UC SOUTHERN REGIONAL LIBRARY FACILITY D 000 952 535 3 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY COMMENTARIES ox THE LAW OF ESTOPPEL AND RES JUDICATA. BY HENET M. HERMAN, COTJNSELLOE-AT-LAW, Author OF THE "Law op Executions,' "Chattel Mortgages," &c. 'Omne jns, quo, ntimiir, vol ad personas patinet vol ad res, vel actiom-s VOL. 11. JERSEY CITY, N. J. : F. D . L 1 N N & C O M P A JN Y 1886. T Copyright, by Henry M. Herman, 1886. HENRV M. TOBITT, PRINTER AND STEREOTYPER, 42 DEY STREET, N. Y. BOOK II. CHAPTER VTII. ESTOPPEL BY DEED OR MATTER IN "WRITING. Origin, nature and history — General doctrine as to estoppel by deeds — • Mutuality of estoppels — Parties affected by — Married women, infants, etc. — Parties and privies, who are — Effect of deeds — Contracts in writing, etc. — Certificates of acknowledgment §§ 573-605 CHAPTER IV. RECITALS. General doctrine as to — Distinction between general and special recitals — Recital of title — Effect of recitals in deeds — Recital in bonds — Sure- ties, when bound by — Miscellaneous recitals §§ 606-G39 CHAPTER X. TITLE BY ESTOPPEL. How the interest when it accrues feeds the estoppel — After acquired title, when it inures by — Estoppel, doctrine in regard to — Quit-claim deeds — Covenants creating an estoppel — Deeds tliat do and do not convey an after acquired title — Dower, etc. , how affected by §§ 640-700 CHAPTER XI. LEASES BY ESTOPPEL. Doctrine of, lessor estopped to deny that interest passes — After acquired title when it passes in — Lessor estopped from denying title — Who affected by — When the estoppel runs with the land — Effect of words, " Grant and Demise " — Recitals in — Dower, widow barred by— Parol assignments of dower §§ 701-739 [705] Estoppel by Deed. 707 CHAPTER VIII. ESTOPPEL BY DEED, OR MA.TTER IN WRITING. Section 573. This branch of the law of estoppel, by matter in writing or by deed, is a branch of the law which does not allow or permit a sealed instrument to be controverted or contra- dicted by any evidence of less solemnity than its own. It is a well settled principle of law that a written contract cannot be varied by parol evidence, and this branch of the law of estoppel forbids any variation of the contract, and leaves all that lies beyond its variation to the ordinary means of proof. No mere written agreement or oral stipulation entered into between the parties to a deed, at the time of the making and execution thereof, can be given in evidence to control or qualify, or enlarge, or in any way alter or affect the express terms of the contract ; nor can the operation of a deed be restricted, or tlie liability created by it, be lessened or discharged by an indorsement under hand only, or by any subsequent contract or agreement in wi-iting, not under seal. But an indorsement on a deed may operate as a collateral and independent contract, and may add to the liabilities and obligations contained in the deed itself. Every deed takes effect in general from the time of its execution and not from the date inscribed in the body of the instrument. That date is to be taken prima facie as the true time of execution, but as soon as the con- trary appears the apparent date is to be disregarded. § 574. The rule of law which estops a party from disputing or contradicting what he has affirmed or declared by deed does not extend to strangers to the contract.' Where the public, or third persons for example, have an interest in the real nature of a transaction under seal between two or more parties, they are not ' Gooddl V. Bennett, 22 Wis. 563; man v. Clapp, 21 Wis. 350; Sunderlin Avery v. Judd, 21 Wis. 262; Winter- v. Struthers, 47 Pa. St. 411; Rex v. field V. Strauss, 24 Wis. 394; Wood- Scammonden, 3 T. R. 474. 708 The Law of Estoppel. bound by the representations and averments of those parties, but may impeach them and contradict them by parol or oral testi- mony. It is almost a universal system of jurisprudence, to give a decided preference to written memorials over verbal representa- tions, founded on the doubtful or imperfect recollection of wit- nesses. The French law requires a very large class of contracts to be put in writing, " in consequence," it observes, " of the cor- ruption of manners and subornation of witnesses,'' and formally prohibits the admission of oral evidence against the contents of a written document. It is a fundamental rule of the common law that oral evidence shall not be given, to add to, subtract from, or alter or vary any description of written contract ; " quoties in xerVie nulla est amhiguitas, nulla expositio contra verba fienda estr This general rule or principle of law has been established on the grounds that the writing stands higher in the scale of evidence than the oral testimony, and that the stronger evidence ought not, therefore, to be controlled or altered by the weaker. § 575. A party who enters into a contract in writing, without any fraud or in)position practiced upon liim, is conclusively pre- sumed to understand and assent to its terms and legal effect.' If a man execute a deed, calling himself tlierein a certain name, he will not be admitted to take advantage of the fact that it is not his true name.* Where a party makes an incorrect return of his property liable to taxation he is estopped to deny its correctness.^ Where a statute requires a ministerial officer, like a sheriff, to make a return of his doings in making a levy, for instance, upon land, such return is conclusive evidence between the creditor and debtor in the execution, and all persons claiming under them respectively.* It is a sound rule of law that a written contract cannot be altered or varied by parol proof.' This excellent rule of law is ' Rice V. Dwigbt Co., 2 Cusb. 80; Whittaker v. Sumner, 7 Pick. 551; Gavagan v. Bryaut, 83 HI. 376; Hun- Butts v. Francis, 4 Conn. 424; Miller terv. Miller, G B. Mon. 612; Bank V. v. Moses, 59 Me. 129, Ante, §§ ^ Daniel, 12 Pet. 56. 451, 452 ; Anthony v Bartbolow, 69 3 Com. Dig. B. 1. Mo. 186. =* Telle V. Green, 28 Ind. 184; Con- = Van Syckle v. Dalrymple, 32 N. well V. President, 8 Ind. 358. J. E. 233; S. C, 826. •»Bott V. Burnell. 11 Mass. 163; Estoppel by Deed. 709 intended to guard against fraud and perjuries, and it cannot be too steadily enforced and supjjorted by courts of justice. Exjpressum facit cessare tacittirn — vox emissa volat — litera scripta mmiet^ are law axioms in support of this rule, and law axioms are nothing more than the conclusions of common sense, which have been formed and approved by wisdom of ages. This rule prevails equally' in a court of equity and a court of law. Generally speak- ing, the rules of evidence are the same in both courts, and if words of a contract be intelligible there is no instance where parol proof has been permitted to give them a different sense. You can introduce nothing on parol proof that adds to or deducts from the writing. If, however, through fraud or mistake, it is made to speak a different language from what was intended, the estoppel does not apply. These are the only cases that form an exception to the rule. § 576. In what manner a deed or contract is to operate must be ascertained from its own language ; on what it is to operate may be gathered from the whole field of parol evidence ; whether the parties were under a disability, sui juris, by what right or authoi'ity they conveyed, what the location is, or the quantity of the land conveyed, and what the title of the grantor is, may ordi- narily be sought outside the deed, and, as is frequently tlie case, can be ascertained in no other way. Notwithstanding these matters, the parties to a deed ©r contract may agree to bind themselves in this respect b}'' stating a particular state of things as a part or basis of the grant or contract. And when this is done with sufficient clearness so as to leave no doubt as to the inten- tion, it falls within the general principle that matters which have been solemnly reduced to writing cannot be denied, and consti- tutes an estoppel by deed. So far as a deed is intended to pass, or extinguish a right, it is the exclusive evidence of the contract, and the party is concluded by its terms, but the deed is not con- clusive evidence of the existence of facts acknowledged in the instrument, such as its date, acknowledgment of payment, con- sideration,' etc. There are few rules of law that are better established or of greater antiquity than the one which has firmly settled the question, that a man may irrevocably bind himself by » Rhine v. Ellen, 36 Cal. 362. 710 The Law of Estoppel. putting his seal to a grant or covenant, and that he will not be allowed to disprove or contradict any declaration or averment contained in the instrument and essential to its purpose. A recital or allegation in a deed or bond, which is certain in its terms and relevant to the matter in hand, is conclusive between the parties to the controversy growing out of the instrument itself or the transaction in which it was executed.' That no man shall be allowed to dispute his own deed, for it is not only con- clusive upon the party executing it as to the very point intended to be effected by the instrument, but also as to the facts recited in it, is a well settled principle of law.^ No one can be per- mitted, except on the ground of fraud or deceit, to aver or to ' Root V. Crook, 7 Pa. St. 378; Carver v. Jackson, 4 Pet. 1 ; Mann v. Eckford, 15 "Wend. 502; Jackson v. Brooks, 8 Wend. 426 ; Jackson v. Parkhurst, 9 Wend. 209; Van Rensse- laer V. Kearney, 11 How. 297; Francis V. Boston Co., 4 Pick. 868; Stebbins v. Smith, 4 Pick. 97; Baylcy v. McCoy, 8 Greg. 259; Beckett v. Bradley. 7 M. & G. 994; Young v. Raincock, 7 C. B. 310; Stow V. Wyse, 7 Conn. 214; In- skcepv. Shields, 4Harriug. 345; Hag- gart V. Morgan, 5 N. Y. 422; Russell V. Peyton, 4 111. App. 473; Miller v. Elliott, 1 Ind. 484; Esterbrook v. Savage, 21 Hun, 145; Dyer v. Rich, 1 Met. 180; Robbiiis v. McMillan, 4 Cush. 434; Rankin v. "Warner, 2 Lea, 302; Box V. Lawrence, 14 Tex. 545; People V. McCuraber, 27 Baib. 32; Byruev. Morehouse. 22 111. G03; Cordle V. Burch, 10 Gratt. 486; Wiles v. Woodward, 4 E. L. & Eq. 510. ■ Nash V. Turner, 1 Esp. 217; Rees V. Lloyd, Wight, 123; Jones v. Wil- liams, 2 Stark. 52 ; Bowman v. Taylor, 2 A. «& E. 278; Lainson v. Tremere, 1 A. «fe E. 792; Hill v. Water Works, 2 B. & A. 244; Parsons v. Bank. 10 Pick. 353; Wilson v. Company. 77 N. C. 445; Goodti^le v. Bailey, Cowp. 601; Right v. Proctor. 4 Burr. 2208; Bonner v. Wilkinson, 5 B. & A. 683; Johnson v. Mason. 1 Esp. 89; Wood v. Day, 7 Taunt. 646; Friend v. Easterbrook. 2 W. Bl. 1152; Rowan- tree V. Jacob, 2 Taunt. 141; Harding v. Ambler, 3 M. & W. 279; Doe v. Hares. 4 B. «& A. 435; Doe v. Home, 8 Q. B. 757; Fairtille v. Gilbert, 2 T. R. 171; Glenow v. Geach, L. R. 6 Ch. 147; Finance Co. v. Society, 27 W. R. 210; Horton v. Commissioners, 7 Exchq. 780; Shelly v. Wright, Willes, 9: Payne v. AUerbury, Hair. Ch. 414; Hurley V. Csler, 44 Iowa, 642; Ridgely v. Bond. 18 Md. 433; Buchanan v. Kimes, 58 Tenn. 275; Hosier v. Searle, 2 B. & P, 299; Lampon v. Corke, 5 B & A. 600; Campbell v. Knights, 21 Me. 332; Baker v. Dewey, 1 B. & C. 704; Stroud v. Willis, Cro. Eliz. 362; Jewel's Case, 1 Rol. 408; Holloway's Case, 1 Mod. 15; Fletcher v. Farrer, Comb. 377; Campau v. Canapau, 37 Mich. 245; Norton v. Sanders, 7 J. J. Marsh. 12; Redman v. Bellamy, 4 Cal. 247; Lajoye v. Primar, 3 Mo. 529. Penncl v. Wyant, 2 Harr. 501; Bothell v. Somers, 2 Y. & J. 412; Rutherford v. Stamper, 60 Tex. 447; Palmer V. Ekins, 2 Str. 817; Thorp's Case, 3 Leon. 203; Brown's Case, 3 Co. 138; Helps v. Herreford, 2 B. & A. 242. Estoppel by Deed. 711 prove anything in contradiction to what he has solemnly and deliberately avowed by deed.' § 577. This principle of estoppel is founded on the general doctrine that a man shall not defeat his own act or deny its valid- ity to the prejudice of another. Ordinarily, the name of the covenantor or obligor appears in the body of the deed ; but there is a sufficient designation and description of the party to be charged if the name is written at the foot of the instrument." A man may bind himself by deed either in his own name, or by some acquired or adopted name, title or description. Where, therefore, the defendant described himself in a deed by the name of " Davis and Marsh," he was held estopped from showing that his name was Davis only.' So if a man executes a bond in the name of Thomas, he is estopped by the bond from pleading that his name is Joseph. If he is described as James in the body of the deed, and executes it in the name of John, by writing that name against the seal, and is sued in the name of John, and pleads the misnomer, the plaintiff may rely on the estoppel, and the deed is conclusive evidence of the adoption by the defendant of the names both of James and John/ So a grantor whose signature has, at his own request, been affixed to the deed by another, is bound thereby, and after delivery of the deed and receipt of the consideration, is estopped to deny the same. At common law, signing is not necessary to the due execution of a deed, but it is made so by the statute of frauds. But if the grantor's name is written in his presence, and by his direction, it is his act, and he will not be permitted to repudiate a deed thus executed.^ So where a man in his deed recites particular facts, these facts become conclusive evidence against him, and he is not at liberty to deny the truth of his statement. One who makes a feoffment cannot allege that his feoffee was not seized, ' Sharington v. Strotton, 1 PloTvd. v. Whitebread, 11 C. B. 400; Eeeves 308; Morley v. Boothby, 3 Bing. Ill; v. Slater, 7 B. & C. 489; Williams v. Fallowes v. Taylor, 7 T. R. 477; Bryant, 5 M. «fc W. 454. Shubrick v. Salmond, 8 Burr. 1639. '- Lovejoy v. Richardson, 68 Me. " Nurse v. Frampton, 1 Ld. Raym. 38G; Ins. Co. v. Brown, 30 N. J. E. 28. 193; Croy v. Busenback, 72 Ind. 48; 3 Elliott V. Davis, 2 B. & P. 339. Weaver v. Carnall, 35.Ark. 198; S. C, * Gould V. Barnes, 3 Taunt. 505; 37 Am. R. 22; Clough v. Clougb, 73 Lind V. Hook, Mod. Cas. 225 ; James Me. 487; S. C, 37 Am. R. 23. 712 The Law of Estoppel. or set up any title acquired subsequent to the feoflfment.' Estop- pel by deed extends to persons claiming under the person estopped in the same manner as an estoppel by record does. No person can avoid his own deed by which an estate has passed on the ground of his own hand in executing it. Thus where a party conveys liis property to another in fraud of his creditors, or collusivclj suffers a judgment to be rendered against him, and his property is sold and conveyed for the purpose of defeating the jnst claims of his creditors, the grantor in such fraudulent conveyance can- not recover in opposition to his deed ; he is estopped by it and by his actions from claiming in hostility to it. Such fraudulent con- veyance binds not only the grantor but his heirs and his personal representatives." So a person named as grantor in a deed may be guilty of such a degree of negligence in executing it, and per- mitting it to be exposed where it may readily be taken by the person named as grantee, as will estop him from setting up title as against a honajide purchaser for value, under the deed.' § 578. Estoppels by deed, as far as they are applicable, or may be applied to deeds conveying real estate, create what in law is termed a title by estoppel, which is defined as follows : A title by estoppel is where equity, and in some cases the law, in order to accomplish the purposes of justice which cannot otherwise be reached, draws certain conclusions from the acts of one party in favor of another, in respect to the ownership of lands which it does not allow the first to controvert or deny. Estoppels differ from evidence in this, that the former are received as conclusive, and preclude all inquiry as to the merits of the title, Avhile evi- dence is merely the medinm of establishing facts which do exist or have existed. As an estoppel against an estoppel sets the * 2Prest. Abst. 407; Sinclair v. Jack- v. Barnett, 31 Miss. 653; Snodgrass v. son, 8 Cow. 543; Douglas v. Scott, 5 Andrews, 30 Miss. 472; Crosby v. Ohio, 194. " De Graffeniied, 19 Ga. 290; Hurley v. -Montgomery v. Hunt, 5 Cal. 366; Osier, 44 Iowa, 042; Sims v. Field, George v. Williamson, 26 Mo. 190; 66 Mo. Ill; Tuffts v. Du Bignon, 61 Getzler v. Saroni, 18 111. 511 ; Andrew Ga. 322; Peterson v. Brown, 17 Nev. V. Marshall, 43 Me. 372; Clute v. 172; S. C. , 45 Am. R 437. Fitch, 25 Barb. 428; Huey's App., 29 ^ xi^iier v. Beckwith, 30 Wis. 55; Pa. St. 219; Ilubbs v. Brockwell, 3 Collins v. Heath, 34 Ga. 443; Jones v. Sneed, 574; Franklin v. Stagg, 22 Mo. Powles, 3 M. & G. 581; Everts v. Ag- 193; Gully v. Hull, 31 Miss. 20; Winn nes, 6 Wis. 453. Estoppel by Deed. 713 matter at large, a warranty opposed to a warranty leaves the mat- ter as though none had been made.' Estoppels do not give an estate, nor do they divest another of an estate or interest in lands ; They merely bind the interest by a conclusion which precludes the parties between whom it is made to operate from asserting or denying the state of the title," or in other words, a title is pre- sumed rather than acquired by estoppel, inasmuch as a person is concluded by his own act from disputing the title of another.^ § 579, Estoppels must be reciprocal or mutual. One not bound by an estoppel cannot take advantage of it." They are inapplicable to infants or femes covert^ except as will be here- after shown, for to be binding upon one they must bind the other also. In treating of estoppel by deed, it must be understood that unless the deed was aided by the estoppel it would be of no avail, by reason of the state of facts being different from what they are assumed to be by the instrument itself, and which facts if true would have given the same effect to the deed by its own intrinsic virtue which it receives by the aid of the estoppel ; as, for instance, if for a valuable consideration, A. makes a deed to B. wherein he assumes to convey a specific parcel of land, he thereby asserts that he is the owner of it, and that a title of the same thereby passes to B. and yet if he has no title, nothing in fact passes by the deed. But if he shall, soon after this, become the owner of this land, and the purchaser insists upon claiming it, it would not be open to him to deny such claim, after having thus taken the grantee's money, and having solemnly declared that he was and should be the owner of the land.^ Estoppels by deed are applied in some action or proceeding based on the deed, in which the fact in question is recited. In a collateral action there can be no estoppel,® nor will estoppels by deed avail in favor of any but the parties and their privies.' 1 Brown v. Staples, 28 Me. 197; wood v. Planigan, 104 U. S. 362; Kimball v. Scboff, 40 N. H. 197; Smith v. Water Co., 35 Conn. 400; Bronson v. Wirth, 17 Wall. 132. Dobbins v. Cruger, 108 111. 188; Han- " 1 Prest. Abst. 420; 2 Id. 205. nab v. Collins, 94 Ind. 201; Karnes v. 3 Crabb. Real Prop. 1046. Wingate, 94 lud. 594. * Ra3^ V. Gardner, 82 N. C. 146; « Carter v. Carter, 3 Kay & J. 645. Schenck v. Stumpf, 6 Mo. App. 381; "^ Carpenter v. Buller, 8 M. & W. Ante, § 20. 212; Cottle v. Sydnor, 10 Mo. 763; " Clark V. Baker, U Cal. 629; El- Ante, § 30. 714 The Law of Estoppel. § 580. An estoppel by deed is a mode of preserving rather than of acquiring property, inasmnch as a person is conchided by his own act from disputing the title of another, Tlie estoppel of a deed will be limited to actions based upon it or growing out of the transaction in which it was executed, and does not extend to a collateral action where the cause is different, while the sub- ject matter may be the same.' The law of estoppel is no excep- tion to the general principle that the operation of deeds is a question of intention, and will not be carried further than the parties appear from the tenor of the whole instrument to have agreed. " When it can be collected from the deed that the parties to it have agreed upon a certain admitted state of facts, as the basis on which they contract, the statement of those facts, though only by way of recital, estops the parties from proving the contrary. Therefore, the introduction of a statement into a sealed instrument will not render it conclusive unless there is sufficient reason for believing that such was the design or that some injustice would result from allowing it to be contradicted.' The presumption is against rather than in favor of the estoppel, and those relying upon it must show that it results from the language of a particular clause, and is in accordance with the object and tenor of the deed ; a vague, general or ambiguous statement not indicating that the parties meant to tie themselves down to a particular state of facts, consequently, will not, operate as an estoppel, nor will an estoppel be raised by intendment or implication from language susceptible of another interpretation.^ § 581. In order to give rise to an estoppel by deed, the parties must ordinarily be sui Juris, competent to make it effectual as a ' Collins V. Tilyou, 26 Conn. 368; Kas. 322; Osborn v. Endicot, 6 Cal. Carpenter v. Buller, 8 M. & W. 219; 149. Meiritield V. Parriott, 11 Cush. 590. =* gi-jnegar v. Chaffln, 3 Dev. 108; « Young V. Raincock, 7 C. B. 310; Campbell v. Knight, 24 Me. 332; Mc- Kay V. Askew, 5 Jones L. 63; Ry. Comb v. Gilkey, 29 Miss. 146; Dechert Co. V. Warton, 6 Hurl. & N. 520; v. Blauton, 3 Snee Schafner v. Gnidmaker, 6 Iowa, 57 Pa. St. 426. 137; Gilliland v. Swift, 21 N. Y. ° Conner v. Martin, 1 Stra. 516; Super. Ct. 574. Legg v. Legg, 5 Mass. 99. ^Griffin v. Sheffield, 38 Miss. 359; « Hill v. West, 8 Ohio, 222; Colcord Dcmpsey V. Tylee, 3 Duer, 73; Bank v. Swan, 7 Mass. 291; Nash v. Spot- V. Banks. 101 U. S. 240; Paknerv. ford, 10 Met. 192; Fowler v. Shearer, Cross, 9 Miss. 46. 7 ]\Iass. 14; Stow v. Wyse, 7 Conn. 3 .Jackson v. Vanderheyden, 7 24; McDonald v. King, 1 N. J. L. John. 167; GrfRn v. ShetHeld, 38 Miss. 432; Simson v. Eckstein, 22 Cal. 580; 359; Wadleigh v. Glines, 6 N. H. 17. Larco v. Cassaneva, 30 Cal. 560; * Canan v. Farmer, 3 Ex. Rep. 698; Sliawhan v. Long, 26 Iowa, 488; Rice Straun V. Straun, 50 111. 37; Wales v. v. R. R., 12 Allen, 141; Douglass v. Coffin, 13 Allen, 216; Dean v. Shelly, Cruger, 80 K Y. 15. Estoppel by Deed. 717 bound by her covenauts, as if she were at the time sole and unmarried,' In Oregon the courts hold that estoppels in deeds without warranty apply to married women." § 583, In New York the court held that as a conveyance by a married woman, her husband reciting that the land was hers, did not estop her, and could not be binding upon the other par- ties, and left both her husband and grantee free to allege that the land in point of fact belonged to her husband,' So a widow may show that land assumed to be conveyed by her husband by a deed in his lifetime did not belong to him ; the same ground may be taken by the grantee in a suit brought by her for dower,* And in Missouri it has been held that the recitals in a deed by which a married woman purports to convey her title to land do not estop her nor those claiming under her from asserting the truth against the recitals.* In England the rule is that she is estopped by the recitals in her deed." In Pennsylvania the contract of a married woman being void it cannot be ratified unless by deed in the statutory mode. Positive acts of encouragement which might operate to estop one sui juris will not affect one under legal disability. A married woman, by agreement signed only by her- self and without an acknowledgment, contracted to sell land, she received one year's interest and part of the purchase money. The purchaser took possession and made improvements with her knowledge and encouragement. The court held that neither the principle of estoppel nor compensation would prevent her from recovering the land,^ § 584. In regard to infants it is the universal rule that estop- pels do not appl}'' to or affect them,* with but this one exception. The fraudulent acts, concealments or representations of infants, > Bassforcl v. Pearson, 7 Allen, 504. S.) 118; Fiddey, in re, L. R. 7 Ch. 2 Graham V. Meek, 1 Oregon, 325; App. 773. Richmond v. Tibbies, 26 Iowa, 474; ■> Glidden v. Struppler, 52 Pa. St. Massiev. Sebastian, 4 Bibb, 433. 400; Coal Co. v. Pasco., 79 111. 164; 3 Dempsey v. Tylee, 3 Duer, 73. Rogers v. Brooks, 30 Ark. 612; Wood 4 Gaunt V. Wainman, 3 Bing. N. v. Terry, 30 Ark. 385. C. 69; Gardner v. Greene, 5 R. I. « Cook v. Toombs, 36 Miss. 685; 104. Houston v. Turk, 7 Yerg. 913; Wat- 6 Hempstead v. Easton, 39 Mo. son v. Billings, 38 Ark. 278; S. C, 42 142. Am. R. 1. * Skottowe V. Williams, 7 Jur. (N. 718 The Law of Estoppel. ■when made or done with a view to deceive or defraud others, will be as binding upon thcni as upon an adult and their contracts will be enforced against them.* Where the defendant in an action for breach of covenants in a warranty deed to a married woman admits the execution of the deed but does not allege fraud, accident or mistake, he is estopped from claiming that the cove- nants do not run to the grantee or that her husband is the real paHy in interest,* nor is Vifeme covert estopped by joining in a deed of her husband's land containing covenants of warranty from setting up a title subsequently acquired with her own means independent of her husband/ A warranty deed by the husband does not estop the wife from enforcing a prior mortgage held by her as her separate property against the husband's grantee and thoae holding under him/ In Illinois the courts hold that a married woman may be estopped to claim homestead where she and her liusband join in a deed of the premises and then abandon them/ "When a conveyance by a husband and wife of the wife's land is void for the want of proper acknowledgment as, to her, the children will not be estopped by the warranty of the husband/ Where a patent issued to a husband and wife, and both joined in a conveyance thereof, but the deed was so defectively executed by the wife as not to pass her title, and the husband survived the wife, her title vested in him and enured to the benefit of the grantee who took the deed honafide without notice of any fraud on the rights of the wife/ § 585. A grantor is estopped by his deed to say that he had no interest in the land.* So he cannot object that it is inoperative ' Kilgore v. Jordan, 17 Tex. 341; 25 Iowa, 107; Williams v. Baker, 71 Overton v. Bannister, 3 Hare, 503; Pa. St. 483; Burns v. McGraw, 3 P. Adams' Equity, 176; Watts v. Cres- N. B. 186. well, 9 Yiner, 415; Conyert v. Gert- ^ Bartlett v. Boyd, 34 Vt. 35G. Chen, SMaddox, 40; Gillespie v. Na- ^ Brown v. Coon, 36 111. 243. bors, 59 Ala. 441 ; Houston v. Turk, 7 « Cliauvin v. Wagner, 18 Mo. 531 ; Yerg. 13. Small v. Pioctor, 15 Mass. 495; Crit- 2 Gray v. Stockton, 8 Minn. 529 tenden v. Woodruff, 11 Ark. 82; Spar- ^Cbildsv. McCbesney. 20 Iowa, 431; row v. Kingman, 1 N. Y. 242; Moore Nunally v. White, 3 Met. (Ky.) 584; v. Gonow, 3 A. K. Marsh. 41. Baxter v. Bodkin, 25 Ind. 172; Wil- ' Patrick v. Chenault, 6 B. Mon. son V. Kirby, 23 N. J. K 150; King 315. v. Rea, 56 Ind. 1 ; Nicholson v. Caress, » Fairtitle v. Gilbert, 2 T. B. 171; 45 Ind. 479; O'Neil'v. Vandeuburgh, Caffrey v. Dudgeon, 38 Ind. 512; Estoppel by Deed. 719 bj reason of informality of execution. To have this effect the one who is estopped must have joined in the deed as a grantor therein and must have been capable of making a valid deed. Thus wliere a liusband made a deed with covenants of warranty of his wife's estate in which she joined by a clause relinquishing her riglit of dower but not by words of grant, it was held that neither slie nor her heirs were estopped thereby to claim the land even at the end of twenty-nine years after making the deed.* And where a deed was made to a femfie covert who at the same time made a mortgage to secure a part of the ^Durchase money it was held to be a void deed of mortgage since a. feme covert could not make a deed.^ In this respect the estoppel is not reciprocal, for a grantee who holds an executed title under a deed may deny his grantor's title in the same manner as he could that of a stranger.' § 586. Estoppels must be mutual ; they are limited to parties and privies, and cannot be enforced by or against strangers.* When, however, the estoppel takes effect upon and passes an after-acquired title, third persons are as much estopped from questioning its operation as the parties, while they may still be at lil^erty to show that the title is not valid or did not come within the reach of the estoppel. A purchaser at a judicial sale is, in general, bound b}^ and entitled to take advantage of every estoppel that could have been enforced by or against the party Meniam v. Boston, 117 Mass. 247; Craiy, 5 Wall. 795; Williams v. Chan- Doe V. Ford, 3 A. & E. 649; Rulber- filer, 25 Tex. 40; Nutwell v. Tongue, ford V. Stamper, 60 Tex. 447. 22 Md. 499; Braiutree v. Higham. 17 ' Raj-mond v. Holden, 2 Cusli. 264; Mass. 432; Worcester v. Green, 2 Pick. McMoriis v. Webb, 17 S. C. 558. 425; Conger v. Feltou, 1 Rawle, 141; 2 Bank V. Bell, 10 Cush. 264. Griggs v. Smith, 12 N. J. L. 22; Miles 3 Winlock V. Hardy, 4 Lit. 272; v. Miles, 8 W. & S. 135; Langston v. Moore v. Farrow, 3 A. K. Marsh. 41; McKinne, 2 Murph. 07; Doe v. Erring- Lewis V. Baird, 8 McLean, 79; Small ton, 8 Scott, 210; Waters' App., 35 Pa. V. Proctor, 15 Mass. 295; Crittenden St. 523; Allen v. Allen, 45 Pa. St. V. Woodruff, 11 Ark. 82; Sparrow v. 573; Sunderlin v. Struthers, 47 Pa. St. Kingman, 1 N. Y. 242; Gardner v. 411; Catterlin v. Hardy, 10 Ala. 511; Greene, 5 R. I. 104; Great Falls Co. Carver v. Jackson, 4 Pet. 1; Penrose V. Worcester, 15 N. H. 414. v. Griffiths, 4 Binn. 231 ; Sheddeu v. 4Longwellv. Bentley, 3Grant, 177; Wurtz, 30 N. H. 104; Bullum v. Shuraanv. Garratt, 16 Cal. 100; Boll- Hutchinson, 1 Allen, 58; Chope v. ing V. Mayor, 3 Rand. 536; Griffin v. Loman, 20 Mich. 327; Simpson v. Richardson, 11 Ired. L. 439; Deery v. Pearson, 31 Ind. 1; Ante, § 30. •720 The Law of Estoppel. whose property is sold, and this is equally applicable to the creditor under whose judgment or execution the sale is made.' Estoppels operate neither in favor of nor against strangers, but affect only parties and privies. Privies in blood, in estate and in law. Privies, or those who derive title from or through the parties, ordinarily stand in the same position as the parties, and are bound by every estoppel that would have been binding on the parties. A stranger can neither take advantage of nor be bound by an estoppel.' Still it is sometimes difficult to make the distinction between privies and strangers. Thus, where one who had been disseised, conveyed the land by deed to a stranger, and then sued his disseisor for possession, it was held, that his deed to a stranger did not estop him from maintaining the action.' So where the deed to the stranger passed nothing for the want of proper execution, the tenant, not a party to it, cannot avail him- self of it." But a person in possession, sustaining his possession by no other title than a denial that a former owner had parted with his right, is not a stranger. He becomes privy in estate to him whose title he maintains, and is estopped by what destroys that in his hands. For if title can be traced by B. to A., and B. can fasten upon A. the incapacity of asserting his right in conse- quence of his admission that he has conveyed to B., it is not just that one standing on A.'s claim only and relying on no superior right, should be permitted to contest the existence of a fact which those interested have settled.* § 58T. Any person claiming under one who is bound by an estoppel, is himself bound by the same estoppel." Thus, a pur- * Henderson v. Norcross, 19 N. J. v. Miles, 8 W. & S. 135; Deery v. E. 417; O'Neal V. Duncan, 4 McCord, Crary, 5 Wall. 795: Kitzmiller v. 246; Waters' Appeal, 35 Pa. St. 523; Rensselaer, 10 Ohio St. 63; Williams Richards v. Johnson, 4 Hurls. & N. v. Chandler, 25 Tex. 40; Griggs v. 660. Smith, 12 N. J. 22. 2 Doe V. Errington, 6 Bing. (N. C.) ^ Wolcot v. Knight, 6 Mass. 418; 79; Jackson v. Bull, 1 Johns. 81; Jackson v. Brinkerhofl", 3 Johns. 101. Jackson v. Brinkerhoff, 3 Johns. 101; * Patterson v. Pease, 5 Ohio, 190. Miller V. Holman, 1 Gram Cas. 243; ' Kinsman v. Loomis, 11 Ohio, 478; Jackson v. Bradford, 4 Wend. 419; Easter v. R. R., 14 Ohio St. 52; Moore Kimbail v. Blaisdell, 5 N. H. 533; v. Aldrich, 19 Pick. 449; Whatman v. Sunderlin v. Strulhers, 47 Pa. St. 423; Gibson, 9 Sim. 196. Massure v. Noble, 11 111.531; Lang- 'Phelps v. Blount, 2 Dev. 177; Btou v. McKiuney, 2 Murph. 67; Miles Douglass v. Scott, 5 Ohio, 194; Wark Estoppel by Deed. 721 chaser from one who had made a prior deed with warranty, was estopped by the first deed as well as his grantor, although it had never been recorded, provided he had notice of its existence when he took liis deed. So, an administrator is estopped from attacking the deed of his intestate as completely as the latter would have been estopped.' Where A., by a deed of moi'tgage with warranty, conveyed his estate, upon which there was an out- standing mortgage, and A. purchased this and took an assign- ment of it to himself in his own right, it was held that this latter mortgage enured to the benefit of A.'s mortgagee with cove- nants.' But if, after having made a conveyance with warranty without having title, the estate comes to him as a mere conduit in passing it from its owner through him to another person, it does not inure to the benefit of his original grantee." There is a distinction between an estoppel in evidence and in point of estate. Thus, a deed poll cannot create an estoppel in point of estate. But if such deed recites that A. by bond did a particu- lar act, the maker of the deed cannot deny that there was no such bond.' A deed or bond procured by fraud will not operate as an estoppel upon the party defrauded ; relief may be granted under the circumstances, at law, not only when the fraud enters into it and vitiates the execution of the instrument, but when it consists in a uiisrepresentation of the nature and value of the considera- tion." But one of the parties to a sealed instrument cannot V. Willard, 13 N. H. .^89; Mnple v. Kussart, 53 Pa. St. 348; Bank v. Housemiui, 6 Paige, 526; Smith v Prince, 14 Conn. 472; Osgood v. Ab- bott, 58]Me. 73; Taylor v. Needbam, 2 Tiiiint. 279; Trevivan v. Laurnnce, 1 Salk. 276: Bates v. Norcross, 17 Pick. 14; Waters' Appeal, 35 Pa. St. 523; Doe V. Stone, 3 C. B. 176; Adams v. Cuddy, 13 Pick. 460; Doe v. Dovvdall, 3 Houst. 369; Taylor v. King, -6 :siunfd. 358; Jackson v. Holland, 14 Fla. 384; Conover v. Porter, 14 Ohio St. 450; Cuttle V. Brockway, 32 Pa. St. 45; Coe v. Talcott, 5 Conn. 88; .Jack- son v. Stevens, 13 Johns. 316; White V. Patten, 24 Pick. 324; Lowry v. Williams, 13 Me. 881; Kimball v. Vol. I.— 46 Blaisdell, 5 N. H. 333; McKcndrie v. Lexington, 4 Dana, 129; Fairbanks v. Williamson, 7 Me. 96; Trull v. East- man. 3 Met. 121; Bennett v. Walker, 23 111. 97; Van Rensselaer v. Kearney, 11 How. 297; Colborn v. Broughton, 9 Aln. 357; Emmert v. Hays, 89 111. 11; Scoffins V. Grandstaff, 12 Kas. 467. ' Hall V. Armor, 68 Ga. 449. ^ Kelly V. Jenness, 50 Me. 455. ^ Kelly V. Jenness, Sup. ; Runlet v. Otis, 2 N. H. 167; Marsh v. Rice, 1 N. H. 167. •» Shep. Touch. 53. 5 Hazard v. Irwin, 18 Pick. 95; Phillips V. Potter, 7 R. I. 289; Hart v. Holcomb, 23 N. H. 535; Chew v. 722 The Law of Estoppel, resist a recovery upon it by alleging that it was concocted by both in fraud of a third person.' § 588. Where the truth appears upon the face of an instru- ment, there can be no estoppel.'' In Pargetter v. Han-Is, the court said : '• Thb lessor was not estopped from denying that no estate had passed, by an assignment of the reversion on which a recovery could be had by the assignee, because the lease dis- closed that a mortgage had been given of the premises under which the Iciial title had vested in the morto:aoree.'' Where there is an admission that the grantor has no title at the time of the grant, he is liberated from any estoppel that may arise : if there is a warranty in the deed, and he is enabled to rely on an out standing title in a third person as an answer to an action brought by the grantee.' There are, of course, exceptions to this rule, as there is to every rule of law, no matter how well settled or how long it has been established. It must appear to qvqv^ one that when that which is expressly or impliedly alleged in one part of an instrument, is elsewhere as unqualifiedly denied, both statements must be disregarded and the parties permitted to show how the matter really is or stands.^ This state of facts or cir- cumstances creates what is termed or known as an estoppel against an estoppel, and sets the matter at lai'ge." Thus, a wan-anty opposed to a warranty sets the matter at large and there is no estoppel. But when, from the terms of a eontract, or the cir- cumstances under which it is made, it appears unequivocally that an allegation or recital was meant to control or qualify the other and take effect as if the other had not been inserted, no such case arises. ^ 589. While the acceptance of a deed, or tjie benefit which Moffatt, 6 Munf. 120; Tomlinson v. Wheelock v. Henshaw, 19 Pick. 341; Mason, 6 Rand. 169; Great house v. Coke Litt. 352; Cutbbert^sou v. Irving, Duntap, 3McL. 303; Lcanard v. Bates, 4 H. & N. 742; Pelletrau v. .Jackson, 1 Blfd. 170. 11 Wend. 110; Jackson v. Sinclair, 8 » Mayliee v. SnitTen, 16 N. Y. 560; Cow. 543. Hurley v. Osier, 44 lown, 642; Fred- » Wheelock v. Henshaw, 19 Pick, ericks v. Davis, 3 Mont. 351; Tuffts 341. V. Du Biguon, 61 Ga. 322; Gass v. < Sinclair v. Jackson, 8 Covven, 543. Ha'-;iptc)n, 16 Nev. 185; Knaggs v. ' Carpenter v. Tliompson, 3 N. H. Mastin, 9 Kas. 532. 204; Coke Litt. 353, b. 1; Com. Dig. * Pargetter v. Harris, 7 Q. B. 708; Est. Estoppel by Deed. 723 it confers, may make it moi"e or less persuasive evidence against a grantee, by whom it was not sealed ; it cannot be made his deed, or estop him from showing that nothing passed by its oper- ation from the grantor, and when the deed is sealed by the grantor alone, the grantee may question his title.' A deed poll estops the grantor, but not the grantee, and the question as to whether both are to be estopped by a deed, or only one, must be ascertained from the whole deed. There is no principle of law which prevents a man from binding himself while leaving others free. A conveyance, by bargain and sale, or lease and release, without warranty or covenants for title, does not ordinarily estop the grantor, but this arises from the generality of the words employed, and is equally applicable and true, whether the grant be by deed poll or by an indenture, executed by the grantee. Therefore, when both parties put their seals to the deed, it may still be a q'.estion whether the words of a covenant or recital, by which one of them is alleged to be estopped, are his, or should be regarded as proceeding solely from the other.^ A deed executed by one party only, but containing an express covenant on the part of the other to perform certain acts, binds the latter, if he accepts the deed and takes possession under it, as effectually as if he had signed it, although it may be otherwise with a naked condition unaccompanied by any covenant on the part of the grantee.' Thus, where land is conveyed by deed poll, with a reservation that the grantee shall maintain suital)le fences upon the lines of the premises, and the grantee accepts the deed, he is bound to perform the serviced A covenant entered into between owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected on such lots shall be set back a specified distance from the line of the street on which the lots front, is a covenant which equity will enforce between ' Sparrow v. Kinsman, 1 N. Y. Felton, 1 Rawle, 141; Worcester v. 242; Blanchard v. Ellis, 1 Gray, 195; Green, 2 Pick. 423; Williams v. Massure V. Noble, 11 111. 531; Long- Chandler, 25 Tex. 4; Boiling v. Mayor, well V. Bentley, 3 Grant Cas. 177; 3 Rand. 5')3. Miles V. Miles, 8 W. & S. 135; Griffin ^ Sironghill v. Buck, 14 Q. B. 781. V. Richardson, 11 Ired. 437; Langstou ^ Spaulding v. Hallenbeck, 35 N. Y. V. McKinne, 2 Murph. 67; Schuirman 204. V. Garratt, 16 Cal. 100; Langer v. ■» Harriman v. Park, 55 N. H. 471. 724 The Law of Estoppel. the parties to it, in favor of one against the other, or in favor of and against any subsequent grantee of either lot.* § 590. Acceptance of an indenture binds the grantee without execution." A covenant or stipulation inserted in a deed poll binds the grantee, his heirs and assigns, where such stipularion directly relates to the premises conveyed, or the adjoining prem- ises, as a fence, easement, (fee. A deed poll may run in tlie third person as well as in the first, and an indenture in the first as well as in the third. The only real difl:erence in form is, that an inden- ture purports to l)c tiic deed of both or all parties to it, and a deed poll the deed of the grantor only. So of old an indenture was wi'itten in counterparts, one for each party, all correspond- > Roberts v. LevJ^ 3 Abb. Pr. N. &. 311. " Finley v. Simpson, 22 N. J. L. 311: Vila.sv. Dickenson. 13 Wi.s. 488; Bronson v. Coffin, 108 Muss. 175; Blair v. Taylor, 19 Abb. Pr. 228; Bishop V. Dou-las, 25 Wis. G96; jMc- Clellan v. Sanford, 26 Wis. 595; Hazlett V. Sinclair. 76 Tnd. 488; Green V. Iloran, 1 Salk. 197; Halscy v. Reed, 9 Paige, 440; Lowber v. Connit, 36 Wis. 176; Hutchinson v. R. R., 37 Wis. G01 ; Easter v. R. R.. 14 Ohio St. 48; Boyle v. Tamlyn, 6 B. & C. 329; Torrey v. Bank, 9 P:dge, 600; Brett v. Cumberland, Cro. Jac. 522; Phelps A^ Townsend, 8 Pick. 394; Gale v. Nixon, G Cow. 448; Flagg v. Flagg, 11 Pick. 375; Trolter v Hughes, 12 N. Y. 474; Buibauk v. Pillsbury, 48 X. H. 475; Dow V. Harrahan, 108 Mass. 398; Thorn v. Keokuk, 48 N. Y. 353; Maule V. Weaver, 7 Pa. St. 39; Bel- mont V. Coman. 23 N. Y. 438; Murphy V. Barnett, 1 Law R. 106; Burnett v. Lynch, 5 B. & C. 589; Maynard v. Maynard, 4 Edw. Ch. 711; Curtis v. Tvler, 9 Paige. 443; King v. Wliitely, 10 Paige. 465; Rosenkrans v. Snover, 19 N. J. E. 420; Sheppard v. Hunt, 4 N. J. E. 277; Staines v. Morris, 1 Ves. & B. 14; Rogers v. Ins. Co., 9 Wend. 618; JMaynard v. Moore, 76 N". C. 176; Dock Co. v. Leavilt, 54 N. Y. 35; Hathaway v. Payne, 34 N. Y. 92; Walsh V. Barton, 24 Ohio St. 28; DufTy V. R. R.. 2 Hilt. 496: Rosselle V. Wickham. 36 Barb. 386: Wilkensv. Fry, 1 Me. 2G5; Earle v. Mayor, 38 N. J. L. 47; Pettee v. Haines, 13 Pick. 323; Dyer v. Sandford, 9 Mel. 396; Houghton V. Carpenter, 40 Vt. 588; Linsley v. Lovely, 26 Vt. 123; Ford v. Yates," 40 E. C. L. 508; Manf. Co. v. Morse, 48 Vt. 322; Campbell v. Camp- bell, 3 Head, 328; Walls v. Ward, 2 Swan, 648; Spaldinsi; v. Hallenbcck, 35 N. Y. 206; Woburn v. Hcnshaw, 101 Mass. 193; Harriman v. Park, 55 N. H. 471; Porlertield v. Clark, 2 How. 109; Newell v. Hill, 2 Met. 281 ; Good- win V. Gilbert, 9 Mass. 514; Nugent V. Riley, 1 Met. .117; Emerson v. Mooney, 50 N. H. 320; Hatch v. Crawford, 2 Port. 54; Parish v. Whitney, 8 Gray, 516; Plymouth v. Carver, 16 Pic:k. 183; Bayley v. Mc- Coy, 8 Oreg. 259; Center v. Bank, 23 Ala. 143; Stines v. Dorman, 25 Ohio St. 580; Clark v. Martin, 49 Pa. St. 299; Seymour V. McDonald, 4 Sandf. Ch. 502; Kellogg V. Rol)in.son, 6 Vt. 276; Kuupton v. Walker, 9 Vt. 191. Estoppel by Deed. 72o ingly indented for the purpose of identification, and a deed poll in one part only, cut evenly or polled, without indenture. The mechanical process v/as. essential to an indenture, for "it may be an indenture without words, but not by words without indent- ing.'" And it was held that an indenture was the deed of the grantee, though not executed by him, because he accepted it imjjorting to be sealed by him ; but that acceptance of a deed poll did not bind him, because it did not import to be sealed by him.* There were once meaning and purpose in these distinc- tions, puerile as some of them now seem, but the names have long survived all useful sense. In our conveyancing these sub- tleties ar# practically obsolete. Our common deed of convey- ance is never indented or executed in parts, and is not an inden- ture, though it so calls itself, and imports execution b}' both parties. It is universally executed and dealt with as a deed poll, and sometimes a deed poll is substituted for it, without questions of diiference in law, as there is none in fact. And the same effect is given to acceptance of deeds poll as to acceptance of indentures, without pausing to weigh the subtleties of distinction M'hich died long ago out of the practical business of American life. § 591. As an illustration af the application of the doctrine of estoppel to what is known as deeds poll or instruments aflFecting the title to land, such as ordinary deeds of conveyance, signed and executed by the vendor or the vendor and his wife, and con- tracts to convey upon conditions, and deeds conveying property upon conditions or reservations which provide when and how the property conveyed may revei't to the grantor or his heirs, the following cases may be cited : Where a condition in a deed of land provided that in case intoxicating liquors be sold in any place of public resort thereon, the deed shall become void ; on breach of such condition the grantor has a right to treat the estate as having reverted, and can maintain ejectment without a previous entry or demand. In such action the grantee is estopped to deny the validity of the title conveyed by the deed whereunder he took possession.' So where a deed from a father » Co. Litt. 229 a. ^ Cowell v. Springs Co., 100 U. » Co. Litt. 229 a, 230 b. S. 55. 726 The Law of Estoppel. to a son, " excepting and reserving to his three daughters the right of being on the farm and being supported from it as long as thej remain single," the son accepting the deed is estopped to deny its conditions.' The grantee of a deed inter partes is bound by the conditions, covenants and stipulations therein on his part, although the deed is only signed by the grantor. If they be such as are legally sufficient to create an easement in the premises granted, the grantee takes the land subject to that ser- vitude. The most familiar example of the application of this principle is where a person accepts a lien upon or interest in prem- ises, where the deed of conveyance is made subject to a mortgage for a sum specified in the deed, which deed contains a further recital that the grantee assumes the payment of such lien. He can neither question the consideration nor the validity of such mortgage, and if in the pui'chase price of said property the amount of such lien be deducted, the grantee thereby estab- lishes its validity, and cannot thereafter question it in an action to foreclose it." The deed becomes the deed of the grantee as well as the grantor, and he is bound by it. " A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be declared upon as his deed, yet by force of his acceptance is a valid contract on Iiis part by which a right may be reserved or granted, or upon which a suit may be maintained." There is no distinction in favor of the party because the contract is executed by him alone. It is for that reason none the less mutual and binding on both j^arties; and the same rule applies as to admissi- bility of extrinsio evidence, as though both parties had signed it. The Supreme Court of Wisconsin, in a case of this nature, said, "The grantee accepted the instrument, entered under it, and ' Maynarcl v Maynard, 4 Edw. Ch. Major v. Biilkley, 51 Mo. 227; Kenedy 711. V. Brown, 61 Ala. 29G; Lawrence v. ■< Miller v. Winchell, 70 N. Y. 437; Fox, 20 N. Y. 268; Green v. Kemp, Graves v. Mumlord, 26 Barb. 94; 13 Mass. 515; Jackson v. Thompson, Sands v. Church, 6 N. Y. 347; Free- 6 Cowen, 178; Lee v. Clark, 1 Hill, man v, Auld. 44 N. Y. HO; Barnes v. 56; Bank v. Martin, 1 Met. 294; Hol- Mott, 64 N. Y. 397; Eussell v. Pastor, mes v. Ferguson, 1 Oreg. 220; Cram 7 N. Y. 171; Hartley v. Harrison, 24 v. Ingalls, 18 N. H. 613; Haile v, N. Y. 170; Ritter v. Phillips, 53 K Y. Nichols, 1(5 Hun, 37; Root v. Wright, 566; Ricard v. Sanderson, 41 N. Y. 21 Hun, 534; Goodwin v. Keney, 49 179; Hardigree v. Mitchum, 51 Ala.151; Conn. 563; Post, ch. IX., Recitals. Estoppel by Deed. 727 claims to have complied with its terms. This is, in effect, the grantee's answer. It -wonld be strange if it conkl accept the grant freed from the provisions qualifying the grant; take the estate, without the limitations of the estate ; claim under the contract, without being bound by its terms. The grantee took its right cu7n onere, and, by accepting the instrument, bound itself as much by the terms of the contract as if it had sealed it.'" § 592. Where husband and wife join in a deed of the prem- ises, though not in such a form as to be in itself a release uf the homestead, and then remove from the premises, and the purchaser enters upon the same and sells them, it works an estoppel npon the wife as to the claiming of a home- stead right therein." But one taking a deed from a debtor, in which is a recital that the premises are those on which the grantor resides, is estopped to set up that the grantor has aban- doned the premises as his residence.' But so far as a husband has an interest, independent of his wife and children, in a home- stead estate, he is at liberty to convey it subject to their rights, and may enter into covenants in respect to the same which will bind and estop him, as in the conveyance of any other estate. But if he convey with covenants of warranty, he is estopped to claim it against his grantee or his assigns, nor is it any bar to an action by such grantee to recover possession of such estate, that the grantor's children are entitled to a homestead therein, unless the same has been set out and assigned as sucli. If such grantor attempts to have a homestead set out against a grantee, he is estopped in equity from so doing. Xor can his wife and minor children do this during the husband's life in proceedings against a purchaser with covenants. They are as much estopped thereby as the husband.* While a conveyance by the husband of the homestead to which the wife is not a ])arty, is inoperative to con- vey her homestead right, it estops the administrator of the deceased husband from asserting title as against those claiming under it.' In Georgia it is held that the husband may waive the » Hutchinson v. R. R., 37 Wis. 602. Christy v. Dyer, 14 Iowa, 438. 2 Brown v. Coon, 36 111. 243; * Foss v. Strachn, 42 N. H. 42; Wales V. Coffin, 13 Allen, 216. Williams v. Swetland, 10 Iowa, 51. 3 Williams v. Swetland, 10Iowa,51; ' Irion v. Mills, 41 Tex. 310. 728 Tii?] Law of Estoppel. riglit of ]ioinesteacl, and his waiver will bind his family and wife as effectually as if she had joined in it.' § 593. Where parties claim title from one person as a common source, they are csto])ped from denying the title of the original claimant from whom they derive title. And where parties, if living, would thus be estopped, their heirs and privies in estate are likewise estopped." In a contest for town lots, both parties claiming under the trustees, the defendant is estopped to deny the right of the trustees or to set up an outstanding title f where parties enter into possession under a compromise and occupy and enjoy according to the terms of it for eleven years, they cannot afterwards repudiate it ;* where a person received the legal title of land for the use of certain creditors of the owner thereof, he cannot set up any title which would effect the trust ;* where parties go into possession of premises claiming title thereto under a conveyance to a particular grantee, they cannot set up an out- standing title in a stranger to defeat the person under the same title as themselves ;* where a conveyance was by man and wife, and possession taken under her deed, though the deed be inef- ' Jackson v. Parrott, 67 Ga. 210; Bowen V. Bowen, 55 Ga. 183; Smith V. Shepherd, G3 Ga. 454; Simons v. Anderson, 56 Ga. 53. ^ Gaines v. Now Orleans, 6 Wall. 642; Hamblin v. Bank, 19 Me. 06; Bliss V. Smith, 1 Ala. 273; Simmons v. Hendiickson, 3 Ilarring. 103; Koss V. Durham., 4 Dev. & B. 54; Phelps V. Blount, 2 Dev. L. 177; English v. Wright, 1 N. J. L. 437; Harris v. Gardner, 10 3Ie. 383; Dashiel v. Col- lier. 4 J. J. ]\rarsh. 601; Steele v. Sclmcker, 45 Wis. 134; Hall v. Armor, 68 Ga. 449; GUI v. Faunt- leroy, 8 B. Jlon. 177; Colburn v. Broughton, 9 Ala. 351; Bank v. Mer- serean, 3 Barb. Ch. 528; Irion v. Mills, 41 Tex. 310; Booth v. Wiley. 102 111. 84; Ames v. Beckley, 48 Vt. 305; Elwood V. Lannon, 27 Md. 200; Kimball v. Semple, 25 Cal. 40; Roys- ton V. Wear, 3 Head. 8; Rhiues v. Baird, 41 Pa. St. 256; Schumaker v. Hoover, 22 Wis. 43; Murphy v. Bar- nett, 2 Murph. 251; Barwick v. Wood, 3 Jones L. 306; Banks v. Ammon, 27 Pa. St. 172; Roystou v. Wear, 3 Head, 8; Ives v. Sawj-er. 4 D. & B. 51; Bridge v. Wellington, 1 Mass. 219: Gardner v. Sharp, 4 Wash. 609, Ellis v. Jeans, 7 Cal. 409; McClain v. Gregg, 2 A. K. Marsh. 454; Johnson V. Walts, 1 Jones L. 228; Kissam v. Gaylord, 1 Jones L. 224; Thomas v. Kellj', 1 Jones L. 375; Monet te's Suc- cession. 26 La. An. 26; ilickey v. Stratton, 5 Sawyer, 475; Campbell v. Trunnell, 61 Ga. 518. ' McClain v. Gregg, 2 A. K. Marsh. 454; Bunker v. Rand, 19 Wis. 260; Jackson v. Jones, 9 Cow. 182. * Colborn v. Broughton, 9 Ala. 351; Washburn v. Washburn, 4 Ired. Eq. 306. 5 pmic V. Oliphant, 14 Pa. St. 342 « Bank v. 3Ierserau, 3 Barb. Ch. 528. Estoppel by Deed. 729 fectual from defect in the acknowledgment, the grantees in the deed are estopped to assert an outstanding title in a third person, in a contest with the heirs of the wife, after the death of the husband.* An estoppel will generally be suppressed where its enforcement would produce fraud, and will on the other hand be called into being for the prevention of fraud. A vendor M'ho sells real estate to an executor, receives the money and executes a deed therefor in accordance with the terms of the contract of sale, is thereby estopped from claiming, in an action brought against him by the executor for rent received after the sale, that the purchase is invalid because niade to the e-xecutor, without being authorized by a probate court.* It is well settled in Eng- land that the rule estopping a party by his deed, does not apply so as to preclude a party from asserting that the transaction was contrary to law or void, on the ground of fraud, and for this pur- pose giving evidence to contradict the statements contained in the deed. In this country, it is held that a grantor, with full knowledge of the facts, is estopped from testifying that Ids war- ranty of title was fraudulent and void.' § 594. The owners of a tract of land purchased at a land sale are estopped to deny the right of one who has bought at a sale under an execution against him, though siK3h purchaser at the land sale has not yet paid for the land and, therefore, has acquired no legal title." If one makes an obligation under duress and after being at large takes a defeasance upon it, tliis makes the obligation good again and estops the obligor from saying that it was by duress.^ Thus subsequent acts of ratification by a mort- gagor estop him from setting up duress as a defense to an action of foreclosure. § 595. The declarations of parties to a public act cannot be contradicted by parol testimony introduced by the party who has made those declarations, unless on the allegation and proof of fraud, duress or error.® So where a defendant convej^ed prem- * Gill V. FauDtleioy, 8 B. Mon. * Huasucker v. Tipton, 13 Ired. 177. 481. ' McNaraee V. Moreland, 26 lo-wa, ^ Shep. Touchstone, § 62; Bartle v. 96. Breniger, 37 Iowa, 139. ^ Fredericks v. Davis, 3 Mont. 251. ^ McRae v. Creditors, 16 La. Ann, 305. 730 The Law of Estoppel. ises in controversy, by warranty deed to " C." and plaintiff claimed under an execution sale thereof to " C," tliu defendant was estopped b}' his deed from asserting any title against all claiming under " C" Where the averments in a petition amount to an acceptance of a succession, the plaintiff is estopped fi-om contesting a valid title derived from the person whom he succeeds, he is the warrantor of the title." One who gives a deed of lands which are in adverse possession of another, is estopped from disputing the deed, and the grantee njay enforce his rights under it against the person in possession in the name of the grantor.' The sftle by one part owner, while it is inoperative against the other joint owners, and cannot affect their interest in the property, will operate against him by way of estoppel.* A conveyance by a grantor to a grantee, both out of possession, given to remedy a defect in a former deed executed by the gran- tor, and to fortify the title of the possessor of the premises, or that derived from him, is valid for that purpose, and to estop the grantor from setting up the defect.* § 596. There is an implied warranty between coparceners as to the property allotted in partition, which will work an estoppel,* where partition is made and the parties take possession according to the survey and map made at the time. They are estopped from controverting a boundary, on the ground of an alleged mis- take, which they claimed to have discovered in a later survey.' So where the owner of a life estate, and the owner of a fee made partition of land and executed to each other releases in fee, after the division, a sale and conveyance by either party, of the por- tion allotted them in the partition, is a contirmation of the partition, and estops the. parties from claiming any interest in the part allotted to the other." A party is not estopped by his admis- sion or assertion of a conclusion of law upon undisputed facts. Thus, where there had been a partition of real estate among devisees by action, and occupying under it, claiming as owners in ' Dodge V. Walley, 22 Cal. 224. » Fiyer v. Rockefeller, 63 iS\ Y. " McQueen v. Sunders, 15 La. Ann. 268. 141. 6 Farrar v. Christy, 33 Mo. 44. 3 Stockton V. Williams, 1 Doug. ' Jackson v. Husbrouck, 3 Johns. 526. 331; Knapp v. Marlborough, 29 Vt. * Trannell v. McDade, 29 Tex. 364. 282. 8 Baker v. Lorillard, 4 N. Y. 257. Estoppel by Deed. 781 fee, it was held that no estoppel was created, as against one of the devisees in favor of his judgment creditor, who purchased the share of such devisee, at a sale under his own execution, so as to prevent such devisee from showing, in order to defeat such pur- chasers' action of ejectment, that by the devise, the legal estate was vested in the executors and not in the devisees, at the time of the docketing of such judgment, and, therefore, that such judg- ment was not a lien on the share of such deviseC; and the pur- chaser acquired no right or title by his purchase at said sale.' § 597. In Massachusetts the certificate of acknowledgment and the registration of a deed do not estop a third person from proving that both the deed and the certificate were fraudulently antedated." In regard to acknowledgments of instruments affect- ing the title to real estate there has heretofore been no little judicial discussion in regard to their effect ; either 2l& jprima fade or conclusive evidence. These discussions arise principally from the two questions as to whether the taking and certifying of an acknowledgment is a judicial or ministerial act ; and also arise in States where the statutes require a private or separate examina- tion of the wife, requiring the officer to make known to the wife the contents of the instrument which she is about to acknowledge, and to detern)ine from her responses, whether it is executed of her own free will and accord ; to which facts the officer is com- pelled to certifj' ; the other arises in those States where the common law rule has been abolished, and the parties go before an officer and simply acknowledge the execution of the instruments. The principal discussion of these matters will be found to have arisen in suits brought by mortgagees to obtain a foreclosure of the lien securing their debts ; and the question has been generally raised by the wife of the mortgagor or debtor in attempting to avoid the effect of the lien by setting up its invalidity on account of her acknowledgment. Tliis subject is fully examined in Herman on Mortgages on Real Estate, ch. 12, where the cases are collated, iind from which the following principles are taken : first, that in taking the acknowledgment of husband and wife to an instrument affecting real estate where, by local statutes, a separate examination of the wife is necessary, the officer acts in a » Brewster v. Striker, 2 N. Y. 19. " Holbrook v. Bank, 2 Curtis C. C 244. 732 Thp: Law ok Estoppel. judicial capacity, and it seems upon principle that he also does, wlierc the separate examination has been abolished ; for it seems that he must know the parties to be the same ones whose signa- tures are appended to the instrument, and must also determine whether thej' voluntarily acknowledge its execution. With the exception of the separate examination, the duties in either case are in a manner similar. There is no good reason upon principle, why one should be a judicial act any more than the other. § 598. It is a well settled principle that where there is no notice of fraud or duress in its executijon, it is conclusive as to all matters which it is the duty of the acknowledging officer to cer- tify if he has jurisdiction.' It may be avoided for fraud, but the » Arnaz v. Escandon, 59 Cal. 486; Coleman v. Smith, 55 Ala. 368; Smith V McQueen, 55 Ala. 369; Bohan v. Casej^ 5 Mo. App. 101; Harpeudiug V. Wylie, 14 Bush, 380; Baruett v. Proskauer, 63 Ala. 485; Cahall v. Ass. 61 Ala. 232; Knowies v. Knowles, 86 111. 1; Fitzgerald v. Fitzgerald, 100 111. 385; Pribble v. Hall, 13 Bush, 61; Singer, ttc. Co. v. Rook, 84 Pa. St. 442; Hornbeek v. Ass., 88 Pa. St. 64; Htiltv. Moore, 37 Ark. 145; Meyer v. Gossett, 38 Ark. 377; Davis v. Ken- nedy, 58 Tex. 516; Shelby v. Burtis, 18 Tex. 644; Wiley v. Prince, 21 Tex. 637; Williams v. Pouns, 48 Tex. 146; Waltee v. Weaver, 57 Tex. 569; Kocourek v. Marak, 54 Tex. 205; Smith V. Ward, 2 Root, 374; Jackson v. Schoonmaker, 4 Johns. R. 161; Thurman v. Cameron, 24 Wend. 87; f Schrader v. Decker, 9 Pa. St. 14; Hale V. Patterson, 51 Pa. St. 289; Williams v. Baker, 71 Pa. St. 481; Duflf V. Wynkoop, 74 Pa. St. 300; Heeter v. Glasgow, 79. Pa. St. 79; Eyster v. Hathaway, 50 111.521; Wan- nell V.Kern, 57 Mo. 478; Tatum v. Goforth, 9 Iowa, 247; Borland v. Walrath, 33 Iowa, 180; Pringle v. Dunn, 37 Wis. 449; Dodge v. Hol- Ungshead, 6 Minn. 46; Edgertou v. Jones, 10 Minn. 427; Fisher v. Meis- ter, 24 Mich. 447; Hourtienue v. Schnoor, 38 Mich. 274; Johnson v.Pen- dergrass, 4 Jones L. 479; Ford v. Teal, 7 Bush, 156; Woodhead v... Foulds, 7 Bush, 222; Hughes v. Cole- man, 10 Bush, 246; Bledsoe v. Wiley, 7 Humph. 507; Westbiooks v. Jef- t'ers, 33 Tex. 86; Landers v. Boll on; 26 Cal. 406; Doe v. Lloyd, 1 M. & Gr. 671; Kinuer.'iley V. Orpe, 1 Doug. 58; People V. Ilerbeit, 44 Barb. 126; Stevens v. Martin, 18 Pa. St. 101; Kleichiue v. Kleiehine, 54 Pa. St. 75; Middietonv. Dubuque, 19 Iowa, 467; Htiteliinson v. liust, 2 Gratt. 294; Jamison v. Jamison, 3 Whart. 457; Barnett v. Baruett. 15 S. & II. 73; Mieheiier v. Cavender, 38 Pa. St. 334; Miller V. Weiitwortli, 83 Pa. St. 280; Loudon v. Blythe, 16 Pa. St. 532; Monroe v. Poorman, 62 111. 523; Ridgely v. Howard, 3 Md. 322; Mc- Neely v. Riicker, 6 Blackf. 391; Bis- selt V. Bissett, 1 Md. 211; Watson v. Bailey, 1 Bum. 470; Elliott v. Pier- sol, 1 Pet. 338; Baruett v. Shaekle- ford, 6 J. J. Marsh. 532; Green v. Godfrey, 44 Me. 28; Louden v. Blythe, 27 Pa. St. 22; Hartley v. Frosh, 6 Tex. 208; Welbrook v. Jef- iers, 33 Tex. 86; Hays v. Hays, 5 Estoppel by Deed. 733 knowledge of it must be brouglit home to the grantee. The proof must be full, clear and convincing ; it is conclusive in favor of any one who accepts it in good faith without reason to suspect it to be untrue ; that is, it is open to rebuttal between the par- ties by proof of imposition or fraud, but not otherwise. Nor will a public officer, after performing an act required by law, be per- mitted to defeat its effect by impeaching his own certificate.' In Young v. Duval," the Supreme Court of the United States, in a case of this character said : " The bill sets forth several grounds upon which relief to that extent is asked, but those only deserve serious consideration which are embraced by averments to the following effect : That the contents of the deed w^ere never explained to her ; that she signed it because she was required, ordered and commanded to do so by her husband and a person who was with hina ; that its contents were never known or explained to her by the officer ; that, so far from her having been examined, in reference to the deed, privily and apart from her husband, the latter remained in the presence of herself and the Rich. 81; Montgomery v. Hobson, Meigs, 437; Williams v. Robsou, 6 Ohio St. 510; Jeffreys v. Decker, 42 111. 619; Wannell v. Kern, 57 Mo. 478; Grabam v. Anderson, 43 111. 514; Lickman v. Harding, 65 111. 505; Cal- umet, &c. Co. V. Russell, 68 111. 426; Kerr v. Russell, 69 111. 666; Allen v. Sbortridge, 1 Duval, 84; Jett v. Rog- ers, 12 Bush, 564; Young v. Duval, 109 U. S. 578; Jordan v. Corey, 2 Ind. 385; Wright v. Bundy. 11 Ind. 400; Bank v. Copelauil, 18 Md. 805; Miller v. Wentworth, 82 Pa. St. 280; Hoffman v. Coster, 2 AVhart. 458; Baldwin v. Snowdun, 11 Ohio St. 218; Johnston V. Haines, 2 Ohio, 279; Kil- bourn v. Fury, 26 Ohio St. 158; Pool V. Chase, 46 Tex. 207; Hill v. Bacon, 43 111. 477; Banks v. Ollcrton, 26 E. L. & Eq. 508; Thompson v. Thomp- son, 2 Ch. Gas. 211; Robinson v. Chassey, 1 Han nay, (N. B.) 50; Mc- Phcrson v. Sanborn, 88 111. 150; Woodbourue v. Sorrel, 66 N. G. 82; Harrcil v. Elliott, 2 Hayw. 68; Paul V. Carpenter, 70 N. C. 502; Sunderetb V. Smyth, 13 Ired, 452; Lucas v. Cobb, 1 Dev. & Bat. 228; Finegan v. Finegan, 8 Tonn. Ch. 510; Norton v. :Nichois, 35 Mich. 148; Steffen v. Bauer, 70 Mo. 399; Johnston v. Wal- lace, 53 Miss. 381; Stone v. Montgom- ery, 85 Miss. 88; Allen v. Lenoir, 53 Miss. 321 ; Harkins v. Forsyth, 11 Leigh, 294; Tod v. Baylor, 4 Leigh, 498; Carper v. McDowell, 5 Gratt. 212; :\Iiller v. Marx, 55 Ala. 822; Moimt V. Kesterson, 6 Coldw. 452; Mathews v. Dare, 20 Md. 248; Kavanagh v. Day, 10 R. I. 393; Stranch v. Ilatliaway, 101 111. 11; S. C, 40 Am. R. 193; Paxton V. Marshall, 18 Fed. R. 361; Moses v. Dade, 58 Ala. 211. ' Bank v. Copeland, 18 Md. 305. " 109 U. S. 573. 734 The Law of EsToprEL. officer on the occasion when it is chiiiiied she signed, acknowl- edged, and delivered it." " It was in proof that Mrs. Y. sii^ned the note and the deed, having an opportunity to read papers before signing them ; slie was before an officer competent under the Law to take lier acknowledgment, and he came into her presence for the pui'pose of receiving it ; he so came at the request of the husband, who expected, by means of the executed deed of trust, to secui'c a loan from L. of the amount specified in the note ; and she knew, or could readily have ascertained while in the presence of the officer, as well to what property the deed referred as the object of its execution. There is, however, a conflict in the evidence as to whether she willingly signed, sealed, and delivered the deed, or had its contents fully or at all explained to her by the officer, or was examined privily and apart from her husband, " It is not necessary to enter upon a review of the adjudged cases bearing upon the general question of the effect to be given to the certificate of an officer taking an acknowledgment of a mar- ried woman to a conveyance of real estate ; for, if it be assumed, for the purposes of this case, that it is ou\y jJi'iraa facie evidence .of the facts stated in it, we are of opinion that the integrity of the certificate before us has not been successfully impeached. The certificate of the officer states ever}- fact essential, under the statute, to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Y. was an unmarried woman. The duties of that officer were 'plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain fi'om her whether she willingly signed, sealed, and delivered the same, and wished not to retract it. The respon- sibiHty was upon him to guard her against coercion or undue influence upon the part of the husband, in respect of the execu- tion and delivery of the deed. To that end he was required to examine her privily and apart from the husband. These facts were to be manifested by a certificate under his hand and scab Of necessity, arising out of considerations of public policy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it ; and if, under such circumstances, it can be contradicted, to the injury of those who Estoppel by Deed. 735 in good faith liave acted upon it — upon which question we express no opinion — tlie proof to that end must be of such a cliaracter as will clearly and fun.y show the certificate to be false or fraudulent.* The mischiefs that would ensue from a different rule could not well be over-stated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous." " It is sufficient for the disposition of tliis case to say that even upon the assumption that the certificate is ovAy jprimafacie evidence of the facts stated in it, the jproof is not of that cleai\ complete, and satisfactory character which m.ust he required to impeach the official statements of the officer who certified Mrs. Y.'s acknowledgment of the deed in question. § 599. Fraud will vitiate anything, even the most solemn transactions; any asserted title founded on it, is utterly void.^ Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice and avoids all judicial acts. A voluntary conveyance or any conveyance in fi'aud of the law is not a nullity, but binds parties and privies,' though voidable at- 8uit of creditors defrauded thereby. An invalid contract is no estoppel. Thus, where a paper signed by a judgment debtor and delivered to the attorney of his creditors agreeing to compromise the judgment in a certain way, or in default thereof to deliver certain propertj' levied upon in payment, can not estop him from claiming that the levy was invalid, where it appears that the attorney had no authority to enter into such agreement, oi' to compromise the judgment in any manner.* Every creditor who signs a composition deed is estopped fi'om setting up any private agreement repugnant to its terms, or inconsistent with its inten- tion or spirit.^ So where A. executed an agreement signed in ' Ins. Co. V. Nelson, 103 U. S. 544. 577. 7 United States v. Amistad, 15 * Ilickoy v. Hinsdale. 12 Mich. 99. Peters, 518. ^ Brerk v. Cole, 4 Sand. 79; Knight 3 Randall v. Phillips, 3 Mason C. C. v. Hunt, 5 Bing. 432; Sadler v. Jack- R. 378; Peterson v. Brown, 17 Nev^. son, 15 Vos. 32; Lfccister v. Rose, 4 172; S C, 45 Am. R. 439; Ante, § East, 372; Middleton v. Onslow, 1 P. Wms. 768. 736 The Law of Estoppel. his own name which referred to a schcdnle annexed, which schedule was signed by A. and B., A. is estopped from denying that he signed it.' § 600. Gifts and voluntarj^ conveyances made by the husband to the wife, without fraudulent intent, at a time when he is not indebted, cannot be called in question by subsequent creditors ; so where a grantor conveys premises to a woman, on receiving the price from her husband, he is estopped by his conveyance from complaining that the conveyance was in fiaud of himself as a creditor of the husband, for he not only consented but per- formed the act himself." A purchaser of land who has knowledge of facts which estop his grantor from asserting title to the granted premises, stands in the same condition as his grantoi-.' Thus where a party conveyed an estate by entireties to a man and wife, the grantee being the debtor of the grantor, the grantor brought an action for the debt, obtained judgment and sold the land he had conveyed, both he and t'.ie purchaser were estopped from alleging that the conveyance was made to the wife in fraud of her husband's creditors. If the grantee in a deed is estopped, his administrator with the will annexed is also estopped.'* A widow continuing in possession of land, is estopped to deny the title derived under her husband's deed/ Where one conveys certain j-eal estate to the husband, and nuvkes a deed to the wife of a portion of the same land conveyed in the deed to the hus- band, reciting that the consideration proceeds from the wife's estate, the grantor being estopped to deny that liis second deed conveyed any estate, his administrator is bound by the same estoppel. A deed which is an act of maintenance, by reason of an adverse possession, is yet effectual between the parties, for it estops the grantor and is a bar to bis recovery in ejectment." In a title to land by estoppel, ejectment may be maintained." » Smith V. Buruham. 9 John. i506. ' Giandy v. Bailey. 13 lied. 221. 2 Phillip.s V. ■\^'o()ste^, 36 N. Y. « Bro. fit. Feoffments. PI. li), 27 412; Baker v. Loiillaid. 4 N. Y. 2o7. Hen. 8th fol. 23, b, 24, a; Co. Lil. 36!) r, " Stiuchfield v. Emerson, 52 Me. Cro. Eliz. 445; Hank, b 1, c. 86; Jack- 465; Phillips v. Wooster, 36 .N Y. son v. Demont, 9 .Johns. 55; .Jackson 412. V. Wheeler. 10 Johns. 164. * Dennison v. Ely, 1 Barb. 610. ' btoddart v. Chambers, 2 Howard, 284; Harvey v. Carlisle, 23 Ala. 635. Estoppel by Deed, 737 § 601. Where land was purchased for a specific purpose by several grantees, on condition that it should not be divided, the grantees and those claiming under them are estopped from claiming jjartition or division. Thus where land was purchased for the site of a hotel (to be erected by an association), and con- veyed to the individual members in individual shares, upon con- ditions that each member, his heirs and assigns, should hold the same in common with the tenants of the other parts without partition or division, the grantees and those claiming under them were, as against the others, estopped to demand partition, as all claimed under deeds from the same grantors, and the deeds were made in pui-suance and furtherance of a common object, and as part of the same general transaction.' § 602. "Where the owner of land, for the purpose of evading the payment of the debt of an anticipated creditor, conveys the same to another, to be held as a secret trust for the grantor, equity would not enforce the trust, yet should the grantor die while the title was thus situated, and the grantee and trustee voluntarily convey the land back to the executors of the grantor, who accept the conveyance in their capacity as executoi-s, and for the avowed purpose of placing the property to the benefit of the estate where it belonged, the executors are estopped to deny that the testator died seized of an equitable estate of inheritance in the premises, as against his heirs, devisees or widow ; nor can any of the bene- ficiaries deny the seizin of the testator, for the purpose of dis- puting the rights of others, they themselves claiming by virtue of such seizin.^ So if a grantee voluntarily destroy or surrender his deed, with the intention of defeating his own title, he will be estopped from setting it up or showing its contents by parol evi- dence.^ One who covenants to give title to lands which he expects to purchase and does purchase at a government sale, can not afterwards plead his own fraud in obtaining his title from tlie government, in bar of a decree for specific performance of his agreement." So where one had contracted to convey land, of which he had not the legal title, to the pui-chaser, free of incum- brance, and the land was conveyed directly from the person » Hunt V. Wright, 47 N. H. 396. " Howard v. Huffman, 3 Head, 562. * Brown v. Pitney, 39 111. 470. * Fackler v. Ford. 21 Howard, 322. Vol. I.— 47 788 The Law of Estoppel. holding the title; previous to the execution of tlie deed, a judg- ment was assigned to the party who had contracted to convey it who after the estate had been sold on execution claimed to have his judgment paid out of the proceeds, which was refused on the ground that he had no right thereto/ Where both parties to a suit claim under the same grantor, each is bound to admit that the grantor's title was good, unless he can show that he has acquired a better one ; and neither will be allowed to set up his own possession or an outstanding title in a third person as an answer to the right of the other as shown on the face of the deed.' § 603. The rule is well established that the grantee is not estopped to deny the grantor's title ; but this rule is not applicable to a case in which the only title asserted by the grantee is the precise title he has acquired from the grantor, nor to a case in which both parties claim from a common source and the title is identical in that source. Thus a county having received the pur- chase money for a tract of swamp land, caused a deed to be made to the purchaser by the county commissioner. On the same day the county made a loan of school funds, taking as security a mortgage on the land. Subsequently, the county caused the mortffifje to bo foreclosed. The defendant in this case derived title through this foreclosure. Held, that, as against the heirs of the original purchaser, the defendant was estopped to deny the validity of the commissioner's deed.' § 004. This seems to be all that is meant by the broad decla- ration in such cases, that a man who acce])ts or acts under a deed cannot dispute or controvert the facts which it recites.^ In cases I Dentler'a Appeal, 23 Pa. St. 505. v. Wurlh, 33 N. J. E. 82; Saumler v. ^ Addison v. Crow, 5 Dana, 271; Moore, 14 Busb. 97; Tenitt v. Coven- Carver V. Astor, 4 Pet. 11; Love v. hov^en, 79 N. Y. 400; Wilcoxsou v. Gates, 4 Dcv. & B. 3G3; Torry v. Osboru, 77 Mo. G21; Norris v. In.s. Bank, 9 Paige, C49; Den v. Johnston, Co., 51 Mich. 621. 5 Jones, 72; Ilochcll v. Benson, Meigs, " Wiicoxon v. Osborn, 77 Mo. 621. 3; AVilkins v. May, 3 Head, 179; * Funk v. Newcomer. 10 Ind. 301; Cobuin V. Ilenshaw, 101 Mass. 193; Springstein v. Schermerhorn,12 Johns. Coakley v. Perry, 3 Ohio St. 314; 357; Bank v. Risley, 4 Denio, 480; Ward v. Mcintosh, 12 Ohio St. 233; Ellis v. Jeans, 7 Cal. 409; Ives v. R. R Co. v. IMead, 63 Cal. 112; Betts Sawyer, 4 D. & B. 51; Den v. Gates, 4 Estoppel by Deed. 739 like tlie one just cited, the estoppel is equitable rather than legal, and arises where the deed does not specifically' recite the gran- tor's title, and is so generally worded that no technical estoppel could arise from its language consistent with right. It would be too much to saj that if a man who is in possession under a good or even colorable title, buys in a defective title in the hope of strengthening his position, he will thereby defeat his own object, and be estopped from relying on his better right as an answer to a prior deed or mortgage of the vendor/ When the land and title are transferred at the same time, and constitute the sole reliance of the grantee, his right can rise no higher than that of the grantor, and is subject to every claim that would have been good against the grantor had the transfer not been made. This applies in cases where there are prior deeds or mortgages. With this limitation the rule is a beneficial one. Were it otherwise, the grantor might keep the grantee out of possession of the veiy land which he assumed to convey, or the grantee defeat prior estates or incumbrances created by the grantor.* There can be no application of this rule when either party, instead of merely denying the title of the other, claims under a paramount right acquired after the conveyance was made.^ Whoever prevents the ferfoTinance of a condition cannot take advantage of it.* § 605. A claim or title to land which cannot be set up by a person while in possession, cannot be set up by another person who comes into possession under him." Where a license is not produced, the executor being sole legatee in the will, and he con- veys premises by deed with personal covenants, if with warranty against incumbrances, binding himself and his heirs thereto, no claim of creditors intervening, his deed operates as an effectual conveyance bv way of estoppel against him or any one setting up a claim of his against the estate.* So where an administrator conveyed under an order of sale a parcel of land, with an ease- ment in an adjoining parcel not sold, after which the latter parcel D. & B. 663; Den v. Cornell, 3 Johns. 231. Cas. 174; Ward v. Mcintosh, 12 Ohio ^ Coakly v. Perry, 3 Ohio St. 344. St. 233. * Jlerford v. Ambrose, 39 Me. 688; ^ Blight V. Rochester, 7 Wheat. 535; Clendennen v. Piiulsel, 3 Mo. 230. Osterhoiit v. Shoemaker, 3 Hill, 513. ^ Mosely v. Mosely, 15 N. Y. 334. » Ward V. Mcintosh, 12 Ohio St. « Carbree v. Hopkins, 41 Vt. 250. 740 The Law of Estoppel. was distributed to him as licir, he and his grantees as privies in estate were estopped from denying that the easement passed by his deed.* A widow continuing in possession of hmd is estopped to deny the title derived under her husband's deeds.* She is bound by an estoppel which binds liim, ' Coe V. Talcott, 5 Conn. 93. Buflferlow v. Newsom, 1 Dev. 208; ' Grandy v. Bailey, 13 Ired. 23i; Gorham v. Brenson, 3 Dcv. 174; Wil- liams V. Beouett, 18 Ired. 221. Recitals. 741 CHAPTEE IX. RECITALS. Section 606. In regard to recitals in deeds, all parties to a deed are bound by the recitals therein, which operate as an estoppel, working on the interest of the land ; if it be a deed of convey- ance, binding both parties and privies, privies in blood, privies in estate, and privies in law. Between such parties and privies the deed or other matter recited need not at any time be otherwise proved — the recital of it in the subsequent deed being conclu- sive- It is such conclusive evidence that it cannot be averred against, and which forms a muniment of title. A recital of one deed in another binds the parties and those who claim under them. It does not, however, bind strangers who claim by title paramount to the deed, or persons claiming by an adverse title, or persons claiming from the parties by title anterior to the date of the reciting deed.' It cannot operate on one who is neither 1 Kimbro v. Hamilton, 2 Swan, 190; B. 731; Carpenter v. Buller, 8 M. & Slumph V. Osterhage, 94 111. 115; W. 209; Bowman v. Taylor, 2 A. & State V. Williams, 77 Mo. 463; Jones E. 278; Young v. Raincock, 7 C. B. V. Reese, 65 Ala. 134; Marchioness of 310; Cutter v Dickinson, 8 Pick. 386; Ananuaie v. Harris, 2 P. Wms. 432; Bunco v. U. S., 17 Howard, 437; Shelly V. Wright, Whiles, 9; Ford v. Hovey v. Woodward, 33 Me. 470; Gray, 1 Salk. 285; Ford v. Gray, 6 Farrar v. Cooper, 34 Me. 394; Doane Mod. 44; Trevibanv. Lawrence, ISalk. v. Wilcut, 16 Gray, 368: Peters v. 276; Wheeler v. Raymond, 6 T. R. Clements, 46 Tex. 114; Brush v. Ware, 171; Helps v. Hereford, 2 B. & Aid. 15 Pel. 93; Scott v. Douglas, 7 Ohio, 243. Com. Dig. Estoppel, B. & E. 10; 228; Cordova v. Hood, 7 Wall. 1; Co. Litt. 352 a.; Den v. Cornell, 3 Fisk v. Flores, 43 Tex. 340; Mc- Johns. Cas. 174; Penrose v. Griflin, 4 Chesney v. Wainright, 5 Ohio, 452; Binn. 231; Garwood v. Dennis, 4 Binn. Iniskeep v. Shields. 4 Harr. 345; Stew- 314; Brigham v. Rogers, 17 Mass. 571; art v. Butler, 2 S. & R. 381; Brecken- West V. Pine, 4 Wash. C. C. II 691; ridge v. Ormsby, 1 J. J. Marsh. 236; Carver v. Astor, 4 Pet. 11; Crane v. Byrne v. Morehouse, 22 111. 603; Tor- Moiais, 6 Pet. 598; Whittaker v. rey v. Bank, 9 Paige, 689 ; Wade's Suc- Garnett, 3 Bash, 402; Lamar V. Turner, cessi'on, 21 La. Ann. 243; Jackson v. ^8 Ga. 329; Stronghill v. Buck, 14 Q. Parkhurst, 9 Wend. 209. 745 The Law of Estoppel. a party or privy to it." The recitals of a deed estop only par- ties and privies. Tlie recitals in a deed by which a' married woman pnrports to convey her title to land, do not estop her, nor those claiming under, from asserting the truth against the recit- als. Mutuality is a necessary ingredient of estoppels. There can be no estoppel upon one party unless the other is equally estopped.* For example, where a married woman gave a mort- gage upon her separate estate to secure a note made by her hus- band, and the mortgage recited that the debt for which the note was given was contracted for the benefit of the wife and family. Meld^ that the wife was not estopped by this recital from show- ing that the same was untrue, and that the debt was wholly her husband's debt.' So, where the wufe unites with the husband in the execution of a mortgage, or a deed which becomes by agree- ment an equitable mortgage, to secure a debt by the husband to his indorser, the latter is not estopped, by accepting the deed, from denying title in the wife to the mortgaged land.* § 607. General words do not estop, and the mere fact of assuming to convey land, by bargain and sale, or lease and release, will not estop the grantor from showing that he had nothing in the land at the time on which the deed could operate. The estoppel applies where the instrument contains a definite and par- ticular recital.* In order to have the effect and operation accorded 1 Miller v. Holman, 1 Grant's Cas. Bardiie, 1 Mod. 113; Salter v. Kidley, 293. 1 Show. 59; Lainson v. Tremere, 3 N. - Hempstead v. Easton, 33 Mo. 142; & N. 603; Bowman v. Taylor, 2 A. & Scliuman v. Garratt, 16 Cal. 100; E. 278; Carpenter v. Buller, 8 M. & Longwcll V. Bently, 3 Grant Cases, W. 209; Edwards v. Brown, 3 Y. & 177; Towsley v. Johnson, 1 Neb. 95; J. 423; Shelly v. Wright, Willes, 9; Lamar v. xiarner, 48 Ga. 329; Miller Young v. Raincock, 7 C. B. 310; V. Holman, 1 Grant's ('as. 243; Deery Bower v. McCormick, 28 Gratt. 310; V. Crary, 5 Wall. 795; Nutwell v. Horton v. Commissioners, 7 Exchq. Tongwe, 22 Md. 419: Williams v. 780; Hill v. Water Work.s, 2 B. & A. Chandler, 25 Tex. 4. 544; McDonald v. Lusk, 9 La. 654; 2 Dunbar v. Mize, 53 Ga. 435. Webb v. Commissioners, L. R. 5 Q. 4 Sumner v. Bryan, 54 Ga. 613; B. 642; Ry. Co. v. Hawks, 5 H. L. C. McGeary's Appeal, 72 Pa. St. 365. 372; Hunt v. Board, L. R. 4 C. P. D. 5 Right V. Bucknell, 3 B. & Ad. 278; 48; Fishmongers' Co. v. Robertson, 5 Sparrow v. Kingman, 1 N; Y. 242; M. & G. 192; Miners v. Fox, IC Q. B. Kepp V. Wiggott, 10 C. B. 35; Strowd 229; Boileau v. Rutlin, 2 Exchq. 665; V. Willi.s, ICro. Eliz. 3C2;Backwellv. Willouglibv v. Brook, 2 Cro. Eliz. Recitals. 743 to estoppels, it is not necessary that thej must he mutual, while mutuality is a necessary ingredient of an estoppel. The exist- ence of an estoppel to one will not be a reason for inferring that it extends to another, unless the language of the recital or the nature of the fact which it sets forth is such as to justify the belief that it was intended to serve as the basis of the whole con- tract, which none of the contracting parties should be at liberty to gainsay.' A specific recital will conclude the parties, if it does not bind the estate in the land. Where a conveyance sets forth the facts necessarj' to render it valid, it is conclusive against the grantor, whatever may be its effect as between the grantee and third persons. The question of recitals in conveyances as evidence and of estoppels, often arise in the trial of actions of ejectment. § 608. The conclusive effect of recitals in deeds, is restricted to the recital of things in particular, as being in existence at the time of the execution of the deed ; and does not extend to the mention of things in general terms. Therefore, if one bound in a bond, conditioned to perform the covenants in a certain inden- ture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say there was no such indenture or recognizance. But if the bond be conditioned, that the obligor shall perform all the agreements set down by A., or carry away all the marl in a certain close, he is not estopped by this general condition from saying, that no agreement was set down by A., or that there was no marl in the close. Neither does this doctrine apply to that which is mere description in the deed, and not an essential averment — such as the quantity of land ; its nature, whether arable or meadow ; the number of tons in a vessel char- tered by the ton, or the like ; for these are but incidental and collateral to the principal thing, and maybe supposed not to have 756; Hart v. Buckminster, Aleyn's Young v. Raincock, 7 C. B, 781; Rep. 52; Rainsford v. Smith, Dyer, AYiles v. Woodward, 5 Exchq. 557; 190; Hayne v. Maltliy, 3 T. R. 438; Hills v. Lanning, !) Exchq. 256; Carter Oldham v. Langmead, 3 T. R. 439; v. Carter, 3 K. & J. 645; Ry. Co. v. Doe V. Musgrave, 1 M. & G. 625. Warton, 6 H. & N. 520; Morgan, in ' Stroughill V. Buck, 14 Q. B. 781 ; re, L. R. 2 Ch. D. 72; Crackuall v. Bowman v. Taylor, 2 Ad. & E. 278; Janson, L. R. 11 Ch. D. 1; Burnand V. Rodocauachi, L. R. 7 App. 335. 744 The Law of Estoppel. received the deliberate attention of the parties. In England, the recital of the payment of the consideration money in the deed, is regarded as conclnsive, and binding the parties bj estoppel.' § 609. The law in regard to recitals is fully and ably expounded," by the Supreme Court of the United States. Mr. Justice Story, delivering the opinion, who, after stating the general principles above mentioned, says, " Sucli is the general rule. But tliere are cases in which such a recital may be used as evidence even against strangers; if, for instance, there be the recital of a lease in a deed of release, and in a suit against a stranger, the title under the release comes in question, there the recital of the lease in such a release is not per se evidence of the existence of the lease. But if the existeuce and loss of tJie lease be established by other evi- dence, there the recital is admissible as secondary proof, in the absence of more perfect evidence, to establish the contents of the lease ; and if the transaction be an ancient one, and the posses- sion has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself, under such circumstances, materially fortify the presumption, from lapse of time and length of possession of the original existence of tlie lease. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained ; and under such circumstances, a recital of the fact of such a lease in an old deed, is certainl}- far stronger presumptive proof in favor of such possession under title, than the naked presumption arising from a mere unexplained possession. Such is the general result of the doctrine to be found in the best elementary writers on the sub- ject of evidence. It may however be important to examine a few of the authorities in support of the doctrine on which we rely. The cases of Maichioness of Anuandale v. Harris, and Shelly V. Wi-ight,' are sufiiciently direct as to the operation of recitals by way of estoppel between the parties. In Ford v. Gray,* one of the points ruled was, " that a recital of a lease in a deed of release is good evidence of such lease againt the releasor, and ' Downs V. Cooper, 2 Ad. &E, 253; ' Marchioness of Annandale v. Har Doe V. Payne, 1 Ad. & E. 538. ris, 2 P. Wms. 432; Shelly v. Wright, * Carver v. Jackson, 4 Peters, 11. Willes, 9. * Ford V. Gray. 1 Salk. 285. Recitals. 745 those who claim under him ; but as to others, it is not without proving that there was such a deed, and it was lost or destroyed. The same case is reported in 6 Mod. 44, where it is said that it was ruled, ' that the recital of a lease in a deed of release is good evidence against one releasor and those that claim under him. It is then stated, that ' a fine was produced, but no deed declaring the uses, but a deed was offered in evidence which did recite a deed of limitation of the uses, and the question was, whether that (recital) was evidence ; and the court said that the bare recital was not evidence ; but that if it could not be proved that such a deed had been and lost, it would do if it were recited in another. This was doubtless the same point asserted in the latter clause of the report in Salkeld ; and, thus explained, it is perfectly con- sistent with the statement in Salkeld, and must be referred to a case where the recital was offered as evidence against a stranger. In any other point of view, it would be inconsistent with the preceding propositions, as with the cases in 2 P. Williams and Willes." § 610. " In Treviban v. Lawrence,' the court held that the parties, and all claiming under them, were estopped from assert- ing that a judgment sued against the party as of Trinity term, was not of that term, but of another term ; that very point having arisen and been decided against a party upon a scire facias on the judgment. But the court there held (what is very particular to the present purpose) that if a man makes a lease by indenture of D. in which he hath nothing, and afterwards purchases D. in fee, and afterwards bargains and sells it to A. and his heirs, A. shall be bound by the estoppel ; and, that where an estoppel works on the interest of the lands, it runs with the land into whose hands soever the land comes; and an ejectment is main- tainable upon the mere estoppel. This decision is important in several respects. In the first place, it shows that an estoppel may arise by implication from a grant, that the party hath an estate in the land, which he may convey, and he shall be estopped to deny it. In the next place, it shows that such estoppel binds all persons claiming the same land, not only under the same deed, but under any subsequent conveyance from the same party ; that ■ Treviban v. Lawrence, 1 Salk, 276. 746 The Law of Estoppel is to say, it binds not merely privies in blood, but privies in estate, as subsequent grantees and alienees. In tlie next place it shows that an estoppel, which (as the phrase is) works on the intei-est of the land, runs with it into whosoever hands the land comes. The same doctrine is recognized by Lord Chief Baron Comyns.' In the latter place (E. 10) he puts the case more strongly ; for ho asserts that the estoppel binds, even though all the facts are found in a special verdict. But, says he, and he relies on his own authority, where an estoppel binds the estate and converts it to an interest, the court will adjudge accordingly, as if A. leases lands to B. for six years, in which he has nothing, and then purchases a lease of the same land for twenty-one years, and afterwards leases to C. for ten years, and all this is found by verdict. The court will adjudge the lease to B., good though it be so only by conclusion. A doctrine similar in principle was asserted in this court." The distinction, then, which was urged at the bav, that an estoppel of this suit binds those claiming under the same deed, but not those claiming by a subsequent deed under the same party, is not well founded. All privies in estate by a subsequent deed are bound in the same manner as privies in blood ; and so, indeed, is the doctrine of Comyn's Digest.' We may now pass to a short review of some of the American cases on this subject. Denn v. Cornell,^ is strongly in point. There, Lieu- tenant-Governor Golden, in 1775, made his will, and in it recited that he had conve3'ed to his son David, his lands in the township of Flushing, and he then devised his other estate to his sons and daughters, &c.., &c. Afterwards, David's estate was confiscated under the act of attainder, and the defendant in ejectment claimed under that confiscation, and deduced his title from the estate. No deed of the Flushing estate (the land in controversy) was proved from the father, and the heir at law sought to recover on that ground. But the court held that the recital in the will, that the testator had conveyed the estate to David, was an estop- pel of the heir to deny that fact, and bound the estate. In this case, the estoppel was set up by the tenant claiming under the State, as an estoppel running with the land. ■ Digest, Estoppel, B. & E. 10. ^ Com. Dig. Est. B. Co.; Lit. 353, A. » Terrettv. Taylor, 9 Craacb, 52. " 3 Johns. Cas. 174. Recitals'. 747 § 611. '* If the State or its grantee might set up the estoppel in favor of their title, tlien, as estoppels are reciprocal, and bind both parties, it might have been set np against the State or its grantee. It has been said at bar, that the State is not bound by estoppel by any recital in a deed. That may be so where the recital is in its own grants or patents, for they are deemed to be made upon the suggestion of the grantee. But where the State claims title under the deed, or other solemn acts of third persons, it takes it cum onere, and subject to all estoppels running with the title and estate, in the same way as other privies in estate. In Penrose v. GriflSth,' it was held that recitals in a patent of the Commonwealth were evidence against it, but not against persons claiming by title paramount from the Commonwealth, The court there said, that the rule of law is, that a deed containing a recital of another deed is evidence of the recited deed against the grantor, and all persons claiming by title derived from him sub- sequently. The reason of the rule is, that the recital amounts to the confession of the party ; and that confession is evidence against himself, and those who stand in his place. But such confession can be no evidence against strangers. The same doc- trine was acted upon and confirmed by the same court in Gar- wood V. Dennis.* In that case, the court further held, that a recital in another deed was evidence against strangers, where the deed was ancient and the possession was consistent with the deed. The case also had the peculiarity belonging to the present, that the possession was of a middle nature, that is, it might not have been solely in consequence of the deed, for the party had another title; but there never was any possession against it. There was a double title, and the question was, to which the possession might be attributable. The court thought that a suitable founda- tion of tlie original existence and loss of the recited deed being laid in tlie evidence, the recital in the deed was good corrobora- tive evidence, even against strangers. And other authorities certainly warrant this decision." § 612. The law in regard to the effect of recitals and admis- sions in deeds seems to be well settled that as to an admission of a fact, if made for the purpose of influencing the conduct, or ' Penrose v. Griflath, 4 Binn. 231. "^ Garwood v. Dennis, 4 Binn. 314. 748 The Law op Estoppel. deriving a benefit from another; so that to deny it would be a breach of good faith ; the law enforces the rule of good morals as a rule of policy, and estops the party from repudiating his representations, or denying the truth of his admissions.' Thus where one made a deed of land belonging to a corporation, in which he described himself as agent and duly authorized to con- vey, &c., althougii it was false, he subsequently sued and recov- ered a judgment against the company, and then brought his action to recover the land from the grantee under the deed which he had executed as agent, he was estopped to deny that he was the authorized agent, and all persons claiming through or under him were equally estopped.* So where S.. a president of a rail- road company, made a deed for the company to certain lands. At the same time C. gave an instrument in writing to the purchaser, in which it was recited that the railroad company had made such a deed. Held, that this recital estopped C, and those holding under him with a knowledge of the facts, from denying that S. was authorized by the company to make the deed.' So where a husband entered on land as that of his wife, and* held the same as tenant by curtesy, and her heirs conveyed the reversion to a third party, who brought waste against the husband, he was estopped to assert that his wife's title was defective, or to set up a title by disseisin against that under which he entered.* So where land originally belonging to A. became, as was assumed, the property of B. by conveyance, who gave A. a power of attor- ney to conve}' any land then belonging to B., and A., under that power, and as attorney of B., conveyed the land in question to the tenant, the heirs of A., after his death, were estopped by this sale to set up a claim to the land, on the ground that when A. made the deed as B.'s attorney, B. was not the owner of the land, but that the same, in fact, belonged to A. The attorney in such a case is estopped to dispute the title of his principal, for whom he acts." § 613. There is, however, a marked distinction between gen 'Douglass V. Scott, 5 Ohio, 194; 'Simpson v. Greely, 8 Kan. 584 Rawlc on Gov. 407. * Morgan v. Lamed, 10 Met. 50, » Stow V. Wyse, 7 Conn. 220; Lee v. Rich v. Atwater, 16 Conn. 415. Getty, 26 111. 76. 'Harney v. Morton, 36 Miss. 411. Recitals. 749 eral recitals in a deed, and the recital of a particular fact ; the former, as a general thing, does not conclude a party, while the latter works an estoppel.* One who has made a deed or grant with covenants of warranty, is estopped to show that he merely acted for the grantee, in acquiring and passing the estate, on the ground that it would permit him directly to contradict his deed.^ Where a plaintiff claimed under a mortgage from the mortgagor, the defendant was the mother of the mortgagor, and claimed a life estate under the will of her husband and the mortgagors father, the mortgagor himself being one of the devisees of the same land. The husband held a contract for the land from the city when he died, but no deed had been delivered, and after his death the city made a deed to his widow and devisees, and mider this deed the mortgagor claimed his title. In this deed of the city, it was recited in the hahendum^ to hold, &c., "in the man- ner mentioned in the said last will and testament of (the father of the mortgagor) deceased." It was held that the mortgagees claiming under the mortgagor, were estopped by the recital in liis deed from the city, and could not claim adversely to the widow.^ When a deed recites the existence of facts which ren- der it valid unless contradicted, the recital may take effect as an estoppel, and thus have the effect of sustaining the conveyance as between the parties and those claiming under them as heirs. A recital in a subsequent deed, referring to and describing a voidable deed in a manner to evince acquiescence in it, is a valid and irrevocable confirmation, and all claiming under the party confirming such deed are estopped from denying its confirma- tion.* § 613. A recital in a deed of the existence of a mortgage upon the premises, and that the grantee is to pay the debt, is conclusive evidence against the grantee of the execution of the 'Huntington v. Havens,,. 5 Johns. » j.^^kson v. Ireland, 3 Wend. 99; Ch. 23; Co. Lit. 852. b ; Shelley v. Tartar v. Hall, 3 Cal. 263. The rale Wright, Willes, 9; Norton v. Saimd- does not extend to that which is ers, 7 J. J. Marsh. 12; Hays V. Askew, merely descriptive, or an averment 5 Jones Law, 63; Salter v. Kidley, 1 which is not essential. Osborne v. Show. 59; McDonald v. Lusk, 9 La. Endicott, G Cal. 149. 604. * Breckenridge v. Ormsby, 1 J. J. » Eveleth v. Crouch, 15 Mass. 307. Marsh. 236. 750 The Law of Estoppel. mortgage' So a party claiming under a deed which recited tlie existence of a mortgage is estopped from denying that there is such a mortgage. ' A person who accepts a lien upon or interest in mortgaged premises can neither question the consideration nor the validity of such mortgage ; if he accept a deed of the prem- ises or a mortgage thereon in which there is a recital that such instrument is subject to a prior mortgage for a certain specified sum, and such party deducts said sum from the consideration paid for the property to his grantor, he thereby establishes the validity of said mortgage, and cannot in an action for foreclosure question its validity.' So, a recital in a deed that a mortgage exists does not estop the grantee from relying upon a defense to its validity, that there is only one witness to its execution, or that part of the amount 'lias been paid.