
    Riddle against Murphy and another.
    
      Monday, September 17.
    In Error.
    Where both plaintiffs and defendant claim under the same right, the not'boundw trace back their title beyond the person holding that right. If there be an adverse right, it lies in the defendant to shew it.
    ERROR to the Court of Common Pleas of Washington ° county,
    This was an ejectment brought in the Court below, by John Murphy and Rosanna Jackson, against Samuel Riddle, io recover a tract of land in Washington county. The land had belonged to Cornelius Murphy, who held under an improvement right, and died in 1802. By his will he devised It to his daughters Alice and Ann Murphy: The .plaintiffs who were the brothers and sister of Cornelius Murphy, claimed as the heirs at law of Alice and Ann, who it was proved had gone away from the State prior to the death of Cornelius Murphy, and had not since been heard of. The defendant, Samuel Riddle, was the son and devisee of John Riddle, who was the administrator with the will annexed, of Cornelius Murphy, and had purchased the land at a Sheriff’s sale which took place under an execution issued to August Term, 1804, upon, a judgment obtained by one William Williamson, against the said John Riddle, as administrator of Cornelius Murphy, by the confession of John Riddle. Riddle afterwards perfected the title. The plaintiffs alleged that this judgment and the sale thereon were fraudulent ; that if the debt were due to Williamson, S. Riddle at, the time of the sale had assets in his hands to pay the same ; that the land was purchased by him greatly below its value, and gave evidence of these and other circumstances to impeach it. It appeared also, that in 1808, an ejectment was brought in the name of Alice and Ann Murphy, against John Riddle, which was removed to the Supreme Court, and tried in 1811 : a verdict was found for the plaintiffs and a new trial was awarded ; and the costs were afterwards paid by John Murphy, who had conducted the suit on behalf of the plaintiffs in that suit. The other plaintiff Rosanna Jackson, was then examined as a witness for the plaintiffs.
    
      If an administrator purchase the land of his intestate at Sheriff’s sale, on a judgment recovered for an alleged debt of the intestate, in an ejectmenl afterwards brought by the heirs of the intestate, who allege the judgment to be fraudulent, if it do not appear that the debt was bona fide, and if the administrator had assets to pay it, they mav recover the land against the administrator on the ground of fraud, without previously tendering the money paid by him or the value of his improvements.
    The Court w ill not reverse for an erroneous expression of the Court’s opinion on a fact, unless it clearly appear that the jury were thereby precluded from deciding for themselves.
    
      Several objections to the plaintiffs5 right to recover were made, and the opinion of the Court was reduced to writing, and filed of record. -
    In the first place, the defendant objected that the plaintiffs had not shewn a title in Cornelius Murphy, under whom they claimed. To this the plaintiffs answered, that they had proved that S. Riddle came into possession as the devisee of John Riddle, who purchased the land at Sheriff’s sale as the property of Cornelius Murphy, and as he held prima facie in this right, they were not bound to go farther back unless the defendant shewed some title in himself aliunde. The Court charged, that as no other right had been alleged by the defendant than that arising under the Sheriff’s deed to his father, the plaintiffs were not bound to go beyond it.
    2. As the title of Cornelius Murphy vices, only inchoate, and as the plaintiffs had been out of possession when this suit was brought, for more than seven years, the defendant relied on the5thséct. of the Limitation Act of March, 1785?i Purd. Dig. 420, as barring their recovery. On this point the Court charged as follows.
    With respect to the construction of this Act we observe, that it refers to adverse possession, which the policy of the law in the case enumerated says, shall be quieted after seven years, unless the party having inception right shall proceed to perfect title. It does not apply to cases of fraud, unless discovered within the time limited, nor even if the fraud is discovered, unless the party to be injured is conscious of it. It is not material that others are acquainted with it, if the person who is barred be ignorant. Were Alice and Ann Murphy then ignorant of the circumstances of fraud upon which their claim was asserted at the trial in 1811 ? In point of fact, we have it well established that neither of them were here prosecuting the suit, nor have we any evidence that they were then living—they were searched for and advertised in the newspapers by Mr. Read and Mr. Dofdridge, for four years up to 1819, without success. We cannot believe therefore, that they even knew of the transactions, and if they had instituted this suit, the Act would not bar them. But it is said, that John Murphy and Rosanna Jackson, the present plaintiffs, knew of the fraud, and are therefore precluded by the limitation. It is true, that John Murphy, in behalf of his nieces, conducted the former suit, when the unfairness of Riddle's conduct was developed, and must have been apprised then of the facts now produced in evidence. It is also true, that Rosanna Jackson was a witness at the trial. But at that time neither had any interest in the litigation,—they could not be bound to notice what they could not redress. If in 1811, they could not have supported a suit in their own right, their knowledge of the facts of fraud, will not cause the Act to run then against their title derived thereafter. Has the limitation then elapsed usince their title accrued? If it has, with a knowledge of the fraud concurrent, they cannot recover, for Cornelius Murphy had a mere inceptive right, which has been since perfected by Riddle, This leads to the inquiry, whether Alice and Ann Murphy were alive at the death of their father John, and are since dead without issue, and if so, whether moré than seven years before the bringing of this suit. The proof on this subject is presumptive, arising from the repeated searches and inquiries made after them, and from the lapse of time. This however may afford ground sufficient to satisfy you that they were dead before the suit was commenced. Evidence that a man has not been heard of for many years, is prima facia enough to prove him dead, without issue, See. As it respects these persons', the only certain information we have of them at all, is the testimony of the declarations of Cornelius Murphy to Peter Kidd, Mrs. Riddle and David Jones, that he had two daughters in Carolina. Mr. Doddridge in the course of his inquiries, heard that at some time they had been in ■ Green Briar county, in Virginia, and from thence had ‘ removed West, but could not be traced further., The date of his last search was in 1808 or 1809. Mr. Kidd has never heard of them at all since the death of John Murphy, although he advertised for them fourteen or fifteen years ago in Staunton, Virginia. If from these circumstances the presumption of the death of Alice and Ann Murphy within seven years prior to the bringing of this suit, is sufficiently strong to satisfy you, every difficulty from the Statute of Limitations is removed, and we proceed to examine the real and substantial merits of the case.
    3. The defendant contended, that the plaintiffs could not recover, because there was no tender of the purchase money paid by J. Riddle for costs or improvements on the land in question. The Court charged as follows.
    The defendant concludes by an additional legal objection, which is, that a tender has not been proved before suit brought, and that therefore the plaintiffs cannot'now recover. To this-we observe, that if you bring the case to that point, it is not necessary, because the administrator by his own shewing had, at the time of the sale, assets sufficient to discharge the debt.
    
