The opinion of the Court was delivered by
Gibson, C. J.
In Stokely v. Boner, 10 Serg. Rawle 254, it was determined, that untenanted land from which profits have not been drawn, may be taxed as unseated ; but that where profits continue to be drawn, the public must look to the person of the owner. It was doubted, however, whether the owner may not abandon the possession and the land together, and thus exonerate himself from personal liability. If he could not, his case would be a' hard one ; for such a liability might descend on him without his consent, and without a correspondent benefit from his ancestor, which is indispensable to a personal charge at the common law. It would therefore seem unreasonable to impute to the legislature an intent to prevent him from surrendering to the public a worthless property in discharge of its own burthen. But though it seems pretty clear he may do this, the surrender must be entire, unlimited in duration, and evinced by acts that leave no doubt of the intention. What is the evidence of it here ? It¿s, that the executors of Jack recovered in ejectment from the tenants of their testator, in the latter part of September ; and that the tenants left the place a few days afterwards in a state of dilapi*126dation, it is true, but with a house and barn on the premises, and with seventy acres cleared, six or seven of which were in rye; that it remained in this state till the February following ; and that it was assessed as unseated in the interval. It requires but a statement of these facts to show that there was but an accidental and temporary suspension of the actual occupancy, which, if it were allowed to reduce the premises to the condition of an unseated tract, would also subject a house in Philadelphia, locked up during a summer excursion of the inmates, to assessment and sale as unseated. The argument on the other side is, that the legislature meant to subject the land itself to satisfaction in all cases whatever where satisfaction might not be had on the premises from person or property. In Burd v. Ramsay, 9 Serg. & Rawle 114, it was thought, however, that the legislature anticipated the occurrence of exceptions which were deemed too unfrequent and unimportant to merit particular provision. There are innumerable instances of lots inclosed for pasturage, or to prevent them from becoming a common, for which, though assessed as seated, the taxes have been received regularly and without difficulty. There may, on the other hand, be an instance or two in a thousand, of loss for want of chattels to answer a distress ; but it is better that these insignificant losses should be borne, than that proprietors should be harassed, and litigation promoted, by vexatious sales of their property, perhaps by no default of their own. It would present a different consideration if the public loss from this cause were severe; but it is fair to compute it at the fraction of a mill in the dollar. The provision for selling unseated lands, was intended mainly for those that were suffered to remain in their natural state ; and it is sufficient to extend it to those that have been suffered to fall back to it. The direction prayed for was therefore properly refused; and as there was apparently no fact in dispute, it was equally proper to direct, as the law of tire case, that the plaintiff ought to recover.
Judgment affirmed.