Miller's Appeal

Chief Justice Agnew

delivered the opinion of the court,

From the report of the auditor we gather the following facts clearly stated though not found in a very orderly connection. David Ferguson, the testator, and his wife Mary A. Ferguson, were seised by a common conveyance of a tract of land in entirety, per my et per tout, which according to law at his death survived to her. David Ferguson made his will devising and bequeathing all his real and personal estate to his wife during life, and at her death to Mary Miller, Margaret Germon and Sarah Miller, and appointed James D. Miller the appellant executor, with power to sell and convey his real estate, and the auditor says he certainly believed he owned one half of the farm. Miller, his executor, and Mrs. Ferguson, acting upon this belief, “on the same day and at the same time” conveyed this tract of land to Daniel V. Ahl, who paid to each the sum of $952, as the price of the supposed, undivided half coming to each, the scrivener, John Zinn, certifying. that when the sale was made, he made each deed for the one undi *395 vided half because he considered the place belonged to both parties. The auditor says that “the executor of David Ferguson (Miller) believed he had the right to convey one-half of the farm and the widow also believed so and assented, and the conveyance was honestly made to Daniel Y. Ahl, and he paid the money.” Now these facts, the deeds being made as the auditor finds on the same day and at the same time, and with the assent of Mrs. Ferguson, and thus accepted by Ahl, who paid his money on the faith of the joint acts of the executor and the widow, prove conclusively, that Mrs. Ferguson led Ahl to believe that the title stood in the way the deeds indicated, and acting on this belief he paid one-half of the purchase-money to the executor. Such being the case Mrs. Ferguson would clearly be estopped from recovering the land from Ahl. It is a case not of mere silence by one ignorant of her rights, but one where the positive act of Mrs. Ferguson in uniting with the executor to make the sale, misled. “ True (says Gibson, C. J.), the title of a party who ignorantly encourages another to purchase will he postponed; not, however, for fraud, but for having occasioned a loss which must be borne by some one, and consequently by the author of it:” Paul v. Squibb, 2 Jones 290 . So Huston, J., says: “ There is anpther rule equally well settled, where at the time of a sale the seller or any person present represents the title to be in a certain way, and it turns out not to be so, yet as against the person making the representation it shall be as represented:” 2 Penna. 277. In Buchanan v. Moore, 13 S. & R. 306, it is said by Gibson, J., “ If both were equally innocent a loss in consequence of the acts or declarations of the one ought not to be borne by the other.” The same doctrine is assorted in Lewis v. Carstairs, 5 W. & S. 209 . The doctrine of estoppel is largely discussed by Bell, J., in Commonwealth v. Moltz, 10 Barr 527, wherein he states it as an established principle .“that in all cases where an act is done or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to it.” See also McKelvey v. Truby, 4 W. & S. 325 . Without further citation the doctrine of estoppel by acts or declarations is well summed up by Justice Woodward in Beaupland v. McKean, 4 Casey 131. He says “ The rule is clear that mere silence will postpone only when silence was a fraud; and a fraudulent concealment of title cannot be imputed to one who was ignorant that he had any title to conceal, but positive acts stand on a different ground. For there his title may be postponed even without fraud, in accordance, with an equitable principle of universal application, that where a loss must necessarily fall on one of two innocent persons it shall be borne by him whose act occasioned it.” Now, it is clear that when Daniel Ahl honestly purchased as the auditor finds, from Mrs. Ferguson at the same time and place, with *396 the executor of her husband, and each made a deed for the undivided half, she did an act which was declaratory of her husband’s title stronger than mere words; and when Ahl paid the money for her husband’s half with her assent, as the auditor finds, he did an act of decided injury to himself under the influence of her conduct, which must cause him a loss of f952, if she or her heirs are permitted to recover, the land from him. Nor is the conclusion weakened by the doctrine of caveat envptor, or that ignorance of the law excuses no' one. Caveat envptor carried to this length would destroy all estoppels, for generally the purchaser may always know the truth of his title 'if he tries, but it is because he is misled he does not try to ascertain it. Ahl, if he had not been misled by the conduct of Mrs. Ferguson and the executor, might have found out the nature of her' title, but there is no evidence he was aware of it. Husband and wife may hold as tenants in common by separate deeds, or by the precise terms of a conveyance as such. The legal effect of ignorance of the law cannot deprive him of the attitude of one actually misled by the conduct and representations of Mi’s. Ferguson. Ignorance of the law, in its effect, cannot operate without a knowledge of the facts on which the law arises, and his very reliance on the acts and representations of Mrs. Ferguson and the executor took from him an opportunity of knowledge, and it does not lie in their mouths to reproach him with ignorance of the law, or the maxim caveat emptor. Ahl, therefore, can hold the land, and the next question is can the executor withhold the money from Mrs. Ferguson or, since her death, from her executor ? Clearly not. Here the principle of estoppel which protected Ahl cannot be resorted to by the executor. He is not injured; he has paid nothing and lost nothing, but he has actually received that which Mrs. Ferguson suffered him to receive in ignorance of her rights,He and she rested on the same deed for title and so far as ignorance of the law is involved both stand on the same footing and. neither can assert the knowledge of the title to be greater in one than in the other. This position is well stated by C. J. Gibson in Paul v. Squibb, supra, a case of precisely similar character, where husband and wife held an estate of entirety as in this case and the husband’s supposed interest was sold at Orphans’ Court sale. “ Constructive knowledge (said he) of an undisclosed right is not enough to charge the party with concealment.” Again, “ She assented to a sale of her husband’s title, not her own; and the title she had was founded on a recondite principle of common law, which even a learned conveyancer might overlook. Every one is presumed to know the law; but the presumption is not strained so far as to charge him with an act of immorality, especially when the complainant had the same means of knowledge and was equally implicated. She was not bound therefore to protest against the sale at her peril.” Now, here no consideration *397 passed from the executor, to the widow, no injury accrued to him or the estate in his hands ; both had equal opportunities of knowledge, and both were equally innocent, while both were misled by the act of the testator, who directed his real estate to be sold, and as the auditor finds, believed himself to be the owner of the undivided half of this estate. It is clear, therefore, that the executor received money belonging to Mrs. Ferguson, which she was not estopped from recovering, and which, therefore, he is bound to refund.

Now what have the auditor and court below done in this case ? They have surcharged him, as the executor of the husband, with the money of the wife, and from this decree he has appealed. Clearly he is entitled to be discharged of it, and the more especially as, being the executor of the wife also, he will be held to account to her estate for it. The husband’s estate is not entitled to the price of the wife’s land, and therefore the executor should not be charged with it. The wife’s estate is entitled to it, and therefore a decree should not stand which may lead to charging him twice with this money.

Decree of the Orphans’ Court is reversed, and the charge in the executor’s account of the sum of $952, the price of the undivided one half of the land owned by Mrs. Ferguson, is ordered to be struck out of his account; but as the executor, James D. Miller, has caused these proceedings by his own acts, he is ordered t'o pay the costs of the audit and of this appeal; and the record is ordered to be remitted; to carry this decree into effect.