The opinion of the court was delivered, July 7th 1870, by
Thompson, C. J.J. — Regarding the principle as conclusively settled by Larimer v. McCall, 4 W. & S. 133, Milliken v. Benedict, 8 Barr 169, The Bank v. Woodside, 2 Harris 404, Stewart .v. Trevor, 6 P. E. Smith 374, and other cases, that unseated lands assessed and returned as seated, cannot be changed from the seated to the unseated list without notice to the owner when practicable, and sold for taxes; does the doctrine apply to the case in hand ? The court below thought not, and we see no solid grounds upon which to differ with it.
The land in question was, in point of fact, undeniably unseated, although it had been for many years generally returned as seated, and the taxes collected in that character. In 1859,1860 and 1861, it appears to have been dropped from both lists, and was not assessed at all, either as seated or unseated. In 1862, the year of the triennial assessment, it was assessed and returned by the assessor as unseated, and charged with the taxes of that year and the next, 1862 and 1863, on the unseated list. It is apparent, that it did not come upon the unseated list by the return of the collector or other action of the county commissioners. It was the act of the proper assessing officers. It was an original assessment of land which was on no list. It was not a case for notice to the owner. He could not claim he was deceived in finding it on the *41unseated list for the years in question, for it was on no other. The considerations which gave rise to the decisions referred to, namely, that the owner had a right to expect his land to be where he annually found it when paying taxes, viz., on the seated list, did not exist in this case. The equitable doctrine of the cases cited was introduced to prevent surprise and undue advantage of owners. It is only this which gives it life. It is not to be supposed that the assessment of unseated lands on the seated list works a change of their actual character, to the extent of rendering them incapable of sale for taxes, as is the case with lands actually seated, excepting under the Act of 1844. This was never meant by these decisions. The party invoking the benefit of the rule of the cases must be within it. He must show that he had reason to expect his land was on the seated list. But how could he avail himself of this plea when he had not paid any tax on it upon this list, or any other, for three years ? It was either gross negligence on part of the owner, to let his land go to sale for taxes, or a disposition to risk the consequences rather than pay; neither of which dispositions appeal very strongly to the sympathies of anybody. In fact, the plaintiff was one of the assistant assessors for the year 1862, which gives countenance to the idea just advanced. So far as any question was made of the identity of the land sold with that assessed, it was left to the jury on the evidence in the case, and found against the plaintiff. Nor do we see any error in the remarks of the judge accounting for the discrepancy between the amount of land assessed and sold, and that devised to plaintiff by his father. There was testimony on the subject which justified the remarks.
There is nothing else in the case which needs notice, and there being no error in the case,
The judgment is affirmed.