The opinion of the court was delivered,
by Askew, J.
Nothing is better settled than this — that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purchase of residence or for cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 Watts 504; Kennedy v. Daily, 6 Id. 269; Wallace v. Scott, 7 W. & S. 247; Mitchell v. Bratton, 5 Id. 451; Wilson v. Watterson, 4 Barr 214. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes [290]*290illegal: Sheaffer v. McCabe, 2 Watts 421; Nash v. Bum, 5 Id. 441.
That the tract known as 5278 was seated before the year 1826 is beyond all dispute. James Middleton had an improvement on the tract for many years before his purchase with no defined boundaries, except that as between him and Hunter and Richardson, also occupants of the tract, they had corners to mark their respective claims on the river side of the tract. It is therefore perfectly clear that the 600 acres sold in 1834 for the taxes of 1832 and 1833 were seated, unless the contract of Maybin with Middleton itself severed the 200 acres sold to Middleton from the remainder of the tract, or the boundaries of the 200 acres were sufficiently defined by actual lines on the ground to sever it at some time before the assessments of 1832 and 1833.
The question of fact, whether the Middleton 200 acres were at any time severed by survey or lines, was most distinctly submitted to the jury by the judge. He says :—
“ Middleton took a contract for 200 acres to include his improvements on the river, dated April 11th 1826. Was there any, and if any, a sufficient designation of these 200 acres to sever it from the rest of the tract ? No survey or lines were run at the date of this contract. The improvement it included had been commenced sixteen years before, as the evidence informs us, and appears to have been kept up without interruption. Improvements had also been made and occupied prior to this, perhaps, on other parts of this lot, afterward appropriated to Hunter below, and Joshua Richardson above. But independently of them, the Middleton improvement had clearly, for many years, made No. 5278 a seated tract. Was there such a demarcation of the Middleton 200 acres as to throw out or cut off the balance of the tract, and make it unseated? If so, when and by whom ?”
Here, then, the question is most distinctly put to the jury, and not restricted to time or person. It is the simple question, Was there a demarcation, in point of fact, at any time or by any person ?
Upon the facts the great controversy was, whether a survey was made by William Connelly in 1827? “Both parties,” says the judge, “seemed to have spent their energies and industry mainly on this part.” Henry McGee was the witness relied on by the plaintiffs to prove a survey. The judge proceeds to discuss the testimony on this point, and then winds up thus:—
“ If Magee is true, and such a survey was made, and lines run at the time alleged in 1827, then it would and did work a severance of the seated from the unseated parts of the tract, and subject the balance to assessment and sale as unseated. This would entitle the plaintiffs to recover so far as this question controls the right.”
[291]*291Now I do not see how it was possible to submit the question of separation of the 200 acres as a fact more fairly. The jury were left to say whether at any time and by any person the demarcation was in fact made. The verdict is a distinct answer, therefore, that the two hundred acres were never severed by survey or demarcation at any time, by any person.
This left but a single question — Was the agreement of sale by Maybin to Middleton ipso facto a'severance ? It will not do now, after the verdict has answered that no separation in fact was made, at any time or by any person, to run back to the ground, and to claim lines, corners or anything else, as adjunct to or to help out the terms of the agreement. The land was not severed on the ground. Was it severed by the terms of the writing ?
The agreement recites that Middleton owns an improvement on which he now resides on the land of Maybin, and on the east side of the Allegheny river, in Deerfield township, and then proceeds to sell to him 200 acres of said land for the sum of $400, to be paid as thereinafter mentioned ; to be bounded by the Allegheny river westwardly, and to include the said improvement, but not to interfere with the improvement-claim of any other person on the lands of the party of the first part. This is the whole description, and it is clear it defines no land, nor could a surveyor take the agreement and run out the 200 acres according to any terms set forth in the agreement. So cautious was the counsel of the plaintiff in error of this fact, that he fell back upon the right of Middleton himself to make a survey under the contract. But this is an immaterial question, for if we concede his right to lay off his own 200 acres, even without notice to Maybin, the mere right to do so does not separate the 600 acres. Did he exercise his right, did he lay off his own land ? If he did, then there was a severance; if he did not, there was none. The verdict of the jury answers this question. Middleton never exercised his right, and his right concerned only his own land, not the 600 acres. The error of the judge, in construing the contract rights of the parties to it, if there were an error, did not touch the question. But the judge did not wholly err, even on that question. The same point arose in Beegle v. Wentz, 5 P. F. Smith 369, a case where the parties agreed upon a reservation of fifteen acres around a house without defining it. In such a case it was held that the law presumes that it is meant to be laid off in a reasonable shape around the house by the parties, and if one will not do it, the other can, upon notice to him of doing it. So here Middleton could not elect to run his lines where he might choose, and to cut his land off from the remainder, without regard to Maybin’s interests in the remainder. The contract was for their mutual benefit; but if Maybin wrongfully refused to survey it off in a reasonable shape, Middleton could do it on proper notice; but even then ex-[292]*292ereising his right in a reasonable manner. But this is beside the question, which is, not what Middleton could do, but what he did do; and the verdict answers that he did nothing.
