
    LEHIGH AND WILKESBARRE COAL CO. VS. CLOSE.
    Where an unseated tract of land was sold for taxes, as unseated land, the sale is valid, even though such tract is assessed by mistake on the seated list.
    Such an erroneous assessment is an irregularity, which is cured by the aot of 1815, unless the owner has been actually misled by it.
    Where there is no residence upon or cultivation of land; in order to render it seated, there must be actual and permanent improvement, which would be equivalent to cultivation.
    An appeal from an assessment was held on May 8,1823; the Commissioners •were required by law to regulate the assessments immediately thereafter; the treasurer’s deed recited that the tax had been due for one year previous to June 14, 1824; held that in the absence of evidence to the contrary, it is presumed that the land was assessed prior to June 14, 1823.
    Error to the Common Pleas of Schuylkill County, No. 408 Jany. Term, 1884.
    This was an action of ejectment brought by Solomon Close against The Lehigh and Wilkesbarre Coal Co. The case was tried by the Court without the intervention of a jury before Judges Pershing and Green and the facts found by the Court, and the opinion of the Court upon the facts is as follows per :
    Green, J.
    This is an action of ejectment for a tract of land in Kline Township, containing 162 acres and 70 perches, known as the Eocht and Shappell tract, and being part of the tracts known as the George Ashton and Wm. Wistar tracts, claimed by the ■defendant.
    The plaintiff has shown title to the land as follows :
    Warrant, 10th of November, 1817, to John G. Eocht and Jeremiah Shappell, for 160 acres of land in Catawissa Valley, Rush Township, Schuylkill County.
    Survey, 20th of November, 1817, in pursuance of warrant for 162 acres, 70 perches and allowances.
    Patent, 16th of June, 1818, from Commonwealth of Pennsylvania to Eocht and Shappell, for the tract.
    Deed, 19th of May, 1830, Focht and wife to Jacob Eocht, for his undivided half.
    Will of Jacob Eocht, dated September 3rd, 1863, which provides for the sale of his real estate not specifically devised, and to be divided equally among his surviving children.
    
