The opinion of the Court (Huston J. dissenting) was delivered by
Rogers, J.
In several cases, particularly Chambers v. Mifflin, (1 Penn. Rep. 74) Addleman v. Masterson, (1 Penn. Rep. 454) and Star v. Bradford, (2 Penn. Rep. 393) it is ruled, that taking out a warrant, or application, and procuring a survey, without more, gives no title to land. That it is necessary for a warrantee, or applicant, not only to have a survey made, but he should have it returned. In Star v. Bradford, it is intimated that the time for returning a survey cannot, under ordinary circumstances, be extended beyond seven years'; and that when the question of abandonment arises from mere lapse of time, where there is no dispute as to the length of it, it is a question of law to be decided by the court, without regard to the intention of the parties; that payment of the surveying fees will not dispense with the obligation to have the survey returned, for it is the warrantee’s duty, notwithstanding, to have it returned. In Brentlinger v. Hutchinson, (1 Watts 52,) the same rule is .recognised; and the policy of it is further enforced in Zerbe v. Schall, (4 Watts 138.) In the cases cited, more than seven years had elapsed; it was, therefore, unnecessary to go further than the cases called for. We now, however, think the time has arrived when some definite rule should be established, and, according to the intimation given, we take occasion to fix the period of time to seven years, in analogy to [174]*174the fourth section of the Limitation Act of the 26th of March 1786. Negligence, as is ruled in Zerbe v. Schall, respecting a return of survey, when the fees are not paid, is imputable to the owner; if they have been paid, it is imputable, in the first instance, to the deputy surveyor; but where the survey is made 'within seven years, the fault is imputable to the owner himself. To this principle an exception is made in Star v. Bradford, where the owner of the application has taken possession of the land and has made improvements'upon it. It was supposed when this was done, ho acquired an equity which it would be unjust to disturb, because of the neglect of either the deputy or himself, and because, from the nature of the transaction, and the notoriety of the possession, a subsequent improver must be aware that it had no cast of abandonment about it. The subsequent appropriation could leave no room to suppose that the warrantee had abandoned his title as unworthy of pursuit. Besides, where possession is taken, it is such an unequivocal act of appropriation, that it would be doubtful whether a locater would be at liberty to reject or retain the land, as he pleased, for an indefinite time. For these reasons the exception was made, but this is the extent of it, for nothing short, of an actual possession will prevent the operation of the rule in favour of an intervening fight. For notwithstanding the property, which was unseated, may have been assessed and the taxes paid by the owner, that he used it, as woodland, for the purpose of supplying the farm on which he resided with fire-wood, rails, and timber, that he claimed title, and this with the knowledge of the improver; yet, after the lapse of seven years, his right is for ever postponed to the intervening right which attaches to an improver or to the owner of a warrant with a survey. The same reasons which induced the decisions in the cases cited, apply in full force here. It cannot be endured that a person who has paid nothing shall be at liberty to hold the state bound for an indefinite length of time, while he himself is at liberty to reject or retain the land at his pleasure. The owner is chargeable with laches, for even the payment of the surveying fees does not release him from any further attention to the completion of his title. He is still bound, at all events, to see that the survey is returned, or he must be content to abide the consequences of his supineness and neglect. Justice to the state particularly requires that the rule be rigidly enforced. But although the evidence was properly ruled out for the reasons indicated, yet, it may be worthy of consideration, whether, on another trial, it may and ought not to be received as evidence of the identity of the tract, which is a material question in the cause.
