The opinion of the court was delivered, May 11th 1869, by
Agnew, J.The argument of the learned counsel for the plaintiff in error has not convinced us that the doctrine of estoppel was misapplied to the facts of this case when it was here before : see 5 P. F. Smith. A new point is made, that in 1847 Hiram Payne’s title to tract 4881 was inchoate when, as the agent of Messrs. Ben-zinger and Eschbach, he purchased tract 4884 of Moses McKee. It is true as between Payne the purchaser at Freeman’s sale and the former owner, he 'could not enter or assert title to No. 4881 until the year 1848, when the time of redemption had expired; but Payne held an incipient title running to maturity, which he could affect by his positive acts. He stood in no better position than one who sells land to which he has no title, or a defective title, and afterwards acquires ’a good title, and who is estopped from recovering from his own vendee. Payne’s conduct, on which the estoppel rests, runs throughout the period of his imperfect title, into a time when it had become absolute. It consisted not alone in his purchase of the McKee tract for Benzinger and Eschbach, and locating it on 4881, his own tract, but in the continued delusion he produced, by claiming and selling the adjoining tract 4880 *476as 4881 without giving notice to Benzinger and Eschbach of the mistake. He suffered them for years to rest in confident security, and in the mistaken belief that tract 4881 was their own tract 4884, and on the faith of the belief thus induced by his own acts, to sell and convey 4881 as 4884 to various persons, entangling themselves in covenants for title, and leading their innocent vendees to expend labor and large sums of money in extensive improvements. Perhaps a different question might have been presented had Payne discovered his mistake, and as soon as his own title to 4881 became absolute, given notice of it to Benzinger and Eshbach.
Nor do we think the argument as to the limited possession of Werner, and the character of the notice it gave Morris when he bought of Payne, entitled to much weight. The case of Morris does not stand on notice alone. Had he claimed 4881 after he bought,.according to its true location, and thus given notice to Benzinger and Eschbach that he challenged their title to it, the question of notice would have assumed a graver aspect. But Morris himself did positive acts, which, added to his non-claim, tended to mislead and lull into security Benzinger and Eshbach, and their vendees. He bought and claimed 4880 as the true location of Payne’s tract 4881, paid taxes for it, and exercised over it the acts of an adjoining owner. From August 1849 until January 1865, a period of nearly sixteen years, he kept up the delusion begun by Payne, suffering the adjoining tract 4881 to be improved within his view, and its claimants to become involved in sales and expenditures of labor and money upon it. It was this quiet attitude, accompanied by no note of alarm, yet so effectively operating upon the minds and belief of those owning and occupying the adjoining tract, which in the former opinion was characterized as an operative quietude. Yet surely no lull before the storm could carry with it more effective injury to those upon whom the tempest is soon to break. After a quietude of sixteen years, Morris, or the plaintiff his assignee, suddenly springs into a knowledge that he has been sleeping all this time, and now stands upon a question of notice. But the question rebounds upon himself. Why did he not give notice of his own claim ? Why has he suffered his next-door neighbors to rest in this delusive calm ? If he answer that he was asleep — unconscious of his rights, the reply must be that his neighbors were equally ignorant and innocent. Payne first and Morris next, and, in privity with him, misled them. Between innocent persons, he who is the cause of the injury must suffer its consequences. On the general question of estoppel we forbear further discussion, having said all we need to say in the former opinion.
' So far we discover no error, the court below having stated the principles applicable to the case fairly and fully. But we regret, *477in a case so well tried by tbe learned judge, to say that an error, perhaps of inadvertence, and yet not the less injurious, was made in submitting the case to the jury.
The 2d assignment of error brings to our attention the following portion of the charge, found at its conclusion, and which is the final and binding instruction to the jury on the question of estoppel. The judge says:—
“ We therefore so instruct you and direct you, that if the uncontroverted evidence in the .case be believed, the plaintiff cannot recover any portion of the seven hundred and eleven acres held under Benzinger and Eschbach.”
This was a binding instruction, and its effect was to take the facts from the jury by assuming that the uncontroverted evidence established the fact that Payne had misled Benzinger and Eschbach, by locating their purchase on his own tract, and inducing them to buy 4881 under McKee’s title to 4884. On the former trial of the cause, this fact was plainly and distinctly admitted by Payne, who was the principal witness. But on the second trial he made no such distinct admission, but states, on the contrary, facts tending to show that Benzinger misled himself by his own maps produced to Payne. Payne even states he had not then been upon 4884; that all either of them (he and Benzinger) knew about it was from the maps, and declares also that he had no recollection of telling Benzinger where this lot was located. Upon a careful reading of Payne’s testimony on the last trial, it is evident he is tinctured with non-committalism, which led probably to the remark during the argument, that his memory was bad. Now, while it is possible, perhaps probable, the jury might have arrived at the same conclusion on all the evidence, which was reached in the first trial, it is very clear that under the positive direction of the concluding instruction assigned for error, the plaintiff had not the full benefit of the question of fact whether Payne had misled Benzinger as to the location of tract 4884, or Benzinger had deceived himself. This was the key to the whole case, yet the instruction was clearly a binding direction to the jury that upon the evidence the estoppel was made out. For this error the judgment must be reversed, and a venire facias de novo awarded.