sessed as follows: bridge, six cents, and county, ninety-six cents, total, $1.02.

On March 6, 1878, George M. Miller, receiver of taxes for the City of Wilkesbarre, made his return to the county commissioners of Luzerne County on the exoneration claimed by him for the year 1876, and the only return concerning said Thomas Hughes or his property was as follows:

"Hughes, Thomas-vacant lot-sold three years ago-Bridge, twenty four cents, county, $3.84.

The county commissioners thereupon exonerated said receiver of taxes from the aforesaid taxes.

The county commissioners, influenced no doubt by the fact that the amount of said taxes thus exonerated was exactly equal to the amount of taxes assessed against said two properties, disregarded the return of the receiver of taxes, and in the year 1880 certified to the county treasurer both of the said lots delinquent, as follows: "Vacant lot, Hughes, Thomas, Parrish Street, six cents bridge, 96 cents county." Also, "House and lot, Hughes, Thomas, Hazel Street, bridge tax eighteen cents, county tax $2.88."

The county treasurer, after duly advertising the two properties, September 14, 1880, sold the property in controversy to the county commissioners and made a deed to them in which the only description was, "house and lot, Thomas Hughes, Hazel Street, fourteenth ward, Wilkesbarre, for taxes of 1876."

At the expiration of five years the commissioners duly made and passed a resolution to sell all lands which had been held by them for five years or more, in pursuance of which, after due and legal notice, they, November 5, 1885, sold said lot on Hazel Street to William H. Vandermark, plaintiff, who received a deed December 14, 1885, containing a description as last above given, under which he claimed title in this action.

The defendant moved for nonsuit on the ground that under the Act of April 21, 1856, the county treasurer had no authority to sell the lands in question, they having been returned and the taxes exonerated, March 6, 1878, and that the return was otherwise defective.

therefrom the exact property which is delinquent and liable to sale, and that such uncertainty would vitiate the sale; whereupon, the referee granted the nonsuit and subsequently refused to strike the same off. Exceptions filed by the plaintiff to his report were overruled in the court below by WOODWARD, J., and the report confirmed; and the plaintiff took this writ, assigning such action of the court as error.

Mr. Michael Cannon, for plaintiff in er

ror:

Any negligence by the assessors or collectors in that respect for failing to make their return in a given time cannot defeat the deed or sale made by the county treasurer, all irregularities of that character being cured by the Act of 1815.

Heft v. Gephart, 65 Pa. 510; Hubley v. Keyser, 2 Penr. & W. 501; Devinney v. Reynolds, 1 Watts & S. 333; Crue v. Burke, 25 Pa. 377.

It was the assessment of the land and the levy of taxes thereon that made the charge against the land, and not the collector's return, the return being only evidence of its nonpayment or collectibility.

Cohn's App. 10 W. N. C. 230, is a case directly in point. The collector's return was not made for two years after assessment and levy of the taxes, and it was held right.

Messrs. Allan H. Dickson and Q. A. Gates, for defendants in error:

The return is a condition precedent to sale of seated land. The Act of 1844 does not extend the unseated land laws to seated lands in general,

Potter's Dwar. Stat. 257; East Union Township v. Ryan, 86 Pa. 459; Bennett v. Birmingham, 31 Pa. 15.

In this case a house and lot on Hazel Street and a vacant lot on Parrish_Street were assessed to Thomas Hughes. The collector returned a vacant lot of the size of the Parrish Street lot. The treasurer sold to the commissioners a house and lot on Hazel Street; hence, the lot returned was never sold, and the lot sold was never returned. It seems beyond dispute, then, that this land on Hazel Street, which is the subject of this ejectment, never came within the operation of the unseated land laws; and the treasurer had no more right to sell it than any other land not returned.

The return was not made in time.

Act of April 21, 1856, § 3, P. L. 477, Purd. Dig. 1674, pl. 13, as amended by Act of February 23, 1858, P. L. 45.

In the case of Hess v. Herrington, 73 Pa. 445, it does not appear that any duplicate was ever issued to a collector for the unseated land tax, and no question was raised as to the time of return.

The return here is too indefinite and misleading to authorize a sale.

Dunn v. Ralyea, 6 Watts & S. 479; Philadelphia v. Miller, 49 Pa. 449; Lyman v. Philadelphia, 56 Pa. 501; Strauch v. Shoemaker, 1 Watts & S. 177; Hess v. Herrington, 73 På 447; Brotherline v. Hammond, 69 Pa. 134.

