
    HAMAKER VS. WHITECAR.
    An assessment of a certain number of acres in the name of a person unknown in connection with any title or possession of the land will not, without other means of identification support a sale of taxes.
    It is error to admit the opinion of witnesses that land assessed as the “McHorton Moore Tract” was the “WhartonMoore Tract”; there being no other means of identification.
    Where a deposition containing irrelevant matter is offered in evidence, objection should be made to the irrelevant portions specifically, not to the whole deposition.
    Where a tract is assessed and sold as unseated, no title passes, if at the time any part was seated.
    Error to the Court of Common Pleas No. 3 of Philadelphia County.
    
      J udgment was entered in the Court below on bond and warrant of attorney given by David Hamaker, secured by mortgage given on and to secure part of the purchase money of certain land described as follows : “All that certain tract, piece or parcel of land, situate,- lying and being in the township of Belfast, in the county of Fulton and State of Pennsylvania aforesaid, surveyed to McHorton Moore, containing, according to said survey, 810 acres (be the same more or less) of land, with the usual allowance of six per cent, for roads,” &c.; all the papers were dated 12th of December, 1868. *
    On application of defendant, the judgment was opened and he let into a defence. On the trial, his contention was that there was no tract, piece or parcel of land, situate, lying and being in Belfast township, Fulton county, Pennsylvania, surveyed to McHorton Moore, for part of the purchase money for which said bond was given ; and that therefore, as the consideration of the same had failed, the bond could not be recovered on in this action.
    It appeared that on June 9th, 1856, William Cooper, Treasurer of Fulton county, conveyed to the County Commissioners property which was sold for taxes, and which was described as a “tract of unseated land containing 310 acres, situate in Belfast township, Fulton county, surveyed to MeHorton Moore.”
    On July 17th, 1864, a deed was made by the Commissioners to J. L. Caven for said tract of land, who in turn made a deed therefor to George F. Spicer, May 25, 1865, by whom it was conveyed to David Hamaker, and the bond and warrant sued on given to said Spicer, by whom it was assigned to William B. Whitecar, who brought this suit as assignee of George F. Spicer.
    Delendants gave testimony showing that there was no tract of land in Belfast township, Fulton county, Pennsylvania, surveyed to MeHorton Moore, and offered in evidence a certificate from the Department of .Internal Affairs that no warrant had ever issued in the name of MeHorton Moore.
    Plaintiff read in evidence (under objection by defendant, on the ground of irrelevancy, which objection was overruled and exception granted to defendant) the deposition of A. J. Fore, a surveyor of Fulton county, as follows: “I was county surveyor of this county ; I have been county surveyor for three successive terms, commencing in 1851. I know of no tract of land warranted in the name of McHorton Moore ; there is no tract of that kind in this county, to my knowledge, of that name. I know of a tract warranted in the name of Moore Wharton ; it is situated in Todd township, Fulton county, originally Belfast township, Bed-ford county. I have surveyed the Moore Wharton tract, I think, in 1841, by official copy of survey, and have surveyed it at different times since; it contains 310 acres and 31 perches. [Here draft shown to witness.] I made this draft; I made this draft from the fj,eld notes of a survey made from an official copy; this is a correct diagram of the Moore Wharton Survey. There is a tract of land on the unseated land books taxed in the name of McHorton Moore in this county. I believe the McHorton Moore tract and the Moore Wharton tract are one and the same tracts. Something over 200 acres of the Moore Wharton tract is unseated, and this portion never was seated.” And the deposition of R. A. McDonald, Prothonotary of Fulton county and clerk of County Commissioners, as follows : “I have dealt extensively in unseated lands in this county for quite a number of years. I have grown somewhat familiar with the unseated lands of this county; I know of a tract of land warranted in the name of Moore Wharton, partly seated and partly unseated, as stated by Mr. Fore. There is a tract of land in the unseated land book in the name of McHorton Moore in this county on the Belfast township list, which I think is identical with the Moore Wharton tract.”
    The Court below in charging the jury said, inter aha : “ The mere fact that the defendant has shown to you that no warrant was ever issued to the person named in his deed — McHorton Moore — does not establish this (i. e. that no title’ passed to the conveyance in consideration of which the bond sued on was given). The plaintiff has shown to you all the elements of a good tax title, and although not bound to do so, has shown that there was land in Fulton county which passed by the said. Both parties knew that it was a tax title.”
    October 16, 1877, Yerdict for plaintiff for $1,140. Hamaker then took a writ of error complaining of the admission of the deposition of Andrew J. Fore and Robert A. McDonald, and the portion of the Judge’s charge above quoted.
    
