The opinion of the Court was delivered by

This case presented a variety and complication of facts, on which many questions arose. Certain lands were appropriated by law for the officers and soldiers who served during the war of the revolution. These lands were surveyed by the state in ranges from east to west, and the surveys in each range were numbered. A Captain Stephen Stevenson drew No. 40 in the second donation district, 500 acres. By law, no taxes were to be assessed by the state on these tracts during the life of the soldier or officer, unless he sold his right; and then they were in the hands of an alienee taxed as other lands. The state did not grant warrants for these lands to persons applying and offering to pay for them, nor were they open to actual settlement so that any person sitting down on and building, clearing, cultivating, and continuing his residence, could acquire a right to a warrant from the state. They were expressly reserved in the Act of 3d April 1792, having been before appropriated to the above use by the state.

It appeared that John Hockenbury (father of the plaintiffs) was living on this tract of land in 1809, and continued there until 1811 or ’12, when he leased it to John Wigdon a year or more; and in 1813, Hockenbury returned and continued residing there until 1821, without interruption. In the mean time, it was sold as unseated land for taxes in 1818, viz. county taxes for the years 1812, ’13, ’14, ’15, ’16, T7; and road taxes for 1812 ’13; and purchased by Conrad Snyder and John Brown, to whom the treasurer made and acknowledged a deed. The defendants also showed another deed from the treasurer of the county to John Brown, dated 6th July 1820, for taxes, county and road. On the 18th April 1823, *248John Brown sold one-half (under his last deed, I suppose,) to Conrad Snyder. About the year 1821, John Hockenbury went to live at his son Joseph’s, leaving grain growing on the land, and agreed with a George Dobson to take care of it. At this point the witnesses differed as to dates and times, some saying Hockenbury went in the spring of 1821, and returned before harvest; and others that he went in the summer of 1821, and returned in the spring of 1822. In the mean time Brown and Snyder leased to one M’Kimmons, who moved on to the land, but left it and let Hockenbury into possession when he came back; others say that Brown put a crop of oats in one of the fields in 1821, and that M’Kimmons did not go on till the spring of 1822, and stayed only a short time till he gave up the possession to Hockenbury. All agreed that after this Hockenbury resided in his house and improvement until he died in 1839; but it was proved that a certain Lemuel Davis rented a field from Brown and Snyder, and raised a crop of corn on it, and then a crop of wheat; that Hockenbury knew this, and did not object. It was also shown that on 26th October 1829, Brown and Snyder sold 139 acres to Henry Peters, who lived on it till he reconveyed to Snyder on the 17th September 1835; and on 19th September 1835, Conrad Snyder conveyed the whole 500 acres to Hugh Smart; and on 10th September 1836,. Hugh Smart conveyed the same to Conrad Snyder. On 17th March 1838, the heirs of Captain Stevenson conveyed their right to Conrad Snyder for the consideration of $350. In 1831 the interest of Brown had been sold under a judgment and execution against him, and bought for and conveyed to Snyder.

On the trial, Brown was examined, and proved that he was present when his tenant, M’Kimmons, gave up the possession in 1821-2, to Hockenbury. That the fire was carried out and kindled again in Brown’s name. That Hockenbury promised to work on the roads for the tax, if Brown and Snyder would let him stay there during his life. That he afterwards heard Hockenbury talked of claiming, and went to him. Hockenbury asked a lease for ten years; Snyder objected, but they gave him a lease for five years. That Meeker, who was present, made Hockenbury’s mark to the lease, because his hand shook so he could not make it himself. This was in 1830, but no month or day is given; so it is stated that Hockenbury was on in 1809, but not said at what time of the year. It may be that Hockenbury had been on the land more than 21 years when this lease was made; or perhaps a little less than 21. Neither the whole tract, nor any part of it, appears to have been ever assessed to John Hockenbury. In 1834, when the assessor called on him, he said he would have it assessed to him, and pay the taxes, if he could get clear of his lease to Snyder, From this we infer it was taxed to Snyder, but when first, or how often it was assessed to Brown and Snyder, or to Snyder alone, does not appear.

*249The court very properly told the jury that the sale by the treasurer for taxes, where the land was seated, and had been for eight or nine years, and during all the years for which the tax was alleged to be due, was void, and gave no title to the purchaser. The whole of the laws authorizing sale of land for taxes, speak of and suppose the land to be unseated. The commissioners have no colour of right to order the treasurer to sell, and the treasurer has no colour of authority to sell a tract of land for taxes, on which á person resided when the tax was assessed and fell due, and on which he continued to reside at the time of the sale. If Brown lived in the immediate vicinity, and knew when they bought it that it was a settled tract, it makes the matter no better on his part.