^ A grantee who accepts a conveyance reciting a prior lease or mortgage, is not allowed to impeach the title of the lessor or mortgagor, on any ground that would iiave been open to the grantor, unless it can be shown that there is not a better title, but that it is vested by conveyance or descent in him.^ So a grantee of land recognizing and assuming payment of a mortgage lien as part of the purchase pi'ice, is estopped to set up as a defense to the mortgagor's suit of fore- ' Cane v. Ingalls, 18 N. H. 613. * Holmes v. Ferguson, 1 Oregon, 220. =* Miller v. Winchell, 70 N. Y. 437; Graves v. Mumford, 26 Barb. 94; Sands v. Church, 6 N. Y. 347; Free- man V. Auld, 44 N. Y. 50; Barnes v. Mott, 64 N. Y. 397; Kussell v. Pastor, 7N. Y. 171; Hartle}'- v. Harrison, 24 N. Y. 170; Hitter v. Phillips, 53 N. Y. 586; liicard v. Sanderson, 41 N. Y. l79;Hardigreev. Mitchum, 51 Ala. 151; Major v. Bulkiey, 51 Mo. 227; Kennedy V. Brown, 61 Ala. 296; Law- rence V. Fox, 20 N. Y. 268; Green v. Kemp, 13 Mi.ss. 515; .Jackson v. Thompson, 6 Cowen, 178; Lee v. Clark, 1 Hill, 50; Bank v. Martin, 1 Met. .294; Holmes v. Ferguson, 1 Oreg. 220; Cram v. Ingalls, 18 N. H. 613; Halle v. Nichols, 16 Hun, 37; Root V. Wright, 21 Hun, 534; Good- win V. Kency, 49 Conn. 503; Hall v. Ashby, 2 Montana, 489; Howard v. Chase, 104 Mass. 249; .Johnson v. Thompson, 129 Mass. 398; Tuite v. Si evens, 98 ]\Iass. 305; Cooper v. Big- ley, 13 Mich 463; Porter v. Parmley, 52 is. Y. 185; Cramer v. Lepper, 26 Ohio St. 59; S. C, 20 Am. R. 756; Parkinson v. Sherman, 74 N. Y. 88; S. C, 30 Am. K. 268. * Thompson v. Moigaii, 6 Minn 292; Briggs v. Seymour, 17 Wis. 255 Loan & T. Co. v. Bank, 15 Wis. 424 Machine Co. v. Emerson, 115 Mass 554; Hartley v. Tatham, 2 Iveyes, 122; Williams v. Thurlow, 31 Me. 392. ' Addison v. Crow, 3 Dana, 271; Ward V. Mcintosh, 12 Ohio St. 231; Coakley v. Perry, 3 Ohio St. 344. Recitals. 751 • closure of the mortgage, the omission of the mortgagor and wife therein to release the homestead.' So, where there is a recital in a deed of a material fact, as that due notice had been given under a power, it estops the grantor from denying the existence of that fact/ So, an executor is estopped from denying the recitals of a deed made by him, as to his having taken the oath of office and received letters testamentary/ A recital of title in a deed is binding upon the grantor. But a recital in a conveyance under which a party claims, cannot estop the grantor from claiming under an older conveyance or a paramount title.^ A grantor is estopped by his deed from denying that he had any title in the. thing granted. But where a grantor is acting officially as a pub- lic agent or trustee the estoppel does not apply. § 614. While a delivery is essential to the perfection or com- pletion of a gift, a recital, under seal, that the thing given was delivered, will estop the donee and those claiming under him from disputing the title of the donee on the ground that posses- sion did not accompany the deed/ A¥here tenants in common join in a deed, each is only bound to see that his own title is recited correctly, and they will not be estopped from showing any error or mis-take that may have been committed in setting up the title of the others. ° Ordinarily, a seal is requisite to give rise to the presumption that a recital or stipulation is intended to be conclusive, and estop the parties from contradicting it in plead- ing or in evidence.' But when a fact is specilically set forth by one of the parties to a simple contract, and constitutes the cause or inducement upon which the other relies, the former will not be permitted to controvert it, after the contract has been Avholly or partially performed by the latter, or whei-e no adequate com- pensation can be made for the resulting injury. The estoppel in such a case is equitable rather than a legal one, and cannot ordi- narily arise, unless the party who relies upon'^it was ignorant of ' PidgeoD V. Trustees, 44 111. 501. son v. Carver, 4 Pet. 11; Baldwin v. * Simson v. Eckstein, 22 Cal. 580; Thompson, 15 Iowa, 504. Buchanan v. Kimes, 58 Tenn. 275. * Newell v. Newell, 34 Miss. 385; ^ Larco v. Cassanuevma, 30 Cal. Comstock v. Smith, 26 Mich. 306. 560. « Sunderlein v. Struthers, 47 Pa. St. * Cane v. Morris, 6 Pet. 598; Jack- 411. ■> Davis V. Tyler, 18 Johns. 490. 752 The Law of Estoppel. the trntli and deceived by the false or erroneous allegation.' Where the lesseeof a town lot, having erected a building thereon, supported by posts set in the ground, under a provision in the lease that he might remove all buildings at the end of the term, makes a chattel mortgage upon said building describing it as per- sonal property, both lie and all persons claiming under him, will be estopped from denying that such building is personal prop- erty, as against all persons claiming under said mortgage.' § 615. When both parties claim under the same grantor, the covenants or recitals in the deeds constituting the chain of title under which each holds, will, so far as they enter into and qualify the grant, be evidence for or against the other that cannot be contradicted as long as the grantor's title is the only one in ques- tion and no estate has been derived from any other source. The recital of a particular fact affecting the title conveyed by a deed is confessedly conclusive on all who derive title subsequently from the grantor.' In an action of trespass to try title, the defendant showing no legal or equitable title in himself, but relying on the title of the plaintiff's vendor, is bound V)y the recitals of the lat- ter's contract of sale, admitting paynient of purchase money.* Estoppels by recitals in deeds are, in some respects, as effectual as if they were actual warrantpf^f*. Thus, where the deed of a grantor recited that certain c-unveyances had been tnade to him, he could not afterwards deny that they had been made ; nor could one deny this who claimed under such grantor.' If a party convey land, and in his deed describes it as bounded by a street, he is estopped to deny the existence of such a street, or that the grantor might use the same in connection with the land granted.* ' Wyncoop v. Cowing. 21 111. 5T0. Howell, 1 Houst. 178; Brcckcnridge '' Bailou V. Jont's, 37 111. 95; Test v. v. Ormsby, 1 J. J. Maibli 230. Eobinson, 20 Ind. 257. '• Parker v. Smith, 17 :\Iass. 413; * Van Ren.?sclaer v. Kearne)', 11 Olinda v. Lathrop, 21 Pick. 292; Howard, 297; Hart V. Johnson, 6 Ohio, Farnsworth v. Taylor, 9 Gray, i(>2; 87; luskeep v. Shields, 4 Harr. 34."). Rodgers v. Parker, 9 Gray, 445; ♦Martin v. Weyman, 26 Texas. Emerson v. Wiley, 10 Pick. 310: Tuffls 460. V. Cliarlestown, 2 Gray, 271; Thomas 'Kinsman v. Loomis. 11 Ohio, v. Poole, 7 Gray, 83; Loving v. Otis, 475; Rangeley v. Spring. 22 Me. 130; 7 Gray, 563; Smith v. Lock, 18 Mich. Farrar v. Cooper, 34 Me. 394; Deun 56; Tobey v. Taunton, 109 Mass. 404. V. King, 1 N. J. L. 432; Doe v. White v. Smith, 37 Mich. 291; Grid ley Recitals. 753 But the decisions were bused, in the above cited cases, upon tlie fact that the grantor was, at the time of making his deed, the owner of the adjacent land described as the street or waj.' In a late case the court said: "The deed from A. to B. con veys a lot of land bounded by a street. At the time of this conveyance, there was a well-defined and graded way or street, known as S. street, running from one street to another, partly over A.'s land and partly over land of C. If A. had owned the land covered by the way in front of the lot sold to B., it is too clear to admit of any question that B. w'ould have acquii'cd, by estoppel, a right to the use of the way, at least over A.'s land, to its outlet at another street.* C. owned the fee of the land under so much of the way as lay directly in front of B.'s lot, and for a few feet southeasterly ; and A. owned the fee in the land covered by the way from C.'s line out to another street. A. con- tends that this takes the case out of the general rule. We know of no decisions which require ns to hold that, under such circum- stances, a grantee will not acquire a right of way .over the gran, tor's land so far as it extends. And, upon principle, there are the same reasons in such a case for an estoppel in favor of the grantee, as in the ordinary case where the grantor owns the land in front of the granted premises. This doctrine of estoppel rests upon the ground that, when a man sells another a lot of land bounded on a street, the existence of the street enters into the consideration and enhances the value of the land ; by bounding upon the street, he represents that tliere is a street, and both parties understand that the grantee is to have, as appurtenant to his land, a right of way over such street. It would be a breach of good faith for the grantor to close up the street, or to do any act which would defeat the intention of the parties and prevent V. Hopkins. 84 111. 528; Fox v. Re- Cox v. James, 45 N. Y. 302; Dawsou finery, 101) Mass. 292; Morgan v. v. lus. Co., 15 Minn. 130. Moore, 3 Gray, 319; Luut V. Hulhiud, 'How v. Alger, 4 Alleu, 216; 14 Mass. 149; Davis v. Rainsford, 17 Livingston v. Mayor, 8 Wend. 85; Mass. 207; Parker v. Bennett, 11 Bellinger v. Burial Soc., 10 Pa. St- Allen, 388; Murdook v. Chapman, 9 135. Gra3% 156; Walker v. Worcester, 6 ^ Tobcy v. Taunton, 119 Mass. 404; Gray, 548; Stetson v. Dow, 16 Gray, Fox v. Refinery, 109 Mass. 292; Howe 323; Gaw v. Hughes, 111 Mass. 290; v. Alger, 4 Allen, 200. Vol. I.— 48 7o4 The Law of Estoppel. the grantee from enjoying tlie riglit of way impliedly granted and he is therefore estopped from doing so.'" Where the party solemnly admits a fact by a deed under his hand and seal, he is estopped not only from disputing the deed itself, but every fact which it recites." But if a deed be made by several owners of an estate in common, whatever recital as to title it contains, estops each grantor as to his own interest only, and not as to the title of his co-grantors.' Where one tenant iu common conveyed to his co-tenant his undivided interest in a certain mill estate, together with all the privileges and appurte- nances thereunto belonging, and subsequently purchased a tract of land on the stream below, he was estopped from making any claim for diversion, while the water was used at the mil) iu the same manner as when his interest in the mill was conveyed." A stranger to a deed can never set up the recital therein, by way of estoppel as against a party to the deed.* § 616. A specific recital that the grantor in a deed has a good and sufficient title, or is possessed of the estate which the deed purports to convey, estops him from denying the fact thus annexed in a subsequent action or proceeding against the grantee." Recitals in an instrument are evidence against the party making them, but when immaterial to the instrument, or when the action is not founded on the instruuient but is wholly collateral to it, the recitals work no estoppel.^ In an English ease it was held » Crowellv. Beverly, 134 Mass. 101. v. Tongue, 22 Md. 414; Williams v. 2 Slow V. Wyse, 7 Conn. 220; Greene Chandler, 25 Tex. 4. V. Clark, 13 Vt. 158; Lajoyev. Primar, ^French v. Spencer, 21 How. 3 Mo. 373; Douglass v. Scotl, 5 Ohio, 228; Kearny v. Van Rensselaer, 11 194; Van Rensselaer v. Kearney, 11 How. 297; Hemlersou v. Haekney, 23 How. 532; Clark v. Baker, 14 Cal. Ga. 383; Bfown v. McCormick, 6 612; Rich V. Atwater, 16 Conn. 415; Watts, 610; McCall v. Conver, 4 W SUlman v. Canales, 25 Tex. 243; Red- & S. 451; Smith v. Pennell, 19 Conn man v. Bellamy. 4 Cal. 247; Stewart 111; Hassell v. Walker, 5 Jones L V. Metcalf, 68 111. 109. 270; Root v. Crook, 7 Pa. St. 378 3 Sunderlin v. Struthers, 47 Pa. St. Barbet v. Roth, 16 La. Ann. 271 411. Wolfe's Succession, 21 La. Ann. 343 * Gluey V. Fenuer, 3 R. I. 211. ■< Reed v. JMcCourt, 41 N. Y. 435; 6 Allen V. Allen, 45 Pa. St. 573; Bank v. Banks, 101 U. S. 240; Lowell Deery v. Cray, 5 Wall. 795; Nutwell v. Daniels, 2 Gray, 161; Phillips v. Cooper, 50 Miss. 722. Recitals. 755 that a party to the instrument is not estopped in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts recited, although the recitals would be in evi- dence/ Where, in a deed conveying an unconfirmed claim to land, without any warranty of title, both parties recite that gran- tors are the owners of the claim, as the only surviving heirs and devisees of the assignee by purchase, from the original claimant, they are estopped from denying the truth of such recitals,* So where a guardian of a person noti comjyos sold certain real estate belonging to his ward under a license of court and convoyed the same with covenant that he was duly authorized to sell the granted premises ; it was held that the guardian was estopj)ed by such covenant, from setting up a claim in his own right to any portion of such real estate under a previous conveyance to him in his own right/ Parties to a deed cannot, in a controversy with strangers, insist that the deed does not express what it was designed to express, _ Thus, where land has lieen conveyed to two as tenants in common, and the interest of one has been sold to a third party upon a judgment against him prior to the date of tlie deed, the other tenant cannot set up, against the title of such third person, that the interest conveyed to the co-tenant and sold on execution, was intended to be only in the nature of a mortgage to secure money lent bj" him in part payment for the land.'' § 617, If a deed of conveyance, expressly or by necessary implication, affirms or recites that the grantor has and conveys a fee-simple in the land, his heirs are estopped from denying that he had that estate and passed it by the deed to the grantee.^ But where a principal gives his agent a power of attorney to sell cer- tain land, and the agent exceeds his authority and sells land not included or described in the authority given him in the power of attorney, the principal in selling other land is not estopped by » Champlaiii v. Valentine, 19 Barb. Oreg. 235; Gould v. West. 32 Tex. 484; Carpenter v. Buller, 8 Mees. & 338; Harris v. Hardeman, 29 Tex. Wels. 209. 241; Wright v. Dailey, 26 Tex. 731; => Glamorgan v. Greene, 32 Mo. 285. Marsli v. Weir, 21 Tex. 110; Castro v. 3 Heard v. Hall, 16 Pick. 457. Wurzbach, 15 Tex. 128; Thompson v * Campbell v. Lowe, 9 Sid. 500. Cragg, 24 Tex. 582; Elliott v. Whit- 5 Van Rensselaer v. Kearny, 11 taker, 30 Tex. 411; League v. Atchi- How. 297 ; Taggart v. Risley, 4 sou, 6 Wall. 118. 766 The Law of Estoppel. the recital in his deed of a portion of the boundary, describing it iis sold by his agent, from denying the agent's authority to make the deed.' One who has purchased goods from another who had previously made a fraudulent assignment of them is estopped, like his vendor, from impeaching the assignment.' But an assignee of property for the benefit of creditors is estopped from denying that persons who are named in the assignment, as cred- itors of the assignor, are such creditors.' A recital in a deed that fourteen acres is all the land conveyed, estops a party deriving his title from such deed, from claiming more than that quantity of land.' § 618. A recital in a deed of release that a lease was duly executed and delivered may be conclusive upon subsequent credi- tors and purchasers, and estop them from alleging that the convey- ance failed from the want of an estate in the release ; but they are estopped from showing that the deed was voluntary when it contains a recital that it was made for a valuable consideration ; so a declaration that the grantor has a good title or was seized in fee, may be disproved by the grantee or a third person, although it may enlarge the scope of the deed and bring an after acquired estate within i.ts operation. A statement in a grant of one tract of land, Avith regard to another, cannot estop a subsequent pur- chaser of the former in any controversy that may arise with regard to the latter. § G19. \Yhere a covenant or recital in a deed to one man is so worded as to induce a third person to adopt a course from which he cannot recede without injury, there is sufficient privity to give rise to an estoppel." In regard to wills, an heir cannot take under and in hostility to the will. If he claim under the will, he must give it effecc so far as in his power, and a party claiming through deeds which recite a will is estopped from denying its validity and genuineness." So a recital in a will that the testator ' Rice V. Siiveiiiier, 8 Minn. 248. 3 W. Vu. 438. ^ Bynum v. ]\IilkT, N. C. ; S.C., * Jclleison v. Howell, 1 Houston, 41 Am. H. 467. Del. 178. a Gundy v. Vivian, 17 Wis. 486; •• NVater's Appeal, 35 Pa. St. 523; Gcisse V. Beal, 3 Wis. 367; Jones v. Thrower v. Wood, 53 Ga. 458. Jones, 20 Iowa, 388; Hutchinson v. >* Jackson v. Thompson, 6 Cowen, Lord, 1 Wis. 286; Coal Co. v. Webb, 178; Vaa Duyue v. Van Duyne, 14 Recitals. 757 had executed a deed to the defendant, was evidence against the testator's heirs of a perfect execution of such deed, and of tifle in the defendant.' So, where A. accepted a grant confirmatory of a will devising him a remainder, the grantee was estopped from setting up any title inconsistent with the will." § 620. The effect of recitals in deeds was considered in the case of Douglass v. Scott." One Massie made a deed to the heirs of one Montgomery, who had entered under an agreement for a deed, and died in possession of the land. The heirs conveyed to Kerr by deed, with warranty, reciting the patent to Massie. and Massie's deed to them. Kerr entered under this deed. Massie never received his patent, and having died, it was issued to his heirs, Douglass, prior to 1816, obtained a judgment and cred- itor's lien on .the land against Kerr, which, being kept alive, he sold the land in 1821, and acquired a title under this sale. In 1816, Kerr mortgaged the estate, and in his deed recited the title by patent in Mossie, the sale by Massie to the Montgomery heirs, and their conveyance to him. The land was sold under this mortgage and purchased by Scott, in 1823. Kerr released to him, as did the trustees of the heirs of Massie, to whom the patent issued. The deed from Massie to the Montgomery heirs was invalid for want of proper execution. Douglass brought a bill in equity to quiet his title. The court held : " That the obligation created by estoppel not only binds the party making it, but all persons privy to him — the legal representatives of the party — tliose who stand in his situation by act of law, and all who take his estate by contract entered into in his » stead, and are subjected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate, it becomes a muni- ment of title, and all who afterwards acquire the title, take it subject to the burden which the existence of the fact imposes on it." They held, that Douglass acquired the legal title of Kerr by the sale under the judgment, and that the recital in Kerr's deed from Montgomery's heirs, that Massie had received N. J. E. 49; Smith v. Guild, 34 Me. • Smith v. Wait, 4 Barb. 28. 443; Des Londes v. New Orleans, 14 i» Jackson v. Ireland, 3 Wend. 99; La. An. 552; Landis v. Landis, 1 Preston v. Jones, 9 Pa. St. 456, Grant "s Cas. 249. ^ Douglass v. Scott, 5 Ohio, 194. 768 The Law of Estoitel. a patent and conveyed the estate to them, was one upon which Kerr had a right to hold them bound, as an admission of the fact by which, as a party to the deed, he was himself bound, and that Kerr's assignee, clamiing under him, was alike concluded; that the land was patented to Massie, and conveyed by him to the Montgomery heirs, was proved by their admission while they were owners and were disposing of the estate, " upon which all persons deriving the title under them have a right to rely, and which concludes all persons to whom their estate is transmitted," and, " that ueitiier party, deriving the title through this deed, are at liberty to question these facts.'"' § 621. The recital in a patent of a prior patent being a recital of a particular fact directly affirmed, estops one claiming under it from denying the existence of such prior patent. Wherein a deed conveying an unconfirmed claim to land, without any war- ranty of title, both parties had i-ecited that the grantors in the deed were the owners of the claim as the only surviving heirs and devisees of the assignee bj' purchase from the original claimant, they are estopped from denying the truth of such recitals.' An infant is not bound by recitals in his deed.' The recitals of a deed estop only parties and privies. § 622. The date of a deed may be contradicted, as not being essential to its operation, and as a general thing is not intended to be within the conclusion of a seal. But when the effect of :ts contradiction would be to vary the effect of the instrument or defeat any right which it was meant to confer, it becomes a recital which becomes conclusive and cannot be denied.* So the usual clause in a bill of sale, '* this day sold," estops the vendor from denying that it was made on that day. So a party to a ' Douglass V. Scoit, 5 Ohio, 194; Mc. Byrne v. JSIorebouse, 22 111. 603- Cleskey v. Leadbetter, 1 Ga. 551; Stewart v. Butler, 2 S. & 11.381; Den V. Brewer, 1 N. J. L. 172; Den Jackson v. Piirklmrsl, 9 Wend. 209; V. King. 1 N. .7. L. 432; Kinsman v. Carver v. .Jackson, 4 Pet. 1. Loomis, 11 Ohio, 475; Taggart v. - Glamorgan v. Greene, :'2 Mo. 285. Risley, 4 Oreg. 235; Thrower v. ^ Houston v. Turk, 7 Yerg. 13. Wood, 53 Ga. 458; Crane v. Morris, 6 ■* Kinibro v. Hamilton, 2 Swan, 190; Pet. 598; Knight v. Leary, 34 Wis. Dyei v. Ritch, 1 Met. 180; Curdy v, 459; Inskeep v. Shelds, 4 Har. 345; Eggleston. 11 Mass. 282; Tnbble v. Oldham, 5 J. J. Marsh. 137. Recitals. 759 deed by recording it would be equitably estopped from sliowing that it was not delivered at its date.' Where a principal in a power of attorney gives it a false anterior date, for the purpose of legalizing prior acts of the attorney, he is estopped to aver that it was executed at a subsequent period." So where a cov- enant is made the basis of a deed or agreement, it is as conclu- sive as a positive averment or recital — as, for example, a descrip- tion of the land conveyed by a deed as bounded by a road or street estops the grantor from denying the truth of the descrip- tion, whether the way is set forth as already there or is to be laid out and opened. The object in both instances is to give cer- tainty to a grant, and a contrary allegation would contravenes and might defeat the intention of the parties.* § 623. There are a few exceptions to the effect given to recitals in deeds, one of which is in the case wliere the deed containing the recital is, upon its face, a void one. There it does not work an estoppel." Or if it be inoperative from any cause, as for want of proper execution, even if it containicoveuants of warranty.^ And though a party claiming title under a deed is barred by the recitals in such deed, he may show that the deed in which they are contained is inoperative, defective, and void." Another is, where the other party who would enforce the estop- pel, proposes to go behind the deed which contains the recitals, to defeat it. As wiiere one holding a mortgage took a deed of release from th ; mortgagor, reciting that its object was to cancel the mortgage, and a third person claimed title to the same laud through an attachment laid upon it between the date of the mortgage and that of the deed of release, the grantee in such deed of release was permitted to show that he still lield under the mortgage by an agreement with the debtor to await the result of the attachment.^ « Blake v. Flash, 44 111. 302. v. Buchanan, (J3 Ala. 110. « Milliken v. Coombs, 1 Me. 343. " Sinclair v. Jackson, 8 Cow. 543; ' Parker v. Smith, 17 Mass. 413; ATallace v. Miner, 3 Ohio, 366; Bank O'Linda v. Lalhrop, 21 Pick. 291; v. Bellis, 10 Cush. 276; Lowell v. Tuffls V. Charlestowu. 2 Gray, 2^1; Daniels, 2 Gray, 161; Cuthberston v. Johnsfon v. Scott, 11 Mich. 232; Mar- Irving, 4 H. & N. 742. tin V. Wayman, 26 Tex. 460; Reeves ^ Patterson v. Pease, 5 Ohio, 190. V. Vinacke, 1 McCraiy, 213; Mason « Blake v. Tucker, 12 Vt. 39. ' Crosby v. Chase, 17 Me. 369. 760 The Law of Estoppel. § G24. The estoppel in general extends to all the facts recited in the deed. But an exception to the conclusiveness of recitals in a deed has been allowed in the case of the recitals of the amount of the consideration and the fact of its payment. The grantor in a deed conveying in fee simple, acknowledging the receipt of the consideration, is not estopped from showing a different considera- tion from that expressed in the deed.* If the deed recite that the consideration was paid by a husband and wife, parol evidence is admissible to show that the money consisted of a legacy given to the wife.' In England the recital is regarded as conclusive evidence of payment, binding the parties by estoppel.^ But the general practice in the American courts has been to treat the recital of the amount of the money paid, like the mention of the date of the deed, the quantity of the land, and other recitals of quantity and value, to which the attention of the parties is sup- posed to have been slightly directed, and to which, therefore, the principles of estoppel do not apply ; while the party is estopped from denying the convej^^nce, and that it was for a valuable con- sideration, yet the weight of the American authorities is in favor of treating the recital as only ^rw/za/ac'^'tf evidence of the amount paid in an action of covenant by the grantee to recover back the consideration, or in an action of assumpsit by the grantor to recover the price which is yet unpaid ; with the exception of the states of North Carolina^ and Louisiana it is the universal rule of the American courts, that where a deed acknowledges the receipt of a consideration, the grantor and all claiming under him are ' Rabsiibc! v. Lack. 35 Mo. 316; ^ Lampson v. Corkc, 5 B. & Aid. Wilkinsoav. Scott, 17 Mass. 249; Gale 606; Roimtree v. Jacob, 2 Taunton, V. Coburn, 18 Pick. 897; Clapp v. 141; Baker v. Dewey, 1 B. & C. 704; Tirrell, 20 Pick. 247; Liveimore v. Shelly v. "Wright, Willes, 9; Jones v. Aldrieh, 5 Cush. 431; Preble V. Bald- Sasser, 1 D. & B. 452; Forest v. win, 6 Cush. 550; Chuk v. Deshon, 12 Shores, 11 La. Ann. 415; Hill v. Cash. 539; Paige v. Sherman. 6 Gray, Manchester, 2 B. & A. 544; Spiers v. 511; Miller v. Goodwin, 8 Gray, 542; Clay, 4 Hawks. 22; Cossens v. Cos- Irwin V. McKeon, 23 Cal. 472; Good- sens, Willes, 25; Downs v. Cooper, 3 speed V. Fuller, 46 Me. 141; Coles v. A. & E. 252; Doe v. Payne, 1 A. &E. Soulsby, 21 Cal. 47; McCrea v. Pur- 538. mort, 16 W\^u(l. 460. « Mendenhall v. Parish, 8 .Jones L. « Doe V. Stalham, 7 D. & Rj'. 141; 105; Hudson v. Critcher, 8 Joues L. Shelly V. Wright, Willes, 25. 285; Keedles v. Hanifan, 11 111. App. 303. Recitals. 761 estopped from denying that one was paid. They may disprove the payment for the purpose of recovering the consideration money, but they cannot do so for the purpose of destroying the effect and operation of the deed. The design of the chuise acknowledging payment of consideration, is not to fix the precise amount paid, " but to prevent a resulting trust in the grantee." It cannot be contradicted or varied by parol, so as in any way to affect the purpose of the deed, that is, its operation as a con- veyance,' and this though the deed is not stated to be upon other considerations.'^ Where a deed conveying personal property acknowledges the receipt of the purchase money, this recital may be contradicted and explained by parol evidence, which shows that the money has not in fact been paid. But such evidence cannot affect the legal import of the deed/ The grantor is estop- ped to deny a resulting trust in his favor, or to deny that the deed was executed for the purposes expressed in it.* Where the deed is attacked for fraud the parties cannot show a consideration different from that in the deed. § 625. An officer's deed of sale under execution, is not evi- dence of the matter recited in it against strangers, and least of all, as against those claiming adversely to it/ In a suit on a delivery bond, the return of the officer made in the original suit, in relation to the disposition of the property, is conclusive upon the parties ; a return to an execution is always conclusive against » Perry v. R. R. Co., 5 Cald. 138; Walker, 30 111. 511; Sprigg v. Bank, Rockhill V. Spragg, 19 Ind. 30; Grout 14 Peters, 206; Stackpole v. Robbins, V. Townsend, 3 Hill, o54; MoCrea v. 47 Barb. 219; Beach v. Packard, 10 Purmort, 16 "Wend. 460; Barnura v. Vt. 96; Garrard v. Bradley, 7 lud. Cbilds, 1 Sandf. 58; Meriam v. Harseu, 600; Hurn v. Soper, 6 Harr. &, J. 276; 2 Barb. Cb. 232; Bank v. Houseman, Sbep. Toucb. 223; Rynear v. Neilia, 6 Paige, 526; Doe v. Beardsley, 3 Mc- 3 Iowa, 310; Cbapman v. Miller, 130 Lean, 412; Harvey v. Alexander, 1 Mass. 289. Rand. 219; Goodwin v. Gilbert, 9 2 Powell v. Mfg. Co., 3 Mason, 347; Mass. 310; Winans v. Peebles, 31 Needles v. Hanifan, 11 111. App. 303. Barb. 371; Farrington v. Barr. 36 N. ^ Taggard v. Stanberry, 3 McLean, H. 86; Graves v. Graves, 29 X. H. 129; 543; Richardson v. Clow, 8 111. App. Pliilbrook v. Delano, 29 .Me. 410; 91. Wilt v. Frankhn, 1 Binn. 502; Bank ^ "Kimball v. Walker, 30 111. 482; V. Watson, 13 R. L 91; Meeker v. Galbraith v. Cook, 30 Ark. 417. Meeker, 16 Conn. 383; Kimball v. ' Donahue v. McNulty, 24 Cal. 411. 762 The Law of Estoppel. the officer making it, and in contests between the parties to the action they cannot contradict the sheriff's return, it can only be impeached in an action against the slieriff,' but as against otlier parties it is generaWy ^?-ima facie evidence of the facts which it recites. Where a sheriff returns anything as a fact, done in the course of his duty in tlie service of a precej^t, it is conchisively presumed to be true against him, and he is estopped from deny- ing it. Where the certificate of a justice of the peace is offered in evidence against him in a cause where he is a party, the certi- ficate being his official act, done under the sanction of his oath, in the performance of a duty imposed upon him by law, though under some circumstances, it may be impeached by others, he is estopped from denying the truth of what he has officially certified.* § 626. A statement in one transaction will not be binding in another which it was not designed to influence, and to render an admission binding on the right sought to be enforced, it must have been acquired on the faith of the admission, A recital in a deed, that the consideration was pecuniary, or that it has been paid may be conclusive on a suit brought on the deed itself, or for the price of the land conveyed, but is open to contradiction when the title to other land is involved, or in a pi-oceeding instituted to test the question whether the grant was not voluntary and intended as an advancement by the grantor.' Estoppels are founded on intention, and are limited by it, and cannot extend to objects which the pai-ties can not reasonably be supposed to have had in view. A recital may therefore be an estoppel for some purposes and not for others." Thus, while the consideration set forth in a deed cannot be impeached or its payment denied, In ' Thompson v. Hammond, 1 Edw. Bartholow, 69 Mo. 186; Butler v. Ch. 497; Edwards v. Tipton, 79 N. State, 20 Ind. 169. See §§ 452,453, C. 222; Ijiller v. Roberts, 1-3 S. & R Ante, OfBcers' Return. 64; IMcCldland v. Slingluff, 7 W. & " M:i1 thews v. Dare, 20 Md. 248. S. 135; Flick v. Troxell, 7 W. & S. » Harrison v. Castcnor. 11 Ohio St. 67; Mentzv. Hamman, 5 Whart. 153; 329; Rockhill v. Spraggs, 9 Ind. 30: Paxsons Appeal, 49 Pa. St. 195; Richardson v. Clow, 8 111. App. 91; Bogue's Appeal, 83 Pa. St. 101; Stein's Piiillips v. Cooper, 50 Miss. 722. Appeal, 83 Pa. St. 101; Newburgcr's ♦ Young v. Raincock, 7 C. B. 310; Appeal, 83 Pa. St. 101; Anthony v. Richardson v. Clow. 8 111. App. 91. Kecitals, 763 order to defeat the operation of the instrument as a convej'ance, or operate to raise a resulting trust, it may, notwithstanding, be impeached so as to increase or reduce the amount or nature by parol evidence or the receipt given for it be contradicted in an action brought by the gi'antor for the price, or against him on the covenant for title.' Where a subsequent deed is made for the purpose of rectifying and supplying errors and omissions in a prior deed between the same parties, the intention being to substitute the latter for the former deed, it is valid veithout any new con- sideration, and will estop the vendor from denying consideration.* § 627. A party to the deed is not estopped in an action by another party not founded on the deed, and wholly collateral to it, from disputing the truth of certain facts recited and set forth in such deed.^ When a recital in a deed is intended to be a state- ment which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But where it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the whole instrument." As between the parties themselves, any averment of a fact made by one of the parties in the nature of a warranty to the other, may be contradicted and shown to be false by that other. If a deed of assignment, for example, recites that the assignor is possessed of some estate or interest, such as a lease, or a patent right, and then proceeds to assign such estate or 1 Farrlngton v. Barr, 36 N. H 86; Grout v. Townsend, 2 Hill. 554; Stone Hammond v. Woodman, 41 Me. 177; v. Duvall, 77 111. 75; Chapman v. 3Iil- Rawle Gov. 65, 463; Richardson v. ler, 130 Mass. 289; Howell v. Hale, 5 Glow, 8 III. App. 91; Ulinger V. Lea, 405; Irvine v. Hall, 5 Lea, 405. Crowe, 17 Md. 361; Leders v. Riley, = Park v. Cheek, 2 Head, 451. 23 111. 109; Benjamin v. MeConnell, 9 ^ Carpenter v. Bulier, 8 M. & W. 111. 536; Douglas v. Littler, 58 111. 209. 342; McMullen v. Glass, 37 Pa. St. ^ Stroughill v. Buck. 14 Q. B. 787; 151; Bynear v. Neilin, 3 Iowa, 310; Wiles v. Woodward, 5 Exch. 557; Steele v. Adams, 1 Me. 1; Quirk v. Carpenter v. Bulier, 8 M. & W. 209; Thomas, 6 Mich. 76; Russv. Mebius, Gutter v. Dickinson, 8 Pick. 386; 16 Cal. 350; Kinuebrew v. Kinnebrew, Doane v. Wilcutt, 16 Gray, 368; Farrar 35 Ala. 628; Johnson V. Town Co., 14 v. Cooper, 34 Me. 394; Hovey v. Kas. 390; Stackpole v. Robbins, 47 Woodward, 33 Me. 470; Williams v. Barb. 212; Coles v. Soulsby, 21 Cal. Sutherland, 10 Iowa, 51; Bruce v. U. 47; Hendrick v. Crowley, 31 Cal. 471; S., 17 How. 437; Wade's Succession, 21 La. Ann. 343. 764 The Law of Estoppel. interest, and the assignee, in consideration of the assignmentj enters into certain covenants upon which an action is brought, the assignee is not estopped from showing tliat tlie recital was false, and that no such estate or interest was vested in the assignor, and transferred by virtue of the deed.' But the assignor himself, who makes the averment, would not be permitted to contradict or dispute the fact recited.' If a lease, however, recites that the lessor is possessed of real or personal property, the lessee who executes and accepts such lease is estopped, as we have previously seen, during the continuance of his occupation, from denying the title and possession of his lessor at the time such lease was exe- cuted.' So a party is estopped by recitals of ownership in a deed or mortgage to set up title in a third person.* § 628. The same principle which has created an estoppel in certain cases where none would have existed at law, has, in oth- ers destroyed that which the law could have created ; for as an estoppel will be called into being for the prevention of fraud, so it will be suppressed when fraud will be produced by its exist- ence.'* This is a well established principle in courts of equity, but has been applied reluctantly in courts of common law and it has become a well established principle, that while the general estoppel of admissions under seal continue so far as to forbid an attempt to avoid the operation of a deed as a conveyance, by denying the consideration," it no longer exists in a suit brought for the purchase money, or to enforce the fulfillment of collateral stipulations contained in the instrumerjK:. In all such cases, the general operation of the deed being left untouched, evidence may ' Haynev.MaltbJ^ 3T.R. 441; Vin. Eoberts v. Roberts, 2 B. & A. 367; Abr. Estoppel, M. 4',-). Nevett v. Berry, r, Crancb C. C. 291. 2 Oldham v. Langmead, 3 T. p. ^ pendieton v. Ricbey, 32 Pa. St.58: 439; Humble v. Hunter, 12 Q, B. Schettiger v. Hopple, 2 Grant's Cas. 310. 54; Ins. Co. v. Martin, 13 Minn. 59; 3 Beckett V. Bradley, 7 M. & Gr. Mills v. Graves. 38 111.455; Jaclv v. 995; Hall v. Ilaun, 5 Dana, 55. Dougherty, 3 W. & H. 151; Brooks MViles V. Woodward, 5 E.xebq. v. Maltbie, 4 Stew. A: P. 96. 557; Harvey v. Hatvcy, 13 R. I. 598; « Farrington v. Barr, 36 K H. 86; Bessey v. Wyndbara, 6 Q. B. 160; \Yielt v. Franklin, 1 Bin. 502; Grant Philpotts V. Philpolts, 10 C. B. 85; v. Townsend, 2 Hill, 557; Thomp.soa V. Buchanan, 2 J. J. Marsh. 416. Recitals. 765 be given to vary the consideration both in amount and character,' or to show that it was not paid in opposition to a recital in the instrument or the accompanying receipt that it was ;" and the deed held conclusive at law of the nature of the consideration, although not that it was paid,' and liable to be impeached in equity on the ground of fraud,^ the real consideration may be shown to be natural love and affection, while the deed purports to be made for value or a sum certain set forth on its face," while the deed is the execution of the contract of sale, it is not the contract, the object of the deed being to transfer the title to the purchaser, and not to state the terms of the purchase." The estoppel will, therefore, be limited as in other cases, to the object the parties have in view, and will not extend to other and collat- eral matters, forming part of the same transaction. There could be no greater wrong inflicted than in treating formal receipts introduced into conveyances for the benefit and convenience of grantees, in order to facilitate the transfer of the title to subse- quent purchasers, as conclusive evidence, in opposition to the truth of the case and understanding of the parlies.' But in 1 Goodspeed V. Fuller, 46 Me. 141; Bell, 20 Johns. S3S; McCrea v. Pur- Joaes V. Jones, 13 lad. 389; Harrison mort, 16 Wend. 460; Hamilton v. V. Castner, 11 Ohio, 339; Holbrook v. Maguire, 8 S. «& R. 355. Holbrook, 30 Vt. 532: Swafford v. ^ Shepard v. Little, 14 Johnson, Whipple, 3 Iowa, 261; Bullard v. 210. Briggs, 7 Pick. 533; Brown v. Lunt, ^ Hildreth v. Sands, 2 Johns. Ch. 37 iMe. 423; Miller v. Goodwin, 8 35; Morse v. bhattuck, 14 JST. H. 229. Gra}^ 542; Thompson v. Thompson, ^ RockhiJl v. Spraggs, 9 lud. 30; 9 Ind. 323; Rockhill v. Spraggs, 9 Harrison v. Castner, 11 Ohio St. Ind. 30; Steele v. Adams, 1 Me. 1. 339. = Reynolds V. Vilas, 8 Wis. ^71; « White v. Miller, 22 Vt. 380; Bolles Harwell v. Fitts, 20 Ga. 723; Vang- v. Beach, 2 N. J. 680; Winans v. iner v. Taylor, 18 Ark. 65; Hair v. Peebles, 33 Barb. 371 ; Thompson v. Lyttle, 28 Ala. 236; Hill v. Perry, 8 Thompson, 9 Ind. 323; Rhine v. Jones, 579; Beldeuv. Seymour,8 Conn. Allen, 36 Cal. 362; Phillips v. Cooper, 312; Buckley's Appeal, 48 Pa. St. 50 Miss. 722. 494; Rynear v. Neilin, 3 Iowa, 310; "> Eckels v. Carter. 26 Ala. 563; Corneal V. May, 2 A. K. Marsh. 587. Allen v. Lee, 1 lud. 38; Rockhill v. Herbert v. Scofield, 9 N. J. Eq. 432; Spraggs, 9 Ind. 30; Manning v. Jones, Thompson V. Allen, 2 Ind. 559; Good- 1 Bush, 368; Collins v. Tillyou, 26 speed V. Fuller, 46 Me. 141; Gordon Conn. 308; Lindsay v. Love y, 26 Vt. V. Gordon, 1 Met. (Ky.) 285; Wrig- 123; Dickson v. Kelsey, 3 Blackford, ley V. Weir, 7 S. & R. 311 ; Bowen v. 189. 7G6 The Law of Estoppel. Maryland the stringent common law rnlc still prevails ; the con- sideration cannot be disproved by parol evidence or shown to differ from the description given of it in the deed.' § C29. The estoppel arising from recital of the nature or judgment of the consideration is ordinarily confined to the par- ties and does not extend to third parties as creditors, or to the heirs of the grantor.'' But where a grantor who has put a deed upou record in which there is a recital that the consideration was paid, or acknowledging the receipt of it, will be estopped from showing that it was not paid as against third persons who have given credit or taken a conveyance in reliance upon the admis- sion or acknowledgment of the receipt of such consideration contained in the deed,^ and a recovery of a purchaser on a war- ranty contained in a grant to the vendor, cannot be reduced be- low the amount set forth in the deed as having been paid by the grantee/ A recital in a deed that the purchase money had been paid was held conclusive on the grantor in favor of subsequent judgment creditors who might reasonabl}' be supposed to have been influenced by it in trusting the grantee or giving him time/ Thus, where a vendor gave the purchaser a written contract recit- ing the sale, and payment of $300, and agreeing to convey the land upon the purchaser's payment of two notes for a like amount, the purchaser transferred his rights under the contract to another party whom he put in possession, and who paid the notes accord- ing to the original contract. In an action for specific perform- ance of the contract by the privies of the last purchaser ; the original vendor was estopped from denying the payment of the three hundred dollars recited iis paid in his contract, as other rights had been acquired on the faith of the recital.* The gen- eral rule is, that when a consideration is expressed in a convey- ance in the absence of fraud or mistake, it may not be denied or disproved, or its adequacy controverted, by the grantor, or his 1 Small V. Baxter, 2 Md. Ch. 454; Waters' Appeal, 35 Pa. St. 523. Ellenger v. Crowl, 17 Md. 357. * Hunt v. Crary, 17 B. Mon. 73; « Meeker v. Meeker, 6 Conn. 83; Greenwault v. Davis, 4 Hill. 643; Outlaw V. Yell, 8 Ark. 345; Hard- King v. Gibson, 32 111. 348; Hard v. wick V. Cox, 1 N. J. L. 247; Rock- Denneys, 16 III. 492. liill V. Spraggs, 9 Ind. 30. » Waters' Appeal, 35 Pa. St. 523. 3 Work V. Brayton, 5 Ind. 396; « SleVart v. Metcalf, 68 111. 109. Recitals. , 767 lieirs, or liis privies iu estate, to defeat the conveyance or the uses and purposes therein expressed. The recital of the consid- eration is open to contradiction by the creditors of the grantor, assailing the conveyance for fraud. It is also open to explana- tion generally, when the grantor may be called to answer in dam- ages for breach of covenant and in other cases. But when a consideration is recited not merely nominal, the grantor or his privies, in the absence of fraud or mistake, are estopped from a denial of its adequacy.' § 630. So a man may be estopped by a matter of writing, which is not of record. An admission under seal is conclusive upon tlie obligor and estops him from asserting or proving to the contrary. Thus, if a condition in a bond recite that a particnlar suit is pending in the Court of the King's Bench, the obligor is estopped from saying tliere is no snchsuit there.^ So if the con- dition of a bond be to perform the covenants in a particular indenture, the obligor is estopped by his deed from saying that there is no such indenture. Where a distinct statement of par- ticular facts is made in recitals in a bond or other instrument under seal, and a contract is made with reference thereto, it is not competent for the parties bound by the deed to deny the recital in an action between them.' Where a statute requires a bond to be taken in double the valne of the thiniJ:; concerning M'hich it is executed, and the parties vo]un>tarily and without fraud assent to the insertion of a g-ivcn sum as equal to double the value, they are estopped from denying that it is double the true value, there being no pretense or allegation that it was 1 Morse V. Sliattuck, 4 N. H. 329; v. Tierney, 102 U. S. 415; Yeaton v. McCrea v. Purmort, 16 Wend. 460; Haines, 43 N. H. 26; Arnot v. Friel, Goodlc'tt V. Housell, G6 Ala. 151; 50 111. 174; Hamilton v. State, 32 Md. Thompson V. Buchanan, 2 -J.J.Maish. 348; George v. Bischoff, 68 III. 286; 414; Howell V. Hall. 5 Lea, 405. Bowen v. Reed, 34 Ind. 430; Falmes- MVilloughby v. Brooke, 1 Cro. took v. Gilliam, 77 111. 637. Eliz.756: ATaymau V. Taylor, 1 Dana, ^ gt^te v. Edna, 1 Wins. L. 71; 527; Bronson v. Taylor, 33 Conn. Decker v. .Judson, 16 X. Y. 439; 116; Henderson v. Bank, 11 Ala. 855; Drury v. Fay, 14 Pick. 326; State v. Cordle v. Burch, 10 Gratt. 480: Ed- Isichol, 30 La. An. 628; Bonner v. wards v. State, 22 Ark. 303; Daniels AAilkinson, 5 B. & A. 682; Phillips v. Cooper, 50 Miss. 722. 7G8 The Law of Estoppel. obtained b}^ fraud, oppression or circumvention.' In a suit upon a forthcoming bond for goods attached, the obligors are estopped from denying admissions made in the bond or controverting their existence.'' No evidence is needed to prove that there was a levy, the judgment is conclusive evidence of the levy or denying that the property does not belong to one named as owner in the bond.' Thus where, in pursuance of an arrangement between two parties, one of whom had in his possession personal property claimed by the other, an action was brought by the former in the form of an action to recover possession of the property, and an undertaking was given, entitled in the action, reciting that plaint- iff claimed delivery of the property, and undertaking to prose- cute the action, and to return the proj^erty if return should be adjudged, etc. The sureties to the undertaking are estopped, in an action on the bond, fi-om questioning the recital, although they had no knowledge that the defendant in the replevin suit was not in possession of the property, or that the statutory pro- ceedings were not to be had, or the undertaking used to obtain delivery. And so, wheie some stone were lying upon ground leased by plaintiff, defendant sent men who commenced work cutting stone. The plaintiff thereupon commenced an action of replevin, and the sheriff" took possession of the stone. The defendants gave a statutoiy undertaking in which it was recited that the stone had been taken from their possession, asking a »Speake v. U. S., 9 Cranch, 28; Bates V. Merrick, 2 Hun, 5(j9. "•'May V. Johnsou, 3 In(1.449; Mc- Millan V. Dauii, 18 Cal. 389; Frost v. White, 14 La. An. 140; Sliaw v. Mc- Cullough. ;] W. Va. 260; Henderson V. Bank, 11 Ala. 855; Sparks v. Shrop- shire, 4 Bush, 550; Jones v. Pearly, B Iowa, 52; Bank v. .lacoby, 17 N. Y. Supreme Ct. 144; Harrison v. AVil- kius, 69 N. Y. 412; Diekerson v. Anderson, 9 Mo. 156; Cohen v. Broughton, 54 Ga. 296; Brande"v. Bobo, 12 La. An. 616; Sullivan v. Pierce, 10 Ark. 500; Sponenbarger v. Lemert, 23 Kas. 55; Haxtuu v. Sizer, 23 Kas. 310; Bursley v. Hamilton, 15 Pick. 40; Staples v. F'ilmore, 43 Conn. 510; Iiutle('.ge V. Corbin, 10 Ohio St. 478; Ilannesso v. Bonnell, 23 N. J. L. 159; Bacon v. Daniels, 116 Mass. 174; Gniy v. McLain, 17 111. 404; Door V. Clark, 7 Mich. 310; Jewett v. Torr}-, 11 Mass. 219. Lyman v. Lyman, 11 Mass. 317; Price v. Ken- nedy, 16 La. Ann. 78; Inman v. Si rat- tan, 4 Bush, 447; McMillan v. Dana. 18 Cal. 347; Roebuck v. Thornton, 19 Ga. 151; Mead v. Figh, 4 Ala. 279; Drake on Attachment, i^ 339; Hundley V. Filbert, 73 Mo. 34; Lucas v. Beebe, 88 111. 427; State v. Nicol, 30 La. An. 628. 3 Haxtun v. Sizer, 23 Kas. 310. Recitals. 769 re-deli veiy, and they were re-deli vei-ed. By giving the under- taking, the defendants were estopped from setting up tliat the stone had not been in their possession.' So if a condition be that he shall paj a sum of money for which he is bound in a particu- lar recognizance, he is estopped from denying that there is such a recognizance. § 631. No one who has bound himself by an instrument under seal for the fidelity and good conduct of another, in a private trust or public duty, can escape from the liability thus assumed, under cover of an allegation that his principal was not duly designated, or elected, or was subject to some legal disquali- fication which should have prevented him from accepting or administering the oflice.* Thus in a suit on a sheriff's bond, the defendants are estopped by their own acknowledgment on the bond, from denying that the person described therein as sheriff was such at its date, and the law will presume that he contiinied so during the terra for which he was elected.'' Where one has voluntarily signed a guardian's bond which has been accepted by the probate court he is estopped to set up that the * Diossy V. Morgan, 74 N. Y. 11. Jones, 54 Iowa, 699; Bassett v. Crafts, "People V. Norton, 9 N. Y. 176; 129 Mass. 513; Johnston v. Smith, 25 Seiple V. Elizabeth, 27 N. J. L. 407; Hun, 171; Merely v. Metamora, 78 111. ilorn V. Whittier, 6 N. H. 88; U. S. 394; Chicago v. Gage, 95 111. 625; V. Bradley, 10 Pet. 343; State v. Roper v. Lodge, 91 III. 518; Stovall v. Rhodes, 6 Nev. 352; Love v. Rock- Banks, 10 Wall. 583; State v. Gorman, well, 1 Wis. 382; Bank v. Hamblet, 75 Mo. 370; State v.' Williams, 77 Mo. 35 Me. 491; State v. Cooper, 3 Miss. 463; Pharr v. McHugh, 32 La. Ann. 615; Whited v. Governor, 6 Port. 335; 1280; Police Jury v. Haw, 2 La. Ann. McClure v. Commonwealth, 82 Pa. 41; Ins. Co. v. Findley, 59 Iowa, 591; St. 169; Hoke v. Hoke, 3 W. Va. 561; Drury v. Fay, 14 Pick. 326; Fogarty Shroyer v. Richmond, 16 Ohio St. 455; v. Ream, 100 111. 366; Cawley v. Cutler v. Di.von. 8 Pick. 386; Switzer People,95 111. 249; Rinkstaff v. People, v. Hay, 2 Gray, 49; Kavannagh v. 59 111. 148; Meyer v. Wiltshire, 92 111. Sunders, 8 Me. 442; Stebbinsv. Smith, 395; West v. Thompson, 49 Mo. 188; 4 Pick. 97; Parker v. Campbell, 21 School Directors v. Brown, 33 La. Tex. 763; Albee v. People, 22 111. 533; Ann. 383; Brown v. Grover, 6 Bush, Lucas V. Shepherd, 16 Ind. 368; 1; Price v. Kennedy, 16 La. Ann. 78. Hoboken v. Harrison, 30 K J. L. 73; ^ Norris v. State, 22 Ark. 524; State McWhorter V. McGehee, 1 Stew. 548; v. Swigart.32 Ark. 528 ; Edward v. Burnett v. Henderson, 21 Tex. 588; State, 22 Ark. 303; Badgett v. Martin, Longacre v. State, 3 Miss. 37; Marshall 12 Ark. 730; Brown v. Grover, 6 Bush, V. Hamilton, 41 Miss. 229; Boon Co. v. 1; Shaw v. Haveklupt, 21 111. 127. Vol. I.— 49 770 The Law of Estoppel. court did not order it made.' The sureties in an official bond are estopped to deny the official character of their principal. And Upon a suit brought upon the bond, a tax collector and his sure- ties are estopped to deny his official character therein recited.^ § G32. When the principal and surety bind themselves jointly and severally on a bond, although there is no express adipission on the face of the instrument that all are principals, the surety is estopped in an action at law to deny that he is principal. The same rule applies in equity unless it is shown that there was fraud or mistake.^ The recital in an official bond estops the obli- gor from denying it, and it is not necessary to produce the com- mission of the officer or a copy thereof. In an action upon* a prison-bounds bond the defendant is estopped to deny the exist- ence of such a judgment as that recited, and the plaintitf need not produce the judgement record.' Where a bond is. given by A. at the request of 13., and this fact is expressly recited in their bond, A. cannot question its validity ; he is estopped by his bond, and where parties bind themselves as principals, they are estopped from denying facts which they have solemnly admitted under their seal. Where the owner has a ship, which has been attached, delivered up to him npon an appraisement, and he gives a stipu- lation according to the course of admiralty proceedings to refund that value, together with damages, interests and costs, he is not at liberty to insist afterwards that the ship is of less value in his ' McClure v. Commonwealth, 82 Pa. dell v. Fleming, 8 Graj', 613; Mayor St. 167; Hoke v. Hoke, 3 W. Va. 501; v. Merritt, 27 La. Ann. 068; People v. Gray v Mills, 83 Ind. 126; Gray v. Jenkins, 17 Cal. 500; Byrne v. State. State, 78 Ind. 68; Hayden v. Smith, 50 Miss. 688, Haiben v. Bell, 54 Ala. 49 Conn. 84; Williamson v. Wood- 389; Jones v. Gallatin, 78 Ky. 491. man, 73 Me. 163; Gray v. State, 78 ^ Sprigg v. Bank, 10 Peters, 257; Ind. 68; S. C, 41 Am. Pep. 545; same case, 14 Pet. 201; S. C, 1 MeL. Harbin v. Bell, 54 Ala. 889; Daven- 178, 384. port V. Reynolds, 6 111. App. 532; * Bruce v. U. S., 17 How. 437. Sebastian v. Biyau, 21 Ark. 447. ^ Allen v. Magruder, 3 Cranch C. ^ Parker v. Campbell, 21 Tex. 763; C. R. 6; Allen v. Luckett, 3 J. J. Burnett v. Henderson, 21 Tex. 588; Marsh. 164; Keller v. Beckler, 4 J. J. Borden v. Houston, 2 Tex. 594; Fake Marsh. 445; Stockton v. Turner, 7 J. V. AVhipple, 39 Barb. 339; Great Bar- J. Marsh. 192; Taliafero v. Steel. 14 rington v. Austin, 8 Gray, 444; Wen- La. Ann. 656; State v. Kicol, 30 La Ann. 628. Recitals. 771 hands, or that he has discharged other liens diminishing the vahie, for which the owners were personally liable in solido in the first instance.' § 633. Sureties in an undertaking which purports to have been given upon an application to discharge an attachment, are estopped from denying recitals in the undertaking, which state that an attachment was issued, and that an application had been made for its discharge.* The same principle applies to injunt?- tion, supersedeas, stay and replevin bonds.^ Thus, a party signing a twelve months' bond is not permitted, when execution issues thereon, under Art. 720, C. P., to arrest the writ, on the ground that there was no seizure, advertisement and sale of the property in the case in which the bond was furnished, the bond recitine: that all the requirements of the law had been complied with. By signing the bond, such party has cured all the irregularities, if any existed.* So when a practising attorney tendered himself as a surety on the bond of client as special administrator, and he was accepted as such by the clerk of the court, he must perform the conditions of the bond, upon which he voluntarily entered as surety, notwithstanding statutory provisions or rules of court prohibiting an attorney from becoming sureties for their clients. He cannot take advantage of his own wrong, by withdrawing afterward. § 634. The sureties in an administration bond are estopped by a recital that their principal had been duly appointed, from denying that the fact was as averred,^ and also in a bond where '- The Virgin v. Vyfbius, 8 Pete^fs, 348; Jones v. Henry, 84 N. C. 320; 538; Sullivan v. Pierce, 10 Ark. 500. S. C, 37 Am. R. 634; Bank v. Fiesh- ^ Colemau v. Bean. 3 Keyes, 94; tt. man, 22 W. Va. 317; Gomilla v. Culli- C.,32 How. Pr. 370; People v. Mc- ford, 20 F. E. 734, Goodman v. Cumber, 27 Barb. 639; Pierce v. Litaker, 84 N. C. 8; S. C, 37 Am. R. Whiting, 63 Cal. 538. 602 * R. R. Co. V. Vanderworker, 19 ■* Bracey v. McGuire, 34 La. Ann. W. Va. 205; U. S. v. Hodson, 10 997; Wafer v. Wafer, 7 La. Ann. 542: Wall. 395; State v. Horner, 37 Md. Coons v. Graham, 12 Rob. (La.) 209; 569; Hardy V. Coe, 5 Gill, 189; Strange Jones v Frellsen, 'J Rob. (La.) 185.; V. State, 58 Md. 27; Keen v. Whit- Roberts v. Zansler, 34 La. Ann. 205. tington, 40 Md. 489; Gunther v. State, ' '" Cutler v. Dickinson, 8 Pick. 3S6; 31 Md. 21; Burgess v. Lloyd, 7 ^Id. Fogarty v. Ream, 100 111. 366; Stovali 179; Hamilton v. Hardesty, 32 Md. v. Banks, 10 Wall. 583; Mosely v_ 772 The Law of Estoppel. there was a recital that omo of the obligors was sheriff and tlie others were his deputies.' In like manner the obligor in a bond, conditioned for the performance of the covenants in an indenture, or the faithful discharge of the duties of an agent, will not be allowed to prove or allege that there is no such deed or agency as the condition avers.' In such cases the estoppel is equitable as well as legal, because it would be unjust to permit a person who has aided another to obtain access to a place by a pledge that he will behave himself properly when there, to point ont the reasons why he should not have been admitted, after it was too late to correct the error ; and while a recital couched in general terms or relating to past transactions, will not ordinarily operae as an estoppel, no st;itement can be contradicted which was meant to be a basis of a contract or conveyance, and is necessary to render it effectual.' § {5:'5. A recital orallegn-ion in a title, that A. had purchased out all the rights of his said son in said firm, estopped tlie com- plainant from questioning that fact.* If a vendor states under seal that he has " bargained, sold, and delivered " the property to the vendee, he is estopped in an action of trover brought by the vendee for the property, to deny the delivery. » A master of an apprentie-e is estopped by the recital in the indentures as to the age of the boy.' So where F. agreed to payM.'s vendors certain M^lainora, 78 111. 394; Brown v. Brinneg.ir v. Chaffiu, 3 Dev. 108; Grover, 6 Bush, 1 ; Chicairo v. Gage, Stiongliill v. Buck, 14 Q. B. 771; 95 111. 625; Franklin v. Derri(st,^13 Jackson v. Waldron, 13 Wend. 178; GiHtt. 257; Cawlcy v. People, 95 111. Aclicily v. Vernon, Wilies, 163; Lain- 249; Bruce v. U. S.. 17 How. 437; son v. Tremere, 1 A. & E. 793; Hosier Sbroycr v. Richmond, 16 Ohio St. v. Searle, 2 Bos. & P. 299; Doughty 455; Roper v. Lodge. 91 111. 518; v. Neale, 2 Keb. 471; Pain v. Shel- Norris v. State, 22 Ark. 524; Rinks- hoppe, All. 13; Hart v. Buckminster, tafi" V. People, 59 111. 148; Johnston All. 53; Willoughby v. Brooke, V. Smith, 25 Hun, 171; Ins. Co. v. Cro. Eliz. 756; Rainsford v. Smith, Findley, 59 Iowa, 591; White v. Dy. 196; Hill v. Waterworks, 2 B. & Weatherbee, 126 Mass. 450. A. 544; Horton v. Commrs. 7 E.xchq. ' Cox V. Thomas, 9 Graltau, 312; 780; Brown v. Roules, 21 Md. 11. Cecil V. Earl)% 10 Gratl. 198. * Armstrong v. Fahnestock, 19 Md. » Ins. Co. V. Colton, 26 Conn. 50; 58; Vincent v. Starks, 4 AVis. 458. Collins V. Mitchell, 5 Fla. 364; Egbert ^ Nevctt v. Berry, 5 Cranch C. C. V. Darr, 3 W. & S. 517. R. 291. ^Shelley v. Wright, 9 Wilies, 11; * McCutchin v. Jameson, 1 Crancb Young V. Raincock, 7 C. B. 310; C. C. R. 348. Recitals. 773 purchase money in consideration of M^hicli the title to the prop- erty should be vested in F., and held nntil repaid by M., in accordance with the contract made, after which F. was to convey to M. the recital of F/s contract vesting the title temporarily in him estopped hira from denying the rights of M.' A covenant expressed by way of recital is as obligatory as if expressed in the body of the agreement.* A party giving a receipt for property seized by an officer npon an execution or attachment, is estopped from setting up Against the officer that the property was his own, or that of any other person than the execution or attachment debtor ; nor can he show that the property was worth less than the debt, which in default of returning the property he covenanted to pay.' His liability to the officer is as broad as his covenant, and is absolute and dischargeable only by act of God or the public enemy. Bnt the obligation ceases to be binding as soon as the goods are surrendered, and leaves the obligor free to show who is the owner, in any subsequent proceeding.* So where a party gives a certificate of deposit for " cunent bank notes " he is estopped from showing that the funds were not current, or from claiming the right to pay in anything but the same character of fund.' § 636. It is not essential to the estoppel of instruments under seal that the admissions should be made in terms; it is sufficient if the intention of the parties is to place the existence of a fact beyond question or make it a basis of the contract if so clearly expressed, as to leave no room for doubt. Thus a condition in a bond that one of theobligors shall well and faithfully execaue his office, as collector, estops him from denying that he held the office or was bound to discharge the duties with fidelity, although the bond does not recite or allege that he was collector, and leaves that fact to be gathered by implication.* A recital in a will operates as an estoppel to parties claiming under it. Where the 1 Fessler's Appeal, 75 Pa. St. 488. v. Odell, 3 Hill, 215. "Beallev. Shoals, 1 A. K. Marsh. * Norris v. Norton, 19 Ark. 319; 475. Decherd v. Blanton, 3 Sneed, 373; 3 Cornell v. Dakin, 38 N. Y. 253; Sterling v. Arnold, 54 Ga. 690. People V. Reeder, 25 N. Y. 302; Dezell = Osgood v. McConncll, 32 111. 74. 6 Billingsl}^ V. State, 14 Md. 369. 774 The Law of Estoppel. defendant made a deed stating' that he had bargained, sold, and delvoered certain personal property to the plaintiff, he was held to be estopped from denying the delivery in an action of trover.' A receipt that declares, that this receipt shall be conclusive evi- dence against me, as to the receipt of property, its value and my liability under all circumstances to said officer, estops the receiptor from denying that the property was the debtor's, and the officer, in an action against him by the creditor for refusing to deliver the property attached, to be taken on execution, is estopped from setting up as a defense, that the property did not belong to the creditor but to the receiptor,' and is estopped from denying the value stated in the receipt.'' § 637. There is a distinction between the effect of a particu- lar and general recital. It is laid down^ that if the condition of the bond contain a generality to be done, the party shall not be estopped to say that there was not any such thing, as if the con- dition of a bond be to perform ; all agreements set down by A., the obligor may say that there was no agreement set down by A., for the condition is general, or if it be to carry away all the marl in a close, he may say there was no marl there. But in all cases where the condition of a bond has reference to a partic- ular thing, the obligor shall be estopped to say that there is no such thing. The reason of this rule seems to be the same as that heretofore laid down in reference to estoppels by matter of record, that is that an estoppel must be certain. § 638. A mere general recital cannot control the plain words of the granting part of a deed. Where a deed of assignment by a debtor, in trust for creditors, recited that the debtor was desir- ous to convey his property to secure three of his creditors named, in full, and the residue for the benefit of his other creditors, and in the body of the deed the assignment was expressed to be in trust to pay and satisfy those three creditors and three others named, and the surplus divided among his other creditors, it was ' Den v. Cornell, 3 John. Cas. 174. Center v. Bank, 22 Ala. 143. ' Nevett V. Berry, 5 Crauch C. C. » Brown v. Gleed, 33 Vt. 147; Boom 291; McWliorter v. McGehee, 1 Stew. Co. v. Wilkins, 27 Me. 345. 548; Crump v. Bennett, 2 Litt. 209; * Enscol v. Dunn, 44 Conn. 93. « 1 RoUe's Abridgment, Est. 873. Recitals. 775 held that the three creditors named in the recital were only enti- tled to be paid ratably with the other three creditors, in propor- tion to their demand, out of the proceeds of the property assigned. The general recital here was of an intention which was inconsistent with the plain language of the instrument, and could not control the latter.' A joint or joint and several obligor may aver that he is, in point of fact, a surety, and set up any act of the creditor tending to impair the right of recourse for indem- nity against the principal as a defense to an action for the recov- ery of the debt, for the reason that a plea of this kind does not consist in a denial of the terms of the contract, but in showine: the existence of certain collateral relations between the parties which the creditor has impliedly sanctioned, and is therefore bound to preserve uninjured.'' This is especially applicable in equity when the language of an obligor is so clear as to leave no doubt that the obligors intended to be or were meant to be pri- marily liable, the ceal estops any contrary allegation, and a surety who binds himself expressly as principal, and not as surety, is estopped at law, and will be precluded in equity from denying that his true character is in accordance with the tei'ms of the instrument." § 639. In the absence of any contract as to novelty or useful- ness or value of any invention, the recital in the letters patent granted by the United States, that it is a new and useful inven- tion, is conclusive in State courts.* An agreement made with a patentee to manufacture his machines under his patent upon certain conditions mentioned .therein, and making and selling such machines under the patentee's title, estops the manufacturer from alleging the invalidity of the patent as a defense to an action by 'the patentee for an account under the contract.^ • Huntington v. Havens, 5 John. Iowa, 17. Ch. 23. 3 Sprigg v. Bank, 14 Pet. 207. "Harris v, Brooli, 21 Pick. 195; * Elmer v. Ponnoll, 40 Me. 430; Ball Stone V. Cnmpton, 3 M. & W. 583; v. Murray, 10 Pa. St. 113; Cowan v. Bank v. Lcavitt, 5 Ohio St. 17; Stone Mitchell, 11 Heisk. 87. V. Compton, 5 Bing. N. C. 142; Bank ^ Kiugsman v. Parkhurst, 18 How. V. Rathbone, 26 Vt. 19; Bell v. Banks, 289; Cutler v. Bower, 11 Q. B. 973; 3 Scott N. R. 503; Bank v. Hoge, 6 Hills v. Lanning, 9 Exchq. 256; Sharp 776 The Law of Estoppel. Against a carrier issuing a bill of lading, recitals therein arc con- clusive, and he is estopped to deny theui to one making advances in faith thereof, where he has actually received the property.' V. Taylor, 2 Phill. Ch. 801 ; Tenant V. mer, 19 F. R. 322; Underwood v. Elliott, 1 B. & P. 3; Faulks v. Kamp, Warren, 21 F. R. 593; Hyatt v. In 17 Blatchf. 432; Evory v. Candee, 17 galls, 49 N. Y. Super. 375. Blatchf. 200; Telegraf Co. v. Him- ' Bank v. R. R., 30 Kans. 519. Title by Estoppel. 777 CHAPTEE X. TITLE BY ESTOPPEL. OF THE RULE THAT THE INTEREST WHEN IT ACCRUES FEEDS THE ESTOPPEL. AFTER ACQUIRED TITLE INURES TO THE BENEFIT OF THE GRANTEE. EXCEPTIONS TO THIS RULE. Section 640. The ordinary effect of an estoppel is confined to precluding parties from contradicting the recital or admission on which the estoppel is founded, and this is implied from the definition of the word. The most striking instances of an estop- pel by deed are where a party without any title to land under- takes to convey it, covenanting as to title, and afterwards acquires title to the same land by descent or purchase. In such cases, arising on the conveyance of land, it acquires a further and tran- scendent power which binds the estate and confers a title where none passed originally by operation of the deed. If a grantor's covenant is of warranty and entitles a covenantee to recover for its breach just as much of the covenantor as he, the covenantor, would recover of the tenants of the covenantee, if he prevailed by enforcing his claim to the land, the law to avoid circuity of action, permits the tenant to avail himself of this covenant to rebut the covenantor's claim upon the land, and prevents the grantor from setting up a claim to the estate by his after acquired title.' Perhaps a more proper mode of stating it would be, that the warranty of the grantor is as if a particular recital or aver- ment had been inserted in his deed, and he was thereby estopped from asserting its efficacy,* While an estoppel will not grow out » Kunally v. Wliite, 3 Met. (Ky.) 3 Pick. 52; Oakes v. Marcy 10 Pick. 589; Washburn on Real Property. 495; White v. Patten, 24 Pick. 324 2Jacksonv. Bradford, 4 Wend. 619; Blanchard v. Ellis, 1 Gray, 195 Dart V. Dart, 7 Conn. 256; Irvine v. Jackson v. Hubbell, 1 Cow. 613 Irvine, 9 Wall. G25; Mickles v.Town- Jackson v. Waldron, 13 Wend. 189 send, 18 N. Y. 577; Somes v. Skinner, Kimball v. Blaisdell, 5 K H. 535 778 The Law of Estoppel. of a recital unless it is direct and jjrecise, and manifests an inten- tion to render the fact set forth a part or basis of the conveyance or agreement. A recital that a grantor has a particular estate or owns the interest which the deed purports to convey, will not only estop him and his heirs from denying what he has thus averred, but will take elTect on an}' title to the land which he may subsequently acquire, and transfer it to the grantee.' If a vendor has no title at the date of his deed, but acquires a good title afterward, the title thus acquired inures to the beneiit of the first vendee by estoppel.'' So, where one conveys land with warranty, bat without title, and afterwards acquires one, his first deed works an estoppel, and passes an estate to the grantee, the instant the grantor acquires his title, not only against the grantor and those claiming undei* him, but also against strangers who Bogy V. Shoab, 13 Mo. 378; Wade v. Lindsay, 6 Met. 413; Cole v. Raymond, 9 Gray, 217; Rawle on Gov. for Title. ' French V. Spencer, 21 IIow. 228; Blanchard v. Ellis, 1 Gray, 198; Berry V. Kline, 12 Cusb. 18; Goodsou v. Beacham, 24 Ga. 150; O'Bannon v. Paremour, 24 Ga. 589; Chamberlain V. Meeder, 16 N. H. 381; King v. Gib- son, 33 111. 353; Kimball v. Schaff, 40 N. H. 190; Burton v. Reeds, 20 Ind. 93; McCusker v. McEvey, 9 R. L 528; Plimpton V. CVmverse, 42 Vt. 712; Doe V. Duwdall, 3 lloust. 369; Irvine v. Irvine, 9 Wall. 617; Bu-h v. Marshall, 6 How. 284; Ilenshaw v. Bissell. 18 Wall. 255; McCarthy v. Mann, 19 Wall. 20; Robertson v. Sharpton, 17 S. C. 592; Rccder v. Craig, 3McCord, 411; Camp v. Grider, 6S Cal. 20; Christy v. Dana, 42 Cal. 179; Kirkal- die v. Lariabee, 31 Cal. 445; Clark v. Baker, 14 Cal. 612: Locker v. Riley, SON. J. E. 101; Scuddy v. Shaffer, 10 La. An. 133; Myers v. Croft, 13 Wall. 291; Kuowles v. Kennedy, 82 Pa. St. 444: Wolf v. Goddard. 9 Watts, 547; Baxter v. Bradbury, 20 Me. 260; Brundred v. Walker, 12 2s. J. L. 140; Nixon v. Carco, 28 Mich. 414; Van Renssalaer v. Kearney, 11 How. 297; Walker v. Finley, 7 Jones, 22; Goodrich v. Bryant, 5 Sneed,325; Jackson v. Bull, 1 Johns, 81 ; Cun- ningham v. Pattee, 99 Mass. 248; Jack- son V. Murray, 12 Johns. 201; McGee v. Eustis, 5 S. & P. 420; Brown v. McCormick, 6 Watts, 60; Reiiler v. Craig, 3 McCord, 411; Plielps v. Kel- logg, 15 111. 131; Robertson v. Robert- son, 9 Watts, 22; Griffith v. Huston, 7 J. J. Marsh. 385; Jackson v. Stevens, 16 Johns. 110: Dobbins v. Cruger, 108 III. 188; Hannah v. Collins, 94 Ind. 201; Karnes v. Wingate, 94 Ind. 594; Smith v. Slieely, 12 Wall. 338. - Jackson v. j\[atsdorf, 11 Jolins. 91; Somes V. Skinner, 3 Pick. 52; Terrett V. Taylor, 9 Cranch, 43; Wark v. Willard, 13 ]S. II. 389; Comstock v. Smith, 13 Pick. 110; White v. Patten, 24 Pick. 324; Trull v. Eastman, 3 Met. 121; Allen v. Parish, 3 Ohio, 107; Bond V. Swearingen, 1 Ohio,19U; Lowry v. Williams, 13 Me. 281 ; .lack- son V. Wright, 13 Johns. 193; Jack- man v. Hoffman, 9 Cow. 271; Baxter V. Bradbury, 20 Me. 269; Warburton Title by Estoppel. 779 came in after the deed creating the estoppel.* Where the grantor bj deed of warranty had a title which, at the time of the con- veyance, was defective, but afterwards acquired an indefeasible title, this title inured immediately to the grantee, and the latter could not elect to reject it and recover the consideration money paid, in an action for breach of covenant of seisin. § 641. There were two classes of cases in which an estate actually passed by estoppel under the old civil law. The first was where the mode of assurance was a feoffment, a fine or a V. Mattox, 1 Morr. (Iowa) 367; Hitch- cock v. Fortier, 65 111. 239; Corcoran V. Brown, 3 Cranch C C. R. 143; Bush V. Marshall, 6 How. 284; Barr V. Gratz, 4 Wheat. 213. This doctrine Avas applied to the sale of a Patent Right.Faulks v.Kemp.lT Bhitcbf. 432. ' Dudley v. Caldwell, 19Coim. 218; Dugan V. Follett, 100 111. 581 ; White V. Butler, 13 111. 109; Knight v.Thair, 123 Mass. 25; Emory v. Fries, 104 111. 416; Loan Co. v. King, 58 Iowa, 598; Holbrook v. Debo, 99 111. 372; Powers V. Patten, 71 ^fe. 583; Scuddy V. Shaffer, 10 La. An. 133; Clark v. Baker, 14 Cal. 630; Meyers v. Croft, 13 WaW. 291 ; Locke v. Riley, 30 N.J. E. 104; Foulks v. Kamp, 17 Blatch. 432; Camp v. Krider, 62 Cal. 20; Chrjsty v. Dana, 42 Cal. 179; Kirkal- die V. Lai-rabee, 31 Cal. 445. Reeder V. Craig, 3 McCord, 411; Robertson v. Shafton, 17 S. C. 592; Elder v. Deiby, 98 111. 228; Smith v. Williams, 44 Mich. 240; Bell v. Adams, 81 N. C. 118; Bayley v. McCoy, 8 Oregon, 259; McCarty v. Ry. Co., 31 Minn. 278; Jarvis v. Aiken, 25 Vt. 635: Bush v. Marshall, 6 How. 284; Witzel v. Pierce, 22Ga. 112; Dickerson v. Talbot, 14 B. Mon. 60; Mayo v. Lewis, 4 Tex. 38; Zants v. Courcielle, 16 La. An. 96; Lowry v. Williams, 13 Me. 281; Jaruegan v. Mears, 1 Humph. 473: DeWolf V. Hayden, 24 111. 525; ,Cora- stock, V. Smith, 13 Pick. 176; Allen V. Parish, 3 Ohio, 107; Washabaugh V. Entriken, 34 Pa. St. 74; Bush v. Cooper, 26 Miss. 599; Jewell v. Por- ter, 31 N. H. 34; Kellogg v. Wood, 4 Paige, 578; Brundred v. Walker, 12 N. J. E. 140; Hassell v. Walker, 3 Jones L. 270; Warburton v. Mattox, 1 Mor. (Iowa) 367; House v. McCor- mick, 57 N. Y. 310; Tefft v. Munson, 67 N. Y. 97; Churchill v. Terrel, 1 Bush, 54; Corcoran v. Brown, 3 Cranch C. C. 143 ; Lindsay v. Ramsey, 22 Ga. 627; Bush v. Marshall, 6 How. 284; Henderson v. Hackney, 22 Ga. 383; Goodsonv. Beacham, 24Ga.l50; O'Bannon v. Paremour, 24 Ga. 489; Goochcnour v. Mowry, 33 111. 331; Wright V. Rutgers, 14 Mo. 585; Nixon V. Carco, 28 Miss. 414; Clark v. Slaughter, 34 Miss. 65; Morrison v. Underwood. 20 N. H. 369; Gough v. Bell, 21 N. J. L. 156; Ward v. Price, 12 N. J. Eq. 543; Moore v. Rake, 26 N. J. L. 574; Ross v. Adams, 28 N. J. L. 160; Berrick V. Bowman, 3 Jones Eq. 314; Miller V. Bagwell, 3 McCord, 429; Mc Williams v. Nisely, 2 S. & R. 507; White v. Patten, 24 Pick. 324; Thompson V. Thompson, 19 Me. 235; French v. Spencer, 21 How. 228; Wolf V. Goddard, 9 Watts, 547; Bax- ter V. Bradbury, 20 Me. 260; Knowels V. Kennedy, 82 Pa. St. 444; Locker V. Riley, 30 N. J. E. 104; Lewis v. Baird, 3 McLean, 56; Brad well v. Phillips, 30 Ohio St. 253. 780 The Law of Estoppel. comtiion recovery. Such was their solemnity and high cliai'actcr, that they always passed an actual estate, and divested the feoffor or conusor not only of what he then had, but of every estate which he miglit thereafter, b}' any possibility acquire.' And this principle has been applied in modern times.'' The second class of assurances which passed an after acquired estate by way of estoppel, were leases, which, it will be remembered, were sus- ceptil)le of taking effect inftuturo', and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties ; the same contract which implied a covenant for quiet enjoyment from the w ox A demise ow the part of the lessor, and a covenant for payment of the rent from the words yi'eZi/m^ and j!?ay«;?^ on the part of the lessee.' These modes of assurance seem to have been the only ones by which an after acquired title was actually passed by direct opera- tion of law under the doctrine of estoppel. Thus, a grant or a lease had not this effect. They only operated upon the estate which the grantor or releasor actually had, " and therefore if a man grant or rent a charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the manor, yet he shall hold it discharged,"* and this applied equally to a release. No other forms of conveyance, in the absence of covenants of warranty, had any effect in transferring the title subsequently acquired. In this country no greater effect is given to a grant or a conveyance by bargain and sale, or lease or release, unaccompanied with covenants of warranty, than in England under the statute of uses. They pass only the estates which are vested in interest at the time, and do not bind or transfer, by way of estoppel, future or contingent estates.^ § 642. Where it distinctly appears, in a conveyance, either by 1 Shepard's Touch, 204, 210; Co. Lower, Pollexfen, 54; Smith v. Low, Lit. 9 a, 49 a; Plowden, 428. 1 Atk. 490; Trevivan v. Luwrenco, 1 - Doc V. Ohver. 5 Mann. & Ryl. Salk. 276; Wells v. Austin, 7 Miuin. 202; S. C, 10 Barn. & Cress. 182; & G. 701; McKenzic v. Lexington, 4 Uelps V. Hereford, 2 Barn. & Aid. Dana, 129. 242; Doe v. Jones, 1 Crom. ic J. 528; < Perkins, tit. "Grant, "^65; Wivcl's Vick V. Edwards, 3 P. AVms. 371. Case, Hobart, 45; Touch. 240; Lam- =• Bac. Abr. tit. Leases, 290, 441 ; pet's Case, 10 Coke, 48. Rawlyn's Case, 4 Coke, 53; Weale v. ' Kennedy v. Skeer, 3 Watts, 597. Title by Estoppel. 781 a recital, an admission, a covenant, or otherwise, that tlie parties actually intend to convey and receive, reciprocally, a certain estate, they are estopped from denying the operation of the deed, according to its intent.' § 643. There was then an ordinary and an extraordinary effect attached to an estoppel. The one was personal in its char- acter, like the rebutter in a warranty, and estopped the grantor and his heirs from doing or alleging anything contrary to the tenor and effect of his sealed instrument. The other, besides this quality, possessed the high function of actually transferring every estate, present or future, vested or contingent, to the feof- fee, oonusee, or lessee, according as the mode of assurance em- ployed M^as a feoffment, a line, or a lease ; and this effect was peculiar to them alone, there being no authority in any of the English books to show that it was produced by any other species of conveyance.* § 644. An estoppel can hardly be regarded as a distinct mode of acquiring real estate, because it is not by itself a transfer or assurance, but depends as a secondary incident iipon other direct alienations, while it gives to them a peculiar and distinctive operation. § 645. The rule that there can be no estoppel where an inter- est passes is peculiarly applicable, and in fact derives its operation from estoppel by deed. Thus, while a lessee is estopped from showing that his lessor had no title to the premises demised, yet he may show that he was entitled to a particular estate which has expired. Whether an after acquired interest will pass by the ' Goodtitle v. Bailey, Cowper, 559; Caskey, 3 N. J. E. 446; Fitzhugh v. Doe V. Errington, 8 Scott, 210; Bow- Tyler, 9 B. Mon. 559; Williams v. man V. Taylor, 2 Adolph & Ellis, 278; Claiborne, 1 Sm. & Mar. Cli. 365; Carver v. Astor, 4 Peters, 86; Van Rountree v. Jacob, 2 Taunt. 141; Rensselaer v. Kearney, 11 How. 297; Harding v. Ambler, 3 M. & W. 279; Smith V. Pennell, 19 Conn. Ill; Mc- Nosier v. Neilson, 18 Iowa, 212; Jones Barney v. Cutler, 18 Barbour, 203; v. Williams, 2 Stark. 52; Clark v. Root V. Crook, 7 Pa. St. 380; Kins- Baker, 14 Cal. 627; Gibson v. Choteau, man v. Loomis, 11 Ohio, 478; Williams 39 Mo. 536; French v. Spencer, 20 V. Society, 1 Ohio St. 478 ; Den v. How. 240; Gould v. West, 32 Tex. Brewer, IN. J. L. 172; Decker v. 338; Bayley v. McCoy, 8 Oreg. 259. ' Doe V. Oliver, 10 Barn. & Cr. 181. 782 The Law ob^ Estoppel. estoppel of a prior conveyance, depends upon tlie meaning of the deed as manifested by its language; and when the intention is to convey the land and not merely the title which the grantor has at the time, an estoppel arises and renders it effectual ; whether the object in view appears from the covenants or recitals in the deed will make no difference i{ it is disclosed with suffi- cient clearness, and an allegation that the grantor has or agrees to convey a good and sufficient title will be equally effectual with an agreement to warrant or protect the right or enjoyment of the grantee. § 646. The effect of a deed depends on its meaning, as col- lected from its language, and whether its operation should be limited to the interest which the grantor has at the time, or extends to that which he may subsequently acquire, will depend on all the recitals and stipulations which it contains, rather than on the effect of any particular clause in the words of grant by which the title is passed or the covenants by which it is assured and fortified. Therefore, any covenant, which like that of further assurance or quiet enjoyment, indicates that the intention of the grantor was to convey the land absolutely, and not merely such title as the grantor had, is as effectual as an absolute warranty in binding an after acquired interest in equity (in Enghand) and in (this country) at law, while the limitation of a covenant of war- ranty or for title may not only restrict its own operation, but afford ground for an inference that the operation of the deed is equall}' limited ; yet the purpose of the parties may have been that the grant should extend to future as well as present estates or interest, without luakingr the grantor answerable for the ijood- 7 c> ness of the title convej'ed at the time. When such intention is apparent it should be carried into effect without regard to the manner chosen for its expression. § 647. Whenever the terms of the deed or the covenants which it contains clearl}- show that it was meant to convey an absolute and indefeasiljle title, and not merely that which the grantor had at the time, it will bind or pass every estate or inter- est which may vest in him subsequently to its execution, whether the warranty it contains be general or special, and although it Title by Estoppel. 783 coDtains no warranty whatever.' If the seisin or possession of a particular estate is affirmed in the' deed either in express terms or by necessary iniplication, the grantor and all persons in privaty with him are estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after acquired title as between parties and privies. By statute, in many states, conveyances under the statute of uses, where a fee simple abso- lute is conveyed in land, of which the grantor has no legal estate at the time of making such conveyance, and the grantor subse- quently acquires title to the same, the estate so acquired passes at once to the original grantee, creating in him a valid title and estate. And this applies to cases of mortgage estopping the mortgagor and his privies from setting up against his own mort- gagee an after acquired title to the estate/ and also applies where the party is obtaining title under the homestead laws of the United States. § 648. Some forms of conveyance operate as an estoppel against those who make them, from their very nature, as in the case of a feoffment. Others, as a simple release, liave no effect beyond passing or extinguishing whatever interest the releasor lias at the time. Others operate by way of. estoppel, by reason of the covenants as to title they contain. A partj' to a deed is estopped to deny anything stated in the deed which has operated upon the other party as the inducement to accept and act under such deed, and this extends to facts stated in other deeds referred to directly, or by way of recital. Thus, a feoffment, by a person who is not the owner of lands, passes of necessity a fee by wrong 'Fairbanks v. Williamson. 7 Mc. Christy v. Dana, 42 Cal,, 179; Kirkaldie 96; White v. Erskine, 10 Me. 360; v. Larrabee. 31 Cal. 445; Elder v. Trull V. Eastman, 3 Met. 121; Bean V. Derby, 98 111.228; Boone v. Aim- Welsh, 17 Ala. 722; Wightraan v. strong, 87 Ind. 168: Tliompson v. Reynnlds, 24 Miss. 689. Justice, 88 IST. C. 269; Goodwin v. ^ Clark V. Baker, 14 Cal. 612; Van Keney, 49 Conn. 282; Jones v. Reese, liensselaer v. Kearney, 11 How. 322; 65 Ala. 134; Blakeslee v. Ins. Co., 57 Bogy V. Shoab, 13 Mo. 379; Cooke V. Ala. 205; Wright v. De Groff, 14 Brogan, 5 Ark. 699; Frink v. Darst. Mich. 164; Kelly v. Jenness, 50 14 111. 308; Morrison v. Wilson, 30 Me. 455; Somes v. Skinner, 3 Pick. Cal. 847; Locker v. Kiley, 30 N. J. E. 52; Russ v. Alpaugh, 118 Mass. 369: 104; Camp v. G rider, 62 Cal. 20; Knight v. Thayer, 125 Mass. 25. 784 The Law of Estoppel. or disseisin. It binds the feofifer for life, by estoppel, so that he cannot claim the right, should it descend to him, against his own feoffee. lie cannot purchase the fee, since his feoffment is a disseisin. But it is an estoppel only to him personally, and will not l)ind his heirs. Lord Coke says, there is a diversity between a feoffment and a warranty. A feoffnient is good against the feoffor, but not against his heirs ; a warranty is good against one and his heirs. As far as the heir claims as heir, he may be barred b}' force of the warranty as a rebutter, though not bound by the feoffment. Thus, if an heir apparent makes a feoffment in the life of his ancestor, of laud which afterwards descends to him, he is estopped to set up a title against his feoffee. § 649. A deed of simple release passes only such interest or estate as the releasor has at ilie time, and never operates by way of estoppel to convey any interest which he may afterwards acquire. In order to prevent maintenance and the multiplying of contentions, as stated by Lord Coke, it was an established maxim of the common law, that no ptMsibllit//, right, title, or any other thing that was not in possession or vested in I'ight, could be granted or assigned to strangers.' Thus a simple release by an heir apparent of liis chance of succession, though made by deed, will not bar his title when it accrues.' So one v;ho has a con- tingent remainder, an interest by way of executory devise, or a possibility like that of an heir apparent, even though he may not at common law make a grant of such an interest by deed so as to pass the same distinctly, may convey the estate out of which his interest is to arise, in such a manner that this will operate as an estoppel, and prevent his claiming such interest when it arises. Thus equity holds a contract of an expectant heir, who becomes heir def acta, binding on him, though equity does not extend this to his heir.' In order to woi"k an estoppel in such case©, there must be either a grant or release, with a general covenant of war- ranty, or an express affirmation in the grantor's deed of there > Co. Lit. 265 a, note, 212. 438; Pureff)y v. Rogers, 3 Saund. 388; « 1 Prest. Abst. 302; 2 Prest. Conv. Fitcli v. Fitch, 8 Piclc. 483; Stover v. 268. Eycleslieiraer, 46 Barb. 84; Wealc v, 3 2 Prest. Abst. 210; 2 Prest. Conv. Lower, Pollexf. 54 ; Ilarailtou v. 268, 271 ; Hayne v. Maltby, 3 T. R. Clement, 17 Ala. 201. Title by Estoppel. 7So being an estate such as he assumes to convey.* The deed of an heir apparent, conveying the estate out of which his interest is to arise, will operate by way of estoppel against him, but not as against his heirs, against whom there is no covenant of warranty.^ The estoppel of a conveyance is founded on the intention which it manifests to convey, and arises whenever the instrument, taken as a whole,' shows that the agreement was that the grantee should have a good title and not merely that which the grantor had when the deed was executed. A covenant that any title that might afterwards be acquired by the grantor, should inure to the benefit of the covenantee, was held to bind and pass a subsequent estate immediately upon its acquisition by the grantor, not only as between the parties, but as against all the world. § 650. Where one makes a deed of land covenanting that he is the owner, and subsequently acquires an outstanding and adverse title his new acquisition inures to the grantee on the principle of estoppel, and where a person buys land and pays for it, and there is a deed made subsequently to the grantee in con- sequence of his purchase, it does not confer a new title on him but confirnjs the right which he had before the deed was made,* so one who conveys without title is estopped from claiming it, if he afterwards acquire it. So where one received the legal title of land for the benefit of certain creditors of the owner thereof, he cannot afterwards set up any title which would affect the trust. ^ A patent is necessary in order to pass a perfect and con- summate legal title to public lands. But when granttid it inures to any one to whom the patentee is bound to convej'^ the land or for whose use he ought to hold it.'' A man gave a deed of bar- gain and sale without covenants, but reciting that at its date he ' White V. Patten, 24 Pick. 324; Shotwell v. Harrison. 22 Midi. 410; Wight V. Shaw, 5 Cush. 56; Wiesner C4uy v. Heermauce, 5 Cal. 73; Wright V. Zaun, 39 ^\is. 188. v. Rutgers, 14 Mo. 585; Wailerston v. ^ Bohon V. Bohon, 78 Ky. 408. Bennett, 18 La. An. 250; Kline v. 3 Phillips V. Kellogg, 15 111. 131. Argenbright, 26 Iowa, 493; Witzel v. * Irvine v. Irvine, 9 Wallace, 617; Pierce, 22 Ga. 112; Patrick v. Chen Burtuers v. Kean, 24 Gratt. 48; Drake ault, 6 B. Mon. 315; Burdick v. Went V. Root, 2 Col. T. 685. worth, 42 Iowa, 440; Green v. Liter. " Paul V. Oliphant, 14 Pa. St. 842. 8 Cranch, 229; Lindsay v. Miller, 6 « Johnson v. Collins, 12 Ala. 322; Peters, 677. Vol. L— 50 780 The Latv of Estoppel. had entered the huid as described in a certain certificate of pur- yhase. He afterwards obtained a patent. Held: that the recitals ju tlie deed and patent were evidence as against all the world that conveyance had been made before the patent issued.' Any title subsequently acquired by the grantor who conveys by war- ranty, will inure to the benefit of the grantee. But grants made by the grantor on- conditions or limitations, or cstop}>els subse- quently attempted to be annexed to the estate, will not affect his grantee.^ § 651. If the vendor in a conveyance of land has no title at the date of^ the deed, but acquires a good title afterwards, the title thus acquired inures to the benefit of the first vendee against a subsequent vendee, who claims by a deed made after the title accrued to the vendor, and the vendor and all who claim under him are estopped by his first deed to deny that tlie vendor had title at the date of the deed,' Thus, where a patent issued to the original beneficiary under a bounty or homestead act, who had previously sold and assigned his right, it inures to the benefit of the purchaser, and relates back to the date of the entry. The heir of the grantor, the beneficiary, is estopped from setting up a legal title under the patent. As between the owners of a prior equitable title derived from the governn)ent and another who has acquired from the same source a subsequent legal title for value and without notice, the latter will be preferred." A pur- chaser from a patentee for a valuable consideration^ without actual notice of a prior entry of the same land, will be protected in equity, though the patentee's survey was not founded on an entry.* 1 Fisher v. Hallock, 50 Mich. 463. J. E. 495; Jackson v. Hnbbell, 1 Cow. s Pope V. Henry, 24 Vt. 560. 613; Jackson v. Winslow, 9 Cow. 18; 3 Corcoran v. Brown, 3 Cranch C. Jackson v. Bradford, 4 Wend. 6"22; C. R. 143; Bell V. Twilight, 26 N. H. Jackson v. Waldron, 13 Wend. 178; 401; Bennett v. Waller, 23 111. 182; Kinsman v. Loomi.s, 11 Obio, 475; Bhinchard v. Brooks, 12 Pick. 47; Mitchell v. AVoodson, 37 Miss. 578; Bond V. Swearingeu, 1 Ohio, 395; Pclletrau v. Jackson, 11 Wend. 119; Cadiz V. Majors, 33 Cal. 288; Dart v. Quivey v. Baker, 87 Cal. 288; Taft v. Dart, 7 Conn. 256; Doswell v. Buch- Stevens, 3 Gray, 504. anan, 3 Leigh, 865; Edwards v. Yar- < Lindley v. Haws, 2 Blackf. 554; ick, 5 Denio, 665; Varick v. Edwards, Brush v. Ware, 15 Pet. 109; Brown v. 11 Paige, 290; Fox v. Widgery, 4 Chiles, 10 Pet. 177. Me. 218; Howe v. Harrington. 18 N. ^ Dei.xel v. King, 7 Leigh, 393, Title by Estoppel. 787 If a person sells land, or an interest of land, and takes pay for it, and covenants for the title, while he has no title, and none actually passes, his covenant runs with the land, and estops him whenever he acquires title.' Thus where a man demised land, in which he had nothing by indenture, the lease was destitute of effect at the time, as it regarded third persons, and only valid between the parties because they were estopped from showing the truth ; but Avhen a term of twenty-one years subsequently vested in the lessor, the estoppel bound the interest thus acquired and rendered the title of the lessee good against all the world.' § 652. In addition to the more usual effect of an estoppel in precluding the right to show that the deed did not pass the estate, there arose another by which the estate was passed in conformity to the deed. In Doe y. Oliver,^ where it had been contended that as the conusor had no vested estate when the fine was levied, it only concluded the parties and privies, and did not bind the defendant who claimed as a stranger, the court held that the estate which subsequently accrued fed the estoppel and passed by the operation of the fine. Nothing which is not possessed can be granted, but may yield to the force of an estoppel, a deed which purports to convey land absolutely and without qualifica- tion, will not only estop the grantor from recovering in opposition to the grant, but transfers any estate or interest which he may subsequently acquire, whether it does or does not contain a cov- enant of warranty, or for quiet enjoyment, or a recital that he has good title to the premises conveyed.* § 653. The old rule of law was : where one, by a deed of bar- gain and sale, or lease and release, conveyed, to which he had no title, he was estopped by his deed from claiming an after acquired title in it.^ But this rule has been repeatedly set aside, ' Frencli v. Spencer, 21 Howard, 383; Browu v. McCormick, 6 Watts, 228; Knight v. Leaiy, 54 Wis. 459; 60; McCall v. Coover, 4 W. & S. 151; Fletcher "v. Coleman, 2 Head, 384; Root v. Cook, 7 Pa. St. 380; Nixoa Allen V. Parish. 3 Ohio, 107. v. Carco, 28 Miss. 414; Maj^s v. Lewis, ' Rav;lin's Case, 4 Coke, 52. 4 Tex. 38; Reader v. Craig, 3McCord, 3 3 M. & R. 202. 411. 4 Henderson v. Hackney, 23 Ga. * Jackson v. Bull, 1 John. Cases, 81. 788 The Law of Estoppel. and the law at the present time is, that where one conveys land to wiiich he has no title by deed of bargain and sale, icithout a covenant of ivarranty, a subscqncntly acquired title will not inure to the benetit of the bargainee, even as against the bargainor and his heirs.' ^ C54. But, while a conversance b}' deed works no estoppel that can bind future estates or even conclude the grantor or those claiming under him from recovering in opposition to the grant, a diflferent result follows and is caused by the presence in the deed of a covenant of warranty. The estoppel of a conveyance depends wholly on the presence or absence of the warranty. A warranty creates an estoppel which not only binds the grantor but takes effect on every subsequent interest which he acquires, and transfers it immediately to the grantee.' But when the cov- ' SpaiTOWv. Kingman, 1 N. Y. 247; Comstock V. Smilli, 13 Pick. IIG; Ham V. Ham, 14 Elaine, o.jl : Frinli V. Darst, 14111. 304; Tillotsou v. Ken- nedy, 5 Ala. 413. * Knowles v. Kennedy, 82 Pa. St. 444; Broadwell v. Pliillips, CO Ohio St. 20.5; Douglass v. ScoLt, 5 Oliio, 104; Baker v. Morris, l.j Oliio, 108; Doswell V. Buciiauan, 7 Lfigli, 370; College V. Cheney, 1 Vt. 586; Blake V. Tucker, 12 Vt. 39; Boston v. Spar- bawk, o^Nlet. 469; Mas.^ie v. Sebastian, 4 Bibb, 436 ; Logan v. Steele, 4 Mon. 463; Logan v. Mo^re, 7 Dana, 76; Pliilly V. Sanders, 11 Ohio S. 490; Diekerson v. Talbot, 14 B. Mon. 60; Rigg V. Cook, 9 111. 348; Robertson v. Gaines, 2 Humph. 383; Kennedy v. IMcCartner, 6 Ind. 159; Jackson v. Hubbell, 1 Cow. 61^; Jackson v. "NVinslow, 9 Cow. 18; Jackson v. Brad- ford, 4 Wend. 522; Jackson v. Wal- dron, 13 Wend. 178; Pelletrau v. .Jack- son, 13 Wend. 719; Kellogg v. Wood, 4 Paige. 478; Bank v. ^Merserau, 3 Barb. Ch. 528; Funk v. Newcomer, 10 Md. 301; Packard v. Ins. Co., 2 Gray, 334; Skinner v. Staiuer, 24 Pa. St. 123; Washabaugh v. Entrikeu, 34 Pa. St. 74; Bush V. Marshall, 6 How. 291; Iloyt V. Dimon, 5 Conn. 479; Dart v. Dart, 7 Conn. 260; Fox v. Widgerey, 4 Me. 214; Laury v. Williams, 13 Me. 282; Ham v. Ham, 14 Me. 354; Pike V. Galvin, 21 Me. 185; Kemble v. Blaisdell, 5 N. H. 535; Farrington v. Underwood, 20 N. H. 369; Kimball v. Schoff, 40 N. H. 196; Roberts v. Wil- son, 38 N. H. 48; Hayues v. Taylor, 41 N. H. 521 ; Ross v. Adams, 28 N. J. L. 160; Hassell v. Walker, 5 Jones, 314; Wade v. Lindsay. 5 Pick. 413 ; Gongb v. Bell, 21 N. J. L. 165 ; 3Ioorc v. Rake, 26 N. J. L. 574 ; Brundrcd v. Walker, 12 N. J. E. 140; Jackson v. Stevens, 13 Johns. 316; Browu v. McCoruiick, 6 Watts, 60; Jackson v. Matsdorf, 11 Johns. 91 ; Somes v. Skinner, 3 Pick. 32; Terrett v. Taylor, 9 Cranch, 43; Wark V. Willard, 13 N. H. 389; Com- stock V. Smith, 13 Pick. 116; Trull v. Eastman, 3 Met. 121; Whiter. Patten, 24 Pick. 324; Allen v. Parish. 3 Ohio. 107; Bondv. Swearinger, 1 Ohio, 190; Jackson v. Hoffman, 9 Cow. 271; Jackson v. Wright, 14 Johns. 193; TiTjLE BY Estoppel. 789 enant of warranty is extinguished, the after acquired title does not pass by estoppel. As for example, B. conveyed land to C. with full covenants ; C. ceded it to the United States under a treaty. The administrator of C.'s estate afterwards conve^^ed it to G. The United States by patent conveyed it to B. again. Held, that B.'s covenants to C. were extingui^-hed, and could not be set up as an estoppel against B. by G., nor did B.'s subsequently acquired title inure to G.' § 655. It has been decided in Maine that a covenant of non- claim, viz.: a covenant that neither the grantor nor any other person shall or will have, claim or demand any right or title to the premises, is not such a covenant as will support an action against the party making it, and hence, that it will create no estoppel.'' Such a construction given to this covenant has not, however, been elsewhere adopted, it being generally considered as synonymous with a covenant of warranty.^ The general rule may be thus stated : Where a party executes a mere quit-claim deed of such interest as he then has in a tract of land, without any cove- nants whatever, a title subsequently acquiied by him will not inure to his grantee or assigns. But where he makes a quit-claim deed for land, and covenants that neither he. his heirs, nor any other person for them, in their name and behalf, shall thereaft-r claim or demand any right or title to the premises, or any part thereof, but they and every one of them shall thereby be excluded and forever debarred, a subsequently ;icqui;-ed tite by the grantor will pass to his grantee or assigns by way of estoppel. As a gen- eral rule there is no distinction between a covenant of non-claim and the ordinary covenant of warran^y, but both are in general Baxter v. Bradbury. 20 Mc. 260- v. Underwood, 20 N. H. 369; Wies- Blanehaid v. Ellis, 1 Gray, 198; Clark ner v. Zaun, 39 Wis. 188; Taggart v. V. Baker, 14 Cal. 630; Van Renss-laer Risley, 3 Oreg. 306; House v. Mc- V, •Kearney, 11 How. 322; Perry v. Cormitk, o7 N. Y. 310; Wilson v. Kline, 12 Cush. 118; Goodson v. King, 23 N. J. Eq. 1.50; Gough v. Beacbam, 24 Ga. 150; O'Banuon v. Bell, 21 K J. Eq. 164; Churchill v. Paramour, 24 Ga. 489; Chamberlain v. Terrell, 1 Bush, 54. Meeder, 16 N. H. 381; King v. Gil ' Goodrl v. Bennett, 22 Wis. 565. son, 32 111. 353; Burton v. Reeds, 20 ^ pike v. Galvin, 29 Me. 183; Loomis Ind. 93; Mays v. Lewis, 4 Tex. 38; v. Pingree, 43 Me. 314. Jewell V. Foster, 81 N. H. 34; Fields =• Trull v. Eastman, 3 Met. 121; Mil- V. Willingham, 49 Ga. 344; Morrison lir v. Ewing, 6 Cush. 34. 790 The Law of Estoppel. held to liave the same operation by way of estoppel, and both , will run with the land.' And where a part}', having the equi- table title to lands, and being entirled to the legal title, conveys the same by quit-claim deed, and subsequently acquires the legal title, it will inure to his grantee,^ and in accordance with this princii)lc it was held. Where a purchaser of knd at a sheriff's sale under execution, conveys the land, even by quit-claim deed, after he is entitled to a deed from the sheriff, but before its exe- . cution, a deed executed by the sheriff subsequently to such conveyance by the purchaser will have relation back to and take effeet from the time the purchaser was entitled to receive it, there being no rights of third persons to be injuriously affected thereby ; so the grantee under the deed from the execution pur- chaser would take the same title he would if the sheriff's deed had been made prior to such conveyance.' But in a late case in Maine* it was said, that under a deed by husband and wife of the wife's land, Avith covenants of warranty by both, a title after- wards acquired by the husband inures to the grantee as against the grantor and all persons who hold under the grantor's deed ^iven after the subsequent title is acquired. Such after acquired title descends to any person who holds under the first grantee, however remote from him in the line of title ; and the succession is not broken by some of the intervening deeds conveying only "the right, title and inti-rest in the land" M'hich the grantor^s had ; such mode of conveyance being equivalent to a release deed at least. In the Supreme Court of the United States it was said, where a party having an inchoate title to land gave a power to sell and convey it, declaring, however, in the power, that the attorne}'' was authorized to convey " such interest as I have " and no other, and that he would not hold himself liable for acts of his attorney, "beyond quit-claiming whatever title I have." The party afterwards acquired complete title, and the attorney con- veyed by quit-claim for full consideration, which consideration passed to the principal. The grantor could not, six years after- wards, disavow the act of his attorney and convey the land to another person.' > Holbrook v. Debo, 99 111. 372. ^ r r Co. v. Sawyer, 92 III. 377. * Welsh V. Dutton, 79 111. 4C5. * Powers v. Patlen, 71 ]Me. 583. B Smith V. Sheely, 12 Wall. 538. TrxLE BY Estoppel. 791 § 656. Any after acquired estate will innre by virtue of the warranty, to the party claiming under such conveyance, with the same effect as if it had been originally passed by it. Thus, where one liaving granted land to his father, afterwards mortgaged the same land with a covenant of warranty, it was held that upon the death of the father, and the descent of the moiety of the estate upon himself as one of his fathers heirs, the mortgagee took that moiety by estoppel.' So where administrators conveyed land of their intestates by a deed in the common form of an administrators deed, except that it contained a general covenant of warranty. One of the administrators subsequently acquired in his own right a prior outstanding easement in the land. The administrators had no power to make such covenant binding upon the estates that they represented, but that they were per- sonally bound thereby, and that the interest, when it accrued, fed the estoppel.' So where an heir gave a release of his expectant es ate, with a covenant that neither he nor those claiming under him should ever claim any right to the same, it was held that when the estate devolved upon him, it immediately inured by estoppel to the grantee.^ So where a woman on the eve of marriage, made a conveyance to a trustee of pioperty to which she then had no right, but to which she subsequently acquired a right, it was held the property passed to the trustee by estoppel.* § 657. It is a well settled principle of the common law, that if one conveys lands or other real estate, with a general covenant of warranty against all lawful claim and demands, he cannot be allowed to set up against his grantee or those claiming under » Somes V. Skinner, 3 Pk-k. fi2; Bradbury. 20 Me. 260; Williams v. Wiesn r v. Zaun, 3iJ Wis. 188. Tharlnw, 31 Me. 295 ; Blake v. Tucker, - Stowe V. Wyse, 7 Conn. '220; Col- 12 Vt. 39; Funk v. Newcomer, 10 lege V. Cheney, 1 Vt. 336; Blake v. ]Mrl. 301; Barton v. Morris, 15 Ohio, Tucker 12 Vt. 39; Green v. Clark, 13 4:)8; Bean v. Welsh, 17 Ala. 775; Vt. 158; Jarvis v. Aiken, 25 Vt. 635; O'Bannan v. Paramour, 24 Ga. 489; Cross V. Martin, 46 Vt. 14; Proutyv. ]\[ason v. Muncaster, 9 Wheat. 445; Mather, 49 Vt. 415. Shaw v. Galbraith, 7 Pa. St. Ill; Red- = Trull V. Eastman, 3 Met. 121: Car- man v. Bellamy, 4 Cal. 247; Bell v. brey v. Willis. 7 Allen, 364; Gouch- Adams 81 N. C. 118. ener v. Mowry. 83 111. 331; Sparrow v. ' Benick v. Bowman, 3 Jones Eq. Kingman, 1 N. Y. 247; Baxter v. 314. 792 The Law of EsTorPEL. him, any title subsequent!