Opinion by

We have examined tMs record very carefully and are not convinced that tbe court below erred in entering judgment for tbe defendant notwithstanding the verdict. In his opinion the learned judge inadvertently says that the plaintiffs in amending the statement shifted their position. What he intended to say was that the plaintiffs’ testimony did not sustain their title as set forth in the statement and abstract. The action was brought under the Act of March 29, 1824, P. L. 152, 4 Purd. 4755, to recover damages which the plaintiffs allege they sustained by reason of the defendant having cut timber upon a certain tract of land in Carbon township, Huntingdon county. The cutting is admitted, but the defendant denies that the plaintiffs are the owners of the land. The statement describes the land by courses and distances and concludes by stating that the tract contains “two hundred and eight acres and thirty-seven perches and allowance, being composed in part of a survey of one hundred and one acres and one hundred and forty-two perches and allowance, made the nineteenth day of April, 1805, in the name of Benjamin Penn and by some additional lands cleared, cultivated and held under an improvement by Arnold Houpt.” The plaintiffs in their abstract of title set forth a deed from Arnold Houpt’s heirs to Mickley & Cresswell, dated May 5, 1854, through which they claim and on which they rely to sustain their title. That deed purports to convey two tracts of land, one containing one hundred and seven acres and eighty-seven perches, “surveyed the second day of October, 1787, in *559pursuance of a warrant to Benjamin Penn, dated July 9, 1787”; and the other, an adjoining tract, containing one hundred and one acres and one hundred and forty-two perches and allowance he the same more or less, “being the tract on which John Houpt, party hereto lately resided as tenant at will of the other heirs and legal representatives of Arnold Houpt, deceased, and Which tract was first improved by the said Arnold Houpt about the year A. D. 1804, and by improvement been ever since held by actual resident settlement and occupancy, title thereto having been completed.”

It is conceded that the survey of October 2, 1787, was void for want of jurisdiction in the officer making it, and, therefore, the land contained in that survey is eliminated from the plaintiffs’ title. The plaintiffs also now disclaim any right-to recover on a title under the Houpt improvement right. Their claim is confined to the title under the Benjamin Penn warrant and the survey of April 19, 1805. If the claim is under the survey made in 1805, as set forth in the statement, the plaintiffs failed to sustain their title by evidence in the case. As we have already said, they rely upon the Mickley & Cresswell deed. They have been compelled to abandon the first tract conveyed by that deed and which was surveyed on the second of October, 1787 in pursuance of the warrant of July 9, 1787. The second tract was not held, so far as the evidence discloses, upon the survey made in 1805 in pursuance of the warrant of July 9, 1787, but was held under the Houpt improvement right. This is clearly and distinctly disclosed by the quotation from the deed which we have made. There is nothing in that deed to indicate, as set forth in the plaintiffs’ statement, that the one hundred and one acre tract was included in the survey made on April 19, 1805, under the Benjamin Penn warrant. On the contrary, the deed itself avers that the one hundred and one acre tract conveyed by it was held under the Houpt improvement. The plaintiffs have, there*560fore, failed to show title to the land on which the timber was cut, and it follows that they cannot recover in this action.

We have examined the testimony in this case and entirely agree with the learned court below that it was not sufficient to justify the jury in finding that Houpt had the survey of 1805 made under the Benjamin Penn warrant, or that the land on which the cutting was done is held by the plaintiffs under that official survey. A discussion of the evidence bearing on the question is regarded as unnecessary. In the view we take of the case, the sufficiency of the defendant’s title becomes immaterial, as the plaintiffs, not having a title to the premises, cannot complain of the alleged trespass. The question of the right of the plaintiffs to recover double damages, raised by the third assignment, becomes unimportant and need not be considered.

We are of the opinion that the learned court below committed no error in entering judgment for the defendant.

The judgment is affirmed.