The opinion of the court was delivered, May 11th 1869, by
Sharswood, J.There is one question presented upon this record, the determination of which, according to the view we take of it, dispenses with the examination in detail of the errors assigned. Did the plaintiff below give in evidence such a primfi facie title as was sufficient to put the defendant upon proof of a better one ? It must be admitted that if he did, the defendants failed, according to the verdict of the jury, to show any right to the possession. With a perfectly good title, as it would seem, to a tract numbered 4886, they had by mistake settled upon and improved another *450tract, No. 4883, which was that for part of which this ejectment was brought.
The plaintiff claimed as the purchaser under sale for taxes. He showed the title to be out of the Commonwealth by a warrant to Wilhelm Willink et al., dated February 3d 1784, a survey made thereon July 8th 1784, and returned into the land office September 16th 1784. He then gave evidence of an assessment of taxes on this tract, No. 4883, as unseated for the years 1818 and 1819, a deed of John Taggart, late treasurer of McKean county, to the commissioners of that county, dated May 1st 1826, reciting a sale made November 9th 1820, followed by a deed from the commissioners to John King, dated January 5th 1829. The title to the western half of the tract was then deduced from John King to the plaintiff, and payment of taxes by plaintiff was proved from 1830 to 1866 inclusive. The defendants had been assessed and paid taxes on No. 4886, as seated, supposing it to be their tract which they had settled upon and improved from 1845 tBH1846, when they went into possession.
The fatal defect in the plaintiff’s title, and which deprives it even of such prima facies as would impose upon the defendants the obligation of showing some color of title in themselves, is, that the deed of John Taggart, who styles himself late treasurer of McKean county, was executed by him after the expiration of his term of office. It was a mere nullity, as much so as if it had been executed by a stranger who never held the office: Donnel v. Bellas, 10 Barr 341; 1 Jones 341; s. c., 10 Casey 157. “ What power had Coleman (a late treasurer),” says Woodward, J., “to perform an official act on the 5th of January 1848 ? He was functus officio on that day as much as he was a month or a year thereafter. He could no more sell and convey than a dead man. And the county whose agent he had been, and who knew better than all the world beside that he had been superseded by another officer, could take nothing by a purchase from him. His act was simply null and void:” Cuttle v. Brockway, 8 Casey 49. It is not irregularity only; it is as though no deed whatever had been executed. The only question then is, whether the plaintiff, claiming under a tax sale, has a primá facie title as against a stranger without producing a treasurer’s deed, or showing that such a deed was executed and delivered.
I have looked very carefully through all the cases to find one in which there was no deed, but without success. In Kennedy v. Daily, 6 Watts 269, there was a deed duly executed by the treasurer while in office, but not acknowledged until after his term had expired. This was sustained on the practice, to disturb which would unsettle, as it was said, many estates. But besides that, the acknowledgment is no part of the deed. It is merely the appointed mode of authenticating it. In Hazzard v. Trego, *45111 Casey 9, the court below instructed the jury that the deed was but evidence of the consummation of a tax sale, but that if it was lost or surrendered, secondary evidence would be admissible. This was assigned for error and affirmed in this court. See also Halsey v. Blood, 5 Casey 319; Reinboth v. The Zerbe Run Improvement Co., Id. 139. In Liggett v. Long, 7 Harris 499, a deed under seal and duly acknowledged in open court, with the treasurer’s receipt, but not signed by him in the proper place, was rejected by the court below as evidence of title in the defendant, but admitted as evidence of a sale, so as to give the defendant a right to compensation for improvements. The plaintiff only sued out a writ of error, and complained of this admission, but the judgment was affirmed. “ Where the treasurer,” says Lewis, J., “ has omitted to place his signature to a deed at the proper place for it, near the printed impression of a seal, but has attached it to the receipt for taxes and costs, and bond for the surplus pur chase-money, and has acknowledged the- deed in open court, and such acknowledgment is duly certified on the deed, and entered on the records of the court, the omission of the signature is not such a defect as will deprive the purchaser of compensation for improvements made on the faith of such title.” This is not indeed a decision on the point, but as evidence of professional and judicial opinion as to the necessity of a deed, has weight. It was not remarked in the case that the act does not provide that the deed shall be signed, and at common law, irrespective of statute, signature is not essential to a deed: 2 Bl. Com. 305; Wright v. Wakeford, 17 Ves. 459. “A purchaser of unseated lands at treasurer’s sale,” says Woodward, J., “acquires no rights until he obtains his deed:” Gault’s Appeal, 9 Casey 99. It would undoubtedly have been entirely