}' acquired, either by purchase or otlier- wise. Such new title will inure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This principle is founded in equity and justice, as well as the policy of the law. It is just that a party should not be permitted to hold or i-ecover an estate in violation of his own covenant ; and it is wise policy to repress litigation and to prevent a circuity of actions, when better or equal justice may be administered in a single suit. By such a grant with general warranty, nothing passes, nor indeed can possibly pass, excepting the title wluch the grantor has at the time of the grant ; but he is estopped to set up a title subse- quently obtained by him, because if he should recover against his grantee, the grantee in his turn would be entitled to an action against the grantor, to recover the value of the land. The prin- ciple of estoppel, therefore, not only prevents multiplicity of suits, but is sure to administer strict and exact justice, whereas if the grantee were driven to his action to recover the value of the land, exact justice might not be obtained, because the land might possibly not be esteemed at its just value. § 658. If a grantor either expressly or by necessaiy implica- tion, conveys an estate in fee simple, his heirs are estopped from denying that he had such an estate and passed it by the deed to the grantee.' A person having only an equitable title coTiveys the land and subsequently acquires the legal title, it must inure to the benefit of his grantee against intervening judgment creditors of the grantor. A depd purporting to convey the whole title, though without warranty, estops the grantor and his privies as to the legal title.' If an executor convey an equitable interest in land before the issuing of a patent, and a patent sub- sequently issued in the name of the executor it inures to the benefit of the grantee by way of estoppel.' So although the church wardens of a parish are not capable of holding lands and a deed to them and their successors in ofiice forever, cannot ' Van Rensselaer v.Kearnj^ 11 How- Fletcher v. Wilson, 9Miss. 376; !Morri- ard. 207; Carbrey v. WiUis, 7 Allen, son v. Caldwell, 5 Mon. 476; Beard 364; Goucheuor v. Mowry, 23 111. v. IJriggs, 1 J. J. Marsh. 22; Carter 331; Wead v. Larkins, 54 111. 489; v. Chaudron, 21 Ala. 72. Carter v. Chaudron, 21 Ala. 72. ^ Lewis v. Baird, 3 McLean, 57; * Lamar v. Simpson, 1 Rich. 71, Zants v. Courcelle, 16La. 96. Title by Estoppel. 793 operate by way of grant, yet where it contains a covenant of general warranty, binding the grantors and their heirs forever, it may operate by way of estoppel to confirm to the chm'ch and its privies the perjDetnal and beneficial estate iu the lands.' An assignment of a patent before a patent is obtained is a good transfer of the right of the patentee when he obtains a patent, and he will be estopped from setting np any adverse title.^ Where a grantor conveys land, with waiTanty in which he has nothing at the time, he is not only estopped from claiming in opposition to his deed, but the estate which subsequently vests in liim is bound by the estoppel and is transferred by the operation of the estoppel to the grantee. A fine levied by an heir binds his estate afterwards acquired by descent.' So where a testator was disseized and died, having by his will made two of his sons executors, with power to sell his lands, they did so as executors, and afterwards, together with the other heirs, brought ejectment against the purchaser on the ground that tJie testator having been disseized nothing passed by their deed. But the court held, tliat they were estopped to deny the effect of their deed, by claiming the land themselves.* Where executors, having power to sell and convey real estate, do sell with covenants of warranty, such covenants estop the devisees from setting up and asserting an outstiinding title against the vendee.^ A husband, entitled as such to an estate for life, conveyed the estate in trust for his wife, in order to avoid his creditors, covenanting against the claims of all persons claimijig under him. He then went into insolvency, and his assignee sold the estate, on the ground that his former deed was void as against creditors, and the husband himself purchased it. But it was held, that he was estopped by his former deed to set up a title against his grantee. The defect in the title was like an incumbrance created by himself, against which he had covenanted, and by removing it, he had done no more than he had by his covenant, engaged to do.' § 659. Where the estoppel of a conveyance binds the after 1 Mason v. Muncaster, 9 Wheat. '' Poor v. Robinson, 10 Mass. 136. 445; Terrett v. Taylor, 9 Crancb, 43. * Robertson v. Gaines, 2 Humph. " Herbert v. Adams, 4 Mason, 15. 367. » Helps V. Herefurd,2 B. & Aid. 243. « Gibbs v. Thaj-er, 6 CiiSh. 30. 794 The Law of Estoppel. acquired estate in the land conveyed, it extends beyond the immediate parties and inures in favor of all who derive title from the grantor by descent or purchase according to the measure of their respective interests, and subject to the provisions of the deeds under which they hold. A second grantee will therefore, ordinarily be entitled to the benefit of the estoppel, and enforce it against the original grantor, in the same manner as the first.* § 660. Deeds defeasible by way of mortgage, are as much within the rule as if they were absolute, and the after acquired title inures to the benetit of tlie mortgagee.* It extends beyond express warrantees to those arising by implication from the terms of the grant.^ § 661. The application of the doctrine of estoppel to deeds and conveyances of various estates in land, has in like manner been applied to mortgages, on two grounds. First, that it is an absolute conveyance. Second, on the ground that from the covenants in the instrument the intention of the mortgagor has been ascer- tained to be that he not only hypothecated the interest he then had, but any that he might subsequently acquire, necessary to create a perfect or clear title. A mortgagor always gives absolute covenants for title, for those who loan money generally require every possible security for its re-payment and notwithstanding these covenants, the title is investigated on every mortgage with greater strictness than on a purchase. A mortgagee being regarded as a purchaser, is entitled to the benefit of covenants running with the land.* The effect of a mortgage depends on its meaning, as collected from its language, and whether its operation should be limited to the interest which the mortgagor has at the time, or extend to that which he may subsequently acquire, will depend upon all the recitals and stipulations which it contains, rather than on the effect of any particular clause in the words of ' Scoffiu V. Grandstaff, 13 Kas. 467; 373; Lloyd v. Quimby. 5 Ohio St. Potts V. Dowdal], 3 Houst. 369. 262; Andrews v. Wolcott, 16 Barb. 2 Amounet V. Auuis, 16 La. An. 237. 21; White v. Whitnej-. 3 Met. SI; 2 Do Wolf V. Ilayden, 21 111.52."). Astor v. Miller, 3 Paige, 68; Varick * Devin v. Hendershott, 33 Iowa, v. Bnggs, 6 Paige, 334; Butler v. 192; Porter v. Green, 4 Iowa, 571; Seward, 10 Allen, 466; Tuilts v. Lockwood V. Sturdevant, 6 Conn. Adams, 8 Pick. 547. Title by Estoppel. 795 grant bj which the title is passed, or the covenants bj which it is assigned and fortified. Whether an after acquired interest will pass by the estoppel of a prior conveyance or mortgage, depends upon tiie meaning of the instrument, &s manifested by its lan- guage. When the intention is to incumber the land and not merely the title which the mortgagor has at the time, an estoppel arises and renders it effectual. Whenever the terms of the instru- ment or the covenants which it contains clearly show that it was meant to convey an absolute and indefeasible title to the mort- gagee as security, and not merely that which the mortgagor had at the time of its execution, as where the money loaned is used by the mortgagee in dischai'ging liens and incumbrances then existing on the land ; it will bind and pass every interest or estate which may vest in the mortgagor subsequently to its execution, whether the warranty it contains be general or special, and although it may contain no warranty whatever.' § 662. The doctrine, that a grantee, from one who had no title at the time of the conveyance, but has subsequently acquired one, takes, it by estopjpel by virtue of the covenants in the deed, is applicable to mortgages. Thus a party who is in actual posses- sion of land, but without title, mortgages it with warranty, and afterwards acquires a good title by purchase, the warranty takes immediate effect on the title so acquired and transfers it to the mortgagee, not only as against the mortgagor himself, but those claiming under him subsequently to the conveyance. So where » Clark V. Baker, 14 Cal. 612; Van Boone v. Armstrong. 87 Ind. 1G8; Rensselaer v. Kearney, 11 How. 322; Elder v. Derby, 98 111. 228; Christy v. Hoyt V. Dimon, 5 Conn. 479; Wanzer Dana, 42 Cal. 179; Kirkaldie v. Lana- V. Blanchard, 3Mich.ll; Crossv. Rob'- bee, 31 Cal. 445; Camp v. Grider, 62 inson, 21 Conn. 379; Bogy v. Shoab, Cal. 20; Locker v. Riley, 30 N. J. E. 13 Mo. 379; Cooke v. Brogan, 5 Ark. 104; Jones v. Reese, 65 Ala. 134; Fair 699; Frink V. Darst, 14 111. 304; Palmer v. Howard, 6 Nev. 304; Floyd v. V. Smith, 10 N. Y. 303; Gotham v. Morrison, 40 Iowa, 188; Ins. Co. v. Gotham, 55 N. Y. 440; Morrison v. Woodbury, 45 Me. 447; Boisclair v. Wilson, 30 Cal. 344; Rceder v. Craig, Jones, 36 Ga. 499; Strong v. Waddcll, 3 McCord, 411; Reed v. Shepley, 6 Vt. 56 Ala. 411; Walker v. Sedgwick, 8 602; Conover v. Porter, 14 Ohio St. Cal. 398; Allen v. Lathrop, 46 Ga. 450; Washabaugh v. Entriken, 34 Pa. 133; Newton v. McLean, 41 Barb. 285; St. 74; French v. Spencer, 21 How. Lee v. Porter, 5 Johns. Ch. 268; 228; Loan Co. v. King, 58 Iowa, 598; Palmer v. Mead, 7 Conn. 147; Blake more v. Tabor, 22 Ind. 466. 79G The Law of Estoppel. one mortgaged land which was at the time subject to a judgment lien (the deed containing what was equivalent to a warranty), and then took the benefit of the bankrupt law, and afterwards purchased the property When sold under the judgment lieu, he was estopped by his covenant from setting up such after acquired title to defeat the mortgage.' A person who contracting an obligation to another, grants a mortgage on property of which he is not then the owner, the mortgage is valid, if the debtor ever afterwards acquires the ownership of the pi'operty by whatever right. That is, a subsequently acquired legal title by the mort- gagor inures to the beneiit of the mortgagee.' To iHustrate the application of this doctrine a few cases are given. Thus, where one having no title to lands e.xecutes a mortgage thereon with covenants of seisin and of title, and afterward acquires title, it inures to the benefit of the mortgagee, and the mortgagor and his privies in estate, in blood and in law, are estopped from question- ing that, at the date of the mortgage, the mortgagor had title. A record, therefore, of the mortgage, prior to the acquisition of title by the mortgagor, is constructive notice to a subsequent pur- chaser in good faith, and, under the recording act, gives it priority to his title. ^ So where a person mortgaged the land upon which he resided, which was part of the public domain, and sub- sequently acquired the title to the land, such title inured to the benefit of tbe mortgagee.* So where A. mortgaged to C, with the ' Bush V. Cooper, 18 How. 82; G12; Bailey v. Academy, 12 Mo. 174; Jarvis v. Aikciis, 25 Vt. G35. Amounet v. Annis, 16 La. 225; Jiivvig ^Bybee v. Hageman, 66 111. 519; v. Aiken. 25 Vt. 635; McCaa v.Woolf, Hitchcock V. Fortier, 65 111. 239; 42 Ala. 389 ; Jarvis v. Deane, 56 Me. Krcichbanm v. Melton, 49 Cal. 51; 9; Cuuu'ngham v. Pattcc, 99 ^fass. Tetit V. Munson, 63 Barb. 31; Mo- 248; Crompt on v. Pratt, 105 Mass. 255; Crackin v. Wright, 14 Johns. 194; Blakeslee v. lus. Co., 57 Ala. 205; King V. Gilson. 32 111. 348; Gochcnour Tcwksbury v. Provizzo, 12 Cal. 20; V. Movviy, 33 111. 331; Jones v. King, W^right v. Dc Grotf, 14 Midi. 1G4; 25 111. 388; Somes v. Skinner. 3 Pick. Kelly v. Jenues^, 50 .Ale. 455; Kii Chamberlain v. Meeder, 16 N. H. C.) 463. 381 ; Stewart v. Anderson, 10 Ala. > Mickle v. Townsend, 18 N. Y. 504. 575. * Jones V. Kingsey, 2 Jones Eq. (N. ^ McCaa v. Wolf, 42 Ala. 389. 5 Jarvis V. Deane, 56 Me. 9. 798 The Law of Estoppel. pel to the benefit of the lessee or the grantee.* Thus A. con- veyed ^vithout warranty to B., who mortgaged back for the price, also without warranty. Under a statute, which provides that if any one conveys land, purporting to convey the fee simple, and shall not then own the fee, but shall afterwards acquire it, it shall immediately pass to the grantee, a good title subsequently acquired by B. inured to the benefit of A. under the mortgage. The mortgage in the above case granted, bargained, sold, released, remised and conveyed to the grantee, his heirs and assigns, for- ever.^ In a later case, where a mortgage had been executed by a party who had proceeded under the homestead laws of the United States, the same court said : " Had the deed been an absolute conveyance in fee instead of a mortgage in fee, any subsequentl}'^ acquired title under our statute concei'ning con- veyances would have inured to the benefit of the plaint- iff. The fact that the title subsequently comes from the United States would make no difference. There is noth- ing in the homestead act of 1862 forbidding a voluntary alien- ation by the grantee under that act. The same principle ap- plies to a .mortgage of the fee. The title will pass not merely in consequence of the enforcement of the pa3'ment of a debt by the ordinary process of the courts, but in consequence of the voluntary contract of the party in executing the mortgage. The mortgagor of the fee is estojpped from denying the existence of the lien which he has attempted to create, and from defeating by his own act the enforcement of the lien against the propert}' thus mortgaged.^ We think the plaintiff was entitled to the. ordinary judgment for a sale of the mortgaged property without any exception of rights subsequently acquired by the mortgagor under the homestead act of 1862."* ' Cunningliam v. Pattee, 99 Mass. v. Mattox, Monis (la.) 369; Picrson 348. V. David, 1 Io\va,26; Camp v. Smith, * Clark V. Baker. 14 Cal. 612. 2 Minn. 172; Hope v. Stone, 10 Minn. 3 Clark V. Baker, 14 Cal. 633; 141; Bush v. Marshall, 6 How. 288; Tartar v. Hall. 3 Cal. 263; Haffley Threadgill v. Pintard, 12 How. 37; V. Maier, 13 Cal. 14 ; Whitney v. Fackler v. Ford, 24 How. 323; Plielps Buckman, 13 Cal. 538; Warburlon v. Kellogg, 1.5 111. 13o. * Kirkaldie v. Larrabee, 31 Cal.4o5. Title by Estoppel. 799 § 664:. But there is an exception to this well settled rale, and the exception is made for the benefit of the mortgagee. Thus, the rule that where a deed conveys a greater interest than tlie grantor at the time possesses, an after acquired title inures to the benefit of his grantee, is subject to an exception where such grantor executes to his grantee a mortgage to secure a part of the purchase money on the premises subsequently conveyed by the latter to the former. Accordingly, where A. executed a deed of conveyance for premises, to which he then had no title, to B., and A. afterward purchased and received a deed for the prem- ises from C, the owner, and executed back to him a mortgage thereon to secure a part of the purchase money, held, that the rights of C. nnder his mortgage were not affected by the prior conveyance from A. to B.' Where the interest of a purchaser of land under contract of sale is mortgaged, and such purchaser completes his purchase and obtains the title to the land, it inures to the benefit of the mortgagee.^ So where indescriptive war- rants, on which the purchase money had been paid, were mort- gaged June 14, describing them as "all those tracts of land sur- veyed or to be surveyed by virtue of the warrants," &c. The surveys were made June 30. The mortgage bound the land when surveyed; "to be surveyed " being a covenant that the land should be surveyed.' § 665. Though at law. a mortgage cannot operate on prop- erty not m existence at the time the mortgage is executed, courts of equity will enforce specific execution of contracts, and give relief in numerous cases of agreements relating to lands and things in action, or to contingent interests or expectancies, upon the maxim that equity considers that done, which being agreed to be done, ought to be done.' The English rule is, that a cove- nant to charge or dispose of, or affect lands hereafter acquired, operates in equity upon lands so acquired.^ But that no charge J Morgan v. Gniliam, 35 Iowa, 213. 307. 2 Sinclair V. Armitage, 12 N. J. Eq. » Tryon v. Munson, 77 Pa. St. 250. 174; Bull V. Sykes, 7 Wis. 449; Dodge ^ Sillers v. Lester, 48 Miss. 513; V. Silverthorn, 12 AVis. 644; ]\Iov,iy Stevens v. R. R. Co., 50 How. Pr. V. Wood, 13 Wis. 413; Fenuo v. 104. Sayre, 3 Ala. 458; Smith v. Crenier, » Metcalf v. Archbi.sliop, 1 M. & C. 71 111. 175; Jarvisv. Dutcber, 16 Wis. 547; Lyde v. Mynn, 4 Sim. 505; Tooke 800 The Law of Estoppel. will be credited except where the covenant refers to particular property, or where property has been acquired with an intention to perform or satisfy the covenant.' Thus, the Morris Canal and Banking Company, of New Jersey, was originally authorized to construct a canal from the Delaware to the Passaic. By a subse- quent statute, they were authorized to extend the canal to the Hudson, near Jersey City. Afterwards, they were authorized by statute to borrow money, and, to secure the loan, to hypothecate, by way of trust, mortgage, or otherwise, " the Morris canal, with all its privileges, appendages, and appurtenances, and all the jn'op- erty and cliartered rights of the company." The company then executed a mortgage to secure a loan " upon all and singular the Morris Canal, so called, being the canal authorized by tlie laws of the State of New Jersey, as the said canal has been laid out through the several counties [naming them through the State], and being now in the course of completion from the Delaware to the Hudson River, together with all and singular the dams, aque- ducts, locks, planes, water courses, privileges," &c. At the time of the execution of the mortgage, the canal had not been con- structed from the Passaic to the Hudson, nor had the land been purchased upon wliich the canal was subsequently constructed, but the route had been surveyed, though it was afterwards varied. Held, that the mortgage covered the entire canal from the Delaware to the Hudson, and that the pier constructed at Jersey City, if constructed as an apj)endage to the canal, would also pass by the mortgage, as well as a feeder to the canal, and everything connected with the canal. ^ So, a mortgage given upon a ditch or flume in process of construction, without any special provision, would include all improvements or fixtures then on the line, located for the flume, as well as those which might thereafter be put thereon. ^ § 006. The doctrine is thus declared: "A person cannot grant a thing which he has not, ' ille ?iO)i hahet, non dat y' and V. Hastings, 2 Vern. 97; Lewis v. Mad- 105 Mass. 255. docks, 17 Ves. 48. ^ Wiilink v. Morris Canal & Bank- ' Countess of Morniugton v. Keane, ing Co., 4 N. J. Eq. 377* 2 DeG. & J. 292; Roundell v. Breary, » Union, &c. Co. v. Murphy, &c. 3 De G. & J. 319; Crompton v. Pratt, Co., 22 Cal. 620. Title by Estoppel. 801 many authorities are referred to at law to prove the proposition, and many more raiglit have been added from cases in equity ; for eqiiity no more than law can d^ny it: the thing itself is an im/possihility. It mtly at once, therefore, be admitted, whenever a party undertakes, by deed or mortgage, to grant property, real or personal, in ^rcEsenti^ which does not belong to him, or has no existence, the deed or mortgage, as the case may be, is inopera- tive, and this either in a court of law or equity.'" A mortgage which professes to convey property not in existence at the time, is, as a conveyance, void, simply because there is nothing to con- vey. So a conti'act which purports to transfer property not in existence, cannot operate as an immediate alienation, simply because there is nothing to transfer ; but if a mortgagee has agreed to mortgage property, real or personal, of which he was not possessed at the time of making the contract, and afterwards becomes possessed of the property, which is of such a nature that specific performance would be decreed, the beneficial interest in the propert}' is transferred to the mortgagee as soon as the prop- erty is acquired. And the title of the mortgagee or assignee Avill prevail, not only against a judgment creditor, but against a purchaser for value of the specific thing, unless he has fortified himself with actual possession, without knowledge of the mort- gage. § 667. It is said that future property can never be the subject of mortgage.* Thus, a man cannot execute a valid mortgage upon land which he expects to acquire at some future time. Yet where a person has some claim of title to land, and he subse- quently perfects his titie, there is no reason why he cannot hy- pothecate it. Where no rule of law is infringed, and the rights of third persons are not prejudiced, courts of equity will, in proper cases, give effect to mortgages of subsequently acquired property.' Thus, where a mortgage is made of a tract of land, and the mortgagor erects a house upon the land without any agreement with the mortgagee, it becomes part of the land, and » Pennock v. Coe, 23 How. 117. nock v. Coe, 23 How. 112; Dunham * AnimoDetlv.Amis.ieLa.Ann. 235. v. R. R. Co., 1 Wall. 254; U. S. v. 3 Beall V. White, 94 U. S. 382; Pen- R. R. Co., 13 Wall. 362. Vol. I.— 51 802 Thk Law of Estoppel. passes with it to the mortgagee.' Upon the same principle, a ujortgage of a raih-oad Avith the appurtenances, is held to pass after acquired property ; it is in fact only where such property is subsequently annexed or held to be part of the realty that the doctrine is applied in order to prevent a debtor from withdraw- ing property which he has stipuhited shall become bound hy the contract of pledge. This principle is applicable, witli an excep- tion in favor of third parties, where their rights intervene. Where a mortgage attaches to after acquired property, and addi- tions are made to the premises, after the title becomes vested in the mortgagor, by the erection of buildings, or the construction of embankments, or the laying of rails for a track, such addi- tions become part of the mortgaged premises, as they are made, on the maxim, quicqu id plantain r solo, solo cedit, and inure to the benefit of the mortgagee. But where the after-acquired prop- erty comes into the hands of the mortgagor, subject to incum- brances or liable to liens, the mortgage attaches to the property in the condition in which it comes to the mortgagor's possession, subject to such liens and incumbrances as are then upon it.' § 668. The principle is, that if any person who in terms conveys land or any specific interest in land with warranty, and does not own it, afterwards acquires the same land or specific interest, such acquisition inures to the benefit of the grantee, because the grantor and those wlio are privy in estate with him, are estopped to deny against the terms of the warranty that he had the title in question. The warranty is co-extensive with the estate, right or interest which the deed purports to pass. Thus, where A., wlien he executed a deed to B., had no title, but his deed was an attempt to convey the fee, and it was a deed Avith a warranty, this shows, first, that the intention was that the land, the whole interest in the land, should be conveyed to B. ; secondly, that B. had paid the purchase money. Such being the intention, the consequence would be that if A. should after- ' Matzon v. Griffin, 78 111. 477. 459; United States v. R. R. Co., 12 8 Willink V. Canal Co., 4 N. J. Eq. Wall. 362; Williamson v. R. R. Co., 377; Dunham v. Railw. Co., 1 Wall. 29 N. J. Eq. 311; Fosdick v. ScLall, 254; K. R. Co. v. Cowdrey, 11 Wall. 99 U. S. 235; Aldeu v. Garner, 32 III. 32. . Title by Estoppel. 803 wards acquire the title, he Avould be bound to convey it to B., as much so as if the contract were one standing in the form of a bond for title. This would be the consequence, even without the warranty, where the intention was clearly expressed in the deed, so as to place the existence of a fact beyond question, or make it a basis of the contract.' If an estoppel could not oper- ate as a conveyance, or as a medium through which the title would pass to him in whose favor the estoppel works, the title might frequently be locked up in him and his heirs, against whom the estoppel operated ; and the party for whose beneiit it was intended might find himself without title, and unable to recover from a mere intruder ; for if the title to the after acquired estate did not pass to the grantee by means of the estoppel, but it only precluded the grantor from asserting an after acquired title, it would be difficult to see how he could recover in eject- ment from one who had no title ; to show title in another would not enable him to recover, and he, having none, could not main- tain the suit. To give, therefore, the full effect to an estoppel, it is clear that it must frequently operate to pass the title. ^ § 669. Rawle, in his work on covenant for title, says, in regard to the creation of estoppels by warranty, '' if an estoppel is not created by a deed taking effect und^r the statute of uses, and if a warranty in that deed does not of itself create an estop- pel, how is an estoppel ci-eated, and what is the true principle that appears to be pruperly deducible from the many authorities cited ? The answer to this question might be, that the principle of the cases seems referable to a familiar rule in equity, that if a man contracts for the sale of an estate which he has not at the time such contract is entered into, and he afterwards acquires such a,n interest as will enable him to make good his contract, equity will compel him to perform it and make good the title, and that the presence of a warranty in a deed purporting to con- vey an estate, has, it would seem, upon strict principle, no greater ' Goodson V. Beacham, 24 Ga. 150. Wyman v. Harmon, 5 Gratt. 163; 5 Bean v. Welsh, 17 Ala. 770; Derby Lewis v. Baird, 3 McLean, 56; Valle V. Jones, 27 :Me. 361; Coe v. Persons, v. Clemens, 18 Mo. 490; Gibson v. 43 Me. 436; Hall v. Chaffee, 14 N. H. Choteau, 39 Mo. 566; McCaa v. Wolf, 326: Wight v. Shaw, 5 Cush. 56; 42 Ala. 389. 804 The Law of Estoppel-. effect than an averment that the contract between the vendor and purchaser is, that that identical estate shall beactuall}^ trans- ferred fi'oni the former to the hitter ; and such an effect can be produced b)' other covenants than that of warranty,' and by other parts of the deed than the covenants.'" A grantor cou- vej'ing by deed of bargain and sale, by way of release or quit- claim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not respon- sible for the goodness of the title beyond the covenants in his deed/ A deed of this character purports to convey, and is nnderstood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time, and does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view, and the consideration is regulated in conforn)it3' with it. If other- wise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper covenants of title. But this principle is applica- ble to a deed of bargain and sale by release or quit-claim, in the strict and proper sense of that species of conveyance. And, therefore, if the deed bears on its face evidence that the grantors intend to convey and* the grantee expected to become invested with an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may not contain any covenants of title, in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted, at least so far as to estop them from ever afterward denying that he was seized of thj particular estate at the time of the convej'ance.* § 070. " Whatever may be the form or nature of the convey- ' Wightman v. lieyuolds, 24 Mass. E. 459; Jackson v. Murray, 12 Johns. (380. 201; iSteveas v. iSteveus, 13 Johns, yiti; ■■' Jiawle on Cov. for Title, 454. Filzhiigli v. Tyler, 13 B. Mon. 559; =• Van Keusselaer v. Kearney, 11 Drake v. Koots, 2 CoJ. T. 685; Lowry How. 497. V. Williams, 13 Me. 281; Jarnagiu v. * Haunon v. Cliristoplier, 34 N. J. Alairs, 1 Humph. 473; Forlescue v. iScattertliwaite. 1 Ired. 566. Title by Estoppel. 80o ance used to pass real property, if the grantor sets forth on tlio face of tlie instrument, by way of recital or averment, tJiat he is seized and possessed of a particular estate in tlie premises, and which estate the deed pnrports to convey, or, what is the same tiling, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance.' The estoppel works upon the estate, and binds an after acquired tide as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence tbe grantor, and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the com- mon sense and justice of every one, and although it debars the trurh in the particular case, and, therefore, is not unfrequently characterized as odious and not to be favored, still it should be remembered that it debars only in the case where its utterance would convict the party of a previous falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak. "'^ § 671. The effect of the covenant is that the title acquired' by the grantor who has conveyed with warranty, inures eo instanti tliat he gains the title, to his grantee and vests in him or to tiie grantee of such grantee with like covenants.' Many of the decisions have been based upon the ground of preventing ' Smith V. Williams, 44 Mich. 240. 151; Doe v. Errington, 8 Scott, 210; ■■^ Good title v. Bailey, 2 Cowp. 601 ; Bowman v. Taylor, 3 Ad. & Ellis, Beasley v. Burdon, 2 Sim. & S. 524; 278; Fairbanks v. Williamson, 7 Me. Kees V, Lloyd. Wight, 129; Lainson 96; Kight v. Buckuell, 3 B. & Ad. V. Tremere, 1 A. & E. 792; Stow v. 281; Knowles v. Kennedy, 88 Pa. St. Wyse, 7 Conn. 214; Penrose v. Grif- 444; Somes v. Skinner, 3 Pick. 52; lith, 4 Binn. 231; Denn v. Cornell, 3 Doe v. Kobinson, 51 Ala. 399; Parker Johns. Cas. 174; Carver v. Jackson, v. Jones, 57 Ga. 204. 4 Pet. 1; Root V. Crook, 7 Pa. St. '^Crocker v. Pierce, 31 Me. 177; 378; McCall v. Grover, 4 W. & S. Averill v. Wilson, 4 Barb. 180; Jack- son V. Bull, 1 John. C. 81. 806 The Law of Estoppel. circuity of action. Thus it was held tliat an after acquired estate would pass, although the covenantor had since the conveyance been discharged as a bankrupt, the breach of the covenant hav- ing happened after such discharge.* § 672. It is a well settled doctrine that while a deed, as a present conveyance, transfers only the title which the grantor then has, if it is a deed in fee with warranty, it has a further operation as a covenant real, running with the land, by which the grantor and his heirs are bound to make it good, so that if the grantor has no good and sufficient title to the estate, yet if either he or they subsequently acquire a good title, it imme- diately inures to the benefit of the grantee, by way of estoppel, to the same extent as if the same good title had been vested in the grantor and warrantor at the date of the execution of the deed with covenant of warranty ; if the action be brought in such a form that it may be pleaded by way of estoppel ; other- wise, by way of rebuttal to the claim of any one bound by the covenant of warranty." Covenants which run with the land oper- ate as estoppels.' Estoppels which run with the land, and operate 1 Bush V. Cooper, 24 Miss. 613; S. len v. Sayward, 5 Me. 231; Kelly v. C, 18 How. 82. Jemiess, 50 Me. 455; Jackson v. Bull, "^ Cole V. Raymond, 9 Gray, 218; 1 Johns. Cas. 81 ; Jackson v. ]\Iats- Bates V. Norcross, 11 Pick. 14; dorf, 11 Johns. Cas. 1; Jackson v. Crocker V. Pierce, 31 Me. 177; Bruu- Stevens, 16 John. 40; Brown v. Mc- dred v. Walker, 13 N. J. E. 240; Cormick, 6 Watts, 60; Logan v. Washabaugh v. Entriken, 34 Pa. St. Moore, 7 Dana, 76; Lewis v. Baird, 3 74; Clark v. Slaughter, 34 Miss. 65; McLean, 56 ; Bank v. Merserau, 3 Kimball V. Schoff, 40 N. H. 190; Mor- Bar!). Ch. 528; Irvine v. Irvine, 9 rison v. Underwood, 20 N. H. 372; Wall. 617; Warburton v. Mattox, 1 Bell v. Twilight, 26 N. H. 401; Jewell Morr. (lu.) 367; Carbrey v. Willis, 7 V. Porter, 31 N. H. 29; Clark v. Baker, Allen, 364; ]\Ioore v. Rake, 26 N. J. 14 Cal. 612; De Wolf v. Hayden, 24 L. 574; Churchill v Terrell, 1 Bush, 111. 525; Rose v. Adams, 28^. J. L. 54; French v. Spencer, 21 How. 228r 160; Bush v. Marshall, 6 How. 284; Henderson v. Hackney, 23 Ga. 323; King v. Gilson, 32 111. 348; Clark v. Goodson v. Beacham, 24 Ga. 150; Martin, 49 Pa. St. 299; Somes v. Skin- O'Bannon v. Paramour, 24 Ga. 189; ner, 3 Pick. 52; Carver v. Astor, 4 Gochenour v. Mo wry, 33 111. 831; Pet. 83; Jackson v. HolTman. 9 Cow. Wark v. VViilard, 13 N. H. 389; Perry 27; Sinclair v. Jackson, 8 Cow. 586; v. Kline, 12 Cush. 118; Kellogg v. Doyle v. Peerless, 44 Barb. 239; Fair- AVood, 4 Paige, 578. banks V. Williamson, 7 Me. 100; Al- ^ Boyce v. Lougworth, 11 Ohio, 235. Title by Estoppel. 807 tliereon, pass estates and constitute titles. They are muniments of title, assuring it to the purchasers. So the heir of one who is entitled to bounty land, assigned his right after entry, he is estopped by his ancestor's deed from setting up any title under a patent issued in the name of his beneficiary.' If a tenant for life convey in fee simple, and the fee is afterwards cast upon him, by operation of law, his heirs are estopped by his deed. An estoppel can oidy operate against a party who has conveyed a precise or definite legal estate or riglit, by a solemn assurance which he will not be permitted to deny or vary, but it has no operation to prevent the denial of an equitable transfer, not iden- tical with the legal title, which it is relied on to establish or pro- tect.* Where one, as guardian, conveys lands and enters into covenants of warranty as to the title, in his deed, he is estopped from setting up a personal claim to the same land under his own title." § 673. The estoppel of a warranty being intended for the protection of the parties, should be so moulded as not to defeat the end which it was intended to secure, and whenever there is no sufficient cause why the estoppel should not operate, it will be kept in abeyance." The effect of the covenant will be limited in its extent b}' the premises grunted, and with which it may run. As where a grantor, owning one undivided sixth part of a tract of land, covenanted against the claims of all persons to the estate, he was onl}^ estopped as to his portion, and not to any shares which he afterwards acquired.' In order to bar a party by his covenant of warratit}', the deed must not only be a good and valid one in form and mode of execution, but it must convey no title to the premises, noi pass anythiiig upon which the warranty can operate ; foi" if it passes a title or interest (that is, a vested 'French v. Spencer, 21 How. 228; G35 ; Blako v. Tucker, 12 Vt. 39; Gonld V. West, 33 Tex. 338. College v. Cheney, 1 Vt. 336. '^ Gilmer v. Poindexter, 10 How. ■* Pendleton v. JRichey, 32 Pa. St. 257. 58; Baxter v. Bradbury, 20 Me. 260; ^ Heard v. Hall, 16 Pick. 457; Somes v. Skinner, 3 Pick. 52, Buck- Foster v. Young, 35 Iowa, 27; Prouty ingbam v. Hanua, 2 Ohio St. 551; V. Mather, 49 V.. 415; Cross v. Mar- Calder v. Chapman, 52 Pa. St. 359. tin, 46 Vt. 14; Jarvis v. Aiken, 25 Vt. ' Wight v. Shaw, 5 Cush. 56; Trull • V. Eastman, 3 Met. 131. 808 The Law of Estoppel. interest), the covenant does not operate as an estoppel, even though it cannot operate upon the interest to the full extent of the intention of parties.' If any interest passes, however small it may be, it works no estoppel." The covenant need not be a general covenant of warranty, but will always work an estoppel to the extent of its terms. Thus where there was a covenant of warranty against a particular title, which the gran- tor afterwards acquired, he was estopped to set it up.^ So where one covenants against incumbrances, and afterwards buys in an outstanding mortgage, or purchases the estate under a sale for foreclosure of a mortgage existing thereon prior to his convey- ance, whatever title he thereby acquires inures to the benefit of his grantee.* But the covenant, to have this eflFect, must be something more than the personal covenant of him who makes it. It must be of a nature to run with the land, and if it be siich a covenant, it will attach to the land and run with it the instant the covenantor acquires the title which he has undertaken to convey by his deed.* § 674. Lord Coke, in treating of release, while commenting upon Littleton's statement, that " no right passeth by a release but the right which the releasor hath at the time of the release made," speaks of a release accompanied by a warranty, and remarks: " The warranty may rebut and bar him (the warran- tor) and his heirs of a future right which was not in him at the time." Pie puts the case of a grandfather, father, and son, where the father disseizes the grandfather, and then makes a feoffment in fee, and the grandfather afterwards dies; the father, in such a ' Blanchard V. Brooks, 12 Pick. 47; man, 9 Cowen, 2T1; 2 Prest. Abst. Patterson v. Pease, 5 Ohio, 190; Keich- 216. eval V. Triplett, 1 A. K. Marsli. 493; » Blake v. Tucker, 12 Vt. 30; Trull Dougalv. Fryer, 3Mo. 29; Doe v. Sea- v. Eastman, 3 Met. 121; Kimbal v. ton, C. M. & 11. 728;Xeavev. Moss, 3 Blaisdell, 5 N. H. 533; Fitzhugli v. K. & J. 220; Weld v. Baxter. 11 Exchq. Tyler, 12 B. Mon. 559. 816; Sparrow v. Kingman, 1 N. Y. * Brundrcd v. Walker, 12 N. J. E. 242; Langford v. Selmes, 3 Kay & J. 140. 220; Walton v. Waterhouse, 2 Wm. * Patterson v. Pease, 5 Ohio, 190; Saund. 826. Wheelock v. Henshaw, 19 Pick. 341; '^ Lewis V. Baird, 3 McLean, 56; Trull v. Eastman, 3 Md. 121; Boyce 4 Kent's Com. 98; Jackson v. Hoff- v. Longw^orlb, 11 Oliio, 235 ; Jarvis v. Aiken, 25 Vt. 635. Title by Estoppel. 809 case, might not enter upon his feoffee against his own feoffment, though the son might upon liis death. It is said tliat there is no English authority that any otiier conveyance than a feoffment, fine,' or lease, operates by way of estoppel to pass an after acquired title, " and so note a diversity between a release, a feoffment, and a warranty. A i-elease, in that case, is void ; a feoffment is good against the feoffor, but not against his heir ; a warranty is good both against himself and his heirs.'" § 675. In some of the United States,** a similar rule exists with this difference : in England a release is secondary evidence, and derives its validity and effect from the possession of the releasee, while in this country it is primary evidence and passes' the releasor's right the same as a grant, and in effect it operates as a conveyance without a warranty. If made with a warranty, the releasor is estopped to claim the land. A covenant for quiet enjoyment of the property by the grantees, estops the covenantor and those claiming under him, from interfering with such enjoy- ment ;^ no title not in esse will pass by deed, unless the deed con- tains a covenant of warranty ; in which case it operates as an estoppel as to such future title." No person can recover or defend himself against his own grant or covenant ; nor can any one controvert against his own acts, though not by deed, a title which he has by his deed acknowledged.^ Thus a wife by a marriage contract constituted to herself as dowry certain prop- erty, and her father became a party to the contract and signed it he was not allowed to contest her title. A grantor is estopped to deny the title of a grantee,^ a mort- gagor that of his mortgagee,' and a vendee who goes into posses- 1 Coke, Litt. 265, a. 546. •^Dart V. Dart, 7 Conn. 250; Trull « Currier v. Earl. 13 Me. 216; Wil- V. Eastman, 3 Met. 121; Butler v. kir.son v. Scott, 17 Mass. 244; Cox v. Seward, 10 Allen, 46G; Jackson v. Lacy, 3 Litt. 334; Tewksbury v. Pro- Wright, 14 Johns. 193. vizzo, 12 Cal. 26; Beald v. Hall, 22 =* R. R. Co. V. Conklin, 29 N. Y. Ga. 431 ; Wickersham v. Orr, 9 Iowa, 572. 235; Mclldowny v. Williams, 28 Pa. * Blanchard v. Brooks, 12 Pick. 47; St. 492; McHinne v. Litllejolin, 2 N. & Dart V. Dart, 7 Conn. 250; Jackson v. Mc. 52; Patrick v. Leach, 2 F. R. 120; Wright, 14 Johns. 193; Somes v. Skin- Hall v. Ashby, 2 Mont. 489. ner, 3 Pick. 52. ' Boone v. Armstrong, 87 Ind. 168; 5 Cooper V. Galbraith, 3 W. C. R. Thompson v. Justice, 88 N. C. 269; 810 The Law of Estoppel. sion cannot dispute the title of his vendor while he remains in possession.' § 676. It is said that the doctrine of estoppel is not ordinarily applicable to States or the United States as it is to individuals. That policy and jnstice require this. That the sovereign or sover- eign power is trustee for the people ; it acts by its agents ; the people should not be bound by any statement of facts made by these agents. For their benefit the truth may always be shown, notwithstanding any former statement to the contrary." This principle may be applicable in cases where an ofiScer exceeds his authority or acts without power. But as a general principle applicable in all cases it is directly opposed to the great weight of authority on the subject. § 677. The better rule, founded upon sound reasoning, is that where a State acts in her sovereign capacity by legislative enact- ments or resolutions, the doctrine of estoppel applies.^ And the rule is thus stated : " Resolute good faith should characterize the conduct of States in their dealings with individuals, and there is no reason in morals or law that will exempt them from the doctrine of estoppel."* The following additional cases are Goodwin v. Keney, 49 Conn. 283; 5 Mason, 425; State v. Brewer, G4 Ala. Jones V. Reese, 65 Ala. 134. 287; U. S. v. Kirkpatrick, 9 Wheat. ' Ileermans v. Schraalz, 7 F. R. 56G; 785; State v. Graham, 23 La. Ann. Quinn v. Quinn, 27 Wis. 168; Miller 402; not estopped to plead the un- V. Larson, 17 Wis. 644; Jackson v. constitntionality of a legislative act. Walker, 7 Cow. 687; Bramble v. * Alexander v. State, 56 Ua. 486 Beidler, 88 Ark. 200; Lewis v. Bos- Entield v. Permit, 5 N. H. 285; Sana kins, 28 Ark. 61; Pintard v. Goodloe, ders v. Hart, 57 Tex. 8; State v Hemp. 502; Wilson v. Weatherby, 1 Brewer, 64 Ala. 287; Magee v.Hallctt N. «& Mc. 373; Meadow v. Hopkins, 22 Ala. 699; Commonwealth v. Bil Meigs, 81; Willison V. Watkins, 3 Pet. Ion, 3 Pick. 280; Commonwealth v 43; Farmer v. Pickens, 83 N. C. 549; Andre, 3 Pick. 224; Carver v. Astor Trible V. Anderson, 63 Ga. 31; Post, 4 Pet. 1; Nieto v. Carpenter, 21 Cal Ch. 11 &, 13, lor additional author! 455; Penrose v. Gritlith, 4 Binn. 231 ties. Vidal v. Girard, 2 How. 127. •^ Taylor v. Sbufford, 4 Hawks, 116; * State v. Milk, 11 Fed. Rep. 397 Fannin Co. v. Riddle, 51 Tex. 860; Entield v. Permit, 5 N. H. 2!S0; Com. Candler v. Luudstord, 4 D. & B. 407; v. Andre, 8 Pick. 224; Com. v. Pejeps- Wallace v. Maxwell, 10 Ired. 110: cut Proprs., 10 Mass, 155; People v. btate V. Beeves, 86 JS'. C. 588; Farish Soc. for Prop, of Gosp., 2 Paine, 545; V. Coon, 40 Cal. 50; Johnson v. U. 8., State v. Bailey, 19 Ind. 452; People Title by Estoppel. 811 illustrations of the application of the doctrine of estoppel to States and the Federal Government,' § 678. A State may be estopped by its own grant and war- ranty, like an individual, even from claiming land as having escheated, where the claim is made on the ground of alienage. Thus, where the commonwealth granted lands to an alien, who died leaving heirs, citizens and residents of France ; to an inquest of office for recovering tbo lands, it was held, that the deed and warranty of the commonwealth was a bar, and that it could not take advantage of the alienage of the heirs.^ In this case the court said : " This deed must operate as a rebutter, as it would if an individual were the grantor, and with more reason, because the commonwealth is not liable to an action. The commonwealth, if the land were recovered, would feel itself bound to repay the consideration money, with interest. This would be a claim which could not be resisted without degrading the country. But there is no need of resorting to this remedy, for the deed of the commonwealth to the very persons now defending as heirs to Andre, to whom and to whose heirs the grant was made, is, we think, an estoppel against setting up the alienage of those persons as the ground of recovery.'" So in Commonwealth v. Pejepscut Proprietors, it was held, where the Legislature, by a public resolve, had declared that a certain monument was, and was considered, as the monument mentioned and intended in an ancient Indian deed, under which a title was derived to certain proprietors, the commonwealth was estopped frbm afterwards showing that such monument was not the one intended in such deed.* V. Mivynard, 15 Mich. 463; Calm v. Johnson, 33 Gratt. 294; Mott v. Smith, Barnes, 5 Fed. Rep. 326. 16 Cal. 533; State v. R. R. Co., 34 ' Magee v. Hallett, 22 Ala. 699; La. An. 954; Atty. Genl. v. Boston, Menard v. Massey, 8 How'. 293; Bran- 12 Gray, 553; Penrose v. GrifBtb, 4 son V. Wirth, 17 \Yall. 32; State v. Binn. 231; Carver v. Astor, 4 Pet. 1; Taylor, 28 La. An. 462; Nielo v. Car- People v. Van Rensselaer, 9 N. Y. penter, 21 Cal. 455, & 7 Cal. 527; 291; Reg. v. Deline, 10 Md. 200. State V. Ober, 34 La. An. 359 ; Clark v. * Commonwealth v. Andre, 3 Pick. Lockwood, 21 Cal. 220; Curran v. 224. State, 15 How. 308; Mahoney v. Van ^ Commonwealth v. Andre, 3 Pick. Winkle,21 Cal. 552 ; Commonwealth v. 224. ♦ 10 Mass. 155. 812 The Law of Estoppel. And in People v. Society for Propa<;^ation of the Gospel, the court held that the doctrine of estoppel applies to a State as Avell as to private persons. Where, therefore, a State, by an act of its Legislature, granted to a town forever the use of certain lands for the benefit of the town, it was held, that the State having parted with all the interest it had in the lands, was estopped from claiming a forfeiture by reason of a condition broken before the grant was made.' And it was held in State v. Bailey, that where the articles of association of a railroad company arc defective, in not specify- ing with sufficient certainty the terminus of the road, but they are properly filed in the office of the Secretary of State, such filing is notice to the State of such defect, and the State neglects for eight years to take advantage thereof, by quo warranto, or otherwise, the right thereafter to do so must be considered lost." § 679. In the case of Calm v. Barnes, the court says : " It also appears to me that the State is estopped to say, as against its grantee, this plaintiff, that this is not wagon road land. The State granted this land to plaintiff's vendor as wagon road land, and allowed it to be selected and approved as such by the secre- tary, without objection, long before it sold it to the defendant as swamp land. . . . The State was the grantee in both these grants. It accepted the premises as part of the wagon road grant, or allowed its grantees to do so, without objection on its part. If, however, the land is swamp, in fact, the State must have neglected to furnish the department with the proper evidence thereof. It may have acted thus because it preferred that the land should pass under the wagon road grant, and thereby be applied in aid of a useful public enterprise. For years after it was made this swamp land grant was not regarded with favor in this State, nor was it thought that there was any quantity of land to which it was properly applicable. Tt is a matter of his- tory that up to 1870 the State refused to take any steps to secure land under it, because, for one reason, it preferred to make its selections under the school-land acts, even if damp enough to be called swamp, as in most cases the dampness was a recommenda- ' 2 Paine C. C. 545. =" 19 Ind. 453. Title by Estoppel. 813 tion rather than otherwise. In the meantime this land was selected and approved as Avagon road land, with the acquiescence, if not the concurrence, of the State, for the benetit of its grantee, and therefore it is now estopped to deny directly that it is included in such giant, or indirectly, by alleging that it is swamp laud. " A paper was also offered in evidence by the plaintiff, executed by the governor of the State, under the great seal thereof, on October 2, 1871, reciting the grant to the State, and the assign- ment thereof to the wagon road company, and certifying that the road had been duly constructed and accepted, and that ' the lands along the line of said road, to the extent of 860,000 acres, have under gaid donation and grant passed to and become the absolute property of said company, as a patent or grant from the State, but was not received as such, because it did not purport to be a grant or patent, but only a certificate, that in the opinion of the executive, certain lands, including the premises in controversy, had become vested in the wagon road company by virtue of the congressional and legislative grants, and the subsequent construc- tion of the road, and because it does not appear that the governor Avub authorized to issue a patent for the premises under any cir- cunistances.' "My conclusion is:' 1st. That the patent is conclusive evi- dence in this action that the premises are not swamp, and there- fore the oral evidence to that effect cannot be considered ; and 2nd, that the State is estopped to deny that the premises are indnded in the wagon road grant, and therefore its tenant, the defendant, is also." When a deed is executed, or a contract made on behalf of a State, by a public officei-, duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the State, notwithstanding that the officer may be described as one of the paities, and may have affixed his individual name and seal. In such cases the State alone is bound by the deed or con- tract, and can alone claim its benetits.* And in Louisiana the after acquired title of the State was held to pass to the grantee '5F. R B34. Hodgson v. Dexter, 1 Crancb, 345; "Sheets v. Selden, 2 Wall. 177; Siincbtield v. Little, 1 Me. 231; State V. JVIcCiiuley, 15 Cal. 456. 814 The Law of Estoppel. of the State.' In the case of Kansom v. Wliite,« Mr. Justice Bradley in delivering the opinion of the court, says, " if the grant was in fact for the north-east quarter, the government could not have reclaimed that quarter against its own patent." § G80. A covenant of warranty is a perpetually operating covenant.' AVhen made in a deed by a grantor, has the same effect as if a particular recital or averment is inserted in his deed. Its effect as an estoppel is similar to that of a recital, upon this principle of conclusiveness : A grantor who has deliberately made certain representations and covenants of warranty in his deed, is not allowed to controvert tlie fact that he owned an interest in the estate which by his deed he granted, in order to set up a claim hostile or adverse to the title of his grantee, where his grant is of land or an estate, and not a quit-claim deed or a mere release of his interest or title to the same. A man is never allowed to claim in opposition to his deed, b}' averring that he had no estate in the premises. So where the plaintiff's ancestor conveyed the premises to the grantor of the tenant, the ground of the plaintiff's claim was, that when tlieir ancestor conveyed the land, he had no title to it, but acquired one subsequently in his lifetime, which had descendtid to them. Tilghman, C. J., says : " Can his heirs recover against his grantees? In such case they would be estopped by their father's deed from denying his title, and if there were occasion for further assurance, equity would compel them to make it."' " So in equity, a grantor conveying lands for which he has no title at the time, shall be considered trustee for the grantor, in case, at any time afterwards, he should acquire title." " Chancery would compel them (the plaintiffs) to convey to the defendants."* § 681. Where one conveys land with warranty, before he acquires title, he cannot bring ejectment upon his subsequently 1 Scuddy V. Scbaffer, 10 La. An. Somes v. Skinner, 3 Pick. 53. 133. * McWilliams v. Nisely, 2 S. & R. 2 17 Wall. 40. 507; Gould v. West, 32 Tex. 338; 3Terrett v. Taylor, 9 Cranch, 43; Reeder v. Craig, 3 McCord, 411; Jackson v. Matsdorf, 11 Johns. 97; French v. Spencer, 21 How. 228; Jackson v. Wright, 14 Johns. 183; AYashabaugh v. Entriken, 34 Pa. St. McWilliams v. Nisly, 2 S. & R. 513; 74. Title by Estoppel. 815 acquired title, against the grantee or his assigns,' It estops the grantor and his privies from any future claim of title, and passes an interest and a title the moment any estate in the land comes to the grantor.^ The estoppel applies where the property is devised to the former grantor." A grantor igi a deed conveying property in fraud of creditors is estopped, as well as his administrator, to avoid the deed.* The estoppel includes the heirs of the grantor. A grantor in fee witli covenants of warranty, can not deny that the heirs of the grantee are seized in fee. A title subsequently acquired by him inures to their benefit, unless, perhaps, with this exception : when an after acquired title is obtained through a judicial sale for taxes, or otherwise. This applies to a sale made by an administrator, even though under many statutes the estate be held over in fact for a tenu of years only." § G82. The words " grant, bargain, and sell,'^ conveying the fee, amount to an express warranty, and pass an after acquired estate." The words " grant, bargain and sell," conveying the fee subject to divestiture on the performance of the condition expressed, passed all G.'s title to the property ; and G. was estopped from asserting against the mortgagee the title acquii'ed from E..' So the words " give, grant and release," were con- strued as amounting to an estoppel," but the words " bargain, sell, release, quit-claim and convey," are words of release and quit-claim merely without operating as an estoppel.* So a subse- quent title inures under a covenant for further assurance in a quit-claim deed, as well as under a covenant of warranty,'" and ' Lindsey v. Ramsey. 22 Ga. 627; Dewitt, 3 N. Y. 276. Drake v. Root, 2 Cal. 685; Massie v. " Perry v. Calvert, 23 Mo. 361; Beale Sebastian, 4 Bibb. 386. v. Hall, 22 Ga. 431; Furguson v. •^ Moore v. Rake, 26 N. J. L. 574; Coleman, 5 Ileisk. %78. Philly V. Sanders, 11 Ohio S. 490; '^ .Jones v. King, 25 ill. 383. Wiesnerv. Zaun, 39 Wis. 188. « De Wolf v. llaycleu. 24 111. 525; =* Washabaugh V. Entriken, 34 Pa. Blakcslee v. ins. Co.. 57 Ala. 205; St. 74; McKiunie v. Littlejolin, 2 N. Gibson v. Choteau, 39 Mo. 536. &M. 52; Hayes v. Tabor, 41 N. H. ■> I3lackeslee v. Ins. Co., 57 Ala. 205. 531; Robertson v. Wilson, 38 N. II. ^ Fairiey v. Fnirley, 34 Miss. 18. 38; Vreeland v. Blauvelt, 23 N. J. E. « G.bsoa v. Cboieau, 39 Mo. 536. 43; Teflfts v. Munsou, 63 Barb. 31; '"Bennett v. Walker, 23 111. 97: Gritlin v. Henderson, 70 Pa. St. 25; Welch v. Button, 79 111. 405; Chaii- Read v. Fogg, 60 Me. 479; Allen v. win v. Wagner, 18 Mo. 531; Smith v. 810 The Law of Estoppel. where a grantor with full covenants of warranty against incum- brances, pays otf or buys in a prior mortgage, or buys the land at a foreclosure sale under it, the right and title he thus acquires inures to the benefit of his warrantee.' Lineal warranty estops the warrantor and his heirs from ever afterwards claiming title to the lands. To any such claim the warranty is a perfect defense or rebutter.'' But unless the deed contains covenants of general warranty, it cannot operate as an estoppel to pass an after acquired estate. So, where an instrument under seal contained the names of the parties, a description of land, and a covenant of warranty of the land described, against all persons claiming under the covenantor, but no words of grant, the covenant was held to operate as an esto])pel by way of rebutter to prevent circuity of action, as between parties and privies.' § 6S3. The 'deed of an attorney estops him and all persons claiming under him." It is said that the fact alone, that one as attorney in fact for another, executed to a third person a deed of land, does not constitute an estoppel so as to prevent him from afterwards setting up a title to the property acquii'ed by him from tiie person for whom he acted as attorney in fact, before he exe- cnted the deed.^ An alienation of the interest of one joint tenant, either by deed or other legal process, is not void for all purposes, but operates against him and all -claiming under him by estoppel, whether he had notice or not, and can only be avoided by the co-tenant who is injured or those claiming under him. So a deed of conveyance, release, and partition, between all the claimants of a certain tract, with a proviso that it is to take effect when, and only when the commissioners thereby appointed to make parti- tion shall have recorded their report, estops a party to it to deny that he had tit^e, and to dispute the title, the other parties derive under it. He can not aftei-wards set up that he only released a Baker. 1 Y. & C. 223; Robertson v. v. Cornell, 3 John. Cas. 174; Kessel- Wilson, 38 N. H. 48; Jones v. King. man v. Ord, 4 Dull. 168. 25 111. 383; Mills v. Catlin, 22 Vt. 98; ^ jjiq^.,, y Manter, 21 N. H. 528. Steiuer v. Baughmau, 12 Pa. St. 106. * Lee v. Getty, 26 111. 76; Gibbons ' Brundred v. Walker, 12 N. J. E. v. Hoag, 95 111. 45. 140. ' ymith V. Penny, 44 Cal. 161; « Smith V. Smith, 14 Gray, 532; Den Wrightv. DeGroff, 14 Mich. 164. Title by Estoppel, 817 certain title to the land, and that he held at the time, and now holds by a paramount title.' § 6S4:. In England, while a contingent remainder will not pass bv legal conveyance, yet it may pass by estoppel, but a feme covert not being bound by an estoppel, cannot convey such remainder," by fine or recovery, so as to bind the party when the contingency happens, after the death of the original remainder- man, and such remainder is assignable in equity/ A fine by a contingent remainderman passes nothing but operates by esto])pel, and has an ulterior operation when the contingency happens, the estate, which then becomes vested, feeds the estoppel and the fine operates upon it as though it had been vested when the fine was levied/ A vested remainder, lying in grant, passes by deed with- out livery ; but a contingent remainder is a mere right, and can- not be transferred before the contingency happens, otherwise than by way of estoppel, and therefore cannot be conveyed by a married woman. Any conveyance by matter of record or by deed indented, will work an estoppel. So if there be an estate to A. and B., and to the survivor in fee, a couvej'ance operating by way of an estoppel, will bind the contingent remainder in fee in the survivor. A lease and release, if the latter be by deed indented, will work an estoppel. The estate for life is only a tangible interest, and the other is a mere possibility, and estoppels exist where no interest passes from the party. One holding a vested interest and a contingent interest, conveying by deed with warranty his right, title and interest therein, passes his vested interest only by the deed, and is not estopped thereby to claim his contingent interest when it becomes vested.^ § 685. Where an estoppel works on the interest of land, it passes with the land. An estoppel is not a mere conclusion, but may pass an interest and constitute a title from the moment the grantor acquires one, and all who come in the post are bound by the estoppel ; though claiming under another title. The grantee's right is not limited to a claim by the grantor or his ' Tewksbury v. Piovizzo, 13 Cal.20. " Doe v. Martin, 8 Barn. & C. 497; « Deu V. Demarest, 1 N. J. 511. Vieelaud v. Blauvelt, 23 N. J. E. 483; ^2 Cruise, 393; Doe v. Martin, 8 Barwick v. Wood, 3 Jones L. 306. Barn. & C. 516. » Blanchard. v. Brooks, 14 Pick. 47. Vol. I.— 53 818 The Law of Estoppel. representatives; he may defend against trespassers or disseizors. Though a warranty estop the lieir and liis issue it docs not estop the purchaser under a judgment against the heirs, recovered during the life of the ancestor and before the deed from wliicli the estoppel would arise.' Where the husband conveys the wife's estate and afterwards inhei'its it from her, he is estopped.* So an heir and residuary devisee, who has given bond as such devisee, to pay the debts of his testator, is' estopped to set up a subse- quent title as heir of the testator's wife, against a warranty deed made by the testator, although all right of action on the covenants in the deed is barred by the statute of limitations.' So where A. conveyed with warranty to B. land claimed by his father, and after the father's death purchased land of the heirs, one of whom was the wife of B. and released wnth her liusband all her right, while B. could not claim against his own deed the share of his wife, all the residue inured to him by estoppel.* § 686. The rule that one having no title, but conveying with full covenants of warranty, and subsequently acquiring title, is estopped as against his grantee, to deny that he had a good title .at the time of his grant, and that the new title inures to the grantee, applies in a snit upon the covenant for seizin, where the covenantee is in possession ; but where the grantor purchases the paramount title after the eviction of his grantee, such title does not inure to the grantee by way of estoppel, without his consent, so as to defend his right to sue on the covenants of warranty, and to recover the consideration, neither can the grantor avail himself of it in mitigation of damages.* But if, before the covenantor acquires a title, the covenantee sue for a breach of the covenant of seizin he cannot defeat that action by purchasing in the title and tendering it to liis covenantee, if the latter refuse to accept it.^ But if the title comes to the covenantor i-n the capacity of trustee, and not in his own right, it would not inure to the prior ' Jackson v. Bradford, 4 Wend. ^ Cole v. Raymond, 4 Gni^', 217. 619. * Kimball v. ScbolT, 40 N. H. 190. "" Clark V. Slaughter, 34 Miss. 05; ^ Burton v. Reeds, 20 Ind. 87; Simmons v. Logan, 1 Ilarr. 110; Meyers v. Croft, 13 Wall. 291. Patrick v. Chenault, 6 B. Mon. 315. s Tucker v. Clarke, 2 Sandf. Cb. 9ft. Title by Estoppel. 819 covenantee. The estoppel would not apply in such a case.^ The covenantee may estop himself from settin^^ up the covenant of his grantor, by way of claiming the estate. If the purchaser under a deed with general covenants of warranty, be evicted by a better title, it is not in the grantor's power afterwards to acquire a title to the premises, and compel the grantee to accept the same against his will ; but if instead of claiming the land, the purchaser sues upon his covenants, and recovers damages for a breach thereof, he is estopped thereby from claiming the land by estoppel, though his grantor and covenantor should have acquired it.'' Nor will such covenant prevent the grantor from subsequently acquiring a title to the granted premises, and availing himself of it against his own grantee, if the title conveyed by such grant was, at the time a good one. Thus, where the grantor disseized his own grantee, and held adverse possession for twenty years, he was not estopped by his former deed and covenant, to claim title to the premises by such disseizin.^ § 687. If a grantee after eviction by the holder of a para- mount title, recovers damages for the breach of the covenants of seizin on the ground that the grantor had no title whatever, the operation of it must be to estop the grantee from setting up the deed afterwards as a conveyance of the land, against the grantor. The grantor may again enter if he chooses as against the grantee. A recovery in trespass or trover, vests the property in the party against whom the damages are assessed. And there is nothing in the nature of the feudal investiture, or in the principles which regulate the title to land that requires a different rule in relation to real estate." The record of the recovery will furnish as good an estoppel as that which arises from a disclaimer,^ when land ' Burchard v. Hubbard, 11 Ohio, Smith v. Monies, 11 Tex. 24; Stearns 316; Kelly v. Jeaness, 50 Me. 455; v. Hendersas, 9 Cash. 503; Parker v. Sinclair v. Jackson, 8 Cow. 587; Proprietors, 3 Met. 102. Jackson v. Hoffman, 9 Cow. 273; * Burton v. Reeds, 20 Ind. 87. Jackson v. Mills, 13 Johns. 463. 5 Parker v. Brown, 15 K H. 176; = Blauchard v. Ellis, 1 Gray. 195; Hamilton v. Elliot, 4 N. H. 182; Por- Baxter v. Bradbury, 20 Me. 2G0; Porter ter v. Hill, 9 Mass. 36; Slinson v. r. Hill, 9 Mass. 34. Sumner, 9 Mass. 143; Morris v. Phelps, » Tilton V. Emery, 17 N. H. 538; 5 Johns. 49; Fitch v. Baldwin, 17 820 The Laav of Estoppel. conveyed by A. to B. with general warranty, and subsequently granted by B, to C. with warranty, but subject to incumbrances, was sold under a judgment against A., and bought in by him, it was held that the title thus acquired might pass to B. but that C. could claim nothing under it, who had taken subject to the first judgment on which execution was issued,' where the deed does not, on its face, purport to convey an indefeasible estate, but only the " right, title and interest " of the grantor, even although deed may contain a general covenant of warranty where that covenant is held to be limited and I'cstrained by the estate conveyed and not to warrant a perfect title, the estoppel does not apply; while a warranty is invested with the highest functions of an estoppel in passing, by mere operation of law, an after acquired estate, it loses that attribute when it is apparent that the grantor intended to convey no greater estate than he was possessed of. " Thus a devisee, being entitled to a vested remainder in one moiety, and a contingent remainder in another moiety of certain real estate held in common with other devisees, conveyed all his 'right, title, and intei-est in and to the undivided real estate devised,' with unlimited covenants of warranty and for quiet enjoyment, he was held to have conveyed only his vested interest, and the warranty being only co-extensive with the grant, he was not thereby estopped to claim the contingent interest when it became vested in interest and possession by the happening of the contingency."* § 688. Where a deed conveys title, a warranty can never operate as an estoppel.' A vendee holds adversely to his vendor, and is not estopped from denying his vendor's title." There is no general or inflexible principle which estops the gi-antee fron) showing that the grantor had no title, or none which was ca]);tble of being passed by the grant. The mere acceptance of a con- veyance does not prevent him from showing want of estate in the grantor of the land conveyed.^ By accepting a deed the Johns. 161; Blanchaid V. Ellis, 1 Gray, ^ L^wis v. Baird, 3 McLean, 56; 195. Jackson v. Hoffman, 9 Cow. 271. ' Skinner v. Starnera, 24 P. St. 125. " Cutter v. Waddingham, 33 Mo. =" Blauchard v. Brooks, 12 Pick. 47; 269. Wyun V. Harman, 5 Gratt. 157; White ^ Sparrow v. Kingman, 1 N. Y. 242; V. Brocaw, 14 Ohio St. 339. Averill v. Wilson, 4 Barb. 180; Blair Title by Estoppel. 821 grantee is estopped to deny the effect and provisions of such deed.' A person is not allowed to accept a deed with covenants of seizin, and then set up breach of covenant on the ground that the grantee is himself seized at the time of the making of the deed.^ Where one who owns land adjacent to that of another, purchases of the latter a parcel bounded by his own, and the line is definitely described in the deed, he and his successors are estopped to claim that he was at the time of purchase, holding adversely any part of the land beyond the boundary line therein described.^ A grantor may disseize his grantee, and if he does, he is not estopped by his deed, from claiming title against his grantee, by adverse possession, as such disseisor to the land which he had formerly conveyed." The court of Massachusetts, while maintaining that if one grants his right, title, claim, and demand to an estate with covenants of warranty against all persons claim- ing by or under him, the grantor is not estopped to set up a newly acquired title against his own grantor, and decide that a grantor of an estate is estopped by his conveyance to deny that he had any title in the land at the time of the conveyance, and whatever interest he had, passed to the grantee by his deed.' Where a person assents to an act, and derives and enjoys a title under it, it shall not lie in liis mouth to impeach it.^ § 689. Where in a deed with covenants of w^arranty, there is a recital of an outstanding mortgage, the recital qualifies the covenant.' So where the grant is in the form of a release or quit- claim of all the grantor's right, title and interest, with covenants of warranty against all persons claiming by or under him, while V. Smith, 16 Mo. 275; Croxall v. Beebee v. Swartout, 8 111. 162. Sherrerd, 5 Wall. 287. ^ Hodges v. Eddy, 38 Vt. 349; Root ' Slicp. Touch. 53 ; Comstock v. v. Crook, 7 Pa. St. 378. Smith, 13 Pick. 116. * Franklin v. Borland, 28 Cal. 180; ^ Fitch V. Baldwin, 17 Johns. IGl; Hines v. Robinson, 57 Me. 331; Trapp Blight V. Rochester, 7 AVheat. 543; v. Trapp, 57 Me. 268. Furness V. Williams, 11 111. 229; Ward * Comstock v. Smith, 13 Pick. 116; V. Mcintosh, 12 Ohio St. 237; Springs S. P., Bruce v. Lake, 9 Kas. 201. stein V. Schermerhorn, 12 Johns. R. « Rex v. Stacy, 1 T. R. 4 ; Ford v. 363; Rennick v. Bank, 8 Ohio, 530; Flint, 40 Vt. 382; Clee v. Steeman, 21 Dock Co. V. Leavitt, 54 N. Y. 35; Mich. 297. Breeding v. Stamper, 18 B. Mon. 175; ' Jackson v. Hoffman, 9 Cowen, 271 822 Thk Law of Estoppel. such a grant as this estops tlie grantor from claiming that any title existed in him at the time of making his deed, it is no estop- pel as to any after acquired title.' Where the covenant for seizin is satisfied by the transfer to the purchaser, of an actual though a tortious seizin (as is the case in many of the New Eng- land States), no estoppel is created by that covenant.^ Where the covenant of warranty is limited to the acts of the grantor, and the purchaser would not be entitled to sustain an action upon it, by reason of the defect of title not being of the grantor's own creation, and therefore not coming within the scope of the cove- nant, there will be no estoppel, and an after acquired estate will not pass to the purchaser. Judge Wilde, in delivering the opin- ion of the court, said :' " If the grantee were not entitled to recover the value of laiid on the grantor's covenant of warranty, then in such a case it is obvious that this species of estoppel would not be applicable. And such appears to be the law in regard to the covenant in question, by which the demandants attempt to estop the tenant to set up or plead the title of Waters. The tenant's covenant is a restricted covenant, and is coextensive with the grant or release. He agrees to warrant the title granted or released and nothing more. That title only he undertook to assert and defend. To extend the covenant further would be to reject or do away with the restrictive words of it, and to enlarge it to a general covenant of warranty, against the manifest inten- tion of both parties. The tenant, in covenanting to warrant and defend the granted or released premises, must be understood to refer to the estate or title sold or released, and not to the land, because he did not certainly intend to warrant any estate or title not intended to be conveyed. Now if Waters, after the tenant's quit-claim deed, had evicted the demandants, this would have been no breach of the tenant's covenant. Or, if the tenant now » Comstock V. Smith, 13 Pick. 116; Galvin, 29 Me. 183. Jackson v. Peck, 4 Wend. 300; Miller '^ Fox v. Widgeon, 4 Me. 218; Alk-n V. Ewing, 6 Cush. 36; Kinsmaa v. v. Say ward, b Me. 227; Doaue v. Wil- Loomis, 11 Ohio, 475; Ilarimau v. ciUt, 5 GraJ^ 328. Giay, 49 Me. 538; Doane v. Wilcuit, 3 Conistock v. Smith, 13 Pick. 113; 5 Gray, 328; Ham v. Ham, 14 Me. 351 ; Bell v. Twilight, 26 N. H. 401 ; Tillot- Coe V. Persons, 43 Me. 433; Pike v. sou v. Kennedy, 5 Ala. 413; Cbauvin V. Wagner, 18 Mo. 531. Title by Estoppel. 823 beld under Waters without having obtained the fee from him, lie might pray AVaters in aid, and thus defend liimself against the title of the demandants, the title of Waters being, as the plea avers, the elder and better title, and this also, would be no breach of the tenant's covenant. He did not undertake to convey to demandants an indefeasible estate, but only his own title ; nor did he agree to warrant and defend it against all claims and demands, but only against those derived from himself, by which he must be understood to refer to existing claims or incum- brances, and not to any title which he might afterwards acquire by purchase or otherwise from a stranger.' There is, therefore, no reason to be assigned why the tenant should not purchase the title of Waters. The demandants cannot thereby be prejudiced, nor ought they therefrom to derive any benefit. " It was then contended by the demandant's counsel, that, admitting tlie ten- ant is not estopped by his covenant of warranty, he is neverthe- less estopped by his conveyance to deny that he had any title in the land at the time of the conveyance. This also is a well established principle of common law.* But the tenant, in his plea, does not deny that he had anj' title to the land ; on the contrary, he avers that before the time of his conveyance he was in possession of the land under Waters; that afterwards the demandants disseized Waters, and being seized by disseizin, they conveyed to the tenant all their right and title, with a covenant of warranty similar to the one contained in his conveyance to , them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any such averment in the pleadings. The tenant, at the time of his rcconvej'ance, might have had a valuable interest in the land by possession and improvements, although Waters had a paramount title. This interest, whatever it vvas, passed to the demandants by the ten- ant's deed, and it was all the title lui had to convey, or was ex- pected to convey. If, under these circumstances, the demand- ants could now acquire, without any consideration, another title by estoppel, we should be compelled to admit that estoppels are as odious as they are sometimes said to be. But the doctrine of ' Ellis V. Welch, 6 Mass. 250. ray. 12 Johns. 201 ; Jackson v. Bull, 1 'Co. Litt. 45, 47; Jackson v. Mur- Jobns. Cases, 91; Isham v. Monice, Cro. Car. 110. 824 The Law of Estoppel. estoppel aids iiincli in the adiniiiistratiou of justice. It becomes odious only when misunderstood or misapplied. Nothing can be more just than the doctrine oi estoppel urged bj' the demandants' counsel, when applied to a conveyance with a general covenant of warranty ; but to apply the doctrine to the tenant's restricted conveyance and covenant, would bo a manifest perversion of the piinciple upon which the doctrine is founded." § 690. A mere intention to convey will not be sufficient to pass a subsequent estate,' No particular form of words is essen- tial to a conveyance to uses, but the deed, if it cannot operate in one way, may in another, to effectuate the manifest intention of the grantor. Thus where lands were sold with warranty, in which the grantor at the time had no interest, an after acquired interest in them was not lield to pass by estoppel, but as he had conveyed for a valuable consideration his interest to the grantee, and such being his intention, a court of equity would decree a title thereto, and a second grantee, purchasing wirh notice, could not hold." This is a distinction without a difference. In the case of a conveyance, before the grantor has acquired the title, the legal estate is not transfen-ed by the statute of uses, but the conveyances operate as an agreement, which the grantor is entitled to have executed in ciumcery. § 091, A covenant of warranty estops the grantor from set- ting up an after acquired title against the grantee, for it is a perpetually operating covenant; but he is not estopped by a cov- enant that he is seized in fee and has good i-iglit to convey,* for any seizin in fact, though by wrong, is sufficient to satisfy this covenant, its import being merely this, that he has the seizin in fact at the time of conveyance, and thereby is qualified lo trans- fer the estate to the grantee.^ A grantor, conveying by deed of bargain and sale, by way of release or quit-claim of all his right and title to a tract of land, made in good faith, and without any fraudulent representations, is not responsible for the goodness of ' Chew V. Barnett, 11 S. & R. •» Chapell v. Bull, 17 Mass. 213- 389. Marston v. Hobb? ^ Mass. 433; Bcaice " Way V. Arnold, 18 Ga. 181. v. Jackson, 4 Mass. 408; Twambly v. 2 Allen V. Saj^ward, 5 Me. 227. Ilenley, 4 Mass. 441 ; Stevens v. Ste- vens, 13 Johns. 31G. Title by Estoppel. 825 the title beyond the covenants in his deed. A deed of this char- acter purports to convey nothing more than the interest or estate of which the grantor is seized or possessed at the time, and does not operate to pass or to bind an interest not then in existence.' Neither is one wlio has purchased land in his own name for the benefit of another, which he has afterwards conveyed by deed to his employer, estopped by such deed from claiming the land by an elder and after acquired title. Nor is the heir estopped from questioning the validity of his ancestor's deed, as a fraud against an express statute." But while a conveyance must necessarily fail of its object at law, unless the estate to be conveyed is vested in interest at the time when the deed is executed, it will, not- withstanding, be enforced in equity, as an executory agreement to convey, whenever the intention of tiie parties is apparent, and sustained by a sufficient consideration.^ § 692. An estoppel of a warranty may be restricted by its own terms, or by those of a deed in which it is inserted, and a deed without a warranty may operate as an estoppel, in order to prevent a faihire of the purpose for which it was executed.* Thus a warranty against a particular outstanding title will bind and pass that title by estoppel, if subsequently acquired by the warrantor." So where A., having only an equitable fee in land, mortgaged it by lease and release to B., covenanting that he was legally or equitably seized, and reciting that he was legally or equitably entitled to the premises, and the legal estate was after- wards conveyed to him, and by him was sold to C, he was not estopped to set up his after acquired legal estate, either by his covenant or his recital, they being in the alternative, and not pos- itive affirmations that it was a legal interest to which he was entitled, and that the words of release in his deed only operated to pass whatever interest he had in the premises at the time.^ And where the grant was of all the grantor's right, title and interest in certain premises, with covenants that neither the ' Van Rensselaer v. Kearney, 11 * Vau Rensselaer v. Kearney, 11 Howard, 297. Howard, 297. * Doe V. Lloyd, 8 Scott, 93. ^ gi^^e v. Tucker, 13 Vt. 39; Trull ^ Goodson V. Beacham, 24 Ga. 180; v. Eastman^ 3 Met. 121; Kimball v. Bayler v. Comfortb, 40 Pa. St. 37; Blaisdell, 5 N. H. 525. Way V. Arnold, 18 Ga. 181. « Right v. Bucknell, 3 B. & Ad. 278. 826 The Law of Estoppel. grantor, nor any person claiming nnder liim should claim, etc., there was held to be a qnaliiicd warranty of the land and prem- ises conveyed. The warranty was co-extensive with the estate which the deed purported to convey, bnt as that did not purport to convey any interest thereafter to be acquired, it did not affect any after acquired title.' § 693. Where a person' gives a quit-claim without covenants a title subsequently acquired by him does not inure to the gran- tee." Although a grantor cannot set up a hostile title existing at the time of his conveyance, because he is estopped by his cov- enant, yet if the deed be a mere quit-claim, without covenant or fraud, the grantor is not debarred from subsequently acquiring, and setting up, any other title, whether existing at the time of his conveyance, or subsequently created. He may set up, as against his own deed, a title acquired by him by a contempora- neous, or subsequent practical location, with an adverse possession for the requisite length of time.' Hence, a conveyance of all a man's right, title and interest will not estop him from proving that he had no right to convey, and evicting the grantee* by a subsequently acquired title,^ a conveyaTice by deed of bargain and sale or release without warranty or covenants, does not bind an after acquired estate then contingent.' A party against whom a judgment is rendered in a real action, he having then an equi- table title, is not thereby estopped if he afterwards acquires the legal title." So a covenant in a deed, that the grantor will war- ' Doane v. Wilcutt, 5 Gray, 328; Bruce v. Luke, 9 Kas. 201; Read v. Raymond v. Raymond, 10 Cush. 134; Whettemore, 60 Me. 479; Sydnor v. Gee V. Moore, 14 Cal. 472; Miller v. Palmer, 29 Wis. 226; Shumaker v. Ewing, 6 Cush. 34; Gibbs v. Tliayer, Johnson, 35 lud. 33. 6 Cush. 32; Newcomb v. Presbrey, 8 * Miller v. Ewing, 6 Cush. 34; Allen Met. 406. V. Ilolton, 20 P4ck. 458; Hope v. Mlariman v. Gray, 49 Me. 537; Stone, 10 Minn. 141 ; Locke v. White, Needles v. Hanifan, 11 111. App. 303; 89 Ind. 492; Right v. Bucknell, 3 B. Robertson v. Wilson, 38 N. II. 48; & Ad. 278; Friiick v. Darst, 14 111. San Franci.sco v. Lawton, 18 Cal. 465; 334; Kennedy v. Skeer, 3 ^Vatts, 95; Gibson v. Clioteau, 39 Mo. 566; Cadiz Shumaker v. Johnson, 35 Ind. 33. Majors. 33 Cal. 288; Graham v. Gra- * Lounsdale v. Portland, 1 Oreg. ham, 55 Ind. 23. 381. 3 Cramer v. Benton, 64 Barb. 522; « Brown v. Roberts, 24 N. H. 131; Freeman v. Thayer, 24 Me. 369. Title by Estoppel. 827 rant against all persons claim ing under liim, does not estop him from setting np a title subsequently acquired by purchase or otherwise.' § 694. Where a grant in a deed is of all the grantor's right title and interest in the land, and of the land itself, or any par- ticular estate in the land, the warranty is of the premises, viz. : of the estate granted, and must be confined to the estate vested. A conveyance of all the right, title and interest in land is sufficient to pass the land itself, if the party conveying has an estate therein, at the time of tiie conveyance, but it passes no estate which is not then possessed by the party.^ The grant in legal effect operates only to pass the vested interest, and the warranty being co-extensive with the grant, does not extend to the contin- gent interest, and does not operate on it by way of estoppel.^ The estoppel of a warranty may be limited by the object of the deed, and when that is simply to convey or divide an estate which the parties have, it will not take effect on an after acquired title.* § 695. In cases of involuntary alienation,^ as where a creditor levies upon the land of his debtor, the latter is not estopped to assert a subsequently acquired title.^ If a disseizee take a deed from his disseizor he is not estopped to set up a former and better title.' So where a grantee conveys all his right and interest in the granted premises he is not estopped to claim against his grantee under a newly acquired title, though his deed contains a general covenant of warranty.* A mere deed or grant with or without an indenture, does not in a court of law work an estop- pel. Whether operating as a grant, a release, or confirmation, ' Coraslock V. Smith, 13 Pick. 16; White, 89 Ind. 492. Jackson v. Winslow, 9 Cow. 13; •* Doaue v. Wilcutt, 5 Gray, 328. Kinsman v. Loomis, 11 Ohio, 475 » prgy ^ Ramsour, 66 N. C. 466; Jackson v. Hubble, 1 Cow. 613. Gorhani v. Brcniian, 2 Dev. 174; ^ Brown v. Jackson, 3 Wheat. 449. Emerson v. Sansom, 41 Cal. 552; Du- ^ Miller v. Evving, 6 Cusli. 34; gald v. Dougherty, 11 Ga. 578. BluHchard v. Brooks, 12 Pick. 47; "^ Freeman v. 'J'hayer, 29 Me. 369; Patterson v. Pease, 5 Ohio, 190; Tillotson v. Kennedy, 5 Ala. 413; Kercheval v. Triplett, 1 A. K. Marsh. Friuk v. Darst, 14 111. 304; Brown v. 493; Dougal v. Fryer, 3 Mo. 29; Sliu- Roberts, 24 N. H. 131. maker v. Johnson, 35 Ind. 33; White ' Flagg v. Mann, 14 Pick. 47. V. Brocaw, 14 Ohio St. 339; Locke v. « Hope v. Stone, 10 Minn. 133. 828 The Law of Estoppel. if an lieir apparent wero to grant his interest, it would not have any effect at law, though lie slum Id afterwards become actually seized. The words " granted, bargained, tfold and released," in a deed, do not amount to an estoppel as to any future estate, nor do any of the deeds which take effect by the statute of uses.' Wliilc a deed of acquittance or release may in certain cases be an esto])- pel, it being a valid and final bar to all existing claims, and all the possibilities arising from previous contracts, of which it imports a relinquishment, it cannot affect rights of which the foundation is subsequently laid.° Thus where one who was entitled to a contingent remainder conveyed the same, and subsequently the estate became vested, if the conveyance was by quit-claim, the deed was no estoppel to his claiming the estate, if with cov- enants of warranty, it is an estoppel. In this case the contin- gency consisted in the grantor'^s taking as the oldest surviving son at the death of his father.^ So a release of a disseizee to a disseizor, will effectually estop all of his claim to the estate." A grant, release, or bargain and sale, only operates as an estoppel between parties and privies, and does not bind or transfer future or contingent estates by estoppel. An estate acquired after the execution of a deed will not pass by its operation merely as such, and no contingent or executory estate can be conveyed either by a common law grant, or under the provision of the statute of uses, and that not oidy does not pass by the estate, but it does not estop the grantoi- and those claiming under him from recov- ering the land at a subsequent period.^ § 696. A deed estops the grantor from an equitable claim,' ' Brow'j V. Jackson, 3 Wheat. 449; ILun v. Ham, 14 Me. 3G1; Kinsman Kimball v. Blaisdell, 5 N. II. .WS; v. Locmis, 11 Oiiio, 475; Biown v. Dartv. Dart, 7 Conn. 250; Clark v. .lackson, 9 Wheat. 453; Bell v. Twi- Baker, 14 Cal. 612; Burt Real Frop. light, 26 N. H. 401; Sparrow v. King- § 593; Wms. Real Prop. 329. man, 1 N. Y. 242; Dodswell v. Bucli- « Co. Litt. 265, a.; Burt Real Prop. anan, 3 Leigh, 365; Dart v. Dart. 7 §149. Conn. 250; Robertson v. Wilson, 33 3 Robertson v. Wilson, 38 N. 11. 4S; N. II. 48; Mallaek v. Lee, 9 lud. 298; Read v. Fogg, 60 Me- 479. Frink v. Dar.st, 14 HI. 304; Blandiard •* Perkins, § 86; 2 Prest. Conv. 269. v. Brooks, 12 Pick. 47; Byler v. Com- ^ Pellctrau v. Jackson, 11 Wend. monwealth, 40 Pa. St. 37; Pass v. 110; Jackson v. Waldron, 13 W'end. Lee. 10 Ired. 410. 178; Comstock v. Smith, 10 Mass. 116; •> Breeding v. Stamper, 18 B. Mon. 175. Title by Estoppel. 829 or a claim of homestead.' The rule of law forbidding champerty- does not prevent an estoppel of the grantor himself.'' Where A. convej'ed to B. land to which he had no title, but afterwards obtained a deed, took actual possession, which he held adversely to all the world for seven years, it was held that B.'s right of entry was taken away.' § 697. A case similar to the instances heretofore cited of an after acquired estate passing by estoppel but not resting on the same technical ground is where one conveys an undefined interest in lands, to which at the time he has a general and undelined title, and subsequently acquires certain specified lands in comple- tion of his former right. The lands immediately vest in the assignee. Thus, where one having a contract for a grant of 8,000 acres of land from a State upon the completion of certain roads, to be laid off in any lands through which such roads might pass, before any survey or conveyance from the State ; trans- ferred an undivided third of this quantity of land, and after- wards took a deed from the State ; both the gi'antor and all claiming under him were estopped from claiming such third part.'' So where a joint proprietor of a township entitled to a certain number of acres, conveys his interest before any location is made to him, a subsequent location inures to the benefit of the grantee and vests a portion of the land in him in severalty." § 608. Where tenants in common convey jointly with war- ranty land upon which one of them has a mortgage from the other, the tenant is estopped after making his joint warranty deed from claiming any interest in the land under the mortgage made to him by his co-tenant.'^ So a surviving partner of a firm which had been engaged in gambling, and purcliased and used a house for gambling purposes, cannot iui peach the title of the grantee of the other partner, on the ground that the house is unlawfully used, being estopped by his privity with the grantor.' Where an ' Foss V. Strachn, 42 X. H.40; Will- ■•Fairbanks v. Williamson, 7 Me. lams V. Sweetland, 10 Iowa, 51. 96. ■^ Nance v. Thompson, 1 Sueed, ^ Burgbardt v. Tiu-ner, 12 Pick. 321. 534. » Eddleman v. Carpenter, 7 Jones, "^ Denham v. Allen, 20 Me. 228. 616. 1 Watson v. Fletcher, 7 Grattan, 1, 830 The Law of Estoppel. occupant of lands claims under a warranty deed from a third per- son, he is estopped to allege that he holds in common with the plaintiff.' So one of two grantees who lias accepted the deed hy acting under it, in executing conveyances for parts of land, is estopped from denying the title of his co-tenant in common, and cannot claim the whole by a title ]xiramouMt to that under which his co-tenant claims." A party cannot controvert the title (tf one under whom he claims.' If either the pleading or evidence show that both parties trace their titles to the same source, neither can be permitted to attack the title of their common grantor.* So where one has expressly recognized the title of another, and thus estopped himself from questioning its validity holding under him as vendee, must be held to a i-ecognition of that title, and nnist sliow that he has accpiired it.^ A party cannot set up and at the same time deny the title under which he holds, as against his adversary having claim under the same title.' Thus where a party, whose land is sold for the non-payment of taxes, in an action for the land, is estopped to sa}' that nothing passed hy the sale and that he had no title.' So an attorney who procured a judgment for his client which he knew to be invalid, and after- » Siglar V. Van Ripar, 10 AVeud. 414. 2 Funk V. Newcomer, 10 Md. 301; Taylor v. Needhani, 3 Taunt. 278; Doe V. Stone, 3 C. B. 176. 3 Gillian v. Bird, 8 Ired. 280: Crocker v. Pierce, 31 Me. 177; Russell V. Watt. 41 Miss. 602; Ives v. Sawyer, 4 D. & B. 51; Warsloy v. Johnson, 5 Jones, 72; Itochell v. Benson, Meigs, 3; "Wilkinson v. May, 3 Head, 173; Woburu V. Ilenshaw, 101 JMass. 193; Murphy v. Baruett, 2 Murph. 201; Wall V. Hill, 1 B. Mon. 290; Sim- mons V. Hendrick.sou, 3 Harr. 103; Den V. Gates, 4 D. & B. 303; Conklin V. Smith, 7 Ind. 107: Douglass v. Scott, 5 Ohio, 194; Brown v. Coombs, 29 N. J. L. 36; Boiling v. Teel, 76 Ya. 487. * Boiling V. Teel, 76 Va. 487; An-.es V. Beckley, 48 Vt. 395; Whissenluirst V. Jones, 78 N. C. 361. 5 Giranlt v. Zuntz, 15 La. An. 684; Williams v. Howard, 3 Murph. 74. •^ Cliouquette v. Barada, 33 Miss. 249; Estep V. Estep, 23 lud. 114; Mil- ler V. Larson, 17 Wis. 624; Ludlow v. Gilman, 18 Wis. 552; Elwood v. Lan- non, 27 Md. 200; Girault v. Zuntz, 15 La. An. 684; Bliss v. Smith, 1 Ala. 273; Walker v. Smith, 8 Cal. 398; Rochell V. Benson, 1 Meigs, 3; Wocni V. ^Maguire, 17 Ga. 303; Loyd v. Mortee, 14 La. Ann. 107; Dooky v. Woleott, 4 Allen, 106; Woolfoik v. Ashley, 2 Met. (Ky.) 288; Lund v. Bank, 37 Barb. 129; Piersou v. David, 1 Iowa. 23; Hotchkiss V. Thomas. 6 Jones L. 537. ' Norwich v. Congdon, 1 Root, 222. Title by Estoppel. 831 wards assisted liim to purchase the property upon execution sale thereunder, — Held^ to be estopped from afterwards acquiring title to the same property from the judgment debtor.' § 699. " A tax deed creates no estoppel upon the former owner for the reasons that it is not conchisive evidence of title. Its recital binds no one. It does not i_pso facto transfer the title of the owner as in grants from the government or in deeds between man and man. The deed is not the title itself nor even evidence of it. No presumption arises upon the mere production of the deed that the facts upon which it is based have any exist- ence ; when it is shown, however, that the ministerial otiicers of the law have performed every duty v»hicli it imposed upon them — every condition essential in its character — then the deed becomes conclusive evidence of title in the grantee according to its extent and import. But the instant it is shown, if it is shown tliat the requirements of the law were not complied with, the tax deed is a nullity. Nor can any legislative body declare that it is conclusive, for the reason that a state legislative body cannot violate the obligations of contracts and divest the estate of the citizen. It cannot do indirectly that which it is foi'bidden to do by direct means, nor can it under the guise of taxation or the appropriation of private property to public purposes, take the land of A. and give it to B. Suppose A. is the owner and in pos- session of a tract of land worth two thousand dollars. It is sold at a tax sale," and " B. purchased it at lifty dollars ; he procures his deed and brings an action of ejectment against A." A. relies upon one of three defenses which ordinarily are conceded to be valid. 1st. That the land was not sul)ject to taxation. 2. Or, that it was never listed or valued and assessed. 3. Or, that he paid the taxes before the sale. Can a legislature then step in and deprive him of his defense by declaring that a deed shall be con- clusive upon all points? Certainly not, for no legislature or law- making power possesses such arbitrary authority. § 700. The taxing power extends to the levy and collection of the tax. Taxable property is only embraced by it, and the power to collect cannot be extended so as to reacli and divest the prop- ' Ringo V. Binns, 10 Pet. 209; Phillips v. Blair, 38 Iowa, 649. 832 The Law of Estoppel. erty of one wlio has paid Lis tax promptly. The law does not, and never intended that a party who had performed all his duties to the public, should be deprived of his property in this way ; the power of taxation, so far as it relates to the collection of taxes, was designed to operate upon those only who should omit will- fully and negligently to pay these taxes to which they might be subject, and which should be legally assessed upon their estate, and not npon those who promptly perform all their constitutional obligation. The obligation is reciprocal : if the citizen performs his duty to the government, the government should perform its duties to the citizen. Among the first of these, is protection to his property — not only from private force, cupidity or fraud, but from governmental plunder, and it cannot be taken by the State, or its agents, with- out any fault or omission on his part. If the land was not liable to taxation, if no taxes had ever been assessed upon it, or if the taxes had been paid, the power of sale never attached to it, and for any legislature to declare or any court to decide that the owner is estopped under a tax deed, from showing that fact, is not only unconstitutional, but would be a monstrous doctrine. So that notwithstanding legislative enactment the doctrine of estoppel cannot be applied to a tax deed.' A party is bound by the record under which he claims title." A county making a tax deed is one of the grantors, and is estopped b}' tlie recitals therein. Thus, where a Clerk of the Board of Supervisors without author- ity has issued a tax certiticate, reciting that it was assigned by the county to J. C, and by him assigned to the defendant, the county is estopped from objecting to such assignment or the deed issued npon the certiticate, and the (county) former owner of the certi- ficate cannot avail itself of the original defect of authority. It estops itself by the issuing of the deed f but in later cases it is held, that a county is not estoj)j>ed to set up its title to land by the unauthorized acts of its officers in assessing and selling: its lands for taxes, the land not being taxable ; the sale and deed are void for all purposes* where one of the parties claiming title to » Blackwell oa Tax Titles. Laugljlin. 8 Ohio, 114. " Blackwell oa Tax Titles, 600; Coit ^ Woodman v. Clapp, 21 Wis. 350. V. Wells, 3 Vt. 318; Kellogg v. Mc- " Howard Co. v. BuUis, 49 Iowa, Title by Estoppel. 833 the land liad made, iu the capacity of collector, which office he formerly held, a tax deed of the laud, under wliich the other part}' claims, and such tax deed is void by reason of stating a sale in lump, whereas the sale was in parcels. The party who made the deed is not estopped from setting up the defect in the deed.* But a tax deed cannot be impeached by a mere intruder.^ A legislature cannot make a tax deed conclusive evidence of matters which are vitally es§ential to any valid exercise of the taxing power.^ But in Iowa the tax deed is made conclusive evidence that the property had been listed and assessed at the time and in the manner required by law, and that all the pre-requisites of the law were complied with. Under this statute, the deed is con- clusive evidence of the manner of the assessment, levy and sale, though not conclusive of these jurisdictional facts them- selves.'' 519; Bixby v. Adams Co., 49 Iowa, * jVIcCready v. Sexton, 29 Iowa, 3.'56; 507. Eeraa v. Cowan, 31 Iowa, 135; Eld- • Byum V. Cook, 21 Iowa, 392. ridge v. Kuhl, 27 Iowa, 160; Bulkly 2 Wheeler v. Winn, 58 Pa. St. 192. v. Callanan, 32 Iowa, 461; Eastou v. 3 Abbott V. Lindenhower, 42 Mo 62 , Perry, 37 Iowa, 681 ; Rev. § 784. Vol. I.— 53 834 The Law of Estoppel. CHAPTER XL LEASES BY ESTOPPEL. Section 701. Leases become operative by way of estoppel where a lessor, at the time of makin<>- the lease, has no estate iu the sul)ject matter of the lease. In order that the estoppel can operate upon a lease of this kind, it must be by indenture, thus becoming the act of both parties, in order that the estoppel thereby created may be mutual.' Mutuality is a necessary ing-redient of an estoppel. Thus, suppose A. makes a deed of indenture of lease of premises to which he has no title, and after- wards acquires one during the term ; he will not be admitted to deny that his lessee had a good title to the same, nor, on the other hand, will the lessee, if permitted to occupy under such a lease, be at liberty to deny the title of his lessor.* For the want of mutuality, infants and denies covert are excluded from the benefit of a lease by estoppel where the lessor has no title at the time of the demise.' The I'ule that the interest, when it accrues, feeds the estoppel, and that an after acquired estate inures to the benefit of the grantee, is peculiarly applicable, and in fact is one of the two modes under the old civil law, where an estate actually passed by estoppel. Such is now and ever has been the rule,* but is wholly inapplicable where the lessor has any legal estate in the premises which passes by the lease, other than that which ' Burton lieal Prop. § 850; Co. Lit. Burton Real Property, § 850; Smith 353, a; 1 Piatt. Lease.s, 55. Laud, and Tenant, 32; Co. Lit. 271; ^ Sturgeon v. Wingfield, 15 M. & Wms. Real Prop. 329; Bac. Abr. W. 224; Bank v. Mersereau, 3 Barb. Lea.se, O. Ch. 567; Rawlyn's Case. 4 Rep. 53; « Boiling v. Mayor, 3 Rand. 568; Wbitton v. Peacock, 2 Bing. IS. C. Doe v. Skirrow, 7 A. & E. 157; Rigbt 411; Wiam v. Morris, Cro. Car. 110; v. Bucknell, 2 B. & A. 278; Gillespiev. Luxton V. Stephens, 3 P. Wms. Nabors, 59 Ala. 441 ; 1 Piatt Leases, 55. 373 ; Jackson v. Bull, 1 Johns. Cas. •» Baxter v. Bradbury, 20 Me. 260; 81; Jackson v. Stevens, 16 Johns. 110; White v. Patten, 24 Pick. 324; Wms. Real Prop. 33C. Leases by Estoppel. 835 he has in terms demised.' One reason for this rule, is that in order to ascertain what the amount of tlie estate is which actually passes b}^ the lease, would open the very inquiry which it is the object and effect of an estoppel to preclude. It passes onlj^ what he has who makes it, while if it is wrongful, as by feoffment, fine, and the like, it operates to bar the estate which may after- wards be in the one making it.^ The distinction should always be observed between the conveyance of a particular parcel of estate by description, and of the right or title that the grantor has in it. § 702. A man, by accepting a lease by indenture from a stran- ger, may bind himself to be treated as the lessor's tenant, and to pay him rent during the term purported to be granted by the lease, unless he has been induced by fraudulent representations to accept the lease.' A lessee who has, under such a lease, had the possession and use of the property, is estopped from questioning- its validity in an action to recover the stipulated rent. The estop- pel which thus binds the lessee, also binds all who claim through or under him ; and one to whom he has transferred his interest in the demised property, and M'ho has had the use and occupa- tion thereof, may not question the validity of his lease." Where one in possession of land, coveiiants with the owner to purchase it of him, but fails to, and the vendor brings ejectment for the land, the tenant is estopped by his covenant to set up an out- standing title against the claim of the plaintiff. If the title of a co-tenant entitled to disaffu-m a lease becomes vested in the one by whom the instrument was executed, the newly acquired title of the lessor will inure by estoppel to the benefit of the lessee." § 703. Estoppels appl_y to leases for years with greater force than to deeds poll. Thus, if a person execute an indenture, pur- porting to demise land for a term, in which he has no estate in fact, or no estate by a good legal title, and the want of such ' Cuthbertson v. Irving, 4 Hurl. & * Woodruff v. Uy. Co., 93 N. Y. Nor. 743. 609. ■ 2 Prest. Abst. 411. s Jackson v. Ayers, 1 Johns. 224; 3 Alderson v. Miller, 15 Gratt. 279; Walker v. Sedgwick, 8 Cal. 403. 2 Prest. Abst. 210. « Cunningham v. Pattee, 99 Mass. 248. 836 The Law of Estoppel. estate does not appear upon the instrument, the lease will oper- ate upon any interest which he may afterwards acquire in the same land during the continuance of the term. It is requisite that it should be an indenture, in order to bind both parties, and make the estoppel reciprocal, while, if any valid interest, how- ever short it may be of that pretended, actually passes, from the lessor to tlie lessee ; the lease works no estoppel against him." Coke cites this case : A., tenant for life of B., makes a lease for twenty years, then buys the reversion. B. then dies. A. may enter and avoid his lease by virtue of his newl}^ acquired title. But had he no title when he made the lease, and he tiien acquired one, he could not have contradicted his own lease, and say it was wholly void.'' If the conveyance be rightful, as such, it derives its validity from the statute of uses. The circumstance that a lease for years, was ancientl}' nothing more than a mere contract, explains a curious point of law, relating to the creation of leases for 3'ears, which does not hold with respect to the creation of any greater interest in land. If a man should, by indenture, lease lands, in which he has no legal interest, for a term of years, both lessor and lessee will be estopped during the term, or forbidden to deny the validity of the lease. This might have been exj)ected. But the law goes further, and holds that if the lessor should, at any time, during the lease, acquire the lands he Jias so let, the lease which before operated only b}' estoppel, now takes effect out of the newly acquired estate of the lessor, and becomes for all purposes a regular estate for a term of years.' § 704. We have already seen that no man is permitted to allege or prove anything in contradiction or contravention of his own deed. When, therefore, a man grants a lease under seal he is not permitted to avoid his own grant by proving that he had no interest in the demised premises,* unless he is a trustee for the ' Jackson v. Murraj', 12 Johns. - Co. Lit. 47, b. 201; Sinclair v. Jackson, 8 Cow. » j-j.i^v]iy'g (j^g^ 4 Qo^g 54. Weale 543; Co. Lit. 476; 2 Prest. Abst. 410; v. Lower, Pollexfen, 60; Smith v. Shep. Touch. Presl. 