      Deed, May 4,1874, the heirs and widow of Jacob Focht, deceased, to Joseph K. Kurtz and Solomon Close, for all their right to the undivided one-half. One of the heirs, Jeremiah Focht, did not join in the deed.
    By deed poll acknowledged Sept. 24th, 1877, the interest of Kurtz was sold and conveyed by the Sheriff of Schuylkill County to Francis Rowland.
    Deed, 2nd of November, 1878, Rowland and wife convey their interest to Solomon Close.
    By deed poll dated 18th of March, 1878, the interest of Jeremiah D. Focht was sold and conveyed by the Sheriff of Schuylkill County to Solomon Close, the plaintiff.
    It thus appears that Solomon Close holds the undivided one-half of this title to the land.
    The plaintiff further claims under a tax sale and title under the following facts:
    This tract of land was assessed in Rush Township for the year 1823, and placed in a list headed, Valuation of taxables of Rush Township, made the 7th of December, 1882, by us, the subscribers, the assessor and assistant assessors.” On this list it .is put down thus:
    Shappell & Focht. 200 acres. D. L. a. 1 dollar, p. a. 200. 200.
    Upon the transcript of Rush Township assessment for the year 1823, which was the year of the triennial assessment, it is put upon a list which does not appear to have any designation or heading, but which seems to be the same as the preceding list, and is entered thus.
    Shappell & Focht, 200. 1. $200. 0.28.
    The assessment book shows that this was amount of county tax assessed upon the property, to wit, 28 cents. As the rate was three and a half mills the tax should have been 70 cents instead of 28, but this is immaterial.
    In this year (1823) the attempt was made for the first time of placing the assessable property of the township in two separate lists, one a list headed, valuation of taxables, the other, nonresidenters. Prior to this time all had been placed indiscriminately upon one list. The latter list was, as its title designates, intended to be of land held by non-residents ' of the township, that is, unseated land; the former list was presumably intended to be a list of the seated land, though an inspection of the book will show that quite a number of apparently unseated tracts were included in it. These were assessed as so many acres of “D. L.,” which evidently was intended to stand for timber land.
    The day of appeal from this assessmeut was upon the 7th of May, 1823.
    The taxes upon this tract were returned by the collector as unpaid, and the tract itself returned in the list of non-residenters as unseated.
    The Treasurer’s Sales Book for the year 1824, under the head Bush Township, shows the sale of this tract on the 14th or 15th of June of that year to Matthias Dreher. The entry is as follows :
    No. of acres, 200. Name of person as whose land sold, Shappell & Focht. Tax due, 28 cents. Sum bid, $5.25. Paid down, $4.16J.
    Deed, 25th of July, 1824, from Jacob Huntzinger, Treasurer, to Matthias Dreher, for a tract of unseated land in Bush Township, containing 200 acres, owned by Shappell & Focht, reciting that the taxes had remained unpaid for upwards of a year prior to the second of June last, and that the tract had been sold as above ; acknowledged July 28,1824.'
    Deed April 14th, 1825, Matthias'Dreher and wife to Samuel Huntzinger for the undivided one-half of the above.
    Deed, March 28th, 1827, from Samuel Huntzinger and wife to George Focht (John George. Focht), for the undivided .one-half of the said tract.-
    This put the ownership of the undivided one-half of this tax title in John G. Focht, who was at the same time the owner of the one-half of the legal title under the Focht & Shappell warrant and survey. As all of Focht’s title became vested subsequently in Solomon Close, the plaintiff, he therefore became the owner of the undivided one-half of this tax title.
    Upon the question of fact whether the Focht & Shappell tract was seated or unseated at the time of the assessment in 1823 and prior to that time, we find that no one resided upon the land, and that there was no cultivation of any part of it. It was timber land, but there is no evidence that there was any cutting' of timber nor were there any improvements or buildings of any kind. Andrew G-ottshall had charge of the land for Focht. lie did not live upon the land, but several miles away, on the other aide of the mountain. In the summer time Gottshall drove cattle up to the land to pasture about the woods, and in order to prevent them from straying away and getting lost, he made a salt lick or salt licks, by making troughs out of the trunks, or fallen trees, which he supplied at times with salt. The evidence shows that at times there were as many as a hundred cattle there. In the fall of the year, when the cold weather set in, the cattle were again driven off down to Berks County. It does not appear that any shelter of any kind was provided for the cattle, nor was there any clearing upon the land. Under this state of facts the plaintiff claims that the land was unseated at the time of the assessment in 1823, and the defendant claims it was seated.
    The defendant shows title to the land as follows :
    Warrant, to William Wistar, dated 10th of July, 1793. Survey, 16th of- October, 1793, to William Wistar, in pursuance of warrant.
    This survey interferes with the Focht & Shappell on the west 46 acres and 119 perches, as is shown by the draft in evidence.
    Warrant to George Ashton, dated 10th of July, 1793.
    Survey, 16th of October, 1793, in pursuance of the above warrant.
    This survey adjoins the Wistar survey on the east, and interferes with the Focht & Shappell 166 acres 153 acres, leaving only 15 acres 157 perches of the latter clear of interference.
    Patents for the Wistar and Ashton tracts were granted by the Commonwealth of Pennsylvania on the 7th of March, 1794, to Robert Morris.
    Deed, 10th of November, 1790, Robert Morris and wife to John Ashley for the Wistar and Ashton tracts of 400 acres each.
    This title by a great many mesne conveyances has become vested in the Lehigh and Wilkesbarre Coal Company. As no dispute has arisen concerning the regularity or validity of these conveyances, it is not necessary that they should be more particularly set forth. Nor is there any dispute as-to the location of the Wistar and Ashton surveys, nor of the Shappell and Focht survey.
    Conclusions from facts found :
    The defendant having shown the older and better, original title, it is clear that plaintiff’s right to the land must turn upon the validity of the tax sale of 1824.
    The first question arising upon the validity of this sale is upon the assessment. Was the land assessed as seated? And, if so, could it be sold as unseated ?
    Had there been no attempt made in 1828 to make two lists, and had all the lands of the township been placed in a single list, a sale of the land as unseated would have been entirely valid. But the validity of an assessment is not affected whether there is but one common list for all the assessable property of the township, or whether there are two lists, one of seated, the other of unseated lands. The law does not require separate lists, and does not prescribe the manner in which they are to be made out upon the books in the commissioner’s office: Laird v. Hiester, 12 Harris, 462. The Shappell and Focht tract having been placed upon the list of taxables, and not upon the list of nonresidenters, a fair presumption arises that it was intended to be assessed as seated land, and, in the absence of evidence to the contrary, that it was in fact seated. But is not this presumption rebutted by the fact that the tract was returned by the collector as unseated ; that it was then so entered in the Sales Book of unseated land in the Treasurer’s and Commissioner’s offices, and that it was actually sold as unseated ? It has been decided that the maxim “omnia prcesimuntur rite esse acta,” applies in all its force to a tax title ; Cuttle v. Brockway, 12 Harris, 145 ; Heft v. Gephart, 15 P. F. S. 518. This would carry with it a presumption in favor of the regularity of the tax sale, assessment, and all the proceedings leading to the sale. This presumption would not be rebutted by showing that the land was assessed upon a seated list, for the reason that this may be but a mere irregularity which is cured by the Act of 1815 ; and.for the further reason that it is no part of the official duty of "the' officer making the assessment to make two lists, one of s'eatéd and the other of unseated land. He may make two lists, or he may make but one. If he by mistake puts a tract upon the wrong list, this is but an irregularity, cured by the Act of Assembly, unless a party can show that he has been actually misled by reason of it, as where there was an arrangement between the taxing officer and the owner as to the manner in which the land was to be taxed, and the arrangement was disregarded without notice; Thompson v. Chase, 2 Grant 371: Hathaway v. Elsbree, 4 P. F. S. 504. This must be shown.- Says Thompson, J., in that case : “"We leave owners to take notice that their lands are unseated if they are so. But in the present case it cannot be pretended that the defendants, or ' their predecessors in interest, were either misled or in any way deceived, for they were strangers to the Shappell and Eocht title. They claim by a title entirely different.
    The case of Laird v. Hiester, 12 Harris 456, shows that it is not necessary to the validity of a tax sale that the land should have been assessed as unseated. It is true that in that ease there was but a single list. In the prese.nt case, there are two lists. But it must follow that where a tract gets.- by mistake into the wrong list it is but an irregularity cured by the Apt .of Assembly, and that it does not necessarily.-vitiate the assessment and make void the sale. ■ It is laid down as -the law in that case that “the authority of the Treasurer to sell unseated land for taxes depends upon these facts: that • the. land was unseated at the time of the assessment; that a taxi- .appears to have¡ been, and was in fact, assessed upon it by the proper officers ; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the Acts of 1804 -and 1805.”
    This necessarily brings us to the consideration of the question, was the land in dispute in point of fact seated at the time of the assessment in 1823 ? It becomes the decisive question. Ordinarily the test by which this is to be determined is residence or cultivation: George v. Messinger, 23 Smith 422; Hathaway v. Elsbree, 4 Sm. 505; Lackawanna Iron Co. v. Fales, 5 Sm. 97.
    