The court instructed the jury, that a sale for taxes, under an assessment upon one title which fails, will not affect the title of the owner of a better, and independent original title to the same land; or, in other words they put the title of a purchaser at a [175]*175sheriff’s and treasurer’s sale on the same footing. The correctness of this part of the charge depends on the construction of the 5th section of the Act of the 3d of April 1804, which provides, “ that sales of unseated land for taxes, &c., shall be in law and equity-valid and effectual, to all intents and purposes, to vest in the purchaser, or purchasers of lands sold, all the estate and interest therein, that the real owner or owners had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner.” In Luffborough v. Parker, (16 Serg. & Rawle 351,) a sale for taxes was held good, when assessed in the name of Nathan L., and sold for taxes in the name of Nathaniel L. The variance was held to be immaterial; the Chief Justice remarking, that he could not perceive that the case was worse for the purchaser, than if it had been taxed and sold in the name of a stranger. Here it is plainly intimated, that whether the person in whose name it is sold has title, is immaterial. The same intimation is given by Mr Justice Huston, in M’Cord v. Bergautz, (7 Watts 490,) and Morton v. Harris, (9 Watts 323.) In Caul v. Spring, (2 Watts 396,) this language is used: “ a sale of unseated land for taxes, vests the title, when regularly made, in the vendee, to the exclusion of all claimants to the land of a prior date.” And in Fager v. Campbell, (5 Watts 288,) it is said, “ the land itself, and not the owner of it, is debtor for the public charge; and it is therefore immaterial, at the moment of sale, .what may be the state of the ownership, or how many derivative interests may have been carved out of it. With these the public has no concern. They are sold with the land, just as a remainder would be sold with the particular estate. In Fager v. Campbell, the sale for taxes devested the lien of a mortgage, and the principles on which the case was ruled apply with great force to this point. Thus the case stands on authority, and although some may sup-, pose, which is at least doubtful, that the point is not directly decided, yet such a concurrence of opinion is indicated, as goes very far to settle the question. The land, and not the owner, is the debtor for the public charge; and this shows clearly the distinction between sheriff’s and treasurer’s sales. In the one, the thing itself is sold; in the other, the right of the debtor only. I have examined the section with some care, and it seems to me that it would puzzle the legislature to use language more significant and apt to indicate the intention that the complete title or ownership of the land sold, in whomsoever it may be vested, shall pass by the sale to the purchaser. The vendee acquires all the interest of the real owner, although the land may not have been taxed or sold in his name.
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The opinion of the Court (Huston J. dissenting) was delivered by
Rogers, J.
In several cases, particularly Chambers v. Mifflin, (1 Penn. Rep. 74) Addleman v. Masterson, (1 Penn. Rep. 454) and Star v. Bradford, (2 Penn. Rep. 393) it is ruled, that taking out a warrant, or application, and procuring a survey, without more, gives no title to land. That it is necessary for a warrantee, or applicant, not only to have a survey made, but he should have it returned. In Star v. Bradford, it is intimated that the time for returning a survey cannot, under ordinary circumstances, be extended beyond seven years'; and that when the question of abandonment arises from mere lapse of time, where there is no dispute as to the length of it, it is a question of law to be decided by the court, without regard to the intention of the parties; that payment of the surveying fees will not dispense with the obligation to have the survey returned, for it is the warrantee’s duty, notwithstanding, to have it returned. In Brentlinger v. Hutchinson, (1 Watts 52,) the same rule is .recognised; and the policy of it is further enforced in Zerbe v. Schall, (4 Watts 138.) In the cases cited, more than seven years had elapsed; it was, therefore, unnecessary to go further than the cases called for. We now, however, think the time has arrived when some definite rule should be established, and, according to the intimation given, we take occasion to fix the period of time to seven years, in analogy to [174]*174the fourth section of the Limitation Act of the 26th of March 1786. Negligence, as is ruled in Zerbe v. Schall, respecting a return of survey, when the fees are not paid, is imputable to the owner; if they have been paid, it is imputable, in the first instance, to the deputy surveyor; but where the survey is made 'within seven years, the fault is imputable to the owner himself. To this principle an exception is made in Star v. Bradford, where the owner of the application has taken possession of the land and has made improvements'upon it. It was supposed when this was done, ho acquired an equity which it would be unjust to disturb, because of the neglect of either the deputy or himself, and because, from the nature of the transaction, and the notoriety of the possession, a subsequent improver must be aware that it had no cast of abandonment about it. The subsequent appropriation could leave no room to suppose that the warrantee had abandoned his title as unworthy of pursuit. Besides, where possession is taken, it is such an unequivocal act of appropriation, that it would be doubtful whether a locater would be at liberty to reject or retain the land, as he pleased, for an indefinite time. For these reasons the exception was made, but this is the extent of it, for nothing short, of an actual possession will prevent the operation of the rule in favour of an intervening fight. For notwithstanding the property, which was unseated, may have been assessed and the taxes paid by the owner, that he used it, as woodland, for the purpose of supplying the farm on which he resided with fire-wood, rails, and timber, that he claimed title, and this with the knowledge of the improver; yet, after the lapse of seven years, his right is for ever postponed to the intervening right which attaches to an improver or to the owner of a warrant with a survey. The same reasons which induced the decisions in the cases cited, apply in full force here. It cannot be endured that a person who has paid nothing shall be at liberty to hold the state bound for an indefinite length of time, while he himself is at liberty to reject or retain the land at his pleasure. The owner is chargeable with laches, for even the payment of the surveying fees does not release him from any further attention to the completion of his title. He is still bound, at all events, to see that the survey is returned, or he must be content to abide the consequences of his supineness and neglect. Justice to the state particularly requires that the rule be rigidly enforced. But although the evidence was properly ruled out for the reasons indicated, yet, it may be worthy of consideration, whether, on another trial, it may and ought not to be received as evidence of the identity of the tract, which is a material question in the cause.
