The opinion of the court was delivered, May 17th 1873, by
Sharswood, J.The twelve assignments of error may be disposed of by the consideration of three questions.
The first relates to the assessment of the tax upon which the land *445alleged to be that described in the writ, was sold by the treasurer to the county commissioners and conveyed by deed dated November 10th 1860. The plaintiff in error contends that valuation is essential to an assessment; and that the only officers competent by law to make a valuation are the assessors. It appearing that the tract in question was not returned by the assessors for the year, for the taxes for which it was sold, the commissioners, it is said, had no right to put a valuation upon it, and that, as a consequence, there was in law no .assessment, and the sale by the treasurer was invalid. It seems that there is a usage of long standing in Lycoming county, to put a uniform valuation of one dollar per acre upon all unseated lands, in consequence of which the assessors have fallen into the practice of making no return of valuation in such cases. It is certainly malus usus et abolendus. How the assessors can reconcile it with the terms of their official oaths, it is not easy to comprehend. But because they have failed in. the performance of their duties, it does not follow that the land was not subject to taxation, and the title of the commissioners, by the treasurer’s sale, a perfectly good one. The learned judge below instructed the jury that “the return of the assessor without a valuation, or his omission to return them at all, should not exempt the lands from taxation, and cannot, in our judgment, render invalid a lawful tax assessed upon them by the commissioners. It is, at most, a mere irregularity, which falls within the curative provisions of the Act- of 1815.” In this instruction we think that he was entirely right.
There was evidence by a record from the office of the county commissioners that the taxes in question were assessed by them. The twenty-first section of the Act of April 12th 1842, Pamph. L. 266, enacts that “ all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” By the fourth section of the Act of March-13th 1815, 6 Smith 301, it is declared 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.” The Act of 1842 makes the record of the county commissioners evidence of an assessment in fact, and the Act of 1815, to. support the title of the purchaser, cures all irregularities in it. The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity. The county commissioners are the board of revision, with power to revise, correct and equalize the valuation of all property taxable by law: Act of July 27th 1842,. Pamph. L. 445; Act of April 29th 1844, Pamph. L. 501. It would be no violent presumption if it were necessary to resort to it, that the valuation upon which the assessment was made, was settled by them in their capacity as a board *446of revision. But it is not necessary. In Hubley v. Keyser, 2 Penna. Rep. 502, Mr. Justice Huston, speaking of the Act of 1815, says: “ The object was to make the sale and deed confer a title without proof of any one prerequisite, except that the land was unseated, and that-a tax was charged by the commissioners, regularly or irregularly; that this tax was unpaid, and the land sold and not redeemed within two years.” In that case, the objection to the sale was, that there was proof that the assessors had not valued or returned the land as unseated for assessment. It was argued there, as here, that the valuation by the commissioners was unauthorized, and the assessment a nullity; but it was held otherwise by the court. Indeed, in citing this case after-wards, in Fager v. Campbell, 5 Watts 288, Chief Justice Gribson gaid: “ The tax-book was an official document, and according to Hubley v. Keyser, it was both competent and sufficient to show that the land had been assessed.” Both these cases were prior to the Act of 1842. It was, indeed expressly decided in Devinney v. Reynolds, 1 W. & S. 328, that a tract of unseated land maybe sold by the treasurer for the non-payment of taxes upon an assessment made by the commissioners, without the intervention of the assessors. “ The assessors,” said Mr. Justice Rogers, “ value the lands, but the commissioners make the assessment; from which it follows that you cannot avoid a sale for taxes, merely because you are unable to prove that the assessors had performed this ministerial duty.”
