lands mentioned by the caveators, and that the Supreme Court was misled by the allegations of this caveat. It does, however, appear in evidence that the Vanderslice surveys interfered with older warrants in the names of Martin, Rutherford, and others, warrants which were located upon the ground prior to the making of the Vanderslice surveys. We do not think that the Supreme Court were misled by the caveat when they disposed of this case on the writ of that is impossible for me to come to the conclusion that I should, in the discharge of my duty, under the evidence as it is now presented, submit to you, as a question of fact, whether the Gray or the Vanderslice surveys were the valid surveys. main controversy in this case. Which of these | and was printed just as it was read here. It is surveys, those made by Gray or those made by alleged that it was a mistake to assert that the Vanderslice, are the valid surveys? They cover Vanderslice surveys interfered with any of the to some extent the same ground. When this question was before the Court the last time, we ruled, as a question of law, that the Vanderslice surveys were the valid surveys, for the reasons that they were the first made and returned into the land office; that the rule of law was that, a survey having once been made upon a warrant and returned, the warrant was exhausted and the second survey upon the same was simply void. We, therefore, instructed the jury squarely, that the Gray surveys were void and that the Vander-error taken to the former judgment of this Court. slice surveys were valid. The Supreme Court Our error was not the taking of this question has, just as squarely, decided that we were in from the jury, but it consisted in ruling that the error in that instruction, and that the Gray sur- Gray surveys were invalid. This the Supreme veys were valid and that the Vanderslice surveys Court corrected, by ruling that the Vanderslice, were abandoned. It has been pressed very and not the Gray, were the invalid surveys. This strongly upon the Court what our duty is under is repeated so often, and with such emphasis, the circumstances of this trial. It has been throughout the opinion of Chief Justice AGNEW, urged that the validity of the Gray and the Vanderslice surveys is a question that should be submitted to the jury upon the facts as they now stand. It is claimed that new facts have been presented, the effect of which should be to change the decision of the Supreme Court, rendered, it is said, under a misapprehension of the facts as they actually existed. It has been repeatedly said in your hearing, that the Chief Justice not only misapprehended the facts of the case, but stated, in his opinion, matters which the evidence showed were not facts at all, and that, therefore, the decision of the Supreme Court should not bind us in this case. It strikes us that there has been very little new evidence introduced into this trial upon this particular question. Stress has been laid upon the fact that, in the paper-book of the defendants presented to the Supreme Court, their reference to the certificate of the land office as to the Gray surveys, contained in it the words "accepted surveys." It has been argued that the Supreme Court was misled by this word accepted. The fact is that both the Gray and the Vanderslice certificates are alike in their language. The plaintiffs, however, directed the attention of the Supreme Court to the fact that the word accepted did not appear in the certificate, and also that the surveys made by Vanderslice were first returned, and that the evidence of their acceptance was precisely that which the defendants offered of the acceptance of the Gray surveys. The patent to Trout, of the Thiel tract, and the proceedings preliminary to granting it, were before the Supreme Court. So also, the fact that two of the Gray surveys were rejected. The John Shomo and Ann Maria Shomo surveys were rejected, and the reasons for their rejection were printed in the paper-book of the defendants. The caveat was also before the Supreme Court, Following the evidence of the defendants, we come to the question of the tax-sales. The requisites of a tax-sale are: That the land must be unseated at the time of the assessment; that a tax appears to have been, and in fact was, assessed by the proper officer; that it was due for one whole year and remained unpaid. Unseated lands assessed are the debtor for the taxes; it is immaterial in what name they are assessed, if it is the same land that is taxed and sold, and was at the time unseated. The sale in the name of a younger warrantee will pass the title, it not being assessed at all in the name of the first warrantee. Upon this subject, as bearing upon some of the questions introduced, it has been held by the Supreme Court that, the constructive possession of land, not actually occupied, follows the legal title;' that is, in contemplation of law, every man is in possession of the land