The court instructed the jury, that a sale for taxes, under an assessment upon one title which fails, will not affect the title of the owner of a better, and independent original title to the same land; or, in other words they put the title of a purchaser at a [175]*175sheriff’s and treasurer’s sale on the same footing. The correctness of this part of the charge depends on the construction of the 5th section of the Act of the 3d of April 1804, which provides, “ that sales of unseated land for taxes, &c., shall be in law and equity-valid and effectual, to all intents and purposes, to vest in the purchaser, or purchasers of lands sold, all the estate and interest therein, that the real owner or owners had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner.” In Luffborough v. Parker, (16 Serg. & Rawle 351,) a sale for taxes was held good, when assessed in the name of Nathan L., and sold for taxes in the name of Nathaniel L. The variance was held to be immaterial; the Chief Justice remarking, that he could not perceive that the case was worse for the purchaser, than if it had been taxed and sold in the name of a stranger. Here it is plainly intimated, that whether the person in whose name it is sold has title, is immaterial. The same intimation is given by Mr Justice Huston, in M’Cord v. Bergautz, (7 Watts 490,) and Morton v. Harris, (9 Watts 323.) In Caul v. Spring, (2 Watts 396,) this language is used: “ a sale of unseated land for taxes, vests the title, when regularly made, in the vendee, to the exclusion of all claimants to the land of a prior date.” And in Fager v. Campbell, (5 Watts 288,) it is said, “ the land itself, and not the owner of it, is debtor for the public charge; and it is therefore immaterial, at the moment of sale, .what may be the state of the ownership, or how many derivative interests may have been carved out of it. With these the public has no concern. They are sold with the land, just as a remainder would be sold with the particular estate. In Fager v. Campbell, the sale for taxes devested the lien of a mortgage, and the principles on which the case was ruled apply with great force to this point. Thus the case stands on authority, and although some may sup-, pose, which is at least doubtful, that the point is not directly decided, yet such a concurrence of opinion is indicated, as goes very far to settle the question. The land, and not the owner, is the debtor for the public charge; and this shows clearly the distinction between sheriff’s and treasurer’s sales. In the one, the thing itself is sold; in the other, the right of the debtor only. I have examined the section with some care, and it seems to me that it would puzzle the legislature to use language more significant and apt to indicate the intention that the complete title or ownership of the land sold, in whomsoever it may be vested, shall pass by the sale to the purchaser. The vendee acquires all the interest of the real owner, although the land may not have been taxed or sold in his name. This construction not only accords with the words of the Act, but the Act itself, so construed, is eminently calculated to benefit the county, the purchaser, and the owner himself. It greatly adds to the facility of collecting the county rates, by enforcing greater attention and vigilance in [176]*176their payment, it prevents a sacrifice of the property in consequence of doubt as to the title, thereby benefiting both owner and purchaser, and, what is of still more consequence, it confers a lasting benefit on the public, by greatly aiding the improvement and settlement of the country. It is said, that it may lead to land cases. This is barely possible; but admitting the truth of this assertion, yet individuals must yield part of their rights, to advance the common prosperity. But in what does this danger to the rights of individuals consist 1 A vigilant owner has nothing to fear. All he has to do is to pay his taxes, and this he is bound to do upon every principle of equality and justice. Nay, more, when this has been omitted by him, the legislature has allowed him to redeem his land within two years, terms by no means onerous. There is theri no hai’dship in his case, and he comes with a bad grace to complain of a loss occasioned entirely by his own negligence, or perhaps from a less justifiable cause, a desire to escape from that equality in the burthens, which are indispensable, and which have been imposed for his own, and the public benefit.
When unseated land, which is the subject of taxation, is sold, the title of the real owner, whatever it may be, passes to the purchaser, whether it be assessed and sold in his name, the name of the warrantee, or a stranger; and whether the person in whose name it is taxed and sold, has or has not any title. I understand the point was ruled by the able and learned judge of the Common Pleas, because some doubts had arisen in respect to it. We fully concur with him in the propriety of settling the question, as we think it would be most unfortunate, if at this time, when the commonwealth is about to take a new start in the career of improvement, any suspicion should be cast upon the numerous titles which are held under treasurer’s sales. The court is therefore of opinion that the judgment be reversed, and a venire de novo awarded.
Huston, J.
The affairs of this world are apt to run into extremes. From the settlement of the province until since 1815, no sale made by commissioners, treasurer or sheriff, for taxes, was ever held valid, nor did any purchaser hold the land under such sale, unless lapse of time made his title good. This was found to be a great evil; after the purchaser had made the land valuable by improvements, the former owner, or oftener some neighbour using his name on a speculating contract, swept away the labour and land from the purchaser.
