Judge Simpson
delivered the opinion of the court.
The land in contest was patented to Thomas Keith in September, 1787. The plaintiffs claim it, as the heirs at law of Joshua Harlan, deceased, under a deed to their ancestor, purporting to have been executed by the patentee, for a valuable consideration, in the city of Philadelphia, in October, 1794, but which was not recorded until October, 1851.
The defendants claim it by virtue of a purchase by their ancestor from the heirs at law of the patentee after his death, and deeds of conveyance executed by them in pursance of the purchase prion f^he time of the recording of the deed under wjH^ plaintiffs set up title to it. They also rely ufHHro junior patents which issued to their ancestor,♦and which cover part of the land in controversy, and deny that Thomas Keith, the patentee, executed the deed under which the plaintiffs claim the land.
On the part of the defendants it is contended, that if the deed relied upon by the plaintiffs be genuine, still, as it was not recorded until upwards of forty years after its execution, and the land in the meantime had been sold and conveyed by the heirs at law of the grantor, to a purchaser for a valuable consideration, without notice, it ought not to be permitted to prevail against the deed made by the heirs, they being, at the time it was made, the ostensible owners of the land.
If this question was one of first impression, and had not been heretofore decided by this court, we would be strongly inclined to give to the statute a liberal construction, and make it apply as well to the purchasers from the heirs of the grantor of an unrecorded deed, as to purchasers from the grantor himself. The mischief is the same in both cases. The heirs at law are as much the apparent owners of the land as the grantor was in his lifetime, and the protection of innocent purchasers being the evident object of the statute, it would seem to be just and reasonable, and not only consistent with, but [326]*326promotive of, the legislative intention, to give it such a construction as would make it operate as a remedy for the whole evil, which it was intended to guard against. But in the case of Ralls vs. Graham, 4 Monroe, 120, and in the case of Hancock vs. Beverly’s hrs. 6 B. Monroe, 531, it was decided thht the protection afforded by the statute, against an unrecorded deed, only extends to purchasers from the grantor himself, and not to purchasers from his heirs or devisees, who derived no title from him inasmuch as it had passed to his grantee before his death, although the deed hadÉ[ji¿|er been recorded. This principle having b^^^^Ked upon, and the decision of other cases wIS|pPB^not been reported, having been governed by it, it has become a rule of property by which the rights of parties have been regulated, and should not be departed from or overturned, except for the most weighty and important reasons. It is better that the law should remain permanent, so far as judicial action is concerned, although settled originally upon doubtful principles, than that it should be subject to constant fluctuations, according to the views and opinions which might be entertained by the court, as constituted, at the time the same question might at some subsequent time arise. Regarding this question therefore as settled by previous decisions, the deeds executed by the heirs of the patentee cannot be relied upon by the defendants to defeat a recovery by those who claim under the unrecorded deed.
1. The protection of the Statutes of 1796, to purchasers, for a valuable consideration, without notice, against an unrecorded deed of the grantor, extends only to purchasers from the grantorhimself, and not to purchasers from his heirs or devisees. (Ralls vs. Graham,, 4 Mon. 120; Hancock vs ■Beverly's Heirs, '6 B. Mon. 531.)
2. The infancy of some of the heirs when the right of all accrued by descent, prevents limitation from running, and saves the rights of the other heirs. (May's Heirs vs. Benndt^IMt. 314.)
The defense under the junior patents, for so much of the land in contest as is embraced by them, is also unavailing. The defendants possession had not been continued twenty years before this action was commenced, and as some of the plaintiffs labored under the disability of infancy when their right accrued by descent, which occurred before the possession had been continued seven years, and still labored under that disability at the commencement of the action, the seven years limitation did not affect their [327]*327rights, and their disability saved the rights of the other plaintiffs from the operation of the statute. (May’s heirs vs. Bennet, 4 Litt. 314.)
3. The failure of a non-resident, prior to 1825, to list his lands for taxation, although a cause of forfeiture, did not, ipse facto, divest him of title, until inquest of office. (Barbour vs.Nelson, 1 Litt. 61.) Aliter since the act of 1825, (Stat. Laws, M. % jB.toZ.2,1079,) which latter act, however, is limited by its terms to cases of forfeiture accruing after its passage
4. The act of 1828(Si«f. Law, M. Sf B. vol. 2, 1081,) only embrafiesOooupants in possession, who have title in law'or equity, expressly including occupants claiming title by landVafrant, issued since 6th February, 1815.
[327]*327The defendants also contend, as the plaintiffs and their ancestor were non-residents, and never listed the land in controversy for taxation, that under the various statutes upon the subject it was forfeited to the state for the failure to list it for taxation, and therefore the plaintiffs cannot maintain their present action. It is not however alleged that the forfeiture relied upon had been ascertained by inquest of office, and it was decided in the case of Barbour vs. Nelson, 1 Litt. 61, that the failure on the part of a non-resident to list his lands for taxation, although a cause of forfeiture, did not, ipso facto, divest him of the title thereto, but that an inquest of office was necessary for that purpose.
