714
THE GREEN BAG
Judge Brown, who writes the opinion, while saying that if the man were alive he probably would have long ago returned to claim his property, yet concludes: "But I am not prepared to decide that a purchaser of real estate should be com pelled to take title when there is an out standing right in a man who, if living, would be only 47 years of age, and of whose death there is no evidence except the pre sumption arising from an absence from his friends of 24 years, and his failure to com municate with them and to claim property which he left behind him upon his departure from home. It is very probable that the man is dead. The chances are very largely in favor of that conclusion. But his death is not proven, and the plaintiff's title to the real estate, and which necessarily depends upon his death, cannot be said to be free from a reasonable doubt. Why should we compel the purchaser to take all the risk involved in that doubt?" In the case of Trimmer v. Gorman,1 the plaintiff in contracting for the sale of land to the defendant, represented that he was a single man. It subsequently developed that he had been married, but his wife had left him, and he had not heard from her for more than seven years. The court in refusing to force the title upon the defend ant said : "The absence of plaintiff's wife only creates a presumption that she is dead. This is a presumption of fact that may be rebutted, and defendant's title rendered imperfect." 2 The case of Dworsky v. Arndtstein 3 came before the New York court, it being an action to cancel a contract of purchase entered into September 10, 1895, and for the recovery of payments made thereunder. 1129 N. C. 161, 39 S. E. 804. 2 Citing: Dowd v. Watson, 105 N. C. 476, 11 S. E. 589, 18 Am. St. Rep. 920; Springer v. Shavender, 118 N. C. 33, 23 S. E. 976, 54 Am. St. Rep. 708. 3 51 N. Y. S. 597.
It appears from the facts set forth in the opinion that in 1887, one Henry Wisendanger died testate, leaving his estate to his consort and his four illegitimate childrea The will was admitted to probate, and the property sold by a referee in an action, of partition. The defendant in this action derived title from the grantee at that sale. It subsequently developed that the wife of Henry Wisendanger was still living, and that he also had a brother who was alive in 1865, and neither of these had been cited to appear at the time the will was admitted to probate. The defendant contended that as to the brother of Henry Wisendanger, a presumption of his death had arisen by reason of his long absence. As to this the court said : "But it is said that there is no presump tion that Rudolph Wisendanger was alive. That is clearly erroneous. He was living in 1865. No proof whatever has been given of his death since that time, and certainly there can be no presumption, either of law or of fact, that a person who was alive in 1865 was dead in 1895. For aught that appears, he may have been a young man at that time. No effort has been made to find him on the part of the defendant. No account is given of his whereabouts, and, while it is quite possible that he may have died, the presumption, if there is any pre sumption, is clearly the other way." In another New York case, that of Fowler v. Manheimer,1 the facts were substantially as follows: The owner of certain land died in 1865 leaving a widow, who stated in her petition for letters of administration, that his only next of kin was a sister who resided in Scotland when last heard from, about 14 years previously. The plaintiff in this action, a trustee under certain trusts subse quently created by the widow, sought to enforce a contract of sale by an action for specific performance. One of the objections made by the defendant, as to the title, was, » 75 N. Y. S. 17.