To remedy this state of things the Act of 1815 was passed, which prescribed that sales of unseated land, for unpaid taxes, should be made on a certain day in June every two years — allowed the former owner two years from the sale within which he might redeem—and if not redeemed within that time, dispensed [177]*177with the proof which had been formerly required of the election and qualification of assessors, commissioners and treasurers—with proof of regularity of all acts done by each of them—with productions of all the newspapers (four of them) in which the lands were advertised, as directed by law, for weeks or months—in short, with proof at the trial, that each minute direction of the Acts of Assemby had been complied with;—and it was thereby “ declared that so much of the Act to which this is a supplement, as requires notice of the taxes being due, and sale thereon, to be given in certain public newspapers, is repealed, and no alleged irregularity in the assessment, or in the process, or otherwise, shall be construed or taken to affect the title of the purchaser.” Several decisions of this court have given full and fair effect to this law. At length cases occurred going to show that enormous frauds were attempted, under the idea that any sale by a treasurer would be held to pass the title; lands taxed as seated, this appearing by regular evidence in the commissioners’ office, were sold as unseated; lands never assessed as unseated, nor taxed as such, nor advertised at all, were handed to the crier and sold; the sale entered by the treasurer in his list of sales, and a deed made to the purchaser, without further inquiry. These sales have not been decided to be valid. But we have repeatedly decided that it must appear that a tax was assessed by the commissioners, though it was not necessary to show it in all or any one respect regular; in other words, that the treasurer, who, either through negligence or for a worse reason, sold lands never assessed at all or never assessed or advertised as unseated, passed no right by his deed. 4 Watts 363.
In Morton v. Harris, (9 Watts 319) we had a case differing from any prior one formerly decided. In 1811 and until 1813, when he sold it to one under whom defendant held, Christian Leonard owned a tract of patented land containing 328 acres 51 perches, and also three other tracts, the quantities of which added together amounted to 1030 acres.. These four tracts had been assessed separately and taxed separately, each for its proper quantity; but were advertised and sold as one tract, 1030 acres, the property of Christian Leonard. The purchaser conveyed the patented tract to John H. Harris. Defendants had entered on the land under the conveyance from Leonard made in 1813; this entry was after the treasurer’s sale under which plaintiff claimed. This court decided that the deed under which plaintiff claimed passed no title to the purchaser from the treasurer’s sale. The written opinion contains the conclusions of the judge who wrote it; and those reasons may be all or only part of the reasons on which the whole acted. The conclusion that the sale vested no title is the decision of the whole court. The directions that the treasurer shall advertise each tract for a certain length of time are not repealed by the Act of 1815; but the necessity of proving [178]*178the regularity and continuance of the advertisements is dispensed with fi’om the expiration of two years after the sale. Landholders at first complained of that law as harsh in its provisions; but it was necessary. It is not necessary that courts should carry the law, by construction, further than its letter and spirit will warrant. It pi-ovides that sales for taxes shall take place biennially on a certain day in June, so that each landholder may examine and see if his lands will be sold. It provides that advertisements specifying each tract shall be published a certain length of time in the county and in two daily papers in the city of Philadelphia. These provisions were intended to leave the land owner without excuse, if his land was sold and not redeemed, and thus lost to him: but if the advertisement contains nothing to induce a suspicion that his land is advertised and will be sold—if, on going to the county within two years and examining the lists of sales, he is unable to discover that it has been sold, and thus cannot redeem it—and yet his land is taken from him—it would be what the law did not intend; it would be producing injustice where the law and law-makers intended none; it woüld be turning the provisions of the law, intended fairly and honestly to give notice, into a fraudulent and deceptive means of depriving a man of his property. The law does not confiscate a man’s land although he does not return it to the commissioners, and they do not know of it and do not tax it. The Act of 1806 directs that if land is not returned by the owner and not taxed, a fourfold tax may be assessed on it when discovered; this penalty may be imposed, but no other.