he owns, until ousted by an intruder, and abandonment of title is not presumed from non-entry nor from neglect to pay taxes. The law does not limit a man's title to the possessio pedis. Inchoate rights may be abandoned, but abandonment is scarcely predicable of perfect titles. And though it is an owner's duty to pay taxes, what if he does not? The law, instead of presuming his title abandoned, seizes it and sells it to the highest bidder. (Mayor of Phila. v. Riddle, 1 Casey, 263.) "It appears that, in 1841, 1842, and 1843, the Christian Troxel, Christian Immel, and John Klinger tracts were assessed with road, State, and county taxes, and that, by the Treasurer's sale of the 10th June, 1844, these tracts were sold to the | the evidence, it is a fair presumption after the county, and deeds delivered in pursuance of the lapse of thirty years or more, that these public Act of Assembly. It further appears that the officers did their duty. In Lee v. Jeddo Coal Commissioners held them for five years, as re- Co. (supra), the question as to the conclusiveness quired by the Act of Assembly, and that, upon of such a presumption is left open. Here, in the 16th of July, 1849, they were sold by the the absence of evidence to overthrow it, we Commissioners of the County to John W. Rose- think the maxim omnia præsumuntur has proper berry, Benjamin Nehff, and Henry Krebs, who application. With regard to the assessments, the paid their purchase-money and received their question has been raised and argued, that the deeds upon the 1st September, 1849. A question sale of the Troxel tract as unseated, was void behas been raised as to the validity of this sale. It cause it was upon the seated list. From the appears from the evidence, that there was a sale books in evidence and the testimony of Mr. of the Christian Troxel tract, in 1822, to the Aregood, it would seem that it was upon what county, and it is claimed that it could not be was called the mixed list;' a list which conassessed for taxes during the time it was the tained both seated and unseated lands. It was property of the county, only to the extent of assessed upon this list as unseated. We say to the five years limited by the Act of Assembly, you, that if this land was entered on what is during which time the county held the land for called 'the mixed list,' if there found assessed redemption. The subsequent assessment, no as unseated and sold as unseated, the taxes not doubt, was an irregularity, which possibly may having been previously paid, it would convey a be explained as a similar transaction, to some good title." (The Court cited in this connecextent, is explained in Goodman v. Sanger (4 tion: Laird v. Hiester, 12 Harris, 452; ThompNorris, 42). Russel v. Werntz (12 Harris, 347) son v. Chase, 2 Grant, 367; and Russel v. is a case where the county taxed land held by Werntz, 12 Harris, 337.) "That the taxes for itself. It was there held that whilst the title 1841, 1842, and 1843 were not paid, is not diswas in the county, it could not be prejudiced by puted. the payment of taxes other than those for which it had been sold. If the county taxed lands the title of which was in itself, and parties paid the taxes in ignorance of the fact, they may, perhaps, have an equitable right to reclaim their money; but they cannot invalidate that title in the hands of a bona fide purchaser from the county.' It is claimed upon the part of the plaintiffs, that they have a right to recover for that portion of the John Bitler survey which interferes with the Casper Thiel, amounting to about thirty-six acres. They claim for that portion of the Bitler, included within the Thiel survey, that the taxes were paid by Hannah and Elizabeth Bitler, in 1831 and 1832, and that, therefore, the sale to the county in 1834, and afterwards by the county to Taylor and Clayton, conveyed no title to that portion of the land on the Thiel survey included within the lines of the Bitler survey. The rule upon this subject appears to be this: Proof of the actual payment of the tax avoids the sale.' (Hunter v. Cochran, 3 Barr, 105; Reading v. Finney, 23 P. F. S. 472.) They, the plaintiffs, claim that the sale of the Thiel was invalid, because the Act of Assembly was not complied with. In the case of Lee v. Jeddo Coal Co. (3 Norris, 74), the Supreme Court held that the recitals in the deeds of County Com,missioners made in pursuance of a sale of land for taxes, prima facie, raise a presumption that the Commissioners did their duty and made the sale according to law.' (McCoy v. Michew, 7 W. & S. 386.) I am inclined to think, from "There is another question of importance in this case, which was not raised at the former trial: What have the plaintiffs sued for? What land is embraced in their præcipe and writ? The land described in the præcipe is a tract of land situate in Union Township, containing 200 acres or thereabouts, bounded by land surveyed to James Smith, Christian Immel, John Klinger, and