majority">Day, J. —

The petition avers, and the answer does not deny, that the deed of plaintiff to J ames IT. Haven was delivered by Alsop to said Haven, and that he procured the same to be recorded on the twenty-seventh day of February, 1871. The petition further alleges that in the month of October, 1871, the defendant, Kramer, purchased the lots in question of James Tí. Haven. This allegation is not denied. The petition further alleges that Kramer purchased with full knowledge of plaintiff’s rights. The answer alleges that defendant purchased the lots and paid the full value thereof, without any knowledge that plaintiff claimed any interest therein. The proof shows that defendant bought of James IT. Haven, who was in possession, and paid him full consideration therefor, without any knowledge that plaintiff had any claim thereto.

Conceding, then, that the deed was in the hands of Adams as an escrow, when it was permitted to pass into'the hands of the person named as the grantee, and to be recorded, and he was permitted to enter into possession of the property, what *387are the rights of a purchaser for a valuable consideration from1 such grantee, without notice of the facts attending the delivery of the deed?

i. deed: estoppel. The pretty decided weight of authority is that where the depositary of a deed held as an escrow delivers it to the grantee without performance of the conditions upon which the delivery was to be made, no title passes, and a subsequent purchaser from such grantee without notice, and for a valuable consideration, acquires no title, and will not be protected. Everts v. Swift, 4 Wisconsin, 343; S. C., 6 Wisconsin, 453; Burson v. Huntington, 21 Mich., 415; Fisher v. Beckwith, 30 Wis., 55; 2.Washburn on Real Property, 586, and cases cited.

Without determining the effect of the mere obtaining of a deed delivered as an escrow, and the subsequent conveyance to an innocent purchaser, we are of opinion that the defendant in this case, under the circumstances disclosed, if he be an innocent purchaser for value, is entitled to protection.

At the time Kramer purchased of Haven he not only had the legal title of record, but was in possession' of the property. The case of Blight v. Schenck, 10 Penn. St., 285; is a well considered and strong authority in favor of the view that an innocent purchaser from a grantee in possession, under a deed held as an escrow, and improperly delivered to the grantee, will be protected. But without resting our conclusion solely upon this case, we are of opinion that the plaintiff, by his laches, is estopped to assert title against a hona fide purchaser from James H. Haven.

The petition alleges that Alsop procured the deed from Adams, plaintiff’s attorney, under a promise to return it in a day or two, and that he delivered it to James H. Haven, who recorded it on the 27th of February, 1871.

2_._, attorney. If Alsop procured the deed as alleged, Adams knew that he failed to return it as he agreed to do. The plaintiff is affected 'by this knowledge of his attorney. Yet James H. Haven was permitted to remain in possession both of the land and of the deed for more than seven months with*388out any effort to deprive him of the indicia of ownership, when he sold to the defendant.

The case is a proper one for the application of the wholesome maxim of the law that where one of two innocent persons must suffer a loss, he whose negligence is the occasion of the loss must bear it. If a party by his silence misleads another to his injury, he is compellable to make good the loss, and his own title is made subservient to the confiding purchaser. Blight v. Schenck, 10 Penn. St. 293.

II. It is claimed, however, that the answer does not allege, and the proof does not show, facts sufficient to entitle the defendant to protection as an innocent purchaser.

oüaserlpieaí iusThe answer alleges that defendant purchased the lots in question of James IT. Haven, “and paid him therefor the full thereof, without any notice or knowledge ^ie sa^ plaintiff claimed any right thereto, or interest therein.” The is that defendant paid full consideration, that he did not retain any of the purchase money, and that at the time of purchase he did not know of James Haven, Sr., having any claim on the lots. Whilst the answer should have alleged the amount of consideration paid, and would, perhaps, have been vulnerable to a motion for a more specific statement, still we think it is not so defective as not to amount to a defense, and no objection having been taken to it in the court below, it must now be regarded as sufficient. The answer in the case of Everts v. Agnes, 4 Wis., 343, upon which plaintiff relies, was not as full and complete as the answer in this case. It only alleged that the defendant paid “ a good and valuable consideration according to a contract.” The same considerations apply to the proof. The defendant testified that he paid the full consideration. The plaintiff could easily have ascertained upon cross-examination the amount paid.

We are of opinion that the defendant is entitled to protection as an innocent purchaser.

Reversed.

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