Opinion by
Mr. Justice Williams,Ike plaintiffs’ title to the land in controversy depends upon a treasurer's sale made in 1874 of a lot of unseated land, part of warrant No. 3540. This lot was owned at the time of sale by *37Howe, Blake & Co., and was part of a large body of contiguous lands owned by them. When they came to pay their taxes for 1872 and 1873 the question presented itself to their minds whether this lot was in No. 3540 or in No. 3400. They investigated it, procured a map of their lands to be made, and with such light as was thrown upon the question by the county map of Jefferson county and by the result of their own inquiries they decided that the lot was in No. 3400. They paid the taxes on that warrant, which was owned by them, and refused to pay the taxes assessed upon the lot as part of No. 3540. It is now evident that they reached a wrong' conclusion. The honesty of their purpose to pay all the taxes justly chargeable to them, and the conscientious character of their effort to settle the question of the true location of the lot, cannot relieve them, from the legal consequences of their mistake. They allowed the lot to be sold as part of No. 3540, and it now turns out that it was located in that warrant. The taxes were a charge upon the land, they were unpaid, and the treasurer’s sale vested the title in the purchaser. The first, second and third assignments of error must therefore be overruled.
The only other question presented upon this record is whether the location of the south line of tract No. 3540 is upon the evidence that was before the court and jury a question of fact for the jury or of law for the court?
The lot in question lay at the eastern end of No. 3540 and in the county of Jefferson. The remainder of the tract was in Clarion county. The north line of the tract may be treated as settled in accordance with the claim of the plaintiffs. The east line was not disputed. In the language of the learned trial judge “ There is not much controversy between the plaintiffs and defendants in regard to the location of that portion of tract No. 3540 which lies in Jefferson county except as to the southern line.” This was in controversy. The defendants located it on the north line of the Smith survey which was several years older than 3540 and was directly south of it. For a distance of four hundred and thirty-two rods westerly from the county line it was the southern boundary of 3540, and a protraction of this line easterly to the end of the tract would leave a considerable portion of the land claimed by the plaintiffs to fall into tract No. 3400 which the defendants owned. It was claimed that an *38original mark had been found on this line corresponding with the date of the survey, and that the owners of 3540 or several of them had for many years known and recognized the line set up by the defendants as the true south line of the survey. This evidence was for the jury. The defendants’ third point presented the question very clearly. It asked an instruction that “If the jury find that the south line of No. 3540 is coincident with the south line of the McNaughton farm, and also with the Dr. William Smith survey then in no event can the plaintiffs recover any land south of the McNaughton line extended eastward.” This point should have been affirmed and the question of fact assumed should have been submitted to the jury with suitable instructions.
It may be that the learned judge reached a correct conclusion upon the question of fact, and one that would have been reached by the jury if the question had been submitted to them. On the other hand the jury may have found in accordance with the contention of the defendants. There was evidence hearing upon the question which it was their province to weigh, and the conclusion from which it was their appropriate function to draw, and the evidence should have gone to them.
This case was otherwise well tried, but the learned judge erred in giving a binding instruction to the jury to find in favor of the plaintiffs as to that part of the tract involved in the controversy over the location of the south line. For so much of the land as was north of an extension of the north line of the Smith survey or the McNaughton line, a binding instruction was entirely proper; but for so much as was south of that line the right of the plaintiffs depended upon what the jury might find the fact to be as to the character of that line.
The judgment is reversed and venire facias de novo awarded.