competent for the legislature to have declared that where unseated land is bid off by the commissioners at a treasurer’s sale, the title of the owner shall be if so facto divested, and the land become the property of the county. But they have not seen proper to do so, and very wisely. They have expressly prescribed that there shall be a deed. “ A deed shall thereforf.be made by the treasurer to the commissioners for the time being, and to their successors in office, to and for the use of the proper county:” Act of March 13th 1815, Pamph. L. 179. When the owner redeems within the five years allowed for this purpose, “ the commissioners shall by deed-poll endorsed on the back of the treasurer’s deed to them, convey to the person who shall have been the owner of the land at the time of the sale, or his legal representatives, all the right and title which the county may have acquired under such sale as aforesaid :” Section 6. By the 9th section it is provided, “ that the form^of the deed required by this act to be executed by the treasurer to the commissioners may be in the following words.” The curative clause of this *452celebrated law which worked so marked a revolution in our tax titles, that from being the worst they became the best, has clearly here no application. It is, “ that no alleged irregularity in the assessment, or in the process or otherwise, shall be construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal.” It was considered in Huston v. Foster, 1 Watts 478, to be unquestionable, that this provision only applied to treasurers’, not to commissioners’ sales; but it was held that the title being duly vested by the treasurer’s deed in the county, which holds like any other purchaser purged of irregularities: Peters v. Heasley, 10 Watts 208; the principle which requires that the directions of a power vested in any man or body of men over another’s freehold shall be strictly pursued, did not apply; and the. commissioners’ sales needed not the healing clause of the statute to cure mere irregularities. It is clear, however, that the provisions of the law must be followed, unless so far as it admits of relaxation by its own words. The legislature evidently did not mean that this important transaction should depend upon oral testimony, or even the loose memoranda and books of the commissioners’ office, the imperfection and inaccuracy of which had been the cause of so many difficulties under the old Act of April 3d 1806, 4 Smith 201. They required, therefore— that is their own language — that it should be evidenced by a deed. If a party can recover possession on a commissioners’ deed, without any treasurer’s deed to them preceding it, the same rule must be applied to any other purchaser at a treasurer’s sale. By the 3d section of the Act of 1815 it is expressly declared that before the county shall institute an action against a bidder for the purchase-money, a deed shall have been tendered to him. Without such a tender he can resist the payment. It would be contrary to the whole spirit and policy of our legislation to hold that a bidder at a tax sale, to whom the land is knocked down, has any title without a treasurer’s deed. The Act of 1815 is the Statute of Frauds and Perjuries as to this particular kind of transfer of real estate, but instead of a mere note or memorandum in writing, it requires a deed. It would be fraught with all the perils which that statute was intended to provide against to hold otherwise. It is not necessary to consider the case of a purchaser who has gone into possession and made improvements on the faith of his parol contract. That he would have a right to compensation for such improvements seems deducible from the case of Legget v. Long, before referred to.
The learned judge in the court below appears to admit all this, for he said, as to the paper offered aá a deed, “ if a recent deed, we should hold it insufficient to pass the title of the warrantee.” He added, however, “ but after the lapse of forty-eight years without claim or payment of taxes by the warrantee, abandonment will be presumed.” *453But how does that help the plaintiff’s case? The non-claim and non-payment of taxes by the owner cannot give a title to a mere stranger, having no possession, actual or constructive. It may avail in some cases, in answer to the defence of an outstanding title in him: Hunter v. Cochran, 3 Barr 105. If the want of a treasurer’s deed could be regarded as a mere irregularity, there would have been no occasion to resort to a presumption of abandonment. Even as to tax titles prior to 1815, a purchaser of lands sold for taxes has such a constructive possession as will entitle him to recover in ejectment against a naked intruder or trespasser, no matter how gross may have been the irregularities in the sale: Foster v. McDivit, 9 Watts 344; Foust v. Ross, 1 W. & S. 501; Dikeman v. Parrish, 6 Barr 210; Crum v. Burke, 1 Casey 381. “ When an assessment of taxes is shown,” says Chief Justice Woodward, “and a treasurer’s sale made for their collection, the deed is conclusive against an intruder without title or color of title; ” Wheeler v. Winn, 3 P. F. Smith 131. Since the Act of 1815, by force of its healing provisions, it does not lie in the mouth of the warrantee and those claiming under him to object to any mere irregularites in the proceedings. But the land must be subject