delivered the opinion of the court, January 7th 18S4.
The errors assigned in this case are, in number, eight, in substance but two. They are: (1) That the court below refused to say to-the jury, that the treasurer’s deed and books of assessment, offered in evidence, vested in Joseph Spencer the legal title to the land in dispute. (2) That there were left to the jury the three following questions : first, the identity of the land assessed and sold with that described in the writ; second, whether or not, as a matter of fact, it was assessed as unseated ; and third, whether or not this land was actually unseated at the time of the assessment ? I presume the assessments spoken of in the first assignment must have reference to those made after the time of the treasurer’s sale — for, as I understand the evidence, the books containing the assessrments on which that sale was made were lost, and that of their contents there was proof made by one of the commissioners of Allegheny county. Such being the case, the authority of the treasurer to sell rested in parol, or on secondary evidence, and we cannot see how, under such circumstances, the court could undertake to say that the treasurer’s deed alone vested the legal title to the land in dispute in the vendor of the plaintiff. ^ It further seems to us too clear for dispute, that where there is a question as to the identity of the land described in the writ with that in the deed, it is one for the determination of the jury and not for the court. Then again, the treasurer’s deed was good for nothing, unless it was somehow made apparent that the land therein described was assessed and taxed as unseated. Prima facie, the assessment, as an official act, would determine the character of the land, but only prima facie, for if it were proven that, in fact, the land was seated, its sale as unseated would be void for want of power in the treasurer to make it: Laird v. Hiester, 12 Har. 453; Breisch v. Coxe, 31 P. F. S. 336. In such case, the second section of the Act of March 13th 1850 does not apply. The question before us is not one of irregularity, but of power. Given the jurisdiction of the treasurer to sell, and all irregularities, whether in the assessment or sale, are of no account, but without jurisdiction that officer has no more power to dispose of lands, seated or unseated, than has a private citizen ; hence, his deed is not merely voidable but absolutely void, unless his power to make *630it is affirmatively shown. It is here, however, contended, on the authority of Foster v. McDivit, 9 Watts 344, and Troutman v. May, 9 Ca. 461, that McCullough and his vendees are mere intruders, and that as to them the treasurer’s deed was conclusive. Admitting the premise of this proposition, and the conclusion follows as of course; that is, if there was a valid treasurer’s deed. But as the jury have found that the land was, in fact, not. unseated, or not assessed as'such, the alleged deed was no more than so much waste paper; it conferred neither right nor title on Spencer and his vendee, and as they had neither actual nor constructive possession, how could .the defendants intrude upou their right? It is.true, that in the cases cited, it would seem, at first glance, that it was intended to be affirmed that the deed itself was prima facie evidence of the treasurer’s power to make it; but as the facts of those cases warranted no such conclusion, it may well be doubted whether such a doctrine were intended. Be this, however, as it may, it was certainly not designed, in the face of the Act of Assembly, to establish the doctrine that the effect of such a deed could not be defeated, even by an intruder, by showing affirmatively that the land was not unseated. One might as well say, that a deed, purporting to have been executed by an attorney in fact, was good and valid, not only without an exhibition of his warrant, but witjh the affirmative proof that his act was without authority. >!t is a sure thing that the treasurer’s power to sell the lanct in controversy is found, if at all, in the statute, and if under that statute he is found to have no power] his deed to Spencer was worthless, and gave him no right.'in the land as against any one, owner or intruder, for in such case the title never passed out of Herr’s heirs, and if there was an intrusion, it was an intrusion upon their right, and not upon that of Spencer.
We cannot, however, regard Michael McCullough as a mere intruder, for an intruder is one who enters upon land without either right of possession or color of title. But certainly the lease of Herr’s heirs, the ancestor of whom formerly owned the land in controversy, conferred at least a color of title on,McCullough. Had they entered, they could not have been regarded as mere intruders; how then can their lessee who enters in their right? Clearly, as against them the lease was good, and if they cannot controvert McCullough’s right, no one else can. Nor can we understand why his title or right to the possession of the premises would not be good as against the Stephen Morrison lease of April 1st 1847. Of the 'conditions of that lease there was such a breach as warranted an entry by the lessors, and we need hardly say that an entry by McCullough, their lessee, was, for all legal purposes, an entry by them*631selves, so that in this manner, if not ¿ry the lapse of time, the rights of Morrison reverted to them, and passed to their lessee. There was thus in McCullough, not only color of title, hut also an actual right of possession as against every one except him who could show a better title.
The recitation in the lease of the 23d of March 1859, describing the strip in controversy as “ now owned by William C. Miller, by transfer of a deed from the treasurer of Allegheny county,” is certainly a curiosity. In effect, the lessors admit that they have -no title to the land they undertake to lease. It is not hai’d, in view of the evidence, to guess how this happened, but it matters nothing in this controversy. The lessors thereby divested themselves of nothing which they previously owned. As between them and McCullough, it was but part of the description of the premises, or, at most, notice to him of the alleged ’title of Miller. As to Miller, it amounted to nothing one way or the other. lie cannot use it by way of estoppel, for he was neither party nor privy to the lease, nor was he in any way in jured or compromised by the recitation, and one of these things must occur in order to give effect to an estoppel. On the whole, therefore, we cannot see that the plaintiff has any good reason to complain. His case, in the court below, was tried with rare skill, and the learned judge certainly did him no wrong in the manner in which he submitted it to the jury.
The judgment is affirmed.