| Pa. | May 26, 1864
Lead Opinion
The opinion of the court was delivered, by
This was an action of ejectment by Thomas Struthers, the plaintiff below, against Irwin S. and Edwin Sunderlin and others, defendants below. The plaintiff claimed title by a sheriff’s sale of the title of Merritt Clark, and gave evidence to show that the Sunderlins had entered and held under Clark until 1855. The defendants gave no evidence of title in themselves, but gave evidence of sundry conveyances of Merritt Clark, showing that he had parted with all his title prior to the service of the attachment in which the judgment was obtained, under which the plaintiff purchased at the sheriff’s sale. To rebut this evidence the plaintiff offered a mortgage by Merritt Clark and others, reciting that Clark owned eleven twenty-fourths, and the others thirteen twenty-fourths of the premises in controversy.
In the mind of the court below the case seems to have turned upon two questions — 1st, Whether the Sunderlins entered under Clark, and held under him until he parted with his title in the early part of 1855; and if they did, then 2d, on the legal effect of the recitals in the mortgage ? The charge is not clear, and at first view it seems as if the court submitted the case to the jury on the ground of tenancy generally, with an instruction in favour of the plaintiff if the fact be so found. But a careful reading proves the meaning to be this — that if the Sunderlins did not go into-possession, and held under Clark in the years 1853, 1854,
The operation of such instructions upon the Sunderlins was this. It used the declaration in the mortgage made by Clark himself and his co-mortgagors to restore and create anew the relation of landlord and tenant, which he had terminated by his conveyances; and thus enabled Struthers to recover without showing a £park of title in himself, and thereby to turn out persons who by law were bound to hold for the vendees of Clark, in effect overriding Clark’s own deeds by his subsequent declarations.
His deeds carried not only his estate, but all the rents, issues, and profits, and reversions and remainders. They severed the prior relation between him and the Sunderlins, if they had been his tenants, and left them bound to attorn to his vendees.
Then there was an interval of time between the date of the last deed and the date of the mortgage, during which the tenancy was wholly gone. How was the tenancy revived ? Only by the simple declaration of Clark that he owned eleven twenty-fourths, and the declaration or certificate of his co-mortgagors to the same fact. Thus the mere written certificate, as it were, of persons who were neither parties nor privies in estate, or in the suit brought to recover the estate, is made evidence to reinvest Clark with title to these eleven parts; and even more, it was laid upon the jury with a binding instruction on the ground that it operated as an estoppel upon persons who, after Clark had parted with his title, stood in no relation or privity to him.
If the tenancy of the Sunderlins under Clark at the time of the service of the attachment, or the levy and sale to Struthers, had been shown by evidence aliunde, we might understand that any declaration of Clark which could operate upon him might affect them by reason of privity of estate. What effect the recitals in the mortgage would have if coupled with other evidence tending to show a trust in the deeds for Clark, or a reconveyance to him, we are not now called on to say. But on what principle of evidence or law his naked declarations or those of a stranger could be used, first to renew or restore the'tenancy, and then to estop, it is difficult to perceive. The effect of it is to let into
- These remarks in effect dispose of the bills of exception to the evidence.
The judgment is reversed, and a venire facias de novo awarded.
Concurrence Opinion
Concurring opinion by
This was an action of ejectment brought by Thomas Struthers against Irwin S. Sunderlin and Edwin Sunderlin, to recover the possession of several tracts of land in McKean county. The plaintiff gave in evidence the record of a foreign attachment sued out by him against Merritt Clark, under which the sheriff on the 5th day of April 1855 attached the right, title, and interest of Clark in the lands in controversy. The defendant in the attachment appeared to the writ and took defence, and a verdict and judgment were obtained against him, under which his interest in the lands was sold to the plaintiff; who received a deed from the sheriff. In addition to this, some evidence was given tending to show that the Sunderlins were in possession under Clark. This was the whole of the plaintiff’s case.
