Tarr v. Robinson , 158 Pa. 60 ( 1893 )

Opinion by

Mr. Chief Justice Sterrett,

It is now too well settled to admit of question that, upon the ground of implied benefit, the assent of a donee will be presumed ; and the title will vest eo instanti the gift is made, even though he be ignorant of the transaction, and will .continue in him until he rejects it. Hence the burden of proof is on those who allege refusal to accept: Skipwith v. Cunningham, 8 Leigh, 271; Read v. Robinson, 6 W. & S. 329; Jackson’s Ap., 126 Pa. 105. As between Melker Tarr, the devisee in this case, and the residuary devisees, this burden would have been sustained by a simple verbal disclaimer, consistent of course with his other conduct, made to the administrators with the will annexed, who had possession and who represented all parties beneficially interested; and as there is no middle ground between acceptance and refusal, such disclaimer must have been final not only as between these parties but as to all those who claimed under them with notice. But assuming such disclaimer to have been made, were the purchaser at the sheriff’s sale and those who claimed under him concluded by it? “ The rule of caveat emptor applies to a purchaser at a judicial sale; but he is not bound to see what is not to be seen. He is protected by the recording acts; and secret defects in a title apparently good are to him no defects at all. Notice may be by record, by possession, or it may be given directly to the person sought to be charged with it either by writing or verbally: ” Banks v. Ammon, 27 Pa. 172; Dickinson v. Beyer, 87 Pa. 274; Lance v. Gorman, 136 Pa. 200.

-There is certainly nothing in the record in this case to give notice of any defect in the title of Melker Tarr. The devise to him is absolute on its face. There is no condition nor alternative attached to indicate an intention on the part of the testator to put him to an election. Like innumerable other wills of record, this would naturally give rise to a presumption of acceptance, because apparently beneficial to the devisee, so strong that no one would think of further inquiry. It is not claimed that there was any other record notice.

The possession of the administrators was not necessarily inconsistent with acceptance of the devise by Melker Tarr; for, by the terms of the will, his possession, if he had taken under it, must have followed theirs. But it was the part of common prudence, and therefore the duty (Walsh v. Stille, 2 Parsons, 17) of intending purchasers to inquire of the administrators, who were trustees in custody of the land representing all parties interested, the probable duration of their possession; and that inquiry must necessarily lead to knowledge of the real status of the title; for the administrators would have been in good faith bound to furnish as full information to those who dealt with their cestuis que trust as to the cestuis que trust themselves. Even as between strangers, there is no principle better settled than that “if one suffers another to purchase and expend money on a tract of land, and knows that that other has a mistaken opinion respecting the title to it, and does not make known his claim, he shall not afterwards be permitted to set up a claim to that land against the purchaser.” Silence is a fraud when it is a duty to speak. Trustees cannot keep silence when the preservation of trust rights is involved; and it must be assumed that these trustees would have spoken. It having been then the duty of these defendants before purchasing to make inquiry of the administrators, they would have been affected with notice of the result of such inquiry so far as title was involved, whether within their original purpose or not: McKee v. Perchment, 69 Pa. 342. If it would have led to knowledge of refusal by Melker Tarr to accept the devise they would have been concluded.

Melker Tarr was clearly a competent witness. Assuming that he was a “ remaining partj- ” to the “ thing or contract in action,” he not only had no adverse interest but no interest whatever in the event of the action. He would “ neither acquire nor lose a right, nor incur a responsibility which the law recognizes.” Dickson v. McGraw, 151 Pa. 98, which practically overruled Duffield v. Hue, 129 Pa. 94, has since been followed by Gerz v. Weber, 151 Pa. 396, and Smith v. Hay, 152 Pa. 377, and has settled the construction of the act of 1887 in accordance with this view.

Loose declarations of Melker Tarr, made in the absence of the parties interested, claiming ownership of the land now in dispute, were not competent evidence to prejudice their rights. The main issues were whether or not (1) he had accepted or refused the devise ; and (2) if he had refused, had the defendants notice of the fact; and the evidence should have been directed accordingly.

The ex parte declarations of Melker Tarr being incompetent to prejudice the rights of plaintiffs, the testimony of Samuel H. Null was to that extent incompetent. He was an ineompetent witness as against those parties, in whose presence declarations may have been made, who have since died; for not only “ surviving or remaining ” parties, but, by the express terms of the act of 1887, “ any other person whose interest shall be adverse to the right of the deceased party,” is excluded; and his interest here was certainly “adverse.”

Judgment reversed and a venire facias de novo awarded.