The act of the 3d of April 1804 makes it the duty of the deputy surveyor to return, on application of the commissioners, a list of all warrants and orders of survey executed by themselves or their predecessors, of the number of acres in each survey, the waters on which it lies, and the township, if known, and the names of the original warrantees. All this, and the manner of the advertisements required by law, show an intention to remove all pretence of want of notice to the owner, and to enable the assessors and commissioners and treasurer to designate what is taxed; to enable owners to pay or redeem within two years, and the purchaser to know what he has bought, and to take possession of it. Let it be recollected that the Act of 1815 does not dispense with any of these requisitions, but dispenses with proof that every thing was done in the time and manner prescribed, unless the suit is brought within two years—after that period the landholder cannot require proof of the election and oath of assessor, or commissioners, or treasurer, or the production of all the newspapers in which the lands were advertised; but says nothing to excuse such designation of the specific tract as will comply with the spirit and meaning of the law, and give notice to the owner and purchaser of what is taxed and what is sold, and must be redeemed, or lost; when the owner redeems, he must pay all costs; if the advertisement [179]*179gives no notice, if it is not necessary that it should give any notice, why does the law require it 1 why must the owner pay the expense of it ?
But it is said the 5th section of the Act of 1804 cures this. It is, “ Sales of unseated lands for taxes now due, or that may hereafter become due, made agreeably to the directions of this Act, shall be in law and equity valid and effectual to all intents and purposes, to vest in the purchaser of land sold as aforesaid, all the rights and interest therein, that the real owner thereof had at the time of such sale, although the land may not have been taxed or sold in the name of the real owner thereof.” It will be observed that this does not apply to the designation of the identical tract sold, but to the ownership of such tract. It will be also recollected that the commissioners are required by the first section of the act to give the name of the warrantee or person to whom each tract was granted, and the number of acres surveyed on such grant. By the second section, all unseated lands owned by individuals, companies or bodies corporate, shall be taxed, &c., &c. If the commissioners knew the owner, it might be, and w;as, and is generally charged to him on the commissioners’ books: but the owner last year may have sold, and the commissioners may not know this, and sell it as the property of one who is not the owner: to guard against the effect of such a mistake, the fifth section above was enacted. If the warrantee is named, it is immaterial whether the name of the owner is correct or not. The name in which it was originally granted generally designates the tract beyond mistake. In some parts of the state, the No. of the warrant designates the specific tract sold, and this is the substantial and conclusive ground of Luffborough v. Parker, (16 Serg. § Rawle.) The No. of the tract and the range of donation land in which it lay, designated the tract sold beyond the possibility of mistake. That case presented a question totally different from this. The tract there was identified ; no dispute what tract was sold. The question was, whether the advertisement gave legal notice to the owner. Here the question is, did the advertisement of a tract of warranted land, of Henry Strauch, 100 acres, give-any notice to George Shoemaker, the owner of a tract warranted and surveyed to himself, containing 300 acres. If it is said the description in the assessment, “ warranted,” is not material, I ask, if this land in the same sales had been taxed and advertised and sold as land held on a location to Michael Lindermuth and John Melchior, and the two purchasers contended for the right, would not he who bought under the true description have held the land ? On this part of the case I would refer to the case of Sheaffer v. M'Kabe, (2 Watts 421.) If the doctrine contended for in this case is held to be correct, a great part of what is written by the Chief Justice in that case, is wrong.
_ But to come to the case in hand. Until Shoemaker took out his warrant, I admit that Strauch might have had his survey re[180]*180turned. On the 1st of April 1816, Shoemaker took out his warrant, which was surveyed in the same month; after this Strauch’s right to that land, and all pretence of right, was irrevocably gone. See Zerbe v. Schall, (4 Watts 140) and cases there cited; Steinmetz v. Logan, (5 Watts 524.)
This right being extinct, so that Strauch or a purchaser from him could never recover—so that if levied on and sold by the sheriff for a debt the purchaser could never recover; how can this purchaser recover ? Shoemaker’s right was not sold, or pretended to be sold. The tax for which Strauch’s right was sold was assessed in 1817, after he had ceased to have any colour of right. On what principle of law, justice, or reason, can a sale of a void right, give a good title 1 But it is said the land is taxed, not the title. To a certain extent I admit this; but the assessment and advertisement must show what land it is which is taxed and sold, otherwise assessment and advertisement are worse than useless, and had better be abolished. No case can show the effect of this doctrine more strongly than the present. In 1817, Henry Strauch knew his right to this land was gone; he lived near; he saw it advertised and sold in 1820, and again by the commissioners in 1826; he does not redeem, though $15 would have restored his right; but he knew that right was worthless: of his own ingenuity, or on cunning advice, he held back, but his son employs a man to buy for him, and for $15 given for a worthless claim he is to take what Shoemaker had a good right to, and for the half of which right Lippincot had paid $2500, and he lies by until another purchaser gives $4000 for the other half. And it is now contended that a purchase of a worthless title destroys and overcomes a perfectly fair and legal title, and all this without the owner of the valid title having any knowledge or notice of what was going on. I can never agree to a decision founded on such principles, and producing such effects.
Judgment reversed, and a venire de novo awarded.