The defendants made no attempt to prove title in themselves, and none to rebut the allegation that they had entered and held under Clark (though they attempted to limit the extent of their possession), but they gave in evidence certain conveyances showing that Clark had become the owner of the lands by deed from the plaintiff, and another on the 25th day of January 1853, and that he had parted with all his title before the judgment was recovered against him, and even before the attachment was sued out.- The last conveyance was dated on the 14th of February 1855, and was recorded on the 8th of June next following.
- To meet this evidence given by the defendants, the plaintiff in rebuttal submitted the record of a mortgage from Merritt Clark and six of the grantees in his deeds, to one Stephen O. Shephard. It was dated on the 21st day of March 1855, acknowledged on the 3d day of April 1855, and recorded on the 18th of December next following. It was a mortgage upon the lands in controversy in this suit, and it contained the following recital, as introductory to the granting part: “ Whereas the said Merritt Clark is seised in fee of the undivided eleven twenty-fourth parts of the following described premises; and the said Archibald McClure of the one undivided twenty-fourth part; and the said John A. Rathbone of the undivided two twenty-fourth parts; and the said Ellis Baker of the one undivided twenty-fourth part; and the
Upon this state of facts, the court instructed the jury to find whether either or both of the defendants were in possession under Merritt Clark, and that if they found that they (the defendants) went into possession under him, and held under him in 1853, 1854, and 1855, the plaintiff, being the vendee of Clark’s interest in the premises, had the right as against them to the possession thus acquired and held. The jury were also told that if they found the defendants did not go into possession under Clark, and did not hold possession under him as before stated, their verdict should be for the defendants. This would have been right if the direction had been more specific, and if the' attention of the jury had been confined to the question whether the defendants held under Clark when the attachment was levied, which was April 5th 1855. The deeds given in evidence showed that Clark had sold his last remaining interest in the lands on the 14th of February, some fifty days before the levy of the attachment. It may therefore well have been that the Sunderlins entered under Clark and held under him in 1853, 1854, and 185-5, and yet did not hold under him when the lands were attached, or at anj’’ time afterwards. Indeed, the most important effect to be secured by giving Clark’s deeds to his grantees in evidence, was not to show an outstanding title, but to prove that whatever may have been the fact in 1853, 1854, or in the beginning of 1855, the defendants were not tenants of Clark, and did not hold under him on the 5th of Api’il 1855, or at any time after February 14th of that year, when his last deed was made. If they were his tenants before, they ceased to be such when he parted with the entire reversion. The charge of the court was, therefore, in this particular, calculated to mislead the jury, for it directed a verdict for the plaintiff and against the defendants, even though they were not holding under Clark when the plaintiff obtained his lien, and though they never held under him afterwards. It is true there is no specific assignment of error to this part of the charge,
The principal error in this record, however, is found in that part of the charge in which the court virtually withdrew from the jury the question of the defendants’ possession under Clark, and declared as matter of law that as to eleven twenty-fourth parts of the lands, they were estopped from denying that he owned them after his conveyance to his grantees, and were therefore estopped from resisting the plaintiff’s recovery. This estoppel the court found in the’ recital of the mortgage already mentioned as having been given by the grantees named in some of the deeds made by Clark, and given to Stephen O. Shephard. The court instructed the jury, that, the mortgage having been recorded before the sheriff’s sale to the plaintiff, the recital in it estopped the mortgagors from denying that Merritt Clark was the owner of eleven twenty-fourth parts, because they had asserted it and because their denial of it now would be a fraud upon the plaintiff. They therefore submitted to the jury, as the only questions for them to determine, whether the parties to the mortgage made the declaration that Merritt Clark was seised of eleven twenty-fourth parts of the lands, and whether, on the faith of that declaration, the plaintiff bought Clark’s interest in them for a valuable consideration. Nor did the court stop here. They immediately withdrew even this submission, and went on to say that the mortgage contained such a declaration, and that the legal presumption was the plaintiff knew and acted upon it. “If,” said the court, “the principles which govern the doctrine of equitable estoppel are applicable to this case (and that they were the court had previously affirmed), there can be no question here now in regard to the title of the several mortgagors at the time of the execution of the mortgage, nor is it a matter of any consequence whether Clark was at that time the owner of any portion of the title.” And again, “ that Clark was seised in fee and had title is a legal presumption which his co-mortgagors are estopped from denying, because they have asserted it, and because their denial of it would be a fraud on the plaintiff.” Other parts of the charge are to the same effect. Of course, under such instructions, the jury found for the plaintiffs for eleven undivided twenty-fourths of the lands. They were not left at liberty to
