The opinion of the Court was delivered by
Rogers, J.The Act of 1815, on the subject of the sale of unseated lands for payment of taxes, does not repeal the Act of 1804, but only so much as is altered or supplied. It is held, therefore, that the limitation of five years, contained in the 3d section of the Act of 1804, is in full force. Ash v. Ashton, (3 Watts & Serg. 510); M’Call v. Himebaugh, (4 Watts & Serg. 168). And this is conclusive in a main point against the plaintiffs in this ejectment. The defendants claim undér Samuel Shoch, who purchased the property at a sale for taxes the 16th of June 1824, and a deed therefor by. the treasurer the 23d of August 1824, duly acknowledged. After the purchase from Shoch, the defendants went into possession, made valuable improvements on the property, and have been in the undisturbed possession upwards of five years. This, then, under the construction given to the Acts of 1804 and 1815, in the cases cited, validates the defendants’ title, so that it cannot be disturbed by the former owner or any person claiming under him. Several objections are taken to the treasurer’s sale, which amount to an irregularity merely, and consequently come within the curative provisions of the Act of 1815. George Cooper was the owner of two tracts of land, one of which was assessed at the rate of $2.34, the other at $15.52. By a mistake of the county officers, the tract now in dispute, which was assessed for the larger sum, was sold for the payment of the small tax. This is certainly irregular, but it will not avoid the sale altogether. The land was duly- assessed, and the effect of the sale for the wrong tax will be, as is just, that the county, whose officers have made the mistake. *468■will dose the tax.' There is no. good reason why the purchaser-.should suffer-for their negligence, nor. is there any injury done to the owner, who is in default by. neglecting to pay the taxes for which the land was assessed. We see no error in the charge, in •relation, to the surplus bond., The.bond given by the purchaser for the surplus was not executed until the 25th of Slay 1826. The sale took place on the 16th of June 1824, but the sale was inchoate for two years according to the Act, and within that time, the purchaser gave the treasurer the bond. And this was sufficient; for although the treasurer says, that he never put the bond in the pro■thpnotary’s office, that he ; asked Samuel Shoch, the purchaser, -about it, who said it was not worth while to do it, this will not vitiate the sale. . No injury appears to have been done to the owner in delaying to give the bond, or afterwards, by neglecting to file it. We think the title of a purchaser ought not to be defeated, except for more substantial reasons.
The question, whether, in estimating the value of the improvements, you can take into view the . mesne profits, is one of very little practical importance, as the plaintiff may, if he chooses, by giving the proper notice, recover the mesne profits in the ejectment, and whether they are considered in connection with the value of the improvements or. separately, and so found, matters but little. The latter would,- undoubtedly, be the correct practice, as it would remove all doubt in future, whether the jury had passed on the question of-mesne profits. When no notice is given of an intention to claim the-mesnejprofits in the ejectment, I am inclined to believe, that they cannot be taken into the account in that action. It is to be observed, that the plaintiffs and defendants have each taken a writ of error. The reversal of the judgment in the writ of error taken by the defendants, disposes of the whole case.
Judgment reversed.