Epley v. Witherow

7 Watts 163

Opinion

The opinion of the Court was delivered by

Kennedy, J.

Among the many errors assigned, there are two, and only two, either of which, we think, is fatal to the judgment of the court below ; they are the seventh, and fourteenth or last; the other errors cannot be sustained, and will be passed without further notice, with the exception of two or three of them.

First, As to the second error, which is a bill of exception to the opin* ion of the court in refusing to permit the plaintiff in error, who was the defendant below, to prove by John Stockslayer, that David Witherow and Peter Epley were both present at the sale of the land in question the first time, when it was struck dowrn to Solomon M’Linn. That it was sold as the property of Samuel Witherow, and that there was no notice or intimation by any one that the property did not belong to him. In order to judge of the relevancy and bearing of the proof offered here to be made, it is proper to take into con* sideration, that in the course of the trial it had been previously shown, and indeed admitted by both parties, that David and Samuel Withe-row were originally joint owners of the land in question, by purchase from Christian Routkong; that as such, both had taken, and were in the actual possession thereof for some time, when, as it appeared from the evidence, David Witherow quit the possession and gave it up exclusively to Samuel Witherow, who apparently continued to exercise acts of ownership over the land as the sole owner thereof, and to receive and enjoy the whole of the rents, issues and profits of the same, without having accounted to David at any time for them, or any portion thereof, from the period the latter surrendered the entire possession to the former down to the time of the sheriff’s sale at which the plaintiff in error became the purchaser of the land; also that some evidence was given, tending to prove that the giving of the exclusive possession by David to Samuel, was in pursuance of an agreement made between them, whereby David sold his interest in the land to Samuel, and then moved away and purchased other land for himself exclusively. Now, under these circumstances and this state of the evidence, we are of opinion that what was offered to be proved by Stockslayer, tended still further to show and to corroborate the fact of David’s having parted with his interest in the land .to Samuel; otherwise, being present and seeing the whole of it about being sold as the property of Samuel alone, he would in justice to those bidding at the sale, as well as to himself, have given notice of his right to it. We therefore think this evidence ought to have been •received; and that the court erred in rejecting it.

We come now to consider the fourteenth error, which is an exception to the opinion of the court, as expressed in the latter part of their answer to the second point submitted by the counsel of the plaintiff below, for their direction thereon to the jury. It relates to the notice and the sufficiency of it; said to h&ve been given at the instance of David Withérow, of his claioi to the land, when it was selling last by the sheriff, as the property of his brother, Samuel Witherow. That part of the answér excepted to is in these words: “ if the notice given by the crier was, that the sale was of Samuel Witherow’s interest only, it would be sufficient. If no such notice was given, the plaintiff can not recover here, and the verdict must be for the defendant. If such notice was given at the plaintiff’s request, he may recover.

