The opinion of the court was delivered by
Bell, J.
— It is essential to the validity of every tax sale of lands that the subject of it should be assessed and returned, by some competent authority, as unseated, or, where it has been rated as a seated tract or lot, that it be transferred to the unseated list, by the commissioners of the county, or their authorized agents, with notice to the owner, if that be possible. This is the doctrine of all the cases in which the subject has been treated. They settle, indisputably, that an omission, in this particular, is uncured by the act of 1815, which applies only to irregularities in the proceeding. It is the assessment, says Larimer v. McCall, 4 W. 35; S. C. 4 W. Ser. 133, “ which confers the power to sell in the same manner as a judgment on which an execution is issued. Without this, there is no authority to divest the title of the owner, and if a tract be returned as seated, it cannot be sold for taxes.” To the same effect are the other adjudications, down to Milliken v. Benedict, 8 Barr 169. These also deny the right of a collector, or other officer, except the commissioners of the county, to transfer land from the seated to the unseated list after the assessor has made his return, and emphatically point out the injustice which otherwise might be *410inflicted on owners, who, resting upon the return of their property as seated, and therefore not liable to sale, are entitled to await the visit of a collector, or, at least, notice that public convenience has dictated a change in the manner of assessment. Ordinary propriety exacts this where the lands assessed remain the property of the same individual, but its stringency is much enhanced where a tract assessed as seated is purchased by a stranger after the assessment. Upon this point it was observed in Owens v. Vanhook, 3 Watts 260, that “ while the same person continues owner of the land, it may be less material whether it is taxed as seated or unseated, or that it be transferred from one list to the other; but to a purchaser, it may be most material; if taxed as unseated lands, he can discover that by application to the treasurer, and retain the amount out of his purchase-money to meet the lien; if not in the list of unseated lands, the taxes, though unpaid, are no lion. To change property from the seated to the unseated list, after a purchaser had paid his money, would be then most unjust as respects him.” In that case, it was proved the lot sold was vacant and unimproved at the time of the assessment, and that the proper collector had so returned it, as a reason why he could not collect the tax. But it did not appear the commissioners had acted on this return, or exonerated the collector from liability for any part of the taxes charged in his duplicate. And it was determined the sale was void for want of authority. The conclusion was put on the express ground that the commissioners cannot change land from the seated to the unseated list, so as to affect an honest purchaser, nor can they sell as unseated, property taxed as seated and never transferred to the unseated list. I am aware that in Frick v. Sterrett, 4 W. & Ser. 269, decided at the same time with Larimer v. McCall, it was held that a town-lot, situate in a county where a practice had obtained of assessing seated and unseated lands without discriminating between them, was well sold as vacant. But there the collector had returned it as vacant, and, as a consequence, claimed to be exonerated from the collection of the tax imposed on it, which exoneration was conceded by the commissioners, and the lot thereupon transferred to the unseated book kept in the treasurer’s office, according to a general usage. The records of the commissioners’ office had been destroyed by fire. Under these circumstances, it was thought fair to infer that the commissioners had transferred the property to the unseated list before the sale. The decision proceeded upon the assumed action of the commissioners, the only persons authorized to interfere, based on the exoneration of the collector and the proved practice of the office; and, as the question of notice was not raised, it is in harmony with the preceding adjudications. Indeed, it would be scarce respectful to suppose it -was intended to conflict with Larimer v. McCall, just before determined for the third time.