      4. It was now assigned for error, that the Court erred in giving their opinion or directions to the jury as to the facts, and therein exceeded their legal' and constitutional province. That part of the opinion to which this objection was made, was as follows :
    The defendants resist the claim of the plaintiff on the legal point first noticed, and also by denying that the evidence respecting Alice and Ann, affords sufficient presumption of their death. And to repel the suggestions, he produces the record of an ejectment brought by Alice and Ann Murphy, against John Riddle, to March Term, 1808, for this tract of land. This suit was removed to the Supreme Court, and tried in March, 1811, when there was a verdict for the plaintiffs, and new trial was awarded. It appears that the costs were afterwards paid by John Murphy, and it is contended, that here is his admission that his nieces were alive at that time, as he prosecuted the suit in their right. Any such inference however, is removed by the proof we have, that before this inquiry had been made at the request of John Murphy, for his nieces, in different places without success, and that in fact he did not know they were in being.
    The case was argued by Riddle and Campbell, for the plaintiffs in error, and Waugh, contra.
   The opinion of the Court was delivered by

Gibson J.

The plaintiffs below are the heirs of Alice and Ann Murphy, the devisees of Cornelius Murphy, under whom the defendant also claims. John Riddle, who devised the premises to the defendant, and who was also the administrator of Cornelius Murphy, confessed a judgment on which the land was sold, and became himself the purchaser. The questions below, which are again agitated here, were : 1. Whether, if the cause were with the plaintiffs on all the other points, they would not, nevertheless, be bound to shew title in Cornelius Murphy, at the time of his death : 2. Whether it sufficiently appeared that Alice and Ann Murphy were dead : 3. Whether the plaintiffs could recover without first tendering a sum sufficient to cover the purchase money, costs, and any improvements that may have been made by Riddle the purchaser, or the defendant his de~ visees—to which is added, here; 4. That the Court gave a binding direction as to matters of fact.

1. Both parties claim under the same title ; it is too clear, therefore, for argument, that the plaintiffs were not bound to trace back their title beyound Cornelius Murphy. If there was a title adverse to his, either in the Commonwealth or a third person, it lay on the defendant to shew it.

