The opinion of the court was delivered, May 13th 1867, by
Thompson, J.— The contest is between tax titles in this case. The defect alleged to exist in that of the plaintiff below, by the plaintiff in error, and defendant below, is that no surplus bond for the sum bid over and above the taxes and costs was shown to have been given to the treasurer by the purchaser, as is required *97by the provisions of the Act of 1804. It has always been held that such a bond is indispensable to the validity of a sale for taxes, but whether, after a great lapse of time, it may not under certain circumstances be presumed in the-absence of proof of the fact, is a question. The learned judge of the Common Pleas was of opinion and so charged the jury, that they might presume that a bond was given by the purchaser at the tax sale, under whom the plaintiff claims from the lapse of time, near thirty years, which had occurred — the payment of taxes during that time, the assertion of title and ownership by instituting suit for trespass against the grantor of the plaintiff in error and recovering against him, and the receipt on the deed for the consideration in full and for the cost of'a bond. If a presumption of law arise out of such facts, it is equivalent to proof of the fact itself, and does not disturb the principle of the necessity of giving the bond. It is certainly a case in which’it seems reasonable that the fact should be aided by presumption after the lapse of time which gives rise to a presumption of payment of a judgment or bond, and in many instances of a grant; because it is especially the duty of the officer making the sale to demand the bond, and preserve the proof of it by filing it among the records of the court, when it becomes the duty of other public officers to keep it carefully. These are considerations of great force for the operation of the doctrine of presumption after a great lapse of time. Usually treasurers’ deeds contain a printed receipt for a bond, and when that is signed, or it is acknowledged in the body of the deed, it has always stood as prima; facie proof that the bond was given. But in the plaintiff’s deed no such receipt was in the deed, and it was not the practice at that time so to print them, we learn, in Luzerne county. We think under these circumstances the learned judge committed no error in this portion of his charge. In Hazzard v. Trego et al., 11 Casey 9, we in fact decided this point, by our unqualified assent to the ruling of the court below, “ that the delivery of the deed by the treasurer; — the charge on the back of the deed for the bond, the receipt appended, that he had received the consideration agreeably to law, and the lapse of time nearly twenty-four years,” presented a state of facts from which, in the absence of countervailing evidence, the jury might presume that the bond had been given.
Without discussing the point in extenso, my brother Read said, “ The court were correct in their answers to the defendant’s 5th and 6th points.”
The 5th point contained the doctrine of the presumption affirmed by the court.
Afterwards in Alexander v. Bush, 10 Wright 62, the question was again touched, and in the opinion of the late Chief Justice Lowrie, the doctrine is assented to, although for reasons given, *98that case did not seem altogether favorable to the presumption ; but it was thought that where no reference to a bond appeared in the deed, it ought to have been shown that the deed was not special, but in the usual form of deeds in that county, to exclude a conclusion that it was made to meet the case of a deed without an accompanying bond. That proof was given in the case in hand.
In Cuttle v. Brockway, 12 Harris 145, in an opinion by Black, C. J., it is said, “ There is nothing to which the maxim omnia prcesumuntur rite esse acta applies with so much force as to a tax title.” After the lapse of time occurring in this case, aided as it is, by concurring and continuing facts consistent only with faith in a perfect compliance with the laws, the maxim, we think, should be conclusive in the absence of contradictory testimony.
2. Taking the whole charge of the learned judge, as to what constitutes the character “ seated” in regard to lands, we see no error. Residence with a bond fide intention to hold it as owner, or for the owner, and performing labor on it, such as mining coal, raising ore, and the like, in the character of owner, would undoubtedly give the land the character of seated. While on the other hand, the temporary residence of a trespasser to take off the timber, although it might justify treating the land as seated, and a call on him for the taxes, being in possession, it would not fix upon the tract the character of seated after he had left it. We see no error in this part of the charge taking it in the concrete.
3. The last assignment of error is in regard to what was said about the acts of Stevens.
No doubt but that if the case trying had been between Eales and Stevens, the charge would have been unexceptionable ; but whether the testimony bearing on Stevens was such, even if it might have been sufficient to avoid the sale as to him on account of fraud, was such as to charge the defendants with notice, is not clear. We do not see evidence of it in the paper-books. Yet in the charge there is a reference to an entry copied on the commissioner’s books of 1850-51, at his instance, and to other facts, but which are not in the evidence on the paper-books.
The evidence is not certified by the judge, and we cannot tell whether we have it all or not. In this condition of the case we cannot say the learned judge charged without evidence on this point. In fact the charge did not notice the defendants at all. The jury was not instructed whether Stevens’s fraud was to have any effect, and it is at most conjecture whether it had any effect at all in the case. But it was the duty of the counsel to have had the certificate of the judge, that the testimony brought up on the point was in full. If that had been done we would have seen whether there' was any just ground of complaint or not. That was not done, and without that we cannot say there was no evidence. If there was error in the particular herein referred to, *99we have not the elements out of which to construct grounds for reversal, for the reasons given.
If, as is alleged, the taxes of 1852-53, assessed on this land, were paid on the seated list, the sale on the unseated list was void. This would also be the result if the land was actually seated. There was evidence on these points, and it was referred to the jury. We cannot tell on which ground the jury found their verdict, and hence the difficulty of the last point referred to above. It may have had a material bearing on the case in the minds of the jury, and may have had none. But certain it is, we cannot say there was error in the charge in regard to the facts for want of knowing whether we have them all or not. If the defendants think themselves aggrieved on this ground, they can only have it corrected by bringing suit and trying the case over again. We cannot say they were injured as the matter appears now."
Judgment affirmed.