Cranmer against Hall, 4 Watts & Serg. 36

The opinion of the Court was delivered by Rogers, J. — The principal point of inquiry, upon the trial, appears to have been, whether at the time the taxes, for which the land was sold, were assessed, viz. from the year 1813 until 1817, inclusive, and particularly the latter year, the property in controversy was a seated tract. It seems to have been conceded that at one time it was a seated tract; but it was insisted by the defendants that it had been abandoned by the owners, and that in the year 1817, particularly, it was unseated, and as such was properly sold for payment of the tax of that year.

The court, after charging the jury in a manner to which no exception has been taken, left this fact, which was the turning point of the cause, to be decided by the jury; and after the verdict, we are to take it that the tract was seated at the time of the assessment and sale, and that consequently the treasurer’s sale was totally void.

And this renders the point raised on the bill of exceptions of no consequence in the trial, as the evidence admitted only bears on the question of compensation for the value of the improvements; and this being a seated tract, the value of the improvements does not enter into the ease. In M’Kee v. Lamberton, (2 Watts & Serg. 114), it is held that in no case whatever is the purchaser entitled to compensation for his improvements made on lands purchased at a sale for taxes, where the land was seated at the time of the assessment and sale.

The sale of such land is altogether unauthorized and void, and passes no title or colour of title; it being unseated lands only which the Acts of Assembly authorize to be assessed and sold for the payment of taxes. The assessor has no jurisdiction to charge seated land with taxes, the remedy being to recover the taxes, in such cases, from the owner or occupier personally. The finding of the jury also disposes of the third error.

Whe- ' ther the five years’ limitation, in the Act of 1804, relating to the sales of land for taxes, be extended to the case of sales under the Act of 1815, a question mooted in the argument, does not affect the case, if, as has been found by the jury, the sale to the commissioners be void. The provisions of these Acts can only apply to sales of unseated lands, where the assessors and commissioners have jurisdiction over the subject-matter of the assessment and sale. 2 Watts & Serg. 114.

But was there such a possession and occupancy as will sustain the defendants in holding by virtue of the Statute of Limitations ? The property was sold in 1818, but no actual possession was taken until the year 1826, and the suit was brought in 1840, less than 21 years thereafter. Until 1826 there was no person in possession against whom the plaintiff could bring his action, and consequently until that time the Statute of Limitations did not begin to run. This question has been already considered in two cases, Parish v. Stevens, (3 Serg. & Rawle 299); and in Waln v. Shearman, (8 Serg. & Rawle 364).

In the former case it is held, that on a sale of unseated lands for taxes, if no tenant is on the land, the law will presume the purchaser for taxes to be in possession. But in the latter case a contrary doctrine is held. The statute does not begin to run, as is there decided, until the purchaser enters into actual possession. To bar a right of entry under the Act of Limitations, there must be an adverse possession of 21 years. Before the Act of the 29th of March 1824, the purchase itself did not put the purchaser in possession, so as to authorize an action of ejectment by the owner to recover the land sold.

There must be some act done before a suit can be brought against the purchaser. Judgment affirmed.