Westfall v. Washlagel

Opinion by Mb. Justice Bbown, The alleged cloud on the title of the appellant is a deed from Mahlon Fowler to William M. Dickerson, dated November 4, 1853, and recorded August 7, 1873. On January 31, 1857, Mahlon Fowler made his will, which was admitted to probate April 2, 1857, by the terms of which he devised all his real estate to his wife for life, with the remainder to their son, Oliver, in fee. The widow subsequently remarried, and, on April 20, 1872, she and the son, Oliver, as devisees of the lots in question under the will of Mahlon Fowler, conveyed them to Rachel Brown, through whom the appellee’s title comes. Rachel Brown recorded her deed on May 1, 1872, within ten [185] days of its execution and more than fifteen months before the deed to Dickerson was placed on record. Under this state of facts and the further admission in the case stated that “ the aforesaid lots were vacant and un fenced, but the plaintiff and his predecessors in title have continuously exercised the rights of ownership, have paid the taxes and for all municipal improvements, and have filled up the lots to the established grade; the aforesaid William M. Dickerson has never exercised any rights of ownership nor claimed any right in or to the said lots or either of them,” the single question is, did Westfall, the appellee, tender Washlagel, the appellant, a marketable title ? An innocent purchaser for a valuable consideration from the heirs or devisees of the grantor of an unrecorded title is protected by the recording act: Farmer v. Fisher, 197 Pa. 114; but the terms of this case stated are silent as to whether Rachel Brown was an innocent purchaser for a valuable consideration, and we cannot, therefore, say that she and her successors in the title were protected by the act of 1775. But the act of April 22, 1856, does protect them from any right of entry in Dickerson, or those who may claim under Fowler’s deed to him. That deed was dated November 4,1858, and, if not then delivered, the presumption is conclusive, in the absence of even a hint in the case stated to the contrary, that it was delivered by the grantor in his lifetime. His death occurred some time between January 1,1857, the date of the execution of his will, and April 2, 1857, the date of its probate. Forty-three years certainly, and probably more, intervened between the date of the delivery of the deed to Dickerson and that of the sale by the appellee to the appellant, and, by the admission in the case stated, the lots were vacant and unfenced, the plaintiff and his predecessors in title had continuously exercised the rights of ownership, paid the taxes and for all municipal improvements, had filled up the lots to the established grade, and William M. Dickerson had never exercised any rights of ownership, nor claimed any right in or to the lots, or either of them. This is a distinct admission of the continuous exercise of the right of ownership in the lots by the appellee and his predecessors in title back to 1857, when they were devised to Rachel Brown’s grantors, and of a failure of Dickerson, during all this intervening period, to assert any right or interest in [186] them. The words of the act of 1856 are: “No exception in any act of assembly respecting the limitation of actions in favor of persons non compos mentis, imprisoned, femes covert, or minors, shall extend so as to permit any person to maintain any action for the recovery of any lands or tenements, after thirty years shall have elapsed since the right of entry thereto accrued, to any person within the exceptions aforesaid.” Remembering the foregoing, the appellant need feel no apprehension that Dickerson, or any one claiming under his deed from Fowler, can successfully assail the title tendered b}r the appellee. It is marketable, and the judgment of the court below, that the appellant pay the purchase money for it, in accordance with his written agreement, was properly entered. Judgment affirmed.