
    [Pittsburg,
    September 12, 1826.]
    THOMPSON against BRACKENRIDGE and others.
    IN ERROR.
    Sales of unseated lands for taxes, in the counties of Beaver and Butler, under the act of the 26th of February, 1817, are subject to the provisions of the act of the 13th of March, 1815: consequently, the omission of notice, required by the act of 1817, does not vitiate the sale.
    This was an ejectment brought by Samuel Thompson, the plaintiff in error, against Allen Brackenridge and others, in the Court of Common Pleas of Butler county, to recover a tract of land, to which the plaintiff claimed title under a treasurer’s sale for taxes.
    
      After other testimony, the plaintiff offered in evidence the deed ®f the treasurer of Butler county to John Brown for the land in question, and the bond given by the purchaser for the surplus money. The defendant’s counsel objected to the evidence, because the plaintiff had not proved the notice required by the special act of assembly, passed the 36th of February, 1817, authorizing the sale of unseated lands in Butler county for taxes, under which the sale in question was made. The court rejected tbe evidence, and an exception was taken to their opinion.
    The plaintiff then offered in evidence certain newspapers printed in Pittsburg and Philadelphia, (there having been no newspaper printed in the county of Butler at the time prescribed by the act of assembly for the publication of notice,) in which notice of the treasurer’s sale of lands in Butler county was published. This notice described the land in question as lying in Slippery Creek, instead of Slippery Rock township, there, being no such township as Slippery Creek in the county. This evidence was objected to by the counsel for the defendant, and the court sustained the objection; upon which a bill of exceptions was tendered to their opinion.
    
      Ayres and Bankes, for the plaintiff in error.
    1. The treasurer’s deed and the purchaser’s surplus bond ought to have been admitted in evidence, without proof that'notice had been given, agreeably to the provisions of the act of the 36lh of February, 1817,-under which the sale was made. The second section of that act, by enacting that the sales shall be in the manner, and. under the regulations of the act of the 13th of March, 1815, introduces all the provisions of the act of 1815, which debars the owner of the land sold from taking advantage of the want of notiee. The treasurer is-liable to a penalty of fifty dollars, if he omits to give notiee, but the omission does not vitiate the sale. This is a material regulation of the act of 1817, which, by general words used in the act of 1817, is incorporated into that act.
    , 3., The reason for rejecting the newspapers was, that the land was described as lying in the wrong township. This was a mere typographical error, which should not have prevented the evidence from going to the jury. In other respects, it was accurately described as lying in the second Donation District, Butler county, No. 401. But if this irregularity was material, it is cured by the act of 1S15, by the provisions of which, sales under the act of 1817 were regulated.
    
      Breedin and Baldwin, for the defendants in error.
    1. The act of 1817 was a special law, authorizing the treasurers of Beaver and. Butler counties to sell lands for taxes at an unusual time, viz. in August, 1817. By this act, notice is expressly directed to be given, and justice'required that it should be so. The. act of 1S15 dispensed with notice, because the time of sale was fixed by the law, and was uniform through the state. If, however, notice is not given, the treasurer is liable to a penalty of fifty dollars, which is given to the owner of the land sold, to indemnify him for any injury he may have sustained from want of notice. In this respect it differs from the act of 1S17, which inflicts no penalty on the treasurer for the omission of this important duty. The only safeguard of the owner, therefore, is to avoid the sale.
    2. The error, in describing the township, was fatal. Where the title to land is to be divested, the provisions of the law must be strictly complied with. The legislature has directed the name of the township to be inserted in the notice, and therefore it must not be omitted.
   The opinion of the court was delivered by

Gibson, J.

The doubt suggested, is, whether the sales in the counties of Beaver and Butler, by virtue of the act of 1817, are subject to the provisions of the act of 1S15. A decision in the affirmative will conclude the former owner; for-it is clear, and has been so held, that he shall be prohibited from availing himself of any defect in the evidence, except that which may be necessary to show that the land was unseated, that a tax was actually assessed, (however irregularly,) and unpaid at the time of the sale; and that there was not an Offer to redeem within the two years.

Accident had prevented the commencement of sales in these counties, at the biennial period prescribed in the act of 1815, and the exigencies of the public required that sales should be made in the intermediate year; so that the only object of the legislature was to authorize the commissioners to sell a year sooner than they could otherwise have done. Why-should it be thought they intended to deprive the purchaser of the benefit of the act of 1815 ? The argument is, that a special notice of the time of salé is not necessary under that act, because returning periods of sale are fixed at stated intervals, and owners are therefore apprised by the act itself, that their lands will be sold at the regular period, if the taxes are not paid; whereas notice of sales, at at an intermediate and irregular period, would be absolutely necessary, and that this would be a consideration with the legislature to exempt those sales from, the provisions of the former act. But would bidders be apprised of the recurrence of the regular periods of sale under the act of 1S15; and would not owners suffer an injury from want of publication of notice, by a reduction in the price bidden for their lands? Beside, notice is peremptorily directed in all'eases, and certainly for the benefit of the owner; so that the apparent hardship of prohibiting him from setting up the want of it, in respect of sales under either act, is the same in every thing but degree. The evil of the old system (and it was a sore one,) arose from the .neglect of the commissioners, in omitting to perpetuate the proper evidence of the transaction, without which the purchaser was unable to make out his title, although every thing which the Jaw required might, in fact, have been done; the courts proceeding, as they were bound to do, on the maxim de non apparentibus. It was to establish the converse of this, as applicable to sales for taxes, that the provisions peculiar to the act of 1815 were introduced. Then, in the absense of positive words, why should an intention to engraft the old mischief on any part of the new system, be imputed? Such an imputation would be in the face of the policy manifested by the legislature ever since. But the words of the act of 1817 can hardly be thought ambiguous. .The sales were to be •“conducted in the manner, and under all the regulations and restrictions” of the act of 1815. If this were restrained to the sale itself, every irregularity in the preparatory steps would be let in against the title, and all the evils of the old system revived, while the owner would be deprived of- the right of redemption. But, properly speaking, a sale is subject to restriction where the owner is to be concluded, whether it be regular or not, the restriction being of a right which he would otherwise be at liberty to exercise; and thus even the letter of the act may be put out of the way of what was indubitably1- the actual intent of the legislature.

Judgment reversed, and a venire facias de novo awarded.  