      In the present case there was neither residence or cultivation. There was neither clearing nor enclosure, nor was there any improvement. But it is claimed that Residence or cultivation are not in all cases an essential in making ’.and seated, and that land may be occupied without residence, or put to such uses without cultivation, as will give it the character of seated land. Harper v. The Banders’ and - Mechanics’ Bank, 7 W. & S. 214, is cited as sustaining this position. But an examination of the case shows that whilst the Court below so ruled, the Court above avoided the expression of any decided opinion upon the question as there presented. In the case of the Lackawanna Iron Co. v. Bales, 6 Smith 94, there was evidence of buildings being erected on the tract, and that it was used for lumbering, the other side claiming that they were but temporary in character, and put up, not for the purpose of cultivation, but only for lumbering. The Court below, Judge Conyngham, in his charge said, inter alia: “A tract may become seated without permanent residence, and without cultivation through the raising of grain and crops, either of which would clearly make it seated. Some tracts may he entirely unfitted for cultivation, or for a permanent dwelling place, and yet they may become seated by a personal use of them in the only way in which they can be used. We say it must be the going on under color of title, with an evident claim of ownership, and a view to a permanent occupation of the property, and occupying and using it continuously in the way its capabilities render it apparently most proper, that will make it seated. It is for you to ascertain whether Stevens’ occupancy was of this clear and satisfactory character, showing his continuous occupation and permanent intention.”
    The Supreme Court seems to have yielded its assent to this doctrine, though perhaps,- with.some reluctance. Says Thompson, J., delivering the opinion, “Taking the whole charge of the learned judge as to what constitutes the character ‘seated’ in regard to lands, we see no error. Residence, with a bona fide intention to hold it as owner or for the owner, and performing labor upon it, such as mining coal, raising ore and the like, in the character of owner, would undoubtedly give the land the character of seated. While, on the other hand, the temporary residence of a trespasser to take of the timber, although it might justify treating the land as seated, and a call on him for the taxes, being in possession, it would not fix upon the tract the character of seated after he had left it. We see no error in this-part of the charge taking it in the concrete.”
    Aceepting-this as the law of the case, it is evident that it must depend upon the character of the use and occupation that will make the tract seated. It must not be a mere temporary use or occupation. There should be some impress upon the land which would be the equivalent of cultivation, and by which-the assessing officer could see that the land was no longer in a state of nature. We do not think that the mere running at large of an owner’s cattle for the summer on a tract of land, without enclosure and without clearing, and the making of salt troughs out of the trunks of fallen trees, to keep the cattle together, can be such a use of the land as would change it from unseated to seated land. It lacks both in the element of permanency and also in showing the evidences of reclamation. The land bears no impress of the hand of man, in either the cutting of timber, the mining of ore ■or coal, the quarrying of stone, or anything else ’ to show the intention of taking it into actual occupancy. The cattle roam at large “on a thousand hills,” and the salt licks are used, not for the purpose of giving character to the land, but so that the cattle may not go astray.
    We have therefore come to the conclusion, under - the facts in evidence, that the tract in dispute was unseated -at the time the fax was assessed in 1823, and for which it was.sold in 1824.
    Was the tax due and unpaid for one whole year prior to the sale on the 14th and 15th of Juné, A. D. 1824 ?
    There is no evidence to show the precise day when ■ the ' tax was assessed upon the land, but there is sufficient to satisfy us that such was the fact. The 9th and 7th sections of the Act of 11th of April, 1799, (3rd Smith’s Laws, 394), which was in force in 1823, required the Commissioners to make the assessment and fix the days for appeal before the second Monday of April of the years of triennial assessments, and before the first Monday of April of other years.
    
