
    ROBERT SMILEY against ROBERT DIXON, BENJAMIN CARSON and JAMES CARSON.
    A. being the owner of a tract of unimproved land, sel] son e hundred acres to-B. and one hundred acres to G.; B. and C. go,upon the ground and mark a division line between .them; it was afterwards discovered that A. had no title to the land: B. then went upon it, had a survey made of foqr hundred acres, including the oye hundred acres sold to C. and acquired 'title by actual settlement: ' JEteld, That there was not such a privity of 'estate or title between B. and C. as to prevent B. from thus acquiring ,for himself, a title to the whole of .the land.
    •Writ of error to the Common Pleas of Clearfield county.
    This was an action of ejectment brought by Robert Carson, the plaintiff in error, and plaintiff below, against Robert Dixon, Benja'min Carson and James Carson,
    
    ' The.case was.this: Robert Maxwell was,the agent of John Mitchellf with authority -to sell certain lands in Clearfield county, and being indebted to Robert Smiley, the plaintiff, he agreed to sell to him one hundred acres of the land, in consideration of the debt. About the same time Maxwell .also agreed to sell the other hundred acres of the same tract to Benjamin and James Carson, the defendants, at one dollar and fifty cents per .acre, out of which was to be deducted a debt due to-them also. Maxwell afterwards went upon the ground with Smiley and the Carsons and marked the division line between them. The agreement between them was that Mitchell .was to make the titles. Soon after this Smiley .and the Carsons discovered that neither Maxwell nor Mitchell had any title to the land. At this time no possession had been taken ;of the land by either party. Smiley then said that he would go on the land, improve :htj and acquire title by improvement, and hold four hundred acres.' He did move on it, built a house, cleared land, raised grain, and made a suryey to include the land in question; and .which is the part which Maxzc’ell sold to Benjamin and James Carson. About two years afterwards Benjamin and James Carson went upon their hundred acres, put a small house on it, and put Dixon, one of the defendants into it, as their tenant. It was also in proof, that before .the Carsons went on the land, one Dunlop had settled upon their hundred acres, and commenced an improvement, andiin conversation between Dunlop and Carson, he told Dunlop that he had better hot make an improvement, for Smiley would take it from him.
    The court below was of opinion, and so instructed the jury, that the plaintiff ought not to recover; on the ground, that each had purchased the one half of the same tract of land, each had expended his money, and each had a right to. perfect his own title to his respective lot; and that it would be against equity and justice, to permit either to take advantage of the other, inasmuch as they had purchased from the same source, with a perfect knowledge of each other’s rights, and had been equally unfortunate.
    The jury found for the defendants, and the plaintiff sued out this syrit of error.
    
      Blanchard, for the plaintiff in .error.
    The law as laid dqwn by the court is only applicable to a case where there is a privity of estate or interest 'or community of title, and such is the case of Vanhorn v. Fonda, 5 Johns. Chan. 407, upon which the opinion of the court belovy in this case wag predicated. In this case there was no privity of estate or community of title. The doctrine, when it does apply, is founded upon a trust, which did not exist between Smiley and Car-son, for their titles were separate and distinct. Cited Walker v. Walker, 16 Serg. Sf Rawle, 384. Dorsey v. Jackman, 1 Serg, Sf Rawle, 5.1.
    
      Valentine, for defendants in error.
    The conduct of Smiley in procuring his title to the prejudice of Canon, taken in .connection with the relation which existed between them, was a fraud which equity will not sanction. The parties lived together, consulted about their title, talked about , their division line, and with a full knowledge of each other’s want of title, Smiley sneaks off and commences an improvement not only to perfect his own title, but also take from Carson his title. The parties had a community of title; for each purchased the same title from the same person. This is an action in which the plaintiff seeks to have the equitable powers of the court administered in his behalf, which his conduct does not merit. He cited 4 Vin. Ab, 388. 1 Fond. Eq. 125, Dunning v. Gar-others, 4 Yeates, 17, MPherson v. Cunliff, 11 Serg. Sf Rawle, 427,
   The opinion of the court was delivered by

Huston, J.