The argument that Middleton would be exposed to pay the taxes of the 600 acres is without force. He was exposed to this before he made his purchase, and when he bought he took his contract as it was, and was perfectly safe in doing so, for he had the money in his own hands to secure himself. He was to pay the $400 purchase-money in five equal annual instalments. I have said that a surveyor could not take the article and make a survey of the 200 acres from its own terms. The Allegheny river was the western boundary, but that boundary was without length or terminal points, from which a measurement, to include the 200 acres, could start. The fact that the settlers had consentable corners does not help, for they were not recognised by Maybin. He fixed no length of line and no corners, arid did not even agree that Middleton’s land should abut that of Eiehardson or that of Hunter.
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The opinion of the court was delivered,
by Askew, J.
Nothing is better settled than this — that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for the purchase of residence or for cultivation, makes the tract seated and prevents a sale for taxes: Campbell v. Wilson, 1 Watts 504; Kennedy v. Daily, 6 Id. 269; Wallace v. Scott, 7 W. & S. 247; Mitchell v. Bratton, 5 Id. 451; Wilson v. Watterson, 4 Barr 214. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes [290]*290illegal: Sheaffer v. McCabe, 2 Watts 421; Nash v. Bum, 5 Id. 441.
That the tract known as 5278 was seated before the year 1826 is beyond all dispute. James Middleton had an improvement on the tract for many years before his purchase with no defined boundaries, except that as between him and Hunter and Richardson, also occupants of the tract, they had corners to mark their respective claims on the river side of the tract. It is therefore perfectly clear that the 600 acres sold in 1834 for the taxes of 1832 and 1833 were seated, unless the contract of Maybin with Middleton itself severed the 200 acres sold to Middleton from the remainder of the tract, or the boundaries of the 200 acres were sufficiently defined by actual lines on the ground to sever it at some time before the assessments of 1832 and 1833.
The question of fact, whether the Middleton 200 acres were at any time severed by survey or lines, was most distinctly submitted to the jury by the judge. He says :—
“ Middleton took a contract for 200 acres to include his improvements on the river, dated April 11th 1826. Was there any, and if any, a sufficient designation of these 200 acres to sever it from the rest of the tract ? No survey or lines were run at the date of this contract. The improvement it included had been commenced sixteen years before, as the evidence informs us, and appears to have been kept up without interruption. Improvements had also been made and occupied prior to this, perhaps, on other parts of this lot, afterward appropriated to Hunter below, and Joshua Richardson above. But independently of them, the Middleton improvement had clearly, for many years, made No. 5278 a seated tract. Was there such a demarcation of the Middleton 200 acres as to throw out or cut off the balance of the tract, and make it unseated? If so, when and by whom ?”
Here, then, the question is most distinctly put to the jury, and not restricted to time or person. It is the simple question, Was there a demarcation, in point of fact, at any time or by any person ?
Upon the facts the great controversy was, whether a survey was made by William Connelly in 1827? “Both parties,” says the judge, “seemed to have spent their energies and industry mainly on this part.” Henry McGee was the witness relied on by the plaintiffs to prove a survey. The judge proceeds to discuss the testimony on this point, and then winds up thus:—
“ If Magee is true, and such a survey was made, and lines run at the time alleged in 1827, then it would and did work a severance of the seated from the unseated parts of the tract, and subject the balance to assessment and sale as unseated. This would entitle the plaintiffs to recover so far as this question controls the right.”
[291]*291Now I do not see how it was possible to submit the question of separation of the 200 acres as a fact more fairly. The jury were left to say whether at any time and by any person the demarcation was in fact made. The verdict is a distinct answer, therefore, that the two hundred acres were never severed by survey or demarcation at any time, by any person.
This left but a single question — Was the agreement of sale by Maybin to Middleton ipso facto a'severance ? It will not do now, after the verdict has answered that no separation in fact was made, at any time or by any person, to run back to the ground, and to claim lines, corners or anything else, as adjunct to or to help out the terms of the agreement. The land was not severed on the ground. Was it severed by the terms of the writing ?