others.' In the survey the call is for the Casper Thiel on the north. In the præcipe, reference is made to the deed from Elizabeth Bitler to Snyder, which, it is claimed, is also a part of the description. The adjoiners called for by the præcipe, including the deed, are James Smith, Casper Thiel, Christian Immel, and John Klinger, all older surveys, and all located upon the ground by the testimony of the surveyors. It is claimed, upon the part of the plaintiffs, that they have a right to run beyond the Immel. The land they claim cuts into the Thiel and runs beyond the line of the Immel some on to the Shomo. It is claimed that the survey upon the ground is the true survey, without regard to the calls for adjoiners. The official distance for the east and west line between the Thiel and the Troxel is 320 perches, and the distance as given on the Bitler is 310. Commencing at the Smith and running 310 perches toward the Immel will not reach the Immel tract. But plaintiffs claim the right to run 350 perches and thus run upon the Immel and the Shomo tracts and include 299 acres. It is argued that, these being the lines upon the ground, of the John Bitler survey, they must control the calls for the adjoiners, and that the adjoiners cannot control the lines upon the ground. that the assessment to Hannah and Elizabeth Bitler from 1832 to 1840 inclusive, embraced the John Bitler survey of 1829, and that the said assessment was in the seated list and claimed by Elizabeth Bitler to be so assessed, then the assessment of the same land by any name in the unseated list without notice to her, the then owner, was void and the treasurer's sale of 1844, based on such changed assessment, was void as to her and passed no title to the purchasers at the commissioners' sale of 1849. (12) The Court erred in negativing the plaintiffs' twelfth point, which was: That the defendants have shown no title to the Casper Thiel at the time they entered upon the land in suit and when this suit was brought, that the alleged sale and conveyance by the Commissioners to Taylor and Clayton, by the deed, dated 15 March, 1843, pursuant to sale made 13th February, 1843, does not recite any advertisement or notice of the sale, or that the sale was a public one, or made according to law, nor has any evidence been given to show any such advertisement or notice, or that the sale was not a private sale; and that a sale so made would not divest any title of the owners of the John Bitler warrant and survey in suit so far as it interferes with the Casper Thiel. "It is to be remembered that the James Smith is an older survey and its place is well established. The Casper Thiel is an old survey, patented in 1813; while the survey of the Bitler was only made in 1829 and calls for the Thiel. The fact that the Thiel was patented in 1813, was notice to Bitler where the lines of the Thiel survey were located and, of course, he would have no right to run upon any portion of the Thiel in making his survey. The line of 1806, known as the Meyer line' was introduced in this connection. This line, under the testimony of the surveyors, makes great changes in the location of many tracts and interferes with a large body of surveys. It is only a matter of conjecture for what purpose the line was run, but we think it has nothing to do with, and could not change the location of these surveys as originally returned to the land office. The position taken by the plaintiffs in this case, in reference to the Meyer line' of 1806 is like that taken by the plaintiffs in Wagner v. Wagner (18 P. F. S. 392). Whatever was the purpose in running this line, it is not claimed it was done by any official authority. We instruct you, therefore, that it can have no weight in deciding the present litigation. But, as bearing directly upon this question of what is included in the plaintiffs' description, we have a decision of the Supreme Court where it is distinctly held that: It is a principle of construction, that, where land is described by courses and distances and also by calls for adjoiners, in 1849, by the county to C. M. Straub; then, the latter, where there is a discrepance, invariably govern; and it is applicable to conveyances as well as to official surveys.' (Cox v. Couch, 8 Barr, 154. This has been followed in other cases. Petts v. Gaw, 3 Harris, 222.) If our construction is correct, this controversy is narrowed to the interference of the John Bitler with the Christian Troxel survey. For, following the description contained in the plaintiffs' præcipe and deed, and beginning at the James Smith and running along the Casper Thiel to the Immel and then, by courses and distances, back to the Smith, would not interfere with the Thiel, the Immel or the John Shomo. We are constrained to say to you that, upon the whole evidence in this case, the defendants have a right to a verdict at your hands. In saying this, we negative the points of the plaintiffs." Exception taken by plaintiffs