to satisfy the amount of taxes and costs, or if the taxable has no goods or chattels, then the tax collector is authorized to take the body of the taxable and convey him to jail, there to remain until the taxes are either paid or secured or until he is otherwise discharged by due course of law.

We are aware that section 35 of the Act of April 15, 1834, P. L. 509, which provided the powers for the collection of township taxes, was repealed by section 1500 of the Township Code of 1917. It was, however, not necessary to retain this section, for the reason that the Act of 1885 gave to tax collectors the powers as contained in section 21 of the Act of 1834, which were identical with those in section 35.

Again, referring to the Act of 1834, we find that section 45 provides as follows: "Nothing herein contained shall authorize the arrest or imprisonment for non-payment of any tax of any female or infant or person found by inquiIsition to be of unsound mind."

Huber, Tax Collector, v. Weakland.

It is clear that section 45 of the Act of 1834 exempts a female. We find, however, that on May 8, 1923, the legislature, by an act found in Pamphlet Laws on page 169, amended section 45 of the Act of April 15, 1834, P. L. 509, by removing the exemption of females from arrest and imprisonment for non-payment of taxes. The amended section reads as follows: "Nothing herein contained shall authorize the arrest or imprisonment for non-payment of any tax of any infant or person found by inquisition to be of unsound mind."

This amendment now places females in the same situation as male persons and makes them subject to arrest and imprisonment under the same situation as male persons.

As to the collection of school taxes.

It will be kept in mind that the Township Code provides for the election of a township tax collector. It will also be kept in mind that section 365 of the Township Code of 1917, as well as the Act of June 25, 1885, P. L. 187, authorizes the township collector to collect school taxes and vests in him all the powers such as are now vested in or conferred upon or imposed upon tax collectors of the several classes referred to in the act. We will also keep in mind that sections 4 and 5 of the Act of June 25, 1885, P. L. 187, also direct the school directors to deliver their duplicates to the township tax collector, authorize and empower him to collect the same, and that the tax collector is given all of the powers vested in the collector of county taxes, so that we have again to look to the Act of April 15, 1834, P. L. 509, to ascertain the powers of the county tax collector. These powers are set forth in section 21, quoted hereinabove. So that we find the township tax collector authorized and empowered to collect the taxes of the school district, and that he is possessed of the same powers in connection with the collection of this tax as in the collection of the township tax, so that, upon neglect or refusal to pay, the goods and chattels of the delinquent may be sold, and if the goods and chattels be not sufficient to pay the taxes and costs, or if there be no goods and chattels to be sold, the tax collector may take the body of the delinquent and place him or her in jail.

We have not undertaken to cite all of the sections of the School Code, referring to the authority of the school directors to levy and assess taxes. Sections 402, 503 and 537 have reference to this matter. Section 546 relates to the authority of the school directors of the second, third and fourth class to place their duplicates in the hands of the township tax collector. Section 542 of the School Code relates to the levy of an occupation or personal tax. This section has been amended by the Act of July 17, 1919, P. L. 997, and also by the Act of May 11, 1921, § 4, P. L. 508, so that it provides now for the levy of a per capita tax of not less than $1 nor more than $5 to be assessed by the local school district upon each resident inhabitant of the school district over twenty-one years of age. Section 547 of the School Code provides that the school board might appoint a tax collector where no tax collector was elected to collect school taxes, or where there was a vacancy, or where the tax collector elected refused to serve, and section 552 of the Code gives to this appointed collector all the power and authority now vested or which may be given by law to any tax collector. This we would then trace back to the authority already hereinabove cited.

Some question might have been raised as to whether or not the Act of June 25, 1885, P. L. 187, covered school districts, because of the language of the title of the act, the language being as follows: "An act regulating the

Huber, Tax Collector, v. Weakland.

