
    GUTHRIE VS. RECK.
    The Act of April 17, 1866, P. Laws 961, making the return of the tax collector, that there is no personal property on the premises conclusive, is unconstitutional.
    Where the owner of seated land has falsely stated to the collector that there was no personal property on the premises, the purchaser of his title at Sheriff’s sale is not estopped from showing that there was personal property.
    Error to Common Pleas of Clarion County. No. 38 January Term, 1883.
    On January 1st, 1874, James W. Guthrie owned two adjoining tracts of land known as 111 and 119, containing 64 and 145 acres, respectively. In February, 1874, James Bonner went on tract No. 119, erected a shanty, and soon after put up a saw mill and began to manufacture lumber. Tract No. 111 was assessed for taxes for 1874 and 1875 'as unseated land, and sold for non-payment of taxes in 1876 to G. W. Arnold. Taxes were also levied on tract No. 119. The taxes were returned by the collector, and tract 119 was sold also to* G. W. Arnold.
    
      Arnold brought ejectment against Guthrie for the two tracts .and obtained an award of arbitrators, and took possession of tine land in 1880. W. R. and F. M. Reck had the saw mill in October, 1874, and manufactured lumber. Recks sold the saw mill to Guthrie on July 9, 1875, and took $100 in cash and some judgment notes. On August 6, 1875, W. R. and F. M. Reck entered up a judgment note against J. W. Guthrie for $2,-.661.05. On January 6, 1880, execution was issued and the •two lots, hi arid 119, sold to Recks for $25, and a Sheriff’s •deed was executed to them dated January 29th, 1880. W. R. ■and F. M. Reck then brought an action of ejectment against «Guthrie and Arnold. Under instructions of the Court, the •jury rendered a verdict for Arnold for lot 111. At the trial, the tax collector swore that he went to see the land, and that Guthrie told him to return it, it was all unseated. He accordingly returned it. The defendants contended that the collector’s return was under the Act of April 17, 1866, P. Laws 961, conclusive of the fact that there was no personal property out of which the tax might be collected. The Court held that so much ■of the Act as made the return conclusive was unconstitutional. This ruling forms the subject of the first error. The second error was the refusal of the Court to affirm defendant’s fifth point as follows:
    That if J. W. Guthrie induced the collectors or any of them to return the land as having no personal property therein, 'lie and his privies in title, the plaintiffs in this suit, would be estopped as to G. W. Arnold, the purchaser at tax sale, from setting up as against his title that there was personal property on the land — and if the jury so find the facts their verdict should be for the defendant, G. W. Arnold.
    The jury rendered a verdict in favor of G. W. and F. M. Reck for lot No. 119, containing 145 acres. G. W. Arnold then took this writ of error, the above stated assignments of error, being the only ones pressed.
    
      Messrs. Wilson and Jenks for plaintiff in error
    argued that the right to defeat a tax sale by showing there was personal property on the premises was not a common law right, but given by statute, and the Legislature may impose the terms on which the right is exercised; and the Act of April 17, 1866, P. Laws 961, should not be considered unconstitutional; Van Swartow vs. Commonwealth, 24 Pa. 131; Murray vs. Hoboken Land Co., 18 Howard 272; McMasters vs. Commonwealth, 3 Watts 292; Sharpless vs. Mayor, 21 Pa. 147; Schenly vs. City of Allegheny, 25 Pa. 130; Kirby vs. Shaw, 19 Pa. 258.
    Guthrie would have been estopped from showing that there was personal property on tract 119; Commonwealth vs. Moltz, 10 Pa. 527; and also those holding in privity with him; Freeman vs. Caldwell, 10 Watts 9; and Recks would be in privity with him; Bouvier’s Law Dictionary 384.
    
      Messrs. Boggs and Weidner and W. L. Corbett, Esqs. contra,
    
    argued that the Act of April 17, 1866, is unconstitutional; Marsh vs. Nelson, 12 W. N. C. 214. They also cited Erie vs. Bootz, 72 Penna 196; East Union Township vs. Ryan, 86 Pa. 459; Esterly’s Appeal, 54 Pa. 192; Laird vs. Heister, 24 Penna. 463; Breisch vs. Coxe, 81 Pa. 336; Hathaway vs. Elsbre, 54 Pa. 498; Wilson vs. Watterson, 4 Pa. 214; DeChastallux vs. Fairchild, 15 Pa. 20; Shoenberger vs. School Directors, 32 Pa. 34; Menges vs. Dentler, 33 Pa. 495; Bagg’s Appeal, 43 Pa. 512; Ervine’s Appeal, 16 Pa. 236; Haines’s Appeal, 73 Pa, 169.
   The Supreme Court affirmed the judgment of the Common Pleas on December 11th, 1882, in the following opinion:

Per Curiam.

We affirm this judgment upon the authority of Marsh vs. Nelson, 12 W. N. C. 214.

Judgment affirmed.  