The opinion of the court was delivered by
Gibson, C. J.My remarks shall be confined to the only part of the case that affords a pretext for an argument. An exception to the admission of Andrew Wallace’s deed, was in fact not taken; but, as it was omitted in consequence of a suggestion of the judge, that the defendant would have the benefit of his objection in another way, he ought to have the benefit of it here. The execution of this deed was not proved, and it was undoubtedly inadmissible. But an undisturbed adverse possession of twenty-nine years preceding the trial, and twenty-four preceding the action, was shown to have been in the grantee, or those claiming under him; and thus, independent of the deed, the plaintiffs had made out a legal title in themselves, and the error in admitting incompetent evidence of what was fully, proved by unexceptionable evidence afterwards, became immaterial. Even on a writ of error, where there is no disctetion, the admission of incompetent evidence, is not a ground of revcssal where the fact has been conclusively proved by competent evident». Wolverton v. The Commonwealth, 7 Serg. & Rawle, *375273. Preston v. Harvey, 2 Hen. & Munf. 64. And we ought, a fortiori, to.disregard an .error, in this respect, on a motion'which involves the exercise of discretion, where there is unexceptionable evidence to warrant the verdict. ' •
It is objected, that notwithstanding the effect of the statute of limitation, the want of a conveyance from Wallace and his wife, left the defendant exposed' to a demand of her dower, which ought to have been compensated by deducting from the purchase money a sum equal to.the value of the risk. Mrs. Wallace, if living, would undoubtedly have at least an incipient right of dower; and of her death, there was no other evidence than ,mere lapse of time. A person, proved to have been alive at a particular time, is presumed to be so still; and the onus' of proof is on him who alleges the contrary. But in addition to lapse of time, proof that he has not been heard of for seven years, is sufficient, to rebut the presumption of life; and, was it shown that Mrs. Wallace had not been heard of for that period, there would clearly be sufficient to warrant a presumption of her death. 2 Stark. Ev. 458. But the question is, whether, the lapse of twenty-four years, without proof of inquiry, or'.other circumstance, be not of itself, sufficient to warrant such a presumption; and, although I know of no authority in point, I am of opinion that it is. No witness spoke of her age at the execution-of the deed, (the period at'which we have any account of her,) but under the most favourable circumstances, the chances are unfavourable to the presumption of her' having been alive at the time of the trial. If living, she must have attained an age considerably in advance of the average-term of human existence. It is said, that rather less than twenty years should be computed, because it is necessary to the plaintiffs’ case, that Mrs. Wallace should have been dead at the commencement of the action. But the cause of action, did not depend on the absence of encumbrances. It has been erroneously said, that this is an equitable ejectment for a specific performance of the contract of sale. Exactly the reverse. It is founded on a legal title which has not been conveyed; and it is consequently in disaffirmance of the sale. The consequence intended to be produced is, no doubt, payment of the purchase money; but that is neither a direct, necessary, nor a natural effect of a recovery. Such ejectments are frequently maintained even in England, where there is no defence at law; the defendant being relievable only in equity on proof of having paid the purchase money, or done all that he safely-could to entitle him to a' conveyance; and even there, the chancellor will let the law take its course if there be no encumbrance at the hearing. Cassell v. Cooke, 8 Serg. & Rawle, 268, was altogether a different case. There, the performance of the plaintiff’s covenant to • make an unexceptionable title, was á condition precedent to the institution of. an action at law; and it is clear, that there must be a perfect cause of action either.in equity or at law at the inception of the suit. Snider v. Wolfley, 8 Serg. & Rawle, 328. But an action *376may always be commenced on a complete legal title, it being sufficient to obviate a countervailing equity at the .trial. Lessee of Moody v. Vandyke, 4 Binn. 31. A discretionary power over the costs would, .in' some cases, be necessary to enable us to maintain the suit, and yet do justice to a defendant who has been vexed by a suit at law, to which, at its inception, he had an available defence in equity. But here there can be no bárdship on that ground, as the defendant would be entitled only to have the encumbrance valued and deducted from the purchase money; so that the vendor, in any event, would be entitled to costs, as regards the residue. It is sufficient, therefore, that there was evidence of an- extinguishment at the trial; and substantial justice having been done by the verdict, I am of opinion, that the judgment of the Circuit Court be affirmed.
Smith, J. concurred; Tod, J. dissenting^ and .Rogers, J. and Huston, J. not having heard the argument, taking no part in the decision..'Judgment affirmed.