The second question is, as to the validity of the commissioners’ sale. It has been decided that the curative provision of the Act of 1815, does not apply to these sales : Jenks v. Wright, 11 P. F. Smith 410. It is objected to the validity of the commissioners’ sale in this case, that they did not follow the provisions of the fifth section of the Act of March 13th 1815, 6 Smith 301, which declares that “ it shall be the duty of the commissioners to provide a book wherein shall be entered the name of the person as whose estate the same shall have been sold, the quantity of land, and the amount of taxes it was sold for, and every such tract of land, shall-not thereafter, so long as the same shall remain the property of the county, be charged in the duplicate of the proper collector; but for five years next following such sale, if it shall so long remain unredeemed, the commissioners shall in separate columns in the same book, charge every such tract of land with reasonable county and road tax, according to the quality of the said land, not exceeding in any case the sum of six dollars for every hundred acres.” Without stopping to inquire whether a failure on the part of the commissioners to observe these directions ought to invalidate the sale, as it forms no part of the process, but is a mere direction as to book-keeping, we are of opinion with the learned judge below, that “ the account, if kept as testified by the clerk of the commissioners, was substantially as required by law.” The clerk *447stated: “ This assessment book is kept the same after a sale to th& commissioners as before, the assessments are continued against the' lands after the sale just as before, and there is no book for keeping such account other than this. After a sale to the commissioners, it is noted in this book after the warrantee’s name, by the word ‘ commissioners,’ that the tract thus marked, is sold to the commissioners.” The act does not in terms require that the book shall be a separate book, containing no other entries. It is enough if there is a record of the entries, as required by the act, made in some book.
The remaining question is, whether the case was properly submitted to the jury as to the identity of the tract assessed and sold with that described in the writ of ejectment. The plaintiff in ejectment must show at least a primd facie title — by prior possession or papers — in himself, for the land described in the writ, whether the claim be a tax sale or otherwise ; whether against a mere intruder, or one setting up some right of possession. No man can be lawfully ejected from lands by less than this. In this case, on the assessment books of the commissioners of unseated lands, there were three separate tracts assessed in the warrantee name of-J. Coleman: one of sixty, and two of forty acres each, One of these tracts of forty acres was that assessed and sold and conveyed in the treasurer’s deed by the general and vague description, “a tract of land containing forty acres, situate in the township of Clinton, in the county of Lycoming, surveyed to J. Coleman.” The title from the Commonwealth produced by the plaintiff, showed a warrant to John Coleman, for one hundred acres, and a return of survey for one hundred and eleven and three-quarter acres and allowance. We may assume that the three assessed tracts made up this survey, though they overrun it in quantity. How the whole tract came to be divided into three parcels did not appear. There were, indeed, some pencil marks on the assessment that two of the tracts were seated, by whom or when made was unknown, except that they were not there at the time of the commissioners’ sale. They were therefore' properly disregarded. Had there been evidence that the other two tracts were seated at the time of the sale, it would certainly have been ■ sufficient to have identified the remaining one as the subject of the sale. There was no evidence whatever to show which of the two tracts was the one assessed and sold, nor of their relative position, nor any other fact which could- possibly lead to identification. The learned judge then left the question of identity to the jury without evidence, which, we think, was an error. He accompanied it, however, with an instruction which throws light upon the ground upon which he made this submission. “ Under such circumstances, we think the plaintiff would be entitled to recover the possession of any forty acres, part of John Coleman, in Clinton *448township, which was unseated, and upon which the taxes were unpaid for either of the years for which it was sold.”
It is contended that this instruction of the learned judge may be sustained by the ruling of this court in Coxe v. Blanden, 1 Watts 533, in which it was held that a, treasurer’s sale for taxes of part of a tract, and a conveyance of that part designating the quantity but not the locality, is good; and an unrestricted choice of locality to the purchaser is a necessary incident of the sale and the consequence of a reasonable interpretation of. the statute. But in that case.there was an assessment upon an entire tract of four hundred and thirty-seven acres, and a sale of three hundred and eighteen acres of it for a sum sufficient to pay the taxes and costs on the whole. It is clearly distinguishable from this case. There was no doubt there that the assessment upon which the sale was made, fastened upon every part of the tract, and a foundation for the sale of every part existed. But not so here, where the parts were severally assessed. The cases abundantly show that there must be evidence to identify the tract assessed with that sold and described in the writ: Russell v. Werntz, 12 Harris 337; City of Philadelphia v. Miller, 13 Wright 440; Lyman v. City of Philadelphia, 6 P. F. Smith 488; Glass v. Gilbert, 8 Ibid. 266; Brotherline v. Hammond, 19 Ibid. 128.
Judgment reversed, and venire facias de novo awarded.