Opinion by
Mobbison, J.,This is an action of trespass brought for the recovery of damages for an unlawful entry, as alleged by the plaintiffs, upon a tract of unseated land owned by them in Walker township, Huntingdon county, and carrying away therefrom a quantity of sand. The land was not in the actual possession of either of the parties, but it is the settled law in Pennsylvania *402that title to unseated land carries with it a sufficient right of possession to enable the owner to sustain an action of trespass.
This case was tried once before and the court directed a verdict for defendants, and entered judgment thereon, which on appeal to this court was reversed with a new venire : Trexler, Appellant, v. Africa, 27 Pa. Superior Ct. 385.
A careful examination of the testimony, the rulings and charge of the court and the assignments of error, forces us to the conclusion that the present judgment must be reversed, and the case sent back for still another trial. It is conceded that the plaintiffs made a prima facie showing of title to the land, on which the alleged trespass was committed, and without more, they would have been entitled to a verdict. The defendants then replied by showing an assessment and levy of taxes for the years 1895 and 1896 on said land; that the same were returned to the treasurer of the county and appearing to be due and unpaid for more than one whole year, the land was duly sold at treasurer’s sale on June 13,1898, to J. Simpson Africa and J. Murray Africa, and a deed therefor duly executed and delivered to them thereafter. The books of the treasurer’s office did not show any redemption from this sale. At this stage of the case, in the absence of additional evidence, the court would have been warranted in directing a verdict for the defendants. The plaintiffs then rebutted this prima facie tax title by the testimony of John L. Trexler to the effect that on June 2, 1898, he went to the treasurer’s office in Hunting-don county and stated that he desired to pay the taxes on the land in question, known as the John Patton tract, in Walker township; and also on the William Smith tract in Porter township ; that the treasurer examined his books, made a calculation and stated to the witness the amount of the taxes due and unpaid ; that he then gave his check to the treasurer for said amount and was given a receipt; that subsequently his house was destroyed by fire and the cheek and the receipt were burned.
It is a conceded fact that the books in the treasurer’s office show that on June 2, 1898, John L. Trexler paid the taxes on ■the William Smith tract in Porter township, but the books do not show that he paid any taxes on the John Patton tract in Walker township on that date. Mr. Trexler does not testi fy that *403he attempted to pay the taxes on any other day, except June 2, 1898. The county treasurer had died before either of the trials of this case, and, therefore, the positive oral testimony of John L. Trexler that he attempted to pay the taxes on both tracts, and supposed he had done so, is not contradicted by any other witness nor by anything except the presumptions arising from the condition of the treasurer’s books and the sale and deed to the Africas.
It is argued earnestly by the counsel for the defendants that they proved from the records in the bank upon which the check was drawn that the amount of it was only sufficient to pay the taxes on the William Smith tract, with fifty cents added to pay for the treasurer’s -advertisement. It is also argued that John L. Trexler did not tell the truth when he said the check and receipt were destroyed by fire. To these contentions it may be said : First, it is beside the point to show that the check was not for a sufficient sum to pay the taxes on both tracts because if Trexler asked to pay on both tracts it was the treasurer’s duty to inform him of the correct amount, and if he made a mistake, and only gave the amount of taxes due upon one lot, and Trexler was honestly endeavoring to pay upon both, and supposed he did so pay, then the mistake of the treasurer would be in law equivalent to a payment by Trexler on the John Patton tract, and no treasurer’s sale could thereafter be made for the nonpayment of the taxes for 1895-6 : Dietrick and Wilson v. Mason, 57 Pa. 40 ; Price v. Mott, 52 Pa. 315 ; Bubb v. Tompkins, 47 Pa. 359 ; Pottsville Lumber Company, Appellant, v. Wells, 157 Pa. 5. But it is unnecessary to dwell on this point. The defendant’s counsel and the court concede, as they must under the law, that if John L. Trexler made an honest effort to pay the taxes, and supposed he had done so, on June 2, 1898, on the John Patton tract, for which the land was sold on June 13, 1898, by the treasurer, then the treasurer’s sale is void and vested no title in the defendants. Second, as to the argument to us that John L. Trexler did not tell the truth about the check and receipt being burned, it is entirely out of place. If there was anything in his manner of testifying or other circumstances appearing in evidence to justify such an argument, it ought to have been addressed to the jury.