Notice is either actual or constructive; but there is no difference between actual and constructive notice in its consequences. Amb. 626 ; Sugd. Vend., ch. 17, sect. 1, page 731. Actual notice, which is what David Witherow, being present at the sale, ought to have given in this case, requires no definition ; for it is universally understood and cannot be misapprehended by any one, and must be given by the party interested in the property and in the course of the treaty for the purchase. Vague reports from persons not interested in the property will not affect the purchaser’s conscience; nor will he be bound by notice in a previous transaction which he may have forgotten. Sugd. Vend., ch. 17, sect. 1, pp. 731, 732; Wildgoose v. Weyland, Goulds. 147, pl. 67; Cornwallis’s Case, Toth. 254; East Greenstead’s Case, Duke 64 ; Kerns v. Swope, 2 Watts 78. A mere assertion, that some other person claims a title, has not only been held to be insufficient to affect a purchaser with notice, but it has been doubted, whether a general claim will do so, of which the purchaser does not appear to have had a previous knowledge. Kerns v. Swope, 2 Watts 78; Tolland v. Stainbridge, 3 Ves. 478. This court, however, ruled, in the case of Barnes v. Mylington, 3 Penns. Rep. 67, that actual notice given by the party, or his agent, of his claim generally to the land at the time of sale, without specifying the nature of his title, or in what way he claimed it or an interest in it, was sufficient to put the purchaser upon inquiry, and to have enabled him, if he desired it, to have ascertained the nature of the claim, and how it was derived from the party making it, who would have been bound to have answered fully at his peril. It is well settled, that whatever is sufficient to put the purchaser upon an inquiry, which would necessarily have led him to a discovery or knowledge of the adverse claim or interest to or in the land, is sufficient to affect him with notice thereof. Though in regard to what is sufficient to put the party on such inquiry, it may, occasionally, be a matter, about which a diversity of opinion may be entertained ; yet in the present case, it is hardly possible to conceive how there can be any but one and the same opinion. The most favourable testimony for the defendant in error, showing that any thing was said or published at the time of the sheriff’s sale, which was calculated to put Epley, the purchaser, on his guard and to lead hint to a knowledge of the claim of the defendant in error in the land, is, that “ the crier very loudly, distinctly and emphatically requested all present to take nor tice, that it was only the interest of Samuel Witherow he was then selling. This he repeated several times.” Now as the sale was making under the authority of judicial process, it is very clear that, the process being against Samuel Witherow, and not David, the interest of the first was all that could be sold ; so that all that was said by the crier was no more thiin what the law implied and every one was bound to know. But David Witherow was present himself at the sale, and, it seems, it was at his instance, though not known then to the bidders, that the crier gave the notice mentioned ; and why he did not, if he thought he had a good claim to the land and intended to assert it, either himself in person, or by the crier or some other agent, explicitly make it known, it is difficult, consistently with principles of fair dealing, to conceive, instead of concealing it as he did, and leaving those wishing to buy the land to find it out as they could, and when it might be too late to provide against it. It is perfectly obvious,- from all that was said by the crier, that no one present could ever have conjectured or even dreamed that David Witherow had any claim to the land. But being present and seeing that the whole of the land was levied on and about to be sold as the estate of Samuel Witherow, it was certainly his duty to have spoken then, if he meant thereafter to assert his claim, otherwise he ought and will be stopped from doing so. Qui tacet consentiré videtur, qui potest et debet vetare jubet. See the East India Company v. Vincent, 2 Atk. 83; Hanning v. Ferrers, 1 Eq. Ca. Abr. 356, pl. 10; Gilb. Eq. Ca. 85; Raw v. Potts, Pre. in Ch. 35; Hunsden v. Cheney, 2 Vern. 150; the case cited in Styles v. Cooper, 3 Mk. 692; Jackson v. Cator, 5 Ves. 688 ; Dunn v. Spencer, 7 Ves. 731 ; Cholmondely v. Clinton, 2 Meriv. 362; Covert v. Irwin, 3 Serg. & Rawle 283; Buchanan v. Moore, 13 Serg. & Rawle 306; Nass v. Vanswearingham, 10 Serg. & Rawle 144; Higginbothom v. Barnet, 5 Johns. Ch. Rep. 184; Teasdale v. Teasdale, Sel. Ca. in Ch. 59; Pearson v. Morgan, 2 Bro. Ch. Ca. 384; Pilling v. Armitage, 12 Ves. 78; Dowling v. Mill, 1 Madd. Rep. 541; Taylor v. Cole, 4 Mund. 351; 1 Wash. Rep. 317; Livingston v. Byrne, 11 Johns. 565 ; Green v. Price, 1 Mund. 449; Owen v. Bartholomew, 9 Pick. 520; where this doctrine is established and recognized to the fullest extent. But here, it is said, David Witherow had put his deed of conveyance or title on record, before the sale to the plaintiff in error, where he, as well as every body else, could inspect and was bound to take notice of it. But as this deed had been in being for many years before, and withheld from record until shortly before the sale to the plaintiff in error, and not until after the prior sale, which was set aside, at which David Witherow also attended without making his claim known, as the plaintiff in error offered to show, it is most probable, if not certain, that he must have believed that the most, if not all, of those present were wholly ignorant of his claim ; and being there himself without making it known to them, it is scarcely possible that it could have entered into their minds to conceive that he had a claim to the land which he would thereafter bring forward. Under these circumstances, it was quite as necessary, in order to avoid the imputation of fraud, that h¿ should have given express and direct notice of his claim to the land, if he meant thereafter to insist upon it, as if his deed had still been in his desk unrecorded. It does not appear that any person, who was a bidder at the sale, had the least notion of his claim ; and it is impossible to believe that he was pot fully aware of this being the case with them at the time; and yet he forbears to make it known, stands by, seeing and hearing them bid for the land as if it belonged entirely to his brother Samuel. Would it not then be fraudulent in him now, after having conducted himself thus, to take from the purchaser an undivided moiety of his purchase 1 It is plain that to peimit him to do so would be, to permit him to act against good conscience, and to practise a most gross and palpable fraud.

We therefore think that the court erred in not instructing the jury, that the plaintiff below, if he meant to hold on to his claim to the land, should have given express and direct notice of it to the bidders at the sheriff’s sale; but not having done so, even according to his own evidence, he could not recover.

Having thus disposed of the only errors assigned which are considered well founded, it may not be improper to notice the third and fourth errors, which relate to the “memorandum” as it is called, made by Alexander Russell, Esq., and the admission of it in evidence by the court. It appears to us, that the court were right in permitting it to be read in evidence to the jury, because there was some evidence given which tended to prove that it was the agreement of David and Samuel Witherow, reduced to writing by Rus-' sell in their presence as such. And although it was competent for the defendant below to repel this evidence, by showing that the memorandum was not made with a view of committing to writing the agreement of the parties, but was made by Russell as a memorandum for his own private, use ; yet it was a question of fact, contested by the parlies, which could only be'determined by the jury, and therefore it became the duty of the court to submit it to them with all the evidence given in relation to it.

The only remaining matter, deemed worthy of a passing notice, is contained in the thirteenth error; which is an exception to the opinion of the court in rejecting the releases offered to be read in evidence by the counsel for the plaintiff in error. The court decided correctly in rejecting them, as they could not be made to subserve the purpose for which they were offered, that is, to show that by their effect, in law at least, the consideration money which Samuel Witherow was to have paid to or for David, on account of getting his interest in the land, had been satisfied so as to give Samuel or his assignees the full benefit of it in the same manner as if it had actually been paid by Samuel, by vesting in him, or the plaintiff in error as. his assignee, all David’s original right to and in the land. This, however, cannot be, because it appears on the face of the release that David executed it in consideration of his still being per, mitted to hold his interest in the land, which Samuel, by accepting the release, may be said to have assented to. It therefore amounted to nothing as regarded the rights of others ; and can neither advance nor prejudice them,

Judgment reversed, and venire de novo awarded.