The agreement recites that Middleton owns an improvement on which he now resides on the land of Maybin, and on the east side of the Allegheny river, in Deerfield township, and then proceeds to sell to him 200 acres of said land for the sum of $400, to be paid as thereinafter mentioned ; to be bounded by the Allegheny river westwardly, and to include the said improvement, but not to interfere with the improvement-claim of any other person on the lands of the party of the first part. This is the whole description, and it is clear it defines no land, nor could a surveyor take the agreement and run out the 200 acres according to any terms set forth in the agreement. So cautious was the counsel of the plaintiff in error of this fact, that he fell back upon the right of Middleton himself to make a survey under the contract. But this is an immaterial question, for if we concede his right to lay off his own 200 acres, even without notice to Maybin, the mere right to do so does not separate the 600 acres. Did he exercise his right, did he lay off his own land ? If he did, then there was a severance; if he did not, there was none. The verdict of the jury answers this question. Middleton never exercised his right, and his right concerned only his own land, not the 600 acres. The error of the judge, in construing the contract rights of the parties to it, if there were an error, did not touch the question. But the judge did not wholly err, even on that question. The same point arose in Beegle v. Wentz, 5 P. F. Smith 369, a case where the parties agreed upon a reservation of fifteen acres around a house without defining it. In such a case it was held that the law presumes that it is meant to be laid off in a reasonable shape around the house by the parties, and if one will not do it, the other can, upon notice to him of doing it. So here Middleton could not elect to run his lines where he might choose, and to cut his land off from the remainder, without regard to Maybin’s interests in the remainder. The contract was for their mutual benefit; but if Maybin wrongfully refused to survey it off in a reasonable shape, Middleton could do it on proper notice; but even then ex-[292]*292ereising his right in a reasonable manner. But this is beside the question, which is, not what Middleton could do, but what he did do; and the verdict answers that he did nothing.
The argument that Middleton would be exposed to pay the taxes of the 600 acres is without force. He was exposed to this before he made his purchase, and when he bought he took his contract as it was, and was perfectly safe in doing so, for he had the money in his own hands to secure himself. He was to pay the $400 purchase-money in five equal annual instalments. I have said that a surveyor could not take the article and make a survey of the 200 acres from its own terms. The Allegheny river was the western boundary, but that boundary was without length or terminal points, from which a measurement, to include the 200 acres, could start. The fact that the settlers had consentable corners does not help, for they were not recognised by Maybin. He fixed no length of line and no corners, arid did not even agree that Middleton’s land should abut that of Eiehardson or that of Hunter. Neither lines nor corners are mentioned in the agreement, and the only condition is that the survey shall not interfere with the improvements of any other person. In making the survey on the contract, it might overrun or fall short of these corners of the settlers. These consentable points on the river will not eke out the agreement which does not recognise them, nor can they make a survey in fact around the whole 200 acres, for they did not extend the full length of the tract eastwardly, and the jury have found that they were never joined together at the east, for they have determined that the survey was incomplete. The 600 acres were therefore severed neither in fact on the ground, nor potentially by the terms of the agreement.
It is argued that the answer of the court to the question of the jury, when they returned into court to ask further instruction, was confused. We do not think so. The question was somewhat confused, but the answer was perfectly clear, and consistent with the previous instruction. The question of the jury was, “ whether the occupants of the improvements on the river could suppose or designate where their back or east line was or would be ?” The question evidently meant to ask of the court, whether the settlers could designate their lines by supposition; that is, by estimating where they would be. But if there be a doubt as to the meaning of the question, there is none as to the answer, and the judge is not responsible for the confused language of the jury. He had before left them to find whether there was a line made at any time and by any person cutting off the 600 acres, and therefore he replied to the question, “that in the absence of any survey or marks on the ground, or of any deed or contract describing where it was, or where it should be, the settlers had no right to say how far back their land ran or their claim extended.” There was no [293]*293confusion in this. The attention of the jury was recalled to the great question in the cause, the existence in fact of a line on the ground, and then told that if there were none, the settlers could not make one by supposing where it would be. He then repeats his opinion as to Maybin’s right under the contract to define the 200] acres, a matter which we have explained, and shown to be really immaterial to this controversy, in the absence of a survey or line on the ground. He then concludes, “ The vendor had cautiously reserved that right to himself, and not having exercised it, 'if the evidence of the defence is relied on, the settlers could not designate it by merely supposing or assuming where the east line was or would be, so as to work a severance of their portion from the remainder of the tract.” There is no confusion in this. Indeed, it does not admit of a doubt. The substance was, that the jury asked him if the land in the contract could be designated by supposition, or calculation by estimation. He says, No — in the absence of a line on the ground the settlers cannot assume or suppose where it will be. Such a mode of estimation- will work no severance. This was clearly right. Finding no error in the record, the judgment is
Affirmed.
Thompson, C. J.
On the first argument of this case I was much inclined to the views of the learned counsel- for the plaintiffs in error, that it was possible to bring the Middleton contract for 200 acres and improvement within the principle of a complete survey, excepting the closing line; in which case the law, I think, would regard it as closed, and severance complete under the practical maxim, “Id certum est quod certum reddi potest.” But the difficulty in the way of that view was, that there was no survey at all for the Middleton tract, as the jury have found, and no points from and to which such a closing- line might be run, and therefore the principle was not applicable. Subsequent reflection and examination exploded this view, as the learned opinion of my brother Agne^w shows, was to be expected.
Sharswood, J., dissented.