Page:The Green Bag (1889–1914), Volume 19.pdf/756

 PRESUMPTION OF DEATH that the sister in Scotland had an interest in the property. In answer to the plain tiff's contention that there was a presump tion of her death, the court said : "It cannot be presumed, in the absence of evidence bearing upon the subject, that, because the sister had not been heard of for 14 years, she was dead, any more than it can be presumed that she was at the time of the death of John an alien, or did not have children who could inherit. . . . So, here, we think the plaintiff failed to show the title he tendered was marketable, inasmuch as he failed to negative the possibility that John Ferguson left heirs at law capable of inheriting." An interesting Maryland case is that of Chew v. Tome,1 in which a presumption of death arising from an absence of 35 years was relied upon. In its discussion of this presumption and its effect upon the title to the property involved, the court said: "To establish the title claimed by him as heir of John P. Marshall, an essential fact to be known is that the latter died intestate, and leaving no children. It appears from the record that the death of John P. Mar shall is not a known or ascertained fact. It has not been made a matter of adjudication by any tribunal whose province it was to ascertain and adjudge it, and it is not established by any direct evidence. The only evidence to establish his death is the presumption that he is dead because of absence from the state for more than seven years without having been heard from. It is admitted that he left the state of Mary land about the year 1862, unmarried, and entered the Confederate army. . . . The presumption relied upon as proof of the death is a presumption of law from the fact of absence appearing from the testimony alluded to.3 But it arises from facts which had to be proved by witnesses having the requisite knowledge of them. There is nowhere any definite, conclusive judgment 1 93 Md. 244, 48 Atl. 701. 1 Citing: Schaub v. Griffin, 84 Md. 557, 36 Atl. 443.

7*5

upon these facts so as to make them binding upon anybody. Nor can the presumption be adjudicated and rendered conclusive in this proceeding against any one not a party thereto. At best it is here only matter of evidence affording prima facie proof of death. If adjudged against appellant, the decision will bind him, but it will not pro tect him. Such judgment would not bar John P. Marshall, if alive, nor his children, if he died leaving children, from recovering the land. . . . Now, as has been seen, the title which the appellant agreed to purchase was "a good record title." A good record title is conclusive against everybody. What the appellant is now offered is a prima facie title as the proof stands here. Further than this, assuming that the death of John P. Marshall is a fact, there is no legal pre sumption that he died without issue. . . . The only fact in the record from which any such presumption could be made is that about 1862 he was unmarried. With this single fact as evidence to negative the existence of issue, what assurance could the appellant feel, if he took the land in question, that ... he could successfully prosecute ejectment for it if circumstances should arise to make it necessary? Would not considerations of this character be likely to affect the marketable value of the property in question, and be calculated to raise doubts in the mind of an intending purchaser? Would they not. therefore, be such as might well, in the language of this court in the case of Gill v. Wells, supra,1 'induce a prudent man to pause and hesi tate?' And can they be regarded as mere 'captious, frivolous, and astute niceties?'" So, then, from the foregoing cases it will be seen that there is considerable of a hesi tancy to indulge the presumption of death or death without issue, when it is to affect the title to real property, even in case of an absence during a period of thirty -five years, as in the case last quoted from. 59 Md. 492.