Stewart v. Graffies, 8 Serg. & R. 344.

Stark v. Shupp, 3 Cent. Rep. 146.

Per Curiam :

There is no error in this judgment. The return of taxes was made too late in time, and too defective in form, to constitute a valid basis for a sale of the land in question. Judgment affirmed.

City of PHILADELHPIA, Plff. in Err.,

V.

William R. MATCHETT.

Satisfaction of a municipal claim for water pipe, entered of record in accordance with an ordinance of the councils of Philadelphia, not only discharges the lien but operates as an estoppel to prevent the City from denying payment when a subsequent purchaser of the land, against which the claim was filed, applies for a permit to introduce water from the pipe to the premises.

(Argued March 29, Decided April 11, 1887.)

JANU

ANUARY Term, 1887, No. 137, E. D., be fore Mercur, Ch. J., Trunkey, Sterrett, Green and Clark, JJ.

Error to Common Pleas No. 3 of Philadelphia County, to review a judgment for the defendant in a case stated in an action of trespass on the case. Affirmed.

Reported below, 2 Pa. C. C. R. 272.
The case stated was as follows:

It is hereby agreed that an amicable action be entered in the above entitled suit, and that a case stated therein be agreed to, as follows, to wit:

That in and prior to the year 1872 the German Hospital, a charitable corporation, was, inter alia, the owner of a lot of ground in the City of Philadelphia, situate on the east side of Twentieth Street, extending from Norris Street to Park Avenue (now called Diamond Street), containing in front on said Twentieth Street, 500 feet, and extending in depth eastward of that width along Norris Street and Park Avenue or Diamond Street 150 feet, on which were erected the buildings of said hospital, and the said lot and buildings were occupied by it for the purposes of a charitable hospital until the month of October, 1872, at which time the said hospital was removed to the new buildings of the corporation situate at Twentieth Street and Girard Avenue in said City, but that the said lot continued in the ownership of said corporation until the time hereafter mentioned, but after the last mentioned date was no longer used for the purpose of a hospital. That some time in the year 1873 the City of Philadelphia laid a water pipe in the said Twentieth Street along the whole front of said lot.

That on the 11th day of March, 1874, the said City, through its solicitor filed in the district court, as of March Term, 1874, No. 12, a claim for $400 for said water pipe laid in front of said lot. A copy of the docket entries of

That on the 12th day of December, 1874, an ordinance of the select and common councils of the said City was duly approved by the mayor thereof, ordaining that "The said solicitor be authorized and directed to enter satisfaction on the claims of the City against the German Hospital for water pipe laid in front of their property on Twentieth Street from Diamond to Norris Street, D. C. M. T. 1874, No. 12, C. C. D." A copy of which said ordinance is hereto annexed, as part hereof, marked exhibit "B."

That the said city solicitor on the 22d day of December, 1874, entered satisfaction of record of the said claim for water pipe against said lot, as appears by the docket entries, a copy of which is hereto annexed.

That the said German Hospital, by indenture dated the first day of December, 1879, duly recorded in Deed Book L. W. No. 66, page 29, etc., granted and conveyed the said lot of ground, inter alia, to George Sergeant in fee.

That the said George Sergeant, by indenture dated the second day of December, 1879, and recorded in Deed Book L. W., No. 71, page 12, etc., granted and conveyed the said lot, inter alia, to John D. Lankenau in fee.

That the said John D. Lankenau, by indenture dated the 12th day of May, 1885, and recorded in Deed Book G. G. P., No. 40, page 298, etc., granted and conveyed the said lot, inter alia, to the said William R. Matchett in fee.

That, prior to the delivery of the last mentioned deed, the said William R. Matchett caused certificates of search to be procured from the office of the court of common pleas (which since the adoption of the Constitution of 1874 includes searches in the late district court) and also from the city solicitor's office, which said certificates are dated the 21st day of May, 1885, and show no municipal claim for water pipe, or any other claims, against said lot. A copy of said searches is hereto annexed as part hereof, and marked exhibit "C."

That, prior to the payment of the purchase money of said lot, the said William R. Matchett knew that the said water pipe had been laid in front of the same, that the said claim had been filed therefor, and that the said claim had been satisfied of record by the then city solicitor, and relying on these facts, neither he nor anyone on his behalf, before paying said purchase money made any inquiry at the water department, to ascertain there if the said pipe had been paid for.

