
    [Sunbury,
    June 20, 1825.]
    ERWIN against HELM.
    IN ERROR.
    IF a tract of unseated land descends to several heirs, some of whom sell their interest, and there is a tenant in possession under some of the vendees, no part of the land can be sold as unseated.
    A sale of part of a tract of unseated land for taxes, under the act of assembly of the 13th of April, 1804, by the mere description of so many acres, would be void for uncertainty: but if it be of so many acres on a particular side or to be taken out of a particular portion it might be made good by a subsequent survey.
    Writ of error to the Court of Common Pleas of Bradford county, in which court a verdict and judgment were rendered in favour of the defendant.
    It was an ejectment brought by Andrew Erwin against Cornelius Helm,, .to recover one hundred and sixty-nine acres of land situate in Athens township, in said county, part of warrant No. 523, for two hundred and twenty-five acres, surveyed to Arthur Erwin, deceased. The plaintiff claimed title by virtue of a deed from Henry Murcur, treasurer of Bradford county, dated June 14th 1820, under the act of 13th of March, 1815, directing the mode of selling unseated lands for taxes, and the defendant held under persons claiming title, some as the heirs, and others as purchasers from the heirs of Arthur Erwin. The case was, that the land for which this ejectment was brought, was part of a large lot .which belonged to the heirs of Arthur Erwin, who were eleven jn number, each owning an undivided equal share. Four or fivb of them conveyed their shares to persons residing in the township, and some if not all of these grantees had made improvements on the lot, and had for many years previous to the assessments, either resided on it in person, or had a tenant in possession. At the time of the assessment one Van Gordon lived on the tractNo. 533, under some of these resident owners of undivided shares, and objected to being assessed for more than fifty-six acres which he claimed as the extent of his possession, and accordingly the residue, amounting to one hundred and sixty-nine acres and including nearly all the woodland, was assessed and sold by the treasurer by the deed above mentioned as unseated land. The return by the commissioners to the treasurer was as follows: (< Road taxes 1818; part of warrant No. 523, one hundred and sixty-nine acres, name of Anther Erwin: valuation two hundred and fifty-three dollars and fifty cents, taxes one dollar twenty-seven cents,” and the deed from the treasurer recited that a tract of unseated land containing one hundred and sixty-nine acres situate in the township of Athens and county of Bradford, surveyed to Arthur Erwin, No. 523, had been l'ated apd assessed with divers taxes, to wit, county taxes and road taxes one dollar and twenty-seven cents, which remained due and unpaid for the space of one year, before the 2d Monday of June, 1820, and the sale’bf the same by the treasurer to Andrew Erwin, and in consideration of four dollars and eighty-nine cents granted and conveyed to the said Andrew Erwin, his heirs and assigns, the aforesaid tract of unsealed land with the appurtenances, &e.
    The court below, in answer to certain points proposed by the plaintiff, charged the jury as follows:
    Charge. The object of this statute, as well as all others made for the sale of lands for which taxes have not been paid, was to enforce the payment of taxes and to prevent the public from being defrauded of their revenue. But where a tract of land has a settler on it, if a tenant, he is liable for the payment of taxes, and may deduct it out of the rent due his landlord. It would also seem, that the legislature conceived by their passing the act of the 20th of March, 1812, for relief of certain settlers who had contracted for land north and west of the rivers Ohio, Alleghany and Conewango creek, and whose lands were not run off to them, after their claim had been ascertained, to proceed and sell the residue of the tract as unseated land, that the settlers were liable for the taxes on the whole land, before that time, and that a special law was necessary to relieve them, and to enable the treasurer to sell the balance of the tract, as unseated land.
    And in this case, if one of the claimants had gone on the warrant of two hundred and twenty-five acres, and cleared thirty or forty acres, built a house, and resided on it, the possession would have extended to the boundaries of the warrant, and if settled by tenant and the same improvements made, it would not alter the ease — and if as alleged, the improvements were made on this warrant, by some of the defendants, before they had any interest in the title, yet after they had purchased and let the land to a tenant, as the landlord had an undivided- interest in the whole warrant, the possession would extend as far as the title of the landlord; and if there were thirty or forty acres cleared on this land, a tenant residing on it, when the assessment was made, and when the taxes were due, the tract was not unseated, but was seated land; and as this statute only provides for the sale of unseated land for taxes, the proceedings and sale were illegal and void, and the plaintiff cannot recover.
    2. The want of mere description in the deed would not of itself be a sufficient objection to the plaintiffs recovering. If -the ejectment is brought for one hundred and sixty-nine acres at some one corner or known boundary, the plaintiff might give possession but if there be, as is alleged, fifty-six acres of improved land, on which the taxes were paid, within the description of the writ of ejectment, for that reason the plaintiff could not recover.
    To this charge the plaintiff excepted.
    