and bill sealed. Verdict for the defendants as directed by the Court, and judgment thereon. The plaintiffs took this writ, and filed twenty-six assignments of error, among which were the following: (5) The Court erred in negativing the plaintiffs' third point, which was: That if the jury believe (13) The Court erred in negativing the plaintiffs' thirteenth point, which was: That the defendants have given in evidence the assessments, in the names of Hannah and Elizabeth Bitler, and a treasurer's sale, in 1844, by the county treasurer to the county of Schuylkill, and a sale, if the Court hold the sale of 1849 valid against the county, such deed vested in C. M. Straub so much of the Casper Thiel as the defendants admit to have been interfered with by the John Bitler survey in suit, and the title having been vested in the plaintiffs before suit brought, they are entitled to recover that part of the land in suit which the defendants admit to be interfered with by the Gray location of the Casper Thiel. F. W. Hughes and F. W. Bechtel, for plaintiffs in error. The Vanderslice surveys were regularly made and returned, with the consent of the warrantees, and the title of the warrantees to land in these surveys, not previously appropriated, was complete against everybody but the Commonwealth, who held the legal title as security for patent fees. Drinker v. Holliday, 2 Yeates, 87. These lands lie in the old purchases. The 15th Section of the Act of April 8, 1785, and the 6th Section of the Act of April 3, 1792 (Purd. Dig. 898-902), apply only to the new | each claimant under his own assessment, and purchases or to purchases from the Indians after left each claimant's title just where it was be1768. Smith v. Wells, 1 Yeates, 286. Goddard v. Gloninger, 5 Watts, 222. fore. Hunter v. Albright, 5 W. & S. 423. Diamond Coal Co. v. Fisher, 7 Har. 267. Fritz v. Brandon, 28 P. F. S. 356. Though a patent conveys the legal estate, as against the Commonwealth, it will not prevail over a prior estate by warrant and survey. The Act of 1795, which provided for a commission to mark the line between Northumberland County and Berks County, rendered valid all surveys previously made by any deputy sur-the veyor. That Vanderslice was out of his district, does not invalidate the surveys made by him in 1793. The caveat filed by Kunckel and Bowen was not directed against the surveys made by Vanderslice, but against the granting of patents to Sillyman and the other warrantees, for the lands granted them by warrants dated 1st July, 1793. The reason assigned by the caveators is, that they had other warrants for a part of the same land; they do not allude to any surveys, whether of Vanderslice or of any other person. No subsequent survey upon the land called for in the Sillyman warrants could remove this objection; hence Gray's surveys were nugatory. opinion of the learned Chief Justice, reversing the judgment of the lower Court, at the former hearing of this case, is predicated upon an erroneous assumption of facts. (Fritz v. Brandon, 28 P. F. S. 350.) The A second survey, made without a previous warrant of re-survey from the Surveyor-General or the Board of Property, is void. Drinker v. Holliday, supra. Deal v. McCormick, 3 S. & R. 343. Oyster v. Bellas, 2 Watts, 397. Cassidy v. Conway, I Casey, 240. Bellas v. Cleaver, 4 Wr. 260. Improvement Co. v. Munson, 14 Wallace, 442. Barton v. Smith, 1 Rawle, 403. Manhattan Coal Co. v. Green, 23 P. F. S. 320. Where a survey is removed, or shifted to lands not described in the warrant, title begins from the time the survey is returned and accepted. Lauman v. Thomas, 4 Binney, 58. Moore v. Shaver, 6 S. & R. 133. The Immel and Troxel tracts were sold by the Commissioners for non-payment of taxes, under different assessments, on the same day. These sales were to effect a payment of the taxes by Voi IX.-20 Maclay v. Work, 5 Binney, 154. Gonzalus v. Hoover, 6 S. & R. 118. A patent inures to the benefit of the owner of Urket v. Coryell, 5 W. & S. 60. A patent obtained through ignorance of the Land Office, does not legalize an unauthorized survey. Burd v. Seabold, 6 S. & R. 137. Land that has been assessed upon the seated list, upon which taxes have been paid as upon seated land, cannot be transferred to the unseated list, assessed and sold as unseated land, without notice to the owner. Larimer v. McCall, 4 W. & S. 133. Bechdle v. Lingle, 16 P. F. S. 38. them S. H. Kaercher, John W. Ryon, and C. James Ryon and George R. Kaercher (with Tower, Jr.), for the defendants in error. Vanderslice located the warrants involved in this controversy wholly out of his district. His Lessee of Hubley v. Chew, 2 Sm. Laws, 257. This principle is not shaken by the ruling in Shields v. Buchanan (supra), and Funston v. McMahon (supra); for the surveys in those cases were made and returned by persons who never had commissions as deputy surveyors. Every survey made by a deputy surveyor out of his proper district is