The opinion of the court was delivered by
Knox, J.There was no error in admitting Samuel Hess as a witness. The discretionary power given to the executors to sell the real estate did not convert it into personalty; and, therefore, it passed, upon the death of Christian Picoli, to his devisees, whose duty it was to pay the taxes assessed prior to the sale to Peter Sassaman. The tEfoes for the year 1846 were assessed subsequent to the purchase by Sassaman, and consequently were not included in the covenant against incumbrances. The executor had no *110interest in the result of the action, and was properly admitted as a witness.
The disputed question of fact upon the trial was whether the tract in controversy was or was not seated at the time it was assessed as unseated for the taxes of 1845 or 1846.
It was clearly established by the evidence that between three and four acres of the tract had been cleared and cultivated before any part of the taxes, for which the land was sold, were assessed, and the jury found the fact that there was grain sufficient to have paid the taxes raised upon the tract for the years 1845 and 1846. It appeared that the clearing was done by the owner of an adjoining tract with a full knowledge of the lines, but without any intention of appropriating to his own use the entire tract, or of denying the title of Doctor Picoli. The Court of Common Pleas instructed the jury that, as the cultivation was by an intruder, who did not intend to appropriate to his own use the whole tract, only so much of the tract was seated as was actually cleared and cultivated. But the jury were further instructed that, if they believed, from the evidence, that sufficient grain was raised upon the tract, during the years for which the taxes were assessed, to have paid them, the tract could not be sold as unseated for non-payment of taxes. Of this instruction the plaintiff in error complains. Conceding the correctness of the first branch of the charge, it would be difficult to sustain the last proposition; for, if the mere intention of the intruder is the criterion by which we are to determine whether a tract of land is '.seated or unseated, we can scarcely say that personal property, found upon the portion of a tract intended to be appropriated, can be applied to the payment of the taxes of the entire tract. It is very clear that, if the intruder is not liable for the taxes assessed upon the whole tract, his property, though found upon a part of the tract, cannot be taken to pay the whole tax assessed; and it is equally clear that, if there is a personal responsibility for the taxes of the whole tract, its character is changed from an unseated to a seated tract of land.
But, is it true that where an intruder enters upon a tract of unseated land, clears and cultivates a part of it, without any intention of appropriating the residue, that he is only liable for the taxes of the part cleared and cultivated by him, and that the remainder of the tract remains unseated, and may be assessed and sold as such ?
To sustain this proposition, the case of Ellis v. Hall, 7 Harris 292, is relied upon. A careful examination of that case, however, will show that it is not an authority for the doctrine asserted by the plaintiff in error and ruled by the Common Pleas. In Ellis v. Hall the tract was sold for taxes assessed for the years 1842 and 1843. To avoid the sale it was shown,that prior to the year 1833, between three and four acres had been cleared upon the tract by *111a man by the name of Thomas. How he or his successor, one Thatcher, was in possession, whether as intruders or as tenants, did not appear. But it was distinctly shown that for the years for which the assessment was made under which the sale took place, the tract was in possession of a tenant of the owner under an improving lease, who resided upon an adjoining tract, and who used the cleared part of the tract in dispute either for raising grain or grass. It further appeared that the tract upon which the tenant resided, also belonged to Mrs. Hall, the owner of the tract in dispute, and that Gardner, the tenant, knew the line between the two tracts, and that in the year 1839, or prior thereto, he had in making a clearing upon the tract upon which he resided, extended it over upon the tract in dispute to the extent of about one acre. Upon this state of facts, President Conyngham instructed the jury that the tract was seated, and his instruction was assigned for error and affirmed in this court. Upon this branch of the case all that was necessary to decide in order to affirm the judgment was, that the improvement of part of a tract of land by a tenant of the owner, under a lease for the whole, makes the whole tract seated. This is an undoubted proposition, and upon it and upon the question whether a tract divided by a county line retained its entirety, the case depended. True, it was said by the judge who delivered the opinion of the court, that where the improvement was made by an intruder, his liability for taxes would bo limited to the amount of his claim, and for this Campbell v. Wilson, 1 Watts 503, Harper v. McKeehan, 3 W. & S. 239, and Mitchell v. Bratton, 5 W. & S. 451, were cited. These authorities undoubtedly establish the doctrine, that where an intruder enters upon a tract of land and appropriates a portion of it to his own use, designating the part that he claims by lines distinctly marked upon the ground, he is only liable for the taxes of the part claimed by him, and the remainder of the tract may be Sold as unseated. A tract of land may be severed by an intruder or by operation of law, and when its entirety is once destroyed, a part may be seated and a part unseated; but the intention of an intruder will not destroy its entirety, unless that intention is evidenced by an open and notorious act, such as marking the extent of his claim upon the ground, thereby indicating to the owner and to the public how far his possession extends.
In Campbell v. Wilson the tract contained 436 acres. Patterson, the intruder, had a house within the survey, but his claim was precisely designated by metes and bounds and only covered 100 acres of the tract, and for this he obtained a warrant from the Commonwealth and returned it to the assessor for taxation. It was held that this did not seat the entire tract. In Harper v. McKeehan the same rule was laid down, and for the reason that the part claimed by the occupier was distinctly shown by marked *112lines and designated boundaries; and so in Mitchell and Bratton the claim of the occupant, “Young Sailor Billy” as he was called, was defined by an unreturned survey made upon a previous warrant, and hence it was held that his residence and cultivation of that part did not seat the entire tract. The rule is so clearly stated by the late Mr. Justice Kennedy in the case referred to, that I must be pardoned for extracting the following sentence from it.
“It may therefore,” said that learned judge, “be taken as settled that wherever a person enters and takes possession of unseated land belonging to another, either with or without colour of title, and has the full extent of what he means to take possession of set out and designated by lines marked upon the ground, so that the same may be known and ascertained with certainty, and confines himself accordingly in making his improvements thereon within such lines, his possession shall not be taken or deemed to extent beyond his lines, so as to give the character of seated land to that which lies without. But if he enters generally and continues to occupy and improve the land after his entry, without designating or limiting his possession or claim by metes or bounds or lines made upon the ground, his entry and possession will be considered as giving the character of seated land for the purposes of taxation, to all lying within the bounds of the tract or survey, as, previously designated, into which he has entered.”
In Sheaffer v. McCabe, 2 Watts 421, the owner of an adjoining tract had extended his clearing so ‘ as to include several acres of the tract in dispute, and this was held to seat the whole tract, whether the clearing over was accidental or otherwise. This case was recognised in Fish v. Brown, 5 Watts 441, and followed by Rosenberger v. Schall, 7 Watts 390, which was a case where an adjoining occupant had extended his clearing over the line by mistake.
The Act of 12th April, 1842, declared, that “ no clearing over by mistake shall ever be deemed sufficient to render land seated.” But this in nowise weakens the authority of the above cases where the clearing over is wilful and designed.
In the case under consideration the clearing over was not accidental, but with a full knowledge of the division line between the two tracts, and as no act was done by the intruder indicating his intention to claim a part of the tract to the exclusion of the residue, its entirety was not destroyed. The whole tract became seated, and its assessment and sale as unseated, gave no title to the purchaser.
If there was error in the charge of the court below, it was against the defendant, and as the verdict was in his favour, there is no ground for reversal.
Judgment affirmed.