      Kenney and Mallory, for the plaintiff in error.
    1. We complain that the court charged that a tenant of fifty-six acres might be charged with the taxes for the wholp tract, and that the whole tract should be considered as seated. The tenant is liable for no more than the taxes on the part leased by him. It is unjust that he should be liable for more; such a construction will defeat the collection of taxes: since this will be the result if a poor tenant of a few acres protects a large tract. The judge therefore erred in his construction of the act of the 20th of March, 1812, which he says is a legislative opinion that the tenant of part of a tract is liable for the taxes of the whole. It is agreed that the owner may divest himself of part by a sale, then why not by a lease? They referred to Journ. House of Rep. 1811, p. 12, 13. Act of 3d of April, 1804, sec. 6, Pur. Dig. 637, 638. Act of 6th of the April, 1802, Purd. Dig. 589. Act of the 20th March, 1812, Purd, Dig. 639. Act of the 3d March, 1815, Purd. Dig. 640. The court should have told the jury expressly what the law was in rase the tenant leased but part of a tract: but from what was said the jury were led to believe that it made no difference whether the lease was of part or the whole.
    2. There were two errors here, first, as to coveying one hundred and sixty-nine acres without reference to place. It is the practice to return part of a tract, (so many acres) unseated without further description. The treasurer advertises and sells under the same description. Second, the court charged that if there were fifty acres of improved land for which taxes were paid within the plaintiff’s lands, as described in this ejectment, he could not recover.
    
      
      Wittiston, contra.
    1. In this case one hundred and sixty-nine acres part of a tract of 225 acres were returned as unseated land, and sold as such to the plaintiff. There were thirty or forty acres of cleared bottom land on the same tract, held under the owners of the whole tract. The assessor knew well enough it was a seated tract, but fell upon this plan to get taxes from the Erwins, who were non-residents. Land is as much seated by the occupation of part by a tenant, as if the owner himself lived on it and cultivated a small part. I grant that if part is sold, that is severed from the rest, and that may be seated and the rest unseated. But I contend that if a family resides on the tract, whether holding under the owner or not the tract is seated.
    
      2. We say the deed for one hundred and sixty-nine aeres with no boundaries is void. The judge did not say that if the plaintiff proved title to only part of the land demanded, he could not recover. Helm the defendant is the tenant who occupied the improved land. But even supposing the judge was wrong in the last opinion, yet if he was right that the deed was void, that is enough to bar the plaintiffs recovery. A conveyance by the sheriff of all the defendant’s lands in the Hardenburg patent is void. 13 Johns. 97. 11 Johns. 365, 373. 1 Johns. Cas. 384.
   The opinion of the court was delivered by

Gibson, J.