The next question was, as to the effect of the removal by Hockenbury ; the entry and occupation by Brown of a field; the lease to M’Kimmons; the return of Hockenbury, and the lease he took for five years. When a man having good right to land finds another on it for less than 21 years, the owner has a right to the possession, can recover it by ejectment, may threaten an ejectment and costs, unless he in possession signs a lease. If under such circumstances, he in possession signs a lease and becomes tenant, it must be a rare case in which he can get clear of the relation of tenant, or resist the right of his landlord. But when a man is in the peaceable occupation of surveyed land, his possession is a right against all but the owner of a title to that land. If one who has no right comes and induces him in possession to become his tenant, it must be by some misrepresentation of fact or law, or both, or by some unfair combination between him and the tenant; and it will require little proof of fraud or threats of imbecility on one side, and some undue influence on the other, to dissolve this relation of landlord and tenant between them, and put him who was in possession into precisely the situation in which he was before he was induced to sign a lease. Hall v. Benner, (1 Penn. Rep. 402); 10 Watts 142.

I have alluded to the defect of dates. If John Hockenbury entered on this land in the spring of 1809, then 21 years had expired in the spring of 1830; and if after this, and after his right had become perfect to at least some land (and I shall speak of how much hereafter), he was induced to take a lease from, and become a tenant to those who had no title, this must have occurred from misrepresentation, fraud, or mistake; and slight evidence of imbecility, or weakness, or of poverty, worked on by threats, would be sufficient to avoid it. The law, as far as it went, was correctly stated by the Judge; but he did not advert to the palpable.difference between a lease taken by one who had a naked possession, from the owner of the land, who could evict him, and a lease taken from one who had no scintilla of right, and who could in no way have recovered from one in possession.

*250But though the parties are the same, their rights have become different. Snyder and his tenant now appear in court as purchasers from and clothed with the right of Captain Stevenson’s heirs; and the heirs of Hockenbury claim the tract by virtue of a settlement, and, as they allege, an adverse possession, for more than 21 years. Every case says the possession must be adverse, and continue so. Among the last cases are Sorber v. Willing, (10 Watts 141); Phillips v. Gregg, (10 Watts 164). If a settler is ousted by a wrong-doer forcibly, and on bringing indictment for forcible entry and detainer, is, as soon as the case can be decided, restored to the possession, I should say his subsequent possession was connected with and a continuance of his former possession; and such would generally be the case, if his possession was broken by fraud; at least the person guilty of the fraud, if found by a jury, would not derive any advantage from it. There may, however, possibly be cases in which long acquiescence, and intervention of third persons, might make a difference as to those persons; as in this case the sale of part of the tract to Peters, and Hockenbury seeing him buy and live on the part six years, may be evidence to show that Hockenbury either never claimed that part, or if he did, lost it by acquiescing in a possession inconsistent with his claim.

What was asked from the court about payment for improvements, if the plaintiffs recover, and what was said by the court, seems to me to arise from an inaccurate view of the parties, and facts of the case. By the Act of Assembly, if the warrant owner recovers from a purchaser at a sale for taxes, in certain cases, he must pay for improvements. But here the warrant owner and purchaser at the tax sale, are now the same person, and are contending whether the grantee from the state, or a settler on his land, have the best right to the possession. In such case the law knows nothing of paying for improvements.

