The opinion of the Court was delivered by
Rogers, J.Ejectment to recover about 20 acres of land, part of a large tract. The plaintiff claims title under a judgment rendered against George Ege, sold as his property by the sheriff of Cumberland county, and by him conveyed to the plaintiff. The recovery is resisted for several reasons, the principal of which are, that the land in controversy was not included in the levy, in pursuance of which the sale was made; that the tract was unseated, as such sold for payment of taxes, and that John M. Woodburn, one of the defendants, was the purchaser. On the first point, the defendants offered to prove, that the Boring-mill tract, as it is called, the property now in dispute, as located on the ground, is not embraced in the levy. The plaintiff objected to this evidence on several grounds, particularly stated in the bill, and the court permitted the witness to prove any facts within his own knowledge with regard to the location of this tract, or any of the particular tracts mentioned, tending to show that the Boring-mill tract is not embraced in the levy. They however decided, that the opinion of the witness, as to what is or is not embraced in the levy, was not evidence. And this was a judicious discrimination, for under the circumstances of this case, we cannot fail to perceive, that the admission of the opinion of the witness would have been very dangerous to the right of the plaintiff. Nor do we think the second offer entitled to more favour; for surely, before they can be allowed to give the proof contained in the second bill, they must prove as a preliminary, the existence of the writ, and further, that it was lost; otherwise the contents cannot be proved. This is too plain to need the aid of argument.
The defendants complain of the affirmative answer of the court to the fifth point. If the facts, be as there assumed, it would be proof of a combination to defraud the bank, which can receive no countenance in a court of justice. The plaintiff alleges, and of *450this allegation there is evidence perhaps sufficient to satisfy the minds of a jury, that the tract in dispute was seated, and had been for a long time previous to the sale for taxes, that it was in the undisturbed possession of Ege, and that for the purpose, and no other, of defeating the lien of the bank, an arrangement was made between Ege and Woodburn that the land should be sold for the arrearages of taxes, and that Woodburn should become the purchaser for the use of Ege. Trick and artifice of this kind cannot be permitted to affect vested rights. It would be a disgrace to a court of justice to allow such fraudulent schemes to succeed.
A question of some moment incidentally occurs in this case, that is to say, whether a presumption of payment derived from lapse of time may not arise against taxes in our county rates. The maxim nullum tempus occurrit regi, has, it is true, been extended to the Commonwealth as an incident of sovereignty, but there is no reason why this maxim should be applied to a tax imposed for county purposes. Several cases have occurred of extreme hardship, which have directed our attention to this subject. I refer particularly to Robinson v. Williams, (6 Watts 281), to which the attention of the Legislature is invited. It was decided after great deliberation' and hesitation, and nothing but an imperative sense of duty brought us to the conclusion to which we eventually came. Why may not a presumption of payment arise in this as in other cases between individuals ? There is surely as much necessity for one as the other. And if it should so happen, that the fiscal concerns of the counties are neglected, why should an innocent person, a purchaser without notice for example, and without the means of acquiring it, except by great diligence, where counties are divided, have his land swept from him in payment of taxes of long standing? Would it be unreasonable, to presume they were paid so far as to prevent a sale of the land ? Would it be unreasonable to hold, not only that the delay raises a presumption of payment, but that this is a presumption juris de jure.
After an examination of all the errors, we find none which contains a semblance of justice, nor is there anything in them which requires special notice.
Judgment affirmed.