53; Burt. Ileal Low, 1 Atkyns, 490; Trevivan v. Prop. 850; Wms. Keal Prop. 229; Lawrence, 1 Salk. 226; Webb v. Aus- Hermlttage V. Tomkins, ILd. Raynid. tin, 7 Man. & G. 701; McKensie v. 729; Jackson v. Bull, 1 Johns. Cas. Lexington, 4 Dana, 129. 90. ■» Fairtitle v. Gilbert. 2 T. R. 169. Leases by Estoppel. 837 public, deriving Lis authority from some legislative enactment. As between him and his lessee the lease operates by way of estop- pel. " And if one makes a lease for years by indenture, of lands wherein he hath no title at the time sucli lease is made, and afterwards purchases the lands demised, it makes his lease as good and. unavoidable as if he had been in the actual possession and seizin thereof at the time of making the lease ; because he, having by indenture expressly demised those lands, is, by his own acts, estopped, and concluded to say he did not demise them ; and if he cannot aver that he did not demise them, then there is nothing to take off or impeach the validity of the indenture, which expressly affirms that he did demise them, and conse- quently the lessee may take advantage thereof whenever the lessor comes to such an estate in those lands as is capable to sus- tain and support that lease, and when the estoppel becomes good in point of interest, the heir of the lessor, and all persons claim- ing under the lessor by assignment or otherwise, are bound by the estoppel.' A tenant cannot, during the term of a lease, hold adverse possession against the landlord by the mere intention so to hold, and without the doing of some act which would amount to adverse possession by a tenant who enters under a lease." And if he is evicted and deprived of the *ase and enjoyment of the demised premises by some person claiming by title paramount, eviction is pleadaljle in bar to a demand of the rent ; but it must be an actual, and not a mere constructive eviction.^ § 705. If the lessor at the time of leasing has no vested inter- est in the land, buc subsequently acquires such interest, it passes to the lessee or his assigns from the latter period by estoppel. This is peculiarly applicable where the lessor has a future or contingent interest as an heir apparent, or claims under a con- tingent remainder or executory devise; but not where any actual interest, however snniH, passes by the lease. Adverse possession cannot originate while the party actually occupies under a lease from the owner.* So a tenant under a lease from ' Trevivan v. Lawrence, 1 Salk.276; 2 Abbey v. Yvillard, 48 Cal. 614. Goodlittle v. Morse, 8 T. U. 371; Doe » Delaney v. Fox, 2 C. B. K S. 7G8. V. Thompson, 9 Q. B. 1043. " Coining v. Troy, 34 Barb. 269; Winterink v. Maynard, 47 Iowa, 36G. 838 The Law of Estoppel. one having possession and control of the premises, but no title to them, wliich contains a clause that, in case the lessors should cease to control or own the property (no rent should be paid, unless their successors should in writing confirm the lease), by hokling over and paying rent to the successive assignees of the owner, is estopped from denying that they are assignees of the original lessor, and continues bound to pay rent to them in that o-luiracter, or as having by the instruments of confirmation become new lessors.' So A. being a mortg;igor in possession in 1848, demised to B., the defendant, for seven years, and B. covenanted to repair in 1854. A. sold the equity of redemption to C, C. sued B. on the covenant. B. pleaded that A. did not assign to C, nor had he any reversion at the time of making the lease; nor did an)' reversion come to C B. was estopped from deny- ing that A. had such a legal estate as would warrant the lease, and as no other legal estate m-ouUI warrant the lease, and as no otiier legal estate or interest M'as shown to have been in A., it must be taken against B. by estoppel that A. had an estate in fee.' § 706. Under a lease whicli contains an express covenant on the part of the lessee. to pay the rent, he continues liable therefor during the wliole term unless released by the lessor. The fact that he has assigned the lease, and that the lessee has accepted rent from his assignee, will not relieve him from his obligation.^ An express covenant by an assignee of a lease who receives possession of the premises before any portion of the rent becomes due, " to take such lease subject to the terms of the same, agreeing to pay rent at the tiuies specified therein," binds him to pay rent for the entire term which by the lease was to become due after he took possession, and not merely the rent for the time that he might occupy the premises, and if the assignor is obliged to pay any part thereof ho can recover it from the assignee. By the genei'al principles of law, lie takes it sub- ject to all the equities to which the original party is subject, and must perform all covenants which are annexed to the estate and ' WLalin v. White, 25 N. Y. 362. 742. * Cuthberston v. Irviug, 6 II. & N. ^ ]\Iartineau v. Steele, 14 Wis. 272; Winterink v. Mayuard, 47 Iowa, 366. Leases by Estoppel. 839 run with the land, without special agreement on his part to do 60. The payment of rent being such a covenant, the assignee by accepting possession makes himself liable therefor though not named. A person who accepts a lease, knowing that other parties are then in actual possession of the premises under an unexpired lease, and after an ineffectual attempt to oust such parties, assigns his lease to them, he is estopped in an action for rtnt from setting up as a defense that he never was in possession ;' possession by his assignees is equivalent to possession in himself. § 707. When a question arises on the covenants contained in a lease, the peculiar estoppel which exists between landlord and tenant will preclude a denial of the title of the lessor, not only as between the original parties, but when third persons are in question." And Avhile the lessee remains in possession under the lease, he cannot set up any defense in the nature of a plea of nil hah uit in te)ie))ie?itis ^g&iust the lessor or those claiming under him by assignment, who have as much right to the benefit of the estoppel as if they were parties to the letting, and not merely assigns. The estoppel of a lease grows out of an implied con- tract that the lessor shall be bound until actually or constructively evicted, as if the lessor had title whether he had it or not. On the faith of which the landlord gives and the tenant obtains pos- session of the land or estate by estoppel. After the acquisition of the estate by the landlord or lessor it becomes an estate in intercM", and iho parties and their assigns are in the same position as if it had been ab initio an estate in interest. Where a lessee of land being also' a tenant in common with others of the reversion, files a petition in partition, setting forth the title of the tenants as a present estate in fee,withoiu nouohig the lease, he is estopped from afterwards setting up his rights as lessee against a purchaser under the award in partition,^ § 708. A lease by indenture by a person having no estate whatever, as an heir apparent, by a party claiming under an executory devise, or contingent remainder, or by a person having ' Bailey v. Wells, 8 Wis. 141. & W. 337; Veale v. Warner, 1 Wm. * Pillmer v. Ekins, 3 Ld. Raymond, Saimd. 328; Sullivan v. Stradling 1550; Goulds worth v. Knigtit, 11 M. 2 Wiis. 203. 3 Norton v. Autland,l8 Ohio, St. 383 840 The Law of Estoppel. a wrongful estate only in the premises, would operate by way of estoppel and conclusive ngainst liiuj on liis obtaining a vested or rightful interest, whether l)y purchase or descent. A mortgagor Is similarlj' circumstanced, and will be precluded by estoppel from claiming the land after redemption in opposition to his own lease. So, if one having no interest in the premises, by indenture make a lease for years to B., reserving a rent, and afterwards by indenture demise the same land to C. for forty years, C. has the rent by the same means by which he has the reversion, — i. e. by estoppel. If a party lease binds in which he has no estate, and afterwards acquire an estate, the lease which before operated by estoppel only, becomes a lease in interest, and the relation of landlord and tenant will then exist as perfectly as if the lessor had been actually seized of the land at the time when the lease was made.' It is, however, in all cases requisite that the premises forming the subject of demise be particularly specified or referred to, for a demise by A. of all his lands in Dale, not being at the time owner of any lands there, to B. for years, will fail, on account of its generality, to create an estoppel against him, on his subsequent acquisition of an estate in Dale. § 709. It is a rule that a lease shall not work by way of estoppel when it may pass an interest. One of the rules con- nected with this doctrine requires every estoppel to be reciprocal, and binding on both parties; hence, a stranger can neither take advantage of, nor be bound b}', an estoppel. Infants also, and married women, on account of their legal disabilities, and persons contracting with them are exempt, for want of mutuality from the operation of the doctrine ; and accordingly, if one takes a lease by indenture of his own land from an infant ov feme covert, he is not bound by estoppel from disputing the. demise. The rule wliich I'equircs reciprocity in cases of estoppel obviously involves the necessity for a lease by indenture ; for, according to Littleton, Coke, and other authorities, if a lease be made by deed poll, the lessee is not estopped to say that the lessor had nothing at the time of the lease made ; and the reason why a deed • Cuthbertson v. Irving, 4 II. & N. v. Austin, 8 Scott N. R. 419; Par- 743: Blake v. Foster, 8 T. K. 487; getter v. Harris, 7 Q. B. 708; Sturgeon Stokes V. Russell, 3 T. R. 0T8; Webb v. Wingtield, 15 M. & W. 324. Leases by Estoppel. 841 indented will, but a deed poll will not, conclude the taker, is, because the hitter is the deed of the feoffer, donor, and lessor only, while the former is the deed of both parties, and concludes, therefore, the taker as well as the giver. Upon the same prin- ciple, it should seem, that, to inure by way of estoppel, the indenture must be executed by both lessor and lessee. An indenture, executed by the one and not by the other, being equivalent to a deed-poll ; though, for this purpose, a lease executed by the lessor only, and a counterpart by the lessee, are considered as one indenture. If an interest (which it appears signihes a legal interest) passes, the lease cannot operate by way of estoppel ; for one deed cannot so inure to two intents. There- fore, if a tenant ^WT' autre vie leases for twenty-one years, and, after having purchased the fee, the cestui que vie dies, the lessor may nvoid his lease ; because an interest passed for the life of the cestui que vie. So, if x\., tenant for life, and B., remainderman in fee, join in a lease, tiie lessee cannot, in the lifetime of A., recover in ejectment declaring upon the demise of both; for the lease during A.'s life is his demise, and must be so pleaded ; nor can the deed work an estoppel, on account of the interest that passed to the lessor. It inures by M^ay of confirmation from the other, and not by way of estoppel. Tenants in common are con- sidered as holding several freeholds, or other distinct interests, according to the quantity of their estate. Each tenant in com- mon may grant his undivided share for any interest commen- surate with his own, either to a stranger or to his companion, or two, or three, or all, of several tenants in common may concur in one lease, -udiich will operate as a distinct demise of each tenant of his part and not as a joint demise of all. Tliere is no estoppel in such a case, because an interest passes from each lessor. § 710. An indented deed works an estoppel, that is, " doth bar and conclude either party, his heirs, and all persons claiming under or through him, except heirs in tail, &c., to say or accept against anything contained in it." In case of a lease by indenture, '• both parties are estopped to say the lessor had nothing in the land at the time of the lease made, so that, if the lessor happen to have tlie land thereafter by purchase or descent, the lessee may, during the term, enter upon him by way of con- 842 The Law of Estoppel. elusion." If the lease however, pass atiy interest it will not operate beyond that as an estoppel. On the other hand, a deed poll binds only feoffer, lessor, &c., and it would seem that a lessor by a deed poll would be as. much bound on his part as if the instrun)ent were an indenture.' But if one is induced by fraud to accept an indenture of land, he may, as tenant, deny that the other party has any title." But, if a man take a lease for years, by indenture, of his own land, he would, during tiie term, be estopped to deny the lessor's title, the estoppel continues during the term, and determines with the lease." So where a person conveyed land to his wife through the medium of a trustee, claiming that the title was to be held in trust for him, and afterwards accepted a life lease of a portion of it, and subse- quently brought an action to obtain a reconveyance of the land, held, that the acceptance of the lease was a recognition of the wife's title, Avhich estopped the husband from setting up any claim to the residue of the premises.* And whether the deed be indented or poll in form, if it contains reciprocal obligations from one to another and it is executed by both, it is binding on both parties.' § 711. An estoppel is not wholly confined to the parties to the lease, but, being annexed to the estate, runs with the land, and is binding alike on all persons claiming under them. The heir of the reversioner, being privy in blood, and taking the estate subject to the burdens under which his ancestor enjoyed it, is bound by the estoppel, where that ancestor, having no estate in * Hermitage v. Tompkins, 1 Ld. v. Mitchell, 21 Ark. 14.j; Courvoisier Eaym. 729; Com. Dig. Estoppel, E. v. Boiivier, 3 Neb. 55 ; Neave v. Moss, 8 ; Jackson v. Muriay, 12 Johns. 201; 1 Bing. N. C. 380. Langfonl v. Selmes, Co. Lit. 476; Webb v. Austin, 7 M. & 3 K. & J. 220; Weld v. Baxter, 11 G. 724; Beaupland v. McKecn, 28 Pa. E.Kchq. 618; Poole v. Whitt, 15 M. & St. 124; Cuthberstou v. Irving. 4 H. W. 571; Delaney v. Fox, 2 C. B. (N. N. 742; Jackson V. Bull, 1 Johns. 90; S.)768; Downes v. Cooper, 2 Q. B. Shep. Touch. 53. 256; Clark v. Adie, 2 App. Cas. 435; "Aldcrson V. Miller, 15 Gratt. 279; Style v. Herring, Cro. Jack. 1; Lon- Jackson v. Ayers, 14 Johns. 224. don's Case, And. 128; Webb v. Aus- ^ Rawlyns' Case, 4]i(.p. 54; Doc v. tin, 7 M. ifcG. 724. Seatou, 2 Cromp. 31. ct R. 730; Doe v, < Ccnirvoirsier v. Bouvier, 3 Neb. Barton, 11 A. & E. 307; Kinsworthy 55. 6 Shep. Toucli. 53. Leases by Estoppel. 843 the premises, or only a contingent remainder, made a lease by indenture, and afterwards purchased the fee of the laud demised, and died.' The heir, liowever, will not be bonnd, unless lie claim the laud from him who created the estoppel ; and, there- fore, if the heir purchase the reversion himself, or if it devolve upon him by descent from another ancestor, he would not be bound.' Nor will he be bound, unless the estoppel would have operated upon the inheritance in the hands of his ancestor ; and, consequently if tenant for life, lease for years, and afterwards purchase the reversion in fee, and die within the term, his heir may enter ; for, a freehold being a greater estate than any term of years, the decease of the tenant for life, out of whose estate the lessee's interest arose, is the regular period appointed by law for the determination of the lease.* Privies in estate are also bound. Thus, if A. makes a lease by indenture of D., to which he has no title, and afterwards, becoming its owner in fee, dispose of it to B., the latter will be estopped from disputing the lease." So, if a mortgagor grant a lease, and after performance of the condition in the mortgage makes a feoffment in fee, the feoffee will hold subject to the estoppel.* So, the lessor's assignees may take advantage of estoppels, even though he become bankrupt. Privies in law, as the lord by escheat, tenant by the curtesy, tenant in dower, and others who come under by act in law, or in the _post, are also bound by, and compete'nt to take advantage of estoppels. But if one joint tenant of land take a lease of the same land, by indenture of a stranger, and clit-, the survivor is not bound by the conclusion ; because he claims above, and not under it. § 712. Upon the execution of the lease there is created, in con- templation of law, a reversion in fee simple by estoppel in the lessor, which passes by descent to his heir, and by purchase to an ' Yick V. Edwards, 3 P. Williams, Edwards v. Rogers, W. Jones, 460. 372; Doe V. Martin, 8 B. & C. 527; ^ Treports' Case, 6 Co. 15; Blake v. Da%ies v. Biisii 1 McC. & Y. 58; Foster, 8 T. it. 47; Carvick v. Bla- Haj-ue V. Maltliy 3 T. R. 441; Webb grave, 1 B. &B. 531. V. Austin, 7 M. & G. 701; Weale v. * Trevivan v. Lawrence, Holt. 383; Lower, PoUexfe. 54. Webb v. Austin, 7 M. & G. 701. 'Com. Dig. 375, Estoppel c. ; * j;(i^yai.(l y ]\Iellhallum, Marsh. 64; GoudtiLle V. Morse, 3 T. R. 371; Rawlyns' Case, 4 Coke, 53. 844 The Law of Estoppel. assignee or devisee. So long, therefore, as a lessee enjoys every thing which his lease purports to grant, lie has no concern with the title of the lessor, or the heir or assignee of the lessor.' The lessee, by executing the lease, and parties claiming under him,- are also estopped from impeaching or disputing his landlord's title ; and the rule is founded in good sense, policy, and justice ; for if it were otherwise, the tenant might enjoy the property demised, and afterwards defeat the lessor of his remedy for rent.'^ Thus, he cannot plead that there was no demise. So, if an under- lease, executed by the underlessee, contain a covenant by him to pay the rent reserved by the original indenture of the lease ; or if tho original lease be recited In the underlease ; in either case the court will estop him from denying the existence of such lease. In the like manner, the assignee of a lease is concluded by the deed which estops his assignor. § 713. An estoppel by indenture will not bar the lessee beyond the duration of the interest derived by him under the lease. Thus, if "a man take a lease for years, by deed indented of his own land, it is no estoppel bej'ond the term, at the end of Avhich the lessor may enter and occupy the land, for by the termination of the term the estoppel is also determined. But if a party take an interest in his own land from a stranger by matter of record, and not a mere indenture, the fee will be bound and the taker estopped forever. § 714. Whether an assignment be absolute or conditional, if the assignee enters under it and occupies the estate, he can neither deny the validity of the assignment in an action bj' the lessor for rent, nor can he escape liability for the same, by abandoning tiie premises before the expiration of the lease.' Privies are entitled to the benefit of an estoppel as well as parties, and an assignment by a lessor creates a sufficient privity m the assignee to entitle the latter to claim the benefit of the implied admission of the tenant, that the landlord has sufficient estate to make the lease, iCuthberstoa v. Irving, 4 H. & N. 204; Wood v. Day, 7 Taunt. 646. 758; Tievivan v. Lawrence, :1 Salk. ^ Blake v. Sanderson, 1 Gray, 33.3; 276; Goodtitle v. Morse, 3 T. I{. 871; Carter v. Hammett, 18 Barb. 608; S. Doe V. Thompson, 9 Q. B. 104:3. C, 12 Barb. 252; Dorrance v. Jones, * Carpenter v. Thompson, 3 N. H. 27 Ala. 630. Leases by Estoppel. 845 however defective bis title may be for otlier purposes. A lessee by deed indented was held to be estopped from denying the tide of the assignee, though the effect appeared on the face of the assignment and was admittea by the case stated/ The decision shows that a reversion may arise by estoppel, even when the pleadings disclose that it does not exist in fact, and is founded solely on the contract of letting. The court said if the want of title had appeared in the lease, it might have been taken advantage of by the defendant. It is difficult to belie'/e that the landlord can be placed in a worse position by setting the whole matter fairly before the tenant in the instrument by which the land is deaiised. If a tenant chooses to enter into an absolute engngement to pay rent, in full knowledge of all circumstances, he is estopped by his agreements from claiming to be released while they remain unchanged. The material question in such cases, is not whether the landlord's title is good, but v/hether the tenant has sustained any injury by reason of its being bad, because if he has not, and still retain possession of the land, the lease should not only be binding between the parties, but in favor of a subsequent purchaser from the lessor, " So long,'' said Baron Martin, in Cuthbertson v. Irving, "as a lessee enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor or of the heir, or of the assignee of the lessor really is'^ All that is required of him, is that having received the full consideration of the contract, he should perform it." And this is equally true when the lack of title appears on the face of the lease, and how that fact can change the matter or exonerate the tenant is a matter that it is difficult to under- stand. Estoppels do not arise to shut out the truth ; because if the truth was shown it would not affect the justice of the cause.^ § 715. The execution of an indenture of lease creates a rever- sion by estoppel in the lessor as against the lessee, according to the terms of the deed. If the lessor's title is recited in the deed, the lessee, by executing the deed, is estopped from contra- dicting the recital. If the lessor's title does not appear in the ' Cuthbereton v. Irviug, 4 Ilurlst. ^ Jackson v. Waldron, 13 Wend. &K 742; 6 Id. 135. 178. 846 The Law of Estoppel. deed, the lessee is estopped from alleging that the lessor had not an estate in the premises, sufficient to grant the lease. The reversion thus created by estoppel is assignable, and will carry with it the covenants in the lease that run with the land.' The reversion by estoppel would presumptively be a fee simple, pass- ing by devise or descent ; but the lessee might rebut this pre- sumption by evidence consistent with the estoppel, as that the lessor had in fact an estate for life or for j-ears, being sufficient for the admitted demise ; he is only precluded from alleging that his lessor had no estate, or no sufficient estate to make the lease.* Accordingly, where it appeared upon the recitals in a lease that the lessor had mortgaged the legal estate and retained onl)' the equit}' of redemption, it was held that there was no legal reversion by estoppel or otherwise in the lessor, and the covenants made to him were exclusively personal.^ Where both the mortgagor and the mortgagee joined in leasing, and the covenants were made with the mortgagor only, it was held that the mortgagee could not sue at law, because a stranger to the covenants.^ Where an estate by estoppel is fed by a subsequent interest, it becomes, as between the parties, equivalent to an estate in interest ah initio j the reversion in such case carries the covenants by assignment, and the assignee of the reversion on the one hand, and the assignee of the lease on the other, may sue upon them, as if the lessor had the estate at the time of making the lease. ^ § 716. The Mords " grant and demise," in an indenture of lease, are equivalent to covenants of warranty and of quiet enjoy- ment." If the lessor only, seals, and not the lessee, yet it is as good as if both had sealed. This works an estoppel, that is, it does bar and conclude either party to say or except against anything contained in it.' A lease which one executes as agent of the lessor estops him from setting up any claim to the ' Gouldsworth v. Knight, 11 M. «& « Webb v. Russell, 3 T. R. 393. W. o37; Cutliberstori v. Irving, 6 H. MVebb v. Austin, 8 Scott N. R. &. ISi. 135; 29 L. J. Ex. 485. 419; Sturgeon v. Wingfield, 15 M. & "^ Weld V. Baxter, 1 H & N. 568; 2(5 W. 224. L. J. Ex. 112. « Barney v. Keith, 4 Wend. 503. 3 Pargeter v. Harris, 7 Q. B. 708. ' Shep. Touch. § 53. Leases by Estoppel. 847 land inconsistent with the lease,' and the lessee, where no prin- cipal is disclosed, cannot controvert the lessor's title." § 717. Where a party voluntarily enters into a contract for a lease of real estate, goes into possession under it and peaceably occupies the promises according to its terms, on the plainest prin- ciples of justice, he is estopped from disputing its validity.' In a lease for life, a recital that the lessee is in possession at the time of its execution, estops the lessor from denying that such was the case, thus rendering the instrument valid as a release, while it would have failed otherwise from the want of livery of seizin.* All parties claiming under deeds of lease and release are estopped by tlie recital of the lease, from denying the existence of the former, or that possession under it is necessary to give the latter its iiitended operation. If a lease contains a covenant or recital that the legal title is outstanding, but that the lessee agrees not to take advantage of the defect, and is to be liable in all respects as if the lessor were seized of an estate in fee. it is bindine: on both parties and estops the tenant from pleading nil habuit in tenementis to an action brought by the lessor.'* § 718. If the recital of a lease in a deed of release is admitted to be good evidence of the execution of the lease, it must be good evidence of the very lease stated in the recital, and of the con- tents, so far as they are stated therein, for they constitute its identity." If the lessor in ejectment has released his interest to the defendant, the plaintiff, by such release, is estopped from claiming any title.' When the estoppel is founded on a grant or contract, it will not endure after the instrument has ceased to operate, or when the purpose for which it has been executed has been attained. A lease by deed indented will not estop the lessee from denying the landlord's title, after the expiration of tlie term. But when possession is obtained by the lessee on faith of the ' Blanchard v. Tyler, 13 Mich. 99 Mass. 13; Doe v. Mills, 3 A. & E. 339. 17; Fleming v. Gooding. 10 Biug. s Bedford v. Kelly, Gl Pa. St. 491. 549. » Grant v. White, 43 Mo. 385; * Rees v. Lloyd, Wight, 139. Whalen v. White, 35 N. Y. 463; Bai- ^ Carver v. Astor, 4 Pet. 1; Crane v. ley V. Kilburn, 10 Met. 176; Hodges Morris, 6 Pet. 598. V. Shields, 18 B. Mon. 838; Lucas v. ^ Crane v. Morris, 6 Pet. 598. Brooks, 18 Wall. 430; Miller v. Lang, ' Jackson v. Foster, 13 John. 488. 848 The Laav of Estoppel. •' lease, it will give rise to an estoppel of a different nature, that will endure until the lessor is replaced in his original position.' While a lessee may rely upon a want of mutuality as a reason why he should not be bound by a lease of his own land from a feme covert to which he has put his seal, if his possession was derived from her he must surrender it to her before he can set up an adverse title or deny hers." It is a universal and well settled nile that a man cannot blow hot and cold in the same proceeding, by denying auj-thing which he has required his antagonist to submit to ; under such circumstances, the rule that an estoppel must be mutual is inflexible, and admits of no exception. § 719. The application of estoppels to all obligations, ex con- tractu, is that they must be mutual, that neither party will be bound unless the estoppel extends to both. AVhere the tenant is csto))ped to deny the landlord's title, the landlord cannot allege that he had nothing in the land at the time of the demise as a reason why he should not recover, notwithstanding an assignment of the reversion, while when the lessee is at liberty to plead nil hahuit in tenementis, the lessor will be equally free.^ If a man take a lease of his own land by indenture, from ^ feme covert^ the mairied woman not being estopped by reason of her disa- bility, the lessee will be equally at large." The rule, that the estoppel must be mutual, does not apply in general to unilateral instruments, to which one party only sets his seal, for the reason that the estoppel cannot be broader than the deed, and a grantor ma}' be estopped although there is no estoppel on the grantee. A lease by deed poll or even by indenture, and purporting to bind both parties, if sealed only by the lessor, did not estop the lessee from denying the lessor's title at common law." Although the lessor will be as much hound by the solemnity of his own deedt as if it had been executed by the lessee. * The grantee or lessee in a deed poll is not in general estopped from gainsaying any- thing mentioned in the deed ; for it is the deed of the lessor or > Sparrow v. Kiugman, 1 N. Y. Paigt4ter v. Harris, 7 Q. B. 708. 242. * Dempsey v. Tylee, 3 Duer, 73; ■■' James v. Langdou, Croke Eliz. Coke Lit. 552. 37. * Co. Litt. 47. 3 Green v. James, 6 M. & W. G56; " Bac. Abdg. Tit. Lease. . Leases by Estoppel. 849 grantor only ; yet if such grantor or lessee claims title under the deed, he is thereby estopped to deny the title of the grantor or lessor, but he is not always estopped by the recitals in anterior title deeds. § 720. Estoppels, under the earlier practice, did not meet with much favor from the authorities, as they tended to shut out the truth and were deemed odious, and if by any construction they could be avoided they were excluded. There is no estoppel where an interest passes by the lease, though the interest the lessor purports to grant is really greater than he has at the time of making the lease the power to grant. Thus, where a lessor for the life of B. makes a lease for years and then purchases the reversion in fee, after which the cestui que vie dies, the lessor may avoid his lease, though several of the years expressed in the lease are still to come, for he may confess and avoid the lease which took effect in point of interest, and determined on the death of " B.'" So, if two join in a lease, and only one has any interest 'u the premises, it inures by way of confirmation from the other, and not by way of estoppel." § 721. An estoppel cannot operate after the estate of the lessor is determined ; for it begins by, and, therefore, terminates with the lease.* But where a lease for years cannot take effect immediately, by reason of a prior lease of the same premises, the second lease operates by estoppel, for so much of the term as may be left after the determination of the former, by way of passing an interest.* But if it appears from recitals in a lease, that he had nothing at the time of the demise, and he afterwards purchases the land, it does not inure to the lessee by estoppel.^ He is, however, estopped from contending that he had merely an equitable estate. when he granted the lease. The lessee is not estopped, by a description of the land in a lease, from show 1 Leceisterv. Rohobotb, 4 Mass. 180; Nev. & Per. 123; Blake v. Foster, 8 Co. Lit. 47, b. ; Jackson v. Hoffman, T. R. 487; Brereton v. Evans, Cro. 9 Cow. 271; Anon., Ventr. 358. Eliz. 700; Brudrell v. Roberts, 3 Wils. 2 Brereton v. Evans, Cro. Eliz. 143; Jackson v. Ayres-, 14 Johns. 700. 224. 3 Neave v. Moss, 1 Bing. N. C. 360; * Skipwitli v. Green, 1 Stra. GIO; Doe V. Skirrow. 7 Ad. & El. 157; 3 Oilman v. Hoare, 1 Salk. 275. * Fairtitle v. Gilbert, 2 T. R. 169. Vol. L— 54 b50 The Law of Estoppel. ing that what was there called meadow was not, in point of fact, such.* An assignee, also, is estopped by the deed which estops .lis assignor ;' and by executing an assignment, in which the original lease is recited, he is precluded, in an action by the assignor, from calling upon hira to prove the lease.^ But although a lessee may maintain an action of covenant against his lessor on a lease by estoppel,^ the same privilege does not extend to his assignee.^ An estoppel, however, must be reciprocal and mutual, for, as the whole estate is created by estoppel, both par- ties must be bound or neither. § 722. The rule requiring reciprocity in cases of estoppel necessarily requires that the lease shall be by indenture and not by deed poll ; for both the lessor and lessee must be bound or neither.* A stranger can neither be bound by or take advantage of an estoppel, it being confined to privies in blood or estate.' Possession will follow ownership, unless there is an adverse pos- session. At common law, no interest in land could pass frouj a vendor before he had himself obtained livery of seizin ; but, by force of the statute of uses, the possession was transferred to the cestui qui use, who may now, therefore, in case there is no adverse possession, make a lease for years, without actual entry,* and, as a general rule, if there is a reversion in the lessor at the time of making the lease, it will be a good charge upon the reversion, and take effect in interest and possession if the rever- sion happens to be reduced into possession during the period limited by the contract for the enjoyment of the land, the lessor being estopped, by his own deed, from saying that he did not demise the premises.' Where a covenant runs with land, the mere occupation of it for a particular purpose is in subordina- ' Taylor v. Nocdliara, 3 Taunt. 278; Ante, § 20; Jackson v. Brinckerhoff, 2 Baiwick v. Thompson, 7 T. R. 488. Johns. Cas. 101; Berlin v. Norwich, 10 ■•' Nash V. Turner, 1 Esp. 217. Johns. 229; Braintree v. Highani, 17 3 Style V. Hearing. Cro. Jac. 73. Mass. 432; Wallis v. Truesdell, 6 Pick. * Awtler V. Koaks, Cro. Eliz. 373- 455; James v. Landon, Cro. Eliz. 37; 430. iBrereton v. Evans, Cro. Eliz. 700. ^ Bawlins' Case, 4 Co. 54, a. * Bellingham v. Alsop, Cro. Jac. 53 « Pike V. Eyre, 9 B. & C. 709 ; Wright and 408 ; Cro. Eliz. 216. V. Douglas, 10 Barb. 97. » Nutford v. Fennick, And. 288; '' Simpson v. Pearson, 31 Ind. 1; Cro. Jac. 168. Leases by Estoppel. 851 tion to, and affected by such covenant ; and though the occupant may not be bound to perform it, yet it will operate as an estop- pel against him in all cases in which the landlord would be estopped by it.' § 723. A tenant is estopped to deny the seizin or the hus- band's death, if the title is derived from his heir. Where the tenant held a deed from two grantors, one of whom died and his widow brought dower, it was held that the tenant could not show by parol that the interest and estate of the deceased grantor in the premises granted was less than one-half, in order to reduce the share out of which she might claim her dower.* An heir is estopped to deny the seizin of his father of lands which descended to him, to a claim of his mother for dower therein.' Where a tenant claimed under the heir of the husband, it was held that he could not deny the death or seizin of the husband in an action by his widow to recover her dower.^ Where the widow, as executrix of her husband's will, conveyed the estate to the tenant, subject to her right of dower, it was held that he was estopped to deny the husband's seizin." And where she proved a deed of the estate to her husband, and one with warranty from him, fol- lowed by a deed from his grantee to the tenant, it was held suf- ficient to establish the husband's seizin.^ Where the husband entered upon a parcel of laud other than that described in his deed, by mistake, and died, and his administrator sold it as his, and the original vendor, in order to make a good title in the pur- chaser, released to him, the tenant was not at liberty to deny the husband's seizin against a claim to dower in behalf of his widow.' It is sufficient for her to establish her husband's seizin, to show he was in possession of the premises, and made a deed of war- ranty of the same, and that the tenant claimed under him." • Duff}- V. R. R. Co., 2 Hillon, 496. Sherwood v. Vandenburg, 2 Hill, 2 Stirason v. Bank, 28 Me. 259; 303. Mason v. Allen, 6 Me. 243. ' Smith v. Ingalls, 13 Me. 284. 3 Griffith V. Griffith, 5 Harring. 5; « T:iorudike v. Spear, 13 Me. 91; McLeery v. McLeery, 65 Me. 172. Davis v. Millett, 34 Me. 429. 4 Hitchcock V. Carpenter, 9 Johns. ■" Hale v. Munn, 4 Gray, 132. 344; Hitchcock v. Harrington, G John. ^ Bolster v. Cushman, 54 Me. 428; 290; Montgomery v. Bruere, 1 Soutli. Bancroft v. White, 1 Caines, 185- 260; Collins v. Torrey, 7 Johns. 2T8; Embree v. Ellis, 3 Johns. 119; Ward 852 The Law of Estoppel. § 724. A tenant at will, for years, or for life, if lie make a feoffment, the feoffee caimot set up a want of seizin on the part of the feoffor, in an action bronght by his wife to recover her dower.' Nor is he permitted to show that such seizin was only colorable, and designed to defraud the creditors of him from whom the husband derived his seizin. Where the husband, being seized of a remainder expectant upon a life estate, mortgages the land in fee and dies, and his wife claims dower against the mort- gagee, he cannot set up a want of seizin in the -husband against her claim.^ Where the tenant holds under the husband, he is estopped from denying the husband's seizin.' Thus, where the only title of the tenant is a deed of warranty from the husband, he is not permitted to show that the husband, in fact, has no title to a part of the premises. As the husband's deed is his only title, " he is, therefore, estopped from denying his grantor's seizin."* Thus, A. conveyed to B. by deed of warranty, and, upon the death of B., his widow, relying upon that deed as evi- dence of her husband's seizin, had dower set out to her, and after- wards A.'s wife brought her action of dower against B.'s wife and the tenants claiming under her. B.'s wife is estopped to deny A.'s seizin." So, where a husband mortgaged his estate with- out the wife joining in the deed, he then conveyed the equity of redemption by deed in which his wife joined. Subsequently, the grantee in the last deed reconveyed to the husband, and it was held, that she could only claim dower in the equity, since by join- ing with her husband in the deed of the equity, she had released and extinguished all right to the estate as it originally existed.^ The vendee of the husband is not estopped,' in an action to recover dower, from showing affirmatively a want of seizin in the husband. While a tenant who held under the husband was not V. Fuller, 15 Pick. 185; Haines v. v. Price, 5 Rich. L. 525. Gardener, 10 Me. 383; English v. ^ May v. Tilimun, 1 Mich. 262; Wright, 1 N. J. L. 437; Thompson Finn v. Sleight, 8 Barb. 401; Pickens V. Thompson, 19 Me. 339; Osterhuut v. Wilson, 21 Miss. 691; Evans v. V. Shoemaker, 3 Hill, 514. Evans, 29 Pa. St. 277; Pinner v. Pin- 1 Kimball v. Kimball, 2 .Me. 226. ner, Bush. 475; Bell v. Twilight, 22 3 Nason v. Allen, 6 Me. 243. N. H. 500; Foster v. Dwinnell, 49 3 Pledger v. EUcrbe, 6 Rich. 266; Me. 44. Douglass V. Dickinson, 11 Rich. L. « Hoogland v. Watt, 2 Sandf. Ch. 417. 148. ♦ Wedge V. Moore, 6 Cush. 8; Gayle '' Crittenden v. Woodruff, 11 Ark. 83, Leases by Estoppel. 853 permitted, in an action brought by his grantor's widow, to deny the seizin of the husband, yet he was permitted to deny that it was such a seizin as gave his widow a right of dower.' Where the husband conveys during coverture, his grantee cannot deny his seizin.' § 725. A widow is often barred from claiming dower by acts which operate by way of estoppel. Such acts, in order to have this effect upon the rights of a feme covert^ must constructively amount to one of the modes known to the law as constituting sucli bar, as her right of dower is neither derived from, nor dependent on any contract, nor is she barred by any acts or dec- larations upon which others may have been induced to act, although in matter of contracts under similar circumstances she would not be allowed, where it would work fi-aud and injustice, to allege against the ti'uth of her acts or declarations." The application of estoppels to bar the right of dower are generally founded on circumstances arising from some action on the part of the widow in the sale of the estate after the death of the hus- band. There must be some unequivocal act or declaration on her part which would either render a claim of dower on her part clearly unjust, or subject her to damages equal to its value, if claimed, Avhere the court, to avoid circuity of action, applies the estoppel. Thus, where a widow was entitled to dower out of an equitable estate of her husband, which was sold by his adminis- trator by order of court, at which sale she was present and stated that the estate was free from any claim of dower, she was thereby estopped from claiming it against the purchaser, who had bought the premises relying upon her statement, although it was merely by parol.* Actual fraud is not necessary to create an estoppel. The * Gammon V. Freemau, 31 Me. 243. Tingle, 8 B. Mon. 539; Jones v. » Thompson V, Boyd, 32 N. J. L. 543. Kearney, 1 D. & W. 134; Vaughn 8 Martin v. Martin, 22 Ala. 104. v. Vanderstegen, 2 Drew. 363; Wright * Smiley v. Wright, 2 Oliio, 506; v. Leonard, 8 Jur. N. S. 415; Lush, Craddock v. Tyler, 3 Bush, 360; in re, 4 Ch. App. 591; Drake v.' Wood V. Seely, 32N. Y. 105; Sweaney Glover, 30 Ala. 382; Wilks v. Kil- V. Mallony, 62 Mo. 485; Schwartz v. patrick, 1 Humph. 54; McCnllough Sanders, 4'3 111. 18; Connolly v. v. Wilson, 31 Pa. 436; Hart v. Giles, Branstler, 3 Bush, 702; Wright v. 67 Mo. 175. Arnold, 14 B. Men. 638; Davis v. 854 The Law of Estoppel. principle is designed for the benefit of one who is misled to his predjudice, and tlie injury to him is the same, whether his informant deluded him through ignorance, mistaken or willful misrepresentation. Ordinarily, one who makes a representation to another for the purpose of influencing liis conduct, assumes that it is true, and it may be questioned whether he can defend ou the ground that he acted without knowledge in making it. Such an one would be concluded from denying his own acts or admissions, which were expressly designed to influence the con- duct of another, and did so influence it, especially when such denial would operate in the injur}' of the latter.' It is declared to be the rule in equity that ignorance of one's legal right does not take the case out of the rule, when the circumstances would otherwise create an equitable bar, and that he who encourages another to buy of a third person a right to which he has himself a title is to be postponed in equity to such a purchaser. There- fore, where, at an administrator's sale, the auctioneer proclaimed that the property offered was clear of dower, and the widow of the deceased was present and made no objection, although of the opinion that she had an interest in the property : Held^ that she was estopped from afterwards setting up her claim against an innocent purchaser. So where the Avidow, as administratrix of her husband's estate, sold lands under license of court, and orally declared they were free of dower, and the purchaser went on and made improvements upon them, she was estopped.* Where the heirs sold the inheritance by an arrangement with the widow that she should receive her share of the purchase money, which was accordingly paid to her and she gave a receipt for the same, but signed no deed of release, she was estopped from claiming her dower.* Where, as administratrix, a widow sold her husband's land by order of the court, and in her deed covenanted to warrant ' Tilton V. Nelson, 27 Barb. 595; v. Miller, 3 Paige, 256; Simpson's Canal Company v. Hathawaj-, 8 Appeal, 8 Pa. St. 199; Ellis v. Diddy, AYend. 483 ; Rice v. Bunce, 49 Mo. 1 Ind. 563; Smiley v. Wright, 2 Ohio, 231; Sweany v. Mallory, 63 Mo. 485; 506; Brown v. Bowen, 30 N. Y. 519; Evans v. Snyder, 64 Mo. 516; Storr v. Taggarts'. Appeal, 99 Pa. St. 627; Carr Baker, 6 Johns. Ch. 166. v. Wallace, 7 Watts, 394; Tro.xell v. '^ Dongrey v. Topping, 4 Paige, Iron Co., 42 Pa. St. 513; Ayres v. Ch. 94. Watson, 57 Pa. St. 360. 8 Wood V. Seely, 32 K Y. 105; Hills Leases by Estoppel. 855 the title, to avoid circuity of action, she therefore barred herself of dower.' And where the widow, as administratrix, sold her husband's estate and then married the purchaser, and he sold the estate by a warranty deed, in which she joined, relinquishing her right of dower in the premises, she was barred as to her rights under either husband.'' A widow may be estopped from claim- ing dower by the covenants of her ancestor, from whom she has received assets. Thus, the land of A. was sold on execution, and bought by B., who conveyed it with covenants of warranty. A.'s wife was heir at law to B. and on his death received assets by descent. A. and B. having both died, she sued for dower as widow of A., but the court held that she could not claim it against the covenants of B., since what she recovered as dower she would have to respond for as heir.' § 726. The acceptance of a grant is a conclusive admission of the right of the grantor to convey, and, therefore, when the defendant in an action of dower claims under the husband, he is estopped from denying his seizin against the widow.* Thus, where two grantors conveyed land by deed of warranty, without any designation of the manner in w^hich it was held by them, one died, and his widow brought her action of dower, claiming to be endowed of one-half of the premises ; the grantee was estopped by his deed from showing that the living grantor was seized in severalty of a much greater portion, and the deceased of a much less proportion than an undivided moiety.^ In {^ suit for dower against one who entered under a deed from the husband's gran- tee, the defendant has been held estopped to deny tlie husband's title, or to aver that, after the purchase of the land, an action being brought against him by the true owner, he bought a true » Magee V. Mellon, 23 Miss. 585. v. Potter, 17 Wend. 164; Davis v. » Usher v. Richardson, 29 Me. 415. Darrow, 12 Wend. 65; Hitchcock v. 3 Torrey v. Minor, 1 S. & M. Ch. Harrington, 6 Johns. 290; Embree v. 489; Bates v. ]Sorcross, 14 Pick. 224; Ellis, 2 Johns. 119; Collins v. Torrey, S. C.,17 Pick. 14. 7 Johns. 278; Hamblin v. Bank, 19 ■•May V. Tillman, 1 Mich. 262; Me. 66; Haines v. Gardner, 10 Me. Gayle v. Price. 5 Rich. (L.) 525; i}83; Stinson v. Bank, 28 Me. 259; "Wedge V. Moore, 6 Cush. 8; Ward v. Davis v. Farrell, 4 Greene (Iowa) Mcintosh, 12 Ohio St. 231 ; Sherwood 458. V. Vandenburgh, 2 Hill, 303; Bowne * Stimson v. Bank, 28 Me. 259. 856 The La^v of Estoppel. and permanent title.' So, one is estopped who holds under a deed from the widow, as executrix of the husband, conveying the land subject to dower.' In a proceeding for dower, where the land is treated by the parties and recognized by the court as belonging to the estate of the deceased husband, and the title as being in his heirs, the judgment rendered is conclusive between the parties and those claiming under them ; and hence, the widow in such case will be estopped from setting up title in herself to the land embraced in such proceeding.' So, where the husband was in possession, and an execution levied upon the land, under which the tenant claiuis title, this is sufficient proof of seizin in the husband.^ Where, to a suit for dower, the defense is set up that the defendant was not seized, and the plaintiff prevails, this judgment is conclusive in her favor upon a subsequent bill in equity for Tnesne profits.^ Acceptance of dower estops a widow from disputing her husband's title.' AVhere the widow remains in possession of the lands, she is estopped to deny the husband's title, even though she surrenders to one claiming under an execu- tion prior to the husband's deed, and then resumes possession under him.' In an action of dower, the husband's seizin is estab- lished by proof of a deed to him ; if a deed from him, with cov- enants of general warranty ; and of a similar deed from his grantee to the tena-nt, though his deed was executed soon after a judgment in his favor upon a writ of entry on his own seizin and before he had paid to the tenant in that action the amount assessed by the jury for betterments, provided the value of the betterments was actually within the time prescribed by law, the covenants of warranty estop the tenant from denying the hus- band's seizin.* § 727. A guardian, being mother of her ward, and having a dower interest in his real estate, applied for a sale of her ward's real estate, describing it as the entire title. The order was made and the sale completed accordingly, without any mention of her ' Bowue V. Potter. 17 Wend. 164; Oslerhout v. Shoemaker, 3 Hill, 513. Norwood V. Morrow, 4 Dev. & B. ^ Sellman v. Bowen, 8 Gill & J 44->. 383. " Smith V. lugalls, 13 Me. 284. « Perry v. Calhoun, 8 Hump. 551. 3 Sigraon V. Hawn, 86 N. C. 310. '' Grandy v. Baily, 3 Ired. 221. * Cochran v. Libby, 17 Me. 31); » Thorndike v. Spear, 13 Me. 91. Leases by Estoppel. 857 interest. She was estopped from setting it up.' So A., being in possession of land, claiming title during his marriage with B., conveyed it to C, with general covenants of warranty, and deliv- ered possession to C, which C. retained, deriving neither title nor possession from any other source. Upon the decease of A., B., his widow, claimed dower in the premises. C. was estopped from sliowing title in a third person, with whom he did not con- nect himself, or from claiming an adverse possession.* In an action of ejectment for dower, a purchaser, as well as the heir holding under the husband, or deriving title from under him, is estopped from denying the husband'^ title.' So where A., in anticipation of a suit to be brought against him. conveyed a cer- tain piece of land to B., to hold as a secret trust for the benelit of A., no consideration was paid. The suit was not brought, but the record title to the land remained in B., till after A.'s death. B. then conveyed it to the executors of A., they claiming it as a part of A.'s estate. In an action by A.'s widow, claiming in lien of dower one-half of the real estate of which her husband died seized, it was held that the executors were estopped from denying the seizin of their testator in the land, either in their own right, or on behalf of the beneliciaries under the will.* § 728. A release of dower in a mortgage deed works an estop- pel, not only in favor of the mortgagee, but also of those who become entitled, by equitable substitution to its benefits.^ A release of dower conveys no estate, neither is it an utter extin- guishment of the right of dower forever, for all purposes and as to all persons, but it operates against the releasor by estoppel only, and in favor of those only who are parties and privies thereto." An infant is not bound by her release of dower, although she declared herself of age to the acknowledging officer, and may maintain a suit to avoid within a reasonable time after the death of her husband.' But a release of dower to a person who has conveyed the land by such deed, creates no estoppel in ' Wiseman v. Macy, 20 Ind. 239. * Dearborn v. Taylor, 18 N. H. 2 Ward V. Mcliitosh, 13 Ohio S. 153. 231. « French v. Lord, 69 Me. 537. 3 Chapman v. Schroeder, 10 Ga. 321- ' Watson v. Billings, 38 Ark. 378 ; Hale V. Munn. 4 Gray, 133. S. C, 43 Am. R. 1. * Brown v. Pitney, 39 ill. 468. 858 The Law of Estoppel. favor of any other person than the releasee. Thus, where the releasee was a stranger to the title, it did not extinguish the right of dower, but if the stranger subsequently acquires the title, the release operates to bar the dower as to him by way of estop- pel.' Although a wife has signed a deed of certain prenjises, with her husband, she is not thereby estopped to claim dower therein, when the deed contains no words indicating: her inten- tion to release her right of dower," A widow who hijs received dower shall not claim land settled on her in jointure. If a widow, who is also devisee, release, to a purchaser for a valuable consideration, she is deemed as having conveyed, in every char- acter which gives effect to her deed, and she caijnot set up that she conveyed only under a power, that she disaffirmed the pro- visions for herself in the will and took her dower and did not release that.' § 729. A parol assignment of dower is held absolutely con- clusive and estops any subsequent alterations of the limits assigned." By the assignment of dower to a widow by the owner of the land, or a residuary devisee, it estops them and their priv- ies from denying that the land Avas subject thereto.' > Harriman v. Gray, 49 Me. 537. Wallis v. Truesdell, 6 Pick. 455; Bin- ' Lathrop v. Foster, 51 Me. 367. ney v. Chapman. 5 Pick. 124; Cod- 3 Duudas V. Hitchcock, 13 How. man v. Jenkins, 14 Mass. 93. 256. « Shattuck v. Graag, 23 Pick. 88' * Shattuck V. Graag, 23 Pick. 88; Meserve v. Meserve, 19 N. H. 240. BOOK III. CHAPTER XII. ESTOPPEL In pais AND EQUITABLE ESTOPPEL. Origin, nature and general principles of — Maxims applicable to — Distinc- tion between legal and equitable — Picard v. Sears — Freeman v. Cook — " Willfully," term defined — Doctrine in England and in this country in regard to land — Rule where one of two innocent persons must suf- fer — Rule that no one is allowed to take advantage of his own wrong — Doctrine of acquiescence — Estoppel by representations — Deception — Object of equitable estoppels — Declarations — Admissions — Waiver — Who bound by — Married women, infants, etc. — Certificates of archi- tects and engineers — Landlord, tenant — Bailor, bailee — Application of, to pleadings — Waiver of objections — Waiv«r of defenses — Jurisdiction — Consent by silence — Waiver of vendor's lien §§ 730- -837 CHAPTER Xin. EQUITABLE ESTOPPELS APPLIED TO LANDLORD AND TENANT — VENDOR AND VENDEE, BAILOR AND BAILEE, ETC. Instances of by Coke — Illustration of the doctrine as applied to tenants — Origin and nature of — Who affected by — Privies, etc. — Tenant cannot dispute landlord's title — Landlord, when bound by — Vendor and vendee — Mortgagor and Mortgagee — Licensor and licensee— Bound by this estoppel — Surrender of possession by tenant — Receiptor estopped §§ 838-894 CHAPTER XIV. ESTOPPEL APPLIED TO MORTGAGES. Technical estoppel — Recitals — Equitable estoppels — Certificates by mort- gagors — Estoppel to set up usury — ^Mortgagee to deny title of mortga- gor — Standing by and seeing another mortgage the land — Witnessing instruments — Waiver of liens — Doctrine in regard to attorneys, agents, etc. — Doctrine in regard to chattel mortgages — Acquiescence of — Mortgagee standing by and seeing property sold — Mortgages with covenant of warranty §§ 895-939 CHAPTER XV. ESTOPPELS AFFECTING THE TITLE TO LAND. Importance of doctrine — Conflict of authority in regard to — Application of " he who is silent when he should speak, will not be allowed to when he would '' — Silence without actual concealment — Illustration of the doctrines — Inducing parties to purchase — Standing by and see- ing officer sell property — Elements of this class of estoppels — Acts or admissions on which parties have acted — Applies to real and personal property — Married women and infants bound by — Distinction between [859] standing by in silence and talking an active part — Circumstances rcmlering tlie application of the doctrine necessary — "Who bound by — Holding out another as owner — Acquiescence, effect and nature of §§ 930-987 CHAPTER XVI. APPLICATION OF ESTOPPELS TO NOTES, BILLS, BONDS, CONTRACTS, DEEDS, ETC. Object of the doctrine — Effect of law merchants — Surety, when estopped by act of principal — Stating that a note is good if a party has no defense — Application to patent right notes — Signing blank pieces of paper — Acknowledging forged signature — Prevents setting up usury — Applicable to bonds where surety delivers them to principal to com- plete — Sunday contracts — Declarations of parties — Filling blanks without authority g§ 988-1037 CHAPTER XVn. ELECTION — RATIFICATION — ACQUIESCENCE. Principal and agent — ^Married women — Administrators — United States — States — Origin and nature of the doctrine of election — Rules applic- able to acquiescence and ratification — Doctrine of civil law — Doctrine in England — Principles governing election — Atlirming void contracts — Accepting damages — Time when election must be made — Fraud, acciuiescence in — Waiver — Repudiation of contracts — Accepting bene- fits under a deed or will — Waiver of irregularities — Receiving proceeds of sale — Ratitication by principal — Representation of agent that binds principal — Subsequent ratiticatiou — Principal and surety... §§ 1028-1128 CHAPTER XVHI. APPLICATION TO BOUNDARIES — EASEMENTS — DEDICATION — ORAL PARTITION — ADVERSE POSSESSION, ETC. Location of boundary lines — State estopped as to boundaries — Location of boundaries — Application of doctrine to easements — Dedication by estoppel — Parol partition — Defective highway proceedings — When cured by — Parlies estopped from setting up adverse possession — Prin- ciples in regard to estoppel In pais, as applicable to laud §§ 1129-1164 CHAPTER XIX. APPLICATION TO CORPORATIONS. Corporations bound same as persons — How bound by acts of directors— By holdiu" out party as officer — Liable for agent's frauds — Standing by and seeing costly improvements made — In regard to issuance of stock — Doctrine in regard to Ultra vires — Leases— Notes — Conclusive presumptions in favor of — Certification of checks by banks— Doctrine in regard to Insurance Cos. — Acts of their agents, when binding — Proofs of loss — Waiver of conditions — Municipal corporations — And property holders — Waiver— Zrtc//t's—]\Iunicipal bonds — Railroads — Bills of lading — Eminent domain — Warehouse receipts — Questions of forfeiture— Doctrine in regard to stockholders, officers and parties recognizing corporate existence — Who cannot dispute corporate char- ter ^§ 1105-1260 CHAPTER XX. now AN ESTOPPEL HAS TO BE MADE AVAILABLE. Pleading an estoppel- Waiving an estoppel- How an estoppel by record is to be taken advantage of— p]ffectt)f on court and jury — Estoppel by deed, waiver of— Nature and form of plea of estoi)pel, by record- Judgment, when conclusive evidence-Proper test to ascertain whethef it is a bar — Doctrine in the code states — Pleading by estoppel — Bur den of proof, on whom— Pleading on judgments of other states — Estoppel by deed, how made available— Whether available at law or In^ equity, when they affect land— AVheu and where conclusive — Whether plead or given in evidence — What must be shown by party claiming in order t^ set up §§ 1261-1307 [860] CHAPTER XII. ESTOPPEL IN PAIS, AND EQUITABLE ESTOPPELS. Section 730. In addition to the branches of estoppel of which we have treated, there is still another class equally important, founded on equitable principles, which consist of admissions, whicii are again divided into two classes. They are solemn admissions or admissions in judicio, which have been solemnly made in the course of judicial proceedings ; their " solemnity " being apparently derived from the almost religious solemnity with which justice was dispensed in England, under the old civil law, which, in America, has in a great measure been dispensed with. And tmsolem/n admissions extra judicium^ which have been acted upon or were made to influence the conduct of others, or to derive some advantage to the party, which cannot be after- wards claimed without a breach of good faith, that are known as Estoppels in pais, or equitable estoppels. This class of estoppels, with the exception of their application to the peculiar relation of landlord and tenant, of which we will treat hereafter, have their origin in equity, and by universal custom have become a well settled and important branch of the law. Under the old English decisions, the mere acts, statements and admissions of a party, when not made or performed under seal, or record, or in the course of some of those acts to which peculiar authority was attached by law, were not considered as estoppels, and had no other effect or weight than evidence, more or less strong, but wliicli might be explained or rebutted.' But the later decisions in England and America, have given a much broader scope to the doctrine of estoppels in pais than they originally possessed, and the law has been established to be, that whenever an act is done or a statement made by a party, which cannot be contra- » Heane v. Rogers, 9 B. & C. 577; 660; Farrow v. Hutchinson, 9 A. «fc Richards y. Johnston, 4 H. & N. E. 641. [861] 862 The Law of Estoppel. vened or contradicted without fraud on his part and injury to others, whose conduct has been influenced by the act or admis- sion, the character of an estoppel will attach to what would otherwise be mere matter of evidence, and it will become binding on a jury, even in opposition to proof of a contrary nature.' § 731. Equitable estoppels only arise when the conduct of the party estopped is fraudulent in its purpose or unjust in its results, and this forms the distinction between the common law doctrine of estoppel, and that which has grown up under the influence of equity, in modern times." Every solemn admission under seal was regarded as an estoppel by the older law, even where it was not shown to have been injurious to others, and might have been withdrawn without wrong by the person by whom it was made; the estoppel m pais of a feofl'ment was of the same nature as that of a sealed instrument. § 732. The law in regard to admissions has always been to treat them against the interest of the party making them and therefore probably true. But in regard to the admissions implied from the conduct and assumed character of the party, it cannot be supposed that at the time of the principal act or declaration the party believed himself to be speaking or acting against his own interest, but often to the reverse. This class of admissions are therefore treated as a substitute for the ordinary and legal proof, either by virtue of the direct consent and waiver of the party, or on the grounds of public policy and convenience in the case of those implied from assumed character, acquiescence or conduct. In regard to the conclusiveness of admissions, it must be remembered that the genius and policy of the law favor the ' Bidwell V. Pittsburg, 85 Pa. St. 15 Conn. 406; Roe v. Jerome, IS 412. Conn. 138; Davis v. Bradley, 24 Vt. « Taylor V. Ely, 25 Conn. 250; Mc- 551; Rangely v. Spring, 28 :Me. 142; Afferty v. Conovcr, 7 Ohio State, 99; Ackla v. Ackla, 6 Pa. St. 128; Brant ■Mildmay v. Smith, 2 Wm. Saund. v. Coal Co., 93 U. S. 326; Dorlarqiie 343; Pickard v. Sears, 6 A. & E. 469; v. Cress, 71 III. 380; Preston v. Mann, Gregg V. AVells, 10 A. & E. 90; Heane 25 Conn. 118; Brewer v. R. R. Co., 5 V. Rogers, 9 B. & C. 577; Graves v. Met. 489; Evans v. Bicknell, Ves. Key, 3 B. & A. 318; Bidwell v. PiUs- 174; Slim v. Croucher, 1 De G. F. & burg, 95 Pa. St. 412; Stephens v. G. 518; Lee v. Munroe, 7 Crauch, Blaird,9Cow.274; Bushnell v. Church, 366. Estoppel in Pais. 863 investigation of truth by all convenient and expedient methods, and that the doctrine of estoppels, by which further investii^ation is precluded, being an exception to the general rule, founded on convenience and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded. They bind only parties and privies. When verbal admissions are held con- clusive, they are rendered effectually so by not permitting the parties to give any evidence against them. This class of admis- sions which have been held conclusive against the party, are those on the faith of which a court of justice has been held to adopt a peculiar course of proceeding, or on which another per- son has been induced to alter his condition ; while an admission may be conclusive in a civil action it may not be regarded as even admissible evidence in a criminal one. Thus, where a party was charged with misapplication of money received from the government, the admission of his agent and receiver was held conclusive of the fact of the receipt of the money, but was not admissible to establish the charge of criminal misapplication of it.' So that while a matter in jx^is, may be conclusive in a civil action it would not be admissible in a criminal one. § 733. The authorities upon equitable estoppels, or estoppels in pais, as they are frequently termed, are numerous and constantly increasing. The doctrine of estoppel in pais is a most equitable doctrine, and one without which the laws of the civilized world Avould not be satisfactorily administered. In the jurisprudence of all civilized nations the doctrine is found, " that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might have otherwise abstained, he cannot question the legality of the act he has so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from. his conduct.'" § 734. This doctrine of estoppel is a very old head of equity and was recognized and applied in a large number of ancient ' 29 How. State Trials, 764. ' Cairncross v. Lorimcr, 3 Macq. H. L. C. 829, Per Lord Campbell. 864 The Law of Estoppel. cases,.as will be seen from the cases cited.' Many of these cases related to underhand agreements in fraud of marriage settlements; but the principle is of universal application. Relief was given according to the circumstances of each case — sometimes by en- joining actions at law — in which the legal title was set up, and sometimes by decreeing conveyances, and the cancellation of deeds and other instruments, but in all these cases relief was given in equity, contrary to the strict legal rights of the defend- ants. In the case of an estoppel of this nature a party is not permitted to assert his strict legal right, for the reason that, nnder the circumstances of the particular case, it is contrary to equity and good conscience. Thus, in a writ of entry : by the tech- nical rules of law, if the demandant proves seizin in himself and a disseizin by the tenant within the time of limitation, he is entitled to judgment ; but if the demandant, having a dormant title to the land demanded, concealed his title and encouraged the tenant to purchase another, he is not permitted to set up his legal title, for the reason that it would be contrary to equity and good conscience."" § 735. There are many fundamentals of the law which are applicable to and explanatory of this doctrine of equitable estop- pel. In fact, they may be said to be the foundation of this broad principle of morality and justice. Among the most impoi'tant are : '■^Nnllus commodum cajje re potest de wjiiria sua propria " — no man shall take advantage of his own wrong. '•'■ Allegans con- l/raria non est audiendus''^ — one making contradictory allegations is not to be heard. From which we have the trite saying, that one cannot blow hot and cold. " Volenti non fit injuria " — no one can maintain an action for a wrong where he has consented ' Morrison v. Arbuthnot, H. L. v. Cbeyney, 2 Vern. 150; Lamlee v. 1728; Eq. Ca. Abr. 356, PI. 8; Evans Hanman, 2 Vern. 499; Raw v. Pole, 2 V. Bi(;kuell, 6 Ves. 174; xVtwood v. Vcru. 239; Blancbet v. Fcsler, 2 Yes. Small, 6 CI. & P. 232; Key v. Brad- 264; East India Co. v. Vincent, 2 Atk. Shaw, 2 Vern. 102; Hall v. Potter, 83; Stiles v. Cowper, 3 Atk. 693; Show. P. C. 76; Law v. Law, 3 P. Farmer v. Webber, 13 Viner Abr. Wms. 391, 525; Neville v. Wilkinson, 1 Bro. C. 2 Dyer v. Dyer, 9 Ch. Cas. 108; C. 543; Storrs v. Barker, 6 Johns. Ch. Teasdale v. Teasdale, 13 Viner, 539; 166; Strong v. Ellsworth, 26 Vl. 3()6; Hobbs V. Norton, 1 Vernon, 136; Horn v. Cole, 51 N. H. 287: Webber Gale V. Lindo, 1 Vern. 475 ; Hunsden v. Farmer, 2 Brown P. C. 88. Estoppel in Pais. 865 to the act which occasions his loss. ^^Qui Tion prohihet quodpro- htbere potest assentire vidstur " — he who does not forbid what lie can forbid, seems to assent. '■^ Qui potest et debet vetare, juheV — he who can and onght to forbid, and does not, commands. '-'-Qui tacet, consentire videtur''''- — he who is silent appears to consent. ''^Nemo ex propria consequitur actionem'''' — no one acquires a right of action from his own wrong. '■'■Ex dolo malo nan oritur actio " — a right of action cannot arise out of a fraud. '■'■Frustra legis aux Hum quaerit in legem cominittif'' — vainly does he who offends against the law seek the help of the law. '"'' Frustra petis quod station alteri reddere cogeris^'' — in vain you will seek that which you will be compelled to give back to another. ^''Omnes licentiam lioibere his, quae pro se inducia sunt, renunciare " — every man may renounce a benefit or waive a privilege which the law has conferred upon him. '■'Consensus tollit errorem'''' — consent removes or obviates a mistake. ^'■Quilihet potest renun- ciare juri pro se inducto^'' '■''Quod semel placuit in electlonihus ampjlius dlsplicere non potest'"' — that which in making his elec- tion, a man has been once pleased to choose, he cannot after- wards quarrel with. ^'^ Nul jyrendra advantagede sontort demesne''' And the following, "He, certainly, who trusts most, ouglit suffer most."' Where one of two innocent parties must suffer, he, through whose agency the loss occurred, must sustain it." It Avill be seen as Ave progress in this branch of the law of estoppel that the vast number of cases cited are illustrations of, and the application of tliose terse principles to facts and circumstances in which the doctr'ne of equitable estoppel becomes an important factor in the determination of the rights of parties. § 736. The fundamental principle upon which this doctrine is based is the equitable one, the suppression of fraud and the enforcement of honesty and fair dealing. The ground upon which a party is estopped from proving that his represen- tations on which another has acted were false, is that to permit it, is contrary to equity and good conscience. The term equitable estoppel was accorded to it for the reason that the jurisdiction of enforcing this equity belonged originallj' and peculiarly to courts of chancery or equity, and was not exercised b}' courts of law ' Le Neve v. Le Neve, 3 Ark. 646. Vol. L— 55 TnE Law of Estoppel. until comparatively a recent date. In its application to suits affecting the title to land it is in some American States and other countries confined to courts of equity. It was said in a modern case, that " these estoppels are now called equitable estoppels, not because their recognition .is peculiar in equitable tribunals, but because they arise upon facts which render their application in the protection of rights equitable and just." Courts of chancery recognize them in cases of equitable cogni- zance, and the courts of common law just as readily and freely. The same doctrines and principles are applicable to sales of land as well as personal property, and the equitable estoppel is availa- ble in an action at law for the land.' Estoppels in pais are cre- ated by the law for the purpose of doing justice. They are called equitable estoppels, in contradistinction to an estoppel by a deed or record. Whether they exist in specific cases is often a question of great dlfliculty. Tlie rules of law in regard to them are being well established. They may arise from a variety of facts, and often depend in a great degree upon the relations ■which exist between the parties. § 737. In a late ease," where the title to land was in question, the objection was made that this equitable estoppel was not avail- able at law. The Supreme Court of the United States said : " This is certainly not the common law. Littleton says : ' And so a man can see one thing in this case, that a man shall be estopped by matter of fact, though there be no writing, by deed or otherwise.' Lord Coke, commenting hereon, gives an instance of estoppel by matter of fact — tliis very case of partition.' And " Dickei'son v. Colyrove. 100 U. S. Stearns v. McNamara, 36 Me. 78 578; Brown v. Wheeler, 17 Conn. Maxwell v. Bridge Co., 41 Micb. 453 345; Stodtliird v. Chambers, 2 How. Kid v. Mitchell, 1 N. & Mc. 3;i4 284; Drcxcl v. Berney, 16 F. R. 522; Dezell v. Odell, 3 Hill. 215; Stincb- Kirk V. Hamilton, 103 U. S. 68; Doe field v. Emerson, 52 Me. 405; Bige- V. Kosser, 3 East, 15; Durham v. low v. Foss, 5!)Me. 162; Stons v. Bar- Alden, 20 :Me. 2ol; Hatch v. Kimball, ker, 6 .Johns. Ch. IGG; Evans v. Bick- 16 Me. 140; Barnard v. Seminaiy, 49 nell, 6 Ves. 174; Pickard v. Sears, 6 Mich. 444; Sebright v. Moore, 33 A. & E. 469. Mich. 92; Colweil v. Brown, 75 111. ' Dickerson v. Colgrove, 100 U. S. 516; Horn v. Cole, 51 N. H. 287; 578. Eangely v. Spring, 21 Me. 137; ^ Co. Litt. 356, § 667. Estoppel in Pais. 867 such an award has been held sufficient to estop a party against whom ejectment was brought.' In Cincinnati v. White,^ tlie proprietors of the city plat, in 1789, dedicated the gi'ouud between Front street and the Ohio river to the public for coinuiercial and other purposes. The legal title had not then emanated from the government of the United States. In this state of things the statute of limitations does not run. White long subsequentlj'^ acquired the legal title and brought ejectment for tlie premises. The court said (p. 441) : " This is a possessory action, and the plaintiff, to entitle himself to recover, must have the right of possession, and whatever takes away this right of possession will deprive him of the remedy by ejectment.'" This is the rule laid down by Lord Mansfield, in Atkins V. Hoard :^ "Ejectment," says he, " is a possessory rem- edy, and only competent where the lessor of the plaintiff may enter, and every plaintiff in ejectment must show a right of pos- session as well as of property." If the plaintiff in the present case was not entitled to possession, how, according to this author- ity, could he recover ? If he had recovered, and a court of equity would have enjoined him from executing the judgment by a writ of possession, we ask, again, how could he recover in this action ? Is not the concession that relief could be had in equity fatal to the proposition we are considering ? In Stoddard v. Chambers,^ it was said by this court : " On a title by estoppel, an action of ejectment can be maintained." We do not overlook the fact that in tliis case a land claim had been conveyed before confirmation. When confirmed by an act of Congress to the assignor and his legal representative, it was held that the legal title became vested in the former, " and inured, by M-ay of estop- pel, to his grantee, and those who claimed by deed under him." In that case, as in this, there was no formal transfer of the title. The transfer was made, as under a statute of limitations, when the bar is complete, by operation of law.° Why may not a like transfer be iield to have been made in this case ? The reason given for the rule of inurement and estoppel by virtue of con- 1 Doe d. V. Rosser, 3 East, 15 ; * Atkins v. Hoard, 1 Burr. 119. Browu V. Wheeler, 17 Conn. SHS. * Stoddard v. Chambers, 2 How. * Cincinnati v. White, 6 Pet. 431. 317. 3 Adams Eject. 33; Starkie, part 4, « Lefflngwell v. Warren, 2 Black, 505, 506, 507. 599. 868 The Law of Estoppel. veyanccs is, that it avoids circuity of action. Does not the same consideration apply, with equal force, in cases of estoppel i7i pais f Why is it necessary to go into equity in one case and not in the other? It has never been held that the statute of frauds applies to cases of iiinrenient, and it has been conceded that it does not affect cases of dedication. Where is the difference in principle in this respect between those cases and the one before us ? But here this point cannot arise, because the promise relied upon was in Avriting. In Cincinnati -y. White, supra^ this court, speak- ing of the dedication there in question, said, " the law considers it in the nature of an estoppel in])au^ which precludes the origi- nal owner from revoking such dedication," and that a grant might have been presumed "if that had been necessarj', and the fee might have been considered in abeyance until a competent grantee appeared to receive it ; whicli was as early as the year 1802, when the city was incorporated." Ilere there was a grantee capable of taking the fee all the time from the date of the letter. The common law is reason dealing by the light of experience with human affairs. One of its merits is that it has the capacity to reach the ends of justice by the shortest paths. The passage of a title by imirement and estoppel is its work without the help of legislation. We think no sound reason can be given why the same thing should not follow in cases of estop- pel in pais where land is concerned. This defense may be made at law, and a resort to equity is not necessary. Whether the title passed or not, it is fatal to the action — that the plaintiff was not entitled to possession of the premises. § 7o8. This doctrine of estoppel may debar the truth in a particular case, and is therefore not unfruquently in such case declared odious. Yet it must not be forgotton, that it estops only when its utterance would convict the party of a previous false- hood, or would be a denial uf a previous representation on the faith of which other persons have dealt or pledged their credit, or expended their money. It is a doctrine, when properly under- stood and applied, that estops the truth in order to prevent fraud and falsehood, and imposes silence only when the party should not in conscience and honesty be allowed to speak. The old Estoppel in Pais. 869 maxim that " Estoppels are Odious," is not properly applicable to. equitable estoppels, as they are founded on the highest principles of morality and justice, and they are favorably regarded by all courts as tending, when properly consti-ued and applied, to uphold the purpose of agreements and prevent and suppress fraud and injustice. It is wise and just, therefore, to provide certain means by which a man may be estopped or concluded — not from speak- ing the truth — but from saying that is false which by the inter- vention of himself, has once become accredited for truth. And in all probability, no code, liowever rude it might have been, ever existed without some such provision for the security of men, acting as all men must, upon the representations of others. § 739. This doctrine is properly and peculiarly a doctrine of equity, originally introduced there to prevent a party from taking a dishonest and unconscientious advantage of his strict legal rights — though, like many other equitable doctrines, constantly administered at law. The ancient practice differed from the modern, and in actions at law, the courts being unable of giving effect to this equity, were often enjoined where the party insisted on his rights at law, contrary to the equitable doctrine. Tlie office of equitable estoppels at law is therefore like that of injunc- tions in equity, to preclude rights that cannot be asserted con- sistently with good faith and practice, to prevent wrongs for which there might be no adequate remedy. And they should consequently, when the circumstances will permit, be so construed and moulded as not to deviate from their object ; and those cases where estoppels are said to be odious or not favored, should be only where the technicality of the estoppel can not be subservient to its equity. § 740. It is necessary, to observe the distinction between this doctrine of equit}^ and the legal estoppel by matter in pais and not confound one with the other. There is no distinction between them, in their effect, viz. : that they both preclude the party from showing the truth in the particular case. The means, by which the same result is reached is not only distinct but directly anta- gonistic. The legal estoppel debai-s the truth, and also the equity and justice of the individual case, in accordance with the supposed paramount importance of rigorously enforcing a certain and unvarying fundamental principle of the law. For reasons ol 870 The Law of Estoppel. •general policy, which have been heretofore stated in tliis work, a record is held to import incontrovertible or absolnte verity, and for the same reason a party is not permitted to contradict his solemn admission by deed. For no man shall be allowed to defeat liis own act or deny its validity to the prejudice of another. And the same is equally true of legal estoppel by matter i7i pais. Certain acts done out of court and without deed were by a technical and unyielding rule of law, upheld on similar grounds of public policy, and always followed by certain legal conse- quences. The legal effect of such acts was not allowed to be con- troverted by proof. Thus the doctrine was established, that if one accepts a lease and enters under it, he is estopped to claim any other estate in the land during the term ; nor can he show that he was the owner of the land when the lease was made. Estoppels by matter injjais were few in number, and all of this general and well-defined character ; and they all enforce some technical rule of the law against the truth, and also against the justice of the individual case. Lord Coke, in his examination of the different kinds of estoppel by matter in pais, states the follow- ing : " by livery, by entry, by acceptance of rent, by partition and by acceptance of an estate.'" . § 741. Speaking of legal estoppels by matter in pais, Parke, B., says,^ " they are but few and are pointed out by Lord Coke (as above stated). They are all cases which anciently really were, and in contemplation of law have always continued to be acts of notoriety no less solemn than the execution of a deed, such as livery, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort was deemed a mat- ter which there could be no difficulty in ascertaining, and then the legal consequences followed." In tlie authorities which contain the most complete enumerations of the various kinds of estoppels and the most complete discussion of the law on that subject there is little if any allusion to tlie equitable estoppel, the nature of which is considered in this chapter. Ail legal estoppels, whether by record, deed, or by matter in pais, were founded on strict legal rules, and debiu'red or precluded proof of the truth and jus- tice of the individual case." The effect then of legal estoppels, 1 Co. Lit. 352, A. ^ Lyon v. Reed, 13 M. & W. 309; * Lyon V. R(;ed. 13 M. «& W. 309. Freeman v, Cooke, 2 Excbq. 658. Estoppel in Pais. 871 being to exclude jproof of the truth and justice of particular eases, were denounced as " odious,''^ and were strictlj' construed against the parties seeking to avail themselves of them. It was required in a manner similar to other inequitable defenses, that thej be pleaded with certainty to every intent, and not be taken by argu- ment or inference ; and ought to be a precise affirmation of that which makes the estoppel, and be precise, clear, and unequivocal. According to Lord Coke, when they were relied on by averment and tried by a jury, the jury might find, and were bound by their oaths veritat&m dicere to find, according to the truth of the case regardless of the estoppel.' The modern practice has matei'ially changed this rule, and legal estoppels may be relied on, when given in evidence, without being specially pleaded. Such estop- pels exclude evidence of the truth and the equity of the particular cause to support a strict rule of law, on grounds of public policy. § 742. The class of estoppels termed equitable, or estoppels in pais being the creation of courts of chancery, the remedy in such cases was by application to a court of equity, and no redress could be obtained at law unless under rare and exceptional circum- stances. But the common law has been enlarged and enriched with the principles and maxims of equity which are constantly applied at tlie present time, by a wise adaptation of ancient forms to the more liberal spirit of modern times. Equitable estoppels are based on the directly contrary ground of promoting the equity and justice of the individual case, by preventing the party from asserting his rights under a general technical rule of law when he has so conducted himself tliat it would be contrary to equity and good conscience for him to allege and prove the truth. TJie facts upon which equitable estoppels depend, as a general rule, are proved by oral evidence ; and this evidence should be precise, clear and nnequivocal, before it should be admitted to estop the party from showing the proof, especiallj^ affecting the title to land. Where the facts are clearly proved, the maxim that estop- pels are " odious^'' which may have been correctly applied to legal estoppels, (for the reason that they debarred the truth and justice of the case), is not applicable to the doctrine of equitable estoppels, as it has been through inadvertence, from a supposed » Co. Lit., 227, a, Trials Per Pais, 284; Com. Dig. Est. S. 5. 872 The Law of Estoppel. analogy with the legal esto]ipel by matter in pais, to which they have in this respect no similarity wluitever. And the weight of authority as derived from cases in which the real nature of this equitable doctrine has been considered is, that such estoppels are not " vdio^isr and to he construed strictly, but they are entitled to a fair and liberal application, in the same manner that other equitable doctrines are which are admitted to suppress fraud and promote honesty and fair dealing.' § 743. In accordance with the principles on which the doc- trine of equitable estoppel is founded, the party is precluded from setting up his legal title, because he has so conducted himself that to do so would be contrary to equity and good conscience. As in cases of fraud and dishonesty, th.e circumstances out of which the question may arise are of infinite variety, and unless courts at law are willing to abandon the duty of administering this equitable doctrine effectually in the suppression of fraud and unfair dealing, the application of it caimot be confined within the limits of any narrow, technical definition, such as will relieve courts from looking, as in other cases depending on fraud and dishonesty, to the circumstances of each particular case. There are certain general rules applicable, as in other cases where relief is sought on similar grounds. § 744. The origin of this branch of estoppels being purely equitable, and having been borrowed from equity by courts of law, it is incumbent upon such courts, in applying the principle, to ascertain the practice in equity and be guided by it in their application of the doctrine. In equity the doctrine has been liberally applied in the suppression of fraud and enforcement of honesty and fair dealing, without any attempt to confine the doe- trine within the limits of a strict rule. The application of equi- table estop])els by courts of equity is to every species of property, and there can certainly be no reason for restricting its operation by courts of law, the necessity of protection against fraud, no * Aspitel V. Bryan, 3 B. & S. 472; Ya'n Rensselaer v. Kearney, 11 How. Howard v. Hudson, 2 EI). & B. 10; 326; Preston v. Mann, 25 Conu. 118; Andrews v. Lyon, 11 Allon, 349; Biirkhalter v. Edwards, 16 Ga. 593; Dezell V. Odell, 3 Hill, 220; Common- Shaw v. Beebe, 35 Vt. 205; and see wealth V. Motz, 10 Pa. St. 530; Buck- cases cited, Post, ingliain v. Hannu, 2 Ohio St. 557; Estoppel in Pais. 873 matter what the interests are or may be that are at stake. There is nothing in the nature of real estate, whether the action be at law or equity, which should deprive it of the benefit of those wise and salutary principles which are applied without hesitation in both jurisdictions in the case of personalty. The doctrine of equitable estoppels has become too firmly established to question at this day the wisdom of the change which released it from the exclusive equity jurisdiction of former times, enlarging its oper- ation to the whole field of jurisprudence. The doctrine of equi- table estoppels is one which at the present time can be applied at law to real and personal property, without forcing the parties to seek relief in equity, and as between co-ordinate powers, neither can lessen the power of the other hy arrogating them to itself. The appropriation of the doctrines of equity by the com- mon law will not estop the right to seek redress by an application in due form to chancery. § 745. The common law courts, acting upon principle that equity was antagonistic to law, established a system which, while harsii and oppressive, was founded upon the erroneous principles of such antagonism. But there has not been, nor is there at present, any direct conflict between the two systems. § 746. In many of the States of the Union, the distinction between actions at law and equity have been abolished, in other States, where both jurisdictions still exist as independent tribu- nals, the line of demarcation between legal rights and equitable rights is still maintained. Is there any reason for these distinc- tions, and do they in reality exist? A learned commentator says : " Equity, in its true and genuine meaning, is the soul and spirit of all law ; positive law is construed and rational law is made by it. In this, equity is synonymous to justice ; in that, to the true sense and interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted with each other, are apt to mislead us ; as if one judge without equity, and the other was not bound by any law, whereas every definition or illustration to be met with, which now draws a line betweeii the two jurisdictions by setting law and equity in opposition to each other, will be found either totally erroneous or erroneous to a certain degree. It is said that the business of a court of equity is to abate the rigor of law. But no such power is contended 874 The Law of Estoppel. for. In all cases of positive law, the courts of equity, as well as the courts of law, mast say with Ulpian, 'Aoc quidem per quam duraTTi est., sed ita lex scripta eat? It is said that a court of equity determines according to the spirit of tiie rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound and equally pro- fess to interpret statutes according to the true intent of the Legislature. § 747. ** In general laws, all cases cannot be foreseen ; or, if foreseen, cannot be expressed; some will arise that will fall within the meaning, though not within the words, of the legis- lator ; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, those out of the letter, are often said to be with the equity of an act of the Legislature, and so cases within the act are fre- quently without the equity. Here, by equity, is meant nothing but the sound interpretation of the law, though the words of the law itself may be too general, or otherwise inaccurate or defect- ive. These, then, are the cases which, as Grotius says, '"'' lex non exacte definite., sed arbitrio honi viri permittitr in order to lind out the true sense and meaning of the law giver, from every other topic of construction. " After stating the principal ground ot the jurisdiction exer- cised in courts of equity, ho says : ' For the sake of certainty, peace and justice, each court should, as far as possible, follow the other, in the best and most effectual rule for attaining those desirable ends. It is a maxim that equity follows the law, and the law has not scrupled to follow equity. There cannot be a greater solecism than that, in two sovereign and independent courts, established in the same country, exercising conc".irrcnt jurisdiction, and over the same subject matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other.' " § 748. The systems of jurisprudence in courts of law and equity are now equally artificial systems, founded in the same principles of justice and positive law, but varied by dillcrent usages in the forms and modes of their proceedings. It is said that in'order to give jurisdiction to a court of equity that tho Estoppel in Pais. 876 complainant has no remedy at law ; he who should, for this rea- son, conclude that no cause is tried in equity where relief might be had at law, and at the same time examines the extent and variety of the cases in the equity reports, must think that the law is a dead letter indeed. The rules of property, rules of evidence and rules of interpretation in both courts are or should be exactly the same ; both ought to adopt the best, or must cease to be courts of justice. The distinction between law and equity is never in any countrj' a permanent distinction. Law and equity are in continual progression, and the former is constantly gaining on the latter. A great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next. Such pre-eminently has been the course of jurisprudence on this subject. Many of the doctrines originating in the courts of equity, respecting the rights of parties, have been incorporated into the code of the common law, so that there is now no substantial difference between the two systems. This has been true in substance for nearly a century past. There can be no reason for still adhering to these delusive distinctions which, when carefully examined, are found to have emanated from causes more imaginal than real.* When the vast number of cases are taken into consideration, in which the doc- trine of equitable estoppel has been applied in courts of law as well as equity, well may it be said that " the case of equitable estoppel is one of the most splendid triumphs of equitable princi- ples over technical rules, and of the homage which these prin- ciples have received by their adoption in the courts of law. Without any prophetic anticipation, we may well say that "returning Justice lifts aloft her scale.'"" • § 749. This equitable estoppel involves a question of legal ethics, the doctrine lies at the foundation of morals, and applies wherever a party has made a representation, by words or con- duct, which he cannot in equity and good conscience prove to be false ; and that this kind of estoppel, being a broad doctrine of equity, cannot be limited in application b}' the terms of any nar- row legal definition ; from the means in which the party must avail himself of these estoppels, it is obvious tiiat there can be • Blacks. Comm. B. », Ch. 27. « 4 Kent, II. Ed. p. 173. 876 The Law of Estoppel. no settled or fixed rules of universal application.' As in cases of technical legal estoppels, in many and most instances, whether the act or admission shall operate as an estoppel or not, must depend on the circumstances of tlie case, though there are some general rules which may materially assist in the examina- tion of such cases. § 750. The case of Pickard v. Sears,' although decided in 1837, has been regarded to a great extent by the courts of Eng- land and this country as the leading case at law on this subject. It was trover by the mortgagee of personal property against the defendants who were purchasers at a sale on execution against the mortgagor. The facts set up in defense were, that the plaint- iff was present at the sale, did not disclose his title as mort- gagee, and encouraged the defendants to purchase. The question on trial was, as to the property of the plaintiff in the goods, and Lord Denraan directed a verdict for the plaintiff. A rule to show cause why the verdict should not be set aside was made absolute. In delivering the judgment of the court, Lord Den- man said : " His," the plaintiff's, " title having been established, the property could on!)' be divested by gift or sale, of which no specific act was even surmised. £ut the rule of law is cleai\ tliAit where 07ie, by his words or conduct^ wiUfidly causes another to helieve the existence of a certain state of things, and induces him to act on that helief so as to alter his oivn previous position^ the former is concluded from, averring against the latter a differ- ent state of things as existing at the same time: and the plaintiff might have parted with his interest in the property by a verbal gift or sale, without any formalities that throw technical diffi- culties in the way of legal evidence. And we think his conduct in standing by and givhig a kind of sanction to the proceedings under the execution was a fact of such a nature, that the opinion of the jury ought to have been taken wJiether he had not, in point of fact, ceased to be the ownerP § 751. In the light of the authorities on this subject, it is ' Canal Co. v. Hathaway, 8 Wend. N. H. 287; Preston v. Maun, 25 Conn. 483; Dezell v. Odell, 3 Hill, 22r); 118. Strong V. Ellsworth, 2G Vt. 306; Lucas ^ pickard v. Sears, 6 Ad. & Ell, V. Hart, 5 Iowa, 415; Frost v. Ins. 469. Co., 5 Denio, 154; Home v. Cole, 51 Estoppel in Pais. 877 somewhat difficult to understand that, in this action at law, the court, at so recent a period, as when this case was decided, after stating the general equitable doctrines, did not apply it, and de- cide that the plaintiff was estopped by his conduct to prove his title, but instead, allowed the facts to go to the jury as evidence that the plaintiff, in some undefined and mysterious manner, had parted with his title to the property. It is important, however, to show the reluctance with w^hich courts acted in actions at law, in admitting a defense which was founded on fraud, and which was one of the peculiar matters of equitable jurisdiction. The statement of Lord Den man as to the rule of law above referred to, which is the equitable doctrine of estoppel, and applicable to the facts in that case, could not have been understood by him at the time as laying down a technical definition establishing the limits of the doctrine, and excluding all cases that did not come clearly within tlie terms used by him on that occasion (as will be hereafter shown). Yet tlie statement of the rule in the language of Lord Den man, has been adopted as the correct rule in any number of cases in which the doctrine of equitable estoppel was applied by the courts of this country, with the usual results of contradictory interpretations thereof. Thus, one interpretation has been that the representations must have been made with the intent to deceive, and to deceive the party who claims the benefit of the estoppel.' And another interpretation of the same case, " that wiiere the representation comes in any way to the ears of the party wlio acts on it, he may claim the benefit of the estop- pel.'" § 752. The well established and often recognized fundamental principle of law. Nulhis Coininoduin Capere Potest De injuria Sua Propria. That no man shall take advantage of his own wrong^ is fully recognized in all courts of law and equity, and is ' Plumer v. Lord, 9 Allen, 455; ^ Mitchell v. Reid, 9 Cal. 204; Quirk Audrews v. Lyon, 11 Allen, 349; v. Tliouias, 6 Mich. 76. Langdon v. Dond, 10 Allen, 433; ^ Findonv. Parker, 11 M. &W. 680; Auueuried v. Bettel}^ 5 Allen, 382; Daly v. Thompson, 10 M. & W. 309; Hawes v. Merchant, 1 Curt. C. C. 144. Malins v. Freeman, 4 Bing. N. C. 395; And was recognized by Lord Camp- Doe v. Banks, 4 B. & A. 409; Runiscy bell in Howard v. Hudson, 2 El. & v. Ky. Co., 14 C. B. N. S. 653; Haw- B. 1. kins V. Hall, 3 My. & Cr. 281; Pope 878 The Laav of Estoppel. one of the most essential elements in an equitable estoppel, or estoppel injyai.s, wliicli, as a principle of law, is founded on the strictest morality. As this class of estoppels are founded upon the principle of equity and justice, that no man shall take advan- tage of liis own wrong, it is a well established, just and sahitary principle that where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his owm previous position, the former is estopped from averring against the latter a different state of things as existing at the same time.' § 753. The doctrine announced in this now celebrated case, while it has been extensively adopted,* has been regarded as a V. Fleming, 5 Excbq. 249; Molton v. Camroux, 4 Exchq. 17; Arden v. Goodacre, 11 C. B. 371; Hooper v. Lane, 6 H. L. Cas. 443; Williamson Williamson, 71 Me. 442; Pearson v. Douglass, 57 Tenn. 151 ; Blair v. Wait, 69 N. Y. 113; McLean v. Dow, 42 Wis. 610; Broyles v. Nowlin, 59 Tenn. 191; Eriiardt v. Boaro, 3 Mc- Crary, 19; Mowry's Appeal, 94 Pa. St. 376; Collier v. Pfenning, 34 N. J. E. 22; Inness v. Stewart, 36 Mich. 285; Stevenson v. Saline Co., 65 Mo. 425; Koon V. Snodgrass, 18 W. Va. 320; Yonugblood v. Cunningham, 38 Ark. 572; Rabun v. Rabun, 61 Ga. 647; \ McDonough v. Hanifan, 7 111. App. 50; Clermoutel's Estate, 12 Phihi. 139; Downey v. O'Donnell, 92 111. 559; Welch V. Slierer, 93 111, 64; Davis v. Williams, 49 Iowa, 83; Butler v. Moore. 73 Me 151; S. C, 40 Am. R. 348; Green's Appeal, 97 Pa. St. 342; Knaggs V. Mastin, 9 Kas. 532; Dorris V. Smith, 7 Oreg. 267; Tuflfts v. Du Bignon, 61 Ga. 322; Brower v. Callca- der, 105 111. 88. » Pickard v. Sears, 6 Ad. & El. 469. ■^ Timon v. Whitehead, 58 Tex. 290; Lovev. Barbour, 17 Tex. 312; Harri- son V. Wright, 13 M. & W. 816; Hib- bard v. Coolidge, 1 Met. 84; Miles v. Furber, L. R. 8 Q. B. 77; Thrustonv. Thornton, 1 Cush. 89; Brogden v. R. R. , L. R. 2 App. Cas. 006; Carrol v. R. R., Ill Mass. 1; Rice v. Barnett, 116 Mass. 312; Ragsdale v. Gohlke, 36 Tex. 286; Stephens v. Baird, 9 Cow. 274; Redd v. R. R. Co., 48 Va. 102; Home v. Cole, 51 N. H. 287; Gregg v. Wells, 2 P. & D. 296; Gregg v. Wells. 10 A. & E. 90; Stroud v. Stroud, 7 M. & C. 417; Coles v. Bank, 10 A. & E. 439; Sandys v. Hodgson, 10 A. & E. 472; Corni.sh v. Abingdon, 4 II. & N. 549; Downes v. Cooper, 2 Q. B. 256; Doe v. Graves, 16 L. J. Q. B. 297; Rumball v. Bank, 2 Q. B. D. 194; Goodwin v. Roberts, 1 App. Cas. 476; Alderson v. Maddison, L. R. 5 Ex. D. 296; Alexander v. Walter, 8 Gill, 252; Homer v. Grosholz, 38 Md. 530 ; Bramble v. State, 14 Md. 435; Brown V. In.s. Co., 42 Md. 385; Hamilton v. R. R., 44 Md. 551; Simons v. Steele. 36 N. H. 73; Choteau v. Goddin, 39 ]\Io. 229; Cowles v. Bacon. 21 Conn. 451 ; Sharon v. ]\Iinnock, 6 Nev. 377; Att'y Gen'l v. Stephens. 1 K. & J. 724: Pigett v. Stralton, 29 L. J. Ch. 9; McCance v. London, etc., 7 II. & N. 190; Parish v. Coon. 40 Cal. 33; Mallory v. Horan, 49 N. Y. Ill; Hos- tler V. Hayes, 3 Cal. 302; Connover v. Porter, 14 Ohio, 450 ; Nichols v. Estoppel in Pais. 879 statement of the equitable doctrine made 'in reference to the circumstances of that case, and is neither a formal nor complete definition of the doctrine of equitable estoppels. Atberton, 10 Q. B, 949; Pilbower v. Todd, 11 K J. E. 312; Hniley v. Franks, 18 La. An. 559; McCance v. Loudon, &c. Co., 3 H. «& C. 343; Chapman v. O'Brien, 34 N. Y. Super. 524; Stevens V. Dennett, 51 N. H. 324; Strafford, in re, 2 L. J. Ch. 202; Hawes v. Wasson, 2 B. & C. 540; Willis V. CarpeiUer, 14 N. B. R. 53; Crockett v. Lashbrook, 5 Mon. 530; Cave V. Mills, 7 11. & N. 913; People V. Brown, 67 111. 435; Foster v. Ins. Co., 3 E. & B. 48; Gurney v. Evans, 3 H. & N. 122; Martin v. Zellerbach, 38 Cal. 300; Woodlcy v. Coventry, 2 H. & C. 164; Hardy v. Bank, 51 Md. 563: Acton v. Dooley, 74 Mo. 63; Dunstan v. Patterson, 2 C. B. N. S. 495; Spurlockv. Sproule, 72 Mo. 509; Taylor v. Zepp, 14 Mo. 483 ; Cox v. Cannon, 4 New Cas. 455; Bales v. Perry, 51 Mo. 449; Ry. Co. v. Wood- cock, 7 M. & W. 574; Ry. Co. v. Danvil, 2 Q. B. 281; Wincbell v. Ed- wards, 57 111. 41; Leeper v. Hersman, 58 111. 218; Davidson v. Silliman, 34 La. Ann. 235; Miller v. Springer, 70 Pa. St. 69; Dean v. Martin, 34 La. Ann. 103; Trowbridge, v. Mathews, 38 Wis. 656; Mahaska v. Des Moines, 28 111. 