I come now to the principal error relied on. The Judge says he understands the Supreme Court to have decided, “ that where a person enters upon a warranted or patented tract of land, with or without colour of title, and is in the peaceable, continued, undisturbed, adverse possession of it for 21 years, claiming by the lines of the tract, and paying the taxes, and using the wood and unenclosed land in the usual and ordinary manner in which the owner of a tract of land uses it, a jury may presume an ouster of the owner; and the person thus in possession has a title by the Statute of Limitations that will protect him in his possession, or enable him to recover, if out of possession, on the title thus acquired by the Statute of Limitations. This, as I understand the recent decisions, is the greatest length to which the court has gone. There must be a payment of taxes before an ouster can be presumed.” He then goes on to say that during the whole time Hockenbury lived on the land he never paid any taxes, nor were they assessed to him; *251and if he intended to claim the whole tract, it was his duty to have it assessed to himself. This point is adverted to twice again, and in such a manner that I am not sure I exactly comprehend the meaning of the Judge. I proceed to give my views of adverse possession, and of the nature and extent of it with us. At least a century ago it was understood that if a man sat down on and improved and continued to reside on land, never before granted or appropriated by the proprietors, or since by the state, he acquired some inception of title, such as that the state or proprietary could not sell it to another. As early as 1774, B. Chew, then Chief Justice, said this usage was so general, and of so long standing, that a chancellor would compel a grant to the settler on his tendering the stated price, with interest from the time of his settlement. See the opinion of Yeates, J., Bonnet v. Devebaugh, (3 Binn. 175). After some interruption by the war, this doctrine has become settled and well understood. The state may call on the settler to . take his warrant and pay the purchase money. Many laws have been passed, extending the time within which lands must be patented, and warrants taken out by actual settlers. If land was vacant, any man had a right to settle on it; and by such settlement he might hold, since 1784, 400 acres, or any less quantity. If at his settlement, or before any intervening right, he designated his boundaries, not exceeding 400 acres in a reasonable shape, no one could take from him; but if he designated no boundaries, but suffered without objection others to settle near and around him, he could not remove them after they had spent labour and money, although less than 400 acres was left for him. If, when the whole country was covering with warrants, a surveyor came, he was bound to leave him, beside his clearing, a reasonable quantity of wood-land. Barton v. Glasgo, (12 Serg. & Rawle 149). But men have settled on appropriated lands, and this under different circumstances; generally, perhaps always, under the idea that the land was vacant, and that by settlement a right to it could be acquired. If the land was vacant, this idea was correct; so warrants have been taken for and surveyed on land before appropriated, under the same mistake. A warrant paid for, and a settlement made on the same day, on appropriated land, would be equally defective; neither would give any title until actual possession for 21 years barred the right of the former owner; yet it has been uniformly held, the owner of such younger warrant had colour of title, and after 21 years was protected to the extent of his lines. An actual settler in the woods has just as much colour of title, and as much title, if the land is vacant, as one who takes a warrant for the adjoining land; if vacant, both have title; if appropriated, neither have until 21 years’ actual continued possession under a claim bars the old title. The settler does not always mark his boundaries as his neighbour who has taken a warrant does'; but if he designates them by known natural or *252artificial boundaries, it does as well. It is not the warrant nor the survey of his neighbour which gives right to previously appropriated land; nothing but length of possession will do it; and it does it as fully and effectually for the settler without as with a warrant. There may be, and often is this difference: the extent of the settler’s claim is not so well defined as that of the warrantee, as I have before said; hence, a difficulty as to the extent of the settler’s right in some cases. He cannot obtain, if the land was vacant as he supposed, more than 400 acres; but he may take less — 300, or 200, or 100 — if he has marked no lines, nor in any other way designated his claim. The assessment is resorted to, not as giving him a right, but to show the extent of his claim and possession; if he has uniformly returned for taxation only 100 or 200 acres, he cannot, after 21 years’ possession, extend it to 300 or 400 acres. Procuring himself to be assessed for a tract of land to which he can show no title, and of which he has not been in possession, and paying the taxes for 21 years, will not give title either to plaintiff or defendant. Sorber v. Willing, (10 Watts 141). I apprehend then that, where paying taxes for a tract, or the whole tract, is spoken of, it has reference to the extent of the claim, and is referred to as evidence of that extent, and not as being that without which the Statute of Limitations cannot operate. This is, in this respect, a singular case; and the jury will consider whether the omission to assess Hockenbury was or was not part of a plan to obtain his land without legal and regular means.

I do not know that every or any judge has arrived at the conclusion stated in Criswell v. Altemus by the same reasoning I have; but if I am right, a settler on appropriated land can acquire right and protection to no more than he could if it was vacant, i. e. to 400 acres. If, then, a settler goes, as in this case, on a 500 acre tract, or, as in much of the state, on a 1000 acre tract, without pretence of a purchase of the legal title, he cannot after 21 years’ occupation hold more than 400 acres; being what he could have held if he had settled on vacant land; but in order to hold this, he must show in some way that his claim and constructive possession embraced so much. There is difficulty in this case on every side; there is no proof of the extent or amount of Hockenbury’s claim: but more; a portion of his clearing was not on the Stevenson tract, and as I understand, it began early and occupied till his death. If he ever designated any bounds of his claim, how much of such .bounds lay within, and how much lay out of the Stevenson tract? This a jury will ascertain as best they can. This court can only say he cannot hold, after 21 years’ possession, more of the Stevenson survey than he claimed before the 21 years had run round. If he never, until after 21 years’ occupation, designated any extent of his claim; if at all times a portion of land he occupied and claimed was not within the Stevenson survey, then he or his heirs cannot hold 400 acres of it. I would not; however, confine him *253strictly to his fenced and cultivated land. In this western country, some wood-land is considered essential to a farm, and, to a certain extent, is so. How much beyond the fences a jury will give, if they should find for the plaintiffs below, will be for their serious consideration on all the facts and circumstances of the case.

The judge stated, among other things, that the treasurer’s deed to Brown and Snyder was, or might be, a colourable title which would justify them in entering on the land and making improvements. If they, at the time they purchased, knew (and it seems they did know) that Hockenbury lived, and had for many years lived on this tract, they would come within the decision in Miller v. Keene, and would not be entitled to compensation for improvements if they had made any. The case of a treasurer’s sale of a settled plantation, for taxes, is unknown to our laws — it cannot be — there is no authority for it — it is void, not voidable— it gives the purchaser neither title nor colour of title. I speak of a case in which the purchaser knew it was seated land, or where, on going to it after his purchase, he finds a person living on it, and sees by the extent and appearance of cultivation that he has resided there many years; if after this he enters or expends money or labour, he is without excuse, and ought to be without compensation.

The majority of this court have overruled at this term a long series of decisions from Creigh v. Wilson to this time. I would not have done so; it is impossible to foresee the full effect of it; I would have affirmed the case of Miller v. Keene, and if necessary, left the matter to legislative interference.

Judgment reversed, and a venire de novo awarded.