7i8
THE GREEN BAG
claiming under them, based on suspicion or conjecture, and without the production of any evidence to support the conjecture, is not sufficient to relieve the vendee." In the case of Burton v. Pern',1 there was involved the validity of a default decree against the unknown heirs of one who had not been heard of for more than twenty years. The proceeding in which that decree had been rendered was one under a special statute of Illinois which declared that interested persons whose names were unknown might be made parties to suits in equity "by the name and de scription of unknown owners, or unknown heirs, or devisees of any deceased person." The court held that a decree rendered in such a proceeding was void if the person supposed to be dead, was, in fact, alive. The court, however, in the proceeding against the unknown heirs having indulged the presumption of death, and no evidence having been introduced in the present pro ceeding to overcome that presumption, it was held that the decree must stand as being in accord with the facts. The Court of Error and Appeals of New Jersey, in the recent case of Meyer v. Madreperla,2 upheld a title by indulging the presumption of death. The owner of lands died testate in 1885. One of his children, a son, who was a common sailor, unmarried, and who resided with his father, left his home in 1879, and had never been heard of since that time, a period con siderably over seven years. The court gives a very thorough discussion of the whole question relative to the presumption of death, and, among other things, says: "As Patrick, when he went away, was unmarried, his status as a single person is presumed to have continued, no contrary proof being adduced; and his presumptive death is accompanied by the presumption that he left no lawful issue." 1 34 N. E. 60 (Ill.) « S3 AtL 477 (N. J. L.)
And then, discussing the general doctrine that a purchaser will not be compelled to take a doubtful title, the court continues : "A conveyance in the chain of title, and necessary to its completeness, though appearing to be properly witnessed and acknowledged, and therefore capable of being proved by its production, or by its record under the statute, may afterward be shown to have been a forgery. A marriage, essential to the descent of the land in the chain of title, may afterward be shown to have been a meretricious union, and its issue illegitimate. Proof that Patrick embarked in 1879 on a vessel which was wrecked on a dangerous coast, and had not appeared or been heard of since that time, would raise a presumption of death without the statute, yet there would be a possibility that he escaped, and was yet alive. It may be well questioned whether any of such possibilities should deter a court of equity from enforcing the contract of purchase." • The New York court, in the case of Cambreleng v. Purton,1 found it a comparatively easy matter to hold that an absence of seventeen years was sufficient to clear the title. The person disappearing, however, had certain organic diseases, induced by frequent and protracted sprees, and which, according to the testimony of the physician put upon the stand, would result fatally within a very short time. In enforcing specific performance in this case, the court said : "A purchaser will not be compelled to take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale was made.3 But this rule will not operate in every case to bar the enforcement of the sale. If the existence of the alleged fact which is claimed or supposed to con stitute a defect in, or a cloud upon, the title 1125 N. Y. 610, 26 N. E. 907. 2 Citing: Fleming v. Burnham, supra.