By the act of 1825, (2d vol. Statute Law, 1079,) it was declared, that where any lands should thereafter be forfeited for failing to list them for taxation, the title thereto should vest in the commonwealth by virtue of that act, without any inquest of office found.
But the land in contest had been forfeited for failing to list it for taxation previous to that-,time, and as the act was, in express terms, limited in its operation to cases of forfeiture occurring after its passage, it did not afford the defendants any protection or furnish them with an available defense.
The 11th section of that act appears to have been intended to apply alone to suits commenced in the-courts of the United States; but if it were applicable to suits in the state courts the defendants could not derive any advantage from it, inasmuch as the land had been redeemed by their ancestor, after it was purchased by him, and the complainants were thereby prevented from complying with- the requisitions' of the statute.
The act of 1828, on the same subject, (2d volume Statute Law, 1081,) only embraces-occupants in pos[328]
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Judge Simpson
delivered the opinion of the court.
The land in contest was patented to Thomas Keith in September, 1787. The plaintiffs claim it, as the heirs at law of Joshua Harlan, deceased, under a deed to their ancestor, purporting to have been executed by the patentee, for a valuable consideration, in the city of Philadelphia, in October, 1794, but which was not recorded until October, 1851.
The defendants claim it by virtue of a purchase by their ancestor from the heirs at law of the patentee after his death, and deeds of conveyance executed by them in pursance of the purchase prion f^he time of the recording of the deed under wjH^ plaintiffs set up title to it. They also rely ufHHro junior patents which issued to their ancestor,♦and which cover part of the land in controversy, and deny that Thomas Keith, the patentee, executed the deed under which the plaintiffs claim the land.
On the part of the defendants it is contended, that if the deed relied upon by the plaintiffs be genuine, still, as it was not recorded until upwards of forty years after its execution, and the land in the meantime had been sold and conveyed by the heirs at law of the grantor, to a purchaser for a valuable consideration, without notice, it ought not to be permitted to prevail against the deed made by the heirs, they being, at the time it was made, the ostensible owners of the land.
If this question was one of first impression, and had not been heretofore decided by this court, we would be strongly inclined to give to the statute a liberal construction, and make it apply as well to the purchasers from the heirs of the grantor of an unrecorded deed, as to purchasers from the grantor himself. The mischief is the same in both cases. The heirs at law are as much the apparent owners of the land as the grantor was in his lifetime, and the protection of innocent purchasers being the evident object of the statute, it would seem to be just and reasonable, and not only consistent with, but [326]*326promotive of, the legislative intention, to give it such a construction as would make it operate as a remedy for the whole evil, which it was intended to guard against. But in the case of Ralls vs. Graham, 4 Monroe, 120, and in the case of Hancock vs. Beverly’s hrs. 6 B. Monroe, 531, it was decided thht the protection afforded by the statute, against an unrecorded deed, only extends to purchasers from the grantor himself, and not to purchasers from his heirs or devisees, who derived no title from him inasmuch as it had passed to his grantee before his death, although the deed hadÉ[ji¿|er been recorded. This principle having b^^^^Ked upon, and the decision of other cases wIS|pPB^not been reported, having been governed by it, it has become a rule of property by which the rights of parties have been regulated, and should not be departed from or overturned, except for the most weighty and important reasons. It is better that the law should remain permanent, so far as judicial action is concerned, although settled originally upon doubtful principles, than that it should be subject to constant fluctuations, according to the views and opinions which might be entertained by the court, as constituted, at the time the same question might at some subsequent time arise. Regarding this question therefore as settled by previous decisions, the deeds executed by the heirs of the patentee cannot be relied upon by the defendants to defeat a recovery by those who claim under the unrecorded deed.
1. The protection of the Statutes of 1796, to purchasers, for a valuable consideration, without notice, against an unrecorded deed of the grantor, extends only to purchasers from the grantorhimself, and not to purchasers from his heirs or devisees. (Ralls vs. Graham,, 4 Mon. 120; Hancock vs ■Beverly's Heirs, '6 B. Mon. 531.)
2. The infancy of some of the heirs when the right of all accrued by descent, prevents limitation from running, and saves the rights of the other heirs. (May's Heirs vs. Benndt^IMt. 314.)
The defense under the junior patents, for so much of the land in contest as is embraced by them, is also unavailing. The defendants possession had not been continued twenty years before this action was commenced, and as some of the plaintiffs labored under the disability of infancy when their right accrued by descent, which occurred before the possession had been continued seven years, and still labored under that disability at the commencement of the action, the seven years limitation did not affect their [327]*327rights, and their disability saved the rights of the other plaintiffs from the operation of the statute. (May’s heirs vs. Bennet, 4 Litt. 314.)