      The year 1823 was the year of a triennial assessment. The assessment book for Rush Township for the year 1823, shows that the valuation and assessment liad been made, and ■ the rate fixed at three and one half mills, and that the day for appeals, from the assessments of that township was fixed for the 7th of May, 1823. The 10th section of the same Act requires the Commissioners, “-immediately after the appeals are over, to regulate the assessments according-to the alterations made, and to cause 'their clerks to make fair duplicates thereof,” etc. .
    As the principle fully applies in such cases that “omnia prossumuntur rite esse acta” it is fair to presume that the tax was assessed prior to the 14th of June, 1823, that is, at least one year before the sale: Heft v. Q-ephart, 15 P. P. S. 518 ; Cuttle v. Brockway, 12th Harris 145. It is to be borne in mind that the 'tax for wliich the land was sold was an unpaid county tax, and that the Treasurer’s deed sets forth the fact that this tax had been due for upwards of a yéaf. Surely there is sufficient here to raise the presumption of regularity, and to put the burden upon the defendant of disproving it. This he has not done.
    . ' No question has been raised-that the tax was- not assessed upon this tract by the proper taxing -officers.
    This disposes of every material question raised in the cases, and brings us to the conclusion that the tax sale of 1824. gave a good and valid title to the undivided one-half of the land to the plaintiffs.
    Pour points have been presented by the defendant. The first we affirm, if it refers to the assessment when first made. We thiiik that the evidence shows that subsequent to its return by the collector it was treated by th,em as unseated. But we further think the point immaterial in the view we take of the case.
    ' The second, third and fourth -points we negative, and refer to our general opinion for a more specific answer to them.
    It is proper to add that Judge Bechtel, having been of counsel in the casé, has taken'no part in this decision.
    And now, October 1st, 1883, it is hereby ordered that verdict bo entered in favor of the plaintiff and against the defendant for the. undivided one-half of the premises in dispute, within the lines of the Wistar and Ashton surveys, with six cents costs and six cents damages.
    The Lehigh and Wilkesbarre Coal Co. then took a writ of ■error, complaining of the entry of judgment in favor of the plaintiff, also to the admission of certain evidence as follows : In admitting the general assessment and transcript of Rush Township for the year 1823, the objection being that’ it was assessment on seated land ; and seated land was not subject to "tax sale at that time. Also admitting the extract from' the 'Duplicate Book of Rush Township, containing what purports to be a copy of duplicate returns of the tax collectors, also in admitting the sales book of unseated lands from 1822 to 1835, because it appears on its face to have been copied from records in the Treasurer’s office, also in admitting the depositions of Henry ■Gilbert and others, for the purpose of showing that the land in 1823 was in fact unseated. •
    
