Argued May 7, 1928. Plaintiffs appeal from a judgment in ejectment in favor of defendant, and assign as errors, inter alia, the refusal of their point for binding instructions and the dismissal of their motion for judgment non obstante veredicto. In each respect their complaint is just.
George Ashworth Cobham, through whom both litigants claim, died October 6, 1870, seized in fee of the land in dispute. Defendant alleges she is the owner of it as devisee in remainder under his will. Plaintiffs claim, through various mesne conveyances, from one Parmalee, who obtained title by a deed from the administrator of Cobham's Estate, executed and delivered in compliance with a decree of the orphans' court, after the land had been sold, by virtue of an earlier decree, in order to realize a fund to pay his debts. We have already decided in this estate that the appointment of the administrator was legal, and the record of the orphans' court was sufficient to support the order of sale and the proceedings under it: Sager v. Mead, 164 Pa. 125, 133. Defendant, in an attempt to avoid this otherwise unassailable title, alleges that the sale to Parmalee was the result of a fraudulent conspiracy between him, the administrator, and those interested in the life estates under Cobham's will (two of the latter being defendant's father and mother), to cut out the devise in remainder to defendant, by means of the sale for the payment of debts, though well knowing there was ample available personalty to pay them.
Assuming that there was such a conspiracy, and that defendant could properly and, so far as concerned the alleged conspirators, did produce evidence sufficient to subvert the decrees of the orphans' court after more than fifty years, and subsequent to the deaths of all the parties *Page 463 who knew the facts (despite what we said in Sager v. Mead,171 Pa. 349, wherein this same attack was unsuccessfully made after only sixteen years, when the parties knowing the facts were alive and testified), still plaintiffs are entitled to recover if they were innocent purchasers of the land for value without actual or constructive notice of the alleged conspiracy, as we shall now show they were.
Plaintiffs' title could be affected only with what they actually or constructively knew at the time of the purchase, necessarily, as to the latter, by what they could have learned by inquiry of the person in possession and of others who, they had reason to believe, knew of facts which might affect the title, and also by what appeared in the appropriate indexes in the office of the recorder of deeds, and in the various courts of record whose territorial jurisdiction embraced the land in dispute (Jaques v. Weeks, 7 Watts 261; Hill v. Epley, 31 Pa. 331,336; Maul v. Rider, 59 Pa. 167, 171); but not of that which they could not have learned by inquiry of those only who, they had reason to believe, knew of the facts: Lower's App., 1 Walker 404. The burden of proof upon these points was upon defendant, and, to be of any effect, the evidence was required to be clear and unequivocal: Meehan v. Williams, 48 Pa. 238,241, 242; Townsend v. Little, 109 U.S. 504, 511. It is not claimed that plaintiffs had actual knowledge of the alleged wrong, or that they knew of others who were acquainted with facts which might affect the title to the property. Their grantor was in possession, her grant was an affirmance that she had a good title, and hence, as we have held, plaintiffs were not required to make any inquiry of her: Stiffler v. Retzlaff, 20 W. N.C. 303. "Indeed there can be no doubt whatever of the proposition that where the land is occupied by two persons, as, for instance, by husband and wife, and there is a recorded title in one of them, such joint occupation is not notice of an unrecorded title in the other. . . . . . The rule is universal *Page 464 that if the possession be consistent with the recorded title, it is no notice of an unrecorded title": Kirby v. Tallmadge,160 U.S. 379, 388.
It is not asserted that there was in the recorder of deeds' office anything adversely affecting plaintiffs' title, and the only thing bearing upon the matter, which had ever appeared in a court of record, was an ejectment brought by defendant's mother and others in 1891, sixteen years before plaintiffs herein purchased the land, and eleven years after the defendant in that suit had parted with his title to it and the deed from him had been recorded. Plaintiffs were not required to search those records for entries against him as of that long-past date, however, and the fact that he was the husband of the present plaintiffs' grantor does not affect the matter: Garis v. Fish, 133 Pa. 555; Kirby v. Tallmadge, supra. Moreover, that entry would not have been notice to plaintiffs, even if the suit had been still pending and undetermined, because of the failure to make the then record owner of the land a party to the suit and have it noted on the judgment index as an action against her (section 2, Act of April 22, 1856, P. L. 532); and, furthermore, the final judgment in favor of the defendant in that suit, entered twelve years before these plaintiffs purchased, wholly destroyed any effect which could otherwise be given to its commencement and entry in the judgment index: Penna. Co. for Ins. on Lives, etc., v. Halpern, 273 Pa. 451. Besides, the entry on that index was not put in evidence, and when plaintiffs offered the record of the case it was excluded on the objection of defendant, who cannot, therefore, now claim anything by virtue of its existence.
There being, then, no actual or constructive notice to plaintiffs of the alleged conspiracy, the only other open question is, Were they purchasers for value? Upon this point the facts are not in dispute. When plaintiffs bought and obtained title, they gave, as a consideration therefor, an agreement to pay their grantor and her husband *Page 465 $1,400 per annum as long as they both should live, and thereafter $700 yearly to the survivor as long as he or she should live. It is not necessary to refer to the other considerations specified, since $11,200 was paid on account of that stated, long before any claim was made by defendant. The only objection alleged as to this, is that the deed was to The Incorporated Trustees of the Salvation Army in Pennsylvania, whereas the agreement to pay was by the parent body, a New York corporation named The Salvation Army. This, however, is a matter of indifference. Plaintiffs gave the contract agreed upon as the consideration for the conveyance, and upon the faith of the grant the amounts stipulated were paid. If the equitable title is in the New York corporation because it paid the specified purchase money, then plaintiffs are holders of the legal title for its benefit, and can maintain ejectment as against defendant and all others except the New York corporation, so long as the two titles have not been merged by a deed or decree. With these things, however, defendant is not concerned, and hence, at the trial below, it made no inquiry touching them.
The judgment of the court below is reversed and is directed to enter judgment for plaintiffs non obstante veredicto.