3. The failure of a non-resident, prior to 1825, to list his lands for taxation, although a cause of forfeiture, did not, ipse facto, divest him of title, until inquest of office. (Barbour vs.Nelson, 1 Litt. 61.) Aliter since the act of 1825, (Stat. Laws, M. % jB.toZ.2,1079,) which latter act, however, is limited by its terms to cases of forfeiture accruing after its passage
4. The act of 1828(Si«f. Law, M. Sf B. vol. 2, 1081,) only embrafiesOooupants in possession, who have title in law'or equity, expressly including occupants claiming title by landVafrant, issued since 6th February, 1815.
[327]*327The defendants also contend, as the plaintiffs and their ancestor were non-residents, and never listed the land in controversy for taxation, that under the various statutes upon the subject it was forfeited to the state for the failure to list it for taxation, and therefore the plaintiffs cannot maintain their present action. It is not however alleged that the forfeiture relied upon had been ascertained by inquest of office, and it was decided in the case of Barbour vs. Nelson, 1 Litt. 61, that the failure on the part of a non-resident to list his lands for taxation, although a cause of forfeiture, did not, ipso facto, divest him of the title thereto, but that an inquest of office was necessary for that purpose.
By the act of 1825, (2d vol. Statute Law, 1079,) it was declared, that where any lands should thereafter be forfeited for failing to list them for taxation, the title thereto should vest in the commonwealth by virtue of that act, without any inquest of office found.
But the land in contest had been forfeited for failing to list it for taxation previous to that-,time, and as the act was, in express terms, limited in its operation to cases of forfeiture occurring after its passage, it did not afford the defendants any protection or furnish them with an available defense.
The 11th section of that act appears to have been intended to apply alone to suits commenced in the-courts of the United States; but if it were applicable to suits in the state courts the defendants could not derive any advantage from it, inasmuch as the land had been redeemed by their ancestor, after it was purchased by him, and the complainants were thereby prevented from complying with- the requisitions' of the statute.
The act of 1828, on the same subject, (2d volume Statute Law, 1081,) only embraces-occupants in pos[328]*328session, who have a title either in law or in equity to the land thus occupied, and expressly excludes from its provisions all occupants claiming the same under a title founded on a land warrant issued since the 6th day of February, 1815, consequently the provisions of this last named act do not extend to or embrace the present defendants, nor can they derive any protection against the claim of the plaintiffs from this or any other statute passed for the security of the occupants of land.
If, therefore, the plaintiffs have succeeded in proving the execution of the deed of 1794, from the patentee to their ancestor, Joshua Harlan, their right to the land in contest is clear, as all the other matters relied upon by the defendants are insufficient to defeat their claim.
This deed bears upon its face unmistakeble indications of its genuineness, and the proof of its execution is to our minds perfectly satisfactory. Giving to the opposing testimony all the weight to which it is entitled, still we entertain no doubt that the deed was executed by the patentee himself at the time and place it purports to have been made. His widow proves that he went to Philadelphia about that time to sell some land in Kentucky, and made a sale of it, as she understood from him on his return home. She communicated the same information to some of her children as they grew up, and the fact never seems to have been doubted by any of the family. They sold the land in contest, as they say, under the belief that it was not the same land which their father had sold in his lifetime, but it does not appear that he sold any other land, or had any other in this state to sell. Without therefore entering into a minute discussion of the testimony bearing upon the question, we deem it sufficient to say, that we regard the execution of the deed as being fully and satisfactorily established.
The plaintiffs, therefore, have a right to the land sued for, but as the defendants and their ancestor [329]*329have made lasting and valuable improvements upon it, without any knowledge of the plaintiffs title, and under the belief that their purchase from the heirs of the patentee was valid, and conferred upon the purchaser a good and valid title thereto, they are equitably entitled to compensation for these improvements, to the extent at least that they have enhanced the value of the land. They have also a right to have the money refunded which was paid to redeem the land from the forfeiture which had been incurred by the failure to list it for taxation, with interest thereon, and also any other money expended for the benefit of the plaintiffs title to the land. The facts which appear in the record are not sufficient to enable this court to fix accurately all the principles which should regulate the adjustment of the defend* ants claims for improvements and expenditures, and these matters should be referred to a commissioner and settled upon'equitable principles.
The defendants have a life estate in one-third of the land under the conveyance of Judith Keith, the widow of the patentee, if she be still living.
Wherefore, the judgment is reversed, and cause remanded for further proceedings in conformity with this opinion. The appellees, Hannah E. Seaton and John Seaton must pay the costs of this appeal.