      
      John R. Read and Silas W. Pettit, Esqs., for plaintiff in error
    argued that the opinion of the witnesses Fore and McDonald was not evidence. Farrar vs. Warfield, 8 Mart. N. S. 695; 1 Greenleaf Evidence, Sect. 440. The names are not similar in sound. “Daniel Kladder” was held to be different from “Daniel Kritler.” Brotherline vs. Hammond, 19 P. F. S. 131. Where there were two tracts of 40 acres each assessed to J. Coleman and one was sold, the purchaser could not recover ; there being no evidence to identify which one was sold. Hess vs. Herrington, 23 P. F. S. 438. There must be something to identify the tract sold. City vs. Miller, 13 Wright 440; Lyman vs City, 6 P. F. S. 488. Defendant below had a right to set up failure of title. Youngman vs. Linn, 2 P. F. S. 416; White vs. Lowry, 3 Casey 254; Murphy vs. Richardson, 4 Casey 292. Part of the land was seated according to depositions of Fore and McDonald and consequently no title to that passed by a sale of it as unseated.
    
    
      John Dolman, Esq., contra:
    
    The point that part of the land was seated was not made below and cannot be raised in the Supreme Court. Dorman vs. Turnpike Co., 3 W. 126; Wright vs. Wood, 23 Pa. Stat. 120. A general objection to a deposition which is evidence for any purpose is not available. Bickham vs. Smith, 12 P. F. S. 45; Garsed vs. Turner, 21 P. F. S., 56. Defendant must show the title was positively bad. Ludwick vs. Huntzinger, 5 W. & S. 51. When unseated land is sold the title of the real owner passes whether it be assessed in the owners name or not. Strauch vs. Shoemaker, 1 W. & S. 166; Russell vs. Werntz, 12 Harris 337. If there be uncertainty in the description, evidence aliunde may he offered to designate the land. Bank vs. Woodside, 2 Harris 404; Woodside vs. Wilson, 8 Casey 52; Miller vs. Hale, 2 Casey 432.
   The Supreme Court reversed the decision of the Court below on February 10, 1879, in the following opinion by

Trunkey, J.:

The depositions of Fore and McDonald were rightly received, as they were pertinent to the issue. No objection was made, save for irrelevancy. Had objection been made specially to the portions wherein the witnesses expressed their belief as to the identity of the McHorton Moore tract and Moore Wharton tract, doubtless it would have been sustained.

The main question is, was there sufficient evidence of the invalidity of the tax title ? Although the burden was upon the defendant to show failure of consideration, he was entitled to all testimony in the cause bearing on the question. It is conceded that both parties knew, at the time of conveyance and giving the bond and mortgage, the nature of the vendor’s title to the land. The defendant gave testimony tending to show that no land answering to the description in the deed could be found. Fore and McDonald, on plaintiff’s side, proved there is a tract of land on the unseated land books taxed in the name of McHorton Moore ; that no tract warranted in his name can be found; that a tract is warranted in the name of Moore Wharton, partly seated and partly unseated, containing 310 acres, the unseated part containing something over 200 acres. Not a particle of evidence tends to show an actual division of the Moore Wharton tract; and if any part was seated at the time of the assessment the whole was, and consequently no title passed by virtue of the Treasurer’s sale. Green vs. Watson, 10 Casey 332; Ellis vs. Hall, 7 Har. 292; Kennedy vs. Daily, 6 Watts 269; Fish vs. Brown, 5 Watts 441; Sheafer vs. McKabe, 2 Watts 421. We could hardly have supposed a matter so fatal to the plaintiff’s case related to the assessment which was the foundation of the sale, were it not for the point in his argument, that if there was failure of title to the seated portion the equities between the parties could have been adjusted in the Court below had this question been raised.

The Treasurer’s deed was “for a tract of unseated land containing 310 acres, situate in Belfast township, Fulton county, surveyed to McHorton Moore.” All the witnesses agree that no land can be found which was surveyed or warranted in that name. None testifies that McHorton Moore was ever known, or reputed, as the owner, tenant or claimant of the Moore Wharton tract. A sale for taxes without description, circumstance or name, having any known relation to the land, is bad. Lyman vs. City of Philadelphia, 6 P. F. S. 488. An assessment of a certain number of acres of land, without any other description or means of identity, in name of a person unknown in connection with any title or possession of the land, will not support a sale for. taxes. The City of Philadelphia vs. Miller, 13 Wright 440. After reference to those cases, it is enough to say, that “McHorton Moore tract” is not descriptive of the Moore Wharton tract.

So, far from the plaintiff having shown a good tax title he showed a worthless one. The jury should have been instructed that, believing the witnesses of both parties, no land passed by the sale for taxes.

Judgment reversed, and a venire facias de novo awarded.  