*404We find in the record fifteen assignments of error. The first, second and third do not call for discussion and they are not sustained.
The fourth assignment relates to permitting a witness to testify to the precise amount of the check given by John L. Trexler to the treasurer, and that it amounted to the taxes due on the William Smith tract, with fifty bents added. This for the purpose of contradicting John L. Trexler when he said he paid all of the taxes demanded of him. This testimony was competent as a part of the res gestee. We cannot say that the court erred in admitting it. It is true that it does not positively contradict John L. Trexler’s statement that he paid all the taxes demanded of him by the treasurer. But we think it was for the consideration of the jury in determining the credibility of Trexler and the weight to be given to his testimony. But if the jury believe Trexler, and find that he asked for the taxes on both tacts and paid the amount furnished him by the treasurer, believing it to be in full of the taxes on both tracts, then the amount of the check is not of much consequence. The fourth assignment is not sustained.
The fifth assignment stands practically upon the same ground as the fourth. Trexler did not testify that he actually paid all of the taxes due on the John Patton tract and the William Smith tract. He testified, in substance, that'he asked for all of the taxes on both tracts, and gave a check for said taxes as stated to him by the treasurer. He further testified that he had no recollection of the amount, and did not know whether it was sufficient to pay all of the taxes on both lots or not. Therefore, the testimony quoted in this assignment does not directly contradict John L. Trexler. But we are inclined to thihk that it may be submitted to the jury, under appropriate instructions, as bearing upon the credibility of John L. Trexler and his recollection of what aptually took place between him and the treasurer. The fifth assignment is not sustained.
The sixth assignment is sustained because thp evidence quoted therein does not contradict John L. Trexler as to what he said to the treasurer on June 2, 1898.
The seventh assignment is sustained because it was not competent to prove a custom of the office as to the form of receipts given for taxes on unseated lands. If the defendant had pro*405posed to prove the contents of the receipt delivered to Trexler, and destroyed by fire, as he says, it might have been competent as a part of the res. gestee.
The eighth assignment is sustained. If Mr. Trexler asked to pay the taxes on both tracts and the treasurer gave him an amount and he paid it, he had a right to rely on the correctness of the treasurer’s work, and he was not guilty of laches if he failed to examine the receipt and books, and figure the amount of the taxes himself.
The ninth assignment is sustained. There is nothing in the evidence to warrant the court in saying: “ But with Trexler’s evidence must be taken into consideration all that transpired at the time, the entries in the records of the court, the entries in these books, the receipt, if it is there ; if not, then such other evidence as is explanatory of the receipt, the check, the amount of money that was paid, the amount of taxes that were assessed, these are all to be taken into consideration. There are no records of the court in evidence which throw any light upon what took place between Trexler and the treasurer. The difficulty with the excerpt from the charge is that the jury probably thought that all of the things referred to by the court contradicted Trexler. But they did not. It is difficult for us to see how he is contradicted by anything except the presumption that the treasurer, a public officer, would do his duty, and this is not very strong evidence as against the positive testimony of a living witness.
The tenth assignment is sustained. This excerpt from the charge makes entirely too much of the fact that the tax (meaning on the John Patton tract) was not paid and that the land was not redeemed for two years. The plaintiffs are not asserting that they actually paid all of the taxes due on the two tracts and they are not driven to any such position. They can avoid the tax sale by satisfying a jury that they made an honest effort to pay the taxes, and supposed that they were paid, and that they were misled by the treasurer. It was serious error to call the jury’s attention to the fact that the land was not redeemed for two years. If Mr. Trexler supposed he paid the taxes in full on the Patton tract, why should he redeem ? If the treasurer, by mistake, mislead him into believing that he had paid these taxes and then proceeded to sell the land, thereby adding costs *406and expenses to the taxes, the plaintiffs were not obliged to redeem from that sale for the reason that it was void. If the treasurer had discovered his mistake, if he was mistaken, before the sale, and had notified Trexler and demanded more money, and they had not paid it, a different question would have been presented, one that is not now raised.
The eleventh assignment is sustained, because in that excerpt from the charge the learned court said : “ The only verbal testimony we have is the testimony of Mr. Trexler, one of the plaintiffs. That is contradicted by the records of the court.” This is clear error — there were no records of the court in evidence contradicting Trexler’s oral testimony as to what took place between him and the treasurer.
