Maple v. Kussart , 1867 Pa. LEXIS 29 ( 1867 )

The opinion of the court was delivered, by

Strong, J.

If the plaintiffs could succeed in recovering from the defendants the land in controversy, they would perpetrate a great wrong through the instrumentality of the law. In common honesty they have not a shadow of right to the property, and their attempt to eject the defendants is practically a fraud. They claim as heirs of Mrs. Maple. As such, they stand in no better position than she would have stood in were she now living. What would have barred her recovery will bar theirs now.

No doubt the mill tract was the property of Mrs. Maple after the death of her husband, and no sale of it as his property could divest her ownership. Had she done nothing to estop her from asserting her title, the defendants could not have held against her in her lifetime, nor could they hold against her heirs now. But there may be rights which the law does not permit to be asserted, and such the court below held to be the rights of the plaintiffs.

By his will, Thomas Maple, the husband of Mrs. Maple and the father of the plaintiffs, after making certain devises and bequests, directed that all the remainder of his estate be disposed of as soon after his decease as convenient, and be disposed of to the best advantage of the heirs, either by keeping it in the family, at a fair valuation, or selling it publicly, or by private sale; and the proceeds he directed to be divided in certain proportions to his wife and children. The power to sell not having been given to any person by name or description; — after his death, the executors of the will made a sale of the mill tract, under the control and direction of the Orphans’ Court, to William S. Paul, who bought for a son and son-in-law of Mrs. Maple, and who immediately conveyed to them for the same consideration for which the property was struck off to him. It is manifest that all parties at that time thought the land belonged to the estate of the deceased testator. Not only was it sold as a part of his estate, but it was bought as such; even the widow herself being under that impression. The proof is, that she urged the purchaser to buy that the property might remain in the family; and it was at her request they bought. They paid the purchase-money, $6410, and it was distributed to the widow and heirs of the testator, now the plaintiffs, in the proportions directed by the will. All the distributees gave receipts for their shares of the avails, both of the mill property and of the other real estate.

Now, in view of the fact that by her active solicitations the widow induced the purchasers to buy, and to pay their money for the land, expecting to obtain a good title, how could she turn around now and deprive them of the fruits of their purchase, even if it be conceded she was mistaken as to her own rights ? Both she and they were mistaken. At the time of the sale they all thought the property a part of the estate of her deceased husband. The purchasers could have had no more knowledge of her rights than she had. Her acts and declarations are not to be shorn of their significance by confining their operation to some supposed interest of her husband, apart from her ownership of the land. She desired her son and son-in-law to buy at the sale, rather than a stranger, that the property might be kept in the family. It was then the entire ownership that she urged them to buy at that sale; and so the jury under the instructions of the court must have found. How then, were she living, could she escape from the application of the principle, that when one of two equally innocent persons must suffer, that one must bear the loss whose act occasioned it ? It is to be observed that she was not merely a silent witness of the purchasers’ mistake ; she was active in leading them into it. After what she said, they would naturally suppose she had no claim to the property. Our books are full of the doctrine, that one who encourages another to purchase land and to expend money upon it, shall not be permitted to set up a better title in himself to defeat the purchaser. Silence alone will not postpone unless in cases when it is a fraud; but positive acts of encouragement bar the assertion of a right, even though they were done with no fraudulent intent. Nor does it make any difference that the purchaser might have discovered he would acquire no title by his purchase had he made diligent inquiry. He has been put off his guard, and induced perhaps to make no inquiry by the words of encouragement he has received.

These principles apply in all their strength to the present case, and the defendants have also additional protection in the fact that the widow and heirs received their shares of the proceeds of the sale of the mill property, shares to which they were not entitled in equity at least, if the purchasers took nothing by their purchase. It is a maxim of common honesty, as well as of law, that a party cannot have the price of land sold, and the land itself. Accordingly, it has been ruled uniformly, that if one receive the purchase-money of land sold he affirms the sale, and he cannot claim against it whether it was void or only voidable: Adlum v. Yard, 1 Rawle 163; Wilson v. Bigger, 7 W. & S. 127; Crowell v. McConkey, 5 Barr 168; Stroble v. Smith, 8 Watts 280; Smith v. Warden, 7 Harris 424; Commonwealth v. Shuman’s Administrator, 6 Id. 346; Johnson v. Fritz, 8 Wright 449; Spragg v. Shriver, 1 Casey 282.

It has been argued, however, that the sale of the mill property having been made under the direction of the Orphans’ Court, .was a judicial sale, to which the maxim “■ caveat emptor” is- applicable ; hence, that the purchasers were bound to pay their bid at any rate, and that they were not injured by the widow’s receipt of the money. That the maxim quoted applies to Orphans’ Coui't sales for the payment of debts is certain. Perhaps it may also to sales in partition; but in the latter class of cases the parties warrant the title to each other. It is therefore not clear, that when a sale is made to one of the parties for the sake of partition, that he may not set up a failure of title as a defence to the claim of the other parties for their proportion of the price. In the present case, the sale was made for distribution among the widow and children, and the purchasers were a son and son-in-law. It may perhaps be questioned whether they were bound at all events to pay their bid. But however this may be, this class of estoppels does not rest upon the fact that the purchaser is injured by the receipt of the price by him who seeks to ignore the sale. It is rather a case of election. In several of the cases reported, the purchasers acquired title under judicial sales. They paid their money as they were obliged to pay it, and a subsequent distributee who received it was held estopped thereby from assailing the title acquired. Such was McPherson v. Cunliff, 11 S. & R. 426; Stroble v. Smith, Crowell v. McConkey and Mitchell v. Freedley, 10 Barr 208. It is to be observed that Mrs. Maple received her share, knowing that it was the price of what was supposed to be the entire ownership of the mill property. Adopting the language of this court in Wilson v. Bigger, 7 W. & S. 127, “ it would shock the moral sense if she, or her heirs claiming through her, were permitted not only to encourage a sale, but to receive the purchase-money, and afterwards to keep that money, and recover the property and improvements. The court, therefore, correctly, answered the plaintiffs’ 4th point.

Judgment affirmed.