77 Pa. 89 | Pa. | 1875
delivered the opinion of the court,
Both the assignments of error raise the question of the sufficiency of the evidence to constitute an estoppel.
The first assignment rests on the testimony of Barney Yensel, from whom the defendants in error acquired title. David Yensel claimed the land in controversy, and desired to sell it to Barney. “The latter testified “ the report was, Keating claimed the upper part of it, and I would not buy until I saw Keating. I saw him, and asked him if he claimed any of the land. He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it.” Barney also testified, that from what Keating told him, he thought the title was all right, and some six months or a year thereafter, he purchased the land of David, paying him part of the purchase-money down, and had since paid the residue. He further testified, “ Í do not know whether Keating kn.ew where the lines were, nor amount he claimed, at the time he talked with me.”
It does not appear that Barney informed Keating that he had any intention of buying the land, nor that he had any object in making the inquiry.
It will be observed, the declarations of Keating consist of two parts, the one a statement of existing facts, the other, an intention in regard to his future action. The only existing facts, in regard to title, which he asserted, were, he thought he did claim part of the land, but it did not amount to much — whether much in quantity or much in value, he did not-specifically state.
The land in dispute is a narrow strip lapping over on the west end of a larger tract owned by Keating. In the absence of any evidence that he knew where the lines on the ground were, and
The second assignment is the affirmance of the ninth point submitted by the defendant in error. This point is very general in its terms. It fails to indicate what acts or declarations would constitute encouragement to purchase, or what are necessary to create a duty to assert a title. The affirmance of the point virtually left to the jury to determine the law, as well as the facts. They should have been instructed as to what facts or circumstances were sufficient to create that duty. We therefore think the learned judge erred in his answer.
Judgment reversed, and a venire facias de novo awarded.