Bracken against Miller, 4 Watts & Serg. 102

The opinion of the Court was delivered by Sergeant, J. — It is unnecessary, in delivering the opinion of the Court in the present case, to do more than notice the points assigned for error, as all the facts and circumstances relating to it are fully stated and well commented upon in the opinion brought up for our revision, and to repeat them would but load the case with details, either passed on by the jury, or now waived by the plaintiff in error. 1.

The first error assigned is in the charge of the court, in refusing to accede to the plaintiff’s proposition, that the knowledge of David Pride, the agent of Marian Pride, obtained seven years before her purchase, was sufficient notice to Marian Pride, who employed him to negotiate this purchase for her. In this, however, it is our opinion there was no error, but that the charge of the court was correct.

Even supposing David Pride was but a trustee, and held the lands conveyed to him by Thomas Bracken in 1816 subject to certain trusts, expressed in the paper signed by David Pride, two days after the conveyance, yet the alleged purchase by Marian Pride was not made till the year 1823, and was a separate and distinct transaction from that of 1816, to which David Pride was a party; and brings the case we think clearly within the rule cited by the court below from Hood v.

Fahnestock, (8 Watts 489), that to visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the same transaction. This is, at best, rather a dubious ground on which to conclude that the principal had notice —because, for various reasons he may not communicate his knowledge to his principal, although strictly it might be his duty to do so.

But to a certain extent, it has been so considered, and where it occurs during the same transaction, where the knowledge of it is fresh and the memory recent, and the events transpiring are of importance to the interests of the principal, there is perhaps good reason for it. But it cannot be so inferred of an old and different transaction, of a knowledge deposited in a secret paper, one which the agent has long ago perhaps laid aside as obsolete, or which he may, as the plaintiff suggests, have an interest in suppressing all knowledge of, lest a development of it should defeat the object contemplated by him.

There is a further difficulty in the way of the position assumed by. the plaintiff, growing out of the evidence in the cause. I have looked over the paper-book carefully, and have not been able to find in any part of it proof that David Pride, or M’Donald, the attorney of the bank, was the agent of Marian Pride, except so far as it may be inferred from the declarations and acts of David Pride himself, and these are not evidence to show his agency. Irvine v.

Buckaloe, (12 Serg. & Rawle 35.) Marian Pride does not appear to have had any interviews with M’Donald, or any communication or correspondence with him; nor is there any evidence that she authorized David Pride to make the declarations or take the course he did.

For aught that appears she may have been wholly ignorant of all that David Pride said, or M’Donald, the attorney for the Bank of Pennsylvania, did in relation to the sale of these lots under the judgment and execution of the bank, and may have bid at the sheriff’s sale and paid the purchase money and received the deed without any participation in their arrangements. It cannot therefore be fairly assumed that M’Donald was her agent.

He seems undoubtedly, according to the evidence of several witnesses, to have conformed to the wishes of David Pride, but I see nothing to reach Marian Pride, beyond conjecture or probability, which must be disregarded in establishing the fact of notice against her. 2.

The second error assigned is in the court’s stating to the jury, that there was no evidence of part of the $16,200, advanced by Pride for Bracken, at or about the time of the execution of the deed to her, having been paid out of Bracken’s personal estate, and Pride would have no right to such a charge, and therefore cannot be presumed to have got it allowed. I perceive nothing in the evidence to show that the position laid down by the court was inaccurate.

By the terms of the declaration or covenant given by David Pride to Thomas Bracken, two days after the deed, the sale of the lots was the source from which Pride was to be refunded the money he had raised and the debt of James Bracken, with all expenses and costs, as well as other moneys he might pay out— the residue to go to Thomas Bracken or his estate. Till Pride sold, certainly he must have looked to the land under the plain

interpretation of this agreement; and the verbal testimony of Thaw, that it was intended he should have power to resort to the estate, is not evidence to contradict the express terms of the written contract, and to deprive it of one of its most essential features, that David Pride should realize his advances out of the sales of the land itself. 3. The third error is in directing the jury to allow Pride credit for the promissory notes of Bracken found among Pride’s papers, without any evidence of his having paid them beyond the mere fact of their being in his possession.

The case is of an executor who has been dead for sixteen years, and there are found among his papers promissory notes given by his testator to a third person and due some seven or eight years before, but without any receipt upon them or other evidence of payment, and without any claim during" the interval on account by the creditor.

I confess I should suppose it but a fair and rational presumption that he had paid them, at least till some doubt is cast upon it by the other side, especially where the objection is made by a third person, not a party to the notes, and no further interested than in the fact of payment. We know that it is the duty of one who demands payment of a promissory note to produce it; and that the maker is not ordinarily bound to pay the note unless it is produced and surrendered.

The finding them, therefore, especially after a lapse of many years, in the undisturbed possession of the executor, would he prima facie evidence that they had been surrendered after payment. It would be a forced idea to suppose the creditor so confident or so careless, as to give them to the executor merely as evidence of his claim, and then omit to take back either the money or the note. This is certainly not in the usual course of human affairs, and therefore not to be regarded as presumable under the circumstances. 4.

The fourth and last error assigned is, in the court’s saying that if Marian Pride bought, at the sheriff’s sale in 1823, the property in question with the money of David Pride, the subsequent sale to the Bank of Pennsylvania, and the conveyance by the bank to Marian Pride, vested title in her discharged of the trust. Nothing however can be clearer than this proposition of the court..

There is no pretence that the Bank of Pennsylvania, the purchaser of the lots in 1828 at sheriff’s sale as the property of David Pride, had any notice actual or constructive of the alleged trust contained in the declaration executed by David Pride in 1816. The land then, if it was bought with David Pride’s money and belonged to him, was discharged from the trust by this sale without notice to the pui'chaser, the Bank of Pennsylvania.

Marian Pride, by her deed from them, held it in the same way, even if she had had notice — the rule being well settled, that if the first purchaser had no notice, a second purchaser from him holds the land discharged of a trust, even although such second purchaser had notice of it; Harrison v. Forth, (Prec. Ch. 51); Brandlyn v. Ord, (1 Atk. 571); Sweet v. Southcote, (2 Bro. Rep. 66); 2 Fonhl. Eq. 147.

Marian Pride’s representatives therefore are not responsible for the fulfilment of the trust, nor liable for account for the proceeds of lands derived from her by will or otherwise; but if there has been any breach of trust committed, it has been by David Pride, and his representatives are to be looked to.

I say, if there has been a breach of trust, because I am by no means satisfied that the paper of the 25th of May 1816 ought to be considered as a trust impressed on the land, or anything more than a personal covenant for the application of the proceeds of sales — or that even on a settlement of accounts with the representatives of David Pride, anything would in equity be found due from those lands to the plaintiff. But this it is unnecessary to consider.

In conclusion, it seems to us that this last point rules the whole case, since we cannot.read over the evidence without seeing that it presents the only plausible ground on which the plaintiff’s claim could be put, and upon that the law is against him. Judgment affirmed.