The opinion of the court was delivered, May 17th 1873, by
Sharswood, J.
It is certainly true, that under the Acts of the General Assembly, providing for the sales of unseated lands for taxes, the land is the debtor, and is subject to sale without *472regard to the ownership; no matter in whose name it may be assessed: Strauch v. Shoemaker, 1 W. & S. 166. Rut it is also true that these acts, and the decisions of this court in the construction of them, have not neglected to look to the protection of the rights of the owner, so that if he is not in default in the payment of the taxes on the land demanded of him, his title cannot be divested. Hence, proof of the actual payment of the tax avoids the sale. Nay, if the tax be paid, though not by him, it will avail him; for if two men have surveys which interfere with each other, and he whose warrant and survey are junior, pays the tax on all the land included in his survey, and he who has the senior warrant and survey, does not, and the land surveyed to him is sold for taxes, such sale will pass no title to the interference on which the tax has, been paid by the other: Hunter v. Cochran, 3 Barr 105. Hence, also, it is not in the power of the assessors — much less of a mere stranger or trespasser — by the division of an entire tract without his knowledge and consent, to jeopard his title. “The acts relating to the assessment of lands,” says Mr. Justice Agnew, “are plain, and require the assessor to assess and return the lands in his township in single tracts, according to their ownership. He may follow the sale or division of the tract by the owner; but he has no power himself to cut up the property of a single owner and return it in parcels. The acts on the subject are collated by Huston, J., in Morton v. Harris, 9 Watts 326, showing conclusively that the entire process of assessment, from the beginning to the end, contemplates taxation and sale by single tracts, following the title of the owner:” Brown v. Hays, 16 P. F. Smith 235. Where an entire tract is divided and returned without the act or consent of the proprietor, and both parcels are charged with taxes, either by the number of the warrant or the name of the original warrantee or subsequent owner, it is a case of double assessment; for nothing is better settled than that a misstatement of the number of acres contained in a tract will not vitiate a sale of the whole. In Williston v. Colkett, 9 Barr 38, a tract was originally assessed in the name of the warrantee for nine hundred and ninety-nine acres'. During subsequent years the amount was reduced as sales were made. It was finally assessed as two hundred acres, when in fact it contained six hundred. A treasurer’s sale, made under such an assessment, was held to pass the title to the whole six hundred. Brown v. Hays, already cited, is a remarkable illustration of the same doctrine. There was an assessment of a tract of one thousand and twenty-six acres by the original number of the warrant, and the name of the warrantee in Polk township, Jefferson county. By the division of the township, a part of it was thrown into a new township, named Heath, and there separately assessed as three hundred acres. The taxes on the entire tract in Polk township, though assessed as only seven hun*473dred and twenty-six acres, were paid by the owner. It was held that the purchaser, at a tax sale of the three hundred acres assessed in Heath township, took no title. “ The number of acres,” says Mr. Justice Agnew, “ is simply descriptive, and would not overturn the number of the tract, the name of the warrantee, and the duty of the assessor.” It seems to follow logically from these premises, that the return and assessment of warrant No. 4896, in this case, without the knowledge and consent of the owner to such division, was wholly without warrant of law. The tract was assessed at first in the name of Wilhelm Willink, for nine hundred and ninety acres. From 1826, it appears on the book in two parcels ; one of one hundred and. fifty acres, in the name of Joel Woodworth, and the other of five hundred and fifty-nine, in the name of Gilliam D’emorest. Demorest paid the taxes for 1826-7-8. In 1829 and 1830, it was assessed in the name of Alexander Boyd. In 1832 the treasurer sold it to the commissioners of the county for unpaid taxes of 1830 and 1831, and a deed was duly made to to them for the said tract as five hundred and fifty-nine acres. The entire tract, including both parcels, was omitted from the assessment list from 1832 until 1838, that is, during the period of time that the title was in the county. The cases cited, I think, show that the commissioners, by the treasurer’s deed, acquired title to the whole tract No. 4896. They so considered, and when in 1838 they sold to Josiah W. Smith, they conveyed to him by metes and bounds the entire tract, as it was claimed by the owner. It was less, indeed, than the amount returned in the original survey, because there were older warrants and surveys, which cut off a part of it by interference. Hence, the deed to Josiah W. Smith, after describing the land by metes and bounds, recites it as “ being part of a larger tract of land which was surveyed July 18th 1794, in pursuance of a warrant dated 3d February 1794, granted to Wilhelm Willink and others, and known by No. 4896, containing nine hundred and ninety acres.” There is certainly nothing in this recital which limits the previous description of the land. Subsequent to 1838, Smith and his assigns paid the taxes on the whole tract as five hundred and fifty-nine acres, including the taxes of 1850 and 1851, for non-payment of which the parcel assessed as one hundred'and fifty acres was sold to Luce, under whom the plaintiff below claimed. Upon this evidence, the instruction of the learned judge to the jury was right. “ If you believe that Woodworth had the boundaries of his claim of one hundred and fifty acres actually marked on the ground, and returned to the assessor as his land, with the knowledge of the real owner, a sale of it for taxes would give the purchaser a good title. But an intruder, such as Woodworth, appears to have been, cannot by such separate claim and assessment acquire a title against the real owner who does not assent to such division, and who pays taxes *474on the whole tract.” We think the plaintiff in error has no right to complain of the charge of the learned judge.
It has been strongly urged, however, that an actual line run on the ground by any claimant, with or without title, was sufficient authority to the assessor to return such survey as a separate tract. The assessor, it is said, has nothing to do with the title. He returns the tracts as he finds them on the ground. Perilous, indeed, would be the condition of the owner if such were the law. The assessor finds a line marked by trees in the wilderness, and is told that somebody claims that part of what he knows to be one entire tract, under an original survey. He returns it as a separate tract for taxation. The owner, ignorant of this transaction, pays all that he is charged with for the tract he holds. He assumes the number of acres described in his deed to be the true content of his survey. He sleeps in security, but wakes up to find that, perhaps, the most valuable part of his property has been swept from him, without his default. It is supposed that Biddle v. Noble, 18 P. F. Smith 279, supports the contention, that all that is required to sever a tract of unseated land for taxation, is a line actually marked on the ground. But this is a misapprehension of that case. The entire tract there was seated, in consequence of a settlement upon part. The owner sold to the settler, two hundred acres where the improvement was, so as not to interfere with the claim of any other settler. It was held that in the absence of a line on the ground, made with notice to the vendor, there was no severance, and that a sale of the remainder of the tract as unseated was void. Judgment affirmed.