The opinion of the Court was delivered by
-Gibson, C. J.It is not' contested that' the plaintiff’s survey includes, the disputed land; but the defendants', who are also-pur-; chasers for a valuable consideration, insist that .he ought to be postponed for having stood by without disclosing his title, while valuable improvements were making. There is, no evidence however that he - knew the true bouudary. ’The rule -is clear that silence will postpone only where silence was a fraud; and a fraudulent concealment of title cannot be'imputed'to one wh&was ignorant that hébad.ány title; to conceal: and to this effect was the' direction of the judge. ‘ But positive acts, for the.consequences of which the doer is civilly answerable without regard to the question of ignorance nr knowledge, stand on a different ground.' For.these,-his title may b'e-postponed even without fraud, in accordance with an equitable principle of universal application, that where .a loss, must necessarily fall on one of two innocent persons, it shall be borne.by him whose act occasioned it. Haff this principle been urged in .relation to the fact, that the *23plaintiff had repeatedly shewn as his boundary, a line which excludes the land in dispute, It might have entitled the defendants to a verdict. If the improvements were made on land purchased on the faith of an actual disclaimer, it would be inequitable to-disturb them. There was indeed no positive proof of that faetj but evidence of boundary is so much a matter of reputation, and one to which the declarations of a party in interest must so materially contribute, as to give rise to a presumption, that improvements on a purchase, where there have been any such, were made on the credit of those declarations. £ueh a presumption may undoubtedly be rebutted; but the proof would seem to rest on him who controverts it. But this ground was not taken at the trial; and although we might, to prevent injustice, give the defendants á fresh opportunity to avail themselves of it, if that were necessary; yet, as the verdict wijl not be conclusive in a new action, we do not feel ourselves bound to interfere. As to the exception to an expression of the judge, tbát “the circumstances of the deed’s containing a general warranty renders it probable that the purchasers knew the title not to be without suspicion,” that appears evidently to have been affirmed as his opinion on-matter of fact; and in that aspect, we cannot intend-that it misled the jury. It seems to me, therefore, that on the points actually submitted, the verdict is well enough. ■ #
Judgment affirmed,