That, by inquiry at the said office of the water department, he would have ascertained that said pipe had not been paid for. That there is connected with said water department a search office, and that for a fee of twenty-five cents, as provided by a resolution of councils, dated the 4th day of March, 1884, searches are now, and have been since the last mentioned date, issued by the chief engineer of the water department. That no such search was ordered or requested in this case. A copy of the form of such search is hereto annexed as part hereof, marked exhibit "D."

That since the passage of the Ordinance of January 29, 1855, it has always been within the power of a purchaser to ascertain by inquiry at

charges against

Chief Engineer.

No.

I hereby certify that there is

City Water pipe laid in

and that there are

William Ludlow,

Clerk.

Copy of Ordinance of Councils. Section 2. "That no permit for the use of water shall be issued, unless at the time of the application the person or persons shall exhibit the receipt of the proper officer for the amount of assessment, or other satisfactory evidence of payment thereof, for the expense of laying the water pipe on the premises for which the permit is requested."

Judgment was entered for defendant on the case stated, and this was assigned as error.

Messrs. Frank M. Riter and Robert Alexander, Assistant City Solicitors, and Charles F. Warwick, City Solicitor, for plaintiff in error:

It is admitted that the pipe has not been paid for.

The Ordinance of January 29, 1855, provides that "No permit for the use of water shall be issued unless, at the time of the application, the person or persons shall exhibit the receipt of the proper officer for the amount of assessment or other satisfactory evidence of the payment thereof for the expense of laying the pipe on the premises for which the permit is granted. This ordinance, if valid, must be complied with by the chief of the department.

The supplying of water and gas to a city is not a municipal duty; hence, when the city undertakes to do so it acts not by virtue of any rights of sovereignty, but exercises merely the functions of a private corporation.

Western Saving Fund Society v. City of Phila. 31 Pa. 175; Wheeler v. City of Phila. 77 Pa. 338. The introduction of water by the city into private houses is not on the footing of a contract but of a license which is paid for.

Smith v. City of Phila. 81 Pa. 38.

It may very well be that when a license has been given by the city to the owner of a house to use the water, such license may not be withdrawn arbitrarily or from mere caprice. But it is equally clear that the city may adopt such rules in regard to the use of the water, and the payment therefor, as the municipal authorities shall deem expedient.

Girard Life Ins. Co. v. Phila, 88 Pa. 393. This very ordinance was before the supreme

In the present case the defendant could have easily ascertained the fact that the pipe was not paid for. To inquire and take searches at the office of the water department is now the settled practice with conveyancers and lawyers in passing titles.

There are miles of unpaid pipe in the City, for which no lien exists. Liens have in some cases expired by limitation and in others been discharged. Every man is bound to know the law. The law is that the City can make its own rules in selling water; and one rule, made and enforced for thirty years past, is that it will not furnish water before the pipe through which the water runs is paid for. Concerning this it is the business of a purchaser of land to inquire. To inquire whether a lien has been discharged, has expired, or has been satisfied, is not sufficient. The regulation of the business being that the pipe must be paid for to the satisfaction of the chief of the department, the inquiry of the purchaser must be: Has the pipe been paid for? And this inquiry must be made at the water department.

The relator, having failed to make this inquiry, has no legal right to say he was misled. For what reason councils directed the lien to be satisfied is not known to the City.

To make a gift to the hospital was beyond the power of councils. There is no charter right to do it.

Dechert v. Commonwealth, 4 Cent. Rep. 754; Hodges v. Buffalo*, 2 Denio, 110; Bergner v. Harrisburg, 1 Pearson, 291.

The property in front of which the water pipe is laid is a vacant lot not used by the German Hospital, and consequently the lot is not exempt from frontage charges or taxes under the Act of May 12, 1874, exempting hospitals, etc.

If the ground were exempt, the owner must comply with the ordinance. The lien is by force of statute. The collection by lien under the statute is considered by the court as an exercise of the taxing power of the State, and in that way a lien for frontage becomes a tax. The Ordinance of January 29, 1855, is not an exercise of any taxing power of the State, it is simply a business regulation of a corporation.

If extinguishment of lien by judicial sale and payment to sheriff is neither actual nor constructive payment, certainly the satisfaction of claim without payment is no payment of the debt. Hundreds of verdicts have been rendered in the courts against the City on pipe claims, because the property liened was rural; yet it has never been supposed the City could be compelled to furnish water until the pipe was paid for, as required by the ordinance. If such be the case, the City will lose at least $100,000 of pipe debts where liens have been

*See note, Lawyers' edition. [Ed.]