Opinion,
Mr. Justice Green:In the case of Hathaway v. Elsbree, 54 Pa. 498, followed by Preswick v. McGrew, 107 Pa. 48, we decided that a sale of land for taxes under the forty-first section of the act of April 29, 1844, as seated, which in point of fact was unseated, was a void sale, and passed no title to the purchaser. In the present case the plaintiff’s own testimony has established that the tract of land in controversy was sold as seated, and that at the time of the sale it was in fact unseated. As there was no conflicting testimony, the learned court below instructed the jury that the plaintiff had failed to show a title that gave him a right to a verdict, and under all the testimony in the case the defendants were entitled to a verdict, which was accordingly so rendered.
We are of opinion that this instruction was entirely correct. There is no real contention that the plaintiff had shown a sufficient title in himself upon which to ask a verdict. He asked an instruction that he had shown title enough as against a mere intruder who had ejected him by force, but the court very properly instructed the jury that he had shown no possession *572of the tract in question, which is north of the division line, which would entitle him to the benefit of that principle. Holloway is only a nominal plaintiff, the real plaintiffs being the two Davenports. On the trial, A. L. Davenport testified that they never had any improvements on the tract north of the division line, and that they had done nothing on the ground, except that they cut some trees in the fall of 1885. Nothing was done but cutting these trees ; the ground-was not cleared up, no part of it was enclosed, none of it was cultivated, and no buildings or fences were put up. There was no conflicting testimony, and it is too plain for argument that the mere cutting of the trees in 1885 was not such a peaceable and actual possession of the land in dispute as to entitle the Davenports to the benefit of the rule that a color of title only is sufficient against mere forcible intruders.
It also appears in the charge and in the evidence that the plaintiff’s claim of title under the O’Neill deed was limited to the part of the Bradley tract south of the division line, which is not involved in this contest. This left the plaintiff with no other claim than that derived from the tax sale of 1880; and as .to that, as we have already seen, upon the plaintiff’s own testimony, the land in dispute was unequivocally unseated, and the sale of it as seated gave no title to the purchaser. It was returned by the assessor as “ unimproved,” and this return, it was held in Hathaway v. Elsbree, supra, describes it as unseated. We said in that case that the word “unimproved,” when used in the assessor’s return, means “ uncultivated and unseated; ” and we affirmed the court below in refusing to permit the assessor to interpret his meaning in the use of the word. Besides this, A. L. Davenport, one of the real plaintiffs, testified that up to the time of their cutting, in 1885, there was no residence, cultivation, or improvement of any kind on the land in disputé north of the division line, and that it was all in a state of nature, wild and unenclosed; a forest.
The equity proceeding for an injunction, instituted by the Harveys against the Davenports, and the fact that it terminated in a master’s report refusing the injunction, was much pressed in the printed argument for the appellants as an adjudication of the question of title now at issue, and adverse to the present appellees. But the slightest examination of that *573case and the master’s report shows conclusively that it was not an adjudication of the title in any way. On the contrary, the master expressly refused to decide the question of title, on the distinct ground that, as there was doubt about it on all the evidence, the title must first be tried in an action at law before equity would interfere. That action is substantially the present proceeding, and the refusal of the injunction in the equity case has no bearing or significance of any kind upon the question of title in this case. There was no error, therefore, in rejecting the offers of testimony covered by the first and second assignments of error. Whether this action of ejectment was brought by the plaintiffs in the equity case, or by the Davenports, under compulsory proceedings under the act of June 24, 1885, P. L. 152, is immaterial so far as this subject is concerned.
The third assignment is not sustained, because the will of Jameson Harvey was competent evidence for the purpose of showing color of title in the defendants. The remaining assignments are disposed of by what has been already said, and they are not sustained. The act of April 9, 1873, relating to the assessment of unseated lands in Luzerne county, was repealed by the act of May 1, 1876, P. L. 192, and the act of June 3, 1885, P. L. 71, has no application to this case, as it was not passed till long after the sale was made, and relates only to sales made after its passage.
Judgment affirmed.