to be sold for taxes, and there must be an actual consummated sale. The only competent evidence of this, as we have seen, is a treasurer’s deed, whether direct to the purchaser or through the medium of the commissioners. It certainly never was meant to decide that any deed purporting to be a treasurer’s deed would invest the granttotf with constructive possession, so as to entitle him to recover from a stranger. Not producing the only competent evidence of a consummated tax sale, the plaintiff was not such a purchaser; he had no title whatever; and nothing can be plainer than that non-claim and non-payment of taxes by the warrantee cannot avail him. But it is contended, that the payment of taxes by the plaintiff from 1830 to 1866 raised a presumption in law that the title of the warrantee had been conveyed to him, or, as is expressed in the answer of the court to the defendant’s 8th point, “ such payment of taxes creates a presumption as against the warrantee, which clothes Bell (the plaintiff) with the warrantee’s title. ’ ’ It would be a new and rather startling doctrine, to announce that a stranger without any title, by paying taxes for twenty-one years on a vacant lot or tract of unseated land, thereby enjoys the benefit of a presumption in law that the owner has conveyed it to him. It is not improbable, that the case of Taylor v. Dougherty, 1 W. & S. 327, was in the mind of the court in giving this instruction. There the plaintiff showed a warrant and survey in the name of Henry Kepple, and a patent to Robert McGlay, and in answer to a settlement set up by the defendant prior to the patent^ but subsequent to the survey, it was proved that the land was returned for taxation by Samuel *454McClay, the ancestor of the patentee, long before its date, and that taxes continued to be paid, by those claiming under him for more than thirty years; it was held, that this was primd facie evidence that Samuel McClay was the owner of the warrant; the presumption was held to arise more readily from the well-known fact that in the days of the proprietary officers, as was said in Coxe v. Grant, 1 Yeates 166, the person whose name was used in a warrant or location, stood as a trustee for him who took out the title and paid the expense of the survey. The plaintiff’s own evidence in this case conclusively rebutted any presumption that the warrantees were trustees for John King, under whom he claimed. The land was put up to be sold for taxes; it was bid off by the commissioners, and nine years afterwards sold by them to King. No evidence was given of any claim, or payment of taxes by him prior to this time. Now, can it be pretended, that there was any presumption, either of fact or law, that he was the owner of the Willink warrant? “It would be of mischievous consequence,” says Sergeant, J., in Naglee v. Albright, 4 Whart. 300, “ to hold that a person having no title to a vacant lot, could, by merely undertaking to pay the taxes, or some of them, though even assessed in his name, put himself in the position of an actual possessor in hostility to the real owner, and thus diyest the title of the latter by force of the Statute of Limitations, without any visible possession or act amounting in law to an ouster. The owner’s nonpayment of taxes cannot be considered as an abandonment of his title. The doctrine of abandonment does not apply to lands held by a perfect title, but only to imperfect titles, by warrant and survey. There are imperfect titles by warrant and survey, abandonment of which may be presumed in favor of a junior warrant or settlement right, or a purchaser of an irregular tax title:” Chambers v. Mifflin, 1 Penna. R. 74; Addleman v. Masterson, Id. 454; Star v. Bradford, 2 Id. 384; Read v. Goodyear, 17 S. & R. 350; Zerbe v. Schall, 4 Watts 138; Foust v. Ross, 1 W. & S. 506. But a warrant and survey, returned and accepted, on which the purchase-money has been paid, confers a perfect title against all the world but the Commonwealth, which has itself the legal title only as security for the patenting fees. On payment of them, the owner has a right to a patent, which, however, as to all third persons, gives him no better title than he had before. The patentee, like the Commonwealth, is but a trustee for the true owner: Bunting v. Young, 5 W. & S. 188. “Paying taxes merely for land,” says Kennedy, J., “ without more, by a stranger, can neither amount to an ouster or divest the owner of his title to it. And as to the abandonment, this can never be presumed from lapse of time, where the plaintiff and those from whom he derives his title, claimed and held the land under warrant and survey, upon which the whole of the purchase-money had been paid to the Common*455wealth. Nothing short of an actual ouster of the owner from the land in such ease, by taking possession of it, and continuing to keep the same, by exercising acts of ownership, at least, upon it for twenty-one years or upwards, will defeat the owner of his right to the land Urket v. Coryell, 5 W. & S. 83; see also Sorber v. Willing, 10 Watts 142; Hole v. Rittenhouse, 1 Casey 493. The owner’s right may also be defeated by a treasurer’s sale for taxes, as unseated land, consummated and evidenced by a deed. If there is no such deed, no payment of taxes by the alleged purchaser can strengthen his title, for he has none to be strengthened.
Judgment reversed.