(His honor here stated the case,) The Court of Common Pleas instructed the jury, that as both plaintiff and defendants had purchased from one who had nothing to sell — mere moonshine, and were equally unfortunate, that it was against equity for the plaintiff to claim, and take into his survey, what he knew another had bought, and what was separated by a line which he knew, and which he saw run and marked, That as they both purchased from the same person, the one could not hold the land which was to have been given to the other: and the court relied on the case of Vanhorn v. Fonda, 5 Johns. Chan. 388, and Liggel v. Bechtol, in this court. If Maxwell had title, this would have been right'; for neither could obtain fairly from him, what he knew was by agreement to be conveyed to another. But it is admitted that Maxwell had not even colour of title; his sale then, and purchase from him is literally nothing, even if there had been proof that his agreement with Garson had assumed any definite shape. Chancellor Kent decided, that one of two devisees could not purchase an incumbrance on their joint estate, and use it to sell the land and strip the other of his property: and in Ligget v. Bechtol, this court decided, that two tenants in common, who had heard of an adverse title, and agreed to join in defending- against it, or in purchasing, were bound to deal fairly with each other: and that one of them who purchased the adverse title for a small sum, must hold it in trust for the other, upon that other paying his proportion of the purchase money: and the law is clearly as decided in each of those cases, nay, it goes farther; and wherever two have a joint estate, it raises a duty in each to deal fairly with' the other; and one who purchases an adverse title, will not be allowed to sweep all from his co-tenant; unless some special circumstances occur in the case. In this case, these men did not purchase jointly, neither had any thing by purchase from Maxwell; they were not joint tenants, or tenants in common; and there was' no privity between them. The bare fact that each had been, cheated, neither gave any right to the other, or deprived him of the full and absolute right to purchase from the real owner, when discovered. The State was the owner; and Smiley purchased from' the State by his actual settlement.

When a man sells a defective title, and afterwards purchases the real title, this shall be in trust for his vendee, from Whom he shall not take away the land which he himself sold. And when one,’ present at a treaty of sale, advises a person to' purchase and that the title is .good, he shall not afterwards purchase a good title, and recover the land from one whom he induced to buy and pay his money. Lane v. Reynard, 2 Serg. & Rawle, 65. This does not come' within any of those cases; nor, as is believed, within any decided case; nor is it governed by any principle recognized in any court. There was no privity, no confidence between the parties, no concealment by Smiley, and nothing done by him to induce Carson to' purchase, or to confide in their purchase. The land was vacant to \ be taken by the first occupant; and there existed no obligation of law or tie of conscience, to prevent Smiley from táking possession.

It was hoWever said, that Smiley, who was unmarried, boarded at Carson's during the inception of his improvement, and until his' house was fit to reside in. Of itself this would give no right to' Carson. The proof is that before and during the time of improving, Smiley said he would hold four hundred acres by his improvement; ánd there is another fact which shows that Carson knew this, and acquiesced in it, that is, that he fold Dunlop, who began to' improve on the land now in dispute, after Smiley, that Smiley could hold the land by improvement, and Dunlop moved off. Tllis was a material fact, and showed that Carson knew his own purchase to be worthless; that he did not claim under it; that he knew how Smiley claimed; knew of the extent of his claim, and admitted its validity. Taking this with the other facts in the cause, we are at a loss to discover any principle of law or equity, which has been violated by Smiley,-or on which the Carsons can rely as á defence. It is not enough to destroy a- right, that some men wduld have scrupled to have acquired it, until they had inquired of another whether he wished to purchase it.- , For some time after the imposition by Maxwell was discovered,’the land was Open to occupation by the Carsons, as well as by Smiley; they do 'not enter, they know Smiley is acquiring title ;’thcy state to a third person that his title is good. Years afterwards,-when "the general improvement of the country is adding value to lands, they enter under pretence of what is conceded to be no title. This conduct savours more of unfairness than that of Smiley.

Judgment reversed,'-arid a venire facias de novo awarded.  