The twelfth assignment is sustained because the language used by the court, therein quoted, tends to lead the jury to attach entirely too much importance to the fact that J. Simpson Africa paid the taxes on the John Patton tract on June 13, 1898. That was the day of the sale. Of course nobody disputed that, but how does it contradict John L. Trexler’s oral testimony as to what took place between him and the treasurer on June 2, 1898 ?
The thirteenth assignment is sustained. If John L. Trexler’s testimony is true, it is of no consequence that the plaintiffs did not redeem the land from the sale of June 13, 1898. We have already said, in answer to another assignment, that they were not bound to redeem under such circumstances. It was error to say to the jury: “ If you believe that what transpired at that time was written in the records, and that they are correct, then the plaintiffs cannot recover.” Nobody pretends that the conversation between John L. Trexler and the treasurer was written in any records, and, therefore, tííe language quoted in this assignment tended to mislead the jury.
The fourteenth assignment must be sustained. We have already said in regard to another assignment that it was error to press to the attention of the jury that there was no redemption from the sale of June 13, 1898.
The fifteenth and last assignment is: “ The court erred in not affirming the plaintiffs’ fifth point, which point and answer is as follows : ■ ‘ Under all the evidence in the casé the verdict of the jury must be for the plaintiff.’ Answer; Refused.” *407This assignment has given us some trouble. It is based on the ground that John L. Trexler’s testimony, as to his attempt to pay the taxes on the John Patton tract and what took place between him and the treasurer on June 2, 1898, is really not contradicted. Our understanding of the law on this point, as settled by a long line of cases in our Supreme Court, followed by this court, is that where a plaintiff’s case rests on oral testimony, the question of the credibility of the witness, even when uncontradicted, is for the jury. They may look at the witness, observe his manner of testifying and the character of his testimony, and the circumstances under which he is testifying, and believe or disbelieve him as their best judgment dictates. We think the learned court ought to have said to the jury, if you believe the testimony of John L. Trexler, and that he honestly attempted to pay the taxes on the John Patton tract, and failed through the mistake of the treasurer, and the plaintiffs had no notice of the mistake till after the sale, then your verdict will be for the plaintiffs.
In Grambs v. Lynch, 4 Penny. 243, our Supreme Court said: “ It is settled law that when a case depends upon oral testimony, such testimony must be submitted to the jury.”
In Lautner v. Kann, 184 Pa. 334, the Supreme Court said (p. 338): “ The credibility of a witness is for the jury, and they are not bound to accept his statements because he is unimpeached and uncontradicted by other witnesses. He may impeach and contradict himself on the witness stand, or the jury may believe that he is honestly mistaken. . . . The question is for the jury and not for the court.”
In Lehigh Coal, etc., Company v. Evans et al., 176 Pa. 28, the point is well stated in the syllabus : “ Where a case depends on oral testimony, such testimony must be submitted to the jury.” “ In an action of ejectment, where the plaintiff relies upon the breach of a condition alleged to have been contained in a lost deed, and offers the testimony of two witnesses as to the terms of the condition, the case is for the jury, although the defendant offers no testimony to contradict the testimony offered by plaintiff as to the contents of the lost deed.”
In Reel v. Elder, 62 Pa. 308, Sharswood, J., (p. 316) said: “ However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of *408the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” See also Dinan, Appellant, v. Supreme Council, 210 Pa. 456 ; also Corcoran v. Life Ins. Co., 188 Pa. 443.
In our own court we have followed these decisions many times. One of these cases is Barnett v. Becker, 25 Pa. Superior Ct. 22.
We would not have thought it necessary to cite authorities on this point were it not for the ease of Knupp v. Brooks, 200 Pa. 494, on the strength of which the learned counsel for the appellant argues that the court ought to have given a binding instruction in favor of the appellant on John L. Trexler’s uncontradicted testimony. But suppose the jury did not believe Trexler? In the case just cited, the late Justice Dean said: ‘‘.The court left the credibility of Jamison to the jury and they found in his favor, but if they had found otherwise, the court would have been bound to set the verdict aside as palpably against uncontradicted evidence. We have more than once said, that where the jury finds a verdict which the court is bound to at once set aside, it may give peremptory instructions as to what their verdict should be. Such instructions would have been proper in this case, but, as the jury found for the defendants, no harm resulted to the plaintiffs.”