With such a mode of presenting the case to the jury I cannot concur, and I regard the instruction given as to the legal effect of the recital as entirely erroneous. Conceding that the mortgage containing the recital, though neither the plaintiffs nor defendants were parties to it, was admissible in evidence as a declaration of some of those to whom Clark had made deeds-for the land, and tending to rebut the evidence the defendants had given that Clark’s interest had all passed out of him before the attachment was laid, and of course that they had ceased to hold under him, undue effect was given to the declaration. The title having been in Clark, if the defendants held under him while he was the owner, they must have held under the reversioners when the reversion was all granted away, and their possession was no longer Clark’s possession. Then, they had come into privity with the owners of the reversion, namely, Clark’s grantees; and declarations of the grantees, or any act of theirs that tended to show that Clark still remained the owner notwithstanding his deeds, was evidence against them. If the title of Clark’s co-mortgagors failed, if he still remained an owner, the defendants’ tenancy under him continued, if there was one before the conveyances, and as they undertook to shelter their possession under those mortgagors, they could have had no defence if the mortgagors would have had none. The question then becomes this, and it must be met: — whether the recital in the mortgage, with the subsequent purchase of the plaintiff at sheriff’s sale, estops the six grantees of Clark, who joined in the mortgage, from asserting their title according to the deeds to them. Certainly the recital could not affect the title of Pruyn, and the fivo others who were grantees of eight twenty-fourth parts. It was not even evidence against them. Their deeds were upon record, and it is to be presumed the plaintiff knew they were owners of eight parts. If the recital affected anything, therefore, it must have been the remaining sixteen parts. But it declares that of those sixteen, in regard to which alone the co-mortgagors of Clark could speak, thirteen belonged to them. This it asserts in the same language and in the same sentence as is used to assert Clark’s ownership of eleven parts. It is not therefore an admission that Clark’s interest is to be served out of their thirteen parts, and, as already said, as an admission that it could he served in any degree out of the unmortgaged parts, it amounts to nothing. At most, it was an admission that Clark owned eleven shares to be served out of some other interest than those of his co-mortgagors. Nor was
Nor was the recital an admission or declaration made to the plaintiff at the time of the sale, or at any previous time. He was not a party to the mortgage. It was altogether res inter alios acta. If he saw it and did not know it was a mistake or a falsehood, still he was not warranted in relying upon it. I agree that if the plaintiff had been induced to purchase by anything said by these mortgagors at the sale, or by representations made by them to him previously, they would have been bound by their declarations, and precluded from averring the contrary to the prejudice of his title. But it is an unprecedented extension of the doctrine of equitable estoppel, to hold that a man is bound to the world to make good what he has said to any one, if others choose to rely upon it. If every man may be held liable not only to parties and privies to his deed, but to all mankind to make good every introductory recital which the deed contains, it behooves him to avoid all recitals, and be careful what scrivener he employs. Such is not the law, and there are no authorities which assert it. The plaintiff then, being a stranger to this mortgage, neither a party nor a privy, cannot use it as the basis .of an equitable estoppel.
Even if he could, and even if it had contained an unqualified admission that Clark owned eleven parts, to be served before the other mortgagors could claim anything, there was no proof in this case that justified the court in declaring, as matter of law, that he had been misled to his hurt. True, the mortgage was on record, but there was no evidence that the plaintiff ever actually saw it. He was not bound to search the record after April 5th 1861, when the attachment was levied, and the mortgage was not recorded until long after that time. At best the record was only constructive notice. It raised a presumption that the plaintiff saw it. On this mere presumption the court raised a second presumption that he bought on the faith of it. The estoppel, therefore, the gist of which is always fraud, is rested on a double presumption, never allowed in any case, certainly not when fraud is asserted.
But in reality the recitals in this mortgage must be regarded
The judgment of the court below should be reversed.