collection of taxes in the several boroughs and townships of this Commonwealth." Any doubt about this, however, has been settled by two decisions of the Supreme Court of this State. First, that of Com. ex rel. v. Topper, 219 Pa. 221, where it is held that the Act of June 25, 1885, P. L. 187, superseded the office of collector of school tax under the former system, and the new officer, entirely independent of the board of directors, became the only person authorized to collect taxes of every description. And the case of Com. ex rel. v. Duquesne Borough School District, 256 Pa. 50, where it is held that the power given to the Court of Quarter Sessions to appoint a tax collector under the Act of June 25, 1885, P. L. 187, still exists, notwithstanding the provisions of section 547 of the School Code, and that the intent of the legislature was that the school board could only appoint in the event that the court had not acted, and then their appointee was only authorized for a period of one year, which appointment by the court was for the unexpired term. We are aware of the fact that section 2 of the Act of June 25, 1887, P. L. 187, relating to the appointment of tax collector by the court, was repealed by the Act of May 17, 1917, P. L. 221; but section 183 of the Township Code of 1917 again re-enacts the law giving to the Court of Quarter Sessions the power to appoint the township tax collectors if there is a vacancy, and the appointment is for the unexpired term.

In conclusion, as to the school taxes, we are of the opinion that, under the statutes now in force in this State, a township tax collector, whether elected or appointed, shall receive the duplicates for the school taxes from the school board of the district and has the power to levy and distrain upon goods and chattels of a delinquent taxable, and, if unsuccessful in getting his tax and costs, may convey the delinquent taxable to jail, there to remain as provided under section 21 of the Act of 1834, hereinabove quoted. And there is no question about the power of the school board to levy and assess taxes upon persons and property within their respective district.

At the argument of this case counsel called the attention of the court to the fact that there is considerable uncertainty among the people of the county as to the power of tax collectors in boroughs as well as in townships and school districts, and suggested that, in giving an opinion upon the matters covered by these proceedings, we also cover the power of a tax collector in a borough. We have made an examination and have concluded as follows:

The General Borough Act of 1915, known as the Borough Code, does not provide for the election of a tax collector in the borough, nor for the collection of taxes. This matter, however, is covered fully by preceding legislation. The Act of June 6, 1893, § 1, P. L. 333, provides for the election of a tax collector in boroughs to serve for the term of three years. This act repeals only that part of the Act of June 25, 1885, P. L. 187, that is inconsistent, which is the term of office, extending it from one to three years, and provides for the giving of a bond: Com. ex rel. v. Couch, 209 Pa. 354.

The constitutional Amendment of 1909 extended the terms of the tax collector to four years instead of three, and as tax collector for the borough he is entitled to have the tax duplicates of the borough school district issued to him, with the warrant directing and authorizing him to collect the school taxes: Com. ex rel. v. Duquesne Borough School District, 256 Pa. 50. This decision is based upon the Act of June 25, 1885, P. L. 187, already quoted hereinabove, section 4 of this act authorizing and directing the issuing of the duplicate to the collector of taxes.

Section 5 of the Act of June 25, 1885, P. L. 187, quoted above, gives to the collector of borough taxes all the power heretofore vested in collectors of

Huber, Tax Collector, v. Weakland.

county taxes. This, again, refers to the 21st section of the Act of 1834, hereinabove quoted.

We conclude, therefore, that, under the laws of this State, the tax collector elected or appointed for a borough collects not only the borough taxes, but also the tax for the school district composing the borough; that the township tax collectors collect not only the township tax, but also the school tax for the district composing the township; that the collectors of tax, both in the township and borough, collect the borough, school and township tax, and have the right to make levy and distress upon the goods and chattels of a delinquent taxables, make sale of the same, and if the taxes and costs are unsatisfied, or if there are no such goods and chattels, then the taxable may be imprisoned by the tax collector under the provisions of the 21st section of the Act of 1834.

Decree.

And now, Oct. 5, 1925, after argument and due consideration, we are of the opinion, and do declare, the right of the plaintiff, in connection with the collection of taxes, to be as follows:

That he, as collector of the township taxes, has the right to levy and distrain upon the goods and chattels of delinquent taxable and make sale of the same, and if sufficient funds are not realized to cover the taxes and costs, or if the delinquent taxable has no goods and chattels, then plaintiff may convey the taxable to the jail of this county, where he shall remain until the amount of said tax, together with the costs, shall be paid, or secured to be paid, or until he shall be otherwise discharged by due course of law.

The township tax collector, the plaintiff, is authorized to collect the taxes of the school district composing the township of which he has been elected, and to exercise the same powers and the same rights in connection with the enforcement of the collection of the school taxes as he has in the collection of the township taxes.

We, therefore, direct that judgment be entered for the plaintiff.

From Henry W. Storey, Jr., Johnstown, Pa.

Decedents' estates ·

-

possession.

Clarke's Estate.

