Higinbotham v. Pauch

Citations

• 232 Pa. 620
• 81 A. 718
• 1911 Pa. LEXIS 775

Syllabus

<p>Ejectment — Deed—Fraud—Principal and agent — One of two innocent parties — Misstatement of rule — Charge.</p> <p>1. In an ejectment suit in which the plaintiff claims under a deed alleged to have been signed by the defendant, which the latter denies, the court is not warranted in applying in its charge the rule that when one of two equally innocent parties must suffer by reason of the fraud of another, the loss should fall upon the one whose negligent act or omission has enabled the wrongdoer to commit the fraud, where the evidence shows that if fraud was committed, the only parties to it were the defendant’s brother, with whom she had left her deed for the sole purpose of enabling him to collect the rents for her, and a woman who represented herself as the defendant, there being no evidence of any agency and no act or omission on the defendant’s part enabling the brother to deceive the plaintiff.</p> <p>2. For the court in such a case to say that if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame and it was for the jury to determine which of the parties to the action was least to blame and to find the verdict accordingly, is to state the above rule inaccurately.</p> <p>Principal and agent — Deed—Collection of rents — Implied agency.</p> <p>3. No agency can be implied in a brother to make sale of his sister’s real estate from the fact that the brother had in his possession the deed and had collected the rents from the real estate.</p>