2. Whether Alice and Ann Murphy were dead at the bringing of the suit, was a question of fact; and we cannot look into the record to see whether there was sufficient evidence to warrant the verdict. But it is objected that the jury were instructed, that a legal presumption of death arises from absence for seven years, where the party has not been heard of within that period.—Nothing like this is found in the record. As the title of Cornelius Murphy was only inchoate, and as the plaintiffs had been out of possession for more than seven years, it was insisted that the fifth section of the Act of Limitations of 1785, interposed a bar. The Court, very properly, charged, that if the sale was fraudulent, the act began to run against the devisees of Cornelius Murphy, or those who represented them, only from the time the fraud became known to the person then having the title. There was no proof that Alice or Anne, on whom the title first devolved, ever knew of the fraud, or indeed, of their interest in the land ; but the plaintiffs were long acquainted with whatever fraud may have existed; the Court therefore charged that if, by the death of Alice and Anne seven years before the inception of the suit, the title was united, in the persons of the plaintiffs, to a knowledge of the fraud, they would be barred. It is plain, therefore, the direction-was different from what it is said to have been. In speaking directly to the evidence of death, the Court, after stating it, say that it may afford ground to satisfy the jury that Alice and Anne were dead before the suit was commenced; and then state, as a rule, that proof that a person has not been heard of for many years is prima facie evidence of his being dead;—.and conclude with telling the jury, that if the circumstances in evidence, were sufficiently strong to raise a presumption that Alice and Anne had died within seven years before the bringing of the suit, every difficulty before presented by the Statute of Limitations, was removed. The Court therefore specified no time as sufficient to raise a legal presumption of the death of an absent person ; but submitted thé matter as, (what it must always necessarily be,) a pure question of fact, to be decided from a consideration of the whole case. rIhe objection on this ground, therefore, fails.

3. The plaintiffs claimed under an equitable title ; and to succeed, it was necessary to prove such a fraud in Middle, the administrator and purchaser, as would induce a Court of •Equity to treat him as a trustee, and compel him to reconvey j and this is what the Court mean, when, in answer to a question about the necessity of a tender, they say : “ if you bring the case to that point, a tender is not necessary.” That is ; the plaintiffs cannot recover unless they shew that a fraud was committed ; without which, it will be unnecessary to consider the effect of want of tender ; but if you bring the-case to the point at which the consideration of it does become necessary, we are of opinio'n a tender is not essential. Here the plaintiffs had put their case on the proof of a nefarious fraud ; and although the maxim, that he who has committed iniquity shall not have equity, does not extend to the case of a defendant, still I think that independent of this, the defendant had not, under the circumstances of the case, such an equity as would entitle him to insist on having any thing refunded. It did not, and cannot, appear that the money advanced, was paid on a judgment for a bona Jtde debt of the estate. But taking it that the debt had not been trumped up for the occasion, and that the fraud consisted in permitting the land to be sold for a debt while assets sufficient to discharge it were in the administrator’s hands, it is plain the money paid oh the judgment is to be considered as an advancement out of the funds of the estate, for which the administrator would be entitled to a credit, on the settlement of his account. He could not claim to be reimbursed in the character of a purchaser; for if the sale was fraudulent, it was a nullity. But take it that the money was advanced out of the administrator’s own pocket, and that he afterwards charged himself with, and settled for, the assets actually in his hands at the time of the sale : still the real estate is liable only secondarily, and in aid of the personal estate, which is the appropriate fund for payment of debts ; and, therefore, if the advancement was a charge on the whole estate, it could come on the land, only on a supposition that the administrator had it not in his power to apply the personal estate ; which is directly the reverse of a fact necessary to be assumed before the question can arise. But further; if the defendant could hold till he should be reimbursed for the advancement of his devisor, it would, in effect give him power to appropriate the real estate to the payment of the debts, in the first instance; and, even if it were otherwise, I know not how he could retain possession, where the money must be considered as advanced by him, not in the character of a purchaser, or on the credit of the sale, but in discharge of his duty in the payment of a debt. His claim to compensation for improvements stands on worse grounds still. Thu entry of the administrator, in the guise of a purchaser, was by fraud, and, therefore, no better than an entry without even colour of title ; and it would be monstrous to permit a wrong doer.to retain the possession against the lawful owner, till he should be reimbursed lor improvements that may have been even, an injury to the inheritance. This objection also fails.

4. The last assignment of error is, that the Judge gave a binding direction as to matters of fact. We all readily agree as a general rule, that where facts are withdrawn from the jury, there is error; but the difficulty is to apply it to particular cases. A Court will not reverse, unless for plain and obvious error. Where therefore the Judge has not expressly assumed the office of the jury, the inference, that the latter must have understood the expression of the Court’s opinion, as an inhibition to judge of the truth of the facts, ought to be a necessary and a natural one. A bare suspicion, that they were misled as to the extent of their powers, will not be sufficient. I would apply to such a case, the same measure of probability, which governs where there is a direction in matter of law, right in itself, but so imperfect and obscure that there may be some reason to apprehend the jury misconceived the law : in which case I hold, that obscurity is not error, where it is no greater than to lead to a suspicion that the jury were misled ; for no expression of opinion can be so explicit as to preclude every possibility of misapprehension, and, as I have already said, a Court should not reverse unless the error is plain and palpable. 1 have carefully examined this record, without being able to discover any thing to give rise, even to a suspicion, that the jury thought themselves precluded from deciding any of the facts; and I, therefore, cannot say there is error. On this subject the cases have already gone as far as the doctrine is convenient, and I am not prepared to take an inch of ground in advance. The judgment is affirmed.

Judgment affirmed.  