137; 'Erie. &c. Co. v. Dela- ware, &c. Co., 31 N. J. E. 383; Favill V. Roberts, 3 Lans. 14; Waddell v. Morris, 36 Wis. 611; Hall v. Dock Co., 23 Wis. 370; Lathrop v. Knapp, 37 Wis. 215; Ford v. Smith, 37 Wis. .361 ; Ilawley v. Middlebrook, 28 Conn. 537; Stone v. Brittoii, 33 Ala. 543; Bank v. Woolaston, 3 Harr. 90; Bryan v. Walton, 14 Ga. 180; Burkhalter v. Edwards, 16 Ga. 503; Burton v. Black, 33 Gn. 53; Bank v. Dennis, 37 111. 381; Williams v. Jack- son, 38 Ind. 334; Tappan v. Morse- man, 18 Iowa, 499; Mathews v. Light, 33 Me. 305; Quirk v. Thomas, 6 Mich. 76; Wells v. Pierce, 37 N. H. 503; Richardson v. Chickering, 41 N. H. 380; Martin v. Righter, 10 N. ,T. E. 510; Corkhill v. Landers, 44 Barb. 218; Baker v. Seely, 17 How. P. 397; Arnold v. Comman, 50 Pa. St. 361; Strong V. Ellsworth, 36 Vt. 366; Love V. Wells, 35 Ind. 503; David v. Shep- ard, 40 Ala. 587; Roe v. Jerome, 18 Conn. 138; Brown v. Wright. 17 Ark. 9; Lasalle v. Barnett, 1 Blackf. 156; Mitchell V. Reed, 9 Cal. 204; Laski v. Goldman, 18 La. Ann. 294; Bank v. Jerome. 18 Conn. 443; Forsyth v. Day, 46 Me. 176; Plumer v. Lord, 9 Allen, 445; Cook v. Finkler. 9 Mich. 131; Wyman v. Perkins, 29 N. H. 218; White V. Laugdon, 30 Vt. 599; Dyer V. Cady, 20 Conn. 563; Allen v. Win- ston, 1 Rand. 65; Preston v. Mann, 25 Conn. 18; Garrison v. Garrison, 35 N. J. L. 153; Rigney v. Smith. 29 Barb. 383; Bowen v. Buck, 28 Vt. 308; Neuman v. Hood, 30 Mo. 207; Buchanan v. Moore, 13 S. & R. 304; Adams v. Brown, 16 Ohio St. 78; Mc- Dermott v. Barnum, 19 Mo. 214; Eldred v. Hazlett. 33 Pa. St. 316; Car- penter V. Stilwell, 12 Barb. 13; Gilbert V. Manchester, 55 >T H. 298; Odliu v. Gove. 41 N. H. 465; Davis v. Handy, 37 N. H. 65; Drew v. Kimball, 43 K H. 285; Schenck v. Sautter, 73 Mo. 46; Loucks v. Kenniston, 50 Vt. 116; Slagel V. Murdock, 65 Mo. 522 ; Ferry Co. V. Dodge Co., 6 Xeb. 18; Holmes Steele, 28 JST. J. E. 173; Collier v. Pfenning, 34 N. J. E. 22; Holtz v. Beldin, 12 Phila. 498; Moore v. Hill, 85 N. C. 218; Mecouch v. Loughery, 12 Phila. 416; Bynum v. Miller. 86 K C. 559; S. C, 41 Am. R. 467; Osborne 880 The Law of Estoppel. § 754. In Freeman v. Cooke,' Parke, Baron said, uy tlie terra willfully, as used in Pickard v. Sears, suj)ra, we must under- stand if not that the party represents that to be true which he knows to be untrue, at least that he means that his representation shall be acted upon, and that it is acted npon accordingly : * If whatever a man's intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe it was meant that he should act upon it, and he did act upon it as true, the party making the representation would be equallj' precluded from contesting its truth. In short, the representations are to be regarded as willful when the person making them means them to be acted on, or if, without regard to intention, he so conducts himself that a reasonable man would take the representation to be true, and believe it was meant he should act on it," and conduct, by negligence and omission, where there is a duty cast upon a person by trade or otherwise, to disclose the truth will frequently have the same effect." The V. Elder, 65 Ga. 360; Airey v. Institu- tion, 33 La. An. 13-10; Nelson v. Clay- brook, 4 Lea, 687; Hefner v. Vando- lab, 57 111. 520; Vauneter v. Cros.sman, 43 Mich. 405; Kirk v. Hamilton, 103 U. S. 68; Kirkpatrick v. Brown, 57 Ga. 450; Saunders v. Moore, 14 Bush, 97; Montague v. Weil, 30 La. Ann. 50; Koon V. Snodgrass, 18 W. Va. 320; Sweeny v. Williiims, 36 N. J. E. 027; Tiffany v. Andei>on, 55 Iowa, 405; Rabun v. Rabun, 61 Ga. 047; Cler- niontel's Estate, 12 Pbila. 139; Graves V. Blondell, 70 Me. 180; Talcott v. Brackett, 5 III. App 00; Davis v. Will- iams, 40 Iowa, 83; Heane v. Rogers, 9 B. & C. 583; Graves v. Key, 3 B. & A. 318; Burrowes v. Lock, 10 Ves. Jr. 470; Pasley v. Freeman, 3 T. R. 51 ; Sim v. Telegraf Co., L. R. 5 Q. B. D. 188; Jordon v. Money, 5 H. L. C. 185; Alderson v. ^Maddison. L. R. SExchq. D. 293; McKenziev. Linen Co., L. R. 6 App. Cas. 82; Polak v. Everett, L. R. 1 Q. B. D. 669; Clarke v. Hart, OH. L. C. 633; Swan v. North, &c. Co., 7 H. & N. 603; Burkinshaw v. Nichols, L. R. 3 App. Cas. 1004; Bank v. Bank, L. R. 6 H. L. 352; Goeing v. Outhouse, 95 111. 346. ' Freeman v. Cooke, 2 Exchq. 654. ^ Freeman V. Cook, 3 Exehq. 654; White v. Greenish, 11 C. B. N. S. 209; Howard v. Hudson, 2 E. & B. 1; Simpson v. Ins. Co., 2 C. B. N. S. 289; Dunston v. Patterson, 2 C. B. N. S. 495; Clark v. Hart, H. L. C. 633; Gregg v. Wells, 10 A. & E. 90; Newton v. Lidyard, 13 Q. B. 925; Jor- dan v. Money, 5 II. L. C. 185; Tyer- man v. Smith, 6 E. »& B. 719; Bill v. Richards, 3 H. & N. 311 ; Cornish v. Abingdon, 4 H. & N. 549; Kieran v. Sanders, 6 A. ifc E. 515; Cox v. Can- non, 4 Bing. N. C. 453; Downs v. Cooper, 3 Q. B. 256; Galling v. Rod- man, 6ind. 289; Tilton v. Nelson, 27 Barb. 595; Anthony v. Stephens, 40 Ga. 241; Cady v. Owen, 34 Vt. 598; Smith v. Paj-senger, 2 Mill. (La.) 59; Lyman v. Cessford, 15 Iowa, 229; Copelaud v. Copeland, 28 Me. 538; Hieks V. Cram, 17 Vt. 448; Wooiey v. Chamberlain, 27 Vt. 270; Spiller v. Estoppel in Pais. 881 word " willfully " as used iu this connection, is not to be taken in tlie limited sense of the term " maliciously " or of the term " fraudulently," nor does it of necessity imply an active desire to produce a particular impression, or to induce a particular line of conduct. Whatever may be the motive, one who so acts or speaks that the natural consequence of his words or conduct will be to influence another to change his conduct, is legally charge- able with an intent or willful design to induce the other to believe liim, and to act upon that belief, if such prove to be the actual result. The case of Pickard v. Sears with this qualification of the word *' willfully " and the statement of Baron Parke, has received the sanction of many tribunals in England and this country. Scribuer, 36 Vt. 245; Halloran v. Whitcomb, 43 Vt. 306; Raugely v. Spring, 21 Me. 130; Brookman v.Met- calf, 4 Rob. (N". Y.) 468; Kiuney v. Farnswoitli, 17 Conn. 355; Wliittaker V. Williams, 20 Conn. 98; Drew v. Kimball, 43 N. H. 382; Zuelitmau v. Roberts, 109 Mass. 53; Thomas v. Browu, 1 Q. B. D. 714; Carr v. R'y Co., L. R. 10 C. P. 307; Van Toll v. R'y Co.. 12 C. B. N. S. 75; Alexan- der V. Worman, 6 H. & N. 100; Win- cbell V. Edwards, 57 111. 41 ; Mangles V. Dixon, 1 M. & G. 446; Atty. Gen'l V. N:\ylor, 33 L. J. Ch. 151; Wank- f ord V. Fotherly, 2 Vern. 322; Ram- sden V. Dyson, 1 L. R. H. L. 120; Cookesv. ^lascall, 2 Vern. 200; Rolt V. White. 3 De. G. J. & S. 360; Hodg- son V. Hutchinson, 5 Vin. Abr. 222; Didve, &c. V. Neale, 12 C. L. & F. 249; Luders v. Anstey, 4 Ves. 501 ; Graham V. Ry Co., 2 M. &G. 146; Kent v. Jackson, 14 Beav. 384; Tricket v. Tomiinson, 13 C. B. K S. 663: Pole v. Leask, 33 L. J. Ch. 155; Money v. Jordan, 15 Beav. 372; Pulsford v. Richards, 17 Beav. 94; Hammersley V. Biel, 12 CI. & F. 45; Neville v. Wilkinson, 1 Br. C. C. 543; Monte- fiori V. Moutefiori, 1 W. Bl. 363; Bentley v. Mackay, 31 Beav. 155; Vol. II.— 56 Hefner v. Vandolah, 57111. 520; Laver V. Fielder, 32 Beav. 1; Gale v. Lindo, 1 Vern. 475; Hutton v. Rossiter, 7 De. G. M. & G. 9; Yeomans v. Wil- liams, 1 L. R. Eq. 184; Bank v. Bank, 50 N. Y. 375; Barnard v. Campbell, 55 K Y. 456; Bank v Hazard, 30 N. Y. 226; Storrs v. Barker, 6 Johns. C. 166; Blair v. Wait, 69 N. Y. 113; R'y Co. in re, L. R. 3 Q. B. 584; Gay lord V. Van Loan, 15 Wend. 308; Woodly V. Coventry, 2 II. & C. 164: Buchanan V. Moore, 13 S. & R. 304; Finuegan V. Carraher, 47 N. Y". 493; Hames v. India Co., 11 Moo. P. C. C. 53; Lawes v. Purser, 6 E. & B. 930; Mc- Farlane v. Gianniacopulo, 3 II. & N. 860; Piggott V. Stiatton, 29 L. & J. Ch. 9; Cave v. Mills, 7 H. & N. 913; Baxendale, in re, 11 C. B. N. S. 801; Xaef V. Mutter. 12 C. B. X. S. 816: R. V. Lubeuham, 4 T. R. 251; Hig-. gins V. Senior, 8 31. & W. 834; Knox V. Whalley, 1 Esp. 159; Swan v. North, &c. Co.. 7 C. B. N. S. 400; Arnold v. Bank, L. R. 1 C. P. D. 578; Baxendale v. Bennett, L. R. 3 Q. B. D. 525 ; Sim v. Telegraf Co. , L.R. 5 Q. B. D. 188; Taylor v. R'y Co., 28 L. J. Ch. 285; Jeyes v. Booth, 1 B. & P. 97. 882 The Law of Estoppel. § 755. In Freeinan v. Cooko,' the representation relied upon as an estoppel was indeed made so as to induce the defendant to do the act complained of, but not with the intention of inducing him to do that act, and further, that it was contradicted before being acted upon, so tliat, considering the statements altogether, no reasonable man would have acted upon the original represen- tation as true ; and that representation was upon these grounds (either of which, according to the judgment of the court, would have been sufiicient) held not to be conclusive. This rule was approved.'^ § 756. In Cornish v. Abington, the rule with reference to estoppels of this class was laid down in very wide terhis. If a party uses language which business and the general sense in which the words are understood, conveys a certain meaning, he cannot afterwards say that he is not bound, if another so understanding has acted upon it. If any person by a course of conduct or by actual expressions go conducts himself that another may reasona])ly infer the existence of an agreement or license, whether the party intends that he should do so or not, it has the effect that the party using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.^ § 757. The following extract from the judgment in Swan v.. N. 1>. Australasian Co.,^ with the comment on it in the Exchequer Chamber, contains, it is apprehended, a full and accurate state- ment of the general rule now acted upon with reference to estoj}- peln hy neyligence^ and of the limitations on that rule : " The rule of decision deduced from the authorities is .this, that if a man has willfully made a false assertion calculated to lead others to act upon it, and they have done so to their prejudice, he is forbidden as against them to deny that assertion, that if he has led others into the belief of a certain state of facts by conduct of culpable neglect, calculated to have that result, and they have acted on that belief, to their prejudice, he shall not be heard 1 2 Exchq. 654. D. 673; Thomas v. Brown, L. R. 1 Q. 2 Howard v. Hudson, 2 El. & B. 1. D. 714. 3 Cornish v. Abingdon, 4 H. & N. •• 7 H. & N. G03. S. P., Bank v. 549; Polak v. Everett, L. R. 1 Q. B. Bank. L. R. G H. L. 352; Burkiiishaw V. :Xichols. L. R. 3 App. Cas. 1004. Estoppel iist Pais. 883 afterwards as against such persons, to show that the state of facts did not exist. In short and in popular language, a man is not permitted to charge the consequences of his own fault on others, and complain of that which he has himself brought about. This should, Mr. -Justice Blackburn thought, be qualified " by saying that the neglect must be in the transaction itself, and be the proximate cause of the leading the party into that mistake; and also it must be the neglect of some duty that is owing to the person led into that belief, or, what comes to the same thing, to the general public, of whom the person is one, and not merely neglect of what would be prudent in respect to the party himself, or even of some duty owing to third persons, with whom those seeking to set up the estoppel are not privy.'" § 758. Referring witli approval to Swan v. N. B. Austral- asian Co., supra^ in Halifax Union v. "Wheelhouse," the Court of Exchequer says : "It is perhaps only an application of one of those general principles which do not belong to the municipal law of any particular country, but which we cannot help giving effect to in the administration of justice, viz. : that a man cannot take advantage of his own wrong, cannot complain of the conse- quences of his own default against a person who was misled by that default without any fault of his own. An estoppel may be said to exist where a person is compelled to admit that to be true which is not true, and to act upon a theory which is contrary to the truth.' § 759. The following are recognized propositions of an estop- pel in pais: "If a man by his M'ords or conduct \villfully endeavors to cause another to believe in a certain state of things which the first knows to be false, and if the second believes in such a state of things and acts upon his belief, he who know- ingly made the false statement is estopped from averring after- wards that such a state of things did not in fact exist.* Another is : " If a man, either in express terms or by con- duct, makes a representation to another of the existence of a cer- ' 2 H. & C. 175; Johnson v. Credit, ^ L. R. 10 Excliq. 193. &c. Co., L. R. 3 C. P. D. 33; Baxen- ^ ijimm y Telegraph Co., 5 Q. B. dale V. Bennett, L. R. 3 Q. B. D. 535; D. 188. Dickson v. Tel. Co., L. R. 3 C. P. * Brett, L. J., in Carr v. Ry. Co., D. 1. L. R. 10 C. P. 107. 884 The Law of Estoppel. taiu state of facts wliicli lie intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the exist- ence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denjdng the existence of such a state of facts. Anotlier is : " If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he, with such belief, does act in that way to his damage, the first is estopped from denying that the facts were as represented. There is yet another. " If, in the transaction itself which is in dispute, one has led another into the belief of a certain state of facts by conduct of culpable negligence, calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act by mistake upon such belief, to his prejudice, the second cannot be heard after- wards as against the first to show that the state of facts referred to did not exist.' § 7<)0. To the above may be added the following:* " IN^obody ought to be estopped from averring the truth or asserting a just demand, unless by his acts or words, or neglect his now averring the truth, or asserting the demand would work some wrong to some other person, who has been induced to do something, or to abstain from doing something by reason of what he had said or doTie, or omitted to say or do. § 761. The application of these principles is illustrated in the following cases : Where there had been a compulsory refer- ence under the English statutes, the award was not made within three months, and the time was not enlarged by the court or a judge, or by the written consent of the parties. Both parties, however, went before the arbitrator after the time had elapsed, and the court held that the party against whom judgment liad been signed upon the award was estopped from taking advantage ' Brett. L. J., in Carr v. Riiihvay L. R. 8 Ch. D. 817; Collie, in re, L, Co., L. R. 10 C. P. 107. R. 8 Ch. D. 817. * James, L. J., in Adamson, in re, Estoppel in Pais. 885 of the non-compliance with the statute.' So, where the parties had acted upon an oral consent, one who objected afterwards was precluded from taking advantage of the want of a writteii con- sent."'' Where a part}' who has dealt with an agent has hj his conduct led the principal to believe that he looked to the agent alone for payment, and thereby induced tiie principal, after the debt has become due, either to pay tiie agent or to allow him to retain the amount out of the principal's money, the party so act- ing is estopped from i-esorting to the principal.^ A vendor, had, by a form of undertaking, which he had given B., on the faith of which the plaintiif bought from the latter, estopped himself from disputing as against the plaintiff that he had. given up his lien as vendor.^ The representatives of a deceased solicitor were held estopped as to the fact that he had advanced moneys of a client upon a mortgage.^ So, where an uncle induced his niece to remain in his house, and take care of him, by promising verb- ally that he would leave to her some of his household property by will. He then made a codicil to his will in her favor, which codicil he afterwards revoked, and it was held in a suit brought by the niece after her uncle's death, that he had no right to make this revocation, and that the trusts of the first codicil must be performed.'' § 762. The exclusive warrant for an equitable estoppel is, that it is necessary to sustain the cause of right and justice.'' Where the acts and representation of a party must have influ- enced the other to do acts which he would not othersvise have done, and where a denial or repudiation must operate to the in- jury of such other party, the estoppel is created. In discuss- ing the matter of estoppel, the court in Welland Canal v. Hath- away, thus speaks of acts m pais : " An estoppel is so called ' Tyerman v. Smith, 25 L. J. Q. B. « Loftus v. Maw, 32 L. J. Ch. 49; 359. and see also Wise v. Rhodes, 84 Pa. 2 Andrews v. Elliott, 25 L. J. Q. St. 402. B. 1. ■» Ferguson v. Milliken, 42 Mich. ^ Macfarlane v. Gianiacopulo, 3 H. 441; Roj'ce v. Watrous, 73 N. Y. 597; & N. 860. Buckingham v. Hanna, 2 Ohio St. < Farmeloe v. Bain, L. R. 1 C. P. 551; Van Rensselaer v. Kearney, 11 D. 445. How. 297; De Mill v. Moffatt, 49 5 Middleton v. Pollock, L. R. 4 Ch. Mich. 441. D. 49. The Law of Estoppel. because a man is excluded from saying anything, even the truth, against his own act or admission. The acts set up in this case, it is not pretended, constitute a technical estoppel, which can only be by deed or matter of record. But it is said they should oper- ate by way of estoppel — an estoppel in j)ais. Such estoppels cannot be pleaded, but are given in evidence to the court and pny, and may opei'ate as effectually as a technical estoppel under the direction of the court. There are many acts which have been adjudged to be estoppels inj)ais, such as livery, entry, accept- ance of rent, &c., but in many and probably most instances, whether the act or admission shall operate byway of estoppel or not, must depend upon the circumstances of the case. As a general rule, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injnry of the latter.'" ' Canal Co. v. Hathaway, 8 "Wend. 483; Morton v. Hogdon, 33 Me. 137; Cummings v. Webster, 43 Me. 193; Sullivan v. Parks, 33 Me. 438; Taylor V. Ely, 25 Conn. 250; Copeland v. C'lpeland, 38 Me. 525; Preston v. 3Iaun, 25 Conn. 118; Miller v. Bing- liain, 29 Vt. 82; Downer v. Flint, 28 Vt. 527; White v. Langdon, 30 Vt. 599; Strong v. Elswortli, 26 Vt. 366; People V. Brown 67 111. 435; Peters V. Jones, 35 Iowa, 513; Crawford V. Gunn, 35 Iowa, 543; Drake v. Wise, 36 Iowa, 476; Smith v. Penny, 44 Cal. 161; Dresbach v. Miunis, 45 Cal. 233; May v. R. R. Co., 48 Ga. 109; Thomas v. Pullis, 56 Mo. 211; Att'y Genr'I v. Stephens, 1 K. & J. 74: Harrison v. Wright, 13 M. & W. 83; Miles v. Furber, L. R. 8 Q. B. 77; Carroll v. R. R., Ill Mass. 1; Counihan v. Thompson, 111 Mass. 270; Rice v. Baruett, 116 Mass. 313; Hexter v. Knox, 39 N. Y. Sup. Ct. 109; Griswold v. Haven, 25 N. Y. 595; Bodine v. Killeen. 53 N. Y. 93; Chapman v. Race, 56 N. Y. 137; Dil- lett V. Kemble, 25 N. J. Eq. 66; Beaupland v. McKeen, 28 Pa. St. 124; Phillips v. Blair, 38 Iowa, 649; Sura- mersville v. R. R. Co., 63 Mo. 391; St. Louis V. Shields, 03 Mo. 247; Grace v. McKissock, 49 Ala. 163; Weedon v. Landraux, 26 La. An. 729; Snow V. Walker, 42 Tex. 154; Graves V. Key, 3 B. & P. 318; Barrow v. Cobleigh, 11 N. H. 559; Dewey v. Field, 4 Met. 381; Zuchtmanv. Roberts, 108 Mass. 53; Dock Co. v. Leavitt, 54 N. Y 35; Stevens v. Baird, 9 Cow. 274; Barnard v. Campbell, 55 N. Y. 456; Comstick v. Smith, 26 Mich. 300; Devereaux v. Bengwyn, 5 Ired. 85; Lawrence v. Brown, 5 N. Y. 374; Duel V. Bear River Co., 5 Cal. 86; McCune v. McMichael, 29 Ga. 313; Otis v. Sill, 8 Barb. 108; Dyer v. Cady, 20 Conn. 568; Taylor v. Ely, 25 Conn. 258; Roe v. Jerome, 18 Conn. 138; Whittaker v. Williams, 20 Conn. 98; Patterson v. Lytle, 11 Pa. St. 56; Rogers v. Farwell, 9 Barb. 618; Huntly V. Harney, 15 Ala. 105; Carter v. Darby, 15 Ala. 696; Brewer v. Brewer, Estoppel in Pais, 887 § 763. Before the party is concluded by an estoppel, it must appear, first, that he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title to the claim he proposes to set np. Second, that the other party has acted on the admission.' Third, that the other party will be injured by allowing the truth of the admission to be disproved." Thus, where A. executed his note to B. for $778, B. with the intent to defraud another, surrendered the note to A. with an agreement tiiat it should be accounted for, B. died, and bill was filed by his administrator to compel A. to account. Neither at law or equity, could B. or his administrator, or' distributees, hold A. accountable, and that they were alike estopped by the fraudu- 19 Ala. 105; Letcher v. Morrison, 27 111. 214; Thomas v. Bowman, 29 111. 429: Frost v. Ins. Co., 5 Denio, 154; Lawrence v. Brown, 5 N. Y. 394; Brown v. Bowman, 30 N. Y. 519; St. John V. Roberts, 31 N. Y. 441; Jewett V. Miller, 10 N. Y. 402; Malloney v, Horan, 49 N. Y. Ill: Hurd v. Kelley, 78 N. Y. 588; Waring v. Sornborn, 83 N. Y. 604; Titus v. Morse, 40 Me. 848; Brinkerhoff v. Brinkerhoff, 23 N. J. E. 477. 1 Eld red v. Hazlett, 33 Pa. St. 307 Simons v. Steele, 36 N. H. 473 Water's Appeal, 35 Pa. St. 523 Commonwealth v. Motz, 10 Pa. St 521; Whittacre v. Culver, 8 Minn 133; McCabe v. Rainey, 32 Ind. 309 Martin v. Iligbter, 10 N. J. L. 510 Thompson v. Thompson, 9 Ind. 323 Thorn v. Bell, Hill & D. 430; Bean v. Pettingill, 7 Rob. (N. Y.) 7; Copeland V. Copeland, 28 Me. 525; Hefner v. Vandolah, 57 111. 520; Winchell v. Edwards, 57 111. 41; Simpson v. Pear- son, 31 Ind. 1; Sprulock V. Sproule, 72 Mo. 509; Darragh v. Bryant, 56 Pa. St. 69; McKinzie v. Steele, 18 Ohio St. 38; Acton v. Dooley, 74 Mo. 63; Taylor v. Zepp, 14 Mo. 483; Bales v. Perry, 51 Mo. 449. 2 Sexton V. Dodge, 57 Barb. 84 ; Martin v. Angell, 7 Barb. 407; Shapley V. Abbott, 43 ]Sr. Y. 443; McMaster v. Ins. Co., 55 N. Y. 223; Otis v. Sill, 8 Barb. 102; Hawes v. Merchant, 1 Cur- tis, 136; Jewett v. Miller, 10 K Y. 402; Carpenter v. Still well, 11 N. Y. 61; Andrews v. Ins. Co., 85 N. Y. 334; Boerum v. Schenck, 41 N. Y. 183; Stoughton V. Lynch, 8 Johns. Ch. 209; Fox V. Heath, 10 Abb. Pr. 163; Bank V. Webb, 36 Barb. 291; R. R. Co. v. Valentine, 19 Barb. 484; Sparrow v. Kingman, 1 N. Y. 242; Ackley v Dygert, 33 Barb. 176; Alexander v. Walter, 8 Gill, 239; Catlin v. Grote. 4 E. D. Smith, 296; Fitts v. Brown, 30 N. H. 393; Mallony v. Horan, 13 Abb. P. (N. S.)289: Simpson v. Pear- son, 31 Ind. 1 ; McKinzie v. Steele, 18 Ohio St. 38; Donaldson v. Hall, 3 Daly. 325; State v. Pepper, 31 Ind. 76; Davies v. Haywood, 64 N. C. 83; Mecouch v. Loughery, 12 Phila. 416; Diller v. Brubaker, 52 Pa. St. 498; Ryers v. Farwell, 9 Barb. 615; Lawrence v. Brown, 5 N. Y. 394; Keeler v, Davis, 5 Duer, 507; Pickard V. Sears, 6 A. & E. 469; McClelland V. Kennedy, 8 Md. 230; Watson v. Hewitt, 45 Tex. 422; Reeves v. Mat- thews, 17 Ga. 449; Piper v. Gilmore, 49 Me. 149; Clark v. Coolidge, 8 Kas. 189; Davidson v. Young, 38 111. 145; Stringer v. Ins. Co., 82 Ind. 100. 888 The Law of Estoppel. lent surrender of the note' And where a party admits that a certain amount is due, and upon that admission the agent of the ph\iiitiff makes afiidavit of attacliment on the strengtii of sucli admission ; on a motion to dissolve, he is estopped from showing that a less sum was due tlian admitted." So, where one who has extended his execution upon land, obtains judgment for posses- sion in a suit against the execution debtor and one to whom he has fraudulently conveyed the land, the debtor is estopped by such judgment, to set up title afterwards for himself or creditors on the ground that the execution creditor got the land by a fraudulent use of a judgment confessed by the debtor.' Thus where a deed held as an escrow was delivered to the grantee in violation of the instructions of the grantor, and the deed was recorded and possession retained for seven months by the grantee, who then conveyed to an innocent purchaser for a valuable con- sideration, the grantor was then estopped to assert title against such purchaser ; and that he was affected by the knowledge of his attorney that his instructions had been violated in the delivery . of the deed." So a party visiting the board of trade on a visitor's ticket, and who when there undertakes to exercise the rights of a member of the board, and permits another to deal with him as such, is estopped to deny that he is a member, and thereby relieve himself from the responsibilities which would rest on members of the board dealing in the same maimer.* Thus, where a pai'ty is induced to delay suing by defendant's agreeing to sub- mit the controversy to arbitration, and to abide by and perform the awai'd, which he does not do, these facts, though not an exception recognized in the statute" of limitations, yet may estop the defendant from setting up the statute.^ If the payee of a note leads the maker to believe that an attorney has autliority to settle the debt without having the note in his possession, and the maker acts upon the belief so induced, a settlement made by the attorney will be binding, although no authority is ever con- > Mulloy V. Young, 10 Humph. * Haven v. Kramer, 41 Iowa, 383. 298. " ' Packing Co. v. Tilton, 87 111. » Zinn V. Dzialynski, 18 Fla. 597. 547. 3 Franklin v. Stagg, 22 Mo. 193. « Davis v. Dyer, 56 N. H. 148. Estoppel in Pais 889 ferred upon him and the maker knows that the attorney lias not the note.' § 764. Admissions, whether of law or of fact, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party. It makes no difference in the operation of this principle whether the thing admitted be true or false ; it being the fact that it has been acted upon that renders it conclusive.'^ § 765. A person may be estopped by his conduct, whether or ' Tappan v. Morseman, 18 Iowa, 499. 2 Dewey V. Field, 4 Met. 381; Cok- ke V. Knykendall, 41 Miss. 65; Bower v. Buck, 23 Vt. 308; Uigney v. Smitb, 39 Barb. 393; Chiapella v. BrowQ, 14 La. An. 189; Stone v. Dun- kin, 2 Camp. 344; Chapman v.Searlcs, 3 Pick. 38: Heune v. Rogers, 8 B. «& C. 577; Bank v. Leonard, 43 Me. 344; Bemls v. Becker, 1 Kas. 226 McClelland v. Kennedy, 8 xMd. 2;J0 Moore v. Bowman. 47 N. H. 494 Ryerss v. Farwell, 9 Barb. G15; Stan- ley V. Green, 12 Cal. 148; Duel v. Bear, &c. Co., 5 Cal. 84; Pounds v. Richards, 21 Ala. 424; Judovind v. Goodrich, 35 Vt. 19; Calauun v. Mc- Clure, 47 Barb. 206; Campbell v. Mayes, 38 Iowa, 9; Peters v. Jones, 35 Iowa, 512; Cave v. Mills, 7 H. & N. 913; James V. R. R. Co., 9 Rich. L. 416; Bank v. King, 3 Rob. (La.) 243; West v. Jones, 1 Sim. N. S. 207 Tappan v. Morseman, 18 Iowa, 499 Payne v. Buruham, 62 N. Y. 691 ]\niler V. Moore, 3 Jones Eq. 431 Roberts v. Wilkinson, 34 Mich. 129 Tompkins v. Phillips, 12 Ga. 52 W^aterman v. Johnson, 49 3Io. 410 McCance v. R. R. Co., 7 II. & N. 477 Bank v. Wollaston, 3 Harring. 90; Newton v. Belcher, 12 A. & E. (N. S.) 921; Kinney v. Farnsworth, 17 Conn. 355; Taylor v. Ashworth, 11 M. & W. 415; Evans V. Edwards, 13 C. B. 786; Thorn v. Bigland, 8 Exchq. 725; Gillespie v. Carpenter, 25 How. P. 203; Hutton v. Rossiter, 7 D. M. & G. 723; Lewis v. Castleman, 27 Tex. 422; Rawlins v. Wickham, 3 D. & J. 304; Horsfall V. Banking Co., 52 L. J. Ch. 599; Evans v. North. &c. Co., 2 H. & C. 182: Smith v. Smith, 31 Conn. Ill; Ives v. North, 33 Conn. 400; R. R. Co., in re, 1 Low. 345; Ayer v. Tilton, 42 N. H. 407; Fly v. College, 2 Snced, 689; Tainter V. Winter, 53 Me. 348; Gregg v. Van Phull, 1 Wall. 274; Jeiuiess v. Berry, 17 N. H. 549; Slanwood V. McClellan, 48 Me. 275; Ashpitel v. Bryan, 3 B. & S. 474; Dahlman v. Foster, 55 Wis. 382; Cartright v. Green, 47 Barb. 9; Bank v. Scofield, 39 Vt. 590; Hostler V. Hays, 3 Cal. 302; Hartley v. Franks, 18 La. An. 559; Markham v. Hunnicutt, 43 Ga. 1; Salmond v. Price, 13 Ohio, 368; Jarboev. Colvin, 4 Bush, 70; Cornell v. Masten, 35 Barb. 157; Eshardt v. Board, 8 F. R. 860; Barrow's Case, L. R. 14 Ch. D. 432. 890 The Law of Estoppkl. uot he intended that others should act upon the strength of it, if it authorized the belief that such was his intention.' Thus a Imsband assisting in the purchase, assessment, and mortgage of property iai iiis wife's name, is estopped from setting up any title therein to the prejudice of her judgment creditor.' So where two tenants, occupied separate floors of the same building, and one allowed the other to believe, before he took the lease that he would not object to his putting a sign on the balcony of the second floor, cannot thereafter restrain the party from putting up such sign.^ Where the heirs of a testator permitted his widow who was executrix to regard certain funds as her own, under the will, they cannot subsequently maintain a claim based on a con- trary assumption.* Where a Canal Co. had been in possession of water for twenty years, and had been in litigation prior to that time with the riparian owner, who knew the company were about to lease its works, and took no measures to revive the litigation, or to give notice of his claim before the lease was given ; such owner has no sufficient standing in a court of equity to enjoin suits at law, calling in question the right to such water/ So a grantee who knows that parties are in adverse possession but never intimate that he has any title ; can not to the prejudice of such parties thereafter assert it.* So, where a party permits others to cut wood from his land without forbidding it ; as the owner would be estopped, his administrator is likewise.' So, M'here a party made a verbal contract with his brother to purchase a tract of land, paid part of the purchase money, went into possession, erected a dwelling house and occupied it continuously from that time ; the vendor thirteen years afterwards, executed three mort- gages covering the whole tract, the first of which was foreclosed, the holder of the other two mortgages becoming the purchaser at the sale. Two years after the mortgages were made, and the same period of time before the foreclosure suit was brought, the pur- ' Tiffaii}'^ V. Anderson, 55 Iowa, 1036. 405; Stewart v. Maix, 30 La. Ann. » Garrett v. ^lulligan, 10 Pliila. 339. 1036; Garrett v. Mulligan, 10 Pliila. •'Payne v. Payne, 5 ]\Io. App. 188. 839; Payne v. Payne, 5 Mo. App. 188; « Society v. R. R. Co., 33 N. J. E. Goodman v. AViuLer, 64 Ala. 410; R. 329. R. Co. V. Chamberlain, 84 111. 333. « Baker v. Humphrey, 101 U.S. 494. ' Ste-wart v. Maix, 30 La, Ann. '' McKellop v. Jackson, 50 Vt. 71. Estoppel in Pais 891 chaser made a search of the records and discovered their exist- ence ; he also knew of the subsequent advertisement of the premises for sale under the foreclosure, and consulted counsel in regard to it, but took no steps to protect his rights not even giving notice of it at the foreclosure sale. He was estopped from setting up any claim to relief against the purchaser under the mortgage foreclosure.' § 766. Whenever one of two innocent persons must suffer bj the acts of a third, he who has enabled such third person to occasion the loss must sustain it." For example plaintiffs had ' Collier v. Pfenning, 34 N. J. E. 23. " Broom's Legal Max. 686; Lick- barrow V. Mason, 2 Term R. 70 ; Bank V. Davis, 2 Hill, 461: Bank v. Bank, 10 Wallace, 646; Busey v. Reese, 38 Md. 264; Bank v. Beard, 7 III. App. 80; Overton v. Mathews, 35 Ark. 146; S. C, 37 Am. R. 9; Wood v. Bank, 129 Mass. 358; S. C, 37 Am. R. 366; Wilcox V. Aultman, 35 Ark. 146; S. C, 37 Am. R. 92; Jordan v. Brown, 5G Iowa, 28; Young v. Wood, 11 B. Mon. 123; Briggs v. Rice, 130 Mass. 50; Bank v. Beatty, 30 N. J. Eq. 126; Yiele v. Judson, 15 Hun, 328; Smith V. Keohane, 6 111. App. 585; West- brook V. Gleason, 79 N. Y. 23; Smith V. Peoria Co., 59 111. 412; Nicholson V. Hooper, 4 M. & C. 179; Evans v. Bicknell, 6 Ves. 173; Attenborough v. Dock Co., 38 L. T. R. N. S. 404; Ne- ville V. Wilkinson. 1 Bro. Ch. 388; Pearson v. Morgan, 2 Bro. Ch. 388; Scott V. Scott, 1 Cox, 378; Bronsou v. Chappell, 12 Wall. 681; Caldwell v. Neill, 21 La. Ann. 342; Lister v. Al- len, 31 Md. 543; Ni.Kon v. Brown, 57 N. H. 4; Hearn v. Nichols, 1 Salk. 289; Orleans v. Piatt, 99 U. S. 676 Denton v. Cole, 30 N. J. Eq. 245 Ormsby v. Ihmsen, 34 Pa. St. 462 Hanen v. Kramer, 41 Iowa, 342 Bhght V. Schenck, 10 Pa. St. 285 Stone V. Marye, 14 Nev. 362; Baily v. Crim, 6 Sawy. 424 ; Wright v. Flyn, 33 Iowa, 159; Babcock v. Law- son, L. R. 4Q. B. 394; S. C, 20 A. L. J. 407; Moyce v. Newington,4 L.T. R. N. S. Q. B. 535 ; Vickers v. Hertz, L. R. 2 H. L. S. C. 115; Root v. French, 13 Wend. 570; Knights v. Wiflfens, 23 L. T. R. 610; White v. Garden, 10 C. B. 919; McClelland v. Bartlett, 13 111. App. 326; Spalding v. Drew, 55 Vt. 253; Pcake v. Thomas, 39 Mich. 584; R. R. V. Bank, 60 Md. 36; R. R. Co.'s App., 86 Pa. St. 80; Stewart v. Reed, 91 Pa. St. 290; Wood v. Smith, 92 Pa. St. 379; Levy V. Nav. Co., 34 La. Ann. 180; Wood's Appeal, 92 Pa. St. 379; S. C, 37 Am. R. 694; Jeffers v. Gill, 91 Pa. St. 290; Rogers v. Whitehouse, 71 Me. 222; Allen v. Maury, 66 Ala. 10; Conway Co. v. R. R., 39 Ark. 50; Ellis v. Fertilizing Co., 64 Ga. 571; Wells V. Su-ton, 85 Ind. 70; McNeil v. Jordon. 28 Kas. 7; Chapman v. Rose, 56 N. Y. 137; Robins v. Tod- man, 28 Kas. 491; Swartz v. Chicker- ing. 58 Md. 290; Vaimeter v. Cross- man, 42 Mich. 465; Stebbins v. Walker, 46 Mich. 5; Mackey v. Peterson, 29 Minn. 298; Shirts v. Overjohn, 60 Mo. 303; Frank v. Lillienthal, 33 Gratt. 377; Whitney v. Armour, 4 Lea, 686; Ross v. Swan, 7 Lea, 463; Bank v. Wentworth, L. R. 5 Ex. D. 96; Rob 892 The Law of Estoppel. lent to D. tlicir acceptances for £11,500, taking a memorandum in tliis form : •■' As security for tlie due fulfillment on our part of this undertaking, we have warelioused in your name sundry lots of flour, and in consideration of your delivering to us, or our order, said flour as sold, we further undertake to specilically pay you proceeds of all sales thereof immediately on their receipt." This undertaking was reiiewed upon the acceptances falling due. Subsequently the defendants, in entire ignorance of the above facts, and believing tlie flour to be the property of D. agreed to advance a sum of £2,500 on the security of the flour, but on the terms that they were to have absolute possession of the 'flour and to have power to sell it, D. then fraudulently misrepresented to plaintifiFs that the}'' had found a purchaser for the flour and would hand over to them the amount received as the price ; whereupon the plaintiffs were induced to ])art with the possession of the flour, and for that purpose gave a delivery order to D. The defendants liaving obtained possession of the flour and sold it, this action was brought to recover its value. Held^ that as the flour had been given up by the plaintiffs to D. conformably to the contract to sell as their own, the special property vested in the plaintiffs as pledgees, if any, was intentionally surrendered, and though such surrender might have been revoked as having been obtained by fraud so long as the goods remained in the ertson v. Hay, 91 Pa. St. 242; Mun- Bank, 50 N. Y. 575; Blair v. Wait, dorf V. Wickersham, 6y Pa. St. 87; 69 N. Y. 113; Coleman v. Pearcc, 26 Bank v. Bank, 1 Pars. Eq. (Pa.) 248; Minn. 123; Bank v. Hazard, 30 N. Hutchinson v. Gill, 91 Pa. St. 255; Y. 226: Gass v. Hampton, 16 Xev. WetlioriU's App., 3 Grant Cas. 281; 185; Stone v. Brown, 54 Tex. 430; Page V. Arnim, 29 Tex. 72; Raley v. Roy v. McPherson, 11 Neb. 197; Mc- Williams, 73 Mo. 310; McCormack v. Caskill v. Lalbrop, 63 Ga. 96: Kum^ Kimmell, 4 111. App. 121; Gheen v. ball v. Bank, 2 Q. B. D. 194; Good- Osborne, 11 Heisk. 61; McKellop v. win v. Robarts, 1 App. Cas. 476; State Jackman. 50 Vt. 71; Morris v. Pres- v. Dent, 18 Mo. 313; State v. Galves- ton, 93 111. 215; McLain v. Dow, 42 ton, 38 Tex. 12; R. R. Co. v. Liiidell, Wis. 610; S. C, 37 Am. R. 094; Rudd 39 Mo. 329; Lee v. Munroe, 7 Crauch, V. Mathews, 79 Ky. 479; S. C, 42 366; Hill v. Marshall,' 12 Iowa, 142; Am. R. 231; Mowry's Appeal, 94 Pa. State v. Hastings, 10 Wis. 518; Balti- St. 376; Tucker v. Bank, 58 N. H. more v. Reynolds, 20 Md. 1; Cler- 83; S. C, 42 Am. R. 580; Burton's montel's Estate, 12 Phila. 129; Saivyer Appeal, 93 Pa. St. 214; Pence v. v. Perry, 62 Iowa, 238; Allen v. Arbuckle, 22 Minn. 417 ; Bank v. ^Volherspoon. 56 N. Y. Super. 417. Estoppel in Pais. 893 hands of the pledgors, when once the property in them had been transferred for good consideration to a honafide ti'ansferee, the latter acquired an indefeasible title. Held, also, that the plaint- iffs, having put it in the power of D. to commit the fraud, must be the sufferers rather than the defendants, who were merely innocent transferees for value.^ § 767. A party who places another in a position to enable him to commit a fraud should suffer the loss, rather than an innocent person who deals with him on the faith of the usual indicia of ownership with which the true owner has invested him. Where a party invests an agent with all the evidence of absolute title to negotiable paper, and thereby empowers him to wrong either the principal or others, and he disposes of the same as his own to an innocent party, and fails to account therefoi-, the party so trusting must bear the loss.* Bills and^iotes, certificates of stock, &c., indorsed in blank, like bank bills, treasury warrants, and notes payable to bearer, pass by mere delivery, and where such paper is offered in payment, or for sale, the person taking or purchasing it is not bound to inquire as to the title of the holder, unless he has notice or knowledge of facts which on inquiry would lead to notice. Thus, where the payee of two promissory notes of $5,000 eacli, indorsed the same in blank, and placed them in the hands of a banker as her agent, to collect the interest due thereon, and to sell the same for her benefit, and such agent pledged the same to secure a debt owing by him to another bank and for future advances, there being nothing' to put the latter bank on inquiry or excite suspicion, it was held, that the pledgee having acquired tlie same in good faith in the usual course of business from one apparently the owner and clothed with indicia of ownership, could not be divested of his right to the notes by the real owner 1 Babcock v. Lawson, L. R. 4Q. B. C, 37 Am. R. 694; Coombs v. Chand- D. 394; S. C, 20 Alb. L. J. 407. ler, 33 Ohio St. 178; Tucker v. Bank, ^Gass V. Hampton, 16 Nev. 185; 58 N". H. 83; S. C, 43 Am. R. 580; Rumball v. Bank. L. R. 2 Q. B. D. Dyer v. Pearson, 3 B. & C. 38; John- 194; Vickers v. Hertz, L. R. 3 H. L. C. sou v. Lyonnais Co., L. R. 3 C. P. D. 113; Goodwin V.Roberts, L. R. 1 App. 32; Banking Co., in re, L. R. 3 Ch. Cas. 470; Locke v. Lewis, 124 IMass. App. 154; Hentz v. Miller, 94 N. Y. 1; Woods' Appeal, 92 Pa. St. 379; S. 64. 894 The Law of Estoppel. thereof.* So where certificates of mining stock, indorsed by the trustees in whose name they were issued, were by S. delivered as collateral security to M., and by M. to G., who knew tliat M. so held them. After S. had tendered to M. and G. tlie full amount of her indebtedness, G. employed a broker to sell the stock, who, not aware of S.'s title, sold the certificates and placed the proceeds to G.'s credit. Held, that S. was estopped from asserting the title as against the broker.^ Where a partnership so entrusts goods of the firm to a member thereof, so as to enable him to deal with the property as his own, and the public is thereby induced to regard him as the owner tliereof, and he disposes of the property in satisfaction of his individual indebtedness to a honajide purchaser without notice of the rights of the firm, such sale is valid against the firm and its members.^ § 768. " The doctrine of aaquiescence is well recognized in the law as an admission by the party. But to have that efi'ect, it must exhibit some act of the mind and amount to voluntary demeanor or conduct of the part}^ and whether it is acquiescence in the conduct or language of others, it must plainly appear that such conduct was fully known, or the language fully understood bj' the party, before any inference can be drawn from his pas- siveness or silence. But where tliose ingredients are found, the acquiescence becomes as binding as any other admission of a party.* Thus, the entry on an account book against a particular person, or making out a bill of parcels in his name, is an admis- sion that the goods were furnished on his credit.^ So where A. pointed out one-fifth of certain property as belonging to the defendant in an execution, A. owning the other four-fifths, he is • Morris v. Preston, 93 111. 215; Jacksoa v. Vedder, 2 Caines, 211; Burton's Appeal, 93 Pa. St. 214. Canal Co. v. Hathaway, 8 Wend. 483; 2 Stone V. Marye, 14 Nev. 362. Phillips v. Hall, 8 Wend. 610; O'Don- 2 Locke V. Lewis, 124 Mass. 1. nell v. Kolsej', 10 N. Y. 412; State v. * Morgans v. Bridges, 1 Barn. &, Jersey City, 40 N. J. L. 483; Ins. Co. Aid. 650; Bank v. St. Josepli, 46 v. Swank, 103 Pa. St. 17; Cooper, in 3Iich. 526; Lane v. Marsh, 33 La. An. re, 93 N. Y. 507; Parkway, in re, 67 554; Hilton V. Fonda, 80 X. Y. 339; How. Pr. 341; Cavanagh v. Morrow, Williams v. Lowndes, 1 Hall, 579; 67 How. Pr. 241. Davenport v. Wheeler, 7 Cow. 231 ; » Storr v. Scott, 6 Car. & P. 241. Estoppel in Pais. 895 to be regarded as admitting the ownership of the one-fifth.* So, where a man declared to be a bankrupt introduced his assignee to an auctioneer, he is concluded from denying liis bankruptcy."* § 769. Where a party, with full knowledge of all the facts creating the liability, acquiesces in what has been done, he thereby ratifies what is done, and silence in such a case, after a reasonable time, will amount to a ratification.^ The acts of a party conclude him, especially where others are concerned, notwithstanding he may make declarations to the effect that he did not so intend/ Where au oflicer received as such for about two years, his salary, established at the rate of $4,000 a year, and without objection collected fees and paid them into the city treasury, the city council, in fixing the salary at $4,000, intended to limit his com- pensation to that amount. By receiving the salary, he estopped himself from asserting any claims to fees of ofiice, under local statutes.^ Thus, by order of the general commanding the Department of the Gulf, during the late war between the States, the defendant paid to an oificer designated in the order, a certain balance due to one of its depositors. The depositor not having repudiated the action of the defendant within a reasonable time after knowledge of it (nine years in this case) nmst be presumed to have acquiesced in the settlement thus made of the said balance, and has no right of action to recover it.° ' § 770. If a duty is cast on a man to know the truth, and he makes a representation in such a way as to lead a reasonable man to believe it to be true, and is meant to be acted on, he cannot be heard to say, if the representation proves to be nntrue, that he believed it to be true, and made the misstatement through mis- take, ignorance or forgetfulness.' As, for example, where the ' Stephens V. Baird, 9 Cow. 274. Swan v. North, &c. Co., 2 II. & C. "^ Clarke v. Clarke, G Esp. Gl. 183; Mocns v. Heyworth, 10 M. & W. * VVinham v. Criitoher, 10 Lea, 610; 147; Henderson v. Lacon, L. R. 5 Eq. Fort V. Coker, 11 Heisk. 589. 262; Pilsford v. Richards, 17 Beav. ■* "Wiuham V. Crutcher, 10 Lea, 610; 95; Ayres' Case, 25 Beav. 522; Price Walker v. Walker, 7 Baxt. 2G0. v. Macaulay,2 D. M. & G. 345; Ilut- « Mclnery v. Galveston, 58 Tex. ton v. Rositer, 7 D. M. & G. 9; Raw- 334. lius V. Wickhara, 2 D. & J. 304; Slim « Bennett v. Bank, 34 La. An. 150. v. Croucher. 1. D. F. & J. 523; Ilors- •" Burrows v. Locke, 10 Ves. 470, fall v. Banking Co., 52 L. J. Ch. 599; 896 The Law of Estoppel. holder of an equity of exemption went to the pnrcliaser and offered to redeem, but desired further time. The purchaser, by mistake, told liiiu tliat tlie time of redemption expired on a cer- tain day, which was, in fact, later than the proper time, and agreed that the redemption might be made at any time pi'ior to or on that day. The right of redemption exists up to, and includes the whole of the day so designated.' § 771. One M'ho makes false representations, which are in- tended to inliuencc, and do inliuence, the conduct of the other party to a contract, is responsible for the injury resulting there- from, no matter how innocently made or honestly believed are the representations.'^ Thus, where one mendjcr of a firm alleged that he vvas innocent of any wrong or deception he personally made to liie plaintiff concerning the transaction for the reason that he had been himself deceived by his partner in reference thereto, and actual!}' believed in the truth of the statements when lie made them, it was hekl of no avail as a defense. His position •as a co-partner gave him the right to know and means of ascer- taining the actual facts in respect to all matters connected with •the partnership, and it imposed upon him the duty of knowing the exact truth as to any statements made by him concerning its transactions to any customer dealing with the lirm and entitled to the information. When he, therefore, nuikes a representation to a customer, in regard to such customers business with the firm of which he is a member, he is bound t<:» know whether such Btatement is true or not. Want of knowledge, under the circum- stances, is an act of culpable negligence on his part, to which the la\v fixes the same consequences as to an intentional and known misrepresentation. ° Kot only is the pai'tner estopped but the firm and its members are equally estopped, if the fact is such that the representations of the partner would be binding upon Pearson v. Douglass, 57 Tcnn. 151; man v. Winter, 64 Ala. 410; Rankin Mayer V. Erhardt, 88 111. 452; Hend- v. Hill, 49 Iowa, 270; Mayer v. ricks V. Kelly, 64 Ala. 388. Erhardt, 88 111. 452. * Pearson v. Douglass, 57 Tenn. ^ Coleman v. Pearce, 26 Minn. 123; 151. Pence v. Arbuckle, 22 Minn. 417, 2 Loper V. Robinson, 54 Tex. 511; Bank v. Hazard, 80 N. Y. 226; Bank Coleman v. Pearse, 26 Minn. 123; v. Bank, 50 N. Y. 576; Blair v. Wait. Hendricks v. Kelly, 64 Ala. 388; Good- 69 N. Y. 113. Estoppel in Pais. 897 the firm if true. Where matters embraced hi accountg rendered and referred to in communications are within the scope of the ordinary and authorized business of a iirm, and the facts which are therein falsely assumed to be true are presumably within the knowledge of the firm and the members tlio'eof, who, from the circumstances of the case, possess peenliar means of knowing the truth in respect thereto, not enjoyed by any of their customers, the rule in such cases estops both the firm and all of its members from controverting the truth of the facts so misrepresented to the prejudice of the party relying and acting thereon in good faith.' So, where a party, authorized to make a tax assessment, assesses his own land, he is estopped from setting up any defects in the description of his land invalidating a tax sale thereof." Thus, a firm are estopped from setting up their ownership to property, where one of the firm makes representations that the property was bought on account of a third party, and that the interest of the firm in the property was limited by the amount advanced by them in the purchase thereof, upon the faith of these representations, the defendants purchase the same of that third party.'' § 772. It is not necessary in order to the existence of an equitable estoppel that there should exist a design to deceive or defraud. The person against whom the estoppel is asserted must, by his silence or his representations, have created a belief of the existence of a state of facts which it would be unconscion- able to deny, but it is not essential that he should have been guilty of positive fraud in his previous conduct. Nor is it essen- tial that there should in all cases be an intention to deceive, or even a knowledge that the representation was false.'* It would • Griswold v. Haven, 25 N. Y. 595; Thomas, 6 Mich. 76; Mitchell v. Reed, Colem;m v. Pearce, 26 Minn. 123. 9 Cal. 204; jMcDermolt v. Barnum, 19 a JefErics V. Clark, 23 Kas. 448. Mo. 204; Buchanau v. More, 13 S. 3 Bemis v. Becker, 1 Kas. 226. & li. 304; Strong v. Ellsworth, 26 Vt. * Gregg V. Wells, 10 A. «fc E. 90; 366; Wells v. Pierce, 27 N. H. 503; Preston v. i\Iann, 25 Conn. 15; New- Davis v. Handy, 37 N. H. 65 ; man V. Hood,' 30 Mo. 207; Carpenter Drew. v. Kimball, 43 N. H. 285; V. Stillwell, 12 Barb. 135; Eldred v. Bank v. Bank, 50 N. Y. 575; Blair v. Hazlett, 33 Pa. St. 316; Adams Co. v. Wait, 69 N. Y. 113; Stevens v. Den- Brown, 16 Ohib St. 78; Quirk v. uett, 51 N. II. 324; Beebe v. Wilkin- son, 30 Miuu. 548. Vol. I.— 57 S9S The Law of Estoppel. be trifling with a doctrine depending on equity and good con- science, to hold otiierwise. So, if a representation was intended to deceive one man, and it in fact deceived and defrauded another. Tlien, again, if the representation was intended to liave one operation, and, as it turned out, deceived and defrauded by another method not contemplated by the party at the time, but still the natural consequence of the representation, it would be quibbling with a doctrine depending for its application on tlie moi'ality of the act, to liold that the party would not be answer- able for the consequences of liis false and fraudulent representa- tion, as mucli as if it luid taken efEect on the party and in tlie manner intended. Jn a case depending on a question of " legal ethics," it would bring down the morality of the law to a very low standard to hold that a party was not liable for the wrong caused by his fraud to one man, because the fraud was contrived against another man. The general current of authority on the subject tends to a liberal application of the doctrine for the sup- pression of fraud and dishonesty, and the promotion of justice and fair dealing. 'No disposition is now shown by courts to treat this equitable estoppel as odious, and embarrass its application by attempts to confine it within the limits of a narrow technical definition. The authorities lead plainly to the conclusion, that where a man makes a statenaent disclaiming his title to property, in a manner and under circumstances such as he must under- stand those who lieard the statement would believe to be true, and, if they had an interest in the subject, would act on as true, and one, using his own means of knowledge with due diligence acts on the statement as true, the party who makes the statement cannot show that liis representation was false to the injury of the party who believed it to be true, and acted on it as such ; tlmt he will be liable for the natural consequences of his repi'e- sentation, and cannot be heard to say that the party actually injured was not the one he meant to deceive, or that his fraud did not take effect in the manner he intended.' § 773. The doctrine has not in equity been limited to cases ' Horn V. Cole, 51 N. H. 287; Smith Louglieiy, 13 Phila. 416; Coleman v. V. Kay, 7 H. L. C. 750; Bcattie v. Pearce, 2G Minn. 123; Payment v. Ebury. L. R. 7 H. L. 102; Cherry v. Church, 38 Mich. 776. Bank, L. R. 3 P. C. 24; Mecouch v. Estoppel in Pais. 899 where there was an actual intention to deceive. The cases are numerous where the party, who was estopped by his decLarations or his conduct to set up his legal title, was ignorant of it at the time, and, of course, could have had no actual intention to de- ceive by concealing his title. Yet, if the circumstances were such that he ought to have informed himself, it has been held to be contrary to equity and good conscience to set up his title, though he was in fact ignorant of it wlien he made the represen- tations. So if the party knew the facts, but mistook the law. Nor is it necessary in equity that the intention should be to deceive any particular individual or individuals. If the repre- sentations are such, and made in such circumstances, that all persons interested in the subject have the right to rely on them as true, their truth cannot be denied by the party that has made them against any one who has trusted in them and acted on them. In England, the case of Pickard v. Sears, does not appear to have been understood as intended to lay down a com- plete definition of the equitable doctrine excluding all cases that could not be brought within the terms of the remarks made by Lord Denman. It was held that the term wiUfully, used in Pickard v. Sears, was not to be understood in the sense of ynali- ciously ^ and that whatever a man's real meaning may be, if he so conducts himself that a reasonable man would take the repre- sentation to be true, and believe it was meant he should act on it, and he did act on it as true, the party making the representation would be equally precluded from contesting its truth. This is wholly inconsistent with the notion that an intention to deceive is an essential ingredient of the representation, which precludes the party making it from showing that it was false.' In the later case of Gregg v. Wells,'' Lord Denman says, " Pickard v. Sears was in my mind at the time of the trial, and the principal of that case may be stated even more broadly than it is there laid down. A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in the action against the person whom he has himself assisted in deceiving." Which indicates that Lord Denman did not himself understand that the rule stated in Pickard v. Sears was to be regarded as a > Freeman v. Cooke, 2 Ex. 654. ^ Gregg v. Wells, 10 A. & E. 90. 900 The Law of Estoppel. definition and limitation of the equitable doctrine, for lie says tlic principle of the case mi^ht be stated more broadly than it is laid down there, and may include the case of a culpable negli- gence. § 774. Neither equity nor the law requires that one having title to property shall seek out a party who is about to purchase it from a supposed owner, and inform him of his title. All that it requires is that he shall do no act, nor be guilty of any mis- leading silence, or apparent acquiescence, by which another may be entrapped into a transaction which he would not have entered upon if he had been advised of the objection. On the principle that he who holds his peace when he ought to have spoken, shall not be heard when he should be silent, he is deemed in equity a party to the fraud.' AVhen it is 'said that fi-aud is a necessary element to an equitable estoppel, silence is fraud. Negligence becomes constructive fraud, although, strictly speaking, the actual intention to mislead or deceive may be wanting, and the party may be innocent, if innocence and negligence may be deemed compatable. This doctrine is illustrated in many cases in subsequent chapters. A party has no riglit, in his dealings with another, to state a fact to be true, and which may influence the conduct of the other party. If such a fact be stated to obtain a benefit, at the expense of the other part}', and to his prejudice, and it appears there was no reasonable or probable ground for a belief in the existence of such fact, the inference is that there was no belief, and the statement under such circumstances has the effect of and may be properly treated as a fraud.* § 775. It is not necessary that the party making the repre- sentations should know that they were false, no fraud need liave been intended at the time, but if the party unwittingly misled another, you must add that he has misled him under such cir- cumstances that he had reasonable ground for supposing that the person whom he was misleading would act upon wliat he was saying, All that is essential is that there should be such conduct on the part of the person against whom the estoppel is alleged ' Bank v. Lee, 13 Pet. 107; Mont- « Nugent v. R H. Co., 2 Disney, gomcry V. Gordon, 51 Ala. 377; Doi" 302; Eaton v. Winne, 20 Mich. 156. laque v. Cress, 71 III. 380. Estoppel in Pais. 901 as would make it fraud for him to gainsay what lie had expressly admitted by his words or tacitlj- confessed by his silence, but there need not be in the precedent acts actual fraud or evil design. All that is meant in the expression that an estoppel must possess an element of fraud, is that the case must be one in which the circumstances and conduct would render it a fraud for the party to deny what he had previously induced or suf- ferred another to believe and take action upon ; the door is shut against asserting a right then that would result in doing an injury by the party asserting it to some otiier person, or when in good conscience and honest dealing he ought not to be permitted to gainsay his previous conduct. This is sufficient to work an estoppel and bring in the element of moral wrong, and there need be no precedent, corrupt motive or evil design. If the effort to deny ought not in good conscience to be successful, then emerges the moral wrong which the courts denominate fraud. It is essential to the validity of an equitable estoppel that the person who affirms it to exist should show that he had acted upon tlie conduct of the other party, and on the faith of that conduct, and influenced by it, had parted with some thing or some right of value. It is quite clear that one who has not paated with value or who has not placed himself in a position where he would suffer loss, can have no just reason to conclude his adversary from averring the truth. § 776. If a person, having a right, and seeing another per- son about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might other- wise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This is the proper sense of the term "■ acquiescence," and in that sense it may be defined as " quiescence^'' under sitch cir- cumstances as that assent may he reasonably inferi'ed from it, and is no more than an instance of the laiv of estoppel hy words or conduct.^ 'Ross V. Thompson. 78 Ind. 90; Boardman v. R. R. Co., 84 K Y. 182; Masterson V. R. R. Co.,72Mo. 342; R. Angell v. Johnson, 51 Iowa, 625; R. Co. V. Hamilton, 59 Ga. 171; De Cheatham v. Wilber, 1 Dak. T. 335; Bussche v. Alt, L. R. 8 Chan. D. 314; Lippmins v. McCrawie, 30 La. An. 902 The Law of Estoppel. § 77T. Whatever a man's real intention may be, if lie mani- fests any intention to another party, so as to induce the latter to act upon it, in making a contract, lie will be estopped from denying that the intention, as manifested, was his real intention. A party to an alleged contract cannot escape the natural and reasonable interpretation of the language used, or the acts done by him, by showing that the language was used or the acts done ■with a different and undisclosed intent.' The law judges of an agreement between two persons exclusively from the expression of their intention which are communicated between them ; con- sequently an agreement cannot be affected by the mistake of either party in expressing his intention or his motive, of which the other party has no knowledge, and the party who has entered into the agreement under such mistake is bound by the agree- ment actually made, and cannot assert his mistake in avoidance of the agreement.' A person is concluded by the words he deliberately adopts and uses in an instrument, whether he at the time fully understood their legal signification or not. The rights which third parties may acquire cannot be affected by the individual views or understanding of the proprietor in such a case.' § 778. An estoppel from the representations of a party can seldom arise, except where the representation relates to a matter of fact, to a present or past state of things. If the representa- 1251 ; Kirk v. Hamilton, 102 U. S. 68; Hayman, in re, 8 Ch. D. 11; Roland, in Bank v. Lee, 13 Pet. 107; Slate v. re, L. R. 1 Cb. App. 421; Cree v. Jersey City, 40 N. J. L. 483. Somervail, L. R. 4 App. Cas. 648 * Ilawe.s V. Marchant, 1 Curt. C. C. Oakes v. Turquaud, L. R. 2 H. L. 325 136; Audenried v. Bettely, 5 Allen, Muir v. Bank, L. R. 4 App. Cas. 337 ,382; Cornish v. Abingdon, 4 H. & N. Pickering v. Busk, 15 East, 38; Hoi 549; Turner v. Coffin, 12 Allen, 401; lins v. Fowler, L. R. 7 Q. B. GIG Zuchtman v. Roberts, 109 Mass. 53; Stevens v. Elwall, 4 M. &; S. 259 Slim V. Ciouch"r, 1 De G. F. & J. Hardmau v. Booth, 1 II. & C. 803 518; Howard v. Hudson, 2 Ell. & Bl. Rumball v. Bank, L. R. 2Q.B.D. 194 1; Van Toll v. R'y Co., 12 C. B. X. S. Goodwin v. Roberts, L. R. 10 Exchq. 75; Willis v. Willis, 2 Allen, 191; 337. Alexander v. Worman, 6 II. & N. - Hatsou v Brown, 9 C. B. N. S. 100; Hatsonv. Brown, 9 C. B. K S. 442; Powell v. Smith, L. R. 14 Eq 442; Powell v. Smith, L. R. 14 Eq. 85; White v. Smith, 37 Mich. 291. 85; Gurney v. Evans, 3 H. Casey v. luloes, 1 Gill, 4S0; Tnum Saunders, 27 Mich. 347; Wilcox v. V. Kiclfer, 31 Ala. 138; IScwman v. Howell, 44 N. Y. 398; Brown v. Edwards. 32 Pa. St. 82; Forsythe v. Bowen, 30 N. Y. 541; Graves v. Blon- Day, 40 ]\Ie. 176; Cummings v. Web- dell, 70 Me. 190; Conrad v. Gallery. ster, 43 Me. 192; Davidson v. Young, 22 La. Ann. 428; Barnard v. Campbell, 38 111. 140. 5,5 N. Y. 456; Lacy v. Wilson. 24 » Patterson v. Lyttle, 11 Pa. St. 53; Mich. 479; Carr v. R. R. Co.. Ill Simons V. Steele. 36 N. H. 73; Whar- Mass. 1; Couniham v. Thompson, 111 ton V. ILirdisty, 8 El. & B. 232; Mass. 270; Wiieelock v. Hardwick. For.'^ylh v. Day, 46 Me. 176; Kuhl v. 48 Vl. 119; Adkins v. Adkins, 48 Ind. Mayor, 23 N. J. E. 84; Williams v. 12; Eitel v. Bracken, 38 N. Y. Super. Chandler, 25 Tex. 4, Howard v. Cole- 7; Collins v. Case, 23 AVis. 230; State man. 36 Ala. 721;Judovine v.Goodrich, v. Ruby, 52 Mo. 396; Morgan v. H. IJ. 3<5 Vt. 19; Calauan v. .McClure, 47 Co., 96 U. S. 716; Cole v. Bolaud, 23 Barb. 206; Wiuton v. Hart, 30 Conn. Pa. St. 431; HoldCii v. Torrey, 31 Vt. 16; Plumer v. Lord, 9 Allen, 455; 690; Phillips v. Imthurn, L. R. 1 C. Andrews v. Lyon, 11 Allen, 349; Bates P. 403; Bank v. Bank, 50 K Y. 575; V. Leclaire, 49 Vt. 229, Manley v. Helmsley v. Loader, 2 Camp. 450; Estoppel In Pais. 913 reinaiii in M. till the price be paid or secured ; G. informed M. that he wished to buy the mnle, and asked M. if he had any claim thereon; M. replied: "I have no mortgage on him and do not expect to have any ; " and Gr. traded with W. for the mule ; M. was estopped to set up title therein.* So where a party, in reply to a request for a license to do something concerning his property, answered in ambiguous language, intending not to grant the request, but to convey the impression that he did grant it, and the other party received such impression and acted upon it, the former was bound to the same extent as if he had expressly assented.* § 786. The doctrine of equitable estoppel is founded upon the principle that a party lias, by his own voluntary act, placed him- self in such a situation in regard to some fact that he is precluded from denying it.' Its applications to the dealings and contracts of men is a salutary one — that a man shall not be permitted to deny what he has once solemnly acknowledged. Thus R. & J., partners, having agreed to sell a horse to each of four colored men, caused C. to draw up a receipt for the four horses, which was signed by the purchasers, but by neither R. nor J., reciting that the purchasers had severally received from C. the horse respectively contracted for, that they were jointly responsible for the payment to C. of the prices specified, and for the forthcom- ing of the horses on failure of payment, and whcTi the whole was ])aid, C. was to make to each man a good title to his horse, the title to all to remain in C. "until the last dollar is paid." R. & J. were estopped to deny that the legal title was in C.'' So O'Brien v. Wetherell, 14 Kas. 616; Pitney, 39 111. 468; Stimpson v. Bauk, Gotham v. Gotliam, 55 K H. 440; 28 Me. 259; Ogden v. Waller, 6 Dana. Eaton V. Winne, 20 Mich. 156: Lips- 420; Russell v. Watt, 41 Miss. 602; comb V. II.)lme^;, 2 Camp. 441; Rich- Corbett v. Norcross, 35 N. H. 99; mond V. R. R. Co., 33 Iowa, 422; Morehouse v. Cottreal, 22 N. .T. L. Mercer v. 3IcKee, 77 Pa. St. 170; 521; Hill v. Hill, 4 Barb. 419; Xaglee Hooker v. Hubbard, 102 Mass. 239; v. Ingersoll, 7 Pa. St. 185; Root v. Payne V. Burnham, 62 N. Y." 69. Crook, 7 Pa. St. 378; Perry v. Cal- ' Grace v. McKissack, 49 Ala. 163; houn, 8 Humph. 551; Crooks v. Dou- * Judovine v. Goodrich, 35 Vt. 10. glass, 56 Pa. St. 51 ; Pierson v. David, ' Coe V. Talcott, 5 Conn. 88; Sim- 1 Iowa, 23; Att'y Gen'l v. Wharf Co., mons V. Hendricksou, 3 Harr. 103; 12 Gray, 553. Bank v. Eldred, 6 Biss. 370; Brown v. * Rice v. Crow, 6 Heisk. (Tenn.) 28. Vol. 1.-58 914 The Law of Estoppel. where a piircliascr knows at the time of pnrcliasing tliat Iiis ven- dor's title to the goods purchased is derived from mortgages exe- cuted to them by a bankrupt vs^ho has failed in business and has no other property, he is bound to ascertain the nature of the transactions between his vendor and such bankrupt, and is estop- ped from afterwards claiming to have been a Ixmafide purchaser without notice.' They will not be carried further than is neces- sary for the attainment of the object, and they may be waived or enforced at the pleasure of the party who has acted on the faith of the representation or admission out of which they arise. The technicalities incident to estoppels have been gradually giving way to considerations of reason and practical utility, and the courts seem dis])osed to give force and efficacy to a doctrine which is based upon principles of justice and the purest morality. § 787. Equitable estoppels are as binding upon parties and privies as legal estoppels, and are as effectual in courts of law as in equity. The act or assertion must be willful, with intent to deceive the other party. Parties are only estopped from denying their own acts when the denial operates to the injury of another, and when such expressions are expressly designed to and do influence the conduct of such person. '• An admission by the defendant intended to influence the conduct of the n)an with whom he is dealing, and actuall}' leading him into a line of con- duct which must be prejudicial to his interest, unless the defend- ant be cut off from the power of retraction, is the very definition of an estoppel in pais^"^ But a man can be estojiped from denying only what he has once admitted. An estoppel in pais \s, to be resorted to solely as a measure to prevent injustice. Always as a shield, but never as a sword.* Where a party fails to make his rights known, where fairness and good conscience reqnii-e that he should do so to protect the interest of otliei-s, he «annot be heaixl as against them to assert such rights.* Estoppels » Rison V. Knapp, 1 Dill. 186. 3frl; Royce v. Watrous, 73 N. Y. 597; "" DcvxH V. Otkll, 3 Ilill, 215; Colter Campljell v. Nichols, 33 N. J. L. 81; V. Galloway, 68 lud. 219; Payne v. Gillelaiid v. Failinif, 5 Denio, 308. Burnbam, (52 N. Y. 69; Andrews v. 4 Lloyd v. Lee. 45 111. 277; Colter Keith, 34 Ala. 122; Reynolds v. Loiins- v. Galloway, 68 Tnd. 219; Iluntsiuker bury, (i Hill, 534. v. Clark, 12 Mo. 333; Smitb v. Smith, * Fieirepont v. Barnard, 5 Barb. 30 Conn. 111. Estoppel in Pais. 915 inj}<^'i'S, as well as those which are technical estoppels, must be reciprocal/ and a stranger can neither take advantage of nor be bound by the estoppel. § 7S8. A person who intcntionallj^ or by culpable negligence induces another to act on his representations will be estopped from denying their truth. Under the circumstances creating the estoppel, representations made by words, acts, or silence when duty requires the party to speak are conclusively presumed to be true as against him and in favor of the person whom he has misled. The estoppel is called into life for the purpose of preventing wrong and redressing injury, and being never carried further than is necessary to prevent one party from being injured by his reliance on the acts of another, and therefore no declara- tions or acts give rise to an estoppel unless they have been relied and acted upon, and unless theii- denial would prejudice the per- son in whose favor the estoppel is introduced. Thus a declara- tion or act retracted before it is acted upon, does not raise an estoppel ; it may exist for one purpose and not for another and in favor of one person and not in favor of another though grow- ing out of the same transaction.'^ Thus, if a settler entitled hy improvement to four hundred acres of land gives to a purchaser of ISO acres thereof, a written statement that he lias no right to the improvement, though this may be an estoppel to 180 acres, it cannot be used by one claiming the remainder, without any considei-ation 1 Canal Co. v. Hatlieway, 8 Wend. Ala. 370; Bentley v. Cleavelaiid, 23 480; Burton v. Farinliolt, 86 N. C. A\n. 814; Wright v. Hazen, 24 Vt. 260; Fertilizer Co. v. Guano Co., 19 143; Alexander v. Waller, 8 Gill, 239; Hun, 47; Maduska V. Thomas, 6 Kas. Cuttle v. Brockway, 32 Pa. St. 35: 153; McKellup v. Jackman, 50 Vt. 71 ; Watson v. Hewitt, 45 Tex. 472: HUl Scbeuck V. O'Neill, 23 Hun, 209; v. Epley, 31 Pa. St. 331; Wood v. Stiuchfield v. Emerson, 52 Me. 465; Parnell, 51 Me. 52; Montgomery v. Fitzsimmons V. Joselyu, 21 Vt. 129; Gordon, 51 Ala. 377; Callow v. Jeukiu- Dickersou v. Colcgrove, 100 U. S. 578; son, 5 E. L. & Eq. 583; Wood v. Seeley, Hart V. Bank, 39 Vt. 252; Averill v. 32 N. Y. 105; Parker v. Crittenden, Wilson, 4 Barb. 80; Cohoes Co. v. 37 Couu. 148. Goss, 13 Barb. 137; Louis v. (.'aslle- 2 Brusley v. Hamilton, 15 Pick. 40; man, 27Tex. 407; Dempsey V. Tylee, Wilder v. St. Paul, 12 Minn. 192; 3 Duer, 73; R. R. Co. v. Sclmyler, 38 Combs v. Cooper, 5 Minn. 254; Miller Barb. 534; Edmunds v. Montague, 14 v. Cresson, 5 W. «& S. 384. 916 The Law of Estoppel. paid the settler or evidence that the purchaser was deceived by it so as to purchase or expend money on the faith of it.i § T89. Dechvrations made by one party, and acted upon by the otiier, and his action thereby changed to his injury, operate in the way of estopjyel up'on the party making them. Thus a party wliu lias receipted for goods, as the property of the defend- ant in attachment, may prove property in himself in a subsequent suit brought for the goods by the plaintiff in attachment, in mitigation of damages can neither be benefited by the goods, nor injured by their loss, unless they actually belong to the defend- ant ; but, if it is shown that there was other property of the defendant in the attachment, which would have been seized but for his acts and declarations, he will be estopped from proving title subseqnentl}' either in mitigation of damages or in bar.* While a man, whose goods are wrongfully sold under a wa-it against another may bid at the sale to raise their price to a fair value, and witli a view to his own protection, without losing the right of redress from the officer making the sale ;' he is estopped from questioning the title of the purchaser. The interference by parties interested in a judicial sale, to prevent a fair and usual sale to the highest bidder, as by making arrangements with per- sons who intended to bid at the sale to protect their interests, w"hereby they were deterred from bidding, is enough, of itself, to estop them from claiming a deficiency on the sale, which they have been the means of creating ; and their action at law for an alleged deficiency so created will be enjoined in equity." So where a woman takes an active part in misleading the sheriff, and asserts that she is the wife of the execution debtor, knowing the assertion to be untrue, she is then herselt" the cause of the injury of which she complains, and is estopped from disputing the accu- racy of her representation.^ And if the evidence shows that she ' Miller v. Cresson, 5 W. & S. 284. v. Richards, 21 Ala. 424; Tappan v. 2 Dewey v. Field, 4 Met. 181; Stone Morseraan, 18 Iowa, 499; Stanley v. V. Du;ikin, 2 Camp. 34G; Cluipman v. Green, 12 Cal. 148. Searles, 3 Pick. 38; Hearn v. Roger.'^, ^ Hearu v. Rogers, 9 Barn. «& C. 9 B. & C. 577; Cocker v. Kuykendall, 586; Chiapella v. Brown, 14 La. An. 41 Miss. 65; Ryers v. Farwell, 9 Barl). 189. 615; McCU-llan v. Kennedy, 8 Md. •» lunes v. Stewart, 36 Mich. 285. 230: Duel v. River Co., 5 C:il. 84; » Langford v. Foote, 2 M. & Sc. Bank v. Leonard, 43 Me. 344; Pound 349. Estoppel ix Pais. 917 had given the property to the man witli whom she co-habited, and had made him the owner of it, the sheriff will then have a right to seize it.' Every person who by misrepresentation or misstatement, causes an officer charged with the execution of legal process to make a mistake and arrest the wrong person, or seize his goods, can not complain of the wrong which he lias himself occasioned. If by misrepresentation he causes himself to be arrested, he is the author of his own misfortune, and has no right to charge it upon the officer.^ Thus where a sheriff had a writ commanding him to arrest A. and took into custody '' B." who represented that she was the person named in the writ. The sheriff after ascertaining his mistake was compelled to discharge B., but B. was estopped by her representations from suing the sheriff for the original taking.^ § 790. In order, however, to raise an admission or statement by one party from the rank of evidence to the dignity of an estoppel, it must not be shown that its retraction would be injurious to the other, but that the injury results from a course of action induced by the admission.^ Thus, where a man bitten by a dog asked a woman as to who owned it, and she said it belonged to her, he accordingly sued her. Held, that she would be estopped from denying ownership on the trial if she knew that the inquiry was made for the purpose of finding out who was liable for the injury. ° One who professes to be an incumbent of an office and performs the duties of the same, is estopped from denying the legality of his appointment, for the purpose of escaping liability, ° and if a man induces a tradesman to supply a ' Edwards v. Farebrother, 2 M. c% Camp. 513; Rex v. Borrett, 6 C. & P. P. 293. 124; Trobridge v. Baker, 1 Cow. 251; "- Fisher v. 3iragnay, 5 M. & Gr. Eldred v. Hazlitt, 33 Pa. St. 307; Cat- 778. lin V. Grote, 4 E. D. Smith, 29G; Wool- 2 Dunston v. Patterson, 2 C. B. N. ley v. Edson, 35 Vt. 214; White v. S. 495; 26 L. J. C. P. 268. Langdon, 30 Vt. 599; Carpenter v. •» Dunston v. Patterson, 2 C. B. N. StiUwell, 11 N. Y. 61; Cambridge, etc. S. 495; Moore v. Bowman, 47 N. H. Co. v. Littlefield, 6 Ciish. 210; Bank v. 494; Lewis v. Lanphere, 79 III. 187; Clark, 28 Vt. 325; Forsythe v. Day. Rigney V. Smith, 39 Barb. 393; Cocke 46 Me. 176; Reeves v. Mathews, 17 V. Kuykendall, 41 Miss. 65; McCune Ga. 449; Reynolds v. Louisberg. 6 V. McMichael, 29 Ga. ^12; Ladr;ck v. Hill, 534. Briggs, 105 Mass. 508; Bevans v. Will- ^ Robb v. Shephard, 50 Mich. 189. iams, 3T. R. 635; Rex V. Gardner, 2 « State v. Long, 76 N. C. 254; 918 The Law of Estoppel. Avoiiian with goods by represeTitationsthat she is his wife, he will be conchided by the representation and will not afterwards be permitted to show tluit she was not his wife/ and so where an M'-'ent represents that lie is the principal." So, where a plaintifi; was elected to till an office, whose term ran for three years ; two years afterward, he having sometime neglected to perform the duties of the office, a meeting was called to till the vacancy, at which he was present ; he did not object to the proceedings, nor to the entry upon the duties of the office, of the person elected at this meeting. He was estopped to deny the title of such person.' § 791. Equitable estoppels are always applicable in cases where an attempt is made to assert a right, subsequently, to the injury of others, which was waived by acquiesceuce at the time.* Tlius, a man who induces another to comply Avith an award by alleijing that the submission embraced all his demands, is estopped from afterwards enforcing a claim which was fraudu- lently withheld from tlie arbitrators." Where a claimant allows a suit to be brought in the court of claims for the use and ben- elit of another, assists in its prosecution, and virtually stands by and sees it settled, lie is estopi>ed from alleging his own adverse interest against a settlement made before his new position was assumed." And in the same way a party who prevents a plaint- iff in an action from exacting bail, by an assurance that he has Hooper V. Stewart, 25 Ala. 408; Ran- Free, 9 B. & C. 167; Lipscomb v. dall V. Dusenbuiy, 39 N. Y. Super. Holmes, 2 Campb. 442. 174: Portis v. Ciimmings, 31 Tex. 265; = Rayner v. Grote, 15 M. & W. 359; Bethel v. M::sou, 55 Me. 501 ; Bryaa v. Bickeiston v. Burnell, 5 M. & W. 359; Walton, 14 Ga. 185; Keith v. B.ink, Humble v. Hunter, 12 Q. B. 310; 44 N. H. 174: State v. Sellers, 7 Rich. Schmalz v. Avery, 10 Q. B. 555; Cox 368; McMiihou v. Allen, 4 Ed. Smith, v. Hubbard, 4 C. B. 318; Cooke v. Wil- 519; State v. Stone, 40 Iowa, 547; son, 1 C. B. N. S. 153. Byrne V. State, 50 Miss. 688; Marshall -* Col ton v. Beardsle}\ 38 Barb. V. Hamilton, 41 Miss. 229; State v. 29. Cansler, 75 N. C. 442: Thompson v. ■• Canal Co. v. Lewis, 12 K J. E. Bondurant, 15 Ala. 346. 323; Luter v. Rose, 20 Tex. 639; ' Watsun V. Threkeld, 2 Esp. 6.S7; Lucas v. Clarke, 5 Iowa, 14, Hunt v. Robinson v. Mahon, 1 Campb. 245; Coon, 9 Ind. 537. Jennings v. "Whittakcr, 4 ilon. 50; ^ Wyman v. Perkins, 39 N. 11. 218; Pondei^ V. Graham, 4 Fla. 23; Munro Muhlmau v. Ins. Co., 6 W. Va. 508. V. De Chamant, 4 Campb. 215; Case * Stow v. United States, 5 Ct. of CI. V. Farrer, 12 Minn. 89; Johnston v. 362. Allen, 39 How. Pr. 506; Blades v. Estoppel in Pais. 919 already entered into a recognizance for tlie appearance of the defendant, is estopped by his action from relying on the insuffi- ciency of the recognizance as a defense to a suit brought upon it for the debt.' But where both parties know, or have the means of knowing, and each is qqnaliy in fault, neither can have any equitable claim to relief against the other,'' and it matters not that] means were used to deceive, if the other party was not in point of; fact misled.* The estoppel is not extended bej^ond its require- ment to prevent one party from being injured by his reliance upon the acts or declarations of the other.* Where the possession of goods is obtained on the faith of an admission of the right of a person from Avhom it is derived. The admission is only binding while possession is retained.^ This rule is the same in every case where the admission is relied on as conclusive, and liuiits the estoppel to what is necessary to put the parties in the position which they would have occupied had the admission not been made.' § 792. In order to create an estoppel in pais, or equitable estoppel, as defined and established by the law at the present time, there must be an admission intended to influence the con- duct of the man witli whom the party is dealing, and actually leading him into a line of conduct prejudicial to his interest, unless the party estopped be cut olf from the power of retrac- tion. As stated by Bronson, J.,' to constitute an estoppel in pais > Hawly V. Middlcbiook, 28 Conu. low3:l GiUsla ndv. Rliodes,34 Pa. St. 527. 187; Kinnear v. Mackej-, 85 111. 96; * Commonwealth v. Moltz, 10 Pa. Kloety v. Delles,45 V\'is. 484; Berlin v. St. 527; Foster V. Albert, 42 lud. 40. Gilly, 13 La. Ann. 4G1; Sebright v. =* Jewel t V. ]\Iiller, 10 N. Y. 402; Moore, 33 Mich. 92; Colwell v.Brower, Larkins' Appeal, 38 Pa. St. 427; Brown 75 111. 510; Howell v. Bank, 5 Bush, V. AV heeler. 17 Conn. 343; Cornell v. 1)3; Cornelius v. Buford, 28 Tex. 202; Mastiu, 35 Barb. 157; Schipper v. St. Caldwell v. Auger, 4 Minn. 217; Palais, 37 Lid. 505. Walling v. Brown, 7 S. & Pv. 467; ■» Kinney v. Farnsworth, 17 Conn. Taylor v. Parkhurat, 1 Pa. St. 197; 355; Miller v. Cresson, 5 W. & S. 284; Kelly v. Eichmaii, 3 Whart. 419; Puyter v. Ins. Co., 52 Barb. 447; Walker v. Barnard, C. & N. 82; Campbell v. Nichols, 33 N. J. L. 181. Anderson v. Coburn, 27 Wis. 566; f* Johns V. Church, 12 Pick. 557. Malloney v. Horau, 49 N. Y. Ill; « Bocock V. Pavey, 8 Ohio St. 270; Brown v. Bowen, 30 K Y. 541; Muhlman v. Ins. Co., 6 W. Va. 508. Stephen v. Balrd, 9 Cow. 277; Pres- ' Dozen V. Odell, 3 Hill, 215; fol- byterians v. Williams, 9 Wend. 147; 920 The hwv of Estoppkl. against a party, there must he, 1st, an admission iiieonsistcnt Avitli tlic evidence wiiieli lie luis proposed to give, or the title or claim which he ])roi)Oses to set np; 2d, an act done by the other party on the faith of such admission ; 3d, an injury to him by allowing the injury to be disproved. Tliis definition shows that the diiT(M'ence between this kind of estoppel and legal estoppels is, that the inference that the admission was the basis of the act or covenant and cannot be justly retracted, which is drawn in the one case by the law from the seal, and must be supplied in the other by proof. Thus, where a party Avho had pointed out certain property as belonging to an execution debtor, and stands by and sees the sheriff sell it as the property of the defendant, he is estopped from contradicting these statements and proving property in himself, and this principle extends to every case where an unauthorized sale is expressly or impliedly sanctioned by the OMnier, and it estops him from setting up his own right against the purchaser. If by a frandulcnt contrivance of the owner, an officer is induced to attach the property of another than the defendant in the writ, either by representation or acts, and the officer, relying upon such holding out by the owner, attaches the })roperty, and thereby the property of the defendant is suffered to escape, the owner will be estopped to set up title in himself.' So, where a person is in possession of a piano belong- ing to a defendant in execution, also had one of her own very much resembling it, both of which were boxed for shipment, and when called on by the officer to point out that belonging to the defendant, so acted as to induce the officer to levy upon lier own,so fhatshe might fraudulently ship the other, and thus defeat the collection of the execution, in replevin by her for her piano, slie was estopped from denying that it belonged to the defend- ant in execution, and claiming it as her own.^ So where an Amounet v. Young, 14 La. Ann. 175; Hunt v. Coon, 9 Ind. 557; Hamahan Smith V. Taylor, 14 La. Ann. 665; v. O Reilly, 102 ]Mass. 301; Welch v. liiitch V. Ilibliaril, 10 Mv. 146; Rangely Bank, 94 111. 191 ; Dahlman v. Foster, V. Spring, 21 Me. 137; Pickard v. 55 Wis. .382; Hart v. Giles, 67 Mo. Sears, 6 A. & E. 469; Ilibbard v. 175. Steward. 1 Hilton, 207; Canal Co. v. ' Moore v. Bowman, 47 N. H. 494 ; Lewis, 12 N. J. E. 323; Luret v. Kose, Rigney v. hmith, 39 Barb. 3S3. 20 Tex. 639; Spears v. Walker. 1 How. =^Colwell v. Brower, 75 111. 516. 616; Lewis v. Clarke, 5 lowu, II; Estoppel in Pais. 921 officer has an execution iu liis hands against A., and J. tells him that he has propertj in his possession belonging to A., which ■u'as left with him as a pledge and security, and takes the officer to where the property is, and points it out to him, telling him it is the absolute property of A., and that his title is clear, and the officer then levies upon it, and takes it from J.'s possession, with- out any protest or objection, as between himself and the officer, waives his claim or lien upon the property, and cannot maintain an action of replevin against the officer for the recovery of the property.' So, where a parent allowed his minor son to work for another at certain monthly wages to be paid to the son. The father, Avho lived near by, knew of the agreement, made no objec- tion, nor did he notify the employer not to pay the wages to the minor, nor did he demand the wages. After the work had been done, and all the wages paid to the son, the father was held estopped from claiming them.'' § 793. Estoppels must ordinarily be mntnal and will not extend beyond the parties to the contract or transaction in which they arise." A declaration or admission made to one man can seldom be absolutely conclusive in favor of another '* but when the statement is meant to influence the conduct of third parties, this rule does not apply. The declaration of a party, in order to estop him, in relation to his ownership of property, must be made to one who has a right to know the relations of the party to the property in question.^ A statement made by the owner of land which he is about to sell in the presence of the purchaser to another person, is equivalent to a statement to the purchaser him- self.® An estoppel embraces in its conclusive effect parties and privies and estops all who claim under the person originally > Hardin V. Joice, 21 Kas. 318. 239; Wright v. Hazen, 24 Vt. 143; "Smith V. Smith, 30 Conn. Ill; Beutley v. Cleaveland, 22 Ala. 814; Boneton v. Black, 68 Ind. 269. Watsou v. Hewitt, 45 Tex. 372; ^ Wood V. rennell, 51 Me. 52; Hill Simp.sou v. Pearson, 31 Ind. 1; V. Epley, 31 Pa. St. 331;. Cuttle v. Edmundson v. Montague, 14 Ala. 370. Brockway, 32 Pa. St. 45; Louis v. ^ Heane v. Rogers. 9 Barn. & C. 577. Castleman, 27 Tex. 407; Griffin v. ^ guiiivan v. Park,33 Me. 438; xillum Richardson, 11 Ii-ed. 439; Massure v. ' v. Perry, 08 Me. 232. Noble, 11 111. 531; Wright v. Hazen, *> ^^lexander v. Beresford, 27 Miss. 24 Vt. 143, Cohoes Co. v. Goss, 13 747. Barb. 137; Alexander v. Walter, 8 Gill, 922 The Law of Estoppel. barred. Thus, the buyer of a chattel was held to be witliin the bar of an estoppel «nj*^(m growing out of the acts and declara- tions of the vendor.' And the rule is the same in regard to an estate in land," but as the interest conferred by an estoppel of this description is, where real estate is involved, essentially equit- able, subseqent purchasers will not be bound without notice. A "judgment creditor is generally subject to every equity that would have been binding on the debtor.^ An estoppel can never be founded upon an omission to object to the performance of an act which was lawful when done by the party doing it, or for an omission to deny an assertion which was true when made. It is when a party stands silently by, and sees an unwarrantable act done to his property, or hears a false and injurious declaration made in relation to his rights, that he is estopped from subse- quently questioning the act or statement to the prejudice of an innocent piirty." No one can be estopped by an act that is illegal and void," and an estoppel can only operate in favor of a i)arty injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation." § 794. Where a declaration is so general in its terms, or made under such circumstances as to indicate that it was intended to reach third persons, or the community at large, the estoppel will be extended far enough to protect every one who may have been presumed to have acted or been governed by it.' AVhile a bond signed and sealed in blank may not (according to some authori- ties) be valid between the parties, it is binding when it is in the hands of third parties after it has been filled up by the obligee.* ' McCravey v. Remson, 19 Ala. « R. R. Co. v Schuyler, 34 N Y. 430; CraiU! v. Turner, 67 N. Y. 467. 30; .Johnson v. Byler, 38 Tex. 606. » Wooley V. Edsou, 35 Vt. 214; Cor- ^ Hostler v. Hays, 3 Cal. 203; Lewis bert V. Norcro.ss. 35 N. H. 99; Snod- v. Carstairs, 6 Whart. 207; Alexander gras.s V. Ricketts, 13 Cal. 359; Shaw v. v. Beresford, 27 Miss. 747; Bank v. Beebe, 35 Vt. 205; Wood v. McGuiie, Jerome, 18 Conu. 443; Bank v. Ford, 15 Ga. 202; Peters v. Jones, 35 Iowa, 27 Conn. 282; Mitchell v. Reed. 4 Cal. 542; Thistic v. Buford, 50 Mo. 278; 204; Graff v. R. R. Co., 3 Pa. St. 489; Brtine v. Riekett, 1 Cin. (Ohio) 101. Bank v. West, 46 Me. 15: Quirk v. 2 Brace v. Marlbourg, 2 P. Wm. 471. Tliomas, 6 Mioh. 76; Concry v. Clark, * Corning v. Nail Factory, 39 Barb. 13 La. Ann. 313; R. R. v. Lacy, 2 Y. 311. & J. 79. <• Mattox V. Hi2;htsue, 39 Ind. 95. » Van Duzer v. Howe. 21 jST. Y. 531; Estoppel Ix^ Pais. 923 Thus, a recital in a deed that, a judgment given for the price had been paid, was held to estop the grantor from setting it up against subsequent creditors, avIio though not technically privies, might have refrained from trusting the grantee, if the judgment had still been in force.* And an alley which had been treated for a number of years as the common property of the owners of the adjacent houses, cannot be closed by one of them against a purchaser, who may be presumed to have purchased on the faith of the appearance." If a vendor represents that the use of an alley passes with the premises conveyed, and obtains an increased price thereby, he is estopped afterward to prevent the vendee from using the alley, though the deed does not convey the right.' So, where a party has accepted deeds recognizing the existeoce of the street as a public highway at the point of improvement, according to a city plat, he is estopped to deny the same.* § 795. Courts go a great ways in presuming that acts and declarations calculated to influence third persons have, in fact, reached their ears, and induced them to buy. Thus, it was held' i\\^i bona fide purchasers, who, by the deceptive acts of acquies- cence of the wife in the will of her husband, might have had reasons for believing that its provisions would not be disturbed, would estoj:* her, though it cannot be shown that the purchasers acted on that belief. This extension of equitable estoppels is peculiarly applicable to those statements which like letters of credit or the prospectus of an insurance company, are addressed to all the world, and where the defendants had advertised that they would not refuse the payment of a loss on any ground short of fraud, they were held estopped from taking advantage of a failure to comply with the requisitions of the policy which was not actually fraudulent.' The doctrine in this country has not been in strict accord with the principles announced in Wheelton Swan, in re, 7 C. B. N. S. 400; U. S. ^ Kirkpatrick v. Brown, 59 Ga. 450. V. Nelson, 2 Brock. 64; Byers v. Mc- * Grimm v. Shickle, 4 Mo. App. 585. Laualiau. 6 G. & J. 250; McKee v. ^ Ackla v. Ackla" 6 Pa. St. 238. Hicks, 2 Dev. 379; Ayers v. Harness, ^ JN'ew, »fec. Co. v. jMuggridge, 7 Jur. 1 Ohio, ;i68; Kortright v. Bank, 20 N. S. 132; Wood v. Dwarris, 11 Excliq. Wend. 91. " 493; Gratf v. R. 11. Co., 31 Pa. St. ' Waters' Appeal, 35 Pa. St. 523. 489; Tunnell v. Sheldon, 6 B. «& C. ' Lewis V. Carstairs, 6 Wharton, 193. 341. 924 The Law of Estoppel. V. Hardest}', Avherc it was held that where the defendants circu- lated a prospectus whereby thej' undertook that their policy should be unquestionable except ou the ground of fi-aud, and the plaintiff was induced to take a policy on the faith of such pros- pectus ; the jury found a v^erdict for the plaintiff and it was sustained. In another case/ Coleridge, J., says : " I ain of opin- ion that if an advertisement is put out to induce parties to enter into a certain contract, and an individual does afterwards enter into such contract, and then comes into court and complains of misrepresentation, it is no part of his case to show that he was cognizant of the advertisement \ jprhna facie it will be taken that he was iniluenced by it." In another case,'' some evidence was given from which it might be inferred that the plaintiff saw the advertisement, it was held that the jury might well iind that it was a material inducement for him to pay his money. § 796. In this country the decisions have been cofiflicting, many of them establishing the doctrine that matters preceding or contemporaneous with the issuing of the policy are not ad- mitted to establish a waiver of its conditions. In the later and moi'e carefully considered cases of which a vast number of them will be cited in the chapter on corporations, it has been well set- tled that parol evidence of the conduct of the agent of the insurer, before or at the date of the policy is held admissible to establish a waiver of its condition. Judge Dillon decided that a circular addressed by a Life Insurance Company to its share- holders, M'hich stated that it wouKl nut insist upon forfeiture of its policies because of non-payment of interest thereon was a Avaiver of the right to insist on a forfeiture for non-payment of interest, which was available to policy holders in a court of law, and that there Avas no necessity for equity to interjjose to enjoin the company from setting up the forfeiture by way of defense in an action at law. Assumino^ t])e iilaintiff to be riii-ht in liis contention that this was a waiver of the right to forfeit this pol- icy, it is a defense available i)y ix'plication in a law action with- out any question. We enforce the same principles here every day where something happens after the execution of the policy ' Watson V. Charlemout, 2 A. & ^ Wontlier v. Sliarp, 4 C. B. 408. Ell. 863. Estoppel in Pais. 925 which is set up as a waiver by, as an estopj3el against the com- pany. The company has waived the right to insist upon this forfeiture. And it has been lield in England that where the prospectus contains statements, that the policies should be indis- putable and unquestionable, it was held that the prospectus, though issued and circulated by the company prior to the issu- ance of the policy was admissible in evidence, and formed a good equitable answer by the plaintiff to the companies claim that the policy was void by reason of misrepresentation ; and the plaintiff recovered at law on the policies, but upon equitable principles.' Such prospectuses or advertisements are in effect made to every one interested in the subject matter to wliich it relates, and the party issuing it should be held to the same measure or accounta- bility as if lie had spoken or written to the persons he wished to deceive." § 797. Tlicre can be no estoppel in equity or on any principles of equity unless the person who asks relief from the rigor of the law is a purchaser in the large and liberal sense in which the term includes all wlio have given value, or changed their position for the worse in reliance on the acts or declarations of others.^ A donee or devisee cannot, therefore, enforce an estoppel which would not have been valid iri favor of the donor or devisor, and the same principle applies to every one who takes a conveyance or assignment without giving anything in return, and will, there- fore, be in no worse condition if the title which he has fails than he was before."* § 798. Estoppels are sti'ictly construed, and are not allowed as instruments of fraud, but only to prevent injustice, and are well founded when confined to the legitimate purpose of preventing ' Wood V. Dwarris, 11 Exc. 493; Bedford v. Bagsliaw, 4 H. & N. 4o8; Wbeelton V. Hardisty, 8 El. & B. 332; Gerhard v. Bates, 2 E. «& B. 476; Watsoa V. €barlemoat, 2 A. & Ell. Calhoun v. Richardson, 28 Conn. 803; Wouther v. Sharp, 4 C. B. 408; 210; Seymour v. Bashaw, 18 C. B. R'y Co. V. Kisch, L. R. 2 H. L. 99; 873. Steele v. Ins. Co., 3 JIo. Apo. 207; ^ Weaver v. Lynch, 25 Pa. St. 449 ; Geib V. Ins. Co., 1 Dill. 443; Robmson Goodhue v. Seannell, 8 Cal. 827; V. Ins. Co., oral opinion of Judge Thompson v. Thompson, 9 Ind. Dillon unreported. , 323; East v. Dolhite, 72 N. C. 562. 2 Wontber v. Sharp, 4 C. B. 40S; * Weaver v. Lynch, 25 Pa. St. 449. 926 The Law of Estoppel. one man from being injnred hy the aets or misrepresentations of another. § 799. There can be no estoppel where the act or representa- tion is made or done afterwards. Thns, in an action of replevin brought for a mare, levied on by the defendant under an execu- tion against a third person, the plaintiff was permitted to show that the third ])erson had no title, although he had declared some months previously that the mare was the common property of both. The court held that if this statement had been made at the time of the levy it would have been conclusive, but that as it occurred in the course of another transaction it was to be regarded in the light of an ordinary admission, and was consequently open to explanation and contradiction, whatever the loss on one side and the degree of moral wrong on the other may be, there will be no estoppel unless the loss is the direct and natural result of the wrong,' nor unless it is clearly apparent that the injurious influ- ence exercised by the acts and declarations which constitute the estoppel, if not intended might have been foreseen.- A n)un will not be bound by an answer to a question asked, without disclosing the object, and which he may reasonably deem frivolous or impertinent, nor unless he has notice that the person l^y whom it is put means to shape his course by the answer. Thus it was held, that a representation b}' the defendant in an execution, that the goods seized by the oflUcer were the property of his brother, did not estop him from proving that they were really his own, although the sheriff went on to sell them, under a suit against the brother, of the existence of which the defendant was ignorant, because the circumstances of the case, taken as a whole, were such as to shov.' that the representation was not meant to bring about the sale; then the sale was not the result of the representa- tion.* So a false statement to a carrier as to value of hoises in ' Taylor V. Zcpp. 14 Mo. 483; Alex- bridge v. Littlefield, 6 Tonn kMO: ander V. Wilder, 8 Gill, 239. Jone.s v. Cowles, 26 Ala 612; Wliito Mlenley V. Henley, 16 Ala. 91; v. Langdon, 30 Vt. 599: Taylor v. Ely. Morton v. Hogdon, 23 Me. 137; Otis 25 Conn. 250; Love v. Barhei, 17 V. Sill, 8 Barb. 103; Ryersv. Farweil, Tex. 312; Cady v. Dyer, 20 Conn. 9 Barb 015; Carlwriglit v. Gardner, 563; Carter v. Darby, 16 -lia. 696. 5 Cusb. 273; Pond v. Iline, 21 C(mn. " Freeman v. Cook, 2 Exchq. 653; 519; Watkins V. Peck, 13 N. H. 300; Howard v. Hudson, 2 E. & B. 1; Pound V. Richards, 21 Ala. 424; Cam- ^Vethered v. Ins. Co. 49 Me. 20; Cox Estoppel in Pais. 927 order to induce carrying tlieiii at a lower rate, estops him from proving a greater value in cases of loss. A declaration to one man can rarely operate as an estoppel in favor of anotlier, unless lie is a privy in estate with the tirst, not only because what is learned merely through report seldom has much iniiucnce on con- duct, but because it would be unjust in most cases to carry the responsibility arising from a statement further than the person to whom it is addressed, or render the person answerable for every act that may be built on it by strangers," Thus a letter written to an assignee of a bond, acknowledging that it was justly due, was. not held to be an estoppel in suit brought for the benefit of a third person, by whom the bond was subsequently purchased, because there was no evidence that the purchaser had seen the letter or was influenced by it in purchasing the bond/ § 800. ]S^o man can adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit.^ This application of the law of V. Cannon, 4 Bing. N. C. 453; Foster V. Asso. 3 E. & B. 48: Guruey v. Evans, 3 H. & K 122; Dunstan v. Patterson, 2 C. B. N. S. 49; McCauce V. R'y Co.. 7 H. & N. 447; Keating V. Orme, 77 Pa. St. 89; Zuchtman v. Roberts, 109 Mass. 58; Strauss v. Min- zesheimer. 78111. 492; State v. Rugby, 52 Mo. 96; Audenried v. Bettely. 5 Allen, 882; Plumer v. Lord, 9 Allen, 455; Garlingliouse v. Wliitwell, 51 Burb. 208; Richards v. Browne, 3 Bing. N. C. 499; Jewsbury v. Mum- ery, L R. 8 C. P 56, Ry Co. v Woodcock, 7 M. & W. 574 ; McFar- lauev. Giannacopulo, 3 IL & X. 800; Cave V. Mills, 7 H. & N. 918; Miles v. Furber, L. R. 8 Q. B. 77; Clierry V. Bank, L. R. 3 P. C. 274. ' Behm v. Kennedy, 7 C. B. N. S. 260; Stroble v. Smith, 8 Watts, 380: Miller v. Cresson, 5 W. A: S. 284; Holfmire v. Holcomb, 17 Kas. 378; Lawrence v. Brown, 5 N. Y. 894; Harbin v. Leei, (5 Ala. 899; Car.lin v. Grote, ,4 E. D. Suiitli, 296; Wilkins V. Anderson, 11 Pa. St. 399; Penuall V. Harmau, 7 Barb. 644; Alexander Y. Walter, 8 Gill, 289; Ilearne v. Rog- ers, 9 B. & C. 577; Starr v. Goutell, 17 Md. 341. ^ Eldred v. Ilazlitt, 33 Pa. St. 307; Bank v. Manning, 37 Riwa, 610; Murray v. Sells, 58 Ga. 257; Whedou V. Champlin, 59 Barb. 61. * Males V. Lowenstcin, 10 Ohio St. 512; Reynolds v. Roebuck, 37 Ala. 408; Bennett v. Wade, 1 Dick. 84; Browsoii V. Wiman, 10 Barb. 406; ]\lickle V. Miles, 1 Grant Cas. 320; Stevens v. Hyde, 32 Barb. 171 ; Bel- lamy y. Sabine, 2 Ph. 450; Hanson v. Keating, 4 Hare, 1 ; Bank v. Groves, 12 How. 51; R. R. Co. v. Magnay, 25 Beav. 594; Kinney v. Kitrnan, 2 La«!s. 492; Jenkins v. Simpson, 14 Me. 304; Hancock v. Why bark, 66 Mo. 672: Voorhees v. Earl, 2 Hill, 288; Fay V. Oliver, 20 Vl. 118; Jen- nings V. Gaze, 13-' III. 610; Mason v. Bovet, 1 Denio, 74; Clarkson v. Mit- chell, 3 E. D. Smith, 269; Jewett v 928 The Law of Estoppel. equitable estoppel admits of less mistake or iiiisapprehension than any other, and is a favorable doctrine with all tribunals whenever the circurastances are such as to admit of its application. There- fore, where those who are entitled to avoid a sale, adopt and ratify it, equity will estop them from afterwards setting it aside for reasons which arc too plain for statement.' Where a sale of land is made no one can be permitted to receive both the money and the land. Thus, if cestuis que trustent have given releases and have taken theii- proportions of the purchase money paid for the estate, did so advisedly, with full knowledge of the facts, when free from all constraint resulting from their relation to the trustee, and if they were at the time not subject to any disability, then they must be deemed to have consented to the alienation and to liave confirmed it, and can no longer have any right to complain of or impeach it as a breach of trust. They certainly cannot be entitled to have both the estate and the purchase money into which it was converted.^ This principle is applicable even if the vendor possessed no title at the time of the sale, the estoppel would operate upon a title subsequently acquired, § 801. Equitable estoppels of this character applj^ to infants as well as adults, to insolvent trustees and guardians, as well as to persons acting for themselves, and have place as well where the proceeds arise from a sale by authority of law, as where they spring from the act of the party.' The receipt of the purchase money is an affirmance of the sale wiiether it were void or only voidable.'' Thus, where a husband and wife w'ere seized of an Petit, 4 Mich. 508; Kimbiili v. Cim- man, 18 Pa. St. 343; Winn v. Brown, ningliam, 4 Mass. 504, McGuive v. 14 La. An. 642; Porter v. Curry, 50 Callaliau, 10 Ind. 128; Blackensloss v. 111. 319; Smith v. Warden, 19 Pa. St. Slahler, 33 Pa. St. 251, Meysenburg 424, Reed v. Leups, 38 Wis. 302; V. Schliefer, 48 Mo'. 426; See Post, Ch. Kelly v. Stanberry, 13 Ohio. 408; Em- XVII. mous V. Milwaukee, 32 Wis. 434; ' Johnson v. Fritz, 44 Pa. St. 449; Southard v. Perry, 21 Iowa. 488; Pickens v. Yarboroiigh, 30 Ala. 408; Iloffmire v. Holcomb, 17 Kas. 378; Bocock V. Pavey, 8 Ohio S. 270; Swausou v. Tarkinglon, 7 Ileisk. 612; Stale V. Stanly, 14 Ind. 409, Morris v. Hamilton v. Bank, 22 Iowa, 303; Wil- Stewart, 14 Ind. 334; Merritlv. llornc, lianis v. Gideon, 7 Heisk. 07; Bell v. 5 Ohio, 307; Tuhler v. Wiseman, 2 Craig, 52 Ala. 215. Ohio St. 207; Buckingham v. llanua, " Post v. Post, 13 R. 1. 495. 2 Ohio St. 551 ; Stroble v. Smith, 8 » Dalton v. Rust, 22 Tex. 133. Walts, 280; Commonwealth v. Shu- -Tavid v. Roberts, 50 N.T. 232; Bod- Estoppel in Pais. 929 estate by entireties, the husband, by will, directed the land to be sold, and the proceeds divided amongst his children, and died leaving a wife and a number of children ; having named no one to make the sale, the land was sold under an order of court, and bought by two of the children, at the request of the widow, who received her share of the proceeds, in accordance with the will. After her death, in ejectment for the land by the heirs, lidd^ they were estopped. If she were innocent of her rights, she would be estopped upon the principle that, where one of two innocent per- sons must suffer, it shall be he who caused the injury. § 802. One who encourages another to purchase land, and spend money on it, cannot set up a better title in himself to defeat the purchaser. Silence alone will not postpone unless it is a fraud, but positive encouragement without fraudulent intent will bar the assertion of a right. It makes no difference, if the defect in the title might have been discovered by the purchaser, he has been put off his guard, and a party cannot have the price of the land, and the land itself. The acceptance by the widow and heirs, was an afffrmatiou of the sale, whether it was void or voidable.' And where a court decrees the sale of an adult's lands, and he assents to it, he is estopped.