Opinion by

This was an action of ejectment in which the plaintiff claimed title by virtue of a deed alleged to have been signed by the defendant. The defendant denied that she had signed the deed and the clearly defined issue was whether it was a forgery. She was a single woman whose residence was in Chicago. She purchased the property in question in 1903, and her deed for the same was duly recorded and left with her brother in Pennsylvania and he acted as her agent in collecting the rents and in looking after the property. In 1907 the plaintiff negotiated with *624the defendant’s brother for the purchase of the property and at the settlement a deed was signed and acknowledged by a woman who was represented to be the defendant. At the same time the woman executed a writing directing the payment of the purchase money to the defendant’s brother. At the signing and acknowledgment of the deed four persons were present, the defendant’s brother, who died before the trial, the woman who executed the deed and the two subscribing witnesses, one of whom was the notary who took the acknowledgment. One of the subscribing witnesses testified at the trial that the defendant was the woman who signed, the other testified with equal positiveness that she was not. Corroborating circumstances were shown on both sides and it was evident that if a fraud had been committed, at the execution of the deed, the only parties to it were the defendant’s brother and the woman who signed the deed.

It was said in the charge, that if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame and that it was for the jury to determine which of the parties to the action was least to blame and to find a verdict accordingly. This was an inaccurate statement of the rule that where one of two equally innocent parties must suffer loss by reason of the fraud of another, the loss should fall upon him whose negligent act or omission has enabled the wrongdoer to commit the fraud and it was a misapplication of the rule to the facts of the case. This was not a case of agency. There was not a pretense even that the defendant had authorized her brother to sell the property and none could be implied from the fact that he held the deed and collected the rents. No act or omission on her part enabled him to deceive the plaintiff.

The first assignment of error is sustained and the judgment is reversed with a new venire.