Mr. Justice Trunkey
delivered the opinion of the court,
This action is for recovery of a tract of land containing one hundred and ten acres, granted by one patent dated May 11th 1854, on two warrants and surveys, the first dated in 1852 and the second in 1853. Since 1854 the land has been assessed as one tract, unseated, and the taxes have been paid by the plaintiff and those under whom he claims.
In 1829 a patent was granted to Hugh Bellas for a tract of one hundred and eighty acres on a warrant and survey in name of Jacob Bright, dated in the same year, which includes part of the land embraced in the plaintiff’s title. This tract was assessed as unseated till 1844, when it was dropped from the assessments. By the pleadings it is' asserted and admitted that the defendant is in actual possession of the whole tract covered by the description in the writ, and the trial, verdict and judgment were on that basis. If it be a fiction, the parties so conducted the cause that the record stands as if it were a reality.
To defeat the prima facie title shown by the plaintiff, the defendant proved the outstanding title in Hugh Bellas for about twenty-*77one acres of the land. It was admitted that Bellas is dead and that he left living descendants. Under the evidence there could be no question of the validity of the title vested in the heirs of Bellas, and the court so held ; but refused to instruct the jury that their “ verdict must exclude so much of the land embraced in the writ of ejectment in this case as is covered by the Jacob Bright survey,” and on the ground that the defendant was a mere intruder, ruled that the “ outstanding title must be a valid subsisting title, not one abandoned, derelict or barred by the Statute of Limitations,” and directed a verdict for the plaintiff. In support of his instruction, the learned judge referred to the cases of Foust v. Ross, 1 W. & S. 501; Hunter v. Cochran, 3 Barr 105; Riland v. Eckert, 11 Harris 215, and McBarron et al. v. Gilbert et al., 6 Wright 268. The scope of the decision in Foust v. Ross is, that when land has been assessed, sold for taxes and deed duly executed by the proper officer, and the taxes subsequently paid by the holder of the tax title for more than twenty-one years, he has such title as enables him to recover against a mere intruder who will not be permitted to insist on irregularities which the former owner may be presumed to have waived by his abandonment. A man may be presumed to have waived irregularities in a tax sale or judicial sale, or in other words, to have abandoned his right to the purchaser after long lapse of time, as is fully explained in Bunting v. Young, 5 W. & S. 188. In Hunter v. Cochran, a purchaser at a tax sale attempted to hold land on which the taxes had been paid, and he failed. Biland v. Eckert enforces like principle, as applied in Foust v. Boss. The land was sold on execution upon a judgment against the administrators without notice to the heirs of the decedent, and it was held the title was good against all persons except the heirs, and after twenty-one years the defendant would not be permitted-to set up a defence, the heirs could waive. In McBarron et al. v. Gilbert et al., the facts were as follows: The land in suit, as settled by the verdict, was included in chamber surveys on the Mertz and Flowers warrants which were returned in 1784. In 1794 actual surveys were made on the Morris warrants and patents issued, and these overran the land embraced in the Mertz and Flowers surveys. The title of the defendants originated in 1815, more than thirty years after the return of the surveys on the Mertz and Flowers warrants. Sixty-five years had elapsed from the date of the Morris surveys, and no owner of that title had ever asserted it, and the defendants had no connection with it. It was held that after twenty-one years the law treats all surveys duly returned into the land-office as actual surveys ; that before the warrants issued under which the defendants claimed, time had ripened the presumption which started with the return of the Mertz and Flowers surveys, which could not be impaired by the defendants showing that at some former day the Morris title was outstanding; *78and that under the circumstances the Morris title must be treated as null. In -fact, the title of the plaintiff was on the .oldest warrants and surveys and perfect as against the title of defendants, and the alleged outstanding junior title was a nullity.
An abandoned title is not transferred to an adverse claimant or person who first seizes the land, but it falls back to'the state, and by its extinction sometimes makes a younger and conflicting title good. The doctrine of abandonment does not apply to a perfect title but only to imperfect .titles. In favor of a junior warrant or settlement right after long lapse of time, an imperfect title by warrant and survey may be presumed to be abandoned. But such presumption cannot be made of a perfect title; that is never reinvested in the state on such principle. After the land has been located and patented, it will not fall back because it is a derelict nor for the owner’s neglect to pay the taxes: Hoffman v. Bell, 11 P. F. Smith 444. A stranger will not acquire title by payment of taxes on unoccupied land. Actual possession is necessary to acquire title under the Statute of Limitations. The presumption arising from the owner’s neglect to exercise every act of ownership, often called abandonment, of his waiver of irregularities in sales of land for taxes or on judicial process, is a very different thing from the statutory title by adverse and continuous possession. In case of conflicting titles, the older and better will not be lost by reason of the Statute of Limitations, nor presumption of waiver upon the mere payment of taxes .by the holder of the younger title.
The general rule is that the plaintiff in ejectment must recover on the strength of his own title, and when an outstanding title better than his own is shown, he must fail to recover. There are exceptions to the rule, but we are of opinion that the facts of this case do not take it out, and that the defendant’s first, third and fourth points should have been affirmed.
Judgment reversed, and venire facias de novo awarded.