Opinion by
This case presents an interesting question. It is raised on the following facts : In 1859 a patent issued out of the land office to C. Heydrick and J. L. Hanna for a tract of land containing four hundred and forty acres, twenty-seven perches, and an allowance of six per cent. They made an amicable partition by deed allotting the eastern half of the tract to Hanna and the western half to Heydrick. The division line was not actually run, but the deed provided that it should be run parallel to the east line of the tract, and at such a distance therefrom as to make an equal division of the land.
On the 6th of December, 1859, Hanna sold two hundred acres to McBride, described in such manner as to leave the unsold part of his land at the south end. McBride conveyed the same two hundred acres to Knapp. On the 10th of December, 1859, Knapp mortgaged 66| acres to Clark and Andrews describing it as within the Heydrick and Hanna tract, and extending across or nearly across the south end of the allotment to Hanna. In point of fact all but 16J- acres of the land covered by the mortgage was south of Knapp’s south line; and his mortgage was inoperative as to so much of the land it professed to cover. In 1863, proceedings were had on the mortgage resulting in a sale by the sheriff of the mortgaged premises to Gilfillan. In 1864, Gilfillan sold to Marston, whose title is now held by the plaintiff.
In July, 1860, six months after the mortgage to Clark and Andrews was recorded, Knapp made another mortgage payable to McBride, covering his land down to his south line. This was, as to the land now in controversy, a second mortgage; and the sale upon the first divested the lien of the second, and passed a good title to the purchaser. The second mortgage therefore cuts no figure in this case.
The situation on the ground is shown by the diagram on the next page: The external lines show the Hanna tract. The
In that case however it was the same tract, which was sold by the same description at both sales. The first sale was to the county commissioners for a tract of land in Hazel township, formerly Sugar Loaf, in the warrantee name of John Kunkle, containing four hundred and ten acres. Four years later the same tract was sold by the same description, at treasurer’s sale, for taxes assessed subsequently to the first sale. The point decided is stated in the syllabus to be that, as the land had not been redeemed from the first sale when the second was made, the title of the county vested in the purchaser “if it were the same land that was sold at the two sales.”
In this case we have two lots returned, actually owned by different persons, and having nothing in common so far as the returns would indicate. One was described as containing 66 acres, and assessed as seated, against Marston, owner. The other described as containing 150 acres, seated land, assessed against Egbert and others as owners. Both lots were on the ground. Each was bound for the taxes assessed against it, and liable to sale for its own proper charge, only. The true question for the jury therefore was not whether the description in the mortgage given by Knapp to McBride would inclose the
The defendant exhibited no title whatever and the jury should have been instructed to find for the plaintiff.
The judgment is now reversed and a venire facias de novo awarded.