void. Act 1792, sect. 6, 3 Sm. Laws, 70. ity, cannot go beyond the known lines of his A deputy surveyor, without a special authordistrict to make a survey. Harris v. Monks, 2 S. & R. 557. The Vanderslice surveys were returned as located in Berks County; the acceptance of them cannot be construed as a ratification by the Surveyor-General of an irregular act; for the limits of the county were not defined until two years later. It is not denied that, after a survey has been made and returned, no new survey can be made on the same warrant without a new authority; but this rule presupposes the first survey to have been made by the regular deputy within his district. Gray's surveys were returned upon lands in was to make a survey of a single one of them. The Commonwealth has granted patents upon seven of the tracts; if Gray's act was valid as to these seven, it was so as to the whole block. After a lapse of eighty years, and after the settlement of this whole country, the presumption is one of law that these surveys were made under competent authority. Caul v. Spring, 2 Watts, 394. his own 'district, and accepted immediately by | make the survey of these fourteen tracts as it the Surveyor-General; they were surveyed and returned as a block, the property of James Sillyman; five of them were patented in 1806, two in 1808, and one in 1813; the warrants surveyed by Gray at the same time upon a portion of Vanderslice's location abandoned by the re-survey were accepted, and some of them patented in 1794; the title under the Gray location was sold to actual settlers, who have occupied and improved the land; these lands have been assessed and have paid taxes since the territory became a part of Schuylkill County; no one ever claimed under the Vanderslice surveys, and they were never taxed; Gray's returns were accepted more than thirty-five years before the John Bitler warIn reply to the plaintiffs' 5th assignment of rant was located. These facts justify the error. The assessments to Hannah and Elizapresumption that the Surveyor-General gave a spe-mixed list, for 1838, 1839, and 1840, and of 60 beth Bitler of 30 acres as unseated land, on the cial authority for a re-survey. Goddard v. Gloninger, 5 Watts, 221. Creek v. Moon, 7 S & R. 330. Bellas v. Levan, 4 Watts, 294. Caul v. Spring, 2 Id. 390. Collins v. Barclay, 7 Barr, 67. If a re-survey abandon the lines of the original survey, and the parties subsequently claim by the re-survey, the land thrown out by it is abandoned, and left open to re-appropriation. Sabins v. McGhee, 12 Casey, 453. So, where a warrantee has two surveys of different tracts made on the same warrant, and accepts a patent for one of them, the other is subject to appropriation by a settler. Coxe v. Woolbach, 2 Casey, 122. Ever since the case of Drinker v. Holliday (supra), the rule has been, in Pennsylvania, that where a survey has been made, returned, and accepted, a new one cannot be made without the assent of those representing the Commonwealth, and not even then so as to affect intervening rights. Cassidy v. Conway, I Casey, 240. Stimpfler v. Roberts, 6 Harris, 299. Darrah v. Bryant, 6 P. F. S. 73. acres so assessed for 1835, 1836, and 1837 were frauds practised upon the county by the owner of the land, if they referred to the John Bitler tract of 300 acres, and no correction and placing of the tract upon the proper list by the proper officer, at the lawful time appointed for making the triennial assessments would prevent a valid sale of the land for non-payment of taxes, either upon that assessment or upon the assessments in the names of Christian Troxel and Christian Immel. Clarke v. Dougan, 2 Jones, 87. As to the validity of the tax sales of the Immel and Troxel tracts, see Laird v. Hiester, 12 Harris, 453. In reply to the plaintiffs' 12th assignment of error. A deed from the County Commissioners, in fee simple, duly acknowledged, conveys effectually the county's title. Act of 29th March, 1824, Purd. Dig., p. 1452, sec. 51. The plaintiffs cannot object to the sale of the Casper Thiel tract that the Commissioners did not recite, in their deed, advertisement, and notice of sale, etc.; for, excepting the single re The Courts of this State have uniformly refused to go back more than twenty-one years to settle difficulties about the issuing of warrants or patents, or the making or returning of surveys, or payment of the purchase-money to the Com-quirement that the sale shall be public-and the monwealth. Stimpfler v. Roberts, 6 Harris, 283. The plaintiffs do not claim title under the Vanderslice surveys, or in any manner connect themselves with that title. It is worthy of consideration whether they were in a position to make use of those surveys to defeat the defendants' possession and claim under the re-surveys. Balliot v. Bauman, 5 W. & S. 150. The authority of Gray was just as great to defendants have shown affirmatively in their evi- In reply to the plaintiffs' 13th assignment of |