^ It makes no ditference in the application of this principle, whether the proceedings under which the sale occurs are voidaljle or wholly void, in consequence of the want of jurisdiction.^ The design and utilitj' of the estop- pel is to prevent the gross injnstice that must necessarily arise, where a man accepts all the benefits from an act that it is capable of conferring, and then sets it aside to the injury of third persons. § 803. A defendant in an execution is estopped from ques- tioning the validity of the writ or judgment by allowing the pur- chaser to make payments to the sheriff in satisfaction of the judgment debt." A defendant who has notice that his property inc V. Killecn, 53 JST. Y. 98; Regina - Lange's Appeal, 53 Pa. St. 38:3; V. Sliropshiie, &c. Co., L. R. 8 Q. B. Thomas^ v. Poole, 19 S. C. 323; O'Dcll 420; Waldion v. Sloper, 1 Drew, 193; v. Rogers, 44 Wis. 126. Rice V. Rice, 2 Drew, 78; R. R. Co. =• Spragg y. Schriever, 25 Pa. St. V. Chamberlain, 84 111. 333. 282; Menitt v. Houe, 5 Objo St. 307; ' Ma!)le v. Kiissart, 53 Pa. St. 348; Tlioma.s v. Poole, 19 S. C. 323. Stone V. Britton, 22 Ala. 543; Me- « Mitchell v. FreecUy, 10 Pa. St. 193; couch V. Lougherj--, 12 Phila. 416; Ciowell v. Meconky, 5 Pa. St. 168; Place, in re, 1 Redf. 276. Vol. I. -59 930 The Law of Estoppel. is about to be sold hy the officers of the law for tlie payment of his debts, and who makes no objection until an innocent pur- chaser has paid the purchase money and received a deed duly acknowledged, is estopixjd from objecting afterwards. Even if the judgment on which it was sold was paid, the payment cannot be set up against such a purchaser.' So a creditor who levies on an equity of redemption, and has the amount of the incum- brance allowed in his favor in the appraisal of the interest set off to him, can not set up the invalidity of the incumbrance.''^ Where parties have admitted and acted ujx)n instruments, they are estop- ped from denying them, unless the admissions were made by mistake or procured by fraud.' Where the grantor of land passed it by deed to A., and after the death of the grantor his heirs recognized the deed and contirmed it upon the death of the grantee the property descends to his heirs. One who is cognizant of all these transmissions and assented to them, cannot go behijid these links of title to dispute them. A party ought not to be heard to contradict and falsify his own solemn admissions and declarations made before judicial tribunals. When an ancestor has acquiesced in acts so as to conclude her, her heirs are likewise concluded.* § 804. Where money is borrowed to make a purchase, and title taken in the name of the lender of the money to secure his advances, he is estopped from pleading illegality of the purchase, so as to retain the property.^ So where one, who has purchased at a sale of land, promised the owner to re-convey to him on being repaid, at any time when the latter should require, averring that he had purchased merely to save them for the family, such pur- chaser is estopped from claiming the lands. This doctrine applies in all cases where a party attempts, on the faith of benehting another, to obtain an undue advantage by lulling such party into Austin V. Loriiig, 63 Mo. 19, Van- » Anthony v. Ray, 28 Mo. 109; Fiir- ness V. Vauness, 1 N. J. E. 248. Icy v. Farley, 14 Ind. 391; BuUiott v. » Dcau V. Connel}-, G Pa. St. 239; Robinson, 13 La. Ann. 529. Slagel V. Murdock.GiJ Mo. 022; Holmes * Porter v. Hill, 30 Tex. 529. V. Steele, 28 N. J. E. 173; Crawford ^ McMicken v. Pernu, 18 How, 507; V. Ginn, 35 Iowa, 543; Hereford v. Sharp v. 'laylor, 2 Phill. Ch. 801; Bank, 53 Mo. 330; City v. VViliey, 35 Tenant v. Eliiolt, 1 B. & P. 3; Mc- Iowa, 323. BliLir v. Gibbs, 17 How. 232. '■' Canal Co. v. Bouneil, 40 Conn. Estoppel in Pais. 931 a state of quiescence ; and there are no more forcible instances of it than in those cases where a party prevents competition at a judicial sale, by representing that he is purchasing for the bcnelit of the debtor, or that he will allow him to redeem under favorable circumstances, where the right of redemption has expired at the time of the sale. The principle which controls such transactions as these, is, that wherever the relation of debtor and creditor exists, and real estate is either conveyed by the debtor himself, or by him procured to be conveyed, or by previous agreement with him bid off by the creditor or any one apparently acting in the interest of the debtor, at a judicial or other public sale, under an agreement to hold the same as security for an indebtedness, the relation of mortgagor and mortgagee is created, and the agree- ment, although in parol will be carried out and enforced by all courts. Such a parol agreement is not within the statute of frauds, as it would be a fraud if it were not sustained.' So, where A. gives his note to B. for property bought of C, he is estopped from setting up as a defense to a suit on the note that the note really belongs to C, and is fraudulent as against the latter's cred- itors.^ Where a party received money of a person legally intrusted with it and interested in it, and contracted to deposit it to the credit of such person^ he is estopped, in a suit for such recovery, from setting up as a defense the rights of some third person with whom he had no contract.^ Wliere a party is bound to pay a sum of money u])on the happening of a particular event, his preventing the l.'appening of that event operates as an estop- ' Rogers V. Johnson, 70 Pa. St. 224; Appeal, 66 Pa. St. 237; Danzeiscu's Dikeman v. Norrie, 36 Cal. 94; Appeal, 73 Pa. St. 65; Stewart v. Shrader v. Banker, 65 Barb. 608; Brown, 2 S. & R. 461; Brown v. Dy- Sheriff v. Neal, 6 Watts, 540; Boyn- singer, 1 Rawle, 413; McKennan v. ton V. Houster, 73 Pa. St. 453; Alorey Puey, 6 Watts, 137; Seylar v. Carson, V. Herrick, 18 Pa. St. 128; Plumer v. 69 Pa. St. 81; Kullum v. Smith, 33 Reed, 38 Pa. St. 46; Cook V. Cook, 69 Pa. St. 158; Harris v. Connor, 10 Pa. St. 44; Hoffman v. Strohecker, 7 Watts, 313; and see Herman Real Es- Watts, 86; Gilbert v. Hoffman, 2 tate, Mort's Vol. 1, §§ 161, 162 et. Watts, 67; SmuU v. Jones, 1 W. & S. seq., and Herman on Executions, § 138; Jackson v. Somerville, 18 Pa. St. 346. 369; Martin v. Gernaudt, 19 Pa. St. '^ Stevens v. Songer, 14 Ind. 342. 124; Beegle v. Wentz, 55 Pa. St. 369; ^ Sinclair v. Murphy, 14 Mich. 392; Heath's Appeal, 100 Pa. St. 1; Sweetz- LarahcitGon v Van Boskerck, 4 Hun, er's Appeal, 71 Pa. St. 264: Seclirisfs 628. 032 The Law of Estoppel. pel.' An iigreemeiit to cancel and release mntnal claims, or dis- cuntinuc mutual suits, is a mutual accord and satisfaction, and either party may rely on it as an estoppel against the prosecution of the suit or claim by the other. Every person is considered to be acquainted with the law, both civil and criminal, and no one can, therefore, complain of the misrepresentations of another respecting it." Ignorance of the law, with knowledge of the fact, is no defense ; ignorance of ones legal rights does not take the case out of the rule, when the circumstances would otherwise create an equitable bar to the legal title. A party's ignorance of the truth of a representation wdll not prevent an estoppel, if his ignorance is* the result of gross negligence.' A judgment debtor who has mingled with goods levied on by the sheriff, other goods of the same description, and refuses to designate them to the slieriff, will be esto])ped from a recovery against the sherill for seizing those with the rest.* . § 805. The declarations on the part of an inventor that he did not intend to take out a patent, but to let the public have his invention, -will estop such party, or any one holding under him, from asserting his right against a jDcrson acting on the faith of his representations.^ Where one has advertised a patented article as one of the most useful of inventions, and one which has super- seded all similar articles, and has also sold such articles for use, such person is estopped, in an action ngainst him for an infringe- ment of the patent, from denying the utility of the invention.' An inventor can have but one single valid patent for his inven- tion. The iirst he obtains, while it is unrepealed, is an estoppel to an}- future patent for the same invention.'' A grant of a sub- 1 Bleekcr v. Bond, 3 Wash. C. C. " Roth v. Wells, 29 N. Y. 471; Diin- 529; Cape Fear Co. V. Wilcox, 7 Jones lop v. Patterson, 5 Cow. 243; Dows L. 481; Parker Co. v. O'lleni, 8 Md. v. Moorewood, 10 Barb. 183; Wendell 197. V. Van Rensselaer, 1 Johns. Ch. 144; •^ Piatt V. Scott, 6 Blackford, 389. Smith v. Hill, 22 Barb. 656; Hart v. 3 Svveezey v. Collins, 40 Iowa, 540; Ten Eyck, 2 Johns. Ch. 62. St. Louis V. Barker, 6 John. Ch. 16G; * Pitt v. Hall, 2 Blatchf. 229; Mc- Dyer v. Dyer, 2 Ch. Cas. 108; Ilobbs Corniick v. Seymour, 2 Blatcli. 240. V. Norton, 1 Veru. 136; Ilunsden v. « Stanley v. Whipple, 2 McLean, Cheyney, 3 Vern. 150; Teasdale v. 35. Tea.sdale, Select Cas. Ch. 59; Savage ' Odiorne v. Amesburg Factory, 3 V. Foster, 9 3Id. 35; Wendell v. Van Mason, 28. Rensselaer, 1 Johns. Ch. 354. Estoppel iisr Pais. 9-Vd sequent patent for an invention, is an estoppel to the patentee to set up any prior grant for the same invention, which is incon- sistent with the terms of the last grant/ Altliongh a patent may not be valid as between the owners and the general public, yet if the owner or patentee lias sold and conveyed it, he is estopped by his implied warranty from asserting that it is invalid. The prin- ciple that every vendor of personal property impliedly warrants that he has title to and right to sell what he assumes to sell, which in effect is embodied in his undertaking to selP applies to a patent right, for wdioever assumes to sell the patent assumes to sell that property, and assumes that he had it to sell. After sell- ing a patent right it would be unjust to allow the vendor to say that he neither had the patent, nor sold it, nor can he be allowed to derogate from his own grant by alleging that no title passed.' § 806. Where parties to an executory contract agree upon a third person to determine w^hether work done, goods sold, or that such third person's certificate should be a pre-requisite to payment being made ; the decision of the latter is in the nature of an award, and is conclusive upon the parties." Thus, where a build- ing contract provided that payments should be made on the cer- tificate of the architect, who is required by the contract, among other things, to certify tJiat all the work of the parties employed by the contractor, had been paid ; his certificate was conclusive of the rights of all parties concerned, unless it can be shown that it was obtained by fraud or collusion.^ And it is held, that such third person cannot effect its conclusiveness, after he makes his final certificate by any statement as to his intentions in making ' Barrett v. Hall, 1 Masou, 447. v. Lynch, 10 111. 521; Eastou v. Cuna ^DeFreese v. Truinper, 1 Johns. Co., 13 Ohio, 79; Mitchell v. Kav- 274; Coolidge v. Brigham, 1 Met. anagh, 38 Iowa, 286; Nofsinger v. 547; Hcermance v. Vernoy, C Johns. Ring, 71 Mo. 149; S. C, 36 Am. R. 456; 5; Haunon v. Ricliardsou, 48 Vt. Mercer v. Dougherty, 8 B. Mon. 476; 508. Mesner v. Bank, 23 Pa. St. 291 ; Kee- 3 Fauks V. Kamp, 17 Blatch. 432; ble v. Black, 4 Tex. 69; Barker v. Post, Ch. XVI; Chambers V. Crichley, Belknap, 27 Vt. 700; Herrick v. Bel- 33 Beav. 374. " knap, 27 Vt. 673; Vanderwerlier v. 4 Robbius V. Clark, 129 Mass. 145; R. R., 27 Vt. 130; Miller v. Florer, 19 Weeks v. Little, 47 N. Y. Super. Ct. Ohio St. 356; Hobartv. Beers, 26 Kans. 1; Green v. .lackson, 68 Ga. 2.")0; De 3-29; Sweeny v. U. S., 109 U. S. 618; Worms V. Jlellier, 16 L. R. Eq. 554; Fletcher v. R. R. Co., 19 F. R. 731. IMcAvay v. Long, 13 111. 147; Board ^ Dingley v. Green, 54 Cal. 333. 934 The Law of Estoppel. it.' So where a builder agreed to furnish materials, and erect a house according to certain plans and specifications, for a certain sum ; the materials and work to be approved by a specified architect. On the order of the architect he did extra work which increased the expense. lie rendered to the owner a written statement of the extras, to which the owner made no objection. Other extras were added on like order. The ijuilder was not per- mitted to recover of the owner for any of the extras.'^ In this case the agent exceeded his authority, which was to certify to the materials and work put into the building and not to change the work or order extras ; it does not appear whether the architect certified to the extra work or not. So where a party contracted with a city to do certain work at prices to be classified by tiie engineer in charge stating them ; in addition to other prices at the engineer's disci'etion, the award of the engineer was held bind- ing on the party. ^ So, the certificate of the register of deeds as to the time when an instrument was received and recorded is conclusive as between grantees, mortgagees and subsequent cred- itors.* § 807. So, where persons contract to erect a building for another, and know that their employer understands that they are undertaking the job at a fixed price which they have given him as their estimate of what the building would cost, they will be estopped from asserting, after they have completed the work without undeceiving their employer, that there was no fixed price between them, and from claiming that they are entitled to the market vnlnc thereof.* And where parties employ their contractor to superintend the erection of the building, no bad conduct on his part being averred, they cannot object that it is against public policy that lie should occupy the two situations, and that therefore the last contract is void." So, where the owner in settling with the contractors, goes with his architect to the building for the express purpose of examining the work and ascertaining whether it is in accordance with the contract or not, > Weeks v. Little, 47 N. Y. Super. * Ames v. Phelps, 18 Pick. 314; Ct. 1. Tracy v. Jenks, 15 Pick. 465. * Starkweather v. Goodman, 48 ^ Davis v. Bush, 28 Mich. 432. Coun. 101; S. C, 40 Am. R. 152. « Shaw v. Auclrews, 9 Cal. 351. 3 Green v. Jackson, 66 Ga. 250. Estoppel in Pais. 935 and they both agree and state that it is, they are estopped in an action for the recovery for the contract price, to allege that it is not performed in accordance with the terms of the contract.' So, where both parties to a contract select the architect, and the work is done under his supervision, the owner of the build- ing will not be permitted to urge defects in the work. His decis- ion is final and conclusive in the absence of fraud or mistake." So, where in a contract for the construction of a railroad there is a stipulation that the company's engineer shall be the sole judge of all the work done, and of all variation in it from change of plans ; the contractor is bound to abide by his decision in all cases in which he can freely exercise his judgment.' And where A. sold B. a crib of corn, at a certain price per bushel, and it was agreed that the quantity should be left to the opinion of C. Avith- out measurement, and A. took the corn at the measurement and used it : llelcl^ that in the absence of fraud the estimate was conclusive." § 808. Where, in a written contract for the erection of a house, a question arose whether certain work was extra work, and the question was submitted to the architect, who decided that such was extra work, the owner is, by such submission, estop- ped from afterward denying that it was extra work.^ Where a district township has exercised jurisdiction over certain sections claimed by another district, by collecting taxes tiierefrom and providing schools for the children resident therein for several years, during a portion of which time the other district has refused admission to its schools for scholars residing on the sec- tion thus in dispute, and has made no claim thereto, the latter district will be estopped from afterwards asserting its claim to the disputed territory." Thus, wdiere for many years, A.'s prop- erty had been listed in the town of C, and the taxes regularly ' Cook V. Smith, 54 Iowa, 636. Bank, 23 Pa. St. 291; Keeble v. Black, " Lull V. Korf, 34 111. 220. 4 Tex. 69; Barker v. Belknap, 27 Vt. 3 Vanderworker v. K. R. Co., 27 700; Herrick v. Belknap, 27 Vt. Vt. 130; Fletcher v. R. R. Co., 19 F. 673; Vanderwerker v. R. R. Co., 27 R. 731. Vt. 130; Miller v. Florer, 19 Ohio St. * Keeble v. Black, 4 Tex. 69. 356. . ^ Stewart v. Keteltas, 86 N. Y. 388; ■ ^ School Dist. v. Hobson, 25 Iowa, S. C, 9 Bosw. 261; Mercer v. 275. Dougherty, 3 B. Mon. 446; Messner v. 936 Tjie Law of Estoppel. paid b}' liiiii witliont objection. Subsequently, liis son, acting as liis agent, with his knowledge and consent, listed the property in the same town. A. brought an action to recover the taxes, on the ground that the property was illegally assessed, and it was lield that his conduct estopped him.* § 809. The United States having treated one as a collector, under a special act, during a certain period, was held to be estopped from denying his right to tiie compensation provided by the act." So, where a man has cohabited with a woman, and treated her in the face of the Avorld as liis wife, he cannot deny this and claim to be her servant, in respect to her lands, which are talcjen in execution against liim ;^ and he cannot object to a creditor who supplied her with goods during the cohabitation, that she was not his wife.'' The levy and sale of land by a sheriff, was left in doubt as to its extent by the terms of the deed ; and L., the purchaser, declared that a certain island and other land was not included ; these were afterwards purchased by S. If S. pur- chased in consequence of L.'s declaration, he and those taking from him by a deed subsequent, would be concluded.^ § 810. It has been held in numerous cases, that in the action for use and occupation, the possession of the defendant by the plainrilf's permission being made out, the former will not in gen- eral be allowed to dispute his landlord's title. A receiptor of property to the sherill" who has taken it in execution, is estopped to question the slieritFs title, though he have suffered it to re- main with another bv whom it is eloigned. ° As between the ' Ives v.Xorlli Canaan, 33 Conn. 400. Eleven v. Freer, 10 Cal. 172; Dres- 2 U. S. V. Collier, 3 Bl. C. C. 325. bach v. :\nnais, 45 Cal. 323; Smith » Divell V. Lciidbetter, 4 Pick. 230. v. Cudworlh, 24 Pick. 136; Burs- ■» Jennings v. Whittaker, 4 Monroe, ley v. Ilamiltou, 15 Pick. 40; Dewey 50; Ponder v. Ingraliam, 4 Fla. 83; v. Field, 4 Met. 381; Heed v. Reed, Johnston v. Allen, 80 How. Pr. 506; 13 Iowa, 5 ; Drewe v. Lawrence, Case V. Farrer, 13 Minn. 89; Watson 40 Me. 261; Burton v. Emerson, 4 V. Threkeld, 3 Esp. 037; Monroe v. Greene (la.) 393; Gaff v. Harding, 66 DeCliarmant,4 Camp. 315; Blades v. 111. 01; Bullard v. Ilaskeil, 35 Mich. Free, 9 B. & C. 167: Robin.sou v. 132; Dezell v. Odell, 3 Hill, 315; Mahau, 1 Camp. 245: Ryan v: Sams, Single v. Barnard, 29 Wis. 403; Lewia 13 A. &E. (N. S.)400. v. Weber. 110 Mass. 450; Drew v. ^ Schwartz v. ;M()ore, 5 S. & R. 357. Livermore, 40 Me. 300; Perry v. Wil- « Phillips v. Hall, 8 Wend. 610; liams, 39 Wis. 339; Cornell v. Dakic, Estoppel iisr Pais. - 937 receiptor and the officer, in an action by the hitter on the receipt, where the receipt admits the goods to be the defendant's or to have been attached as his, the bailee is estopped by the receipt from setting up property in himself. If the officer has wrong- fiill}^ attached the goods of a third person, as the property of the debtor, and has bailed them, the bailee may, b}'- a delivery of them to the true owner, protect himself ; for by such redelivery the officer will be discharged from any liability for the goods to the creditor and debtor and the real owner.' Where one was present when a le^y is made by an officer, and does not deny the right of the officer to make the levy, but furnished a list of the property to be levied on, takes an active part and assists the offi- cer, advises bystanders to bid and disapproves another's forbid- ding the sale ; although it may appear that such conduct is will- ful and fraudulent, for the purpose of deceiving the officer, the party so conducting himself is estopped from afterwards alleg- ing the officer to be a trespasser. An execution defendant, who sees his propertj^ sold to satisfy a judgment against him, who knows of defects in the execution of the writ, and raises no ob- jection at the time, cannot after the sale to an innocent pur- chaser for value, without notice raise any objection to his title. ^ Standing by and seeing one's property sold at an execution sale on a writ against another, estops the party from setting up his title as against the purchaser/ Again : the plaintiff in posses- sion of land, was hired by the defendant to depasture his cattle on the land. In assumpsit for the price, the defendant was liolden concluded, and could not with a view to invalidate the 8b K Y. 253; Acker v. Burrall, 21 300; Shnmway v. Carpenter, 13 Allen, Wend. 60o; Morrison v. Blodgett, 68; Lewis v. Webber, 116 ]Mass. 450; « N. H. 288; People v. Reeder, 25 Russell v. Wiuue, 37 N. Y. 591. N. Y. 302; Terry v. Allis, 20 Wis. 82; '' Austin v. Loriug, 03 ]Mo. 19. Johns V. Cbiacb, 12 Pick. 557; Robin- ^ Epley v. Witherow, 7 Watts, 103; son V. Mansfield, 18 Pick. 139; Sawyer Carr v. Wallace, 7 Watts, 394; V. Mason. 19 Me. 49; Boom Co. v. Ammonett v. Young, 14 La. Ann. Wilkms, 27 Me. 345; Barron v. 461: Smith v. Taylor, 14 La. Ann. Cobleigh, 11 N. H. 557. 603; Moore v. Bowman, 47 N. H. 214; ' Learned v. Bryant, 13 Mass. 224; Allen V. Wurston, 1 Rand. 65; Mc- Dewey v. Field, 4 Met. 883; Fisher Donald v. Liudall, 3 Rawle. 492; Bartlett, 8 Me. 123: Burt v. Perkins, Austin v. Loriug, 63 Mo. 19; Lay v. 9 (Jray, 817; Hayes v. Kyle, 8 Allen. Neville, 25 Cal. 545. 938 The Law of Estoppel. contract, sliow tlie land to bo his own and not the plaintiff's.' A person whose land has been sold on judicial process cannot be heard to impeach his title.' § 811. A party is usually concluded by admissions or con- duct upon which others have been induced to act ; and where, if he were permitted to prove that such admissions or conduct were false, such permission would operate as an injury to the persons who M'ere misled by them. Such admissions and conduct, although they cannot operate as a technical estoppel, which can be by deed or record only, operate by way of an estoppel in pais. The party shall be estopped, where his intent was to influence the other, or derive a credit or advantage to himself.' Thus, where one of several defendants had a good cause of defense, and by the fraudulent device of the plaintiff was prevented fi-om making it and also from making his motion within the time allowed by law to set aside the judgment, for mistake, inadvert- ence, surprise, or excusable neglect. The plaintiff and his ad- ministrator were estopped from enforcing his judgment against such defendant, and especially in the case where the plaintiff did not attempt to enforce it, but repeatedly asserted to such defend- ant that it was satisfied and released,* A party who pledges to another goods that he does not own, and at the same time makes a delivery of them, is estopped fi-om setting up a title to the goods subsequently acquired during the existence of the pledge, and the pledgee may recover possession of them as against him ' Eastman v. Tuttle, 1 Cowen, 248. Hoisk. 28; Jolmson v. Bylcr, 38 Tex. 2 Plummer v. Lane, 4 H. & McH. 72. 606; Shade v. Bessinger. 3 Neb. 140; 'Hunley v. Hunley, 15 Ala. 91; White v. Walker. 31 111.422; Eaton Gamble V. Gamble. 15 Ala. 966; Calliu v. Winne, 20 Mich. 156; Thornc v. V. Grote, 4 E. D. Smith, 296; Grooms Mosher, 20 K J. E. 257; Laskl v. V. Rust, 27 Tex. 231; Reeves v. Goldman, 18 La. Ann. 294; Whitacre Matthews, 17 Ga. 449; Carter v. v. Culver, 8 Minn. 133; Smith v. Mc- Darby, 15 Ala. G96: Wilson v. Kelly, Xeal, 68 Pa. St. 164; Tuffts v. Ilnycs, 81 Pa. St. 414; Cameron v. Mont- 5 N. H. 452; Kingslcy v. Yernou, 4 goraery, 13 S. & R. 128; Clarke v. Sand. 361; Young v. Foute, 43 111. 33; McAnulty, 3 S. & R. 364; Sleek v. Ray v. Bell, 24 111. 444; Kohn v. King. 3 Pa. St. 211; Marks v. Swear- :\Iarsh, 3 Rob. (La.) 481; Hawley v. inger, 3 Pa. St. 454; Carothers v. Griswold, 42 Barb. 18. Cummings, 63 Pa. St. 199; Canal Co. * Smith v. Cramer, 39 Iowa, 413; V. Loftus, 71 Pa. St. 418; Moser v. Johnson v. Unversaw, 28 Ind. 435; Krciirh, 49 111. 84 ; Rice v. Crow, 6 Stone v. Lamon, 28 Ind. 97. Estoppel in Pais. 939 or any other party possessed without right.' But if the transac- tion occurs in the presence of the owner both are estopped.'' § 812. The class of solemn admissions whicli by law are characterized and have the force of estoppels, are generally, all agreements of counsel, which necessarily dispense with the legal proof of the facts admitted. Thus, if a material allegation, well pleaded, is admitted by the adverse party, it matters not whether it be by pleading some other matter or demurring at law it is conclusively admitted.' A party cannot contradict by parol evi- deuce what the pleadings themselves admit in the very cause on trial. Nor can the jury find contrary to those admissions which are made at the trial ; they are conclusive against the party mak- ing them.'' So is a stipulation by an attorney on record to admit certain facts on trial of the cause.* A solemn admission under oath, whether made in a pleading or in a deposition in a suit where the deponent is not a party, is an estoppel.* The court will determine whether the language or conduct of a party, or his counsel, amounts to a waiver or estoppel, as a matter of law.' ' Goldstein v. Hart, 30 Cal. 372. = Bird V. Benton, 2 Dev. L. 179; Govenor v. Freeman, 4 Dev. L. 473; Hil)bard v. Stewart, 1 Hilt. 207; Hugan V. Brooklyn, 52 N. Y. 283. ^ Jones V. Brown, 1 Bing. N. C. 484: Jack v. Martin, 13 Wend. 316; Young V. Wright, 2 Campb. 139; Briggs V. Dorr, 19 Johns. 95 ; Raym- ond V. Wheeler, 9 Cow. 295; Wilson V. Turner, 1 Taunt. 398; De Gaillon V. L'Aigle, 1 B. & P. 368; Pearl v. Wellman, 8 111. 311; Seymour v. Sey- mour, 56 Wis. 314 ; Prouse v. Shipping Co., 13 Moo. P. C. 484; Bouchard v. Dias, 3 Denio, 243; Simmons v. Jen- kins, 76 III. 482; Hotchkiss v. Hunt, 56 Me. 252; Ross v. Shurtleff, 55 Vt. 177; Dana v. Bryant, 6 111. 104; Camp- bell V. Mayhugh, 15 B. ]\Ion. 145. * Vandervoort v. Smith, 3 Campb. 155; Lippincott v. Ridgway, 11 N. J. E. 52G; Benson v. Ela, 35 N. H. 403; Jackson v. Holland, 14 Fla. 384 ; Mc- Gee V. Smith, 3 N. J. L. 463; Bloss v. Plymale, 3 W. Va. 393. 5 Alton V. Gilmanton, 2 N. H. 530; Langley v. Oxley, 1 M. & W. 508; Herbert v. Ale.xander, 3 Call. 499; El- ton V. Larkins, 1 M. & R. 196; Daniel V. Ray, 1 Hill (S. C.)33; Wilson v. Spring. 64 111. 18; Doe v. Bird, 7 C. & P. 6; Lacoste v. Robart, 11 La. An. 33; Marshall v. Cliffs, 4 Camp. 133; Smith V. Mulliken, 3 Minn. 319; Pike V. Emerson, 5 N. H. 393; Talbot v. McGee, 4 Mon. 377; Burbank v. Ins. Co., 24 N. H. 550; Pierce v. Perkins, 2 Dev. Eq. 250; Smith v. Hollister, 33 Vt. 695; Smith v. Bossard, 3 Mc. Ch. 406; Lewis v. Sumner, 13 Met. 369; Hoet V. Squire, 1 R. & M. 382; Mil- ward V. Temple, 4 Camp. 133; Mc- Adams v. Hawes, 9 Bush, 15 ; Blight V. Banks, 6 Mon. 193. « McEwen v. Jenks, 6 Lea, 389. ' Manning v. Cogan, 49 N. 11. 331. 943 TiiK Law of Estoppel. Armstrong v. Fahnstock, 19 3Id. 58; Brantley v. Kee, 5 Jones Eq. 333; Willes V. Kane, 3 Grant Cas. 60; Stnyvesant v. Gusseler, 13 xVbb. Pr. N. S. 6; Loveladj' v. Davis, 33 Miss. 577; Morton v. Outlaud, 18 Ohio St. 383. ■I Goldthwait v. Bradford, 36 Ind. 149; Jermain v. Langdon, 8 Paige, 41; Benson v. Ela, 35 N. H. 402; Wood V. Mather, 38 Barb. 473; Kingsbury v. Buchanan, 11 Iowa, 387. 944 The Law of Estoppel. fact existing at the comiiienceraent of liis action, lie cannot in a subsequent action, in which the point of issue is the same, avail liimself of it.' All representations, averments and allegations in pleadings, made by the parties, are conclusive ; that is, they are estoi)ped to aver to the contrarj- ; as, for example, a plea of ten- der estops the party to deny indebtedness in the sum named in the plea.' § 818. The questions which usually arise with respect to admissions in pleadings relate to tiieir elfect in the same suit, and it may be stated broadly that whenever a material a?erment, well pleaded, is passed over b}' the adverse party witliout denial, whether it be by pleading in confession and avoidance, or by traversing some other matter, or by demurring in law, or by suf- fering judgment to go by default, it is thereby for the purpose of pleading, if not for the purpose of trial before the jury, con- clusively admitted.' So, any confession or admission made in pleading in a court of record, whether it be express or implied from pleading over without traverse, will forever preclude the party from afterward contesting the same fact in any subsequent suit with his adversary. The admissions made by either of the parties, whether in direct terms or by failure to traverse material allegations when called upon to do so, are as conclusive and as available, as a bar, as if they were proved by M-itnesses. An admission, by way of a demurrer to a pleading, is just as conclu- sive in favor of the opposite party as though made ore tenud before a jury. It admits everything that the opposite party would have been compelled to prove in order to sustain the issue, ir it had been traversed.' Omittino- to traverse a material allega- tion so far admits it that the party who thus pleads over cannot > Sullivan v. Mining Co., 89 Cal. 484; Peerless, The, 1 Lush. Adm. 103* 459; Bender v. Belkna*!), 23 La. Ann. Andrews v. lus. Co., 18 lluu, 163; 764. School Dirtetnis v. Hernandez, 31 La. =" Beach v. Jeflrej-, 1 111. App. 283; Ann. lo8; Dahlman v. .Foster, 55 Wis. Fowler v. Stevens, 29 La. Ann. 353; 382; Byrne v. Bank, 31 La. Ann. 81: Willis V. Willis, 59 Tenn. 183. Bank v. Piukors, 83 N. C. 377; Ilen- -' Jones v. Brown, 1 Bing. N. C. shaw v. R(j()t, 60 Ind. 220; Lessing v. 484; De Gaillen v. L'Aigle, 1 B. it P. Cunningham, 55 Te.v. 231. 368; Stephen v. Pell, 2 Dowl. 029; * King v. :Normau, 4 C. B. 884; Grecu T. Hearne, 3 Tr. 301; Prowse Henshaw v. Ront. 60 Ind. 220; Ins. V. Shipping Co., 13 Moo. P. C. R. Co. v. Ins. Co., 97 Pa. St. 15. Estoppel ix Pais. 945 disprove it.' Altliougli a petition is demnri-able, if the defendant confesses and avoids, he waives the defects of the petition." So, pleading over waives a demurrer or plea in abatement."'' So, Avhere a party is sued by a wa-ong name, is served Avith process and fails to plead the misnomer in abatement, the judgment will be conclusive on him.* So a party consenting that an action be referred, is estopped from claiming that the referee lias no juris- diction." So a party may, by going to trial without objecting to a defect of parties, be concluded." § 819. By taking issue on a bad plea, failing to demur, pro- ceeding to trial without taking advantage of defective pleas, amending pleadings after demurrer, pleading the general issuea and other like circumstances, will have the same effect. Thus, a party failing to take advantage of defects or omissions in the pro- ceednigs of an inferior tribunal, is estopped from taking advan- tage thereof in an appellate court.' So in criminal proceedmgs, 1 Bonzi V. Stewart, 4 M. & Gr. 495; Carter v. James, 13 M. & W. 145; Wisener v. Maupin, 58 Tenn. 342. * Bancher v. Gregory, 9 Mo. App. 102; Galvil v. Yv oolen, 66 Ind. 464; Evans v, Lucas, 12 IS. C. 56; Davis v. Hall, 92 111. 95; Pudney v. Buckhardt, 63 Ind. 179. 3Gradle v. HuflEman, 105 111. 148; Butler V. Church, 14 Bush, 540; While V. Gray, 4 III. App. 228; Moran v. Ab- bey, 58 Cal. 163; State v. Sappingtou, 68 Mo. 454; Seymour v. Hubert, 92 Pa. St, 49; Marshall v. Vicksburg, 15 Wall. 146; Beall v. Territory, 1 K Mex. 58; Lane v. R. R. Co., 52 Iowa, 18; Despatch Co. v. W eddies, 1 N. Mex. 58; Thompson v. School Dis- trict, 71 i^Io. 495; R. R. Co. v. Parks, o8 111. 373; Muscatine v. Packet Co., 47 Iowa, 350; Express Co. v. Patter- son, 73 Ind. 430; Stanberry v. Kerr, 6 Col. 28. •* Ins. Co. v. French, 18 How. 404; Deems v. Canal Line, 14 Bl;itr:lif. 474; Guinard v. Heysinger, 15 111. 288; R. R Co. V. Burness, 82 Ind. 8o; State v. Vol. I.— 60 Telephone Co., 3o Ohio St. 29i5 ; Hammond v. People, 33 Hi. 44; Baker V. Bessy, 73 Me. 472; McCreevy v Everdmg, 54 Cal. 168. 5 Elliott V. Lewis, 16 Hun, 581; Cur- tis V. Ja(;kson, 23 Minn. 268; Papkee v. Papkee, 30 Minn. 260; Cross v. L-'vy, 57 Miss. G34. " Yonley v. Thompson, 31 Ark. 399; Carey v. Wheeler, 14 Wis. 281; Jes- sup V. Bank. 14 Wis. 331; Stillwell v. Kellogg, 14 Wis. 461. * Meagher v. Morgan, 3 Kas. 372; Hughes V. Fet'ler, 18 Iowa, 142; Keene v. Mitchell, 13 Mich. 207; Storm V. Worland, 19 Ind. 203; Express Co. V. Pickuey, 29 111. 392; Mooie v. Les- suer, 18 Ala. 606; Clark v. Fensky, 3 Kas. 389; Jones v. Jones, 13 Iowa, 276; St. Johns v. Hardwick. 17 Ind. 180; Joy v. R. R. Co., 17 Ind. 262; Bellv. Bruen, I How. 169; Caldwell v. Bank, 20 Ind. 294, Maynaid v. Freder- ick, 7 Cush. 247; Bank v. Bank, 2 Wall. 252; Walker v. Sauvjnet, 92 U. S. 90: Kim V. Russ-11. VJ Wall 343; Heu- der.on v. Reeves, 6 Blackf 101; 94G The Law of Estoppel. if the party appeai-s generally and pleads not guilty to the com- plaint, he thereby waives objections to matters of form.' The reirnlarity of a ])lea cannot be objected to after a trial on the merits,* and by going to trial or obtaining a continuance a party Vv'aives liis right to security for costs.* So, parties wlu> iire prop- erly brought into court, and fail to make their defenses to actions against them, will be held to liave waived thejn.* So, going to trial before a referee, without requiring an oatli to be adminis- tered, Avaives an objection to the admission of such oath.* So, a party, accepting an amount determined to be due him by a court, waives liis ]-ight of appeal.* Parties consenting to the amend- ment of a judgment are estopped from afterwards objecting thereto.' So, where a party files cross interrogatories, after the commissioner has been apjwinted, and subsequently stipulates as to the manner in which the commission should be returned, can- not deny the authority of the commissioner to take the deposi- tion.* These instances will be sufficient lo show the wide application of the doctrine of estoppel and its effect in judicial proceedings prior to the rendition of a judgment. Other instances are cited of the application, of this doctrine in chapter VI. of this work. § 820. The rule that a party may be estopped by admissions on his pleadings, applies to all the parties to a cause. Thus, u Wboder v. Sedgwick, 94 U. S. 1; 474; Adams v. Miller, 14 III. 71; Sttite Richie v. State, 58 Ind. 355; New- v. McCarthy, 60 Md. 373. comb V. WcMxl, 97 U. S. 581; Kel- * IVIelick v. Bank, 53 Iowa, 94; leran v. Brown, 4 Mass. 443; Johnson Goodwin v. Kency, 49 Conn. 282; V. Jolinsou. 12 Bu.sli, 485; Centre v. Parker v. Terry, 70 Ind. 204; Mc- Gibney, 71 111. 557. Keever v. Jcnks, 59 Iowa, 300; ' State V. Regan, G7 Me. 380. Werthein v. Trust Co., 11 Fed. R. 2 R. R. Co. V. Pearson, 128 Mass. 689; Ins. Co. v. Ins. Co., 97 Pa. St. 445; Huntington v. ]\lendenhall, 73 15. Ind. 460; Reimer v. Doergc, Gl How. ^ Newcomb v. Wood, 97 U. S. 581; Pr. 142. R. R. Co. v. Alfred, 3 111. App. 511; " Shuttleworth v. Dunlop,34 N. J. E. Supervisors v. Ehlers, 45 Wis. 281. 488; Lincoln v. Hancock, 5 Ark. 703 ^ Hamilton County v. Bailey, 13 Adams v. Miller, 12 111. 27; Randolph I^'eb. 50; R. R. Co. v. Chamberlain, V. Emerick, 13 III. 344; Harper v. 84 111. 333; Stewart v. Cross, 56 Ala. Columbus, 35 Ala. 127; R. R. v. 22; Longfellow v. Moore, 102 111. 289. Soutli, 43 111. 176; Mayer v. Tyson, 1 ^ Steckmesser v. Graham, 10 Wis. 37. Bland. 559; Roberts v. Fales, 32 III ** Crowther v. Rowlandson, 27 Cid. 376. Estoppel in Pais. 947 defendant setting up in an answer in a legal proceeding a dis- claimer of title estops him from denying plaintiff's title/ A judicial admission bj a party in one suit with regard to the nature of a contract estops him from introducing evidence in a subsequent suit, to show that the contract was of a different nature.* Where a party gives a reason for his conduct and decision touching any thing involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.' Thus, defendant gave as a reason for neglect to ship cattle, want of cars, and gave evidence to that effect on the trial. Afterwards he claimed that the Sunday Law of West Virginia forbade the shipment of cattle on Sunday ; he was not allowed to raise this point." So, a demand by the plaintiff, and absolute refusal by the defendant, unaccompanied by any intimation that he would ever comply with the demand, precludes the defendant from setting up on the trial, the excuse that he had not reasonable time and opportunity afforded him to comply with the demand before the commencement of the suit;' So, where the ag:ent of the state, who took water under a claim of 'Jordan v. Stevens, 55 Mo. 361; 258; Gold v. Banks, 8 Wend. 567; Greely v. Thomas, 56 Pa. St. 35; Wal- Holbrook v. Wight, 24 Wend. 109; lace V. McMicken, 2 Disney, 564; Everett v. Saltus, 15 Wend. 474; Stribling v. Prettyman, 57 111. 371; Wright v. Reed, 3 T. R. 554; Duffey Wells V. Kane, 2 Grant Gas. 60; Fol- v. 0,Donuovan, 46 N. Y. 223; Winter ger V. Palmer, 35 La. An. 743; Gil- v. Coit, 7 N. Y. 294; Turnbow v. morev. Devliu,4 McArth. 806. Broach, 12 Bush, 455; Beam v. Mc- ^ Devall V. Wattersou, 18 La. Ann. Comber, 35 Mich. 455; Belauger v. 136; Turnbow v. Broach, 12 Busb, Hersey, 90 111. 70; State v. Judges, 34 455; Hooker v. Hubbard, 102 Mass. La. An. 1220; McCarthy v. Eggers.lO 239; Bankv. Northwestern, &c. Co., Ben. 688; Pitts v. Gilliam, 1 Head, 35 Iowa, 224; Wells v. Kane, 2 Grants 549; Smith v. Babcock, 3 Sumn. 584; Cas. 60; Hamilton v. Zimmerman, 5 Bank v. Dimmock, 24 N. J. Eq. 26; Sneed, 39; McQueen v. Gamble, 33 Piper v. Sloauaker, 2 Grants Cas. 113; Mich. 344; Isler v. Harrison, 74 N. C. Marsh v. Mitchell, 20 N. J. Eq. 497; 64; Hart's Appeal, 32 Conn. 520; Head v. Head, 7 Jones L. 620; Bart- Blain v. Patterson, 47 N. H. 523; lett v. Bartlett, 113 Mass. 312. Bond V. Clarke, 6 Allen, 361; Lippin- 4 Railway Co. v. McCarthy, 96 U. cott V. Ridgway, 11 N. J. Eq. 526; S. 258. Jarstadt v. Morgan, 48 Wis. 245. ^ Albee v. Cole, 39 Vt. 319. 3 Railway Co. v. McCarthy, 96 U.S. 948 The Law of Estoppel. pcrniiiiicnt right, thereby iiulnciiio- the plaintiff to bring; his action to try the right to permanent nse, instead of cUiiniing (hunages for the temporary ap])ropriation is estopped to change his ground, and set up a temporary' aj)propriati()n only,' and where A. cove- nanted to sell certain land to Jj., giving him a deed " witli full covenants of warranty." lie thereafterward, by his agent, tendered a deed containing covenants of his lawful seizure in fee simple, and that he would warrant and uefend the title, &c. without rnoi'e and demanded payment. B. looked at the deed, made no objection to it, but handed it back, stating he was not prepared to pay ; he had previously gone into possession under the contract of purchase ; A. then sued him in ejectment. B. was estopped to interpose objections that the covenants in the deed were not sufficient to meet the agreement,'' and after the defend- ant in a libel suit, has admitted tlic publication of the libel, and attempted to justify in his answer, he is estopped from averring an allegation of the libel as declared upon in the complaint to be insufficient.' So an importer l)aving set forth in his written protest the ground of his objection to the payment of custom duties exacted by the collector, can not, in his suit against the collector, recover them upon any other ground than that so set forth." So a defend- ant upon whose statements a plaintiff has relied in suing out an attachment, i^ estopped from denying them to defeat such attach- ment." Parties are bound by their written admissions made in the progress of a cause, and cannot repudiate them at pleasure.' A party who claims the benefits of a deed of trust made by another providing for certain debts, and swears to an answer in which it is insisted that the deed is lo?ia fide and the debts secured, just, is estopped fi'om pleading non est factum to a note which is one of said del)ts. Xo)' v;ill he be allowed to introduce evidence that his name was foi"i>:ed to the note.' MViilralli V. l?e(lfiol(l, 18N.Y. 457; ^ c'ocke v. Kuykendall, 41 Miss. Baxter V. McKinley, 10 Cal. 76. 65; Jarboev. Colvin, 4 Bush, 70. " Gregg V. Van Pliul, 1 Wall. 274. '■ Ehvood v. Laiinon. 27 Md. 200; 3 Hemphill v. ilolley, 4 Miiin. 2o3. Hollcy v. Yoiiug, 68 Me. 215;,Albee < Daviea v. Arthur, 9G U. S. 148. v. Hayden, 25 ]iliim. 267. ' Pitts V. Gilliam, 1 Head, 549. Estoppel in Pais. 949 § 821, A party who has tried his case upon a theory involving the tacit concession of a particular fact, will not be permitted in an appellate court to obtain a reversal of the judgment against him upon a theory involving a denial of that fact.' So a party will not be heard to contradict and go behind the express juris- dictional allegations of his own petition, for the purpose of ousting the appeal of his adversary, who, in good faith, has accepted and acted upon the same.* And where the petitioner sets up and relies upon an express contract, he cannot afterwards rely upon another state of facts, as that the contract was partly express and partly implied.' In suit against an owner for repairs done to a vessel, it appeared at the trial that defendant was a mortgagee out of possession, but as such defense was not set up in his answer, it was held that no question of his liability as such could be considered. He then, at the trial, asked leave to amend his answer and set up this defense. Held, that, having pleaded ownership, and set up an agreement only consistent with owner- ship, and liaving stood by at the trial and applied to amend only after an effort by another owner to prove that the vessel was under charter to a third person had failed, he could not ameud.^ So, the pretended owner of a steamboat who permits services to be i>endered and advances to be made on the boat on his apparent responsibility, cannot afterwards set up for a defense to an action for such services and advances, the fact that he was not the owner.* Thus where proceedings were instituted under a statute to acquire title to lands for a public market. C the owner of lands sought to be acquired, joined in the proceedings, by petition, asking for the appointment of a person named as one of the com- missioners of estimate and assessment, who was appointed. The commissioners duly executed their office, appraising among other lands that of C, who thereupon moved to set aside the order appointing the commissioners, because of the alleged unconstitu- tionality of said act, and of non-compliance by the moVing party with certain statutory conditions. Ileld^ that C, was estopped * Brady v. Seligman, 75 Mo. 31. ^ Belanger v. Hersey, 90 111. 70. » State V. Judges, 34 La. An. 1320. * McCarthy v. Eggers, 10 Ben. 688. * Hailey v. Franks, 18 La. An. 559. 950 The Law of Estoppel. from raising these questions. C. is in this position. He parti- cipjitod as an actor in procuring the order which he now seeks to set aside, and took his chance for a satisfactory vahiation of his property for the purpose contemplated by the act. To that end there was not only acquiescence on his part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have made his election and should be held to it."' § 822. Errors may be avoided or cured by an estoppel, which is an act by whic-h a person is estopped or precluded from either denying, or insisting upon a matter which is inconsistent or repugnant to his former act, which may be by the record, or by deed, or matter in jpais. The effect of an act or admission depends upon the manner and purpose for which it is made. It may be presumptive evidence only of the truth, and liable to be denied or disproved. But if made for the purpose of influencing the conduct, or of deriving a benefit from another, so that it can not be denied without a breach of good faith, the law enforces the rule of good morals as a rule of policy, and precludes the part}' from repudiating his own acts, or denying the truth of his admissions ; and an act or admission of record, or made for the purpose of inducing another or the court to act upon it, or made Tinder the seal of the party, is of such binding eflicacy, that the party is precluded and estopped from denying the act or disjirov- ing the truth of it. The obligation created by an estoppel, not only binds the party making it, but all persons privy to him.^ Though admissions and acts in ])ais may be strong evidence against the party making them, yet they will operate as an estop- pel in favor only of those whose conduct, it may be fairly supposed, they were intended to influence and not to strangers.^ Admissions so made, though made mistakingly in good faith, may yet be made under such circumstances as to operate as an estoppel and preclude the party from gainsaying it.* Thus, if on the trial the party refrains from objecting to incompetent evidence, it is pre- > Cooper, in re, 93 N. Y. 567. 384. "^ Douglas v. Scott, 5 Ohio, 194; '^ Morgan v. Spangler, 14 Ohio St. Conover v. Porter, 14 Ohio St. 450; 102. Jackson «& Co. v. Holland, 14 Fla. * Beardsley v. Foot, 14 Ohio St. 414. Estoppel in Pais. 951 Slimed that he waives the objection to it, and will be estopped fi-oin afterwards claiming it as an error. So, if he obtains an action of the court upon his own motion, he is estopped from claiming it as an error. If by the party's deed he has covenanted not to prosecute error, he is thereby estopped from doing so. So in all other matters b}' which he has induced the opposite party or the court, in the progress of the case, to rely upon or abide by iiis act, promise or doings, or acts inconsistent and repugnant to what he afterwards claims, he will be estopped. The mere silence of counsel on the trial, as omitting an objection to a defect in the testimony, will conclude the client, even in respect to the exist- ence of records, documents, and other testimony of the most important character, on the, familiar principle that a silent con- cession has been acted upon by the other party, or that he has omitted evidence which he would otherwise have produced.' § 823. Erroneous steps taken, or failing to object to the admission of testimony at the time, or the overlooking of an irregularity without excepting thereto by the party who proceeds in the trial of a cause, will as a general rule, prevent him from sub- sequently reverting back to it for the purpose of objecting or taking exceptions to it ; by his omission at the time he waives such irregularity, and, his waiver is conclusive in the cause." ' Miller v. Macklot, 13 Ind. 217; Stamhofski v. Steffens, 79 111. 303; Richie V. State, 58 Ind. 355; Jencks v. Smith, 1 N. y. 90; Bates v. Ball, 73 111. 108; Dickerson v. Turner, 15 Ind. 4; Newton v. Brown, 1 Utah, 287; Holbvook V. Wright, 24 Wend. 169; Menderback v. Hopkins, 8 Johns. 436; Baldwin v. Calkins, 10 Wend. 167; Jackson v. Harrow, 7 Johns. 231; Oakley v. Van Horn, 21 Wend. 303; Fort v. Monroe, 20 Wend. 210; Littiech v. Mitchell, 73 111. 603; Hol- man v. Bachus, 73 Mo. 49; Earnhardt V. Smith, 86 K C. 473; Machine Co. V. Lewis, 10 111. App. 191; McMillan V. R R. Co., 56 Iowa, 41; Affleck v. Snodgrass, 8 Ohio St. 234; Stock Yards v. Himrod, 88 111. 38; Gibbs v. Coonrod, 54 Iowa, 736; Benhara v. Puidy, 48 Wis. 99; Cunningham v. Sopillman, 72 Ind. 62; Bull v. Rowe, 13 S. C. 355; V/ilson v. Sykers, 84 iN:. C. 215; Kinney v. Bauer, 6 111. App. 267; The Elizabeth, Blatch. P. C. 250; Colwell V. Lawrence, 38 Barb. 643; Fcwv. Reynolds, 20 Barb. 275; Col- lins V. Bali, 31 Hun, 187; Harris v. Brown, 93 N.Y. 390; Bank v. Ewing, 21 W. Va. 208; Perkins v. Jones, 62 Iowa, 345; Cragin v. Lovell, 109 U. S. 194. * Darjent v. Yivant, 1 East, 330; Pearson v. Rawlins, 1 East, 77; Higley V. Lant, 3 Mich. 612; Warren V. Glynn, 37 N. H. 343; Belt v. Black- burn, 28 Md. 240; Krull v. Keener, 18 111. 66; Pryce v. Ins. Co., 29 Wis. 274; 952 The Law of Estoppel. Thus, where an instrument is offered in evidence, and the opposite party objects to its reception, and !iame8 one ground of objection which is overruled, and fails to object on the ground that its exe- cution is not proven, lie thereby admits that fact and cannot thci-eafter question it.' The defendants liaving specified their objection, it must be considered that all others were waived, or that there was no ground upon which others could stand." § 824, Where a party had an opportunity to except, and has not excepted, he cannot again bring the matter either before the master (or the court) on circuit or on appeal. The principle is essential to the due and orderly administration of justice, and Trans. Co. v. Wbittaker, 16 Wis. 322; 3Iiniug Co. v. Miiiiug Co., 16 Nev. 64; .Joces v. Van Patlen, 3 Md. 107; Hembergcr v. State, 5 Md. 300; Legner V. State, 8 Md. 490; Jolly v. Draw- bridge Co., 9 Md. 417; Johnson v. Bell, 10 Ind. 63; Coan v. Grimes, 63 Ind. 21; Blackeler v. House, 67 Ind. 414; Goodwin v. Smith, 72 Ind. 113; S. C, 37 Am. R. 144; Kol)in.son v. Snyder, 74 Ind. 110; Backus v. Gulien- tine, 76 Ind. 367; Alcorn v. Morgan, 77 Ind. 184; Lodge v. Johnson, 78 Ind. 110; Ins. Co. V. Ycarick, 78 Ind. 202; Dickson v. Rose, 87 Ind. 103; Wagner V. Jones. 77 N. Y. 590: Fisher v. Wilson, 16 Blatchf. C. C. 220; Parli- man v. Young, 2 Dak. 175; Fountain V. Ware, 56 Ala. 568; Draper v. Springport,15F. R. 328; Cook v. Perry, 43 Mich. 623; Wasson v. Linsler, 83 N. C. 575; State v. To.sney, 26 Minn. 262; Meyer v. Brinkelman, 5 Col. 262; Potter V. Xeal, 62 flow. Pr. 158; Shonp V. State, 70 Ind. 459; Weber v. Dunn, 71 Me. 331; Fry y. Tilton, 14 ^'eb. 450; Bray v. Libhy, 71 Me. 276; Walsh V. Wright, 101 Ili. 171; Wilkins V. Ins. Co., 57 Iowa. 529; Goodgier v. Finn, 10 Mo. App. 226; Botsford v. Botsford. 49 Midi. 29; Fisher v. Neil, 6 F. R. 89; Zane v. Fink, 18 W. Va. 693; Derry v. Ross, 5 Col. 295; Hyde V. Lamberson, 1 Idaho (N. S.) 539; Hayes v. Dayton, 18 Blatchf. 420; Bowen v. R. R., 17 S. C. 572; State v. Rankin, 3 S. C. 448; Burris v. Whit- ner, 3S. C. 512; Powers v. McEachern, 7 S. C. 399; Clement's App., 49 Conn. 520; Hussey v. Allen, 59 Me. 269; Marsh v. Snyder, 14 Neb. 8 ; R. R. v. Redick, 14 Neb. 55; Machine Co. v. Spears, 50 Mich. 534; Clerk v. The Queen, 9 H. L. C. 184; Kreigh v. Sherman, 105 111. 49; McMillan v. Janrcs, l65 111. 194; Kirkpatrick v. Alexander, 60 Ind. 95; Lessing v. Cunningham, 55 Tex. 231: Ins. Co. V. Sorsby. 60 Miss. 302; State v. Lowe, 21 W. Va. 782; Pralt v. Stone, 10 111. App, 683; Hearn v. Shaw, 72 Me. 187; Posey V. Green, 78 Ky. 162; Pugh v. White, 78 Ky. 210; Easter v. Severin, 78 Ind. 540; Warner v. Lockerby, 28 Minn. 28; llurd v. Smith, 5 Col. 233; Mayes v. People, 106 III. 306: State v. Sheard, 35 La. Ann. 543; Montfort v. Rowland, 38 N. J. E. 181; State v. Hicks, 20 S. C. 341 ; Moore v. McKin- ley, 20 S. C. 341; Dickiu-son v. Buskie, 59 Wis. 136. ' Botkin V. Livingstone, 16 Kas. 39; Schwartz v. Ins. Co., 21 Minn. 215. •■' Berks, &c. Co. v. ]\Ieyers, 6 S. & R. 12; R.^R. Co. V. Morgan. 69 HI. 492; Evanston v. Guon, 99 U. S. 660. Estoppel in Pais. 953 must have a place in every well constituted forum. If at law a party pleads to special points, neglecting other points, he acqui- esces in the pleadings of his opponent relating to the points, he does not contest, and so here and so everywhere. If a party appeals he is concluded from considering points not covered by his appeal, and after the appellate judgment is delivered upon the points to which the appeal refers, he is not at liberty after- wards, in a future proceeding in the case, either on circuit or in the appellate court, to claim a consideration of the ground he has passed over and lost. A party who brings up a partial appeal loses every ground of appeal then existing which he neglects and leaves behind him, and cannot afterwards stir the objections lost by his supineness or acquiescence.* Thus, for example, a person arrested on a warrant made no objection to the sufficiency of the affidavit on which the warrant was issued, nor to the regularity of the arrest, but pleaded tlie general issue and went to trial/ He could not, on special appeal, object for the first time to the affidavit, even though no arrest could be founded on it.'^ So, where a party fails to object to the admissibility of papers, deeds, &c., in evidence, he cannot raise the question in the Supreme Court on an appeal, for the first time.^ So the defendant in an 1 Boyce v. Boyce, 6 Eich. Eq. 302; ShuJtz v. Lempert, 55 Tex. 273; Read Hand v. R. R. Co., 17 S. C. 219; Brit- v. Allen, 56 Tex. 182. ton V. Johnson, Dud. Eq. 28; Baddely ^Maxwell v. Deens, 46 Mich. 35; V. Patterson, 78 Ind. 157; Purdy v-. Smith v. Freeman, 71 Ind. 85; Hahn Steel, 1 Idaho (N. S.) 216; Brady v. v. Behrman, 73 Ind. 120 Seligman, 75 Mo. 31; Smith v. Free- ^ Springer v. U. S., 102 U. S. 586; man, 71 Ind. 85; Buckley v. Iron Co., Decker v. House, 30 Kas. 614; Hayes' 77 Mo. 105; Tierman v. Creditors, 62 v. Walker, 90 Ind. 105; State v. Riggs, Cal. 486; Strueven v. Creditors, 62 92 Ind. 336; Storm Lake v. Ry. Co., Cal. 45; Wilson v. Kelly, 19 S. C. 160; 62 Iowa, 218; Manf'g Co. v. Ruggles, State V. Lowe, 21 W. Va. 182; Ilahn 51 ]Mich. 474; Barry v. Schmidt, 37 V. Behrman, 73 Ind. 120; Springer v. Wis. 172; R. R. Co. v. Chester, 63 U. S., 102 U. S. 586: Simmons v. Sim- 111. 235; McCarthy v. Neu, 91 111. 131; mons, 33 Gratt. 451; Derham v. Lee, Wickenkamp v. Wickeukamp, '^7 111. 47 N. Y. Super. 174; Fletcher V. Men- 93; Dowd v. Bank, 59 N. H. 391; ken, 37 Ark. 206; Noel v. Hagerhorst, Sloothoff v. R. R., 32 Hun, 437; Boom 80 Ind. 430; Express Co. v. Smith, 57 Co. v. Boom Co., 110 U. S. 57; Evans Iowa. 242; Treasurer v. Bunhury, 45 v. Shroyer, 22 W. Va. 581; Frcibey Mich. 79; Brown v. Brown, 28 Minn. v. Lome, 61 Tex. 436; Knoxville v. 501; Hinton v. Winsor, 2 Wyom. 206; Bell, 12 Lea,157; Nashville v. Thomp- 954 The Law of Estoppel. attachment suit cannot object for tlic first time in tlie appellate court that no bond was filed liy the plaintiff before the issuing of the writ, or that the affidavit was insufficient.' Questions of irregularity cannot be raised for the first time in the appellate court, after the trial below has proceeded without ol>jection, and the merits of the whole controversy have been passed upon. So, where the jury were taken to view the locus in qxio^ and, on their return, the defendant and counsel on both sides of the case rode in the same sleigh with the jury : Ileld^ that, as plaint- iff made no objection to the defendant's thus riding with the jury at the time when he might have prevented it, he could not be heard to urge it afterwards as a ground for setting aside the ver- dict." So, where the plaintiff asked the Court to instruct the jury upon a point of law not relevant to the issues in the case, he cannot be heard to complain that the court did instruct on that point ; neither can lie be heard to complain that such instructions did not properly state the law. § 825. A waiver is an intentional rellnquisliment of a known right.' Waiver is voluntary and implies an election to dispense with something of value, or forego some advantage which the party waiving it might, at his option, have demanded or insisted upon.* A waiver of an agreement or of a condition, may either be by word of iiioiitli. or it may arise out of such acts and conduct of the party as would naturally and properly give rise to an inference that he intends to waive the agreement or condition. A waiver takes place where a man dispenses with the performance of something which he has a right to exact. A man may do that not only by saying that he dispenses with it, that he excuses the performance, or he ma^'- do it as effectually by conduct which naturally and justly leads the other party to believe that he dispenses with it. There can be no waiver unless so intended by one party and so understood by the other, or one son, 12 Lea, 344; Bulkley v. Iron Co., Brown v. Brown, 28 Minn. 501. 77 Mo. 105 ; Walker v. Owen, 79 Mo. ' Kalm v. JMiller. 60 Iowa, 96. 563. ^ Lewis v. Plioenix, &c. Co., 44 ' Fletcher v. Menken, 37 Ark. 206; Conn. 72. Express Co. v. Smith, 57 Iowa, 242; * Warren v. Crane, 50 Mich. 800. Estoppel ii!f Pais. 955 party has so acted as to mislead tlie other.' There arc many rights given by statute such as a right to plead the statute of limitations, a right to claim a homestead, trial by jury, notice of nonpayment to an indorser, &c., all such rights are known rights, that is, every one is presumed to know the law, and know what his rights are. Such rights may be insisted upon and they will be enforced by' courts ; they may also be waived by the party entitled to the bene- fits thereof, and when waived by such party he will be estopped from setting them up or claiming them,* a party may waive a constitutional aswell as a statutory provision for his benefit as a trial by jury, though that mode is guaranteed to him by the con- stitution. The general rule is, that no contract or agreement can modify a law, but the exception is, that where no principle of public policy is violated, parties are at liberty io forego the protection of the law. Statutory provisions designed for the benefit of individuals, may be waived, but where the enactment is to secure general objects of policy or morals, no consent will render a non- compliance with the statute eifectual, A statute, limiting a time within which action shall be brought, is for the benefit and repose of individuals and not to secure general objects of policy or morals. Its protection niay, therefore, be waived by those who assent in legal form, and when acted upon, such waiver becomes an estoppel to ple-^d the statute. A defendant who has agreed not to set up the statute of limitations, shall not be allowed to do it; such agi-eement, although it does not amount to a new 1 Trotlinger v. R. R. Co., 11 Lea, Mass. 307; Lee v. Tillotson, 24 Wend. 533. 337; Ferguson v. Landrau, 5 Bush, « Embury v Connor, 3 N. Y. 511; 230; Howland v. Sheriff, 5 Sandf. 219; Lyman v. Littleton, 50 N. H. 42; Page Wilson v. Kelly,81 Pa. St. 411; Mayes V. Pendergrait, 2 N. H. 235; State v. v. Jacoby, 8 S. & R. 526; Shank v. Richmond, '36 N. H. 245; Sargent v. Warfel, 14 S. & R. 205; Craig v. Bar- Graham, 2 :>!"• H. 335; Mathewson v. clay, 48 Pa. St. 202; Cooper, in re, 93 P. Work, 44 N. H. 291; Smart v. N. Y. 512; Sterling v. Sterling, 35 R. R. Co., 20 N. H. 233; Flint v. La. Ann. 840; Bank v. Ewiiig, 21 W. Clinton C^-, 12 N. H. 437; Wood v. Va. 208; Harris v. Brown, 93 N. Y. Davis, 34 J-"^. H. 34; King v. Hutchins, 390; Gilmore v. Gilmore, 4 McArth. 26 N. H. 139; McNeil v. Call, 19 N. 806; Folger v. Palmer, 35 La. Ann. H, 403; Shutesbury v. Oxford, 16 743; Collins v. Ball, 31 Hun, 187; Mass. 102; Embden v. Augusta, 12 Perkins v. Jones, 62 Iowa,345; Craigin v. Lovell, 109 U. S. 194. 95G The Law of Estoppel. promise, M'ill operate by way of estoppel, in cases where the stat- ute has not fully run, and the plaintiff forebore to sue in conse- quence of the promise.* § 826. There has been considerable question made in regard to the right of a prisoner to waive his right of trial by J^ny. In a case where the jury was composed of twelve men, during the trial one of the jury was taken sick, and he was, with the con- sent of the defendant, discharged, and by the order of the court and the consent of the defendant, the trial was resumed before eleven juroi-s, Avho found the defendant guilty. On appeal to the Supreme Court of Iowa, in construing the statutory and con- stitutional provision, "the jury consists of twelve men, accepted and sworn to tvy the issue." " The right of trial by jury shall remain inviolate, b.-t- no person shall be deprived of life, liberty or property without due process of law." The courts say these provisions have equal force. If one can be waived, so may the other. Thus, where the defenCant knew at the time the jury is sworn that some of them were nw, qualified to act as jurors, he waives his right to object thereafter. It is well settled in regard to jurors, that all challenges or objections to their competency, must be made before the verdict, such .g proper age, prejudice, that they were not legally drawn, or othe> disqualifications; or they are waived, although the party was no-, aware of the fact prior to the rendition of the verdict.' As where a juror is 1 Cowart V. Pcrrine, 21 K J. Eq. 121 Mass. 93; Rex ^ Sutlon, 8 B. 101; Gaylordv. Van Loan, 15 Wend. & C. 417; Johns ^ Hod Redford V. Gibson, 12 Leigh, 343; Orbison, 21 Ark. 202; Glower v. Fowler v. Rust, 2 Marsh. 294; Clark Rawlings, 17 Miss. 122; Lynch v. V. Hunt, 3 J. J. Marsh. 558; Phillips Dearth, 2 Pa. St. 101 ; Thompson V. Sanderson, 1 S. & M. Gh. 462; Mc- v. Dawson, 3 Head, 384; Brown 7. Gown V. Jones, 14 Tex. 682; Scott v. Gilman, 4 Wheat. 255. 9G8 The Law of Estoppel. CHAPTER XIII. ESTOPPEL IN PAIS. ITS APPLICATION TO THE RELATION OF LANDLORD AND TENANT, VENDOR AND VENDEE, BAILOR AND BAILEE, ETC. Section 838. Estoppels in pais, in their common law origin, seem to have arisen only in the case of those solemn and peculiar acts to which the law gave the power of creating a right or pass- ing an estate, and there was as much importance and efficacy attached to estoppels in pais as to technical estoppels by record and deed. While a feoffment was a mere act in pais, it was the only manner by which an estate of freehold in actual possession could be conveyed, while the courts attributed and gave them far greater effect than was given to the deed which was used to per- petuate their existence, or to transfer a reversion in the same land, when held bj' a tenant of the grantor, and even in those cases, when a reversion was granted by deed, another act inpiais, an attornment was necessary to complete the grant ; and being of tlie most solemn character, as establishing the feudal relation between the tenant and his new lord, was equally binding under seal or of record.' A man may be estopped as effectually by a matter in pais as by matter of record, and a party may be estop- ped by the acceptance of rent, or by entry, or by livery. The presumption of the law being that the act \vas done or accepted on the faith of an express or implied agreement that its validity should not be disputed, or the resulting obligation denied. § 839. The instances given by Coke, and, in fact, by all of the old legal writei-s, of examples of estoppel in pais are — by matter inpais,^'& by livery, by entry, by acceptance of rent, par- tition, and by acceptance of an estate. An estoppel by matter in pais occurs, where one man has accepted rent of another ; he ' Martin v. Ives, 17 S. & R. 364; Sparrow v. Kingman, 1 N. Y. 243. Estoppel iisr Pais. 969 will be estopped from afterwards denying, in an action with that person, that he was, at the time of such acceptance, his tenant.* So, an attornment to a receiver appointed by the court constitutes a tenancy by estoppel between the tenant and the receiver which the court appoints for the purpose of collecting the rents till a decree can be pronounced, taking care that the tenant shall be protected, both while the receiver continues to act and when he is withdrawn.* An illustration of an estoppel, by an acceptance given by Littleton, is the case of a feoffment without any writ- ing accompanying it — a case that could not arise at the present time, owing to the statute of frauds. There are, however, nu- merous cases of this sort of an estoppel,' for there is no rule » Com. Dig. Tit. Estoppel, A. 3; Coke Lit. 352; Springstein v. Schem- erhorn, 13 Johns. 357; Sweetzer v. McKeniiey, 65 Me. 235. 'Pliillips V. Robertson, 2 Overt. 399; Robinson v. Hathuway, 1 Brayt. 151; Moore v. Bcasley, 3 Ohio, 294; Hamel v. Lawreoce, 1 A. K. Marsh. 330; Reed V. Sharpley, 6 Vt. 602; Mosh- ier V. Reding, 13 Me. 478; Drane v. Gregory, 3 B. Mon. 619; Shetton v. Doe, 6 Ala. 330; Evans v. Matliias, 7E. & B. 590; Doe v. Morris, 12 East, 237. 3 Boyer v. Smith, 5 Watts, 55; Mil- ler V. McBriar, 4 S. & R. 383; Phil- lips v. Robertson, 3 Overt. 399; Robin- son V. Hathaway, Brayt. 151 ; Ander- son V. Darby, 1 N. & M. 369; Farmer V. Pickins, 83 N. C. 549; Moore v. Beasley, 3 Ohio, 294; Hamel v. Law- rence, 1 A. K. Marsh. 330; Jackson V. Harper, 5 Wend. 346; Codman v. Jenkins, 14 Mass. 93; Misher v. Red- ing, 13 Me. 478; Perkins v. Grovener, Minor, 352; Bonders v. Vansickle, 3 Halst. 313; Norton v. Sanders, 1 Dana, 14; Gage v. Campbell, 131 Mass. 566; ' Helena v. Turner, 36 Ark. 577; Territt V. Covenhoven, 79 N. Y. 400; Graham v. Moore, 4 S. «fc R. 461; Booth v. Wiley, 102 111. 84; Stout v. Merrill, 35 Iowa, 2i7; Frazer v. Robinson, 42 Miss. 121; Dunshee v. Grundy, 15 Gray, 314; Richardson v. Hawey, 37 Ga. 234; Gleaton v. Gleaton, 37 Ga. 650; Wilborn v. Whitfield, 44 Ga. 51; Rogers v. Waller, 4 Hey. 205 ; Cowley V. Chiles, 5 J. J. Marsh. 303; Long- fellow V. Longfellow, 61 Me. 590; Walden v. Bodley, 14 Pet. 156; Rob- erts V. AndcKSon, 3 John. Ch. 371; Goodman v. Jones, 26 Conn. 264; Plumer v. Plumer, 30 N. H. 558; Elliott V. Smith, 23 Pa. St. 131; Morse v. Roberts, 2 Cal. 515; Ramiies V. Kent, 2 Cal. 558; Hood v. Mathis, 21 Miss. 308; Shepard v. Martin, 31 Mo. 493; Walker v. Harper, 33 Mo. 592; Allen v. Chatfield, 8 Minn. 435; Duke V. Ashby, 7 H. & N. 600; Peo- ple V. Kelsey, 38 Barb. 269; Cranz v. Kroger, 22 111. 74; Sims v. Glazencr, 14 Ala. 695; Patton v. Deshon, 1 Gray, 325; McKine v. Montgomer3% 9 Cal. 575; Doggett v. Norton, 30 III. 332; Hemes v. Stewart, 26 Mo. 529; At- wood v. Mansfield, 33 111. 453; Henley V. Bank, 16 Ala. 552; Paterson v. Hansel, 4 Bush, 654; London & Co. V. West, L. R. Q. C. P. 553; People V. Stiner, 45 Barb. 56 ; Horner v. Leeds 25 N. J. L. 106; Ingraham v. Bald- win, 9 N. Y. 45; Griffith v. Parmley, 38 Ala. 393; Hill v. Boutell, 3 N. H. 502; Lucas v. Brooks, 18 Wall. 436; 970 The Law of Estoppel. more clearly settled or more firmly established, than that a man shall not be permitted, during his possession or occupation of premises, to disjiute the title of his landlord. Even though the lease be void.' § 840. The estoppel^ hy payment of rent is not so strong as that b}' acceptance of the tenancy, for a person who has paid rent is allowed to show that he did so in consequence of mistake or misrepresentation." Payment of rent, under a distress, is not a conclusive admission of title in the distrainor, but may be rebutted by showing that he never had any title.* If the tenant cannot show some reason to the contrary, the payment of rent estops him from disputing the title of the landlord." This prin- ciple of estoppel naturally arises from the peculiarity of the rela- tion of landlord and tenant, to whicji, also, other branches of the law of estoppel apply. § 8-il. The estoppel in pais which prevents the tenant from denying the landlord's title, depends upon the tenant's obligation, express or implied, that he will at some time, or in some event, Fuller V. Sweet, 30 Mich. 237; Bow- dish v. Dubuque, 38 Iowa, 341; Baker V. Hall, 59 Mo. 265; Abbott v. Cro- martie, 73 N. C. 292; School v. Burt, 11 Vt. 637; Settle v. Hinson, 1 Morris, 14 ; Wilson v. James, 79 N. C. 349 ; Hatch V. Bullock, 57 N. H. 566; Cook V. Loxley, 5 T. K. 4; Morton v. "Woods, 3 Q. B. 638; Thrall v. Omaha, &c. Co., 5 Neb. 295; Earle v. Hall, 31 Ark. 470; Morrison v. Bassett, 26 Minn. 235; Clarke v. Clarke, 51 Ala. 498; Vernam v. Smith, 15 N. Y. 327; Higgins V. Turner, 61 Mo. 249; Sharpe V. Kelly, 5 Denio, 431 ; Allen v. Chat- field, 8 Minn. 440; Franklin v. Merida, 35 Cal. 558; "Water Power Co. v. Mor- rison, 12 Mmn. 249; Anderson v. Crichter, 11 G. & J. 450; Goodsell v. Lawson, 42 Ind. 348; Balls v. "Wcst- "Wood, 2 Camp. 11; Assoc, v. "Whit- more, 75 Me. 117; Tyler v. Davis, 61 Tex. 674; Houston v. Ferris, 71 Ala. 670; Whiting v. Edmunds, 94 N. Y. 309; Van Cleave v. Wilson, 73 Ala. 387. ' Heath v. Williams, 25 Me. 209; King V. Murray, 6 Ired. 62; B^'rne v. Beeson, 1 Doug. 179. * Rogers v. Pitcher, 6 Taunt. 202; Doe V. Wiggins, 4 Q. B. 367; Fen- ner v. Duplock, 9 Moo. 40; Cornish v. Searell, 8 B. «fc C. 471; Gregory v Doidge, 3 Bing. 474; Doe v. Brown, 7 Ad. & El. 447; Doe v. Francis, 2 Moo. & R. 57; Brook v. Briggs, 3 Bing. N. C. 572; Claridge v. Macken- zie, 4 Man. & G. 143; Doe v. Barton, 11 Ad. & El. 307; Jew v. Wood, 1 Cr. & P. 185. 3 Knight V. Cox, 18 C. B. 645; Cooper V. Blandy, 1 Bing. N. C. 45; Doe V. Wiggins, 4 Q. B. 367; Patton V. Jones, 3 Camp. 372. * Cooper v. Blandy, 1 Moo. & S. 562; Doe v. Plomer, 9 Bing. 41; Doe V. Boulter, 6 Ad. & El. 675; Hall v. Butler, 10 Ad. & El. 204; Doe v. Crago, 6 C. B. 90. Estoppel in Pais. 971 surrender the possession, and it arises out of the injustice of per- mitting one who has obtained possession of land, by promising to pay an equivalent in rent, to use the advantage thus acquired as a means of withholding both the rent and the land, and would be of comparativel}'^ little value if limited to the landlord, and unsusceptible of being enforced by those claiming under him as heirs or purchasers. While the foundation of estoppels, upon the old adage, " that the truth is not to be spoken at all times," is a harsh one, and is never to be applied except where, to allow the truth to be told, would consummate a wrong to the one party, or enable the other to secure an unfair advantage ; as between land- lord and tenant, the estoppel is designed as a shield for the pro- tection of the former, but not as a sword for the destruction of the latter.' The lessee is, therefore, estopped from denying the lessor's title, and setting up such want of title as an answer to an action for the rent ; for the law will not suffer a tenant to abuse a possession gained by the act and confidence of the landlord, and then turn it to the injury of the latter.' § 842. In the preceding chapter, the rule, that if a man so conducts himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists, and acts on that inference, the former shall be afterwards estopped from denying it, has been examined in numerous cases, where it has been deemed applicable by courts of law and equity. If there is continued occupation, and an agreement that the relation of landlord and tenant shall be created, there is the same estoppel. ° And a mere licensee is in this respect on the same footing as a tenant.* An assignee of the lessee is equally estopped with the lessee himself.^ And so is a party defending an eject- ment as landlord.^ In like manner, the lessee is not permitted to impeach the title of the assignee of the lessor in an action of > Franklin v. Merida, 35 Cal. 558; * Doe v. Baytup, 3 Ad. & El. 188; Tewksbury v. Magraff, 33 Cal. 237. Doe v. Birchmore, 9 Ad. & El. 663. 'Dolby V. Ile.s, 11 A. & E. 335; ^ Taylor v. Needbam, 2 Taunt. 277; Pliipp V. Scultborpe, 1 B. & A. 50; Doe v. Mills, 2 Ad. & El. 17; London Levy V. Lewis, 28 L. J. C. P. 144; &c. Co., v. West, L. R. 2 C. P. Blakemore v. Tabor, 22 Ind. 466; 553. Walrath v. Redfleld, 18 N. Y. 457. « Doe v. Mizen, 2 Moo. & Rob. 56; 3 Morton v. Woods, L. R. 3 Q. B. Doe v. Birchmore, 9 Ad. & El. 662. 658. 972 The Law of Estoppel assu)nj)fiit for use and occnpation ; for the rule is not confined to ejectu}ont. ' Nor can an under-tenant be permitted to dispute a title which is valid against the person of whom he holds.' (Nor can the lessee contest the title of the assignee of the lessor, by showing that the lessor had no title at aH/) So, a copyholder, who has been admitted and done fealty to the plaintiff as lord of the manor, is estopped from disputing the plaintiff's title to the manor in an action of ejectment for a forfeiture." § 843. While the general rule is that both tenants and those in privity, either in blood or estate, are estopped from disputing the title of the landlord or the title of any one who succeeds to his rights, so long as they hold the possession originally derived from him, this principle does not forbid the tenant from showing that the landlord's title has expired or has been extinguished by his own act or by operation of law.^ And this, although the tenant does not claim under that title, and though the title be outstanding in the trustee of the lessor." Because, in a case of this kind he does not dispute it, but confesses and avoids it by vavittei' ex post facto. It is admitting it and proving that it no » Delany v. Fox, 2 C. B. N. S. 768. « Doc V. Beckett 4 Q. B. 605; Ren- nie V. Robinson, 1 Bing. 147. ^ Gouldswo.tb V. Knights, 11 jM. & N. 337; Wultonv. Waterhouse, 2 W. Saunders, 41S; Cutbberstou v. Irving, 4 H. ifc N. 135; Rennie v. Robertson, 1 Bing. 147; Doe v. Whitroe, 1 Dowl. & R. N. P. C. 1; People v. Angel, 61 How. Pr. 159. •* Doe V. Budden, 5 B. & A. 026. 6 Downs V. Cooper, 2 Q. B. 256; Doe V. Edwanls, 5 B. & A. 10G5; England V. Slade, 3 T. R. 602; Jacii- son V. Ramsl)Otbara, 3 M. & S. 516; Fenncr v. Duplock, 9 ]\Ioo. 3;;8; Lamson v. Clarkson, 113 Mass. 348; Alehouse v. Gomme, 2 Bing. 41 ; Gravenor V. Woodbouse, 7 ^loo. 289; Jackson v. Rowland, 6 Wend. 066; Sebastian v. Ford, 6 Dana, 436; Cla- ridge v. ^Mackenzie, 4 Mo. & G. 143; Doe v. Skirrow, 7 A. & E. 263; Hoag v. Hoag, 35 N. Y. 469; McGuffle v. Carter, 42 Mich. 297; Fuller v. Sweet, 30 Mich. 237; Hilburn v. Fogg, 99 Mass. 11; Despard v. Walbridge, 15 N. Y. 374; Mountney v. Collier, 16 E. L. & E. 232; Hopcraft v. Keys, 9 Bing. 613; Love v. Emerson, 48 111. 100; Ilawes v. Shaw, 100 Mass. 189; Delaney v. Fox, 2 C. B. N. S. 775; Mayor V. Wbitt, 15 M. & W. 577; Shields v. Lozear, 34 N. J. 496; Morse V. Goddard,13 Met. 177; Sims v. Sal- tus, 3 Deni(j, 217; Whalin v. White, 25 N. Y. 405 ; Giles v. Elswortb, 10 Md. 333; Homer v. Leeds, 25 JS. J. L. 106; Howell v. Ashmore, 22 N. J. L. 201; Reyers V. Farwdl, 9 Barb. 615; St. John V. Quitzon, 72 111. 334; Ry- der V. Jlansell, 66 Me. 167; Jackson V. Davis, 5 Cow. 624: Otis v. McMil- lan, 70 Ala. 46; Lancashire v. Mason, 76 M. C. 455. « Hoag V. Hoag, 35 N. Y. 469. Estoppel in Pais. 973 longer exists. He may also dispute its validity at any time j)re- vious to his own tenancy, so as to avoid an assurance made by the landlord before its commencement.' If a tenant consents to give up possession to a J^arty claiming by title adverse to his own landlord, that party is estopped, as the tenant would have been from disputing the landlord's title.* A person who defends in ejectment, as a landlord, is bound by an estoppel of this sort existing against a tenant in possession.' § 844. Where premises are let by the agent of an unnamed landlord, as such, the tenant who has gone into possession is estopped from disputing the title of the unnamed landlord, when disclosed.^ The estoppel is applicable to and includes a licensee who is prevented from disputing the title of the person who licensed him.^ In this case the defendant asked leave of the party to get vegetables in the garden ; ha,ving thus obtained an entrance took possession of the house and claimed the title ; Keld^ that she was estopped. The party must first give up possession to the party by whom he was let in, and then, if he or she or any one claiming by him has a title aliunde., that title can be tried by ejectment. This rule applies also to the case of a person coming in by permission, as a lodger or servant,^ and a land- lord may by his acts be estopped from setting up a breach of the conditions of the lease and demanding a forfeiture.^ The rela- tion of landlord and tenant exists between the lessor and the lessee of the house standing on land of a third party by permis- sion.' The re.ison of the rule of estoppel applies to this prop- erty with as much force as to any other. Many landlords have 'Doe V. Barton, 11 A. & E. 307; Bedford v. Kelly, 61 Pa. St. 491; Doe Mayorv. Whilt, 15M. &W. 571;Doe v. Baytup, 3 A. & E. 188; Doe v. V. Powell, 1 A. & E. 531; Doe v. Sea- Bircbmore, 9 A. &E. 663. ton, 2 C. M. & R. 728; R'y Co. v. ^ Doe v. Baytup, 3 A. & E. IBS- West, L. R. 2. C. P. 553; Clark v. Crossley v. Dixon, 10 H. L. C. 304; Adie, L. R. 2 App. Cas. 423; James' Kinsman v. Parkhurst, 18 How. 289; Case, Moo. 181. Glynn v. George, 20 N. H. 114; State 2 Doe V. Mills, 2 B. & A. 17. v. Forge Co., 38 N. J. L. 74. 3 Doe V. Smythe, 4 M. & S. 347; " Garhart v. Finney, 40 Mo- 340. Doe V. Mizem, 2 M. & R. 56; Veale ' Doe v. Birchmore, 9 A. & £. 663. V. Warner, 1 Wm. Saunders, 328. « Smith v. Grant, 56 Me. 255; Shel- •» Flemming v. Gooding, 10 Bing. bury v. Scotsford, Yelv. 23; Ryder v. 549; Holt v. Martin, 51 Pa. St. 499; Mansell, 60 Me. 167; Crauz v. Kroger, Hitchins V. Thompson, 5 Exchq. 54; 22 111. 74. 974 The Law of Estoppel. tliemselves onlj' the estate of lessees. And the doctrine of estop- pel as between principal and at^ent, raid bailor and bailee, is not widely different from that which applies between hirers and let- ters of real estate.' § 845. The ordinary method of establishing a privity in estate, is by proof of the payment of rent, which is always 'prima facie evidence of the title of the landlord and is conclu- sive against the party paying and all others claiming under or in privity with him.'' If a privity in estate has subsisted between the parties, proof of title is unnecessary ; for a party is not allowed to dispute the original title of him by Mdiom he has been let into possession.' So a lessee of a close in severalty demised to him by one of several tenants in common, cannot set up an ad- verse title in bar of an action by his lessor.* This applies to the case of a tenant, by wrong against the owner and to one holding over after the expiration of the lease, though the landlord's title was acquired by wrong, or only an equitable title, and when the relation of landlord and tenant is once established by express act of the parties, it attaches to all who may succeed to the posses- sion through or under the tenant, whether immediately or re- motely ; the succeeding tenant being as much affected by the acts and admissions of his predecessor in regard to title as if they were his own.* So, a purchaser at a sheriff's sale is privy to the 1 Coburn v. Palmer, 8 Cush. 124; Robbins, 3 Humph. 614 ; Siglar v. Ililburn V. Fogg. 99 Mass. 11; Smith V. Makme, 3 Humph. 16; Hussmau v. Grant, 5G Me. 2.'5.j. Wieke, 50 Cal. 250; Bertram v. Cook, =" Doe V. Wilkinson, 3 B. & C. 413; 32 Mich. 518; Hughes v. Watt, 28 Ark. Cooper V. Blandj-, 4 M. & S. 562; 153; Stacy v. Bostwick, 48 Vt. 192; Chapiu V. Foss, 75 111. 280; Golds- Howell v. Ashmore, 2 N. J. 261; -worthy V. Knight, 11 M. & W. 337; Boynton v. Jockway, 10 Paige, 307; Dunshcu V. Grundy, 15 Gray, 314; Conger v. Daniel, 1 McMillan Ch. 157; Whalen V. AVhite, 25N. y. 462; Wil- Cody v. Quarterman, 12 Ga. 386; Hams V. Neales, L. R. 9 C. P. 177; Dashiel v. Collier, 4 J. J. Marsh. (iOl; Doe V. Barton, 3 P. »fc D. 194; Rennie Pierce v. Pierce, 25 Barb. 243; Klinge V. Robinson, 1 Biug. 147; Fleming v. v. Lachenour, 12 Ired. 80; Lyon v. Gooding, 10 Bing. 549; Fenner v. Washburn, 3 Col. 201. Duplock, 9 Moo. 38. * Doe v. Mitchell, B. & B. 11; Jack- =* Coburn v. Palmer, 8 Cush. 124; son v. Creal, 13 John. 116. Hilbourn v. Fogg. 99 Mass. 11; Smith » Milhouse v. Patrick, 6 Rich. 350; V. Grant, 56 Me. 255; Callender v. Doe v. Smythe, 4 M. & S. 347: Doe v. Sherman, 5 Ired. 711; Winnard v. Mills, 2 A. & E. 17; Barwick v. Estoppel in Pais. 975 debtor's title, and is therefore equally estopped with him. An agreement to purchase lands if made deliberately, estops the pur- chaser from denying the title of the vendor, as a recovery can- not be had in ejectment without proof of title, and that it may be defeated by proving an outstanding title in a third person. The result of allowing a tenant to deny the right of a landlord, in an ejectment for the land, would be to take the estate from the landlord and confer it on the tenant whenever there is a defect either in the title itself or the proof brought forward to sustain it. The law therefore does not permit or tolerate a course which is equally inconsistent with public policy and piivate faith, and would prevent men from letting their property even when they were unable to use it themselves ; when possession is obtained under a lease, the lessee is estopped from keeping the land in violation of the agreement under which it was acquired.' § 84:6. An estoppel in pais is called into existence by the acceptance of possession, nnder a deed, only when the deed is accepted in one of those relations which imply an obligation to return or surrender possession, and a sort of allegiance to him under whom or in subjection to whose interest it is held, such as is the relation of landlord and tenant, trustee and cestui qui trust, mortgagor and mortgagee.* In the case of landlord and tenant, Thompsou, 7 T. R. 488; Blake v. Gravenor v. Woodhouse, 1 Bmg. 38: Saunderson, 1 Gray, 332; Luudsford Rennie v. Robinsou, 1 Bing. 147; Doe V. Alexander, 4 D. & B. 40; Rennie v. Budden, 5 B. Child V. Cbappel, 9 N. Y. 246; Jackson v. Rowland, 6 Wend. 666. 8 Miller v. Bonsadon, 9 Ala. 317; Jackson v. Spear, 7 Wend. 401; Thayer v. Society, 20 Pa. St. 60; Tisoa V. Yawn, 15 Ga. 491; Alderson v. Miller, 15 Gratt. 279; Tewksbury v. Magraff, 33 Ca!. 237; Ins. Co. v. Mc- Kensie, 10 C. B. (N. S.) 871; Clee v. Seaman, 21 Mich. 297; Chiridge v. McKensie, 4 M. & G. 154; Franklin V. Merida, 35 Cal. 558; Swift v. Dean, 11 Vt. 323; Sbultz v. Elliott, 11 Humph. 183; Higgins v. Turner, 61 :^Io. 239; Miller v. McBrier, 14 S. & R. 382 ; Mays v. Dwight, 82 Pa. St. 462; Hamilton v. Marsden, 6 Binn. 45; Ingraham v. Baldwin, 9 N. Y. 45: Evans v. Bidwell, 76 Pa. St. 497; Brown v. Dysinger, 1 Rawlc, 408; Baskin v. Seechrist, 6 Pa. St. 154; Hockenbury v. Snyder, 2 W. & S. 240; Bigler v. Furman, 5« Barl). 545. ^ Sims V. Salters, 3 Denio, 214; Whalin v. White, 25 N. Y. 465; Estoppel In Pais. 985 been extinguished since the lessee's term began, and the lessee has an independent right to the possession, the latter may avail liimself of it, showing thereby that the lease under which he held had, in fact, been determined ;' or after eviction bj' one having a paramount title, he is excused from paying I'ent.'' ^But if a tenant yield to a writ of possession, which does not run against him or his landlord, and then attorn to the demandant in such writ, he cannot set up this in defense against his landlord/ If he purchases a better title than that of his lessor, he must surrender possession to his lessor before he seeks to avail himself of his new title against his landlord. Evertseii v. Sawyer, 2 Wend. 507; Nellis V. Lathrop, 22 Wend. 121; Gartwell v. Miller, 1 Sand. 516; St. John V. Palmer, 5 Hill, 599; Green- vault v. Davis, 4 Hill, 46iJ; Poole v. Whilt, 15 M. & W. 571 : Gallaber v. Bennett, 38 Tex. 291. ' Jackson v. Rowland, 6 Wend. 6GG; Tilghmauv. Little, 13 111. 241; Wild V. Serpen, 10 Gratt. 415; Hopcralt v. Keys, 9 Bing. 613; England v. Slade, 4 T. R. 682: Grundin v. Carter, 99 Mass. 15; Hillburn v. Fogg, 90 Mass. 11; Doev. Edwards, 5 B. & A. 1065; Doe V. Barton, 11 A. &E. 307; Mount- Ley v. Collier, 1 E. & B. 630; London, &c. Co. V. West, L. R. 2 C. P. 553; Palmer v. Bowker, 106 Mass. 317; Stout V. Merrill, 35 Iowa, 47; Long- fellow V. Longfellow, 54 Me. 249; Shields v. Lozear, 34 N. J. 490; Ins. Co. V. McKensie, 10 C. B. (N. S.)871; Walton V. Waterhouse, 2 Sand. 418; Brudnell v. Roberts, 2 Wils. 143; Franklin v. Carter, 1 C. B. 757; Neave V. Moss, 1 Bing. 360; Pope v. Biggs, 9 B.&, C. 251; Downs v. Cooper, 2 Q. B. 256; Langl'ord v. Selmes, 3 K. & J. 220; Doe v. Watson, 2 Stark. 230; Waddilove v. Barnett, 2 Bing. N. C. 528; Ryerss v. Farwell, 9 Ba.rb. 615; Wolf V. Johnson, 30 Miss. 516: Homer V. Leeds, 25 JST. J. T,. 1Q6; Franklin V. Palmer. 50 HI. 202- DuU' v. Wilsan, 69 Pa. St. 316; Doe v. Seaton, 2 C. M. & R. 728; Tewksbury v. Magraff, 33 Cal. 237; Bigler v. Furman. 58 Barb. 5.55; Hoag v. Hoag, 35 N. Y. 471; Delaney v. Fox, 2 C. B. (N. S.)77o; Doe V. Barton, 11 A. & E. 307; Cla- ridge v. McKensie, 4 M. & G. 151. ^ Marsh v. Butterworth, 4 Mich. 575; Doe v. Barton, 11 A. & E. 307; Hawkes v. Orton, 5 A. & E.367; Em- ery V. Barnett,4 G. B. (N. S.)423; Doe V. Brown, 7 A. & E. 447; Knight v. Cox, 18 C. B. 645; Kane Co. v. Har- rington, 50 111. 240; Mayor v. Whitt, 15 M. &, W. 577; Shields v. Lozear, 34 N. J. 490; Lowe v. Emerson, 48 111. 160 ; Miller v. Lang, 99 Mass. 13; Delaney v. Fox, 2 C. B. (N. S.) 775; Ililburn v. Fogg, 99 Mass. 11; S'.out V. Merrill, 35 Iowa, 47; Town V. Butterfield, lUO Mass. 189. ^ Calderwood v. Pysev, 31 Cal. 333; Simmons v. Robertson, 27 Aik. 50 ; Leach v. Koenig 55 Mo. 452; Belfour V. Davis, 4 P. & B. 3Q0. * Hodges V. Shields, 18 C. Mon.832; Balls V. Westwoods, 2 Camp. 11; Morgan V. Lamed, 10 Met. 50; Miller V. Lang, 9Q Mass. 13, O'Halloran v. Fitzgerald, n 111. 53; Town v. But- terfieid &7 Mass. 105; Morse v. God- dard, 13 Met. 177; Hilbourn v. Fogg, S9 M&ss. 11. 986 TiiK Law of Estoppel. § 859. But still, if a tenant enters under liis lease, and con- tinues to occupy without what would be tantamount to an evic- tion, he cannot, in an action to recover the rent, show either that his lessor had no title when he made his lease, or that his title has determined since the making of his lease.' Nor can he set up in defense to an action for rent that the lessor holds under a grant which is void as ngainst the creditors of his grantor, because made to defraud them.^ One who has taken possession under a lease cannot dispute his landlord's title, or make a valid attorn- ment to a third person, nor during his tenancy can he buy in an outstanding title without his landlord's consent ; he carf do no act inconsistent with, or which could change the relations be- tween himself and his landlord, without first yielding and deliv- ering up to the latter the possession acquired from liim, or an equivalent effected by the tenant, before lie can set up another title.' § 800. The rule which estops the tenant from relying on the landlord's want of title as a defense to an action brought for the recovery of the rent, is founded on special and limited causes. While the tenant is estopped from denying tlie title of his land- lord in real or possessory- actions brought for the recovery of the land, the estoppel is manifestly equitable and not legal, and it had ' Syme v. Sanders, 4 Strobh. 196; Sncod V. Jenkins, 8 Ired. 27; Den v. Ashmore, 23 N. J. L. 261; Morse v. Roberts, 2 Cal. 515; Naglee v. Inger- soll, 7 Pa. St. 185. •2 McCurdy v. Smith, 35 Pa. St. 108. 3 Porter v. Maytield, 21 Pa. St. 264; McGinnis v. Porter, 20 Pa. St. 80; Thompson v. Clark, 7 Pa. St. 62; Brown v. Keller, 32 111. 155 ; Russell V. Erwin. ;i8 Ala. 50; Bertram v. Cook, 32 :\Iich. 518; Hughes v. Watt, 28 Ark. 153; Brown v. Keller, 32 III. 151; Ryeraon v. Eldrid, 18 Mich. 12; Patterson v. Hansel, 4 Bii.sh, 654; Stacy V. Bostwick, 48 Vt. 192; Mattis V. Robiusou, 1 Neb. 3 ; Ileyer v. Beatty, 76 N. C. 28; Zeller v. Eckert, 4 How. 295; Hodges v. Shields, 18 B. .Mon. 830: Abbott v. Cromartie, 72 N. C. 292; Agar v. Young, 1 C. & M. 78; Mountney v. Collier," 1 E. & B. 630; Anderson v. Smith, 63 III. 120; Ilawesv. Shaw, 100 Mass. 189; Tewks- bury V. IVIagraff, 33 Cal. 237; Morse V. Goddard, 13 Met. 177; Meyers v. Kocnig, 5 Neb. 419; Miller v. Lang. 99 Mass. 13; ]\Io!gan v. Earned, 10 Met. 50; Doe v. Roe, 33 Ga. 163; Lowe V. Emerson, 48 111. 160; IJil- bourn v. Fogg, 99 Mass. 11; Wilson V. James, 79 N. C. 349 ; Doe v. Smythe, 4 M. & S. 347; Longfellow V. Longfellow, 54 Me. 249; Emery v. Barnett, 4 C. B. (N. S.) 428; Doe v. Austin, 9 Bing. 41; Towne v. Butter- field, 97 Mass. 100; Ins. Co. v. Mc- Kensie, IOC. B. (IN. S.)871; Wilson V. Hubbell, 1 Pennypacker, 413. Estoppel in Pais. 987 not become an absolute or well settled rule until about the end of the last century, although it was introduced at a much earlier period. The principle of estoppel between lessor and lessee is well established and ought to be maintained. The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession. It is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and possession shall be surrendered at the expiration. He cannot be allowed to controvert the title of the lessor without disparaging his own, and he cannot set up the title of another without violat- ing the contract by which he obtains and holds possession, and breaking that faith which he has pledged and the obligation which is still continuing in full operation.' The estoppel is not confined to the original parties to the, lease, but extends to all who come in under the tenant,^ or take by descent or purchase from the landlord,' and applies in actions brought for the recovery of rent,^ as well as in those which are instituted to obtain posses- sion of the premises after the end or other determination of the term,'' and will ])e enforced in a summary proceeding for unlaw- ful detainer, as well as in a more formal action, ° and operates where the defect of the landlord's title appears from his own evi- > Blight V. Rochester, 7 Wheat. 555; » Tuttle v. Reynolds, 1 Vt. 80; Phelps V. Taylor, 23 La. Ann. 585; Blantia v. Whitakor, 11 Humph. 313; Brenner v. Bigel()w,8 Kas. 497; Kluge Cutlibertsou v. Irving, 4 H. & N. 742. V. Lachenour, 12 Ired. 180; Lecatt v. * Gray v. Johnson, 14 N. H. 414; Stewart, 2 Stew. 471. Pope v. Harkins, 16 Ala. 321 ; Kendall - Rose V. Davis, 11 Cal. 133; Blak- v. Garland, 5 Cash. 74; Foster v. Bal- cnny V. Ferguson, 20 Ark. 547; Pat- ance, 10 111. 41; Fussellman v. AVorth- ten V. Deshon, 1 Gray, 325; Lane v. ingtou, 14 111. 135. Orsment, 9 Yerg. 86; Doe v. Austin, = Coburn v. Palmer, 8 Cush. 124; 9 Bing. 41; Emery v. Barnett, 4 0. B. Swan v. Stevens, 99 Mass. 7; Oakes v. (N. S.j 428; Emerick v. Taveuer, 9 Monroe, 8 Cush. 282; Falkner v. Gratt. 221; Kluge v. Lachenour, 12 Beers, 2 Dougl. 117; Cobb v. Arnold, Ired. 180; Lundsford v. Alexander, 4 12 Met. 39; Gallender v. Sherman, 5 Dev. & B. 40; Jackson v. Seaman, 3 Ired. 711; Newman v. Mackin, 21 Johns. 499; Goodwin v. Jones, 26 Miss. 383; Sharp v. Kelly, 5 Denio, Conn. 264; Jackson v. Wheedon, 1 431; Shelton v. Doe, Ala. 230; Hen- E. D. Smith, 141; Giles -v. Ebsworth, ley v. Bank, 16 Ala. 162. 10 Md. 333; Bertram v. Cook, 44 « Emerick v. Taverner, 9 Gratt, Mich. 396. 221. 988 The Law of Estoppel. dence,' because the ir.justice lies in taking advantage of the defect and in not pointing out or proving its existence, as where a lease wrongly describes the lessee, &c. § 801. If the demise is by indenture, the tenant is positively estopped to plead nil iMhuit, etc., even though the lessee may have hired and enjoyed only what was clearly his own land, as would be the ease if a disseizor were to demise to his disseizee by indenture." By accepting a lease and becoming a tenant, he admits the title of his landlord, and consequently precludes him- self from disputing it.' Such estoppel only continues during the term of the hiring ; after that, the lessee may set up his own title against his lessor.* Where the lessor is not himself in possession, the lessee is not estopped, by a written agreement to hold for a certain time and pay rent, to plead nil Ixahuit to an action for rent,* and the rule is equally imperative in actions for use and * Gray v. Johnson, 14 N. H. 414; Russell V. Fabian, 27 N. H. 527; Fulton V. Hamilton, 6 Neb. 169; Callcnder v. Sherman, 5 Ired. 711. "^ Kemp V. Goodull, 2 Ld. Raym. 1154; Wilkins v. Wingatc, 6 T. R. 62; Flelcher v. M'Farlane, 12 Mass. 45; Wilson v. Townsend, 2 Ves. 693; Miller v. Bonsadcm.O Ala. 317; Vernara V. Smith, 15 N. Y. 327; Co. Lit. 476; Wood V. Day, 1 Moo. 380; Heath v. Vermeden, 3 Lev. 146; Roe v. Davis, 7 East, 366; Burnett v. Lynch, 5 B. & C. 589. ^ Paige v. Kinsman, 43 N. H. 328; Atwood v. Maustield, 33 111. 452; Wil- liams V. Heales, L. R. 9 C. P. 171; Doc V. Smythe, 4 M. & S. 347; Balls V. We.^twood, 2 Camp. 11; Bailey v. Kilboiirn, 10 Met. 176; Hawes v. Shaw, 100 j\Liss^l87; Hogau v. Ilarley, 8 Allen, 225; Cobb v. Arnold, 8 Met. 398; Miller v. Lang, 99 Mass. 13; Whalen v. White, 25 N. Y. 462; Trafton v. ILnves, 102 Mass. 533; Parish v. Dow. 3 Alien, 369; Jolly v. Arbuthnot, 4 De G. ct J. 224; Dancer V. Hastings, 12 Moo. 34; Morton v. Woods, L. R. 4 Q. B. 293; Cornish v. Searell, 8 B. & C 471 ; Duke v. Ashby, 7 H. vfe N. 600. * Iiip. Co. V. Mackenzie, 10 C. B. (N. S.)870; Paige V. Kinsman, 43 N. n. 328; Jones' Case, Moore, 181; Riis- sell V. Fabyan, 27 N. H. 537; Willisoa v. Watkins, 3 Peters, 43; Doe v. Smythe, 4 M. & S. 348; Doe v. Wells, 10 A. & E. 427; Jackson v. Vincent, 4 Wend. 633; Jackson v. Collins, 11 Johns. 1; Greeno v. Munson, 9 Vt. 40; North v. Barnuni, 10 Vt. 223; Duke V. llarpei', 6 Yerg. 280; Fusselman v. Worthington, 14 111. 135; Hall v. Dewey, 10 Vt. 593; Wall v. Good- enough, 16 111. 416; Fisher v. Pro.sser, Cowp. 218; Peyton v. Stitli, 5 Pet. 491; Wils(m v. Weathersby, 1 N. & McC. 373; Bliglit v. Rochester, 7 Wheat. 547; Doe v. Reynolds, 27 Ala. 376; De Lancey v. Ganong, 9 N. Y. 9; Jones V. Clark, 20 Johns. 62; Russell V. AUard, 18 N. H. 222; Carpenter v. Thompson, 3 N. H. 204; Gray v. Johnson, 14 N. H. 421; Walden v. Bodley, 14 Pet. 156 ; Zeller v. Eckert, 4 llow. 289. 5 Naglee v. Ingersoll, 7 Pa. St. 185; Vernam v. Smith, 15 N. Y. 329; Estoppel in Pais. 989 occupation where the demise is bj parol, and applies as well after, as during the term, and where the tenant holds over after the expiration of the terra.' Though if there is a written lease the lessor cannot recover for use and occupation, and such would be the case at the common law if the lease were under seal," so, if a tenant under a lease were to convey the estate in fee to a third party, he would have no better right to contest the title of the lessor, than the lessee himself.' The same estoppel which pre- vents a tenant from disputing his landlord's title, extends to all persons who enter upon premises under a contract for a lease, and to all persons who by purchase, fraud, or otherwise, obtain pos- session from such tenant.* But if one, not knowing that the tenant holds a lease, purchases the estate by an absolute deed from the tenant, who has an apparent legal title other than his lease, such purchaser may contest the title of the lessor." If, however, it appears by the recitals of the lease that the lessor had no interest in the land, or that he had only an equitable interest, at the time of the demise, there will be no estoppel.* § 862. Perhaps no rule of law is better settled than that a Giiivenor v. Woodhouse, 1 Bing. 38; Tewksbiiry v. jMegraff, 33 Cal. 237; Franklin v. Merida, 35 Cal. 558; Cbeltle V. Pound, 1 Ld. Raym. 746; Davis V. Shoemaker, 1 Rawle, 135. ' Binncy v. Cliapman, 5 Pick. 124; Shelton v. Doe, G Ala. 230; Jackson Stiles. 1 Cow. 575; Falkner v. Beers, 2 Doug. 117; Ycrnani v. Smith, 15 N. Y. 327; Lewis v. Willis, 1 Wils. 314; Phipps V. Sculthorpe, 1 B. Turner v. Bradner, 18 B. Mon. ^ Beyer v. Smith, 3 Watts, 449; 285. Reed v. Shepley, 6 Yt. 602; Mosliier « Green v. Munson, 9 Vt. 370: Boyer v.Reding, 12 Me. 478; Wild v. Serpell, V. Smith, 3 Watts, 349; Banuon v. 10 Gratt. 415; Lundsford v. Turner, Banuon, 34 Pa St. 2G3; Freeman v. 5 J. J. Marsh. 104; Tilghman v. Little, Heath, 13Ired. 498; Graham v. Moore, 13 111. 241; Thayer v. Society, 20 Pa. 4 S. & R. 407; Thompson v. Clark, St. 60; Ainsley v. Longmire, 2 Kerr 38 Pa. St. 63; Longfellow V. Longfel- N. B.) 322; Bowser v. Bowser, 10 low, 61 Me. 590; Miller v. Lang, 99 Humph. 49; Ryerss v. Farwell, 9 Mass. 13; Tewksbury v. Magraff, 33 Barb. 615: Lawrence v. ililler.l Sandf. Cal. 237; Hawes v. Shaw, 100 Mass. 516; Casey v. Gregory, 13 B. Mon. 189; Hoag v. Hoag, 35 N. Y. 471; 506; Perrin v. Calhoun, 2 Brev. 243; .Jackson v. Harrington, 9 Cow. 86; Morse v. Goddard, 13 INIet. 177; School Bigier V. Furman,58 Barb. 555; Lowe v. Mcetze, 4 Rich. 50; Poole v. Whit, V. Emerson, 48 111. 160; Farmer v. 15 M. & W. 571; Wilson v. Hubbell, Pickens, 83 N. C. 549; AVilsonv. Hub- 1 Pennj-packer, 413; Farmer v. bell, 1 Pennypacker, 413. Pickens, 33 N. C. 549. Estoppel in Pais. 999 not first surrender liis possession if lie is himself tlie the owner of the title, or has attorned to the owner.' § 872. If a tenant enters into possession under the lease, and afterwards acquires an outstanding title adverse to his landlord, he cannot assert it against his landlord without first surrendering the possession f and a fortiori, where tiie tenant enters under a lease from an administrator in his official capacity, he is estopped from setting up, as against the administrator dehonis non, a sub- sequent lease from the administrator personallj'^ under claim of personal title, or title in opposition to the estate.^ § 873. A person who takes and retains the peaceable posses- sion of mortgaged premises, by direction of the mortgagee, with- out any agreement to pay rent, is a tenant at will, from year to year of such mortgagee, and cannot be ejected by the mortgagor or his assigns, so long as the mortgage I'emains unsatisfied/ But a lessee of a mortgagor is not estopped in an action of ejectment, brought against him by the mortgagor, from showing, to protect his possession, that he has become the assignee of the mortgage.^ § 874. If a person makes a parol gift of land to an infant, and the mother enters into possession under an agreenient to hold it for her son, the relation of landlord and tenant is not created, but she is estojjped from disputing her son's title." An infant will not be estopped to deny the title of his landlord, though he has admitted that he held under him, and has given his note for the rent. A contract by which a tenant is induced to desert his landlord is corrupt and void, and the person to whom he has attorned cannot maintain an action upon it. And if an adverse claimant tampers with a tenant, and obtains possession either by his consent or a collusive recovery, he is estopped to deny the landlord's title, and the tenant is likewise estopped, though he ' Franklin v. Palmer, 50 111. 202; Farland, 1 Phila. 555; Wilson v. Tewksbuiy v. Magraflf, 33 Cal. 237; Hubbell, 1 Pennypacker, 413. Shields V. Lozear, 34 N. J. 496. ^Norwood v. Kirby, 70 Ala. 397; ^ Cooper V. Smilh, 8 Watts, 536; Rogers v. Boynton, 57 Ala. 501. Balls V. Westwood, 3 Camp. 12; •* Hennessy v. Fanen, 20 Wis. 42. Dimond v. Enoch, 1 Add. 356; Eister ^ ]sfiies v. Rainsford, 1 Mich. 338. V. Paul, 54 Pa. St. 196; Morey v. ^ Russell v. Erwin, 38 Ala. 44; Rogers, 8 Phila. 297; Caffrey v. Mc- Grant v. White, 42 Mo. 285. 1000 The Law of Estoppel. has surrendered to a stranger.' A defendant in an ejectment suit, cannot set up an adverse possession after having acknowl- edged a tenancy.^ A party wlio lias taken title to one undivided half of tlie premises, from a trustee, and occupied the other half as tenant, is estopped to deny the validity of the title to such other lialf of the premises in the trustee's grantee.' Upon the termination of a lease made by M., as agent, he brought eject- ment to recover possession, the tenant was estopped from show- ing that M.'s agency was revoked.* An admission that a title exists, implies that it has all the ordinary incidents of an estate in land and may be assigned.^ § 875. If a lessor sells or transfers his legal estate and interest in the demised premises to a third party, and the lessee receives notice of the transfer, and is required to pay his rent to the trans- feree and refuses, he is liable to an action for use and occupation at the suit of the latter. The defendant may show that the plaintiff's interest in the premises has expired, or has been trans- ferred to some third party, but he is estopped from denying the lessor's title to grant the property to be enjoyed, and cannot show that he has only the equitable estate, or that he is entitled only as co-executor wi-th others who do not join in the action. § 876. One tenant in common of lands may estop himself by a grant of an easement upon such lands, but he cannot thereby estop his co-tenants, nor will they become estopped by acquiring his interest in the lands.* Wlien the owners or occupiers of land hold such a relative position as to make it the duty of each to protect the title of the other, any purchase that may be made of an adverse or outstanding title by one will inure in equity to the ' Morgan v. Ballard, 1 Mar. 558; 5 Wis. 279; Pluraer v. Plumer, 30 N. Steward v. Roderick, 4 W. & S. 188; H. 558; Hardesty v. Glenn, '62 111. 62; Cauifman v. Congregation, 6 Binn. Caldwell v. Center, 30 Cal. 539; 59; Bbarp v. Kelly, 5 Denio, 431; Galloway v. Ogle, 2 Binn. 468. Reed v. Sliepley, 6 Vt. 602; Jackson = Hoag v. Hoag, 35 N. Y. 469. V. Stuart, G John.s. 34; Jackson v. ^ ci^-k y. Crego, 47 Barb. 599. Harper, 5 AVend. 246; Jackson v. * Holt v. Martin, 51 Pa. St. 499. Wueedon, 1 Ed. Smifli, 141; Lyme v. * Cutbbcrtson v. Irving, 4 Hurls. & Saunders. 4 Strobb. 190; Chambers v. N. 746; 6 lb. 135. Pleak,6Dana, 426;Bankv. Mersereau. « Mabie v. Matteson, 17 Wis. 1; 3 Barb. Ch. 528; Toudro v. Cu^hman, OIney v. Feuner, 2 R. I. 211. Estoppel in Pais. 1001 benefit of all.' Thus, where a mortgagee in possession of land died, claiming to own it, and bj his will devised it to his sons, and a stranger, by purchase, became the owner of the interest of one of the sons, and tenant in common with the others, such stranger could not purchase the equity of redemption of the mortgagor for his own exclusive benefit, as against his co-tenants, but such purchase, if made, would inure to the common benefit of himself and co-tenants, at their option.^ This principle, which is well settled with regard to joint tenants and coparceners, should be sufiiciently broad to entitle a landlord to require a tenant, who has bought at a sale for taxes, or other proceeding of the same nature, to reconvey on receiving the amount expended. This is the rule where the sale is occasioned by the default of the tenant in not paying the taxes as he had stipulated in the lease.' And, after the expiration of the lease, a lessee who suffers the demised premises to be sold for taxes or assessments, which by the terms of the lease he was bound to pay, is estopped from setting up a tax deed to himself as assignee of the certificates of such against his lessor, although not issued until after the termination of the tenantcy, but such lessor may, in an action for that purpose, compel the grantee of such deed to quit-claim the premises, or restrain him from incumbering or disposing of the same or suing for the possession thereof, and in such suit he need not prove his own title thereto.^ Where a lessee of land becomes a tenant in common with others, under a purchase at a sale of the premises for taxes, he is estopped to deny the validity of the tax sale, in a p'oceeding by his co-tenants for partition/ § 877. The estoppel between landlord and tenant stands on the same footing and is of the same nature as that which subsists between vendor and vendee, mortgagor and mortgagee,* and grows out of the injustice of permitting a possession, obtained for a specific purpose, to be withheld after that purpose has failed • Clmrcli V. Church, 25 Pa. St. 278; ^ Shepherdson v. Elmore, 19 Wis. Pbelaii V. Kelly, 25 Wend. 508; 424. Bracken v. Cooper, 80 111. 221; Bur- ^ Ferguson v. Etter, 21 Ark. 160. hans V. Van Zandt, 75 N. Y. 523. « Wilson v. Watkins, 3 Peters, 43; - Bracken v. Cooper, 80 III. 221. Brooker v. Walker, 1 Yt. 18; Fanner 3 Haskell v. Putnam, 42 Me. 244. v. Pickens, 83 K C. 549. 