The predominant principle of our system of county rates is to tax the person of the owner in respect of his property, and the process to inforce payment of a tax assessed on the owner of land, is against his person and chattels. It was supposed that his personal responsibility or that of his tenant found in possession would be adequate to the demand of the public. To this however, unseated land is necessarily an exception. The owners of this species of property seldom if ever reside in the county, and as they offer no personal responsibility, the land itself is" made debtor, and the process of recovery is directly against the thing. Accordingly, to give the greater facility to the measures of the assessing officers, it is made the duty of the deputy surveyor of the district, to make return to the county commissioners of all the surveys made by him or his predecessors, and of all warrants and orders of surveys in his hands which have not been executed, together with the names of the original warrantees, &c. Hence is perceptible an intention of the legislature to subject each original tract to assessment as a whole ; for if a settler were on any part of it, it could with no propriety be said to be unseated. To this I know of but two exceptions; and these are the same in principle. If a part be conveyed to a person who resides on it, the remainder may be assessed and sold as unseated: so if joint tenants or tenants in common make partition and only one of the purparts be seated. And the reason is that where the possession as well ás the estates of the owners is distinct, the tenant in possession can in no event be liable in respect of more than he actually holds. But if the owner lease a part of the tract; or if one joint tenant or tenant in common enter without having made partition, such tenant would as respects the public be taken to be in possession of the whole, and would therefore be personally liable in respect of the whole: consequently there would be no reason why the assessors should be at liberty to consider any part as unseated; As they would have nothing to do with the terms of the lease of a part of the tract, or with the interests of joint owners not in possession, it would be their business to assess the whole as the property of the owner or person residing on the land. The tenant is liable for the whole tax and may either recover it from the landlord or deduct it from the rent. Then how was the case here ? The land in dispute is part of a lot which belonged to the heirs of the late Colonel Jirllmr Enoin, who were eleven in number: so that each of them owned an undivided eleventh part of the whole. Four or five of these heirs conveyed their respective parts to persons residing in the township, some if not all of whom had made improvements on the lot, and had for many years previous to the assessment either resided, on it in person or had a tenant in possion. Van Gorden who then resided on it under some of these resident owners of undivided shares, objected against being assessed for more than fifty-six acres, which he claimed as the extent of his possession ; and accordingly the residue, amounting to one hundred and sixty-nine acres and including nearly all the woodland, was assessed and afterwards sold as unseated land. The whole ought to have been taxed as the property of the owners, and Van Gorden or whoever else was found in possession would have been liable. The assessment of this lot as unseated land was therefore void, and in this part of the opinion of the court there is no error.

But the conveyance to the plaintiff is of one hundred and sixty-nine .acres; and as this part had not been set off by any definite boundary from that part of the lot which the assessors considered to be seated, the court was requested to direct the jury that the conveyance was void for uncertainty. The court charged that want of mere description in the deed would not present an insurmountable barrier ■ to a recovery, and that if the ejectment were brought for the specific number of acres, at some particular corner of known boundary it would be sufficiently certain to enable the sheriff to deliver possession: but if, as alleged the description included the improved land on which the taxes had been paid, that circumstance alone would be a bar. I see no cause of quarrel by .the plaintiff, with this direction. By the act of the 13th of tdpril, 1804, the commissioners are empowered to sell the whole or suck part as may be sufficient to pay the taxes due on the tract. But it has been held that a conveyance of a part of a tract by the designation of so many acres sold for taxes, due on the whole, -without further designation, is void for uncertainty Adams’ (New Hampshire) Reports, 93. Such a conveyance by the owner would undoubtedly be good; for the quantity being certain, the locality of the subject of the grant might be reduced to certainty by the election of the grantee. But in this respect there is a wide difference between the conveyance of the owner and the conveyance of an officer who is merely an instrument to pass the title. The owner may sell on his own terms, and may grant any right of election which he thinks proper. But power to grant such a right is not given to the commissioners or to the officer who is to execute the conveyance ; and it is not only unnecessary to the objects to be effected by a sale, but would be destructive of the interests of the owner if it were. The purchaser for instance, by locating the grant so as to include a mine or a water power, might render the residue of no value, and thus produce a sacrifice of the property. The power to sell a part, was introduced into the provisions of the act for the benefit of the owner; but a power to sell-a part with the right of election as. to the location of it, would be ruinous to him ; and I am therefore of opinion that no such power was intended. It would be better for him that the whole tract should be sold. I do not mean to say that the part conveyed must be described by metes and bounds. A conveyance of a certain number of acres to be taken out of a particular part, or to be laid off a particular side of the tract, might be reduced to certainty by a survey afterwards; and such a description would be good in a declaration in ejectment. But in this respect the case before us is different from that which I have been considering. It is not the case of a sale of part of the land assessed, for taxes which were due on the whole; but the case of a sale of all that was assessed. The root of the defect in the plaintiff’s title, is in the assessment and sale of a particular number of acres as a separate and distinct part of the original lot, when it was not so in fact. But were we to admit that the proper officers had a right to sell this undivided interest as if it were unseated, and that the purchaser might attach his conveyance to a particular part, still I am far from admitting that he could recover without having first actually made his election, and without describing the land in his statement or writ as he had thus reduced it to certainty. - The bringing of an ejectment for so many acres without further description would not be an election ; for that would leave the matter quite as uncertain as before and the sheriff would not know of what to give possession. I am therefore of opinion the court was right in directing the jury that if the description were equally applicable to every part of the lot, the plaintiff could not recover.

Judgment affirmed.  