*411The governing rule, ascertained by these precedents, is, I think, decisive of the present controversy. The land, here in question, was assessed and returned as a seated lot in the year 1834, and preceding years. Throughout the county of Schuylkill generally, it was usual 'to distinguish, in the assessor’s returns, between improved and vacant lands, the latter being designated by the term “non-residentor.” But up to 1841, it was not customary to return as unseated any of the lots situate in the borough of Potts-ville. If we may judge from the return before us, made in 1834, and the foundation of this difficulty, seated and unseated land was not simply confounded, but every species of property was treated as being represented by some responsible individual as owner, who was to be looked to for the taxes. Thus we find the lot in question returned as belonging to Thomas Ashburner, of Philadelphia, in a long list of taxable items, consisting of houses, stores, shops, occupations of single freemen, and other lots. There cannot, therefore, be the least pretence for the position that an intent was entertained by the assessing officers to return this property as unseated. Every thing indicates a contrary intention, in consonance with the prevailing practice. As seated property it was inserted in the collector’s duplicate, and, in 1835, he returned it to the commissioners as representing unpaid tax, in a list consisting of assessed persons who were dead, or had left the county, and of some other lots. But it is somewhat remarkable, that though each of the latter is noted in the return as being vacant, there is no such intimation as to the lot owned by “ Thos. Ashbury, Philadelphia.” No action upon this return appears to have been had by the county commissioners, and we hear nothing more on the subject until February, 1836, when, with other lots, it appears to have been entered as Thomas Ashbury’s, in a book kept by the county treasurer, containing entries of unseated lands. These entries, it is said, were taken from the collector’s returns to the commissioners, but it does not appear the latter authorized them or knew any thing of them. It is not even shown they exonerated the collector from liability for these taxes returned as uncollected. The attempted transfer from the seated to the unseated list was consequently made without authority, for it is almost needless to observe the county treasurer, of himself, is as powerless to effect such a change as the supervisor and assessor were determined to be in Larimer v. McCall, and Milliken v. Benedict. But in November, 1835, and, therefore, prior to the interference of the treasurer, Ashburner had conveyed the property in suit to the plaintiff, for a valuable consideration, and who, it must be presumed, was aware that the lot had been treated as seated by the county authorities. The case thus falls directly under the principles settled in Owens v. Vanhook, which protect an innocent purchaser from even the interference of the commissioners themselves, without notice. It is an *412instance of an attempt to deprive of his property one who, it must be supposed, relied in good faith upon what the public officers had done and sanctioned in 1834, and to put it in the strongest position for the defendant, sought to undo, without notice to him, in 1836, just four months before the sale. This would be the aspect worn by the case had it been shown the commissioners authorized the transfer to the unseated list. But this feature is wanting, and the defendant is, consequently, compelled to meet the additional objection of want of authority. Thus regarded, the treasurer’s sale is obnoxious to two exceptions, each of which has been held as fatal by this court. Indeed, the whole proceeding seems to have been conducted with such utter disregard to even the decencies of form and contempt of every thing like certainty, that the most zealous advocate of the curative qualities of the act of 1815, would be more than puzzled in attempting to sustain it. The two distinct lots assessed in 1834 as the property of Thomas Ashburner, and particularly described by the assessor, are returned by the collector, in the succeeding year, as one lot, owned by “Thomas Ash bury” and it is so entered in what has been called the unseated land book, kept by the treasurer. But in the treasurer’s sales book it is stated that in June, 1836, he sold to the commissioners two lots of Thomas As burn for a tax of 80 cents; while the latter officers acknowledge, by the entry made in their book, the purchase of but one lot of ground, sold in the name of Thomas Ashburn, which lot, it is stated, they sold to Robert Woodside, in February, 1843. The deed, too, made by the commissioners to Woodside, is for a single lot, formerly owned by Thomas Ashburn. It is easy to get over the alteration of the name from Ashburner to Ashburn and Ashbury, as a clerical error, and under the doctrine that an erroneous designation of the owner will not vitiate a tax sale. But the uncertainty as to the subject of the sale presents 'greater difficulty. Did the commissioners purchase both lots, or only one ? If both, sold as one, it is conceded the sale is void. If they bought but one, which of them ? If both, which of them did they afterwards sell to Woodside? for it is certain he bought but one. Upon this point the eommissionrs’ deed is silent. Were we confined to the official entries and the conveyance, I should be inclined to say they leave us in such doubt and uncertainty as to the answers proper to be returned to these questions, that it would be impossible to establish a title in the defendant. But the particular lot bought and sold may be designated by evidence aliunde; and if the purchaser, soon after the sale, took possession of one of the Ashburner lots, and afterwards treated it as his own, a jury might be satisfied that this was the property purchased. The court, in its answer to the plaintiff’s fourth point, speaks of such a possession by Woodside, but there is no evidence of it upon the paper-books furnished us. To say the least, such proof is cer*413tainly necessary to relieve the uncertainty suggested by the documentary evidence.
The answer returned to the sixth point is correct, upon the assumption that the lot returned by the collector in 1835, and registered by the treasurer in 1836 as vacant, was one of those assessed as Thomas Ashburner’s in 1834, and sold to defendant in 1836. But whether this be so, is an inquiry for the jury, under all the evidence. The objection is that the court seems to have taken it for granted.
What has been said covers, and, perhaps, disposes of the whole case. Certainly so upon*the evidence as now presented. The defendant may, possibly, make out a better case on a second trial.
Judgment reversed and a venire facias de novo awarded.