      Samuel Dickson, F. G. Farquhar, & John D. Sells, Esqs., for plaintiffs in error
    argued, that the assessment in this case, showed that the land was seated, and therefore the tax sale is not valid. The book offered was only a copy of the original returns, and is not proper evidence; Owens vs. Vanhook, 3 W. 260; McCall vs. Lorimer, 4 W. 351; Commercial Bank vs. Woodside, 14 Penna. 404; Stewart vs. Trevor, 56 Penna. 374; McReynolds vs. Longenberger, 57 Penna. 13. The record necessary to make a tax •sale valid, cannot be supplied or created by parol testimony, Hathaway vs. Elsbree, 54 Penna. 498. Where the owner has ■elected to consider land as seated, which in point of fact is not seated, he may have it assessed as seated, and if this was assessed it acquires all the characteristics of seated land, so far as the purposes of taxation, and the sale for taxes are concerned; Harper vs. Farmers’ and Mechanics’ Bank, 7 W. & S. 205. 'This land was seated in reality ; Watson vs. Davidson, 87 Penna. 270; Jackson vs. Stoetzel, 87 Penna. 302; Lackawanna Iron Co. vs. Fales, 55 Penna. 94; Altemose vs. Hufsmith, 45 Penna. 121; Rosenburger vs. Schull, 7 W. 390; Sheaffer vs. M Kabe, 2 W. 421. The principle that all things are presumed to have been Hone in order, cannot apply to give jurisdiction or to'supply the proof, that an assessment was made; Brejsch vs. Coxe, 81 Penna. 336.
    
      John W. Ryon, G. E. Farquhar and J. W. Moyer, Esqs., contra.
    
    There is-no law that requires that a separate assessment should be made on unseated land. It is sufficient for the purposes of a-valid sale for taxes, that the land was in fact unseated ; Laird vs. Heister, 24 Penna. 462; Thompson vs. Chase, 2 Gr. 371. The books offered in evidence were proper to be considered; Frick vs. Sterret, 4 W. & S. 269.
   The Supreme Court affirmed the judgment of the Commoru Pleas on May 16th, 1884, in the following opinion :

Per Curiam.

As the learned counsel for the plaintiff in error have failed to convince us that there was in any way a mis-trial of this case in the Court below, it must be affirmed, and as we consider- it wholly unnecessary to add anything to the clear and able opinion' of the learned judge, who conducted the trial below, we refer to that opinion, as containing the reasons upon which we base this affirmance.

Judgment affirmed.  