1002 The Law of Estoppel. or been fnlfilled.' It is applic;il)le whenever an attempt is made to retain the possession of h\ud in viohition of good faith, and to the injury of the person to whom it rightfully belongs," and arises with as mueli force from an entry under a license or cove- nant of sale, as if there had been a formal lease.' A husband who entered under his wife, or a wife who was put in possession by her husband, occupies the position of a tenant, and is estopped from disputing the title of the heir,* and the same estoppel applies to a son occupying under his father.* Thus, where the son of a mortgagor had moved a frame building on the mort- gaged premises and placed it on a stone foundation, by leasing the building after foreclosure sale, and paying rent therefor, he was estopped setting up title thereto in himself." And to all who are under an obligation to restore the possession which they hold to the source from whence it was derived. A vendee in posses- sion cannot buy in an outstanding title and then set it up as a reason for refusing to comply with the contract of sale,' or surren- dering the premises to the pei-son from whom they were derived' unless the circumstances are such as to entitle him to rescind the contract, and refuse to pay or recover back the whole of the pur- chase money, nor can the vendor, (a- those claiming under him, keep the vendee out of possession by acquiring and setting up a title, inconsistent with that which he agreed to sell." Thus, when a vendor remains in possession, aftei' the execution of the deed, with an understanding that possession shall be surrendered at his death, his widow will be estopped from setting up an outstanding ' Dikeman V. Parish. 6Pa. St. 210; Griffith v. Griffith, 5 Ilarriiig. 5; Grecno v. Mii.son, 9 Vt. 37; Gardner Phelan v. Kelly, 25 Wend. 388; Jack- V. Greene, 5 R. I. 104; B!i;ght v. son v. Stetter, 5 Cow. 520. Rochester, 7 Wheat. 535. « g^.tts v. Wurth, 32 N. J. E. 82. = Tindal v. Den, 21 K J. L. 051; M^irk v. Taylor, 8 B. Mon. 262; Kelly V. Kelly, 24 Me. 192. Love v. Edniondson, 1 Ired. 152; ^Glyun V. Georjre. 20 N. H. 114; Wilkinson v. Green, 34 Mich. 221; Phelan v. Kelly, 25 Wend. 388; Doe Crawley v. Timberlake, 2 Ired. Eq. V. Baytup, 3 A. & E. 188. 460. •» Hall V. McIIuas, 4 W. & S. 381; » Hill v. Samuel, 31 Miss. 307; Ilen- Zcller V. Eckert, 4 How. 289; Brandon der.^on v. Conay, 18 Miss. 487; Walker V. Bannon. 38 Pa. St. 263: Long v. v. Sedgwick, 3 Cal. 398. Mast, 1 Jones, 189; Courvisier v. Boa- « Up.sliaw v. McBride, 10 B. Mon. vier, 3 Neb. 320. 203; Grandy v. Bailey, 13 Ired. 22^ * Blakeny v. Ferguson, 20 Ark. 547; Estoppel in Pais. 1003 title in a third person, as a bar to an ejectment brought bj the heirs of the purchaser.' § 878. As this class of estoppels are founded upon the injustice of keeping possession of the land, in violation of the implied or express understanding of the parties, thej cease to exist as soon as it is surrendered,^ or taken from him by the entry of a third person under a paramount title. The efflux of the term and the surrender of the premises leaves the tenant free to contest the landlord's title even when the lease is under seal,' Estoppels being limited in their application to the transactions in which they arise, they cease to exist when the purpose for which they came into being is satisfied. § 879. Equitable estoppels have an important bearing on the surrender of particular estates to those in remainder or reversion, and the consequent extinguishment of the rights and duties incident to the estates surrendered. The statute of frauds, which renders a writing necessary to the validity of a surrender, expressly except surrenders by operation of law. The participa- tion of a tenant for life, or for years in any act of the remainder- man or the reversioner inconsistent with the continuance of the tenancy, will inure as a surrender by operation of law and thus come within the exception of the statute, even when the act is in pais and the original lease by deed." Especially when the act consists in the grant of a new-estate in the tenant himself, as when the lessee for life accepts a feoffment with livery from the lord or a' new lease from the reversioner, or when the parties to a lease enter into an agreement which substitutes the relation of vendor and vendee for that of landlord and tenant.^ Where the tenant assents to a lease to a stranger and surrenders possession, which is taken by the new lessee, it estops the first tenant, while it may not be regarded as a surrender of the term, from enforcing his lease to the injury of the lessor and second lessee, the other parties to the transactions.' ' Doe V. Skinow, 7 A. & E. 157. * Baker v. Pratt, 15 111. 568. •' Reed v. Shepley. 6 Vt. 603; Camp ^ Livingston v. Potts, 16 Johns. 28; v. Camp, 6 Conn. 291; Moshier v. Red- Burnett v. Scribner, 16 Barb. 621. ding, 12 Me. 478; Moore v. Freeman, ^ Kiclioll v. Atherton, 10 Q. B. 944; 1 Busby, 95. Davidson v. Gent, 1 H. & N. 744; 3 Wild V. Serpen, 10 Gratt. 405; Randall v. Rich, 11 Mass. 494; Hesel- Smart v. Smith, 2 Dev. 258. tine v. Seavey, 16 Me. 212. 1004 TiiK Law of Estoppel. § 880. No contract or agreement can take effect, either as a surrender by operation of law or as an estoppel, unless it has been acted upon, or wholly or partially executed. A surrender may be effected by express words evincing a mutual agreement between the parties for extinguishing the particulai' estate, or it may be implied from conduct of the parties, going to show that they have both agreed to consider the surrender as made. The agreement may be, and sometimes is, implied upon the principle of estoppel.' A surrender by operation of law takes place where the owner of a particular estate has been a party to some act, the validity of which he is by law afterward estopped from disputing, and which would not be valid if his particular estate had continued to exist. Tluis, where the lessor entered upon and improved a part of the premises with the knowledge and assent of the lessee ; the facts ' showed a surrender of a portion of the premises by operation of law.' An agreement between a landlord and tenant, for a change in the tenancy, or to put an end to the lease, will not be binding as an agreement, without some new extrinsic or intrinsic con- sideration,^ nor operate as a surrender, unless it inures as a new or actual lease,* or numifests, in some equally unmistakable waj^, a design to substitute a new and inconsistent relation for that which has hitherto prevailed.^ An agreement with a stranger for a new lease, unattended by a change of possession, will be ineffectual, although made with the assent of the tenant.' The grant of a new lease is a material and indispensable ingredient, unless its place is supplied hy other circumstances, because the mere entry of a third person, and even the acceptance of rent from him by the landlord, are evidence, not of the surrender of the existing term, but of its transfer or assignment, and consequently go to charge the new tenant, without discharging the original lessee from his express covenant, whatever may be the effect on those which are implied.' A surrender of the estate by the lessee to ' D.'iyton V. Cvaik, 26 Minn. 33. bishop, 6 East, 86. = Smith V. Pcudergast, 26 Minn. ^ Allen v. Jacquish, 21 Wend. 628; 318. Lament v. Guest, 3 II. &. G. 433. 3 Crowley v. Vitter, 7 Exch. 318. ^ Lawrence v. Brown, 5 K Y. 394; ♦ Doe V. Thomas, 6 B. & C. 228; Scbioffelm v. Carpenter, 15 Wend. Doe V. Poole, 11 Q. B. 713; Brewer 400; Parker v. Nanson, 12 Neb. 419. V. Dyer, 7 Gush. 337; Donnelan v. ■> Shicffolin v. Carpenter, 15 Wend. Reid, 3 B. «fc A. 899; Roe v. Arch- 400; Preston v. McCall, 7 Gratt. 121; Estoppel in Pais. 1005 his lessor will not authorize him to deny the title of his lessor, unless it is made fairly, so as to give time to the lessor to take possession ; and if immediately after a surrender the tenant takes a lease of an adverse claimant, it does not extinguish the estoppel,' The execution of a new lease to a stranger, with the assent of the tenant, will not operate either as a surrender of the original term or as an estoppel, unless followed by the entry of the stranger and the withdrawal of the tenant, for the reason that until the entry, the transaction is executory, and there is not sufficient mat- ter in pais to make up for want of written evidence." § 881. Both landlord and tenant may be estopped from insisting on their rights under the lease, by circumstances which fall short of a new tenancy. The delivery up of the key to the house by the tenant and the acceptance by the landlord constitutes a surrender by operation of law,' and the landlord cannot make the tenant subsequently liable in an action for use and occupa- tion.^ But to produce this result the tenant must not only deliver possession to the landlord, but the landlord must accept it in satisfaction or rescission of the lease.' A lessor being entitled to re-enter when the lessee withdraws, for the purpose of taking care of the property, and ])reventing the intrusion of third per- sons, without abandoning the right to enforce the lease, and proof that the key was sent or left by the tenant and received by the landlord, does not warrant the inference that the lease was surrendered, unless it is shown that such was the object of the tenant, and that he would not give up the lease on other terms. ^ It is not necessary that possession shall be given directly to the landlord, the abandonment of the premises under such circum- stances, that indicate that the tenant has no intention of Ghegan v. Young, 23 Pa. St. 18; ♦ Wbitebead v. Clifford, 5 Taunt. Shepperdson v. Elmore, 19 Wis. 518; Grinraan v. Legge, 8 B. & C. 424; Graham v. AVliicbello, 1 C. & 824. M. 187. s Kerr v. Clark, 19 Mo. 132; Kees ^ Wall V. Hinds, 4 Gray, 256 ; Fisher v. Miller, 25 Pa. St. 481 ; Gaunau v. V. MiUikeu, 8 Pa. St. 111. Ilartly, 9 C. B. 634; Mollett v. ^ Lawrence V. Brown, 5 N. Y. 894? Brayne, 2 Camp. 103; Doe v. John- Doe V. Wood, 14 M. & W. 681; Doc ston, Mc. & Y. 141; Johnston v. Hud- V. Johnson, McC. & Y. 141. dleston, 4 B. & C. 922. 3 Dodd V. Acklom, 6 M. & G. 673; « Cannan v. Hartly, 9 C. B. 634. Mollett V. Brayne, 2 Camp. 103. 1006 The Law of Estoppel. returning will justify the landlord in regarding the term as at an end.' § 882. While the landlord may treat the dereliction of the tenant as a surrender he need not do so unless he thinks proper, for the reason that the contract cannot be dissolved by the default of one of the partie.^.* The obligations of the express covenants in the lease may continue, notwithstanding the withdrawal of the tenant and the payment of rent by a third person as assignee,' and until the assignees of a lease elect to take the term, it remains in the lessee with all its antecedent rights and obligations, and when the term has been accepted by the assignees and has vested in them by operation of law, the lessee is still bound, by his express covenants, to pay rent or perfoi-m any other duty grow- ing out or connected with the estate which the lease confers. This results from the general j^rinciple that the passage of a covenant running with the land to an assignee, will not vary or discharge the obligation of the original covenantor. When pos- session is given upon one side and accepted on the other with an express or implied agreement that the demise shall cease, a sur- render will, according to the present authorities, take place by operation of law, although there is no written note or memoran- dum of the transaction, and the intention, of the parties, has to be gathered from their words and acts.* An instrument which recites that one occupies a tract of land as tenant of a party from whom he received it and agrees to deliver possession by a certain day estops the party from denying that fact.^ § 883. The same result follows where the premises are trans- ferred to a third person, who comes in under a new lease, because his entry is virtually the enti-y of the landlord, and it would be useless to require the lessor to go through the ceremony of taking possession merely to go out again. The burden rests on the tenant, who must show affirmatively that the lease was determined by some act inconsistent with its continuance iuM-hich' 1 McKinney v. Reader, 7 Watts, « Patchin v. Dickerman, 31 Yt. 663; 123; Toreiis v. Slrickler, 7 Jones, 50. Grider"s Appeal, 5 Pa. St. 422; Lamar 9 Kees V. Miller, 25 Pa. St. 480. v. McNamee, 10 G. & J. 116; Dodd 3 Jackson v. Browu, 7 Johns. 227; v. Aoklora, 6 M. & G. 673. Ghegan v. Young, 23 Pa. St. 18; Hall ' Hall v. Hain, 5 Dana, 55. V. Hands, 4 Gray, 256. Estoppel in Pais. 1007 both parties joined ; and proof that the landlord took the key, or even re-entered, will not be sufficient, unless it appears that he did so voluntarily, and not merely because it was thrust upon him by the tenant, and could not be got rid of without throwing it in the street. § 88-i. While the possession must be yielded up to the land- lord, or transferred with his assent to a third person, under a new letting, to constitute a surrender by operation of law, still when- ever the parties have so far changed their position on the faith of a subsequent agreement, that it would be inequitable to en- force the lease, relief may be given in equity, or on the ground of equitable estoppel at law,' and a contract for the sale of the premises to the tenant, followed by part payment of the price, was held to put an end to the term by creating a new relation, inconsistent with its continuance.* A tenant who has covenanted with his landlord to give up fixtures at the end of the term, is not estopped from showing, in reduction of damages, that they were claimed and given up to a mortgagee, deducing title from the landlord.' There is no estoppel upon a grantee to deny a grantor's title where the grant is of a fee, as there is in the case of a lease by indenture, which depends upon the obligation which the lessee is under to return the land and surrender the possession.* If the lease be by deed poll, the lessee might deny the lessor's title. ^ Wherever there is an obligation to restore possession to the lessoi-, the tenant is estopped to deny the title of him under whom he enters.® A grantor by deed poll, as well as indenture, is estopped to deny the title of his grantee by set- ting up any claim which existed in his favor at the time of the grant.' A man is estopped by his deed, to deny that he granted the estate thereby conveyed, or that he had good title to the 1 Allen V. Jiicquish, 21 Wend. 628; ester, 7 Wheat. 535. Lawrence v. Brown, 5 N. Y. 394; ^ Bac. Abr. Leases, O ; Co. Litt. Lammoit v. Gist, 2 IL & G. 4'dS; La- 476; Gaunt v. Wainmau, 3 Biug. N. marv. McNamee, 10 G. & J. 116. C. 69. 2 Burnet V. Scribner. 10 Barb. 621. 6]\ji]i(.i- v. Scbackleforcl,4Dana, 264; '^ Watson V. Lane, 11 Exch. 769. Bac. Abr. Leases, O.; Great Falls Co. * Osterhout v. Shoemaker, 3 Hill, v. Worster, 15 N. H. 413; Chiles v. 513; Ham v. Ham, 14 Me. 351; Wat- Jones, 4 Dana, 479. kinsv. Holman, 16 Pet. 25; Small v. ■> Currier v. Earl, 13 Me. 216; Corn- Proctor, 15 Mass. 495; Blight v.Roch- stock v. Smith, 13 Pick. 116. 1008 The Law of Estoppel. same,' The estoppel exists only when the possession has been received under the lease, and does not continue after the termina- tion of the landlord's title, or where the tenant has been actually or constructively evicted." § 885. The same principle of estoppel applies to a purchaser from a tenant, to the relations of mortgagor and mortgagee, trus- tee and cestui qui trusty and generally, to all cases where one man obtains possession of real estate belonging to another by a recog- nition of liis title.' The relation of vendor and purchaser, under an executory contract for the sale of land, is so far in the nature of a tenancy, that the purchaser is estopped from denying the title of the vendor, so long as he retains possession under the contract.* It would be a violation of good faith to obtain pos- session under such a contract, and then deny the right of the otliei" party to reclaim possession or the fruits of the contract. The acceptance of a deed and taking possession under it, oper- ates as an estoppel in pais only Avlicre there is an obligation on him who accepts it, to I'ctaiii possession as in the case of lessor and lessee, mortgagor and mortgagee.^ When one enters on land under a contract to purchase, but neglects to pay the considera- tion money, he and tliose claiming under him are estopped to ' Wilkinson v. Scott. 17 Mass. 249; 318; Moore v. Farrow, 3 A. K. Marsh. Fairloj^ v. Fairley, 34 Miss. 18. 41; Ileermans v. Schmalz, 7 F. R. 56G; * Doe V. Barton, 11 A. & E. 307; Quiim v. Quiun. 27 Wis. 1G8; Miller Doe V. Smytho, 4 M. & S. 347; Doe v. v. Larson, 17 Wis. 644; Jackson v. Edwarils, 5 B. & A. 1065; Doe v. Walker, 7 Cow. 637; Bramble v. Mills, 2 A. & E. 17; Doe v. Birch- Beidler, 38 Ark. 200; Lewis v. Bos- more, 9 A. & E.662. kins. 28 Ark. 01; Pintard v. Goodloe, 3 Abbott V. Cromartie, 72 N. C. Hemp. 502; WiLsou v. Weatherby, 1 292; Baker V. Nail, 59 Mo. 265; Conk- N. & McC. 373; Meadow v. Hop- lin V. Smith, 7 Ind. 107; Williston v. kins, ]\Ieigs, 81; Willison v. Watkins, Watson, 3 Pet. 45; Watkins v. IIol- 3 Pet. 43; Farmer v. Pickens, 83 N, man, 10 Pot. 53; Blight v. Rochester, C. 549; Tribble v. Anderson, 63 Ga. 7 Wheat. 548; Boone v. Armstrong, 31; Walden v. Bodley, 14 Pet. 156; 87 Ind. 168; Thompson v. Justice, 88 Saunders v. Moore. 14 Bu.«h. 97; Win N. C. 269; Dowd v. Gilchrist. 1 Jones lock v. Hardy, 4 Lit. 272; trillion v. L. 353; Campbell v. Trunnell, 67 Ga. Riley, 1 Dana, 359; Lester v. Shirwin, 518; Thompson v. Peake, 7 Rich. 353; 111. Goodwin v. Keney, 49 Conn. 282; * Lawton v. ITowe, 14 Wis. 241; Jones V. Reese, 65 Ala. 134. ]\Iillion v. Riley, 1 Dana, 359; Win ♦ Harle v. McCoy, 7 J. J. j\Iarsh. lock v. Hardy, 4 Lit. 272. Estoppel in Pais. 1009 question the title of the vendor or liis heirs.* The relation of landlord and tenant is not created between vendor and vendee ; yet, the vendee in ejectment by the owner against him, is abso- lutely estopped from either showing title in himself, or setting up an outstanding title in another ; and the same rule applies to one coming into possession under the vendee, either with his consent or as an intruder.^ If a defendant (in an action of ejectment) enters under the lessor of the plaintiff by gift, pur- chase, lease or otherwise, he cannot dispute the plaintiff's title.' § 886. x\. party is always estopped to deny the validity of the title of the one under whom he claims.* So, where the de- fendant claims title under the defendant's own deed, he is estopped to allege that it did not convey title.* So, where a grantor in a deed to a school district delivered the same to a com- mittee who gave him their note for the purchase money, he was estopped to deny their authority to accept it." A widow was estopped from relying on a grant by, or attornment to the holder of a paramount title, as a bar to the recovery by the plaintiff, to whom the land had been conveyed by her husband during his life.' In order to produce a result like this, the wife must come into possession under the hueband, not the husband under the wife, and a widow may always give a title, held by her while sole, in evidence, in an ejectment founded on a conveyance with- ' Gardner v. Greene, 5 R. I. 110; Smith, 7 Ind. 407; Morrison v. Bassett, Wilison V. Watkins, 3 Pet. 43; Riley 26 Minn. 2C5; Currier v. Earl, 13 Me. V. Million, 4 J. J. Marsli. 395. 216; Wilkinson v. Scott, 17 Mass. 244; 2 .Jackson v. Walker, 7 Cow. 637. Cox v. Lacy, 3 Litt. 334; Tcwksbury 3 Gramly v. Bailey, 13 Ired. 221. v. Provizzo, 12 Cal. 26; Beale v. Hall, * Ward "v. Mcintosh, 12 Ohio S. 22 Ga. 431; Wickcrshani v. Orr, 9 231; Wedge V. Moore, 6 Cush. 8; Root Iowa, 235; Mclldowny v. Williams, V Crook, 7 Pa. St. 373; Jackson v. 28 Pa. St. 492; McKinne v. Littlcjohn, Ilotchkiss. 7 Cow. 401; Woolfolk v. 2 N. & Mc. 52; Patrick v. Leach, 2 Ashby,. 2 Met. (Ky.) 288; Walker v. Fed. R. 120; Hall v. Ashby, 2 Jlont. Sedgwick, 8 Cal. 398; Fitch v. Bald- 489; Keith v. Keith, 104 U. S. 397. win, 17 Johns. IG; Pierson v. David, « Williams v. Cush, 27 Ga. 512 ; 1 Iowa, 23: O'Brien v. Wetherell, 14 Hodges v. Eddy, 3S Vt. 328. Kas. 616; Rochell v. Benson, 1 Meigs, '' V>'oo(lfolk v. Ashby, 2 Met. (Ky.) 3; Chiles v. Jones, 4 Dana, 474; Miller 288. V. Shackleford, 4 Dana, 264; Ives v. '' Cox v. Lacy, 8 Litt. 334; Hender- Sawyer, 4 D. *& B. 51; Conkliu v, sou v. Gre well, 8 Cal. 581. Vol. I.— 64 1010 The Law of Estoppel. out her concurrence, after the marriage. A grantee wlio enters into and retains possession of land under a deed, will be estop- ped from disputing the title of not only the grantor, but of all those whose right relates back to or is derived from his.' But it is not a Ticcessary consequence that while the grantee is estopped from denying the grantor's title, that he is bound by all recitals or co\-enants in prior deeds which he may not hav,e seen, they will not be conclnsive or even evidence against him unless they enter into and qualify the operation of the instrument as a grant. § 887. The general principle that a tenant, trustee, mortgagor, purchaser or other person, who comes into possession of real estate by recognizing the title of another, while so possessed, is estopped from disputing that title, or purchasing an outstanding claim, without its inuring to the benefit of the party under whom he entered, does not apply to one who enters and claims in his owu right and for his own benefit, nor estop him from fortifying his title by the purchase of any other which may protect him in the quiet enjoyment of the premises. In respect to estoppels as between lessor and lessee, and, so far as respects them, they are well established and should bo maintained. The title of the lessee is, in fact, the title of the lessor. He comes in by virtue of it, and rests upon it to maintain and justify his possession. He pro- fesses to have no independent right in himself, and it is a part of the very essence of the contract under which he claims, that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrend- ered at its expiration. He cannot be allowed to controvert the title of the lessor without disparaging his own, and he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith which lie has pledged, and the ol)ligation of which is still continuing in full operation.^ This estoppel is not applicable as between vendor and vendee. The vendee acquires the property for himself, ami his faith is not pledged to maintain the title of the vendor. Tlie rights of the vendor are intended to be extinguished by the sale, and he has no continuing iutei-est in the maintenance of his title, 'Case V. Benedict, 9 Cush. 540; » Lunton v. Howe, 14 Wis. 241. Siglar V. ^Malone, 3 Ilumpli. IG. Estoppel in Pais. 1011 unless be should be called upon, in consequence of some covenunt or warrantj' in his deed. The property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this ; nor is the letter or spirit of the contract violated by it. The payment of the purchase money is the only controversy which ought to arise between him and the vendor. How far he may be bound to this by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and in deciding it, all those circumstances are examin-' able.* § 888. A condition may be provided for the benefit of the vendee as well as the vendor, and the latter will be strictly bound by it, even though the breach does not affect the vendee's title to the property. The vendor is estopped to deny that his own act, done in violation of the condition, is invalid. Thus, where a town in Massachusetts sold to A. the right of fishing in a certain river, upon condition that it should sell no further right. Tlie town afterwards sold another right of fishing to B., upon condition to be void if the town could not lawfully make such sale. A. refused to accept, and pay for the privilege sold him, but joined with B. in carrying on the fishing in B.'s own right. Held, although the sale to B. was void, the town could not maintain an action against A. for the price which he agreed to pay. The condition in the conveyance to A. was intended for his benefit. The town having pretended to convey the privilege to B., were estopped from denying their power to do so.* § 889. Mutuality is ordinarily essential to the existence of an estoppel; and as the grantor may show that his title was defective at the execution of the conveyance, and recover the land in oppo- sition to his own deed, the grantee must, for the same reasons, be allowed to pursue the same course.^ An estoppel is said, by Coke, » Blight v. Rochester, 7 Wheat. Nortou, 10 Conn. 422; Sumuer v. Bar- 535; Ostcihout v. Shoemaker, 3 Hill, nard, 13 Met. 459. 313; Watkins v. Hohnan, 16 Pet. 25; « Taunton v. Caswell, 4 Pick. 275. Society v. Pawlet, 4 Pet. 480; Vorhies ^ Gardner v. Green, 5 R. I. 104; V. White, 3 A. K. Marsh. 27; Winlock Gaunt v. Wainmaii, 3 Biug. N. C. 69; V. Hardy, 4 Litt. 472; Hubbard v. Small v. Procter, 15 Mass. 495; Moore 1012 The Law of Estoppel. to arise from the acceptance of au estate, but, in order to create this estoppel, there must be an estate to be accepted, M'hich, in the case of conveyances by deed, is the very point in question. Tiiis passage in Coke, therefore, only applies to the common law assurances, b}' feoffment, fine, or recover}', which, when properly employed, necessarily passed an estate, either by right or wrong. It must be apparent, then, if the acceptance of a conveyance estops the gnintee from disputing the estate of the grantor, cove- nants for title would be mere nullities, because no recovery could be had on them in any case without showing that the title con- veyed by the covenantor is defective. § 890. The grantee may deny the seizin or title of his grantor, for he holds adversely to him, and it is a matter of almost every- day occurrence.' The acceptance of a conveyance does not estop the grantee from showing that the grantor liad no title in the land conveyed,^ unless possession accompanies the grant, and is still held under the deed. In this case it will ha prima facie, if not conclusive evidence, that the grantor had the right which be assumed to convey.' But where a vendee obtains and keeps pos- session of land under a contract of sale, which is not fulfilled, he cannot set up any defect in the title, as a defense to an action of ejectment by the vendor, or on a suit for the purchase money." V. Eastmau, 5 N. PI. 490; Lansing v. Montgomery, 2 Johns. 382; Osteibout V. Shoemaker, 3 Hill, 519; Sparrow v. Kingman, 1 N. Y. 248; Gardner v. Sharp, 4 Wash. C. C. 609; Miles v. Miles, 8 W. & S. 135; Boiling v. Mayor, 3 Rand. 563; Cundler v. Luudsford, 4 Dev. & B. 457. ^ Gaunt V. Wainman, 3 Bing. N. C. 69; Small v. Proctor, 15 Mass. 495; Cutter V. "Waddingham, 33 Mo. 269; Walker v. Howell, 34 Tex. 478. a Averill v. Wilson, 4 Barb. 180; Sparrow v. Kingman, 1 N. Y. 242; Gardner v. Greene, 5 R. I. 104; Dona- hue V. Klassner, 22 :Mich. 252; Croxall v. Shererd, 5 Wall. 268. 3 Ward V. Mcintosh, 12 Ohio State, 231; Wedge v. Moore, 6 Cush. 8; Warder v. Woodruff, 11 Ark. 82. * Taggart v. Stanbury, 2 McLean, .543; Christian V. Scott, 1 Stew. 490; White V. Beard, 5 Port. 94; Stone v. Gover, 1 Ala. 287; Culbertson v. Par- ker, 15 Ind. 234; Helvenstein v. Hig- ginson, 35 Ala. 259; Hacker v. Blake, 17 Ind. 97 ; Timms v. Shannon, 19 Md. 296; Mecklein v. Blake, 22 Wis. 498; Knight v. Turner, 11 Ala. 636; Hoy V. Taliefero, 16 Miss. 727; Starke v. Hill, 6 Ala. 785; Bining v. Leeman, 45 111. 246; Pattou v. England. 15 Ala. 69; Duncan v. Lane, 16 Miss. 744; Glenn V. Thistle, 23 Miss. 42; Whit- ney V. Lewis, 21 Wend. 131; Lum- mersou v. Marvin, 8 Barb. 9 ; Picket V. Picket. 6 Ohio St. 525; Drennerv. Boyer, 5 Ark. 497; Fowler v. Smith, 2 Cal. 39; Wear v. Parish, 26 111. 40; Tissotv. Throckmorton, 6 Cal. 471; Estoppel ix Pais. 1013 A vendee who goes into possession under the vendor, virtually occupies tlie position of tenant, and is not only estopped from using the defects in the vendor's title to deprive him of the land without paying him for it, but will be compelled to make any steps which he may have taken to complete the title, subservient to the pur- poses of the contract, instead of a means of defeating it. The estoppel, in its application to the relation of vendor and vendee, is only where the circumstances are such as to render it the duty of the vendee to surrender the possession which he had derived from the vendor before contesting the title.' § 891. When parties in an action brought for the recovery of land claim, through the same person, they will be obliged to treat his title as valid, and will not be allowed to rely on that portion which makes in their favor, and reject the rest.* In summary proceedings for the recovery of land, if the landlord establishes the relation of landlord and tenant, the tenant cannot dispute the landlord's title.^ Nor is a bailee or agent allowed to dispute the original title of the person from whom he has received title,* and a vendee who takes a deed of an estate, in pursuance of previous articles of agreement, is estopped to deny the vendor's title, and an agreement under seal to accept a conveyance or lease, will estop the covenantee from disputing the title of the covenantor, in a subsequent action for the recovery of the land/ Notwitli- Wiley V. Boward, Iri Ind. 169; Kin- v. Hill, 4 Barb. 419; Sparow v. King- ney V. Osburn, 14 Cal. 113; Wright man, 1 N. Y. 242; (rarduer v. Greene, V. Blatchley, 3 lud. 101; Smitli v. 5 R. I. t04; Glen v. Gibson, 9 Barb. Biisliy, 15 Mo. 387; Smith v. Winston, 634; Flanders v. Train, 13 Wis. 59G. 3Miss. 601; Lynch V. Baxter, 4 Tex. MVard v. McLitosh, 13 Ohio St. 431 ; Wanser V. MessJer, 39 N. J. L. 231; Jackson v. Ireland, 3 Wend. 99. 256; Lee v. Porter, 5 -Tphns. Ch. 268; » ^.^.j ^ Kelsey, 43 Barb. 583. E.stcp V. Estep, 23 Ind. 114; ]Miller v. ^ Vosburgh v. Huntington, 15 Abb. Larson, 17 Wis. 634; Bush v. Marshall, 254. 6 How. 284; Ludlow v. Gilman, 18 ^ gayles v. Smith, 13 Wend. 57; Wis. 552; Willison v. Watkins, 3 Tindal v. Den, 1 N. J. 651 ; Jackson v. Pet. 43 ; Bowers v. Keesecker, 14 Ayres, 14 Johns. 225; Springstein v. Iowa, 301; Gillespie V. Battle, 15 Ala. Scliermerhorn, 12 Johns. 357; Town 276; Robinson V. Snyder, 25 Pa. St. v. Butterficld, 97 Mass. 105; Tilman 203; Galloway v. Finley, 13 Pet. v. Little, 13 111. 339; Love v. Edmond- 364; Jackson v. Ilotchkiss, 6 Cow. son, 1 Ired. 153; Winnard v. Rob- 401. bins, 3 Humph. 614; Clee v. Seaman, » Blight V. Rochester, 7Wheat.535; 31 Mich. 287. Price V. Johnson, 1 Ohio St. 390; Hill 1014 The Law of Estoppel. standing the cases cited, in support of the propositions, there is no general or inflexible rule, which prevents a grantee from show- ing that the grantor had no title that was capable of passing by the deed. A person coining into possession of land under an executory contract of sale will not be permitted to set up an out- standing elder grant against his vendor.' § 892. The acceptance of a devise estops the devisee to set up title in opposition to the will both at law and equity.* By analogy to the estoppel between landlord and tenant one who had been let into possession by a devisee is estopped from disputing the validity of the will as against a remainder-man, who claimed under it to enter on the decease of the devisee.' SVhere two persons both bearing the same name are entitled to lands and patents issue therefore to each for certain lands differently located, and in the deliver}- of the patents a mistake occurred, by which the patent of one was delivered to the other, but both acted on the fact of the case as existing at the time and profited out of the same, without objection being made on the part of either of them, neither their grantees nor any other person can raise the question of such mistake, in the delivery of the patents, each of them and their representatives are estopped from claiming the land of the other.* Where a state legislature has authorized the conveyance of a certain tract of land to a person, the pre- sumption being that he solicited the grant, and having acted under it, he and those claiming under him are estopped from denying the title of the state.^ A person who petitions a legisla- tive body for a grant of land stated by him to be vacant, ° or on the ground, that he is the only surviving heir and legal representative, is estopped from claiming the land as tenant by the curtesy.' § 893. The bailment or lease of chattels creates an estoppel of ' Hamilton v. Taylor, Litt. Sel. ^ Board v. Board, L. R. 9 Q. B. Cas. 444: Sikcs v. Basnight, 2 D. & 48. B. 157; Fowler V. Woodyard. 6 J. J. ■'Smith v. Smith, 14 Gray, 533; Marsh. 606. Gardner v. Ladue, 47 HI. 211. «Millerv. Jones, 29 Ala. 174; Kranz ^ (J-Avy x. Whiiney, 48 Me. 516; V. Kroger, 20111. 74; Hayden v. Davis, Thrower v. Wood, 53 Ga. 458. 9 Cal. 573. « Tubbs v. Lynch, 5 Harriug. 521. ' 3Iontgomery v. Ives, 21 Miss. 161. Estoppel in Pais. 1015 the same nature as that arising from a lease of land, and estops the bailee from disputing the title of the bailor, or setting up an outstanding title in a third person, but leaves him free to excuse the failure or refusal to return the thing bailed, by proof that it has been delivered np to the true owner, or is withheld in conse- quence of a notice or demand from him and for his use and ben- efit.' Thus S. gave a receipt to the plaintiff, a deputy sheriff, for goods attached on a writ against E. Afterwards, one H., claiming to be the owner of the property, sued the officer in trover for it, and that suit was finally determined against him. In an action of trover, brought by the officer against the receiptor for the same property — Held, that the defendant could not be permitted to show title to the propert^^ in II. b}' way of defense, being concluded therefrom by the judgment in the suit of 11. against the plaintiff.^ It has also been held that an* auctioneer, who has been sued for the proceeds of goods sold in the course of his business in behalf of another, is estopped from alleging that they were his own, in bar of an action brought for the proceeds, or in mitigation of damages.' A bailee or agent cannot dispute the original title of the person from whom he has received prop- erty, and one who takes goods of another to return on the > Ogle V. Atkins. 5 Taunt. 759; ling v. Birnie, 7 Bing. 339; "White v. Watson V. Lane, 11 Exch. 769; Bur- Bartlctt, 9 Bing. 378; Holl v. Griffin, nett V. Fulton, 3 Jones, 486; Bates v, 10 Bing. 256; Cheesman v. Exall. 6 Stanton, 1 Duer, 79; Butler v. Ken- Excliq. 341; Biddle v. Bond, 6 B. & ner, 14 Mart. 274; Ilaj^den v. Davis, S. 225; Wilson v. Anderson, 1 B. «& 9 Cal. 513; Miller v. Jones, 29 Ala. A. 450; Shelbury v. Scotsford, Yelv. 174; Krautz v. Kroger, 20 111. 74; 22; Bettely v. Reed, 4 Q. B. 551; Lockwood V. Slevin, 26 Ind. 124; Woodley v. Coventry, 2 H. & C. 164; Phillips V. Hal[, 8 Wend. 610; Drown Gillette v. Hill, 2 C.& M. 530; Knights V. Smith, 3N. II. 299; King v. Rich- v. Wiffin, L. R. 5 Q. B. 560. ards, 6 Whart. 418; Eastman v. Tut^ « Spear v. Hill, 54 N. II. 87. tie, 1 Cow. 248; Hawes v. Watson, 2 ^ Osgood v. Nichols, 5 Gray, 420; B. & C. 540; Thorn v. Tilbury, 3 H. Learned v. Bryant, 13 Mass. 224; &N. 534; Sheridan v. Quay Co., 4 C. Fisher v. Bartlett, 8 Me. 122; Sin- B. (N. S.)617; Chapman v. Searle, 3 clair v. Murphy, 14 ^Nlich. 392; Lund Pick. 38; Stouard v. Dunkin, 2 Camp. v. Bank, 37 Barb. 129; King v. Rich- 344; Dixon v. Hammond, 2 B. & A. ards, 6 Whart. 418; Hardman v.Will- 310; Jewett v. Torrey, 11 Mass. 219; cock, 9 Bing. 382; Gosling v. Birnie, 7 Wallace v. Mathews, 39 Ga. 617; Bing. 338; Cheesman v. Exall, 6 Dixon v. Hammond, 2 B. & A. 310; Exchq. 341; Placer Co. v. Austin, 8 Nicholson v. Knowles, 5 Mad. 47; Cal. 303; Rogers v. Weir, 34 N. Y. Roberts v. Ogiiby, 9 Price, 269; Gos- 463. 1016 The Law of Estoppp:l. occurrence of a certain event ; after the event the bailor will not be conii)clled to show a legal title to the goods.' The defendant is estopi)ed to set up title in a third person, as he would be in an action for use and occupation.' § 894:. An agent or bailee is precluded from questioning the title of his principal to the subject matter of the agenc}' or bail- ment.^ So a collector of taxes cannot deny the right of the county thereto, because illegally levied." A party having once admitted another's title, by suing on a claim in his name, cannot defeat a title thus admitted.^ So, where a county assessed real estate to a railroad company, and accepted a large sum as a com- promise and payment of the taxes from the railroad company, it is estopped from denying the company's OMmership.' The general rule is, that whenever one acknowledges a title in another,' or recognizes a' claim or lien of another, such person is estopped from subsequently disputing its validity.^ So one acquiescing in ' McNeil V. Philip, 1 McCord, 393. "^ Manning v. Norwood, 2 Kep. Con. Ct. 274; Iliiyden v. Davis, 9 Cal. 573; Reed v. Reed, 13 Iowa, 5. 3 Gosling V. Birnie, 7 Bing. 339; Holl V. Griffin, 10 Bing. 246; White V. Bartlett, 9 Bing. 878; Kieran v. Sannders, 6 A. & E. 515; Cheesman v. Exall.G Exchq. 341 ; Milesv. Furber, L. R. 8Q. B. 377; Dickson v. Hammond, 3 B. & xi. 310 ; Benson v. Hcathorn, 1 Y. & C. 141; Scott V. Crawford, 4 M. & G. 1031; Roberts v. Oglesby, 9 Price. 260; Nicholson v. Knowles, 5 Mad. 47; Ilawes v. Watson, 2 B. & C. 540; Ilarman v. Anderspn, 2 Camp. 243; Van Horn v. Fonda, 5 Johns. Ch. 459; llolbrook v. Wright, 24 Wend. 169; Barnard v. Koljbe, 54 N. Y. 516; MiGill V. Hiudsdale, 6 Conn. 469; Collins v. Tillou, 26 Conn. 368; Bain v. Clark, 30 Mo. 252; Cowing v. Greene, 45 Barb, 585; Ilardenljurg v. Bacon, 33 Cal. 356; Hancock v. Gomez, 58 Barb. 420; Hammond v. Christy, 5 Rob. (N. Y.) 160; Bray v. Chandler, 37 E. L. & Eq. 396; Placer Co. v. Austin, 8 Cal. 303; Rhea V. Pnrycar, 26 Ark. 344 ; White v. Ward. 26 Ark. 445; Biddle v. Bond, 6 B. & S. 225; Wallace v. Mathews. 39 Ga. 617; Bates v. Stanton, 1 Duer, 79; Butler V. Kenner, 14 Mart. 274; Thorn V. Tilbury, 3 H. & N. 534; Sheridan V. Quay Co., 4 C. B. N. S. 617; King V. Richards, 6 Whart. 418; Bettely v. Read, 4 Q. B. 511. ' Placer Co. v. Austin, 8 Cal. 303. « Topp V. Pollard, 24 Miss. 683; Manigault v. Deas, 1 Bail. 283; Will- iams V. Allen. 14 Ga. 81; Adams v. Burlington, 39 Iowa, 507; ]Millor v. Jones, 26 Ala. 247, (Juggins v. Vaugor- der, 10 Mich. 523. « Adams Co. v. R. R. Co., 39 Iowa, 507. ' Laughlin v. Mitchell, 14 F. R. 382; Harris v. Powers, 57 Ala. 139; Territ V. Covenhoven, 79 N. Y. 400; Betts v. AVurth, 32 N. J. E. 82; Collier v. Tfenning, 34 N. J. E. 82; Bowdish v. Dubuque, 38 Iowa, 341. sBroyles V. Newlin, 59 Tenn. 191; Moale V. Baltimore, 56 Md. 496; Hart V. Huguet, 33 La. Ann. 362; Stuart v. Ins. Co., 9 Lea, 104; Erhardt v. Boar, Estoppel in Pais. 1017 the title of another will be estopped from denying it.' A party i giving a bill and certificate of storage, is estopped from saying j' he never had the goods. ^ So where the owner of chattels, sold i at a void judicial sale, hires them from the jDurchaser with full [ knowledge of all the facts, he is estopped from disputing the lat- ji ter's title, nnless such hiring is only colorable, and a cloak for I usury." I 3 McCrarj', 19; Howry's Appeal, 94 nell v. Kelsey, 10 N. Y. 412; S. C, 4 Pa. St. 376; Nelson v. Claybrooke, 4 Sandf. 403; Brown v. Goddard, 13 R. Lea, 687; Bally v. Williams, 73 Mo. I. 76; Case v. Trapp, 49 Mich. 49. I 310; Belts V. Wurth, 32 N. J. E. 82. ^ Chapman v. Seaile, 3 Pick. 38; ' King V. Mabry, 3 Lea, 237; Cole- Stewart v. Ins. Co., 9 Lea, 104. man V. Smith, 55 Tex. 254; Stockham ^ Trible v. Anderson, 63 Ga. 31; V. Browning, 18 N. J. E. 390; O'Don- Campbell v. Trunnell, 67 Ga. 518. 1018 The Law of Estoppel. CHAPTER XIY. APPLICATION OF ESTOPPEL TO MORTGAGES. TECHNICAL ESTOPPEL, RECITALS, EQUITABLE ESTOPPEL. Section 895. The doctrine that a grantee, from one who had no title at the time of the conveyance, but has subsequently acquired one, takes it by estoppel^ in virtue of the covenants in the deed, is applicable to mortgages. Thus, a party who is in actual possession of land, but without title, mortgages it with warranty, and afterwards acquires a good title by purchase, the warranty takes immediate effect on the title so acquired, and transfers it to the mortgagee, not only as against the mortgagor himself, but those claiming under him subsequently to the con- veyance. So where one mortgaged land, which was at the time subject to a judgment lien (the deed containing what was equiv- alent to a warranty), and then took the benefit of the bankrupt law, and afterwards purchased the property when sold under the judgment lien, he was estopped by his covenant from setting up such after acquired title to defc?t the mortgage.^ A person who contracting an obligation to another, grants a mortgage on prop- erty of which he is not then the owner, the mortgage is valid if the debtor ever afterwards acquires the ownership of the prop- erty by whatever right." A release by a mortgagee to the liolder of the equity of redemption passes by the warranty, con- tained in the prior grant by the releasee, and gives the grantee an unincumbered title against a subsequent assignment of the mortgage, notwithstanding an allegation that a mortgage being a chattel interest, and that the rules applicable to estates in lands dill not govern mortgages.' This is on the principle that an after acquired title inures to the benefit of the grantee. ' Busliv. Cooper, 18 How. 82; Jarvis 402; Lincoln v. Emerson, 108 Mass. V. Aikcus. 24 Vt. 635. 90; Rigg v. Cook. 9 111. 330. '■' Amounott v. Annis, 16 La. Ann. ^ Mickle v. Townsend, 18 N. Y. 225; R. R. Co. v. Cowdrey, 11 Wall. 575. 1S4; Williiik V. Can-l Co., 3 N. .1. E. Application to Mortgages. 1019 § 896. A mortgage by husband and wife, of her land, with covenants of warranty by both, estops both to deny her title at the time of the conveyance. Nor can they, in an action upon the mortgage against them, be peiimitted to show that after the com- mencement of such action she acquired a new title, under which they hold possession. The doctrine of rehutter, to avoid circuity of action, is not admissible in such cases.' Two successive mort- gages, with covenants of warranty, were made of the same land. The second mortgagee bought the first mortgage, receiving from the first mortgagee a quit-claim deed. On the same day, the second mortgagee gave a mortgage, with covenants, to a creditor. There was no proof which of the two last named deeds was first delivered ; but the grantee of one was a subscribing witness to the other, and both were attested by, and acknowledged before the same magistrate. The right of redemption of the original mortgagor having expired, the last mortgagee brings ejectment against him for the land. The deed to plaintiff would be pre- sumed to have been made after the deed to his grantor ; or, if not, the covenants in the deed first executed had the effect to vest a title in the plaintiff, when the conveyance was made to him by estoppel j and this title was effectual against the defendant.'' § 897. A statutory foreclosure of a usurious mortgage, and a sale of the mortgaged premises, followed by a sale thereof to a third person for a valuable consideration, without notice of the usury, will not convey a valid title to the land, or estop the mort- gagor from alleging usury in the mortgage." But if judgment has been recovered upon a usurious contract secured by mortgage, and a new mortgage given, the mortgagor cannot resist a suit on the latter, upon the grounds of usury. The judgment upon the contract which was effected by usury having estopped the debtor from showing it in an action upon the judgment ; he is equally estopped in a, suit on the mortgage.* So where a moi-tgagee sues upon his mortgage, and the mortgagor defends upon the ground of usury, but fails in such defense, and afterwards conveys his right in the land, the purchaser cannot maintain ejectment against 1 Nash V. Spatford, 10 Met. 102. " Thatcher v. Gammon, 13 Mass. » Dudley v. Cad well. 19 Conn. 226; 268; Davis v. Converse, 35 Vt. 503; Wilson V. Wilson, 32 Barb. 328. Divall v. Atwood, 41 N. H. 443. 8 Wyland v. Stafford, 10 Barb. 558. 1020 The Law of Estoppel. the mortgagee upon this ground, behig estopped by the former jiKlgrnent.' In tlie case of a mortgage by Imsband and wife of her estate, they remain in possession till breach of condition, and the mortgagee brings an action to foreclose against both, the wife must be joined as defendant. By joining in the mortgage she parts with her estate pro tantOy but no further. The equity of redemption is still hers, and cannot be disposed of by the husband without her consent, an entry in pais, with his assent, but unknown to her, will not foreclose her right to redeem, for the reason, that in a suit for foreclosure she must be joined. In case of his death, the action proceeds against her. Sh& is entitled to the benefit of the conditional judgment and may pay the debt, and prevent a foreclosure. The object of the statutory action is, to give the mortgagee such possession as will result in an absolute title, unless redeemed. It is inconsistent with the plain principles of law and justice, to hold that she and her estate shall be bound by the judgment, if she cannot be a party to the suit.* § 898. One may hold two mortgages on two different estates to secure one debt, and foreclose one only. Whether this will bar a foreclosure of the other, depends on the value of the property foreclosed,' if equal in value to the debt, it will have that effect. A joint bond from A, and B. was secured by mortgage of A. Afterwards A. gave a bond to B. assuming the former, and indemnifying B. against it. The parties having paid each half of the first bond, B. procured an assignment of it to a third person, for the purpose of obtaining a foreclosure. Held, a bill to fore- close by the assignee could not be maintained.* The same estop- pel applies to the mortgagee, who has been permitted to come in and defend the suit. The court say •: " In substance, it seems to ns to stand on the same reason with the other cases, in which it is held that the debtor in execution cannot set up a want of title in himself. As he has had the benefit of the sale in the payment of his debts, he ought not to say that he had nothing in the prem- ises ; and he cannot, with truth say so, as he had, at least, tiie possession and enjoyment of the land, and those he ought to give np ; and to recover them is the object of the ejectment. The 1 Adams v. Barnes, 17 Mass. 365; =* Burpee v. Parker, 24 Vt. 567 Davis V. Converse, 35 Vt. 503. * Sturges v. Alyea, 3 Sand. Ch. 188. * Swan V. Wiswall, 15 Pick. 126. s Davis v. Evans, 5 Ired. 525. Application to Mortgages. 1021 same principle applies equally to a case in which the debtor has only an equitable interest. The act of 1812 authoi'ized the sale of an equity of redemption under ^ fieri facias. This act makes the equity of redemption, when sold under execution, a legal interest, to the extent, at least, of enforcing it by the recovery of possession from the mortgagor himself," So it has been held^ ;at a tenant of the mortgagor, or a purchaser from him by exe- cutory contract, cannot dispute the title of the execution pur- chaser.^ § 899. In a foreclosure proceeding a decree is conclusive on the estate vested in the defendant at the date of its rendition. Where-a defendant in such suit claims the entire estate, subject to the mortgage, and the complainant admits it by failing to reply, the decree will be conclusive on him and estop him from setting up any other claim. Thus, where a widow alleged that the property incumbered was hers, and the court found that her deceased husband, had a life estate therein, and decreed that to be sold, the mortgagee was confined to the life estate, and was estopped from subsequently claiming that the property belonged absolutely to the husband. Where parties are made defendants to a foreclosure suit on the general allegation that they claim some interest in the premises as subsequent incumbrancers, pur- chasers, or otherwise, a general decree barring all the defendants and those claiming under them, will preclude them from assert- ing any rights acquired from the mortgagor subsequent to the execution of the mortgage, but will not divest them of any para- mount rights.^ Thus, a right of homestead cannot be claimed after a decree foreclosing the mortgage has been rendered in an action where tlie husband and wife, parties to the mortgage, were properly made defendants. But the right to dower is a paramount right, and if the wife of a mortgagor after becoming a widow, be made a party to a suit to foreclose a mortgage exe- cuted by her husband alone, and there is no reference made in the bill as to her claim for dower, the decree will not affect her * Dougherty V. Linthicum, 8 Dana, Lewis v. Smith, 11 Barb. 156; Bank 194. V. Flag.ij, 8 Barb. Ch. 318; Elliott v. 5 Frost V. Coou, 30 N. Y. 444; Page, 1 Paige, 363. 1022 The Law of Estoppel. dower interest. Adverse claims that are set up and litigated in foreclosure proceedings are conclusively and finally determined.' § 900. It is provided by statute in Georgia and South Caro- lina, that a mortgagor who executes a second mortgage without disclosing in writing to the second mortgagee the existence of the prior mortgage, is not allowed to redeem the second mort- gage. In South Carolina, if a person suffer a judgment or enter into a statute or recognizance binding his land, and after- wards mortgages it, without giving notice in writing of the prior incumbrance, unless within six months after a written demand he clear off such incumbrance, lie is not allowed to redeem. These are substantially re-enactments of an act of Par- liament. There are provisions similar to this (the concealment of a prior incumbrance by the mortgagor) in Tennessee and North Carolina. § 901. Where a mortgagee has taken possession of the mort- gaged premises under a deed from the mortgagor, he is not at liberty to repudiate the mortgagor's title afterwards, and all re- leases obtained to cover defects in the title must be held to be obtained for the support of the mortgagor's title.^ So, where a testator bequeaths to his widow all his personalty, and, incum- bered by two mortgages of real estate, with a provision that such portion of the second mortgage debt not made out of the laud should be payable out of his personalty, and the assignee of the first mortgage under a promise to pay off the second, was permitted by the widow to take and retain possession of the es- tate and profits until the limitation had expired, by inducing her to believe that he held under her, although he had secured the tax title in an action by the subsequent mortgagee to fore- close, the assignee was estopped as against the widow to deny that he held under her, and the plaintiff might avail himself of the estoppel in his own behalf.' A party who accepts a mort- gage made to him, is estopped to deny the power of the mort- ' Lewis V. Smith. 9 N. Y. 502; Mich. 361 ; Renshaw v. Tayl(jr, 7 Baxter v. Dear, 24 Tex. 17; Lee v. Oreg. 315. Kingsbury, 13 Tex. 17. ^ Schumaker v, Hoeveler, 22 Wis. ' Farmers' Bank v. Bronson, 14 43. Application to Mortgages. 1023 gagor to make the convejance, nor can he set up title anterior to his mortgage.' § 902. By a mortgage containing the usual covenants of seizin and warrant}', the mortgagor and his privies are estopped from denying the title of the mortgagee or of his assignee, nor can they set up any after acquired title against such covenants or that no title passed by the mortgage.^ Or deny his title at the time of its execution.^ But there is an exception to the rule^ thus, where P. and wife joined in signing the blank form of a deed of conveyance, designed to be thereafter filled up, so as to convey a tract of land to a school district as a site for a school house, tlie signing and sealing was attested by two witnesses and acknowledged before, and certified to by a justice of the peace, according to law. Afterwards the husband without the knowl- edge or consent of his wife, filled up the deed so as to make it, on its face, a mortgage on a large tract of land, to secure a loan of four thousand dollars ; the mortgagee received the same in good faith, without notice of any defect or informality in its ex- ecution, "and thus executed, was duly recorded. The husband, and all subsequent judgment creditors, and lien holders under him, were estopped from denying the validity of the mortgage.* The judgment creditors take no greater estate than their debtor ' Brown v. Coombs, 29 N. J. L. 16 La. Ann. 327; Wanzer v. Blancli- 36; Tarter v. Hall, 3 Cal. 263; Conklin ard, 3 Mich. 11; Whitney v. Ruckman, V. Smith, 7 Ind. 107. 13 Cal. 556; Floyd Co. v. Morrison, 40 - Cross V. Robinson, 21 Conn. 379; Iowa, 188; Middleton v. Findla, 25 Clark V. Baker, 14 Cal. 612; Frink v. Cal. 76; O'Meara, v. North, &c. Co., Darst, 14 111. 304; Van Rensselaer v. 2 Nev. 112; Stewart v. Boyle, 23 La. Kearney, 11 How*. 332; Palmer v. Ann. 83; Boone v. Armstrong, 87 Ind. Meade, 7 Conn. 149; Bogy v. Shoab, 168; Womble v. Leach, 83 N. C. 84. 13 Mo. 379; Cook v. Brogand, 5 Ark. ^ p^i^ ^ pioward, 6 Nev. 304; Ins. 699; Morrison v. Wilson, 30 Cal. 344; Co. v. Woodbury, 45 Me. 447; Strong Reeder v. Craig, 3 McCord, 411; v. AVaddell, 56 Ala, 411; Boisclair v. Blakemore v. Taber, 22 Ind. 466; Jones. 36 Ga. 499; Walker v. Sedg- Washabaugh v. Entriken, 34 Pa. St. wick, 8 Cal. 398; Allen v. Lalhrop, 46 74; Conover V. Porter, 14 Ohio St. 450; Ga. 133; Bailey v. Acaden-y, 12 Mo. French v. Spencer, 21 How. 228; 174 ; Newton v. McLain, 41 Barb. Kirkaldie v. Larrabee, 31 Cal. 455; 285; Lee v. Porter, 5 Johns. Ch. Reed v. Sheply, 6 Vt. 602; Palmer v. 268. Smith, 10 N. Y. 303; Gotham v. ■• Connover v. Porter, 14 Ohio St. Gotham, 55 N. H. 440; Hoyt v. Dim- 450. end, 5 Conn. 479; Amounet v. Annis, 1024 The Law of Estoppel. lias, but as to the wife, the mortgage being a fraud, she is not estopped to claim her inchoate right of dower. § 903. One who is asked to become the purchaser of a demand, or to accept it as a security, may apply to the debtor for informa- tion and if the latter states in response to such an inquiry that he has no defense, or that the amount is due, he cannot retract the admission after it has been acted upon by the assignee ;' where such a dechiration is made in writing by a mortgagor it becomes a muniment of title, and may be conclusive in favor of third per- sons who give vahie on the faith of it, or whom it contributes to mislead." But the estoppel will not arise unless the assignee changes his position for the worse in reliance on the declaration.' And consequently not in favor of one who takes an assignment of mortgage as security for an antecedent debt.* The assignee must show that he parted with a consideration, and what the consideration was." A mortgagor executed an acknowl- edgment under seal, and duly acknowledged before a magistrate, that the debt was due, and that the assignment was made with his assent ; Held not conclusive in favor of the assignee without proof that he was a purchaser for value." One who makes a formal admission of the validity of a mortgage as a means of inducing a third person to accept it as a collateral security, enters into a direct engagement with the assignee' and should be as much bound as if he were the maker of an accommodation note, and such should certainly be the effect when the acknowledgment takes the form of a covenant, or is under seal. A promise to the assignee subsequently to the transfer fails as 1 Buckiicr V. Smith, 1 Wash. 296; mer v. Bank, 90 Ind. 386. McMulliii V. Warner, 16 S. ik R. ^ Ashton's Appeal, 73 Pa. St. 153; 18; Elliott V. Callace, 1 P. «k W. 24; Scott v. Sadler, M Pa. St. 211; Kel- Jones V. llardesty, 10 G. & J. 404; logg v. Ames, 41 N. Y. 2o9; Twitchell Sand V. La Co.sle, How. 471; Decker v. ]\IcMurtrie, 77 Pa. St. 383. V. Eisenhauer, 1 Pa. St. 470; Sar MVeaver v. Lynch, 25 Pa. St. 449; geant v. Saryeant, 18 Vt. 371; Foot v. Hill v. Puruell, 2 Md. Ch. 137. Kctchum, 15 Vl. 258, Bank v. Jerome, ■■ Ashton's Appeal, 73 Pa. St. 163. 18 Conn. 443; Watson v. McLaren, 19 ' Weaver v. Lynch, 25 Pa. St. 449. Wend. 557; Petriev. Feeter, 21 Wend. •* Twitchell v. McMurlrie, 77 Pa. 175; tiawkius v. Keal, 60 Miss. 256; St. 383. Meggett V. Baum, 57 Miss. 22 ; Plum- •> Elliott v. Callan, 1 P. & W. 25. Application to Mortgages. 1025 a new contract for want of a consideration,' but may operate as a ratification of the implied agreement of the assignor, and pre- clude the debtor from making a set-off, although not, as it would seem from showing that the debt is not due.* § 904:. Where a mortgagor at the same time that he executes a mortgage delivers to the mortgagee a writing certifying that he lias no defense or defalcation, it is in effect an agreement that the mortgagee shall negotiate the mortgage. It is an acknowledg- ment that he has received full consideration. It is, indeed, most usual to execute such v/ritings when no consideration has been received, and tbe sole object of the mortgage is to raise money by the sale of it. It would be in the highest degree inequitable to allow the mortgagor to set up that there was fraud in obtain- ing the mortgage, or a misappropriation by the mortgagee of the money raised by the sale.' Thus a mortgagor executed " a cer- tificate of no defense." It distinctly referred to tlie bond and mortiraee, stating; where the latter was recorded, and declared that it, together with the bond accompanying the same. '' is justly, fully and entirely owing, and payable according to the terms and conditions thereof. And I hereby also certify to any person or persons who may desire to pur.cluise the same, that I have no drawback, claim, set-ofl:, or other defenseof any kind whatever, to the payment of any part of said mortgage, either principal, inter- est or commissions, when due, and payable or collectible, by the terms and conditions therein recited, as aforesaid." On the day after its date he duly acknowledged this certificate. He placed the bond, mortgage and certificate, three written instru- ments, in the hands of G. in anticipation of needing money, and with the view of a subsequent negotiation of the ?nort- gage. H., to whom the mortgage was executed and the bond payable, was the law partner of G. The jury found, that subsequently McC, the equitable defendant in error ' Weever v. Lyncli, 25 Pa. St. 449; soa v. Nay, Pa. St. ; Gill v. Payne v. Burnham, 63 N. Y. 69. Hutcbinsou, Pa. St. ; Burns v. ■■'King V. Fowler, 16 Mass. 897; Aslitou, 1 Pa. Leg. Gaz. R. 417; Thompson v. Emery, 27 N. H. 209. Twiteliell v. McMurtrie, 77 Pa. St. * Ashton's Appeal, 73 Pa. St. 153; Scott V. Sadler, 52 Pa. St. 211; Mc- Millen v. Wenner, 16 S. & R 18; Weaver v. Lynch, 25 St. 449; Robert- VoL. I.— 65 383; Purser V. Anderson. 4 Ed. Ch. 171; Payne V. Burnham, 4 T. & c. 678. 1026 The Law of Estoppel. jDurchased tlio mortgage of G. in good faith and for a valu- able coDsideration, and took ua assignment tliereof from II. It matters not that G. may have sold the mortgage, and caused it to be transferrcd before he was authorized so to do under the private instructions given him by the mortgagor ; nor that he failed to account to the kxtter for tlie money received there- for. These facts are insulficient to defeat a recovery by the assignee. The papers which the mortgagor executed and phiced in the hands of G., not only impliedly authorized a sale of the bond and mortgage, but invited purchasers by expressly declaring that he had "no defense of any kind whatever."* This written declaration fresh from the mortgagor having been shown to the assignee when he was about to purchase, it is idle to say he should have gone to the mortgagor personally and inquired if there was any defense. This certificate was addressed " to all whom it may concern." It could not have been more effective and conclusive notice to one about to purchase, that the mort- gagor had no defense, if it had been addressed to the purchaser by name. The main purpose of the execution and delivery of such a certificate is to dispense with personal inquiry. At the same time it gives certainty to the declaration and perpetuates tlie evidence thereof. It is a well-settled rule that whore one of two innocent persons must suffer from the tortious act of a third, he who gave the wrongdoer the means of perpetrating the wrong must bear the consequences of the act. By placing the papers in the hands of his agents and attorney, the mortgagor gave him the means of making sale of the mortgage, and of obtaining the money of the assignee. The fraud which G. may thereby have praciiced on the mortgagor cannot operate to the prejudice of the innocent and good faith purchaser. " It was further contended that the alterations made in the mortgage and in the certificate, after their execution, were suffi- cient to avoid the instruments. In determining the legal effect of the alteration it is important to consider by whom the altera- tion was made, and the materiality of the alteration. " 1. The assignee was no party to the alterations. He was in no manner privy to their making. They were made by G. He was either the agent of the mortgagor, intrusted by him with the ' Asbion's Appeal, 73 Pa. St. 153; Gill v. Hutcbison, Pa. St. Application to Mortgages. 1027 papers, and authorized to sell the mortgage, so that the act of the agent became the act of his principal ; or he was not such agent, and not interested and not authorized to act for the mortgagor, in which case the alteration was the act of a stranger. Then, although material, the alteration will not affect the validity of ths instrument.' " 2. The alteration in the mortgage was by adding a clause waiving the benefit of a specific act of assembly wliich in fact had been repealed prior to the execution of the mortgage. As then the act mentioned had no validity whereby the mortgage could be affected, an attempt to waive its provisions had no effect. It was simply an immaterial act, which in no manner prejudiced the mortgagor. As therefore the legal effect of the mortgage remained the same, the alteration did not avoid it." "The substance of the alteration in the certificate is a recital that the mortgage was renewed and extended another year. It was the declaration of a fact intended for the benefit of the mortgagor. It was made by G. long after the purchase by the assignee. It did not destroy the title which the latter had previ- ously acquired. " It may be further observed that after this alteration appears to have been made, the mortgagor obtained policies of insurance on the building covered by the mortgage, in which was inserted the clause " loss, if any, first payable to McC, mortgagee." The plaintiff thereby clearly evinced knowledge, and implied ratifica- tion of the assignment. § 905. An estoppel does not arise in general, unless one party is guilty of a deceit which misleads the other.' But it is well settled that one who actively encourages another to buy, is virtu- ally a vendor, and cannot make the purchaser's knowledge that tl'.c title is defective, a pretext for impeaching a transaction which he has impliedly agreed to uphold." ' Greenl. Ev. §§ 566, 568; Lewis v. Gardiuier v. Sisk, 3 Pa. St. 326; Miller Payu, 8 Cowan, 71; Jackson v. Maliu, v. Gilleland, 19 Pa. St. 119; Miller v. 15 Johns. 297; Withers v. Atkinson, 1 Reed, 27 Pa. St. 244; Biukholder v. Walls, 236; Neff v. Horner, 63 Pa. Lapp, 31 Pa. St. 322. St. 327. 3 Shipley v. Abbott, 42 N. Y. 443. " Hunt V. Adams, 6 Mass. 519; ^ Elliott v. Callan, 1 P. & W. 54; Ncvins V. Do Grand, 15 Mass. 437; McMullen v. Warner, 16 S. & R. 741. 1028 The Law of Estoppel A mortgagor who unites in the deed by whicli a mortgage is transferred, ur gives a certiticate under his seal that he has no defense, is estopped from denying the validity of the security, thus solemnly affirmed, whether the assignee is a purchaser or a volunteer. A parol declaration to the same cllect, will operate as an ecjuitable estopi)el in favor of an assignee for value, but not of one who takes the mortgage as a security for an antecedent debt." A mortgage which has been transferred for a valuable consideration to an assignee, vritli a sealed certificate from the mortgagor that there was no offset, was again transferred as secnrity for a pre-existing obligation, ou the faith of the same certificate, and it was held that the mortgagor was not thereby precluded from making a defense, growing out of a sale of stock bv the first assignee, and which would have been valid against him, although the case might have been different if the second assignee had given value for the mortgage. The benefit of the certificate is not conlined to the immediate assignee, to whom or for whose security it was made ; any subsequent assignee claiming under him may avail himself of it. "Were it otherwise it would have the effect of closing the market for the sale of his security to the first assignee, if the debtor should refuse to give a new declaration. Upon the same princijiie, a purchaser, with notice of fraud or trust, njay claim the protection of his vendor without notice, otherwise the latter would be deprived of the principal value of his privilege. But to avail himself of such an estoppel upon the debtor, the assignee, who sets it up, must show that either he, or some prior assignee from whom he claims, was an assignee for value, and without notice. § 906. The doctrine that payment satisfies a mortgage is not applicable where a mortgage is assigned to a person who gives value on the faith of the certificate of the mortgagor that the full amount is due and that there is no offset." Such an acknowledgment estops tlu? mortgagor from alleging that he has paid the debt,^ and this conclusion extends to every one wlio > Eitel V. Bracken, 38 N. Y. Superior McMurtrie, 77 Pa. St. 383. Ct. 7; Ashf oil's App. 73 Pa. St. 153; - Kellogg v. Ames, 41 N. Y. 259; Scott V. Sadler, 52 Pa. St. 211; Kellogg Purser v. Anderson, 4 Ed. Cb. 171. v. Ames, 41 N. Y. 259; Twitchell v. ^ gcott v. Sadler, 52 Pa. St. 211. Application to Moktgages. 1029 has rlerived title from liim during the intorvah ft will not. affect the rights of sncli party l^y placing an intervening grant or incumbrance on the record unless such purchaser or assignee had actual or such constructive notice as made it his duty to investigate the matter before he paid his money.' The execu- tion of a mortgage without any consider ition, for the purpose of having such instrument disposed of to obtain money for the use of mortgagor or mortgagee estops him fro'.n setting up the want of value as a defense against a hona Jide assignee for value,^ and this estoppel binds all claiming under him subse- quently as creditors or purchasers. If a mortgage which has been paid but appears unsatisfied of record, is assigned to one who gives value on the faith of the cer- tificate by the mortgagor that he has no defense, and the mort- gaged premises are subsequently sold to a third person, the law and equity are both with the assignee, and such an assignee has priority of lien over a judgment creditor who obtains judgment after the execution of the mortgage, but befoie that of the certificate. When a bond and mortgage, made without actual consideration as between the parties thereto, has been assigned to a third party, although the evidence does not satisfactorily show that it was. executed with a pre-existing design or consent on the part of the maker that it should be so assigned, yet if the maker by words or acts, afterwards assents to such assignment and ratifies it, the bond and mortgage are thereafter unassailable in the hands of the assignee.^ § 907. In New York ; the doctrine laid down is not as generally applied, as in other states. This is based upon the somewhat local practice or custom in the form and execution of the instruments. The mortgages and bonds in general use in that state are trans- ferable only by assignment. The bond is executed with as much formality as the mortgage and is not accredited with the same character of negotiability which so generally prevails with mort- gages made to .secure promissory notes and coupon bonds in ' Mullison's Appeal, 68 Pa. St. 311; Siio; Irwin v. Tabb, 17 S. & R. 419. Graves v. liodgers, 5U N. H. 452. ^ Sweeney v. WilliMms, H6 .N. J. Eq * Bloomer v. Henderson, 8 Mich. 627; Robertson v. Hay, Pa. St. 1030 The Law of Estoppel. general use in a large portion of this country. The doctrine in that state is, that an assignee of a mortgagee takes not only subject to any latent equities that exist in favor of the mortgagor, but also subject to like equities in favor of third persons. And a recorded mortgage given without any consideration as means for obtaining money for the mortgagor, is of no effect in the hands of a mortgagee ; though it may acquire validity by an assignment for valuable consideration, it will not cut off any equities or rights created, or after the execution of such instrument and prior to such transfer, that the transfer has no retroactive operation, and inter- vening rights thus acquired can not be affected by any acts or representations of the mortgagor.* While the principles adopted in New York are in accord with those cases %vhicli establish the doctrine that priority of lien depends upon the time the considera- tion passes, or the liability is incurred, and not on the date of the instrument. It is open to serious objection that if a purchaser can not rely upon tlie statement of the mortgagor that there is no defense or offset, the transfer and purchase of this class of securities would be fraught with such dangers which no, prudent man would willingly encounter.^ Such a result would be injurious to both the mortgagor and mortgagee, by compelling him to enforce an obligation which can not be disposed of without loss. It is said that such certilicates that a mortgage is valid, and that the mortgagor has no defense thereto, does not estop him from setting up fraud in the transaction which induced the execution of the mortgage, provided the certificate was obtained by fraud, the mortgage and certificate being both tainted by fraud, and not heing negotiahle instruments, are voidable for fraud in whose hands soever they may be.* § 908. It is only where the owner of a non-negotiable chose in action, by his own affirmative act has conferred the apparent title and absolute ownership upon anotlier, upon the faith of which the chose in action has been purchased for value, that he is estopped from asserting his real title.* ' Schaeffer v. Reilly. 50 N. Y. 61; ^ Mathews v. Wallwyn, 4 Ves. 128. Berdanv. Sedgwick, 44 N. Y. 626; » Wilcox v. Howell, 44 N. Y. 398. Trimm v. Marsh, 54 N. Y. 599; Free- * Davis v. Beckstein, 69 Nf Y. 440; man v. Auld, 44 N. Y. 59. * S. C, 25 Am. R. 218; Mosely v. Application to Mortgages. 10P>] 8 909. Where on the assio;nmeut of a morto^age tlie raort- gagor gives a written certificate that the mortgage is a valid lien upon the premises, and that it is given for part of the purchase money, and that there then existed no legal or equitable defense thereto, the mortgagor is estopped in equity by his own repre- sentations from setting up the defense of usury on the foreclos- ure of the mortgage.' Where a party negotiates with the agent of another for a loan, and a part of the money is only paid, and delivers a bond and mortgage for the full amount of the loan, and afterwards in a settlement by the mortgagee with the princi- pal accepts the mortgage and bond in full settlement of his account for the face of the mortgage, and allowed that the money had been advanced to him, he is estopped from denying that he received the whole amount of the money, or from making any claim against the mortgagee on the foreclosure of the mortgage.* Where the holder of a note and mortgage, which are alleged by the party whose name appears to be signed to the instruments, to be forgeries, or to have been obtained by fraud, renders an itemized account to the latter, in which is a credit in his favor^ for the proceeds of the mortgage, showing a balance in the ac; count in favor of the mortgagor, and the latter with a knowledge of the existence of the note and mortgage and of the credit in his favor in the account for the proceeds thereof, sued on that acconiit and recovered judgment, it was such an appropriation of the proceeds of the mortgage as to be a full approval and adoption of it, and made it as binding on the mortgagor as if it had been originally executed by him, or had been fairly obtained in the first instance.' In a suit to foreclose a mortgage, the mortgagor is estopped to answer that the notes and mortgage, Brown, 76 Ya. 419; Taylor v. Bunce, T. & C. 678; Davis v. Beckstein, 69 N, Gil. 43; Whitworth v. Adams, 5 Rand. Y. 440; S. C, 25 Am. R. 218; Schenck 333; Bunnell V. Enders, 18Gratt.873; v. O'Neill, 28 Hun, 209; Diercks v. Grinmi v. CuUen, 20 Gratt. 439. Green, N. J. E. 40; Kellogg v. Ames, ' Dunham v. Ardlipp, 94 N. Y. 129; 41 N. Y. 259; Weil v. Fisher, 43 N. Riggsv. Russell, 89 N. Y. 608; Bay- Y. Super. 32; Smyth v. Ins. Co., 21 lis V. Cockcroft, 81 N. Y. 363; Sav- Hun, 341; Smith v. Munroe, 84 N. Y. ings Inst. v. Wilmot, 94 N. Y. 331; 354; Howell v. Hale, 5 Lea, 405. Smith V. Cross, 90 N. Y. 549; Gris- ^ Kjrpatrick v. Winans, 16 N.J. sler V. Powers, 81 N. Y. 57; S. C, 37 E. 407; Livings v. Wiler, 33 111. 387. Am. R. 475; Payne v. Burnham, 4 » Livings v. Wiler, 33 111. 387. 1032 The Law of Estoppel. tliontrli runniiifr to the plaintifT, were, in fact, the property of a ijiercaiitik! linn of which the plaintiff was a partner, having been given for gooils pnrcliased of tlie firm, and that the partners had made no assignment to the plaintiff.' § 910. In a suit against a mortgagor for the land mortgaged, he is estopped to deny that he liad title when he mortgaged, or to set up title in a stranger.^ But wliere a mortgage refers to a note, the mortgagee is not estopped to deny the existence of sucli note.' A mortgagor may, in the absence of covenants for title, abandon the premises to the mortgagee, or suffer him to take possession and then re-enter under the paramount title derived from a third person.'' The maker of a mortgage for part of the purchase money, is estopped by such representations from setting up failure of consideration or defect of title as a defense thereto.' A party who lias effected a sale of his land, subject to a mort- gage given by a foriner ownei", by representing that such mort- gage is a sul)sisting lien for only two of the three notes secured thereby, is estopped from afterward claiming that it is also a lien for the third note, which ho had in his own possession at the time of the fale." A mortgagee who has made a verbal agreement to discharge the mortgage upon pa^^ment of a part of the money due. and ihns induced a party to purchase the mort- gaged jM'cmises, may be estopped thereby from foreclosing his mortgage; but such agreement will not estop him from denying that the mortgage debt has been fnlly paid, in an action against ' Frcncli v. Blanchara. 16 lud. 143. erts v. Oliver. 46 Ga. 547; Conklin v. ' Wilkinson V. Scott, 17 Mass. 249; Smith, 7 Ind. 107; Doiii^las v. Scott, Small V. Proctor, 15 Mass. 495; Bar- 5 Ohio, 194; Brown v. Coombs, 29 N. kcr V. Harris, 15 Wend. 615; Rcclman ,T. 36; City Council v. Caulfield, 19 V. Bellamy. 4 Cal. 247; Den v. Van S. C. 201.' Ness, 10 N. ,T. 102: Cram v. Baiky, ^ pai-kg^ y Parker, 17 Mass. 370: 10 Gray, 87; Findlay v. Kettleman, Boone v. Armstrong, 87 Ind. 68; 14 Iowa, 173; Cross v. Robinson, 21 Thompson v. Justice, 88 N. C. 269; Conn. 379; Addi.son v. Crow, 5 Goodwin v. Keney, 49 Conn. 282; Dana, 271; Reed v. Sbcpley, Vt. Jones v. Reese, 65 Ala. 134; Campbell 602, Wiles V. Nelson, 26 Vt. 13; Clark v. Trunnell, 67 Ga. 518; Strong v, V. .^IcCiure, 10 Gratt. 305; Green v. Waddell, 56 Ala. 471. Munson, 9 Vt. 37; Osborn v. Timis, 4 Gillian v. Moore, 1 Busb. 95. 25 N. J. L.633; Doe v. Clifton, 4 A. ' Man v. Howland, 20 Wis. 282. & E. 809; Doe v. Vickers, 4 A. & E. « liriggs v. Seymour, 17 Wis. 255; 782; Jarvis v. Deane, 56 >Ie. 9; Rob- Pitts v. Gilliam, 1 Head, 549. Application to Mortgages. 1033 him for refusing to discharge the mortgage.' If the maker of a note and mortgage inforin a party about to purchase them, after due, that the amount appeai'ing by the instruments and indorse- ments thereon to be due, is due and will be paid, and the hatter, relying upon such statements, purchases the note and mortgage for a valuable consideration, without notice of any usury therein, such maker is estopped from setting up the usury to defeat the mortgage.'' Thus, where A. agreed to purchase a note and mort- gage past due, if, on the inquiry of the maker, they siiould be found free from objection, and having been subsequently in- formed by the maker that the sum which appeared by the face of the instrument, and the indorsements tliereon, to be due, was in fact due, and that he would pay it, purchased the same without the knowledge of any usury therein, and paid a full and valuable consideration therefor; the maker was estopped from claiuiing that moneys previously paid by him, sufficient to extinguish the principal, which had been unlawfully applied, by the mortgagee, upon usurious interest, and from denying, for that reason, that such sum was in fact due. He is so estopped, not only as against the person to whom such statements are made, but as against his assignee," and cannot avail himself of any defense which he had against the mortgagee. § 911. The same principles of estoppel in pais apply in the case of inortgag us, and the rule that no man shall take advan- ' Stone X. Lannon, G Wis. 497. v. .Jerome, IS Couu. 443; Graves v. ••'Gill V. Rice, 13 Wis. 549; Mason Rogers, 59 N. H. 452. V.Anthony, 3 Keyes, 609; Ehvell v. - Gary v. Wheeler, 14 Wis.281 ;Tobey Chamberlain, 4 Bosw. .320; Ferguson v. Chipman, 18 Allen, 123; Ilonorc V. Hamilton, 35 Barb. 427; Holmes v. v. Doughty, 4 Bibb, 280; Land v. Williams, 10 Paige, 326; L'Ameroux Lacoste, 6 Miss. 471; Harner v. Jobn- V. Vischer, 2 IST. Y. 278; Payne v. stou, 1 S. & M. Gb. 563; Ayres v Buruham, 62 N. Y. 69; Weyhv. Boy- Mitchell, 11 Miss. 683; Adams v. Ian, 85 N. Y. 394; S. C, 39 Am. R. Biancan, 6 Robt. 334; Ingrabam v. 669; Gary v. Wheeler. 14 Wis. 281; Adem, 3 Humph. 51; Sargeant v. Lesley v. .fohnsqn, 41 Barb. 359; Sargeant, 18 Vt. 371; Farrington v. Marr v. Uowlaud, 20 Wis. 282; Bank, 24 Barb. 554; ^V'eyh v. Boylan, Briggsv. Seymour. 17 Wis. 255; Smith 85 N. Y. 394; S. G., 39 Am. R. 669; V. Newton, 38 m. 230; Watson V. Mc- Weaver v. Lynch, 25 Pa. St. 449: Laren, 19 Weml. 557; Foster v. New- Davidson v. Franklin, 1 B. «& A. 142; land, 21 Wend. 94; Davison v. Frank- Hill v.Purnell, 1 Md. Gh. 137; Bank lin, 1 B. & A. 142 ;^JIiddletown Bank v. Jerome, 18 Conn. 443. 1034 The Law of Estoppel. tage of his onm wrong, is one of universal application. Thus, wliere the owner of personal property allowed it to be niortgatred in his presence to one ignorant of his title, he was estopped from settins: up his ownership to the property against the mortgagee.' Upon the same principle, if a person having an incumbrance on an estate, deny the fact upon an inquiry being made by a person about to purchase it, equity will relieve against the incumbrance. So, likewise, where, upon a treaty for a mortgage of an estate a person who was entitled to be reco^qjed out of the estate, in case a certain incumbrance was levied out of his own estate, was in communication with the mortgagee, to whom he was referred as a person to give information upon the subject of the transaction, but he gave the mortgagee no information of his equitable claim ; it was held by Lord Chancellor Sugden that he could not after- wards set up his claim against the mortgagee.'' A mortgagee who acts as an adviser or witness in the sale of land, with full knowledge that the purchaser is buying with the impression that the mortgage is satisfied, will be estopped by such act from en- forcing his mortgage.' So, an attorney who has advised his client to invest in a title that proves to be bad, and has liimself after- wards, as against the client bought up the better title, will not be allowed to set up his ignorance or negligence, against his cli- ent's claim.' Where the plaintiff purchased a mortgage at the solicitation of the mortgagors, and I'elying on their representa- tions that a certain sum was due thereon, they are estopped from denying the truth of such representations, in an action brought by him to foreclose the mortgage. § 912. An execution creditor, who, at the sale of his debtor's chattel upon a previous execution, purchased it subject to a mort- gage, which the officer making the sale assumed to be a valid lien, prior to both executions, is estopped from disputing the validity of such mortgage.' A party to a foreclosure suit is ' Thompsoa v. Sanborn, 11 N. H. Croucbcr, 1 Dc G. F. & J. 518: Prira- 201; Bird v. Benton, 2 Dev. 79; rose, in re, a Jur. K S. 899; Mahoney Governor v. Freeman. 4 Dev. 492; v. Iloran, 58 Barb. 29. Hibhard v. Stewart, 1 Hilt. 207 ; ^ Burrowes v. Locke, 10 Ves. 470. Howell v. Hale, 5 Lea, 405. * Gibbons v. Hoag, 95 111. 45. ' Boyd v. Bolton, 1 J. & L. 730; » Lesley v. Johnson, 41 Barb. 359 Piatt v. Squier. 12 Met. 494; Slim v. Brown v. Snell, 46 Me. 490. Application to Mortgages. 1035 estopped, by the judgment therein, from disputing the title of a purchaser at the foreclosure sale.' So a Jjarty making a parol contract of sale, and who takes a mortgage from the purchaser for the purchase money, is estopped to set up the statute of frauds.* The assent of a mortgagor to the transfer of the mort- gage, as an indemnity to a third person for uniting with him as surety in a note to the mortgagee, estops him from saying that the note was given for a subsequent debt or advance not covered by the mortgage, and that the surety was, consequently, not liable on the note.' Where a chattel mortgage is given Avithout a consideration, for the purpose of being sold as a means of obtaining money for himself or the mortgagee, the mortgagor cannot set up the want of value as a defense against a hona fide purchaser.* A mortgage of personal property, not yet acquired by the mortgagor, will take effect as against him and others, not having acquired precedent rights, on the title becoming vested in the mortgagor, and possession taken by the mortgagee.' Where one accepts a transfer of personal property, but expressly subject to a mortgage thereon which is held by another, he is estopped from claiming a prior lien upon the property, on account of a previous mortgage held by him, but which was not properly renewed.^ Nor can he set up, as a defense to an action by the subsequent mortgagee, his prior lien, wliere he has voluntarily become the bailee of the mortgagee, and accepted possession of tlie property as belonging to him, and having promised to return it to him on demand.' § 913. Where one buys personal property subject to mort- gage, nominally from the mortgagor but really from mortgagee, or with his concurrence and by his request, the latter will not be allowed to set up a title under his mortgage. In one case,* wliere property was conveyed, and a mortgage given back to secure the purchase money, afterwards, the mortgagor being unable to pay ' Horton v. Davis, 26 N. Y. 495; » Wright v. Boiling, 27 Ala. 259; Lyoa V. Lyon, 07 N. Y. 250; O'Neal See Herman on Chattel Mortgages for V. Duncan, 4 McCord, 246. additional authorities. « Kelly V. Stanberry, 13 Ohio, 108. « Walker v. Vaughn, 33 Coiin. .577. " White V. Evans, 47 Barb. 179. ■> Jones v. Howell. 3 Rob. 438; Lock- * Judge V. Vogel, 38 Mich. 569; wood v. Slevin, 26 Ind. 324. Bloomer v. Henderson, 8 Mich. 395. « Irving v. Neufville, 2 Des. 174. 10:}6 The Law of Estoppel. it, application was made to a tliird person, with the knowledge and by the desire of the mortgagee, who himself wrote to the party upon the subject to buy a part of the property at an advanced price. He accordingly bought it and paid the price, but the receipts were expressed to be on account of the mortgage debt. Before the purchase was completed, the mortgagor ex- pressed to the purchaser his perfect confidence in his fulfilling his engagements. Most of the property was delivered to the purchaser, with the cousent of the mortgagee, and a part of it by the mortgagee himself. The part remaining in the mortgagee's hands having been sold at a reduced price, and the mortgage debt therefor unsatisfied, the mortgagee claimed to hold the por- tion sold, and the purchaser filed a bill for a perpetual injunction against the claim. Held^ the mortgagee was a party to the con- tract of purchase, and the property sold was discharged from the mortgage. But where a mortgagor, having sold the property, the mortgagee, upon being informed of it, said he cared nothing about the property and did not want it, he might still assert his title under the mortgage.' Parker, C. J. says he may thus claim : "There being no evidence of any consideration for it as a release, and the sale not having been made on the credit of it, if that might make any difference. It was a mere loose declaration, which cannot operate as an estoppel. It might have a tendency to show that the mortgage had been settled, and be used with other evidence to show the fact if alleged." § 91-t. If a person having an incumbrance on an estate, denies the fact upon inquiry being made by a person about to purchase it, equity will relieve against the incumbrance." The same rule applies where a mortgagee represents to a third person that the debt for which the mortgage is given is satisfied, or that there is nothing due on the mortgiige ; and such third person acts on such statement, and releases an attachment on the mortgagors goods by reason thereof, and takes a mortgage on the land to secure the debt, which had been previously secured by the attachment ; the last mortgage as between the two mortgagees will take priority of ' Steele v. Adams. 21 Ala. 534. Locke, 10 Ves. 470; Slim v. Croucber, "IbbotsoD V. Rhodes. 2 Vein. 554; 2 Giff. 37; Ward, in re, 31 Beav. 7; Amy's Case, 2 Ch. Ca. 128; Hicksdn Riley v. Quigley, 50 111. 304. V. Anilward, 3 Moll. 1; Burrows v. Application to Mortgages. 1037 the first, although the first is on record when the representation was made ; it is immaterial whether the purchaser examines the records or not, he may rely upon the statement made by the mortgagee/ This rule is inapplicable where the statement is made by the mortgagor, and the party relying on his statement can take no benefit from it.* So, where a mortgagee knowing the desire of the mortgagor to pay off the mortgage, denies having possession of it, for the purpose of preventing its discharge, and by misleading the party prevents such discharge, he is estopped from relying on the mortgage as a defense to an action for the possession of the premises.^ But where the grantee instead of referring to an unrecorded instrument, himself states what the contents are, the party making such inquiry may reasonably trust to the representation of it, in the statement made as being the correct statement of its contents.* § 915. Where a person has an incumbrance or security upon an estate and suffers the owner to procure additional money upon the estate by way of lien or mortgage, concealing his prior lien or security, in such a case he will be postponed to the second incum- brance, as it would be unequitable to allow him to profit by his own wrong in concealing his clai,m, and thus lending encourage- ment to the new loan.^ Thus, if a prior mortgagee, who knows » Piatt V. Squire, 12 Met. 494:Purdy Biittelly, 2 Lev. 152; Anon., 1 Freem. V. Huntington, 46 Barb. 389; Bank v. 310; Pear.son v. Morgan, 2 Brock. 385; V. B;uik, 53 Vt. 82; Evans v. Forstall, Thomp.sou v. Sanborn, 11 N. H. 201; 58 Mi.ss. 30; Riley v. Qiiigley, 50 111. Plumb v. Fluitt, 2 Anst. 432; Lee v. 304; Williams V. Wells, 03 Iowa, 740; Monroe, 7 Crauch, 368; Barrett v. Dodge V. Pope, 93 Id. 480. Wells, Pre. Ch. 131; Cbapmau v. 2 Pratt V. Pratt, 96 111. 184. Hamilton, 19 Ala. 121; Cbester v. ^ Garrison v. Garrison, 29 N. J. L. Greer, 5 Humph. 26 ; Piatt v. Squire, 153. 12 Met. 294; Cook v. Finkler, 9 Mich. * Cox V. Coventon, 31 Beav. 378; 131; Rabun v. Rabun, 61 Ga. 647; Grosvenar v. Green. 28 L. J. Cb. 173. McBane v. Wilson, 8 F. R. 734; ^ Draper v. Borlace, 2 Vern. 370; Alexander v. Ellison, 79 Ky. 148; Clare V. Earl, 2 Vern. 150; Moratta v. Feltz v. Walker, 49 Conn. 93; Hen- Murgatroyd, 1 P. Wms. 393 ; Berris- drix v. Kelly, 49 Conn. 93; Mayor v. ford V. ililward. 2 Atk. 49; Beckett Eihardt, 88 111. 452; Redman v. Gra- v. Cordley, 1 Bro. Ch. 353; Cholmon- liam, 80 K C. 231; Wylie's Appeal, donly V. Clinton, 2 Meriv. 362; Evans 90 Pa. St. 210; Green's Appeal, 97 Pa. V. Bickuell, 6 Ves. 173; Lasalle v. St. 342; Steed v. Whittaker, Barn. C. Barnett, 1 Blackf. 150; Heriing v. C. 220. Feirers, Gilb. Eq. Cas. 85; Edlin v. 1038 The Law of Estoppel. tliat another person is about to lend money on the mortgaged property, should deny that he had a mortgage or should assert that it was satisfied, his mortgage will be postponed to that of the second mortgagee, who loaned his money on the faith of the representations so made.' So, where a mortgagee places his mort- gage in the debtors hands, so as to enable him to represent it as extinguished, and thereby gain further credit upon a mortgage of the same property, the first loan will be postponed to the second one." § 916. A mortgagee promised, by writing, not under seal, to extend the time of payment, and a third person, in consequence, bought the estate from the mortgagor. The mortgagee being bound by his promise, could not maintain scire facias upon the mortgage until the time of such extension had expired.' The judge, in delivering the opinion of the court, said: "Whether such a paper given to the debtor would have been binding, is not the question ; though if a mortgagee gives a writing to his mort- gagor that he will accept a debt presentlj'^ due, if paid in install- ments, at specified times, and receives* one or more of them as they fall due, it may, in some instances, be a great fraud to after- wards proceed, before the other installments fall due ; and I am not prepared to say that it would, under all circumstances, be void. Bnt that is not the case. It is not fair, nor honest to make a promise which induces a man, a stranger to the party, to buy his goods, and give his labor, to exchange his property, for an incumbered property, and promise not to press the incumbrance, and then say : I make nothing by the indulgence which I prom- ised you, and I will not meet my promise. True, the mortgage Avas a deed under seal, and this not under seal ; but it was, though informal, enough to induce him to exchange for that land, and pay one-third of a debt which he w^as not liable for, and never M-ould have been, except for that paper, and, in equity, it was as binding as if more formally drawn under seal, and witnessed. xV moj-tgagee requested the holder of a note of the mortgagor, in which the mortgagee was surety, to obtain judgment on the note, ' Lee V. lironroc, 7 Crancli. 366; Morony v. O'Dea, 1 B. & B. 121; McLean v. Dow, 43 Wis. 610. JNIoses v. Murgatroyd, 1 P. Wms. 394. ^ Ilenick v. Atwood, 2 D. G. & J. 3 Hoffman v.- Lee, 3 Watts, 352. 21; Moore v. Vail, 13 N. J. E. 295; Application to Mortgages. 1039 and levy on and sell the mortgaged premises ; he was also present at the sale, and asked one person to bid, and did not object to the sale. He was estopped to assert his title under the mortgage.* A mortgage was without consideration, the mortgagee forclosed by sale, at which A. purchased, paying a small amount in cash and the balance by note, the mortgagor being present ; afterwards a creditor of the mortgagor obtained judgment and levied on the goods. The sale passed a good title by reason of the acquiescence of the mortgagor, notwithstanding the want of consideration, and the creditor was in no better position than the mortgagor, unless he could show that the whole transaction was a device to defraud the creditors.* § 917. If parties claiming an interest in land, look on and see it conveyed, or take part in the transaction without complaint or objection, they are estopped in equity, from afterwards setting up a title against the grantees and those holding under them. This rule rests rather on the tendency of such conduct to mislead, than on any deceit actually intended or actually practiced in such case.' The rule of law is clear, that where one by his words or conduct willfully causes another to believe the existence of a cer- tain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded, from averring against the latter a different state of things as existing at the same time." A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute the fact, in an action against the person whom he has himself assisted in deceiving."" This principle is applicable to mortgagees. § 918. Where a devise of lands to children of the testator was made with a provision that the part devised to one of them ' Morford v. Bliss, 12 B. IMon. 255. v. Cannon, 4 New Cas. 453; Sheffield ' Allen V. Cowan, 23 N. Y. 502. v. Woodcock, 7 M. & W. 574; Clielt- ^ Shepley v. Rauglcy, 1 AVood & M. enham v. Danvil, 2 Q. B. 281 ; How- 217. ard v. Hudson, 2 E. & B. 1; Foster v. ^ Pickard v. Sears. 6 Ad. & Ell. Mentor, 3 S. & B. 48; Gurney v. 474. Evans. 3 H. & N. 122; Cornish v. 5 Gregg V. Wells, 10 Ad. & Ell. 97; Abington, 4 H. & N. 549; Holroyd v. Sandy v. Hodgson, "lO A. ■& E. 472; Marshall, 2 De G. F. & G. 596; Ger- Stroud V. Stroud, 7 M. & G. 417; Cox hardt v. Bates, 2 Q. B. 476. 1040 The Law of Estoppel. should be subject to the maintenance of Lis widow for life; the widow, claiming a beneficial interest in the lands devised, under a mortgage made to the testator and herself, deceptively acqui- esced in the provisions of the will for several years, and thereby gave reason for confidence on the part of hona jide purchasers from the children that sucli provisions were to be final and not disturbed — LLeld^ although such purchasers were not proved, in fact, to have acted in this confidence, she was estopped to impeach their title.^ In another case, the demandant gave in evidence a quit-claim deed from the tenant to Daniel Kimball, dated December 23, 1818; the levy of two executions on the 8tli of November, 1827 ; a conveyance from the execution creditore to the demandant ; a deed from Daniel to Leggett and Hance, dated November 27, 1828 ; and a deed from them to the demand- ant, dated xVpril 25, 1832. The tenant then offered a bond from Daniel to him, dated December 23, 1818, conditioned to re-con- vey the property ; a mortgage from the tenant to one Peabody, dated May 17, 1811, to secure a certain sun) ; an assignment of it by Peabody to AVheelwright and Clark, April 24, 1812; an assignment from them to one Buck, of Jane 2, 1827; and a deed from Puck, i-eciting a judgment on the mortgage and possession taken under it in 1824, to the tenant, dated June 2, 1827. The levies were duly recorded, as also all the deeds, all of which cov- ered the deu)anded premises. The bond to re convey was not recorded. The tenant had been in possession thirty years, built a house on the land, and made expensive repairs, both before and after Puck's deed to him. Upon tliese facts the defendant hav- ing been defaulted, the default was taken off, and a new trial ordered. Upon the new trial a verdict was rendered for the demandant. It appeared that after the tenant had paid off the mortgage, and taken a re-lease of the premises, having conveyed to Daniel and being still in possession, he knowingly suffered two executions to be levied on tilt premises as Daniel's without claiming title ; that he pointed out the bounds at the time of the levy, and agreed to become a tenant and pay rent. He continued the tenancy till 1829, and rendered an account of repairs made by him to the plaintiff, who subsequently himself made repairs and put in another tenant. Xo claim was made under the mort- » Ackla V. Ackla, 6 Pa. St. 228. Application" to Mortgages. 1041 gage, till after the plaintiff had purcliased the title. The mort- gage, under these circunistances, was declared extinguished ; that it could be kept alive only by the equitable principle of being most for the mortgagee's interest, which was rebutted by a stronger equity on the part of the demandant, and could not be applied where it would promote a fraudulent purpose.' § 919. One having a mortgage upon the property of his son, encouraged a third person to purchase the property, promising to abide by any agreement which the son might make concerning the mortgage. The son delivered the mortgage to the purchaser, but it was re-dclivered to the father for the purpose of having it discharged. Held, the mortgage could not be enforced.'* One co-tenant, owning one-eighth of the land, and holding a mortgage on the other seven-eighths, joined the other in conveyance of the whole, the terms being as follows: — "Do hereby give, &c., that is to say, the said, &c., seven-eighths parts, and the said, &c., one-eighth part of the following piece, &c. And we do covenant, &c., that we are lawfully seized, &c. ; that they are free of incumbrances and that we have good right to sell, &c., in the aforesaid proportions." The mortgagee did not disclose his mortgage to the purchaser. Held, an action coilld not be main- tained upon the mortgage.' Shepley, J. says :— "Admitting the covenants to be several and not joint, the effect of tiiis transaction is, the demandant knowingly becomes a party to the most solemn assurance made by his mortgagor under his hand and seal, that the seven-eighths are free of all incumbrances, and that he has good right to sell and convey ihe same. And he does this while he held a mortgage covering the premises, on which was due more than double the amount of the purchase money, without causing any exception of his own title to be introduced. He is as much bound by the declarations of his mortgagor as if they were his own. It w^ould be a fraud upon the purchaser to per- mit him now to disturb that title. It would be no legal excuse if done through ignorance or inattention, for it is more just that he should be the loser under such circumstances than that the innocent and faultless purchaser should." Thus, when a mort- ' Hatch V. Kimball, 16 Maine, 146. ^ Duiiiaiu v. Alden, 20 Me. 228. * Curtis V. Tripp, 1 Iowa, 318 Vol. I.— 66 1042 The Law of Estoppel. 2;;igce consents to the sale of tlie property, or permits it to be levied upon without asserting his claim, he is estopped from claiming title to it as against the purchaser/ as between the morttjagee and the purchaser of pi'operty acquired subsequently to the mortgage, but mentioned . therein as being conveyed thereby, the former, by attending the sale upon execution, bid- diiiir, and omittiiW to ii:ive the bidders notice of his claim, will be estopped from claiming a right to specific performance of the contract to give a mortgage. * § 920. A. executed mortgage deeds of the same land, on the same day to 13., and C. afterwards assigned his interest to D. E. having attached the premises as the property of C, and recovered judgment against him, sent an agent to D. who had knowledge of such judgment, to inquire whether there was any priority in the deed under which he claimed, to which D. replied, " There was not ;" that " both deeds were delivered at the same time;" and that " B. had given a writing to that effect." E. there- upon took a mortgage of the premises from C. to secure his debt; C. being at this time insolvent. D.'s representation, however, was not true ; the deed to B. having been, in fact, delivered first. On a bill of foreclosure, brought by D. against E., the plaintiff was estopped by these facts, from claiming a priority of title. § 921. A mortgage will bo avoided as to third persons, by any misrepresentation or concealment, on the part of the mortgagee, with respect to his incumbrance, which induces them to purchase or make advances upon the land.' Where an incumbrancer stood by at a treaty for the settlement of an incumbered estate on the marriage of the owner's son, without opposition, and fraudulently concealed his charge, and privately assured the father of the son that he would trust to his j)ersonal security, he was compelled to reiinquish his charge as against the son and his wife, and the issue of his marriage.* Where a party acquiesces in a conveyance of ' Grace V. Mercer, 10 B. Mon. 157; Lean v. Dow, 42 Wis. 610; Lee v. Duulo3^ V. Hector, 10 Ark. 281 ; Coch- Munroe, 7 Cranch, 3C6 ; Dodge v. rail V. Ilarrou', 23 111. 34.1. Pope, 93 Iiid. 480; Williams v. Wells, « Otis V. Sill, 8 Barb. 102; Reale v. 62 Iowa, 740. Barclay, 10 B. Moii. 261. ^ Berrisford v. Milward, 2 Atk. 49; 2 Cliapmau v. Hamiltou, 19 Ala. Bragg v. Boston, &c. Co., 9 Allen, 121; Riley v. Quigley, 50 111. 304; Mc- 54; Drew v. Kimball, 43 N. II. 282; Application to Mortgages. 1043 his own property by another, under color and claim of title, with knowledge of the facts, he will not be permitted to dispute that title. Ignorance of one's legal rights will not prevent the appli- cation of this equitable estoppel, when the circumstances would otherwise create a bar to the legal title. Thus, where a party executed a mortgage and was compelled to borrow money from a bank to pay the interest ; he made default, and induced the mortgagee to make sale under the mortgage ; he made an arrange- ment with the bank, by which it was to buy in the property, pay the mortgage, hold the property until, by sales, they should be reinbursed the amount they had advanced. This arrangement was acted on during the life of the mortgagor who attorned to them, and proceeded to sell from time to time, and applied the proceeds in accordance with the agreement, the mortgagor sur- rendering possession to the purchasers of the various parcels as they were sold. The conduct of the mortgagee estopped him from subsequently asserting the irregularity in the foreclosure sale, and from recovering possession of the property from the grantee's of the bank. Jlis wife was also estopped from denying the validity of the proceeding, she having affirmed what she did during coverture, by recognizing the validity of tlie conveyances, and by accepting the surplus arising from sales made by the bank after her husband's death.' So, where a mortgagor induces a per- son to purchase a certilicate of sale by stating that he had no title to the mortgaged premises, and the time of redemption expired, he cannot thereafter question the regularity of the foreclosure and sale, as against such purchaser.'* § 922. Considerable judicial discussion has occurred of late, in regard to the effect of an attorney, agent, grantee, or mortgagee acting as a witness, and subscribing his name to the instrument, where such instrument is unrecorded. The doctrine held by some of the courts of this country, is, that such instrument is not Moore v. Bowman, 6 A. & E. 474; Hoffmire v. Holcomb, 17 Kas. 378; Thompson v. Sanborn, 11 N. H. 201; Reed v. Leups, 88 Wis. 353; Southard Picard v. Sears, 6 A. & E. 474; v. Perry, 21 Iowa, 488. Dewey V. Field, 4. Met. 381; Bird v. ^ Curyea v. Berry, 84111. 601; Ra^ Benton, 2Dev. 179; Governor v. Free- bun v. Rabun, 61 Ga. 647; Power v man, 4 Dev. 473. Thorp, 93 Pa. St. 346; Youngblood v. ' Tilton Y. Nelson, 37 Barb. 595; Cunningham, 64 Ala. 410. 1044 The Law of Estoppel. notice to a subscribing witness.' And also, that a party who takes an acknowledgment and writes the notes for unpaid pnrcliase money, who sonietinie thereafter purchases the proj)erty, has neither actual or constructive notice, of any claim by the original vendor fur unpaid purchase money." The objection to the doc- trine established by the above cases, is that they ignore the very object intended by statutes requiring attestation. The better rule and one based on sound principle is, that while it does not a})])car that a l^arty snb.