The opinion of the court was delivered, May 5th 1870, by
Agnew, J.This is a hard case, and the learned judge below probably thought so, when he admitted that it required an extension of the rule in Millingar v. Sorg, 5 P. F. Smith 215, upon which he professed to found his decision. But hard cases make bad precedents. There is a striking difference between that case and this in several respects. In that case when Hiram Payne induced Messrs. Benzinger and Eschbach to purchase No. 4884, and located it on No. 4881, he was himself the owner of 4881. Here he did not induce them to buy 4886, and was not the owner of 4883 when he located 4886 upon it. There he had a title to be estopped, and did positive acts to induce others to purchase his own land. Here he simply made a mistake as a hired surveyor in the location of a tract owned by one party, upon that owned by another ; and the simple question is whether such a' mistake made in a survey of wild land stamps a trust upon the title to No. 4883 when afterwards acquired by him, inhering in it, and following the land into the hands of innocent purchasers. It is a conceded fact that *241when Payne located No. 4886 on 4883 in the year 1845 he was ignorant of his mistake, and continued ignorant of it when he bought 4883, and when he sold that tract to Newell Matson. All the parties were wholly ignorant of the true state of the case. The learned judge, relying on the rule in equity that he should suffer whose negligence has caused the injury, held that the purchasers of 4886 from Benzinger and Eschbaeh having expended money and labor and made valuable improvements, would be.pro tected in equity from the intrusion of the plaintiffs, whose duty it was (he said) to have advised them of their mistake and forewarned them not to improve and spend their money. But the question arises how could they advise of a mistake of‘ which they themselves were ignorant. Silence will postpone only where silence is a fraud: Hill v. Epley, 7 Casey 334. Positive acts it is true stand on a different ground: Beauplaud v. McKeen, 4 Casey 131. But neither Matson nor the plaintiffs, so far as it appears in evidence, did anything to deceive or mislead the purchasers from Benzinger & Eschbach. The whole case therefore turns upon the question how far the mistake of Payne in surveying 4883 as 4886, when he had no title in 4883, and before the purchase of the settlers under Benzinger & Eschbaeh, clings to the title of 4883 after he had bought it, and followed it into the hands of innocent purchasers from him. They bought in ignorance of his mistake, and unless his previous personal act inheres in the title and follows the land, the plaintiffs cannot be implicated in an estoppel. Newell Matson, the vendee of Payne of the east half of No. 4883, was a resident of the state of New York, and afterwards removed to Chicago, Illinois. He did nothing to mislead the settlers on the land, by acts tending to perpetuate the mistake of Payne, as was done by Morris the vendee of Payne of 4881 in the case of Millingar v. Sorg. There Morris went on the ground before he purchased, saw the settlers’ improvements on 4881, and passing through that tract went upon 4880 which he purchased as 4881. He continued for years to regard 4880 as his own tract 4881, laying no claim to the latter; which the settlers were holding and improving as 4884. His silence, connected with these acts of recognition, was of a kind tending to* perpetuate Payne’s mistake in locating 4884 on 4881, and locating 4881 on 4880. Though negative in their character, these acts-were operative in their effect in lulling the settlers on 4881. into, security. Here, however, no such “ operative quietude,” as it was termed, in Millingar v. Sorg, existed to mislead the purchasers of 4886 to suppose that the owners of 4883 recognised their title to the land on which they were located. The case is simply one of mistake for which the plaintiffs are not responsible. The case is no doubt a very hard one, but it would carry tha- doctrine *242of estoppel beyond its just equitable limits to hold that it applies here.
Judgment reversed, and a venire facias de novo awarded.