The opinion of the court was delivered, May 17th 1873, by
Agnew, J.After having given evidence of a treasurer’s sale *416and laid the usual ground by proof of a diligent and fruitless search for the treasurer’s deed, the plaintiffs offered the record in the prothonotary’s docket, of the acknowledgment of the deed, to prove its existence and contents. To this the defendants excepted, but we think without sufficient reason. This is the usual and proper mode of proving the existence of the deed, and identity of the land sold and conveyed by the treasurer. The case has been argued in this court, on the question of the delivery of the deed, but this was a fact to be submitted to the jury. The defendants made no point on the delivery. Doubtless the court would have submitted this question with proper instructions, had a request been made. There was evidence of a strongly presumptive kind 'to go to the jury. The sale was made and acknowledgment of the deed entered of record in 1842, a period of thirty years beforé the trial. A claim of title has since been made under the sale, and sales and conveyances made accordingly. These facts, together with the Act of 13th March 1817, requiring the purchasers at treasurer’s sale, so soon as the property is struck down, to pay the purchase-money, or so much thereof as shall be necessary to pay the taxes and costs, and also one dollar, the fee of the prothonotary for entering the acknowledgment of the deed, in connection with the fact that the acknowledgment was so entered, were ample evidence from which the jury might have inferred a delivery of the deed. We discover no error in this bill of exception. Nor do we think the court erred in permitting the name of Alfred L. Tyler to be added as a plaintiff, and part owner of the land. The plaintiffs brought their ejectment for the whole tract of 500 acres, as an entirety. They did not claim an undivided interest. On discovering that the title to one undivided twentieth Was in Tyler, the motion to amend was made on the ground of an omission of his name. The legislature has gone far to prevent the loss of a trial and delay, by allowing amendments, even to the form of action, and the courts have seconded the effort to reach the merits of the cases and prevent a failure of justice through technicalities: Trego v. Lewis, 8 P. F. Smith 46; Heidelberg School District v. Hunt, 12 P. F. Smith 307; Election Cases, 15 P. F. Smith 35; Leonard and Wife v. Parker et al., 22 P. F. Smith 236. In doing this, it is our duty, however, to see that amendments are not made in a manner to deprive the opposite party of any valuable right. As remarked in Trego v. Lewis, supra, the court will not permit a party to shift his ground or enlarge its surface, by introducing an entirely new and different cause of action, especially when, by reason of the Statute of Limitations, or an award of arbitrators, or from other good reason, it would work an injury to the opposite party. It is claimed in this case, that at the time Tyler’s name was added to the record, his title was barred by the Statute of Limitations. But it is very evi*417dent that when it concerns title to real estate, a defence under the Statute of Limitations must necessarily go to the jury. Such a defence is affected by such a variety of circumstances, as to the extent and nature of the possession, condition of the parties, length of time, &c., it must be left to the jury on all the facts. It is the right of the parties to have proper instructions to the jury, and the defendants in this case might have asked the court to say, that if Tyler’s title was barred by the statutes when his name was added, there could be no recovery in the action of his proportion of the land. Substantially, all these questions were determined in Leonard and Wife v. Parker et al., supra. It was right, therefore, to allow the amendment, leaving the defendants to their prayer for proper instructions, according to the nature of the case, as developed in the evidence.
In regard to the question of estoppel, we think the state of the case is not different from that which was presented when it was here before, and is governed by the opinion then delivered. See Lawrence v. Luhr, 15 P. F. Smith 236. The mistake of Payne, as a surveyor, in locating tract No. 4886 on tract No. 4883, was an innocent act. This is evident from the testimony, and also from the fact that when he bought 4883 afterwards, he located it north of its true location, and adjoining No. 4886. He also sold 4883, according to this mistaken location, to Matson, a non-resident, and, like himself, ignorant of the mistake. In buying 4883, there was no want of good faith to the owners of 4886, either on Payne’s part or Matson’s. It was long after Matson bought 4883 from Payne before he, or his vendees, became aware of the fact that the true location of 4883 was that occupied by the owners of 4886. It was impossible, therefore, when Matson bought 4883, that he could make inquiries of the occupants of the tract, supposed to be 4886, to know by what title they held the land they were thus occupying. It was then unknown that there was a conflict of title. The same mistake which misled the vendors of the defendants, misled Matson, and he was equally»innocent with them. Each claimed a different tract, as known by the original number, and held by a different title. The common presumption applicable to every owner that he knows the identity of his own land, applied equally to each, and yet each was innocently mistaken, and neither was the cause of the mistake in the other.
If he was bound to know the location of 4883 on the ground, so were they to know where 4886 lay. If they were misled by Payne, he was likewise. Payne, though the innocent cause of the mistake, might be estopped when he became the owner of No. 4883, from claiming it from those whom his mistake had injured; on the principle, that as between innocent persons, one of whom must suffer a loss, he shall bear it who was the cause of it. Mat-son, however, is not only an innocent party, but was not instru*418mental in causing the loss, and was incapable of avoiding the position he fell into, by any inquiry he could be led to make. The subsequent discovery of the error of location not only shifts them, but also shifts him. He has the title to 4886; they have not; both are equally innocent, and therefore he must prevail. The argument so strongly pressed upon us, and the authority cited upon the notice which actual possession furnishes, and the duty to follow up the challenge it gives, fails in this case, owing to its peculiar circumstances.
Judgment affirmed.