Page 2 ERROR to the circuit court of the United States for the western district of Pennsylvania.
The plaintiff in error instituted an ejectment for a tract of land situated in Lycoming county, in the State of Pennsylvania; and exhibited a title, regularly deduced, under a patent granted to Joseph Fearon, dated 19th September 1796.
The title claimed by the defendant was derived from a purchase at a sale of the land made by the treasurer of the county of Lycoming, on the 12th of June 1826, for county and road taxes, regularly assessed on the same; the county taxes prior to the 1st of February 1825, and the road taxes on the 22d April 1825. The whole of the land in controversy was sold for five dollars and fifty-two and a half cents, the alleged amount of the taxes and costs. On the 15th July 1826, the treasurer of the county conveyed the premises to the defendant.
It appeared in evidence that the heirs and legal representatives of Joseph Fearon, the patentee of the land in controversy, were the children of Abel Fearon and Robert Fearon, and the brothers of Joseph Fearon; both brothers having died in the life-time of the patentee: and on the 26th March 1825, partition of the real estate of Joseph Fearon was made between the two branches of the Fearon family, by which the premises in this ejectment were, inter alia, allotted to the heirs of Abel Fearon, in consideration of a moiety of the lands of the intestate having been allotted to the heirs of William Fearon. On the 27th March 1827, partition of the portion of the real estate allotted to the heirs of Abel Fearon; and the tract of land in controversy, became the property, by this partition, of Jacob Fox and wife, late Elizabeth Fearon, from whom the plaintiff in the ejectment held, by intermediate conveyances, the premises in controversy, in fee simple.
The plaintiff, in order to overthrow the alleged tax title, set up by the defendant, gave in evidence an alleged redemption of the said tract, No. 5615, by a tender, both to the county treasurer and the defendant, within two years after the said sale, of the full amount of the said taxes, and costs, and twenty-five per centum upon the aggregate amount thereof, as called for by law.
The case came on for trial by a jury, at January term 1833, and the plaintiff's counsel requested the court to instruct the jury-
1st. That under the act directing the mode of selling unseated lands for taxes, and its several amendments and supplements, any person may legally pay the taxes due on such land.
2d. That any man who may legally pay such taxes, may legally redeem such land sold for taxes, within the term specified in said acts.
3. That any person has a right to redeem such land so sold, by a payment of the tax, costs, and per centage, within the time named in the said acts.
4. That any person having or believing himself to have an interest in the lands so sold, has a right to redeem the same within the period named in the said act.
5. That any person connected by blood, or by title, with the owner or supposed owner of the lands so sold, has a right so to redeem the same.
6. That any person having the charge of such lands from the owner, during his life, after his decease intestate, and without a countermand of such charge, has a right to redeem such lands so sold.
7. That the treasurer under the said acts is an officer ministerial, and not judicial, and that he is bound to receive, under the above acts, the redemption money for the land so sold, under the facts severally above set forth.
8. That the treasurer has no authority to decide in whom the title or ownership of such lands so sold and offered to be redeemed, is vested.
9. That the refusal of said treasurer to receive the redemption-money for lands so sold, is equivalent to, and dispenses with a tender of the same.
10. That if the plaintiff, Oliver S. Wolcott, and the defendant, Andrew D. Hepburn, were citizens of different states at the time of the action brought, that is to say, that Andrew D. Hepburn was a citizen of Pennsylvania, and Oliver S. Wolcott was a citizen of Connecticut, or of any other State of the United States, the jurisdiction of this court attached; and that such jurisdiction was not divested by any change of citizenship or domicil by the said Oliver S. Wolcott, after the institution of this suit.