Partition Parties - Tenants in common-Adverse

1. If one tenant in common sells the whole tract and possession be held adversely for twenty-one years, the sale and possession amount to an ouster of the other co-tenants, who are barred by the act of limitations.

2. An adverse holding by one tenant in common for any length of time, however short, before the institution of proceedings in partition in the Orphans' Court, is a bar to the jurisdiction of the court.

3. Where the husband of one tenant in common takes out letteres c. t. a. on the estate of his wife's father, from which the estate was derived, and his wife takes a deed from him for the whole land and enters into possession of the same and holds adversely, the other tenants in common cannot maintain partition in the Orphans' Court, and this is so although the proceedings under which she obtained possession were illegal.

Petition for partition. O. C. Schuylkill Co.

J. O. Ulrich, for petition; J. T. Mahoney, contra.

WILHELM, P. J., Jan. 25, 1926.—Anna Theiss presented her petition, praying that an inquest in partition may be awarded in the estate of Thomas Clarke, deceased, and set out in said petition that Thomas Clarke died on

Clarke's Estate.

June 19, 1867, leaving a last will and testament, duly recorded, and leaving to survive him his widow, who is now deceased, and a number of children and grandchildren named in the petition, and that the petitioner has a one-third interest in the estate of Thomas Clarke, and that Mary Murphy has a onethird interest and the children of Margaret Stapleton have a one-third interest, and that each of said parties has the right of possession in the real estate of Thomas Clarke.

That Thomas Clarke died seized and possessed of the real estate described in the petition, and that he died intestate as to said real estate; that the executors appointed by the will of Thomas Clarke qualified as such Oct. 25, 1869, and discharged their duties until Nov. 22, 1880, when they filed their renunciation; that Thomas Clarke empowered his executors to sell the real estate described in the petition "for the purpose aiding and assisting to pay debts, which has been incurred in my estate as is so ordered by me id together with the income which may be realized from my present estate;" that the executors named in the will did not sell said real estate; that on Nov. 22, 1880, the Register of Wills issued letters c. t. a. to Patrick Stapleton, husband of Margaret Stapleton, a daughter of Thomas Clarke, and said letters were issued improvidently, unlawfully and fraudulently; that on Oct. 19, 1893, said Patrick H. Stapleton, administrator, executed his deed to Margaret Stapleton, his wife, and thereby conveyed said real estate to Margaret Stapleton for the consideration of $100. Said deed was recorded in the office for the recording of deeds in and for Schuylkill County on Oct. 23, 1893, in Deed Book 237, page 338.

The petition recites that at the time of said conveyance there were no debts of said Thomas Clarke, deceased, and there were no liens against his real estate, and that Patrick H. Stapleton had no right, power or authority in law or under any order of court to make such conveyance or sale, and that said deed by Patrick H. Stapleton, administrator, to his wife, Margaret Stapleton, did not convey any title to the real estate; and that Margaret Stapleton died seized and possessed of her interest in said real estate as the same vested under the intestate laws.

That Margaret Stapleton died testate and her executor executed a deed for said real estate to Mary Ann Murphy, one of the daughters of Thomas Clarke, deceased, on Dec. 7, 1918, which deed is recorded in Deed Book No. 423, and that said deed did not convey any estate or title to Mary Ann Murphy, who by deed, dated Jan. 28, 1918, and recorded in Deed Book 419, page 301, sought to convey said real estate to her son, Thomas C. Murphy; that there are no improvements upon said real estate and no liens or encumbrances against it; that the parties in interest derive their interest in said real estate by virtue of the intestate laws, and that the parties named in the petition are all of the persons interested in said real estate.

An answer was filed by Thomas C. Murphy and Sarah L. Murphy, in which it is asserted that the petitioner is a granddaughter of Thomas Clarke and that she has no estate or interest in the real estate, and that Mary Murphy has no interest in the said real estate, and that the children of Margaret Stapleton have no interest in the real estate, and that none of the parties mentioned in the petition have any right of possession of the real estate.

That Thomas Clarke did not die intestate as to said real estate, and that said real estate was sold by Patrick H. Stapleton, administrator c. t. a., to Margaret Stapleton for the purposes directed by the will; that there were debts of the said Thomas Clarke, deceased, at the time Patrick H. Stapleton, administrator, conveyed said premises to Margaret Stapleton, and that the