In that case Jamison testified that he paid the taxes on the whole 364 acres. It is admitted that he paid the amount assessed on all of his other tracts except this; but the entry shows he paid on only 334 acres of No. 17, instead of on 364. But-the treasurer did not definitely say the sale was on default of payment on thirty acres; he sold 150 acres. The sales book showed that both before and after the sale, Jamison paid to the treasurer regularly the tax on the 364 acres. Judge Dean could find nothing in contradiction of this testimony, and he said: “ the court and jury doubtless both gave it full credit and the court might properly on it alone have instructed the jury, that there was no unpaid tax to support the sale to Ball. That case differs -from the one at bar. There was the positive testimony of Jamison that he paid on 364 acres and the books and the circumstances seem to corroborate this, but the treas*409urer made his books show paid on 334 acres and' then proceeded to sell 150 acres. On his own books he could not. have sold but thirty. Therefore, Jamison’s testimony was positive, clear and convincing, but, nevertheless, under the cases above cited and many others, we are not able to see why the credibility of Jamison was not for the jury. The language we have quoted from Judge Dean’s opinion was not necessary to a decision of the case, and in view of the doctrine of the other cases cited, we feel bound to consider the language as dicta, and that it was not intended, by the court, to overrule the established and settled law of this state that where a plaintiff’s case depends on oral testimony, the credibility of the witnesses is for the juiy, even when they are not contradicted. We feel bound to hold, under a large number of plain decisions of the Supreme Court, that the fifteenth assignment cannot'be sustained.
In view of the two mistrials of this case we feel constrained to say that, in our judgment, it is a'very simple case to try. There does not appear to be in the record of either trial anything substantial to contradict the testimony of John L. Trexler, except the presumption that a public officer will discharge his duty, but this presumption is only prima facie, and if the testimony of John L. Trexler is believed by a jury, it completely rebuts such presumption. An oral argument was pressed to our attention that the plaintiffs could not recover because the present suit was not commenced within five years after the salé of the land for taxes on June 13, 1898. The third section of the act of April 3, 1804, 4 Sm. L. 201 reads: “No action for recovery of said land shall lie, unless the same be brought within five years after the sale thereof for taxes as aforesaid.”
First, it may be replied to this that the present is not an action for the recovery of the land claimed by the defendants under the tax title. We have already said that neither party to this suit was in actual possession of the land. The plaintiffs, however, showed a prima facie title to this unseated land which gave them the right to maintain an action of trespass against a wrongdoer. To the plaintiffs’ ease the defendants replied the tax title of June 13, 1898, and this without more would have been a good defense. But the plaintiffs replied to this by showing what they alleged took place on J une 2,1898, *410between John L. Trexler and tbe treasurer of Huntingdon county. If Trexler’s version of the transaction between himself and the treasurer is believed by a jury, it renders the tax title alsolutely void. In our opinion, the limitation provided in the act of 1804 will not put validity into a void tax title. When the defendants undertook to defend against the alleged trespass by showing a tax title they could not stand on such title based on a treasurer’s sale where no taxes were due and unpaid.
In McReynolds et al. v. Longenberger, 57 Pa. 13, the Supreme Court (p. 27) said: “ the authority of the treasurer to sell unseated lands for taxes depends upon facts; viz., that the land was unseated at the time of the assessment; that a tax appears to have been, and was in fact assessed upon it by the proper assessing officers, and that the tax had been due for one whole year, and remains unpaid. The absence of either of these facts involves an exemption from the penalties of the acts of 1804 and 1815.” The reason of this decision undoubtedly is that the lack of either of the above requisites renders the tax title void and the five years’ limitation will not breathe life into a void tax title. If John L. Trexler correctly states what took place between himself and the treasurer on June 2, 1898, the land was. relieved of the lien of the taxes, although they were not paid, as effectually as if they had been paid in full. If they had been so paid, no lawyer will argue that the tax title was or could be of any value. See also Hole v. Rittenhouse, 19 Pa. 305; Rogers v. Johnson and Wife, 67 Pa. 43. In our opinion the five years’ limitation provided in the act of 1804 does not stand in the way of the plaintiffs in ■the present case.
The judgment is reversed with a v. f. d. n.