>icribing his name as a witness to an insti'ument, actually knows the contents thereof, which is executed either in his ))resence vv the execution of which he is to attest ; yet where it does not appear that he might not have known the contents ; it is pi'csunied, that every witness who can read or write is acquainted with the substance of the deed or instrument which he attests, and undertakes to support by his evidence. And when a prior mortgagee or grantee is a witness to a subsequent conveyance and does not acquaint the subsequent incumbrancer or gi'antee of the fact that he has a prior unrecorded deed or lien ; he should have such prior deed or lien postponed in favor of the subsequent one.^ The failure to disclose the fact that there is a prior deed or an unsatisfied prior lien on the property is ' Vest V. Miohie, 31 Gnitt. 149; S. C, 31 Am. R 723. ■* Wliitc V. Fisher, 75 Ind. 65; S. C, 40 Am. R. 287; ^lorrison v. Bausener, 32 Gratt. 225; Beiiuelt v. Chase, 72 Mc. 220; S. C, 39 Am. R. 319; Ytiger V. Barz, 56 Iowa, 77; Vest v. Micliic, 31 Gratt,. 149; S. C, 31 Am. R. 722. 3 ]\Ioroiiy V. O'Dea, 1 B. & B. 121 ; Mocatta v. Murgatroyd, 1 P. Wms. 394; Savage v. Foster, 9 Mod. 35: Briggs V. .Jones, 10 L. R. Eq. 92: Rice V. Rice, 2 Drew. 73; JSTesliu v. Wells, 104 U. S. 439; Brown v. Sadler. 10 La. Ann. 200; Glieen v. Osborne, 11 Ileisk. 61; Xicliolsou v. Hoover, 4 :My. & Cr. 18G; Brooks v. Record, 47 111. 30; Lloyd V. Lee. 45 111. 277; Bri:ikerhoff v. Lansing, 4 .Johns. Ch. 65; Kane v. Harrington, 50 111. 232; Baker v. Humphrey, 101 U. S. 494; :Nicholsv. Pool, 89 111. 491; Stephens v. Dennett. 51 N. H. 324; Hale v. Skinner. 117 Mass. 474; Brown v. Tucker. 47 Ga. 485; Blakemorc v. Tabor, 22 Ind. 406; Cliapmau v. Hamilton, 19 Ala. 121; Miller v. Bingham, 29 Vt. 82; Rangely v. Spring, 22 Me. 130 ; Cochran v. Hariow, 22 111. 345; Ryburu v. Piyor. 14 Avk. 505; Bank v. Roop, 48 N.' Y. 292: Green v. Price. 1 Muufd. 449; Bird v. Benton. 2 Dev. L. 179; Gov- ernor V. Freeman, 4 Dev. L. 472; Hibbard v. Stewart, 1 Hilt. 207; Ilogan V. Brooklyn, 52 N. Y. 282; Cholmondouly v. Clinton, 2 Merriv. 362; Sleed v. Whitaker, Barn. C. C. 220; Herring v. Ferrers, Gilb. Eq. Ca. 85; Edliu v. BaUally, 2 Lev. 152; Anon. 1 Freem. 310; Barrett v. Wells, Pre. Cha. 131. Application to Mortgages. 1045 indicative of fraud, and the pnrcliasing of property by a witness to an unrecorded instrument is no less so. Tlius, where a grantor conveyed property to a grantee receiving a purchase money mort- gage from the grantee v,'hich was recorded with the deed, the grantee never took possession. Tlie mortgagee by an instrument which was recorded assigned the mortgage to A., who conve3'ed the premises with warranty to 13., under whom the parties chiimed title. The original purchaser and mortgagor 'resided near the premises for years, and knew that A. and others were in adverse possession, claiming title, but never claimed or intimated that he hiraselfi had any title ; he drew the conveyance of A. to B., and as a notary public, took A.'s acknowledgment thereto, and was silent as to any defect in the title. He subsequently executed a quit claim deed of the premises to a stranger. It was held, that the facts made a complete case of estoppel iti pais, and that nothing passed by such quit claim deed.' So where G., at the request of C.'s son, bought of C, a tract of land, not knowing that a portion of it was owned by said son, and erected a building thereon ; the son, being a witness to the deed was estopped to set up any title to the portion of the lot owned by him, and Avas perpetually enjoined therefrom.^ So, where A. assigned to a receiver, under a decree of the court, all his assets, including certain documents upon which his attorneys claimed a lien for tlieir fees. They, however, assisted in making the assignment, and gave no notice of the existence of their lien. The assignment also included a claim for money which was then in suit, and was afterwards decided in favor of A., the defendants therein paying the money to A.'s attorneys, by A.'s direction, without the knowledge either of the receiver or of the creditors for whoses benefit he had been appointed. The attorneys were estopped by their silence from subsequently setting up a claim to the money paid under the decree.' So where A. and B. executed a lease to C. of certain land, at an agreed rent, upon which C agreed to erect certain buildings, which he should own and remove at the end of the term ; to secure the payment of the I'ent, the build- ings were in the lease declared to be mortgaged to the lessors.. The lease was signed and acknowledged at the time the buildings ' Baker v. Humphrey, 101 U. S. « Gheen v. Osborne, 11 Heisk. 6t. 494. 3 Nichols V. Pool, 89 111. 491. 1046 The Law of Estoppel. were ci-ccted on the property ; and was recorded in the record of mortgages of the county. D. was a subscribing witness to the execution of the lease Ijy 0. ; and by an arrangement subsequently between him and C, he became the prospective owner of the improvements to be erected by C. on the land. D. was estopped by his own acts to deny C.'s ownership and the ownership of the lease and improvements and his right to incumber them by liens ; and all persons claiming under or through D. were bound by that estoppel." Thus, where an attorney holding a mortgage upon land, was employed by the mortgagor to draw the deed, and assist in the conveyance of a portion of the premises to an ignor- ant purchaser, and, although knowing that the purchaser was paying the full value of the property, concealed the fact of the mortgage, neither the attorney nor his assignee could enforce the mortgage against this portion of the land." Such transactions illustrate the mB.x\mf rates est celare fraudem. § 923. Where a mortgage is properly filed or recorded, such record is notice to all the world of the mortgagee's rights, and though he drafted the second mortgage, or witnessed a subsequent conveyance, or stands by silently while the property is sold under an inferior lien, liis lien will not be postponed or lost.' When a mortgagee causes his mortgage to be recorded, he has done all that is required of him to preserve his lien ; and all persons pur- chasing from the mortgagor subsequently, are bound at their peril to take notice of the mortgage, and of the prior right of the mort- gagee. By complying with the registration laws he giv,es all the notice he is bound to give so long as he remains passive ; it is only when he sees another purchasing land or obtaining a lien thereon, upon which he has some unrecorded lien or charge, of ' Blakemore V. Tabor, 37 Ind. 466. 16 Pick. 566; Cooper v. Bigley, 13 9 L'Amraoureux v. Vandenburgh, 7 Micli. 463; Fisber v. Mossman, 11 Paige, 316. Obio St. 42; Tongiie v. Nutwell, 17 => Steele v. Adams. 21 Ala. 543; IMd. 212: Hill v. Epley, 31 Pa. St. Jones V. Twick, 33 Iowa, 246; Jack- 332; Odlin v. Gove, 41 N. H. 477; sou V. Dubois, 4 Jobns. 216; Clabaugb Bigelow v. Topliff, 25 Vt. 273; Carter V. Byorly, 7 Gill, 354; Brinkerlioff v. v. Cbampion, 8 Conn. 594; Schade v. ' Lansing, 4 Jobns. Cb. 65; James v. Bcssiger, 3Neb. 140;Brnwnv. Tucker, Morey, 3 Cow. 246; Patterson v. 47 Ga. 485; Dollett v. Kemble, 23 K Esterling, 27 Ga. 205 ; Wbite v. J. E. 58; Wbite v. Pbillips, 12 N. H. Pbelps, 13 N. H. 382; Paine v. French, 383. 4 Obio, 318; Canada v. Southwortb, Application to Mortgages. 1047 which the other is ignorant, that he is bound to give notice thereof. And, upon failing to do so he is estopped to set up Iiis claim against the purchaser.' § 924. This kind of fraud is chiefly cognizable in equity, though even courts of law will often take notice of it. In many cases, equity and law have concurrent jurisdiction. The prin- ciple of equity is, that where one seeks, by misrepresentation or even huproper concealment of facts, in the course of a transaction, to mislead the judgment of another to his prejudice, the court will generally interfere. Mere concealment or looking on has the same effect, as using express words of inducement. •' Qui tacet, consentire videtur. Qui ])otest et debet vetare jubetP If a per- son maintain silence, wlien in conscience he ought to speak, equity will debar him from speaking when conscience requires him to be silent.' It is a fraud to conceal a fraud. If a mortgagee stands by at the sale and receives the consideration, it is a dis- charge of that part from the mortgage." As a general thing it must appear that the acts would not have been done, and that the party must have conceived they would not have been doue, except upon such encouragement \* though, in some cases, even the ignorance of the party misleading has been held to make no differ- ence. In a case of this kind, chancery will not only refuse its aid to enforce the mortgage, but, upon a bill by the party injured, to quiet his title, \Yill decree a perpetual injunction against enforcing the mortgage, declare it void, or order a release or conveyance.* A mortgagee without notice of an outstanding title, in one who encourages him to take the mortgage, or stands by and makes no objection, will be protected against it." So, where a mortgagee upon assurance that he will be paid out of another fund, allows > Gray v. Bartlett, 20 Pick. 180; Otis v. Sill, 8 Barb. 103 ; D.arnley v. Moore v. Bowman, 47 N. II. 499; Rector, 10 Ark. 281. Mayo V. Cartwright, 30 Ark. 407; ^ Hoffman v. Lee. 3 Watts, 352; Gnnndie v. Water Co., 7 Pa. St. 233; Napier v. Elam, 6 Yerg. 108; Grace v. Whitman v. Boiling, 47 Ga. 125; Rice Mercer, 10 B. Mon. 157; Carter v. V. Bunce, 49 Mo. 231; Meley v. Col- Longworth. 4 Ohio, 385; Lassalle v. lins, 41 Cal. G63. Barnett, 1 Blaokf. 150. 2 Hall V. Fisher, 9 Barb. 17; Riley « Green v. Price, 1 Mumfd. 449; V. Quigley, 50 111. 304. ' Taylor v. Cole, 4 Mumfd. 351; Stevens ' McCormick V. Digby, 8 Blackf . 99. v. Dennett, 51 N. H. 324; Hale v. «lbbotson V. Rhodes, 3 Vt. 554; Skinner, 117 Mass. 474; Brown v. Tucker, 47 Ga. 485. 1048 TiiK Law of Estoppkl. the mortgagor to sell tlie ])ropcrty witliont asserting liis claim, the purchaser from the mortgagor will be protected, notwithstanding the fact, that the fund from whicli he expected payment, fails.' So, where a mortgagee agrees that his lien shall be subject to cer- tain judgments, he cannot assert a title nnder his mortgage as against the parties acting nnder such judgments.' § 925. So, where A. bought land of B., and gave a mortgage for the purchase money after judgments had been entered against A., the mortgage was recorded. C. bought the land at sheriff's sale on one of the judgments subject to the mortgage, and in consequence paid much less than the value of the land ; C. sold ; the vendee having knowledge and retaining enough of the purchase money to pa}' the mortgage, is estopped from denying that he bought subject to the mortgage.' A mortgagee, Avho after assigning an interest in the mortgage debt, files a bill in the name of himself and the assignee to foreclose, and alleges therein under oath the assignment, is estopped from setting np usury in the assignment." Where a mortgafjee assigns the mortgage and notes secured thereby, with a covenant, that he "is lawfully seized in fee of said notes and has good right to sell the same," he is estopped from den^'ing that they Avere not all due according to their tenor." An assignee of a mortgage after foreclosure, Avho promises a subsequent mortgagee that he may redeem after the expiration of the decree, provided the mortgagor does not, is estopped in ecjuity from denying the right of said mortgagor to redeem, and the estoppel applies to a jiurchaser of the decree cognizant of the mortgagee's claim and right to redeem under the decree." A mortgagee cannot buy in an outstanding title niidei- an arrangement with the mortgagor that it is to be helt^., like tlie mortgage, subject to redemption, and, when the title is acquired, turn round and insist that he lias purchased as a stran- ger, lie must allow the mortgagor to redeem.'^ So, where a bond and mortgage is made to certain persons as executors, and the money due is also payable to them, and the survivor or sur- ' Taylor v. Cole, 4 Jlunfil. 3ol. " Mumford v. Ins. Co., 4 N. Y. 463. « Butler V. Miller. 5 Deiiio, 154. ^ Haskell v. Ins. Co. , 52 Me. 128. 3 Cook V. Douglass, m Pa. St. 51 ; « Woodward v. Couchey, 41 Vt. Wilson V. Wilson, 32 Barb. 328. 496. ' Moore v. Titman, 44 111. 367. Application to Mortgages. 1049 vivors, tbej arc estopped to claim tliat they bold in a different personal capacity/ Where a mortgage was made by live joint trustees, and a mortgage of the joint trust property was given to secure tbe note, purporting to convey tlie wbole estate, but signed by only four of tbe trustees, altbougb drawn in tbe name of all, and it appeared from tbe circumstances tbat tbe otber trustee must bave known of tbe transaction, and tbat be never made any objection to it, it was held tbat tbe mortgage was bind- ing upon bim by an equitable estoppel, and tbat tbe purchaser of tbe equity of redemption of tbe mortgngors at a sheriff's sale was also bound by it.'' So, a mortgagor who assigns a mortgage and all persons claiming under bim are estopped from denying tbat tbe mortgage was executed without the consent of tbe mort- gagee as against a purchase under a foreclosure of that mortgage.^ So, a concealment or entry of satisfaction of a mortgage pro- cured by fraudulent representations to the injury of third par- ties is void." § 926. Where a person takes from anotlier a mortgage of lauds, tbe record title, which is in himself at the time such mortgage is executed, and in good faith assigns such mortgage and it is foreclosed, neither such mortgagee nor his representa- tives or privies can set up such a prior title in him to defeat the mortgage. They are estopped by his acts, and it makes no dif- ference whether it can be proved that he ever executed a deed of the lands to tbe mortgagor or not.^ So, where a vendor put his vendee in possession, and executed and placed in his hands a deed of conveyance, for tbe land sold, with an understanding between them, tbat the deed should not be considered delivered, or become effectual until tbe purchase money should be paid, and tbe vendee subsequently put the deed upon record with- out paying the purchase money, mortgaged tbe land to a hG7ia fide mortgagee for value, without notice, the vendor was estop- 1 People V. Miner, 37 Barb. 446; 179; Brown v. Snell, 46 Me. 490. Lloj'd Co. V. Morrison, 40 Iowa, 188; ^ Loomis v. Stuyvesaut, 10 Paige, Colbj' V. Osgood, 29 Barb. 339; Farn- 490. ham V. Mailory, 5 Abb. P. (N. S.) 380; *■ Buckingham v. McLean, 13 How. Lockwood V. Slevin, 26 Ind. 124. 150; McLean v. Bank, 3 McL. 589. » Bank v. Campbell, 2 Rich. Eq. ^ Rogers v. Cross, 3 Chand. 34. 1050 The Law of Estoppel. pcd, as between hiiii and the mortgagee, from den^'ing tlie deliv- ery of the deed, or asserting any claim to the land.' § 927. Where a party gave a mortgage npon real estate in his possession, the title to which is in another party, who after- Avards conveyed to the mortgagor, and in such conveyance de- scribed the property conveyed as subject to his mortgage, it was held that, as against the grantee and all persons claiming under him, the land conveyed was as effectually charged with the incumbrance as if it had been expressly mortgaged therefor.* Bona fide purchasers are bound by the estoppel of prior grants, for the reason that the assignment of a mortgage is always sub- ject to the equities of the mortgagor and those claiming under liim. An assignment of a mortgage estops the mortgagor from alleging that it was satisiied/ A mortgagor is estopped to deny the fact of an entry having been made for condition broken, by the mortgagee, when he has signed a certificate to that effect on the deed.* But merel}' suffering the mortgagee to enter and record a certificate of sucli entry for a breach of the condition docs not, after a lapse of three years, estop the mortgagor from denying any breach, and showing that none had been made.* A defendant in an action to foreclose a purchase money mortgage, cannot set up as a defense a failure of title where there has been no eviction or disturbance of his possession.' The receipt by the mortgagor of the surplus proceeds of a sale on foreclosure estops him from setting up any irregularities in the mode of service.^ It makes the proceedings conclusive on him. Where a trustee and a cestui qui trust, mortgage the trust property in breach of the trust, they are estopped from setting up such breach in defense of •an action by the mortgagee of the mortgage.* So, the survivor ' Resor V. R. R., 17 Ohio St. 139; Ltitimerv. Rogers. 3 Head, 692; Kin- Findley v. Keltleman, 14 Iowa, 173; dell v. Frazer, 9 Heisk. 727; Kile v. Jarvis V. Dcaue, 50 Me. 9. Yellowhead, 80 111. 208; Hartshorn * Swcet7X'r v. .Jones, 35 Vl. 317. v. Potrofflu, 89 111. 509; Herndon v. « Jackson v. ^Va]d^()n, 13 Wend. Moore, 18 S. C. 339; Test v. Leacli, 178; E(hvards v. Varick. 5 Denio, 7CInd. 452; McDaiiicl v. Anderson, 6(34. 19 S. C. 211: Mather v. Knox, 34 * Bennett v. Conant, 10 Cusb. 167. La. An. 410 ; Goodman v. Winter, 64 * Petteey's Case, 11 Gray, 478. Ala. 410; Filzpatrick v. Apperson, 79 * Farnam v. Hotclikiss, 2 Keyes, 9. Ky. 272. ' Soutl'.ard v. Perry, 21 Iowa, 488; » Ryder v. Sisson, 7 R. I. 341 Application to Mortgages. 1051 of partners who had executed a mortgage is estopped to deny that it was partnership property.* § 928. The validitj^ of a mortgage and the regularity of the judgment on a scire facias obtained on it cannot be questioned by one not connected with the mortgagor's title as grantee, mort- gagee, judgment creditor, &c. Thus, where a married woman executed a mortgage in her maiden name, scij^e f aclases on it were issued against her in that name, judgment was recovered after two nihils, and the land sold by the sheriff ; it was held, that the purchaser took a good title, and the validity of the mortgage could not be inquired into in an action of ejectment for the mort- gaged premises.* Where a mortgage is made in express terms subject to certain bonds secured by prior mortgage, the bonds being negotiable in form, and having in fact passed into circula- tion before such mortgage was given, the junior mortgagees and all parties claiming under them are estopped from denying the amount or validity of such bonds in the hands of bona fide holders.^ Tlie release of a mortgage, obtained in good faith from a foreign administrator, estops the same administrator after taking out letters within the state from objecting that he had no power to release.* § 929. The mortgagor of a chattel having the right of posses- sion for a certain period, or a purchaser from him, cannot, after its expiration, dispute the title of the mortgagee." Where a mort- gagee of personal property, not in possession, is present at the sale of such property by the mortgagor to another, and such mortgagee, on being asked to fix the price between the mortgagor and purchaser, does not notify the purchaser of his mortgage, and the property is afterwards delivered to the purchaser, the mortgagee cannot recover the property as against such purchaser, without notice.' A husband who is present at the execution of a mortgage by his wife, of his personal property, and who assents to its execution, is as effectually bound by the mortgage as though 1 Roberts v. Oliver, 46 Ga. 547. * Vroome v. Van Home, 10 Paige, " Hartman v. Ogman, 54 Pa. St. 549. 120; Glass v. Gieben, 54 Pa. St. 2G6; * Holmes v. Hall, 3 Dev. 98. ^ Bronsoa v. Lu Crosse R. R., 2 « brooks v. Record, 47 111. 30; Lloyd Wall. 283. V. Lee, 45 111. 277; Kane Co. v. Her- rington, 50 111. 232. 1052 Tjik Law of Estoppel. ho executed it himself.' So, where a Imshand permits, without objection, liis wife to liold herself out before the world as trans- actiiiiT business on her sole or separate account, and to deal with the ]iropcrty as her own, the husband is estopped from settinj^ up any claim to the same against the mortgagee of his wife, although he may advance money to her in business, and she uses it to pur- chase the mortgaged property with.^ If a party having knowl- edge that he has title to property, stands by and sees another mortgage it to a third person, to secure a debt or liability incurred at the time, without giving notice of his title, he is estopped from setting it up afterwards in a suit at law.' If a mortgagor sees a person who takes an assignment of his mortgage, pay full value therefore, and conceals from the assignee an equitable defense which he has to it, he will not be permitted thereafter to set up such defense." So, where a judgment was confessed for a debt secured by a chattel niortgage and execution issued thereon and levied upon the chattels mortgaged, which were advertised for sale thereunder, and after the property was sold under another execution against the mortgagor, the mortgagees moved for an order to apply the proceeds to the satisfaction of their judg- ment. In an action of trover against the sheriff who made the sale, their acts were repugnant to any claim under the mortgage and estopped them from claiming the property.* ' Egcrton v. Thomas, 9 N. Y. 40; Antliony v. Stevens, 46 Ga. 241; Stewart v. Mix, 30 La. An. 103G. ^ Sanimis v. McLaughlin, 35 N. Y. 647; Sherman v. Elder, 24 N. Y. Buckley v. AVells, 33 Is. Y. 518. ^ Thompson v. Sanborn, 11 N. H, 201. •» Lee V. Kirkpatrick, 17 N. J. E. 264. 381; Smith v. Knapp, 30 N. Y. 581; ' Butler v. Miller, 1 N. Y. 496. Equitable Estoppels. 1053 CHAPTER XY. EQUITABLE ESTOPPELS AS AFFECTINa THE TITLE TO LAND. Section 930. As wo have heretofore seen, in the case of estoppels by deed, that the most striking instances of its applica- tion were in regard to its effect on the title to land in passing an after acquired estate, it is proper to notice the same application of the doctrine of equitable estoppel in regard to real or personal property in a manner as effectual, if not more so, than where a vendor or purchaser attempts, b}' deed, to convey land without any title, in its action in conveying real and personal property without any written conveyance or agreement, or express inten- tion so to do. § 931. No portion of the law of equitable estoppel is more important than that which applies, when a sale is made without authority or title, and is sanctioned at the time or is ratiiied sub- sequently by the owner, and renders the title of the purchaser vaHd, by imposing silence on the only person entitled to contest it.' This principle applies irrespective of the nature of the prop- ' Huasdeu v. Clieyney, 2 Veru. 150; v. Van Phul, 1 Wall. 274; Smiley v. Wendell v. V.'ia Reussehier, 1 John. Wrigbt, 2 Ohio, 510; Snodgrass v. Ch. 344; Wells v. Pelrce, 27 N. H. Ricketts, 13 Cal. 359; Stevens v. Mc- 303; Hatch v. Kimball, 16 Me. 146; Namara, 36 Me. 176; Woods v. Wil- Higgins V. Ferguson, 14 111. 269; son, 37 Pa. St. 379; McCuue v. Mc- Kangely v. Spring, 22 Me. 130; Pick- IMichael, 29 Ga. 312; Bigelow v. Foss, aid V. Sears, 6 A. & E. 469; Brooks 59Me.'l62; Beaupland v. McKeen, 28 V. Record, 47 111. 30; Nixon v. Caroo, Pa. St. 124; Shaw v. Beebe, 35 Vt. 28 Miss. 414; Tilton v. Nelson, 27 205; Sanderson v. Ball;ince, 2 Jones Barb. 595; Bradley v. Snyder, 14 111. Eq. 322; Savage v. Foster, 9 Mod. 263; Hihbard v. Stewart, 1 Hilt. 207; 435; Brown v. Wheeler, 17 Conn. Durham v. Alden, 20 Me. 228; Car- 245; Shapely v. Rangely, 1 W. & M. penter v. Stillwcll, 12 Barb. 128; 213; Vanhorn v. Frick, 3 S. & R. 278; Doub V. Mason, 2Md. 380; Bucking- Car v. Wallace, 7 Watts, 394; Thomp- bam V. Ilanna, 6 Ohio St. 559; Cope- son v. Sanborn, 11 N. H. 201; Brown land V. Copeliiud, 28 Me. 524; Gregg v. Bowen, 30 N. Y. 519; Nashan v. 1054 Affecting Title to Land. erty sold, and the estoppel will be so moulded as to prevent fraud and injustice in whatever form it may present itself. The prin- ciple tliat one who encourages, or even stands by and sanctions, the acquisition of land b}' another, will not only be estopped from invalidating the interest thus acquired, by the subsequent asser- tion of a title, with full knowledge at the time, but nuiy be com- pelled to make a conveyance to the purchaser, is an old and well established one at equity, and also in modern times in courts of law. The rule is a broad one, and is equally applicable, whether the sale be public or jn-ivate, the act of the parties themselves or the act of the law, with this limitation in regard to sales b}^ author- ity of law,' that, as the sale is of the interest only of the defendant in the execution, requiring clearer proof than is necessary in other cases to estop third persons from asserting an adverse interest which is not prima facie within the scope of the sale." § 932, The statute of frauds requires a writing, when real estate is in question, and the title to land cannot be transferred^ or its assertion precluded under ordinarj^ circumstances by an act in pais or an oral declaration. It is held in some few States' that in a court of. law there can be no estoppel affecting the title to land, unless in writing ; for at law the title can pass only by writing. This matter has been fully examined in chapter XII, Turbeville, 1 Swan. A?,!; Drew v. llust. .36 N. n. 335; Bird v. Beulon, 2 I)ev. 179; Oxley v. Fitcnian, 4 Dev. 472; Giac-e y. ]\Icrccr, 10 B. Mon. 157; Blackwood v. Jones, 4 Jones Eq. 54; Ryder v. Rubber Co., 4 Bosw. 169; Trapnall v. Burton, 29 Ark. 371; Mills V. Graves, 34 111. 455; Pasley v. Free- man, 3 T. R. 51; Evans v. Bicknell, 6 Ves. 174; Slim v. Cioucher, 1 De F. 6 G. 518; Lee v. Monroe, 7 Crancli, 366. > Stone V. Butler, 21 Ala. 543 ; Brown v. Bank, 9 Ga. 187; Billington V. Welch, 5 Binn. 129; Covert v. Ir- win, 3 S. & R. 283; Randall v. Silver- thorn, 4 Ga. 177; Epley v. Whiterow, 7 Walts, 1G3; Riddle v. Moore, 3 Pa. St. 161; Reed v. Hensly, 2 B. Mon. 254; Otis V. Sill, 8 Barb. 102: Eish- beck V. Zimmerman, 2 Pa. St. 317; Morford v. Bli.ss, 12 B. Mon. 255; Wbittin'rton v. Wright, 9 Ga. 313; Wallace v. Tate, 6 B. Mon. 529. 2 ]Menge3 v. Oyster, 4 W. & S. 120. 3 Blake v. Fash, 44 111. 202; Wm- slow v. Cooper. 104 111. 235; Hayes v. Livingstone, 34 ]Mich. 384'. Nims v. Sherman, 43 ^licli. 45; While v. Ilape- mau, 43 r^Iich. 367; Shaw v. Cham- bers, 48 Mich. 355; De Mill v. Moffat, 49 Mich. 25; Taylor v. Ass., 68 Ala, 229; Kelly v. Hendricks, 57 Ala. 193; Stockyards v. Feny Co., 102 111. 514; Wimmer v. Ficklin, 14 Bush, 193; Wales V. Bogue, 31 111. 464; Mills v. Graves, 38 111. 406; Goodman v. Win- ter, 64 Ala. 410. Equitable Estoppel. 1055 ante. Although a party cannot divest himself of a freehold estate by parol, yet he may, without writing, so conduct himself with reference to it that he will be estopped afterwards to assert a claim thereto ; and this doctrine of estoppel is applied without reference to the provisions of the statute of frauds. Thus, R. conveyed to a railroad comoany tw^entytwo acres of land, upon condition subsequent tliat the company should locate its track and depots as specified in the deed. Afterwards, it was agreed by parol, between R. and the president and chief engineer of the company, that the track and depots should be located differently, and the company should reconvey to li. the twenty-two acres, and that R. should conve}^ to the company six acres, a part of the twenty-two. The six acres were marked off in a map made by the company, as its property, and the tracks and depots located thereon according to the last agreement. R. afterwards applied to the president of the company for a reconveyance. He declined to make it until it was ascertained how much of the twenty-two acres another connecting railroad company might need for depot purposes, stating that then all not so needed would be reconveyed. He told R., however, to go ahead and make sale of town lots, parts of the property, and the company would convey to the vendees. Upon the president's death, R. brought his agreement to the notice of his successor, who recognized it, and promised that it should be carried out. R. laid off town lots on the six- teen acres, and sold many, which were afterwards improved. The company's officers were aware of these sales, and saw the improvements being made. In a subsequent controversy between R. and the company, the latter asserted its right to the whole twenty-two acres, denying the authority of its president and chief engineer to make the agreement to reconvey, and insisting that it was void, because not in writing. The company was estopped to deny the authority of the officers, and R. was entitled to all the land, except the six acres. R., by the agreement, had waived, as to the six acres, his right to a forfeiture for nt)u-com- pliance by the company with the condition of the deed.' § 933. A party who has a title to any property, real or per- sonal, may by his conduct in including others to deal with it, > R. R. Co. V. Ragsdale, 54 Miss. 200. 1056 Affp:cting Titlk to Land. without informing tlioin of his claim, debar himself from assert- ing that title to the injury of such others. This principle was enunciated in the leading case of Wendell v. Van Kensselaer.' "•There is no principle better established, nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it pas- sively, b}^ looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would bean act of fraud and injustice, and his conscience is bound by this equitable estoppel." Qui tacet, consentlre vidsficr, qui potest et debet vctare^juhet. The case in which this language was used was one where the defendant claimed under a secret deed, intentionally concealed for many years, the grantor in the mean time remaining in pos- session ; dealing with the land as owner, and with the knowledge of the defendant ; making sales in fee of different parcels to third persons, who entered into possession and made extensive improve- ments, the defendant standing by and giving no notice of his claim. "After this," says the chancellor, "he cannot be per- mitted to start up with a secret deed and take land from bona fide purchasers from the testator." That case w^as between the owner of the legal title under a secret deed and the purchasers and grantees of the former owner. The same principle is appli- cable in order to protect creditors who have ■given credit upon the apparent ownersiiip of property in possessioTi of the debtor against a secret, unrecorded conveyance, fraudulently concealed by the grantee; as when his knowledge that the debtor is holding himself out as owner and is gaining credit upon this ground, he keeps silence, giving no indication of his claim. Thus, where bond creditors to the father for monej' lent twelve years after a voluntary settlement on trustees for the son's who did not enter aiid take possession according to the deed, but ])erniittcd the settler to live in the house, etc., it was said that the deed not at llrst fraudulent may subsequently become so by being concealed and not produced, " by which means creditors are drawn in to lend their money."" So if the true owner stands by and advises • 1 Johus. Ch. 344. a Hungerfoid v. Earle, 2 Vein. 361. Equitable Estoppel. 1057 and encourages a purchase from another, although in ignorance of his own title, he cannot afterwards assert it to the injury of the purchaser.' If a person does an act at the suggestion and request of another, that other will not be permitted to avoid the act ^\'hen it turns out to the prejudice of an antecedent right or interest of his own, although the advice on which the other party acted was innocently given and in ignorance of his own claim. While it is well settled that the owner of land may by acts in pais preclude himself from asserting liis legal title, it must be obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is contrary to the letter of the statute of frauds, and it would greatly tend to the insecurity of titles, if they were allowed to be affected by parol evidence of light or doubtful character. To authorize the finding of an estoppeH?i ^^a/s against the legal owner of the laud, there must be shown either actual fraud or fault, or negligence equivalent to fraud, in concealing his title, or that he was silent when circum- stances would compel an honest man to speak, or such actual inter- vention on his part, as to render it just as between him and the party acting on his suggestion that he should bear the loss. Moreover, the party setting up the estoppel must be free from laches, in acting upon the belief of ownership by one who has no right.' § 934. In a late case in the Supreme Court of the United States, the court, Justice Swayne delivering the opinion say : " This defense is founded upon the letter of C The contents of the letter of M., to which it refers, are not given in the finding of facts, but the subject of that letter and the inquiry which it made, appear clearly in the letter of C. He said : 'M. wrote me a letter. Ele wanted to know if I intended to claim any of the farm (the premises in controversy). You can tell M. for me, he need not fear anything from jne. Thank God, I am well off here, and you can claim all there. This letter will be enough for him. 1 intended to give you and yours all my property there, and more if you need it.' The phrase ' I intended to give,' &c., implies 1 Storrs V. Barker. 6 Johns. Cli. 16G. 834; Bernstein v. Smith, 10 Kas. 60; ^ Banking Co. v. Duncan, 8G IN. Y. Ayres v. Probasco, 14 Kas. 190. 5i2; Andrews v. Ins. Co., 85 N. Y. Vol. 1—67 1058 Affecting Title to Land. that he know liis half of the farm liad already been sold to M., and that he could not, therefore, give his sister, to whom the letter Avas addressed, any part of that property. It does not appear that there was any other propertj' held by them as coparceners. lie says further, that he intended to give licr more if she needed it. All this was connniinicated to L. What was the effect upon him ? lie Avas lulled into security. He took no measures to perfect his title, nor to procure any redress from K., who had conveyed and been paid for the whole of the property while they owned but the half. On the contrary, he gave there- after deeds of warranty to all the defendants — who are sixty-two in number — and he and they occupied and improved the premises down to the commencement of this suit. Between that time and the date of the letter was a period of nearly seventeen years. What improvements were made, and how far the property had risen in value are not disclosed, nor does it appear what stim- ulated C. to violate his promise and commence his attack on the defendants. " The estoppel here relied npon is known as an equitable estoppel or estoppel in jpais. The law npon the subject is well settled. The vital principal is that he wlio by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappoint- ing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both. This remedy is always so applied as to promote the ends of justice. It is available only for protection, and cannot be used as a weapon of assault. It accomplishes that which ought to be done between man and man, and is not per- mitted to go beyond this limit. It is akin to. the principle involved in the limitation of actions, and does its work of justice and icpose where the statute cannot be invoked. Here, accord- ing to the finding of the court, the time of adverse possession lacked but a 3-car and a month of being twenty years — when, it is conceded the statutory bar would have been complete. " In Faxon v. Faxon,' a njortgagee holding several mortgages prevailed on a son of the deceased mortgagor, then intending to remove to a distance, to remain on the premises and support the 1 28 Mich. 109. Equitable Estoppel. 1059 family, by assuring him that the mortgages should never be en- forced. The son supported the family, and tlie property grew in value under his tillage. After the lapse of several years the niortgagee proceeded to foreclose. He was held to be estopped by his assurances upon which the son had acted. The court said ' the complainant may have estopped himself without anj' positive agreement, if he intentionally led the defendants to do or abstain from doing anything involving labor or expenditure to any con- siderable amount, by giving them to understand they should be relieved from the burden of the mortgages.' In Harkness v. Toul- min,' and Truesdale v. Ward,' this principle was applied, in the former case, to the extent of destroying a chattel mortgage, and in the latter of forfeiting rights under a land contract, where parties were led to believe they were abandoned. There is no rule more necessary to enforce good faith than that which com- pels a person to abstain from enforcing claims which he has induced others to suppose he would not rely on. The rule does not rest on the assumption that he has obtained any personal gain or advantage, but on the fact that he has induced others to act in such a manner that they will be seriously prejudiced if he is allowed to fail in carrjnng out what he has encouraged them to expect." Cooley, Justice, was inclined to doubt the sufficiency of the proof, but said finally : "His," the mortgagee's, "assurances have undoubtedly been relied upon and acted upon by the defend- ants, and conside]-ing the great lapse of time without any claim under the mortgages on the part of the complainant, I am not disposed to dissent from the conclusion of my brethren." The case before us arose also in Michigan. In Evans v. Snyder,^ the heirs assailed an administrator's sale. No order of sale could be found. This was held to be a fatal defect. But the supreme court of the state held " that where they stand silently by for years, while the occupant is making valual)le and lasting improve- ments on the property, and redeeming it from the lien of the ancestor's debts, his heirs will be estopped from afterwards assert- ing their claim." " Other authorities to the same effect are very numerous. ' 25 Mich. 80. ^ 64 Mo. 516. 2 24 Mich. 117. 1060 Affecting Title to Land. Thoy may be readily found. It is unnecessary to extend this opinion by referring to them." " "We think the facts disclosed in the record make a complete case of estoppel in _pais.^^' § 935. Equity has long- held that the statute shall not be used as a cloak for that which it was designed to suppress, and where a parol agreement has been so far executed that it cannot be rescinded without an actual or constructive fraud on the pur- chaser, it will be specifically enforced against the vendor ; and a man who stands by and encourages, or even acquiesces in the sale of land whicli is his own, as the property of another, will be restrained fi'om disputing the title of the purchaser, or even com- pelled to perfect it by conveying the estate to such ])urchaser. Tiie original source of relief, under such circumstances, Avas in courts of equity, l^ut it is now also granted in the form of an equitable estoppel at law. The questions involved in the applica- tion of equitable estoppels, to real estate, is one that is both diffi- cult and important : while it is generally true that a parol agree- ment cannot be binding upon the title to real estate, without an apparent violation of the statute of frauds, Mdiich require a writ- ing, when the realty is in question ; it is also a well established piinciple of equity that the statute shall not be used as a means of effecting the fraud which it was the object of the statute to pre- vent, ai)d withdraw every case not within its spiiitfrom the rigor of its letter, if it can be done without violating the general policy of the statute, and creating the uncertainty which it was meant to obviate. It is a well established principle of equity, that part performance of a parol agreenient or contract will take a verbal sale of land out of the statute of frauds, and when a verbal sale is made, accompanied by possession of the estate, equity will compel the vendor to make a conveyance. ^ So that an estate in land may be transferred fi'om one man to another, . without a writing, and this j)rin(;iple is applicable to those cases where the owner fails to give notice of his title to the purchaser, when the circumstancch ai'e such as to make it iiis duty to do so, and while a title does not actually puss, a court of equity will decree a con- ' Dickerson v. Colgrove, 100 U. S. 578. Equitable Estoppel. 1061 veyance.' So that it may be considered as a well settled prin- ciple that the title of real estate may be barred by matter in iiais, withont reference to the statute of frauds.* § 936, The statutory provision, which renders a writing neces- sary for the creation of an estate in land, is not dispensed with either at law or equity unless on the ground of actual or construc- tive fraud. A party who relies on a verbal contract and thus dispenses with the conclusiveness of written evidence, should not be allowed to have or receive the benefits of equitable estoppels to repair his negligence.^ The retraction of a promise on which another has acted is regarded as a constrnctive fraud which warrants the intervention of equity or a resort to the aid of an estoppel at law. Though there may have been no concealment or misrepresentation, and the only ground of the relief is the breach of the promise.^ So a parol promise by a father to con- vey to his son a piece of land, if the son would erect a house thereon, having been acted upon, estops the father from asserting ownership as against the son.^ But where men rely on the honor of those with whom they are dealing instead of using the means recognized by law, the law leaves them to suffer from the results of their undue confidence and discretion ; but where a party entered upon land in consequence of a parol agreement of the owner to exchange for other lands, made improvements with the knowledge of the owner, the owner cannot take advantage of the want of a contract that would bind him to convey. Tims, where a father, in consideration of services performed by his son, verbally promises and agrees to convey to him certain lands, and on the faith thereof the son takes possession of and makes valu- able improvements on the land, the father, his heirs and devisees ' Eunlet V. Otis, 2 N. H. 167; Wen- Hayes v. Livingstoue, 34 Mich. 384; dell V. Van Rensselaer, 1 Johns. Ch. Brewer v. R. R. Co., 5 Met. 571; Dele- 341; Wells V. Pierce, 27 K H. 303. plainc v. Hitchcock, 6 Hill, 17; Foster - R. K. Co. V. Ragsdale, 54 Miss. v. Redington, 21 N. H. 291; Wilton v. 200; Walldns v. Peck, 13 N. H. 360; Harwood, 23 Me. 131; Burnham v. Corbelt V. Norcross, 35 K II. 99. Harwood, 24 N. H. 570. •'Bnrke v. Brewer, 2 Met. 421; * McAflferty v. Conover, 7 Ohio St. Baicheider v. Sanborn, 24 N. H. 474; 99; Ford v. Ellingwood, 3 Met. (Ky.) McAfferly v. Conover, 7 Ohio St. 99; 359. Miller v. McManice, 57 III. 126; * Campbell v. Mayes, 38 la. 9. Conover v. Stilweli, 34 JST. J. L. 54; 1062 Affecting Title lo Land. will be estopped from denying his title, and a specific perform- ance of the agreement will be decreed against them.' A party by whose encouragement expenditures liave been made to such an extent as to be incapable of reinbursement except by enjoyment, will bo enjoined from disturbing the possession ; he is estopped , because he would wrong the party by withdrawing his consent." But a parol estoppel cannot operate to transfer the legal title to land.' § 937. In addition to the fundamental legal principle of law, nuUus commodum capere jjoted de injuria sua propria^ as one of the essential elements of an equitable estoppel, in regard to its application to title to land, there is one which applies still more forcibly, viz : Qui tacit consentire videtur and Qui potent et debet vetare, juhet. — He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent." No estoppel can be created by mere silence or acquiescence, unless there are some special circumstan- ces which make it necessary to speak.'' When such are the cir- ' Peters v. Jones, 35 Iowa, 513. ' Improvement Co.'s Appeal, 54 Pa. St. 361 ; Schnee v. Scbnee, 23 Wis. 377; East v. Dolibite, 73 N. C. 563; Trenton v. McKelway, 8 N. J. E. 84: Ferry Co. v. Dodge Co., 6 Neb. 18. 3 Barker v. Bell, 37 Ala. 359; Mc- Pberson v. Walter.s, 16 Ala. 714. * Bank v. Lee, 13 Pet. 107; Bank v. Bank, 10 Wall. 604; Baker v. Pratt, 15 111. 568; Morgan v. R. R., 96 U. S. 716; People v. Brown, 67 111. 435; Broyles v. Nowlin, 59 Tenn. 191; Manf. Co. v. Parsell, 38 Micb. 475; Kuoebel v. Kircber, 36 111. 308j East India Co. v. Vincent, 3 Atk. 83; lluns- dcn V. Cbeney, 3Vern. 150; Storrs v. Barker, 6 Jobns. Cb. 166; Bright v. Boyd, 1 Story, 178; Smitbv. Newton, 38 111. 310; Day v. Caton. 119 Mass. 513; Jackson v. Cator, 5 Ves. 688; Bank v. Bowen, 80 III. 541; Preston V. Linen Co., 119 Mass. 400; Dann v. Sparrier, 7 Ves. 331 ; Higgins v. Fer- guson, 14 III. 269; Styles V. Cowper, 3 Atk. 692; Morgan v. Evans, 3 CI. & F. 205; Burke v. Prior. 15 Ir. Ch. 106; Belknap v. ^iviu, 2 Jobus. 573; Viele V. Jud.son, 83 N. Y.32; Bram- ble V. Kingsbury. 39 Ark. 131 ; Kirk V. Hamilton, 103 U. S. 08; Ross v. Tbompson, 78 Ind. 90; Mastersou v. R. R., 73 Mo. 343; Scbaefer v. Glid- den, 3 Col. 315: Mtiiice}' v. Joest, 74 Ind. 409: Wendell v. Van Rensselaer, 1 John. Cb. 354; JMorford v. Bliss. 12 B. Mon. 255; Stale v. Jersey Cily, 40 N. J. L. 483 ; Gbeen v. Osborne, 11 Heisk. 61 ; McKellop v. Jackman, 50 Vt. 71 ; McLean v. Dow, 43 Wis. 610 ; Collier v. Pfenning. 34 N. J. E. 22 ; Raley v. Williams, 73 Mo. 310; Wea- ver V. Listz. 103 Pa. St. 593; Cham- plin V. Stoddart, 30 Hun, 300; Kobbe, in re, 10 Daly. 42 ; Kelly v.Wagner, 61 Miss. 2U9 ; Refining Co. v. Green, 4 McCrary, 433. ' Taylor v. Ely, 25 Conn. 250; Cla- baugb V. Byeriy, 7 Gill, 354; Hill v. Eply, 31 Pa. St. 331; Strong v. Ells- worth, 26 Vt. 366. Equitable Estoppel. 1003 cumstances, equity unhesitatiiii^ly applies the maxim, Qui tacit consentire videtur. If he who ought to have exphiined himself clearly and phiinly, has not done it when the occasion required and opportunity was presented to liim, he is not allowed to in- troduce subsequent restrictions which he did not at the proper time express.' § 938. A man raay by mere silence, without active conceal- ment, produce a false impression on the mind of another. Al'iud est celare^ aliud tacere • neque enim id est celare, quic quid reticeas I sed mmi, quod tu seias, id ignorare, emolument i tai causa, velis cos quorum intersit id scire. Thus, where a part\' negligently and culpably stands by and allows another to contract on the faith of an understanding which he can contradict, he is afterwards estopped from disputing the facts in an action against the person whom he has assisted in deceiving,^ upon the princi-ple, that between innocent parties, he who causes the injury must suffer.' Qui non prohihit quod ])rohil>cre j>otest assentirevidetiir, 1 Mitrhell v. Mount, 31 N. Y. 356; Corkhill v. Landers, 44 Barb. 218; Sheppard v. Shai-pe, 4 L. T. 270; Davies v. Davies, 6 Jur. N. S. 1322; Alvord V. U. S.,8 Ct. of CI. 304; Brin- keihoff V. B'inkerboff, 23 N. J. E. 477; X:\-iu v. Belknap, 2 Johns. 573. "^ Hollingswortli v. Hancock, 7 Fla. 838; Donovan v. Ins. Co., 30 Md. 155; Nunn v. Fabian, 11 Jur. N. S. 868; Thornton v. Ramsden, 4 Giff. 519; Crook V. Corporation, L. R. 10 Eq. 678; Strand v. Music Co., 14 W. R. 6; Hill V. R. R. Co., 11 Jur. N. S. 192; Wilson v. West, &c. Co., 11 Jur. N. S. 124; Stevens v. Dyas, 15 Ir. Ch. 405; Davis v. Sear, L. R. 7 Eq. 427; Bankart v. Tenant, L. R. 10 Eq. 141; Raritan, &c. Co. v. Yeghte, 21 N. J. E. 463. Evansvillev. Pfisterer. 34 Ind. 76; Brooks v. Curtis, 4 Lans. 283; Teasdale v. Teasdale, Sel. Cas. Cli. 59; Hunsden v. Cheyney, 2 Vern. 150; Savage v. Foster, 9 Mod. 36; Berris- ford v. Milward, 2 Atk. 49; Raw v. Pote, 2 Vern. 239; Beckett v. Cordly, 1 Bro. C. C. 357; Govett v. Richmond, 7 Sim. 1 ; Draper v. Borlace, 2 Vern. 370; Brown v. Thorpe, 11 L. J. Ch. 73; Boyd v. Bolton, 1 J. «& L. 730; Ibbotson V. Rhodes, 2 Vern. 554; ]S'icholsou V. Hooper, 4 M. & C. 172; Thompson v. Simpson, 2 J. & L. 110; Ziiletta V. Tyrie, 15 Beav. 591; Man- gles v. Dickson, 3 H. L. 739; Olover V. King. 8 D. M. & G. 110; Davies v. Davies, 6 Jur. N. S. 1322; Upton v. Vanner, 1 B. & S. 594; Cooper v. Gunn, L. R. 2 Ch. App. 282; Lee v. Porter, 6 Johns. Ch. 268: Eagle v. Burns, 5 Cal. 403; Harrison v. Ed- wards, 8 Litt. 310; Allen v. Winston, 1 Rand. 65; Skirving v. Neufville, 2 Dess. 194; Lassalle v. Barnett, 1 Blackf. 130; Dickenson v. Davis, 2 Leigh, 401; Thompson v. Sanborn, 11 N. H. 201 ; Morland v. Bliss, 12 B. Mon. 255; Gottschalk v. De Santos,12 La. An. 473. 3 Milliugar v. Sorg, 61 Pa. St. 471; Hertel v. Bogert, 9 Paige, 52; Rawls v. Deshler, 4 Abb. App. Dec. 1()G4 Affkctixg Titlk to Land. is also oue of tlie fundamental maxims and mlcs of law particu- larly a])i)lical)lo to this branch of estoppels, especially those acts uhich, in equity, and to a great extent in law, are regarded as the foundation of the estoppel which is created by the silence, acquiescence, or consent of the owner of real or personal property, in its disposal to a stranger by one not having the title, but whom, if allowed to set up his claim of title or ownership to the prop- erty after its purchase by a stranger, would be perpetrating a gross fraud upon the party whom he, by his acquiescence, silence, and consent, has n)islcd. "lie who can forbid, but does not, is deemed to have assented." The law will not permit a man to say what he has said and done as a solemn act, by which others have acfpiired rights, was not true; nor will it allow one who has, in a like solemn manner, admitted a matter to be true, to allege it to be false.' § 939. A person who himself being the owner of property or Laving an interest in, or claim upon it, stands by and sees another sell it, as his own, without objection, will not be allowed after- wards to assert his title. His silence, when in good conscience he ought to s])eak, shall close his month when he would speak." 12; R. R Co. V. Potter, 42 Vt. 205; Curtis V. Tripp, 1 Iowa, 318; Cbap- maa v. Hamilton, 19 Ala. 121; Hcr- rick V. At wood, 2 De G. & J. 21; Ililey V. Quigley, 50111.804; Brinker- lioff V. Lansing, 4 Johns. Ch. 65; Lee V. Munroe, 7 Crancli, 366; Thorne v. Mosher, 20 N. J. E. 257; Scbnee v. Sohnee. 23 Wis. 377; Neville v. Wil kinsou, 1 Bio. Ch. 546; Scott v. Scott, 1 Cox. 378; Evans v. Bicknell, G Ves. 173; R'jiison v. Morgan. 2 Bro. Ch. 388; Dixon v. Green, 24 Miss. 612; Blount V. Robeson, 3 Jones Eq. 731. • Ham V. Ham, 14 Me 351; Hicks V. Cram, 17 Vt. 449; Bank v. Wollas- ton, 3 llariing. 90; Chapman v. Chap- man, 59 Pa. St. 214; Halloran v. Whit- comb, 43 Vt. 306; Wiuchell v. Ed- wards, 57111. 41; Sweezey v. Collins, 40 Iowa, 540; Trobiidge v. Mathews, 28 Wis. 650; Dean v. Martin, 24 La. An, lOi': ]MiI,er v. Springer, 70 Pa. St. 269; Davidson v. Silliman, 24 La, An. 225; Leeper v. Hersmau, 58 111. 218. ■•'Bank v. White, 6 Barb. 589; Marshall v. Pierce, 12 N. H. 127; Storrs V. Barker, 1 Johns. Ch. 166; Brotheis v. Porter, 6 B. Mon. 106; Thompson v. Sanborn, 11 N. H. 201; Langdon v. Dond, 10 Allen, 437; Davis v. Tingle, 8 B. Mon. 539; ]\Iorse V. Child, N. H. 521; WendeU v. Van Rensselaer, 1 Johns. Ch. 354; Hatch y. Kimball, 16 Me. 146; Heard v. Hall, 16 Pick. 487; Marston v. Brackett, 9 N. H. 336; Miller v. Miller, 60 Pa. St. 116; Evans v. Bicknell, CO Ves. 174; Watkins v. Peck, 13 N. II. 360; Shapely v. Raugely, 1 W. & M. 213; Fay V. Valentine, 12 Pick. 40; Bank v. Biiflinglou, 97 Mass. 408; Hutton v. Rossiter, 7 De G. M. »fe G. 9; Parker V. Brown, 15 N. II. 184; Brinkerhofl V. Lansing, 4 Johns. Ch. 65; Gray v. Equitable Estoppel. 10G5 If one having a title to land looks on and suii'ers another to pur- chase and expend money on the land, without making known his claim, he will not be permitted afterwards to assei't his title against an innocent purchaser.' § 940. The application of this doctrine may be illustrated in the following cases: Where A. erected one wall of an expensive building upon land to which he l)elieved he had good title, but which was really owned by B., and B., with full knowledge of the fact that said wall was being erected, failed to claim any interest in the land or make any objection to the erection of said wall thereon ; lield, that he was thereafter estopped to claim title Biirtlett, 20 Pick. 18G; Foster v. Biggs, 3 Mass. 313; Casey v. Inlocs, 1 Gill, 430; Piatt v. Squire, 13 Met. 494; Skiimer v. Strousc, 4 Mo. 93; Auden- ried v. Bettel}-, 5 Allen, 384; Ileuder- soii V. OvtM'tou, 2 Yerg. 399; CopeliUKl V. Copeland, 28 Me. 525; Plumer v. Lord, 9 Allen, 455; Ridgeway v. Morrison, 28 Ind. 201; Brown v. WLeeler, 17 Conn. 345; Andrews v. Lyon, 11 Allen, 349; CorncHus v. Bnford, 28 Tex. 202: Foster v. Bigelow, 24 Iowa. 379; Turner v. Coffin. 12 Allen, 401; Irwin v. Moore, Dud. (Ga.) 72; Maple v. Kussart, 53 Pa. St. 348; Tiiayer v. Bacon, 3 Allen, 165; Mahoucy v. Horan, 53 Barb. 29; Meason v. Kaine, 67 Pa. St. 126; Gregg v. Wells, 10 A. & E. 90; Gerhard v. Bates, 2 Q. B. 476; Hol- royd V. Marshall, 2 De G. F. & J. 596; Warden v. Cornell, 105 111. 169; Bramble v. Kingsbury, 39 Ark. 131; aicBane v. Wilson, 8 F. R. 734; Sarah Ann, The, 2 Sumn. 206; Weaver v. Listz, 102 Pa. St. 593; Kobbe, in re, 10 Daly, 42 ; Kelly v. Wagner, 61 Miss. 299; Refining Co. v. Green, 4 McCrary, 332. ' Ross V. Thompson, 78 Ind. 90; Munsey v. Joest, 74 Ind. 409; Master- son V. R. R. Co., 72 Mo. 342; R. R. Co. V. Hamilton, 59 Ga. 171; Kirk v. Hamilton, 102 U. S. 68; Schufer v. Glidden, 3 Col. 15; Eldridge v. Walker, 80 111. 270; Piyzbylowicz v. R. R. Co., 14 F. R. 492; Sleeper v. BulU^n, 6 Kas. 300; Knaggs v. Mastin, 9 Kas. 532; Bank v. R^oop, 84 N.'Y. 292; Guil- beau V. Mayo, 15 Tex. 410; Sn^elting Co. v. Green, 13 F. R. 208; Iverson v. Saulsbury, 65 Ga. 725; Moffitt v. Adams, 60 Iowa, 44; Dolterer v. Pike, 60 Ga. 29; Walker v. Flint, 3 McCrary, 507; Dickerson v. Colgrove, 100 U. S. 578; Trapnall v. Burton, 24 Ark. 371; Mills V. Graves, 38 111. 455; Cady v. Owens, 34 Vt. 598; Berry v. Ander- son, 22 Ind. 36; Verdier v. R. R. Co., 15 S. C. 476; Riley v. C^uigley, 50 111. 304; Dellett v. Kemble, 23 N. J. E. 758; Sasser v. Jones, 3 Ired. Eq. 19; Madison v. Young, 24 N. .J. E. 535; Light V. Howe, 6 Esp. 20; Fisher v. Magnay. 5 M. & G. 778; Stroud v. Stroud, 7 M. & G. 417; Doe v. Groves, 16 L. J. Q. B. 297; Carncross v. Lorimer, 3 Macq. 827; Ins. Co., in re, L. R. 19 Eq. 302; Prendergast v. Turton, 1 Y. & C. C. C. 98; Norway v. Rowe, 19 Ves. 144; Peel's Case, L. R. 2 Ch. App. 674; Evans v. Small - combe, L. R. 3 H. L. 249; Sandys v. Hodgson, 10 A. & E. 476; Ford, in re, 1 L. R. I. Ch. D. 521; McKeuzie v. Linen Co., L. R. 6 App. Cas. 82; East &c. Co. V. Vincent, 2 Atk. 82 Troughton v. Gitley, Amb. 630 1066 Affecting Title to Land. to the fi^round njioii which the w;ill stood.' Beneficiaries of trust property sold under an invalid order of the chancellor, who for years liave seen tlic purchasers erecting valuable improve- ments thereon without objection, are estopped from setting up title thereto.* If the owner of an estate stands by and sees another erect improvements on the estate, in the belief that he has the right to do so, and does not interpose to prevent the work, he will not be permitted to claim such improv>5ments after they are erected.' Although a deed, absolute in form, may have been given as a mortgage, to secure an indebtedness of the grantor, yet when the grantor, in his answer to a bill in chancery, sets up, that he had conveyed the absolute title, and he, and his assignee in bankruptcy afterwards stand by and permit the grantee, without a word of di.'^sent, to claim, mortgage and contract for the improvement and leasing of the property for a term of years, as the absolute owner, any person not liaving actual notice to the conti-ary will have the right to suppose such grantee the absolute owner, and in dealing with him as such, he ouglit to be pi'otected in the pur- chase of the propei'ty.^ A prior purchaser is estopped from assert- ing his title, where, to the inquiry of such subsequent purchaser, whom he knew to be bargaining with the original owner for its purchase, he denies all interest in it. A judgment creditor of tlie prior purchaser, who nrged such subsequent purchaser to purchase, stating that the title was clear, is also estopped.^ If one stands by silently, when he should assert his claim, and hy tJittt^ induces a purchaser to believe that he has none, he will be estopped, but a mere knowledge that one is about to purchase does not of itself impose upon the owner of an equity the duty of seeking him out and advising him against it.'' § GiOa. Where a purchaser of land thirty years before filing his bill for a specific performance, not having made any payments Cowell V. Watis, 19 L. J. Cb. 455; ^ Smelting Co. v. Green, 13 Fed. JSheiidan v. Barrett. 4 L. R. Ir. 2'2;}; Rep. 208. Euglcback v. Ni-\on, L. R. 10 C. P. ^ Jenkins v. Rosenberg, 105 111. 157. 645. 6 McBane v. Wilson, 8 Fed. Rep. ' Walker v. Flint, 3 McCrary, .107. 734. a Iversou v. Saulsbury, Go Ga. 725; " Bramble v. Kingsbury, 39 Ark. Dolterer v. Pike, 60 Ga. 29. 131. Equitable Estoppel. 1067 foi- the same, stands bj and sees others who have bought and paid for the land, make valuable and costly improvements thereon, and allows others to purchase, making no objections, and interposing no claim to the property, during all which time he pays no taxes or assessments on the same, and takes no legal steps to assert his supposed rights, and does not call on those occupying the same and assert his ownership, or call for an account of the rents and profits, and in his bill gives no excuse for his delay and conduct, he will not be entitled to equitable relief, and his bill will be properly dismissed. Subsequent purchasers of land, in the absence of express notice of latent equities in another than their grantors, can only be affected by such legal consequences as may be fairly drawn from the record itself ; and when such records show that the claim of a prior purchaser has been cut off and defeated by a sale or foreclosure, or by a forfeiture of his contract, or of the contract of his vendor, such subsequent purchasers will have the right to rely on what is thus disclosed.' § 941. Where on special execution the sheriff (defendant) sold a quarter section of land belonging to plaintiffs, forty acres of which was their homestead, and, after satisfying the special exe- cution, he in good faith, without notice, claim, objection, or direction by plaintiffs, to the contrary, applied the surplus on other executions in his hands, held^ that by thus standing by, and allowing the sheriff to so appropriate and pay over the surplus, plaintiffs must be regarded as having abandoned all claim to their homestead rights, if any they had, in the surplus, and cannot now recover such surplus from the sheriff.^ One who stands by and encourages a stranger to purchase property offered for sale under foreclosure of a chattel mortgage, cannot afterwards be heard to claim, as against such stranger, that he had at the time of such sale a paramount claim on the property purchased, no matter what the nature of such claim may be.' An execution debtor who stands by while the sheriff levies an execution on his exempt property, and does not then and there in some manner indicate to the officer his purpose to claim the property as exempt, is estopped > Warder v. Cornell, 105 111. 169. 384. « Brumbaugh v. Zollinger, 59 Iowa, * Miles v. Lefi, GO Iowa, 168. IOCS Affecting Title to Land. to assert such claim in a replevin suit afterwards brought against the officer to recover tlie possession of the property.' § 942. A husband cannot disavow a sale by the wife of articles of personal property, made with his knowledge, after standing by and seeing the wife use the proceeds derived from the sale.' A party who has observed, without objection, the construction of a ditch, has no ground for claiming an injunction against the same for the reason that proper notice of the letting of the contract M'as not given.' A party who has stood by and, without objec- tion, seen a building progress to completion not in strict accord- ance with the plan, is precluded from charging to the builder the cost of reconstruction." Where it appeared, that plaintiff knew that defendants claimed the property under a sale nuide in an equity suit to which he was an original party ; that, instead of taking steps to have such sale set aside as a nullity, he, with full knowledge of all the facts appeared before an auditoi* and disputed the right of certain creditors to be paid out of the fund which had been raised by such sale, but without raising any question as to its validity ; that, knowing that defendants' claim rested on such sale, he remained silent while they expended large sums in their improvement, and, in effect, disclaimed title in himself. The doctrine of equitable estoppel would apply in favor of defend- ants.^ Where the owner of land through M'hich a way runs, sees another nuiking costly improvements thereon without objection, he is estopped to deny that the way is public." It is inequitable to permit a mortgagee to lie by after the default of the mortgagor, and see a valuable and costly improvement erected on the mort- gaged premises by a third party, in good faith, under a license from the owner of the land, making no objection whatever, and when the structure is completed deprive such party of its enjoy- ment. In such case, the license of the owner should be held to be that of the mortgagee also.' One who has consented to the extension of a ditch whicli does not cross his land, and has prom- ised to dig his part and tried to let a job therefor, cannot^after ' Moffitt V. Adams, 60 Iowa, 44. ^ Kirk v. HMmilton, 102 U. S. 68. « Delano V. BlaiKhaid, 53 Vt. 578; » Rogg y Thompson, 78 Ind. UO. Stewart V. Mix, ;J0 La. Ann. 1036. ' Mastersou v. R. R. Co., 72 Mo, 3 :Muucey v. Joest, 74 Ind. 409. 342. * Schaefer v. Gildea, 3 Col. 15. Equitable Estoppel. 1069 partial constructiou thereof and consequent benefit to himself, comphiin of being assessed.' Thus, where the postmaster-general has the legal right to curtail the public expenditure by discontinu- ing a special service, and distinctly informs a contractor that he will do so, if a disputed claim for other services be pressed, then the contractor is bound in equity and good conscience to inform the postmaster- general, that he does not acquiesce in liis decision. liis silence must be construed to have been intended to influence the conduct of the postmaster-general, and to lead him into a line of conduct prejudicial to the interests of the government, and it constitutes the very essence of an estoppel m ■paisJ' § 943. It has been long and well established in equity and is now becoming as well established in most courts of law, that every one wlio encourages or stands by and sanctions the acquisi- tion of lands by another, will not only be estopped from invalid- ating the interest tluis acquired by the subsequent assertion of any title which lie held with full knowledge at the time, but he Avili be compelled to make a conveyance to the purchaser, and neither he nor his privies will be allowed to dispute such party's title. No one is permitted to keep silent when he should speak, and thereby mislead another to his injury. A party who culpably stands by and allows another to contract on the faith and under- standing of a fact which he can contradict, cannot afterwards dis- pute the fact in an action against the person whom he has thus assisted in deceiving. One who has full and complete knowledge of the facts, cannot, as against an innocent third person, subse- quently assert that he was ignorant of tlie extent of the legal rights which arise out of the facts ; where there is a full knowl- edge of the facts, a pei'son who acts in good faith on such facts, as they are known, cannot be deprived of his rights upon the ground of ignorance of the full extent of these legal rights ; it is knowledge of the facts that controls in such cases.^ ' Mabee v. Miner, 45 Mich. 568. v. Burton, 24 Ark. 371; Goddefroy v. 2 Alvord V. United ISlates, 8 Ct. of Caldwell, 2 Cal. 489; Brothers v. CI. 364. Porter, 6 B. Mon. 106; Bryau v. ^Shapely v. Rangely, 1 W. »& M. Kamirez, 3 Cal. 461; Rider v. Rubber 213; Reyburn v. Pry^'i". 1-^ -^^'k. 505; Co., 4 Bosw. 169; Cheeney v. Arnold, Mills V. Graves, 38 lil. 455; Trapnall 18 Barb. 435; Snodgrass v. Ricketts, 1070 Affecting Title to Land. § 944. The effect of an estoppel in pain is to prevent the assertion of an nneqnivocal right, or preclude a good defense, and justice demands that it should not be enforced unless substanti- ated in ever}' particular. The ground upon which the estoppel proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. AVhat will amount to the suggestion of a falsehood or the suppression of the truth, may be ditlicult to 13 Cal. 359; Cady v Owen, 34 Vt. 598; Wbittington v. Wright, 9 Ga. 23; McDonald v. Liiidall, 2 Kawle, 492; Grace v. Mercer, 10 B. Moii. 157; Galling v. Rodman, 6 Ind. 289; Foster V. Bigelow, 24 Iowa, 3'79; Higginbot- bam V. Bin-uett, 5 .Johns. Ch. 184^ Carr v. Wallace, 7 Watts, 494; Woods v.AVilson,37Pa. St. 379; Patton v. Mc- Clurc, 1 M. & Y. 333; Vilas v. Mason, 25 Wis. 310; Swains v. Seaman, 9 Wall. 254; Guthrie v. Quinn, 43 Ala. 5G1; Kiley v. Quigley, 50 111. 304; Chapman v. Chapman, 59 Pa. St. 214; Crownover v. Itandle, 21 La. Ann. 4G9; East. &c. Co. v. Vincent, 2 Atk. 83; Hanniug v. Ferrers, 1 Eq. Cas. Abr. 356; liaw v. Pote, Prec. in Ch. 35; ilunsden v. Cheyney, 2 Vern. 150; Styles V. Cowper, 3 Alk. 692; Jackson V. Cator, 5 Ves. 688: Dann v. Spar- rier, 7 Ves. 231 ; Slorrs v. Barker, 6 Johns. Ch. 166; Dyer v. Dyer, 2 Ch. Cas. 108; llobbs v. Norton, 1 Vern. 136; Di.von v. Green, 24 Miss. 612; Goodin v. Cincinnati, &c. Co., 18 Ohio St. 169; Anderson v. Armistead, 69 HI. 452; Bank v. Roop, 48 N. Y. 292; Mason v. Williams, 66 N. C. 564; Rice V. Bunce, 49 ]Mo. 231 ; Darnley V. Rector, 10 Ark. 211 ; Shall v. Biscoe, 18 Ark. 142; R. R. v. R. R., 13 R. 1. 260; Peabody v. Flint, 6 Allen, 52; Bank v. R. R. Co., 125 Mass. 490; Mining Co., in re, L. R. 8 Ch. D. 273; llogan v. Brooklyn, 52 N. Y. 282; Baehr v. Wolf, 59 111. 470; Funk V. Newcomer, 10 Md. 301; Thomas v. Pullis, 56 Mo. 211; Dixon V. Green, 24 Miss. 612; Banking Co. V. Duncan, 86 N. Y. 22; Brace v. Bar- clay, 10 B. Mou. 261; AVells v. Pierce, 27 N. II. 503 ;■ Willis v. Swartz, 28 Pa. St. 113; Gregg V. Wells, 10 A. cSsE. 90; IMorgan v. R. R., 96 U. S. 716; Breed- ing V. Stamper, 18 B. Mon. 175; Hill V. Epley, 31 Pa. St. 334; Parker v. Brown, 15 N. H. 184; Thompson v. Sanborn, 11 N. H. 201; Hill v. Gros- ser, 59 N. H. 513; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Park- hurst V. Van Courtlandt, 14 Johns. 41; Kirk v. Hamilton, 102 U. S. 68; Gregg V. Van Pliul, 1 Wall. 274; R. R. Co. V. Hadpold, 19 Ind. 347; Corser v. Paul, 41 N. H. 31; Lippimus V. McCramie, 30 La. Ann. 1251; Youngblood v. Cunningham, 38 Ark. 572; Barns v. McKay, 7 Ind. 301; Anderson v. Hubbell, 93 Ind. 570; S. C.,47 Am. R. 394; Rowe v. Major, 92 Ind. 206; R. R. Co. v. McLanuahan, 69 Pa. St. 23; Baker v. R. R. Co., 57 Mo. 265; Batchelder v. Hibbard, 58 N. H. 269; Thompson v. McEIarney. 82 Pa. St. 174; R. R. Co. v. Renfree. 58 Mo. 265; Veghte v. W. P. Co., 19 N. J. E. 142; R. R. Co. v. Battle, 66 N. C. 540; Hosher v. R. R. Co., 60 Mo. 329; W. P. Co. V. Veghte, 21 N. J. E. 463; Maxwell v. Bridge Co., 41 Mich. 593; Nixon v. Carco, 28 Miss. 414; Beaupland v. McKeen, 28 Pa. St. 124; Shall v. Biscoe, 18 Ark. 142; Ferguson v. Miller, 4 Cal. 97; Cochran V. Harrorw, 22 111. 345; Goltschalk v. De Santos, 12 La. 473. Equitable Estoppel. 1071 determine in all cases, but some turpitude, some inexcusable wrong that constituted the direct motive, or induced the outlay or purchase, is necessary to give silence or acquiescence to the force of an estoppel in pais. Hence, the ignorance of the true state of title on the part of the purchaser must concur with will- ful misrepresentation or concealment on the part of the person estopped. In order to apply an estoppel it is indispensable that the party standing by and concealing his rights should be fully apprized of them, and should by his conduct or gross neglect encourage or influence the purchaser.' Rights can be lost or for- feited only by such conduct as would make it fraudulent and against conscience to assert them. Therefore if one act in such a manner as intentionally to make another believe that he has no rights, or has abandoned them, and the other trusting to that belief, does an act which he would not have done, the fraudulent party will be estopped from asserting his right.'' Thus, an agreement was entered into between D. and a rail- road company that the company should, within a specified time, convey to D. certain parcels of real estate, the parcels to be con- veyed "by clear title," to be made when required by D. At the time of the contract, the title of one of these parcels was in S., the president of the company, who afterwards agreed to let ' Watkins v. Peek, 43 N. H. 573; Morris v. Moore, 11 Humph. 433; 'Storrs V. Barker, 6 Johns. Ch. 167; Buckingham v. Smith, 10 Oliio, 109; Roy 1st on v. Howe, 15 Ala. 309; Reper V. Gilmore, 49 Me. 157; Commonwealth V. ]\[oltz, 10 Pa. St. 531; Catling v. Rodman, 6 Ind. 392; McCafferty v. Conover, 7 Ohio St. 105. 2 Burleson v. Burleson, 28 Tex. 384; Dixon V. Green, 24 Miss. 612; Goodeu V. Cincinnati, &c. Co., IS Ohio St. 169; Aiider.son v. Armistead. 69 111. 452; Bank v. Roop, 84 N. Y. 292; Mason v. Williams, 66 N. C. 564; Rice V. Bunce, 49 Mo. 231; Love v. Barber, 17 Tex. 317; Malloney v. Horan, 49 N. Y. Ill; Clark v. Cool- idge, SKas. 189; Williams v. Chand- ler, 25 Tex. 11; Burkhalter v. Ed- wards, 16 Ga. 593; Beatty v. Sweeney, 26 Mich. 217; Scoby v. Sweatt, 28 Tex. 14; Miller v. Bingham, 29 Vt. 82; Rangely v. Spring, 22 Me. 130; Page V. Arnim, 29 Tex. 53; Mattison V. Young, 24 N. J. E. 535; Jones v. Byler, 39 Tex. 610; Sherrill v. Sher- rill, 73 jSr. C. 8; Young v. Vaugh, 23 N. J. E. 325; Mayer v. Rumsey, 46 Tex. 371; Blakeslee v. Starring, 34 Wis. 538; Shepley v. Rangely, 1 W. & M. 217; L'Ammorueux v. Van Denburg, 7 Paige, 16; Chapman v. Hamilton, 19 Ala. 121; Brooks v. Record, 47 111. 36; Curtis v. Tripp, 1 Iowa, 318; Riley v. Quigley, 50 lU. 304; Brinkerhoft" v. Lansing, 4 John. Ch. 65; Cochran v. Harrow, 22 111 345. 1072 Affecjixg Title to Land. the comj3any have it for tlie purpose of enabling it to fulfill its contract, the company agreeing to p.iy him $20,000 for the lot. S. afterwards, on an order froni D., conveyed the lot to C, mak- ing no intimation of any claim or lien M'hich he held on the land, for the purchase money unpaid by the compan3^ S. was estopped as between him and D. from setting up any claim for the unpaid purchase money, although D. knew of the contract between S. and the company, and that the purchase money was unpaid.' § 945. But to constitute an equitable or estoppel in 2)ai.s the act or admission must be shown to have had a direct or immediate influence upon the conduct of the ]iarty claiming its benefit ; no such estoppel can arise without proof of wrong on one side, and injury suffered or apprehended on the other, nor unless the injur}' be so clearly connected with the wrong that it might and ought to have been foreseen by the guilty party. There must unques- tionably, be some degree of wrong, for a statement innocent in itself and susceptible of being withdrawn or contradicted, unless it be made with the knowledge, that it will or may be acted upon, cannot be rendered binding by what subsequently occurs. The only qualifications which seem necessary to this doctrine as laid down, is that a p^n-ty may be estopped by acts and declarations which M'cre designed to influence another who has acted upon them, although both parties were ignorant that what is thereby represented is not true ; for if one of tv.'^o innocent parties nnist sutler, lie through whose agency the loss occurred should sustain it.^ § 946. Estoppels in pais are well founded, when confined to the legitimate purpose of preventing one man from being injured by the acts or misrepresentations of another. Where no injur}' results from a misrepresentation, its decision belongs to the forum of morals, and not to the judicial tribunals. The connection between the wrong and the injury should be direct and apparent, and such as to leave no reasonable doubt that the former is the efficient cause of the latter. For as the eff^ect of an estoppel is to prevent the assertion of rights unquestionably valid, or preclude defenses which would otherwise be good, justice requires that it » Corwin v. Collett, 16 Ohio St. ' Hiorns v. Holton, 13 E. L. & E. 289. 596; Smith v. Kidd, 68 N. Y. 131. Equitable Estoppel. 1073 should not be enforced, unless sustained in every particular. In order, therefore, to raise an express or implied admission of one party from the rank of evidence, to the dignity of an estoppel, it must not only be shown that its retraction will be injurious to the other party, but that the injury results from the course of action induced by the admission. Whatever, therefore, the degree of moral wrong on one side, and injury on the other, there will be no estoppel, unless the injury be the direct and natural result of the wrong.' § 947. The true rule seems to be, and with it goes the later and better considered cases, that the mere presence of the owner, if he have concealed no fact of which he was informed, and which the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale. § 948. A. party will, in many instances, be concluded by his declarations or conduct Mdiich have influenced the conduct of an- other to his injury. But in the application of this principle with respect to the title to real property, it must appear, first, that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title ; second, that he made the admission with intent to deceive, or with such culpable and careless negligence as to amount to constructive fraud ; third, that the other party was not only destitute of all knowledge of the true state of the title, but of all means of acquii'ing such knowledge; and further, that he relied directly on such admis- sion, and will be injured b}^ allowing its truth to be disproved. It is only when silence becomes a fraud that it postpones. The element of fraud is essential either in the intention of the party eetopped, or in the effect of the evidence which he attempts to set up. The primary ground of this estoppel is, that it M^ould be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. » McCune v. McMicbael, 29 Ga. 312. lerbacb, 38 Cal. 300; Nivia v. Bel- ^ Chandler v. White, 84 111. 435; knap, 2 Johns. 273; Davidson v. Flower v. Elwood, 66 111. 447; Hill v. Young, 38 111. 152; Wilson v. Castro, Epley, 31 Pa. St. 337; Martin v. Zel- 31 Cal. 420; Hawkins v. Church, 23 Vol. I.— 68 1074 Affecting Title to Land. § 949. One essential elen)onfc of every erjuitable estoppel, by which a man is to be pi-echided from claiming Avhat is his own. is ignorance on the part of the purchaser or party claiming the benefit of the estoppel, as to the trne state of the title. To estop a vendor of real estate, by statements in regard to the effect of his deed or extent of the grant, such ignorance on the part of the purchaser must concur with knowledge of his title, and willful concealment or misrepresentation in regard to it on the part of the vendor, or snch gross negligence or indifference to the rights of others as under the circumstances to be equivalent to actual and premeditated fraud. It nmst also appear that the language or conduct of such vendor was the direct inducement to the pur- chase by the other party,' and that the purchaser will suffer if tlie vendor is permitted to deny it.* Where one who by settle- ment had acquired a right of pre-emption, promised a party, who was about purchasing the section pre-empted, that he would not assert his claim, it was held, that he was estopped, thereby from applj'ing for a certificate from the land-ofHce.' § 950. The principle of estoppels in pais applies equally to transactions in regard to real and personal property.' It does not at all touch the question of creating title to real estate by parol." But such personal property must be in exist- ence and expressly designated at tiie time, because the vendor Minn. 256; Jenner-s v. Berry, 17 N. Guthrie v. Quinn, 43 Ala. 569. H. 549;I)dlettv. Kemble, 23N. J. E. 'Norton v. Kearny, 10 Wis. 443; 58; Kinswortby v. ]\Iitchell, 24 Ark. Huutsucker v. Clark, 13 Mo. 333; 145; Pence v. Arbacklc, 22 Minn. Doub v. Mason, 2 Mil. 380. 417; Morgan v. R. R., 96 U. S. 716; ^ Huntsucker v. Clark, 13 Mo. 333. Brant v. Coal Co., 93 U. S. 326; « Ciuuniings v. Webster, 4 Mason, Dolarqne v. Cress, 71 111. 380; Holmes 142; Commouweallh v. Sbermau, 18 V. Crowell, 73 N. C. 613; Plummer v. Pa. St, 243. Jlokl, 22 Miuu. 15; iStalon v. Bryant, '•> Corkhill v. Lander, 44 Barb. 218; 55 Mis.s. 261; Schenck v. Sautter, 73 Morau v. Palmer, 13 Mieli. 367;" Mo. 46; Bank v. Wilmot, 94 N. Y. Spillcr v. Scljribner, 36 Yt. 245; Keys 221; S. C, 46 Am. R. 137; Allien v. v. Test, 33 111. 316; Brown v. Bowen, Wortberspoon, SON. Y. Super. 417; 30 N. Y. 519; Peabody v. Leacb, 18 Vecdcr v. Mudgett, 95 N. Y. 295; Wis. 057; Cox v. Buck, 3 Strobb. 366; Cooper, in re, 93 N. Y. 507; Gleasou Pickard v. Sears, 6 A. «.t E. 469; V. Dist. &c., 19 Ct. of CI. 430; Graves Stephen v. Baird, 9 Cow. 461; Ilub- V. Rogers, 59 N. II. 542 ; Griffith v. bard v. Briggs, 31 N. Y. 518; Tbomp- Lawreuce, 135 Mass. 365. son v. Sanborn, 11 N. H. 301; Mason 'Gove V. White. 20 AVis. 425: v. Williams. 8 Jones. 478. Equitable estoppel. 1075 bj such sale asserts that he has an existing title, and is bound to support and defend it, and the purchaser has a right to rely on such assertion, but when the property sold is not in existence, the reason fails and the estoppel does not apply.' If a party who is interested in an estate, and who has knowledge of his rights, mis- leads another into dealing with the estate, he will be postponed in equity to the party so misled, and will be required to make good his representations, even to the extent of any claim or title he may have in or to the estate, and this though the representa- tions are verbal and without consideration, moving directly from him.'' The estoppel does not operate as a conveyance of the in- terest of the party making it, but by way of estoppel precludes him from setting up any claim or title in himself at the time, against the party he misleads. This estoppel in some states is not available in a court of law, but may be enforced in a court of equity. § 951. Where a person knowing his own title to property, even although covert or under age, encourages, or even lies by, and permits a purchaser to buy it, equity will compel such person to convey to the purchaser.' When anything in order to a pur- ' Chynowitli v. Tcnney, 10 Wis. Bulk's Estate, 1 Pars. Eq. 470; Adlum ;J97; Wfilker v. Murphy, 34 Ala. 591; v. Yard, 1 Rawle, 171; Hobbs v. Nor- Sniith V. Mundy, 18 Ala. 182; Mc- ton, 2 Ch. Ca. 128;Hanniug v. Ferrers, Pbtrson v. Walters, 16 Ala. 714. 2 Eq. Cas. Abr. 356; Govett v. Ricb- 2 David V. Sbepard, 40 Ala. 587; mond, 7 Sim 1 ; Nicholson v. Hooper, Beatty v. Sweeuy, 26 Mich. 217; 4 My. & C. 485; Sandys v. Hodgson, Rangcley v. Spriiio;. 22 Me. 130; Baine 10 A. & E. 472; Stevens v. Stevens, 3 V. Rickett, 1 Ciu. 161. Cow. 20; Leader v. Ahern, 4 D. & W. » Wendell v. Rensselaer, 1 .Johns. 495; Boyd v. Belton, 1 J. & L. 130; Ch. 344; Carr v. Wallace. 7 Watts, Thompson v. Simpson, 2 J. & L. 110; 100; Wells v. Pierce, 27 N. H. 503; Crofts v. Middletou, 2 K. & J. 194; Higgins V. Ferguson. 14 III. 269; Hutton v. Rossiter, 7 !)« G. M. & G. Xcvius v. Belknap, 2 Johns. 573; 9; Savage v. Foster, 9 Mod. 35; Evans Cheeney v. Arnold. 18 Barb. 435; v. Bicknell, 6 Ves. 174; Draper v. Sanderson v. Ballauce, 3 Jones Eq. Borlace, 2 Vern. 369; Barrow v. Bar- 322; Godefrey v. Caldwell, 2 Cal. 489; row, 4 K. & J. 469; Watts v. Cres.s- R. R. Co. V. Du Bois, 12 Wall. 47: well, 9 Mod. 38; Clare v. Earl. &c., 3 Commonwealth v. Green, 4 Whart. Ch. C. 85; Cory v. Gertchen, 2 Msd. G04; Dewey v. Field, 4 Met. 381; 46; Overton v. Bannister, 3 Hare, 503; ('liapmanv. Chapman, 59 Pa. St. 214: Stokeman v. Dawson, 1 De G. & S. Hope V. Lawrence, 50 Barb. 258; 90; Wright v. Snow, 2 De G. & S. Hinds V. Ingham, 31 111. 400; Car- 321; Vaughan v. Vandersteigen, 2 penter v. Carpenter, 25 N. J. E. 194; Drew 63; Ass'n v. King, 3 De G. »& J. 1076 Afp^ecting Title to Land. chase is pnblicl}' ti'ansacted, and a third person, knowing thereof, and of his own right to the lands intended to be purchased, docs not give the purchaser notice of such right, he shall never after- wards be admitted to set up such right to avoid the purchase; it is apparent fraud in him not to give notice of his title to the intended purchaser; and in snch case itifwic}/ 07^ coverture shaW be no excuse ; for though the law prescribes formal conveyances and assurances for the sales and contracts of infants a.nd femes covert, which every person who contracts with them is presumed to know ; and if they do not take such conveyances as are neces- sary, they are to be blamed for their own carelessness, when they act with their eyes open ; yet, when their right is secret, and not known to the purchaser, but to themselves, or to such others who will not give the purchaser notice of such right, so that there is no laches in him, the court. will relieve against that right, if the person interested will not give the purchaser notice of it, knowing he is about to make the purchase ; neither is it necessary that sucli infant or feme covert should be active in promoting the pur- chase, if it appears that they were so priv}^ to it that it could not be done without their knowledge.' Thus, a husband present at the sale of chattels in which his wife is interested as a distributee 63; Wriglit v. Leonard, 8 Jur. N. S. 415; Blight v. Boyd, 1 Story, 478; Davis V. Tingle, 8 B. Men. 539; Hall V. Timmons, 2 Rich. Eq. 120; Norris V. Wat, 2 Rich. 148. ' Clare v. Earl of Bedford, 13 Vin. 530; Bcnisford v. ?,Iilward. 2 Alk. 49; Conyert v. Gertckon, 2 Madd. 40; Thompson v. Simpson, 2.J. & L. 110; Govctt V. Rithraond. 7 Sim. 1; Over- ton V. Bannister. 3 Hare, 503; E%-aus V. Bieknell, 6 Yes. 181; Savage v. Foster, 9 Mod. 37; Bailey v. Trammel, 27 Tex. 317; Beiu v. Ileal h, 7 Miss. 238; Crouch v. Sutton, 1 Grant, 114; Murray v. Boulee, 3 M. & K. 221; Vausrhn v. Yandei.stegen, 2 Drew, 379; Johnson v. Gallagher, 3 D. F. & J. 494 ; Ferguson v. Bobo, 54 Miss. 121; Danu v. Cudney, 13 Mich. 239; Taggurl s Appeal, £{) Pa. St. 627; Carr v. Wallace, 7 Watts, 394; Troxell v. Iron Co., 42 Pa. St. 513; Ayers v. Watson, 57 Pa. St. 300; Hobbs v. Norton, 1 Vera. 136; Haiihing v. Fer- rers, 2 Eq. Cas. Abr. 356; Walts v. Cresswell, 9 Vin. 415; Watts v. Hai.ls- weli, 4 Bro. C. C 507; JIangles v. Dixon. 1 M. & G. 437; Nicholson v. Hooper, 4 31. & C. 179; King, iu re, 3 De G. & J. 03; Smith v. Armstrong. 24 Wis. 446; Gatling v. Rodman, 6 Ind. 289; Hartman v. Kendall, 4 Ind. 403; Stale v. Holloway, 8 Blackf. 45; Sloris V. Barker, 6 Johns. Ch. 160; Lee v. Porter. 5 Johns. Ch. 268; To-^-n v. Needhum. 3 Paige, 345; Cochran v. Harrow, 22 111. 345; Bodine v. Killeen, 53 N. Y. 93; McCaa v. Woolf, 42 Ala. 389; Carpenter v. Carpenter, 29 N. J. E. 194. Equitable Estoppel. 1077 of an estate, who induces anotlier to purchase, by declaring the title good, estops himself and wife if she afterwards survives him, from setting up any title/ The distinction seems to be between participation or procurement, and silence or acquiescence, the one imposing no liability unless there is willful concealment or fraud f while the other may create a bar, notwithstanding good faith and fair dealing, by rendering it more just to throw the loss on the party in wliose conduct it originated, than on a purchaser Avho has been induced to buy by assurances, which, though believed at the time, turn out to be unfounded.' Thus, where in a sale of land, both parties were honestly mistaken in marking off the lot, so tliat the vendee took and built a liouse upon a por- tion of the Lmd intended to have been reserved by the vendor, the vendor looking on, and the vendee occupying the house on the land for thirteen years, with the vendor's knowledge. Held, the vendor was estopped by his acts to recover back the excess — both parties being equally innocent, and the vendee hav- ing acted on the faith of the vendor's acts." No one should be nuide answerable for stating his opinion truly, or for answering the question put to him according to his belief or conviction.^ § 952. Courts of equity will not disregard the })rinciples of estoppel, except in those cases where it becomes necessary to pre- vent injustice through accident, fraud, or mistake.^ Positive acts, tending to mislead one ignorant of the truth, which do mis- lead him to his injury, are good grounds of estoppel, and ignor- ance of title, on the part of him who is estopped, will not excuse him. Silence will postpone a title where one, knowing his title, should speak out. One led by such silence ignorantly and inno- cently to i"est on his title, believing it to be secure, and to expend 1 McCaa v.Woolf, 42 Ala. 389; Bean Wells v. Pierce, 27 N. H. 503: Willis V. Welsh, 17 Ala. 770; Harrisou v. v. Swartze, 28 Pa. St. 413. Pool, 16 Ala. 167; McCrevy v. Rem- 4 Willis v. Swartze, 28 Pa. St. 413; sen, 19 Ala. 430. ^ Parke? v. Barker, 2 I\Iet. 421 ; 2 Knouff V. Thompson, 16 Pa. St. Lawrence v. Brown, 5 N. Y. 394; 357; Ciabaiigh v. Byeily, 7 Gill, 384; Morris v. Moore, 1 Humph. 443; Strong V. Ellsworth, 26 Vt. 369. Tilgbman v. West, 8 Ired. Eq. 83; 3 Sclinec V. Schnee, 26 Wis. 377; Royston v. Harris, 15 Ala. 309. Anderson v. Armstrong, 69 111. 452; ^ Sprigg v. Bank, 1 McLean, 384; Beaupland v. :S[cKeen, 28 Pa. St. 124; S. C, 10 Pet. 257. McKelvy v. Truby, 4 W. .& S. 323; 1078 Affecting Title to Land. money and m;ikc iiuproveinents, will be protected.' Where a wareliouse, built by ;i railroad company, with permission of one tenant in common, had burnt down, and the railroad company re-erected another on the same site, if the other tenant in com- mon has knowledge tliat the company were re-erecting, and gav^e no notice of his claim, and the company believing he sanctioned the original management for erecting the warehouse, he was estopped after its completion from setting up his claim.' § 953. It is not necessary, in order to create an equitable estoppel, that the party should design to mislead. It is sufficient it' the act was calculated to mislead, and actually has misled, a person acting upon it in good faith, and who exercised reasonable oare and diligence under all the circumstances,' and effectually estops the party from averring a state of facts different from what the party acted upon." f 954. Standing by does not mean actual presence or actual participation in the transaction, but it means silence where there is a knowledge and a duty to make a disclosure. It does not import an actual presence, but implies knowledge under such circumstances as rendered it tlie duty of the possessor to com- municate it;' and wliile no one will be bound liy an estoppel arising from silence, who is not shown to have been guilty of fraud, or of that gross neglect and ignorance which, when the rights of others are in question, is constructively frandulenc, still a man who connives at a deceit, which he might luive exposed, 1 Chapman v. Chapman, 59 Pa. St. v. Lathrop, 12 Wis. 466; Ch^-iiowiili 214. V. Tenncy, lOWis. 397. ■■^ R. R. Co. V. McLanahan, 59 Pa. ^ Anderson v. Hiibbell, 93 Ind. 570: St. 23; Feiry Co. v. Dodge Co., 6 S. C, 47 Am. II. 394; Pence v. Mc- Neb. 18. Pherson, 30 Ind. 06; Lee v. Kirkpat- 3 Bank v. Hazard, 30 N. Y. 226; rick, 17 N. J. E. 264; Gatling v. Kod- Preston v. Mann, 25 Conn. 128; man, 6 Ind. 289; State v. Holloway. 8 Bank v. Bank, 50 N. Y. 575; Mattison Blackf. 45; Eddy v. Ellis, 1 Ind. 56; V. Young, 24 N. J. E. 535; Ilorne v. Calherwood, v. \Tatson, 65 Ind. 576; Cole, 51 N. H. 287; Pierce v. An- Richardson v. Chickering. 41 N. H. drews, 6 Cush. 4; Kirk v. Ilartman, 380; R. R. Co. v. McLannahan, 59 Pa. 63 Pa. St. 97; Rice v. Bunce, 49 Mo. St. 23; R. R. Co. v. Renfroe, 58 Mo. 231 ; Rudd v. Matthews. 79 Ky. 479. 65; Veghle v. W. P. Co., 19 N. J. E. * Vilas V. Mason, 25 Wis. 310; Fos- 142; Batchelder v. Hibbard, 58 N. H, ter V. Bettisworth, 37 Iowa, 415; 269. Rudd V. Mathews, 79 Ky. 479; Bank Equitable Estoppel. 1079 will be justly required to bear the consequences, instead of allow- ing them to fall on the injured party. Thus, a grantee, who suffers premises which have been conveyed to him to be sold to a third person, will not be allowed to set up his title to the injury of such purchaser.' So the original grantor, having encouraged the trustees to make a conveyance, and recognize the title of their grantees, stating often to persons who had bought land of such grantees that he had a life estate onl}^, and that the fee was in such grantees, and he was glad to be relieved from his debts, which the said grantees had agreed to pay, on account of the property conveyed to them, he and his heirs were estopped to dispute such gi-antees' title.''' Where parties stand by and acqui- esce in the sale of certain propert}', and allow the purchaser to go into possession,^ they are estopped from afterwards claiming title in themselves. A man will not be permitted to recover land which he has encouraged another to occupy and improve, even when the encouragement was given under the influence of a mis- take and in ignorance of his own better right.* So, where a party stands by and sees another convert his property to his own use, without protest, and such knowledge of their use can be shown, he is estopped from claiming the property." Where a person, who holds a contract of purchase of land, stands by and sees another purchase the same land from his vendor, paying his own nioi.c)' therefor, and fails to make known any claim in respect to the land, he will be estopped from afterwards claiming that the second purchaser bought for his benefit." Although an estoppel in j^ais may not always run with the land, a subsequent purchaser, \vith knowledge of the fact constituting the estoppel, can stand in no better condition than his grantor.' 1 Sandci'son v. Ballance, 2 Jones, v. Bradford, 43 Cal. 526; Blackwood Eq. 323. V. Jones, 4 Jones Eq. 54; Burkhalter "" Funk V. Newcomer, 10 Md. 301. v. Edwards, 16 Ga. 593; Thomas v. 3 PiUower V. Todd, 11 N. J. E. 312; Pullis, 56 Mo. 211; Cronover v. Ran- Bird V. Benton, 2 Dev. L. 179; Black- die, 21 La. Ann. 469. Avood V. Jones, 4 Jones Eq. 54; Gov- ^ Hogan v. Brooklyn, 52 N. Y. ernor v. Freeman, 4 Dev. L. 472; 282. Grace v. Mercer, 10 B. Mou. 261; « Baelir v. Wolf, 59 111.470. Ryder V. Rubber Co., 4 Bosw. 169. ' Stinchfield v. Emerson, 52 Me. * McKelvey v. Truby, 4 W. & S. 465; Fitzsimmons v. Joselyn, 21 VU 323; Lamb v. Goodwin, 10 Ired. 320; 129; Hart v. Bank, 33 Vt. 252. Vilas V. Mason, 25 Wis. 310; Marquat lOSO AiFixTiNG Title to Land. § 955. A mistake as to the law forms no ground for reforming a contract, 3'et where a party, acting muler a mistake of hiw or of fact, does acts which mislead the adverse part}', he is estopped, as well as if he was not acting under such mistake ; thus, to a suit brought for the partition of a lot, several persons who owned the rear part thereof were made jiarties. In the decree, the descrip- tion of the property ordered to be sold did not include the rear part of the lot. The whole not being sold, F., one of the owners of the rear portion, although knowing of the sale, made no objec- tion, and accepted her share of the proceeds, but executed no release. Held, that her acts, in not objecting to the sale and afterwards receiving payment for her share, estopped her and her representatives from claiming any interest in tlu; land; and that the sale of the lot under the decree was to be considered as con- veying a good title to the whole lot, although it was not correctly described in such decree.' So, where heirs stand y'lently by for years, while the occupant of land, sold by the administrator, is making valuable and lasting improvements on the property, and redeeming it from the lien of the ancestor's debts, they will be estopped from afterward asserting their claim." § 956. There is a vast difference between standing by without taking measures to stop a sale and warning the purchaser, or even answering such questions as he may choose to put, and taking an active part in the transaction, or inducing him to ])urehase by advice or persuasion. Good faith, generally an excuse in the former case, is insuthcient in the latter,^ for in the latter case the owner is neai'ly, if not quite, in the position of a vendor, and cannot rely on the innocence of his assurances as a reason why they should not be made good subsequently,* and in one case the court held that inducing one to buy would estop the assertion of an after acquired title, on the principle similar to that which ' Garnor v. Bird, 57 Barb. 277. Hamilton v. Hamilton, 4 Pa. St. 193; " Evans v. Snyder, 64 Mo. 516. Tilton v. Nelson, 27 Barb. 595; Barnes 3 Davis V. Handy, ;;7 N. H. 65; Col- v. McKay, 7 Ind. 301; Robinson v. bert V. Daniel, 32 Ala. "314; Barnes v. .Justice, 2 Pa. St. 19; Beaupland v. McKay, 7 Ind. 301; Storrs v. Barker, McKeen, 28 Pa. St. 124; McKelvy v. 6 Johns. Cli. IGG; Tilton V. Nelson, 27 Truby, 4 W. & S. 323; Svirartz v. Barb. 595. Swartz, 4 Pa. St. 363; McMullen v. ■* Wells V. Pierce, 27 N. H. 503; Weuner, 16 S. & K. 18. Equitable Estoppel. 1081 vests by descent or purchase in a grantor who has previously con- veyed with warranty/ § 957. Tlie estoppel does not apply where everything is equally well known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights arose, or where the party seeking to conclude him was not influenced by the acts or admissions which are set up as the grounds of the estoppel.'' To enable a man to set up a title by estoppel, the party must have been ignorant of the true state of the title at the time he took it, or been without means of ascer- taining it by a reference to records.^ Where the purchaser of real estate has admitted that he had the means of knowing that there was an adverse claim before he bought, he is estopped to den}' that he had notice, and cannot be considered a purchaser in good faith and without notice.^ When a man has encouraged another to settle on and improve land, and expend his money upon it, he will not be permitted afterwards to take it from him, although he has an older and better title, and acted himself in ignorance of his own right/ but this applies only to a l>ona fide improver, who is led into a mistaken expenditure by the acts or connivance of another, supposing the property to be his own, and not where he knew the land to be in dispute between two parties, and volunteered to originate a new claim. ^ A party, who is not only present and acquiescing in what is done, but for a valuable considei'ation procures another to convey away his property, will be bound by the conveyance as though it were his own act.^ ' Beaupland v. McKeen, 28 Pa. St. Goddefroy v. Caldwell, 2 Cal. 89; 124. Willis V. Swartz, 28 Pa. St. 413; Mc- . ^ Fletcher v. Holmes, 25 Ind. 458; Kelvy v. Truby, 4 W. & S. 323; Wells Hill V. Epley, 31 Pa. St. 831; MaHo- v. Pierce, 27 N. 11. 503: Pilliower v. uey V. Horan, 49 N. Y. Ill; Clark v. Todd, 11 N. J. E. 312; Beatty v. Coolidge, 8 Kas. 109; Foster V. Albert, Sweeny, 2G Mich. 417; Chapman v. 42 [nd. 40. Chapman, 59 Pa. St. 214; Marshall v. 3 Wood V. Griffin, 46 K H. 237; Pierce, 12 N. H. 127; Hobbs v. Nor- Gove V. White, 20 Wis. 425: Hill v. ton, 1 Vern. 136. Epley, Snp.; Brant v. Coal Co., 93 « McCormick v.McMurtrie, 4 Watts, U. S. .336; Crest v. .Jack, 3 Watt.s, 192; McKelvy v. Truby, 4 AV. & S. 423; 240; KnonfE v. Thompson, 16 Pa. St. Beaupland v. McKean, 28 Pa. St. 124. 361; Plummer v. Mold, 22 Minn. 15; ^ Burton v. Black, 32 Ga. 53; Bishop * Speck V. Riggin, 40 Mo. 405. v. Blair, 36 Ala. 80; Ford v. Loomis, » Miller v. Miller, 60 Pa. St. 16; 33 Mich. 121. 1082 Affecting Title to Land. Whei'e a party has consented that tlic legal title to lands should by an absolute conveyance be passed ov^er to another, or discovers that another has fraudulently obtained the legal title and put it in the niaiket, he cannot stand by and see third parties acquire rights upon such apparent legal title, and afterwards ask for relief which is purely e In the next place, a party who insists upon the acts of another as working an estoppel, must show that he acted upon the same, and that it formed the inducement wliich led him at the time to do what he did. Thus where an infant, whose land has been irregularly sold during his minority, made declara- tions, after he became of age, expressing his satisfaction of the sale ; it was held not to he an estoppel to his claim to the estate, because, being made long after the sale, it could have formed no inducement to the party to make the purchase.^ And where one procures an order of a count}^ court for the sale of land, as of land then claimed by the county, and in the order the land is spoken of as that " formerly owned" by the person procuring the oi'der, he is estopped to deny or recall his recognition of title, after another has acted upon it by purchasing the land of the county, paying the purchase monej', and making improvements thereon.' So, whore a husband had induced his wife to marry him by representations that, in consideration of the marriage, his father would convey certain lands to her, which was done, he was estopped fi'om setting up a title to the lands in himself, to override her title under the father's deed.'' § 968. Acts and declarations of a positive character are not the only grounds of estoppel. Under some circumstances, one may, by being silent or passive when he ought to speak or act, Zuchtman V. Roberts, 109 Mass. 53; Beaupland v. McKean, 28 Pa. St. 124. Bigelow V. Topliir, 25 Vt. 273; Carter ^ Ackley v. Dygert, 33 Barb. 176; V. Champion, 8 Conn. 554; Norton v. Allen v. Allen, 45 Pa. St. 473. Kearney, 10 Wis. 443; Vilas V. Mason, ^ Stevenson v. Saline Co., 65 Mo. 25 Wis. 510; McLean v. Dow, 42 Wis. 425. 610; Kingman v. Graham, 51 Wis. ■* Chapman v. Chapman, 59 Pa. St. 202. 214; Fa.vton v. Faxton, 28 Mich. ' Lowell V. Daniels, 2 Gray, 169; 159. 1092 Ap'feoting Title to Land. estop himself from claiming liis rights. Questions of this kind have most frequently arisen in cases where one, having a claim upon land, has stood by, ur knew of a sale of it being made as the property of another, without disclosing his claim. If a man holds a title to his lands by deed which has been duly recorded, it is all the notice he is bound to give so long as he remains pas- sive ;' it is only when he sees another purchasing land u])on which he has some uni-ecorded lien or charge, of Mdiich the other is ignorant, tJiat he is bound to give notice thereof. And, upon failing to do so, he is estopped to set up such claim against the purchaser." An owner of real property is under nb obligations to attack a forged deed of his property ; and the facts that he knew of the existence of such a deed, and knew that through a series of convej'ances the property had been purchased by an innocent purchaser for value, without I'emoustrance on his part, gives such a purchaser no title to the land.' § 969. No man can set up another's act or declaration as the ground of an estoppel, unless he has himself been misled or deceived by such act or declaration; nor can he set it up, where he knew, or liad tlie same means of knowledge, as to the truth of the statement, as the other part}'.* The same rule applies where the owner of land has stood by and allowed another to go on and make improvements upon it, in the mistaken belief that he was the owner thereof. If the true owner not only knows. of such expenditures being incui'red. but also that the other part}' is doing it under a belief that he ov;ns the land, it is regarded as a fraud to suffer him to goon without notice, and he would thereby ' Patlcrson v. Esterling, 27 Ga. 207; Fisher v. ]\Iossuiau, 11 Ohio St. 42; Tongue's Lessee v. Nutwell, 17 M(l. 212"^; Hill V. Epley, 81 Pa. St. 332; Odlin v. Gove, 41 X. II. 477; Briuekerhoff v. Lansing, 4 .Tohns. Ch. 65; Bigelow v. Toplifl, 25 Yt. 273; Carter V. Cliampion, 8 Conn. 594; 3LiS()n V. Philhiook, Gl) Me. 57; Moore V. B;)\vman. 47 N. IL 499; Knouflf V. Thompson. 16 Pa. St. 364; Mayo V. Cartright, 30 Ark. 407; Cla- baugli V. Ryerly, 7 Gill, 354; Goundie V. Water Co., 7 Pa. St. 233. 'Gray v. Bartlett, 20 Pick. 180; Shade v. Bessiger, 3 Neb. 140; Brown V. Tucker, 47 Ga. 485; Rice v. Bunce, 49 Mo. 231; Dellett v. Kemble, 23 N. J. E. 58; Whitman v. Boiling, 47 Ga. 125. 3 Mcley V. Collins, 41 Cal. 663. * Ormsby v. Ihmsen, 34 Pa. St. 462; Gray v. Bjirtlett, 20 Pick. 193; Hill v. Epley. 31 Pa. St. 331; Plumer v. Mold, 22 Minn. 15; McCuue v. Mc- Michael, 29 Ga. 312; Jewett v. Miller, 10 N. Y. 406; Ferris v. Coover, 10 Cal. 589. Equitable Estoppel. 1093 be estopped to claim the improvements, &c., and in some cases, even the land itself.' Thus, where A. sold land to B. by parol, Avithout giving anj deed, and repi-esented to 0. that he had con- veyed it to B,, and thereupon C. purchased the estate of B. and made improvements upon it, it was held that A. was estopped to set up a title against C. on the ground that he had not made a deed to B," The legal owner of land, knowing of a sale thereof b}' the ecpiitable owner, is estopped by a settlement with the lat- ter from resisting the conveyance, upon the ground that the latter had not paid him for the land.^ So, where a person sur- renders a deed by which his claim to land could be supported, and directs his grantor to make a deed to another, he is estopped from introducing secondary evidence to defeat a title made with his own knowledge and consent, and for which he received a sat- isfactory consideration.'' So, where A. had a legal title to certain personal property, of which B. was nominal owner, and which was in possession of C, as B.'s bailee; A., without informing C of his claim to the property, emploj'ed him to purchase it from B., which C. endeavored to do, but without success. C. subse- quently purchased the property from B. for himself. C. had a right to purchase the property for his own use, and A. was estopped, as against C, from denying B.'s title.* § 970. Au estoppel in i^ais, as affecting the title to land, may be further illustrated bj^ referring to the following leading cases, in which similar questions were raised. Thus, a husband and wife having mortgaged an estate to loan commissioners, with a power of sale, the husband applied to them to make sale of it, and induced the officers of a bank, who held a judgment against him, to purchase the mortgaged estate for the purpose of satisfying their debt. The bank subsequently sold the estate. The sale ' McGarrity v. Byington, 13 Cal. McPherson, 30 Ind. 66; Robiuson v. 426; Knouff v. Tliompsou, 16 Pa. St. Justice. 2 Pa. St. 11. 364; Gatling v. Rodman, 6 lud. 2S9; == Koj^ v. Test, 33 111. 316; Favill v. Odlin V. Gove, 41 N. H. 447; R. R. Roberts,50 N.Y. 223; O'Neal v. Auten, V. Strauss, 37 Md. 237; DcHette v. 58 111. 148. Kemble, 23 N. J. E. 58; Goundic v. » O'Neal v. Auten, 58 111. 148; Water Co., 7 Pa. St. 233; Coleman v. Phelps v. Seely, 23 Gratt. 573. Morrison, 1 A. K. Marsh. 406; East v. ■» Schade v. Bessinger, 3 Neb. 140. Dolihite, 72 N. C. 562; Chapman v. * Hill v. Williams, 33 Ga. 39. Chapman, 59 Pa. St. 314; Pence v. 1094 Afff.cting Title to Land. being, for some reason, irrci^nlar on the part of the commission- ers, tlie title defective, after the husband's death, his heir-at-law attempted to recover the land on that ground. It being shown tliat the fatlier was cognizant of the facts, though not of their legal effect, and had induced the bank to purchase as if the title was valid, he and all privy in estate with him were estopped from setting up an adverse title.' In another, the plaintiff's daughter, whose heir lie was, made a will while cctvert, devising her real estate to her husband. The husband offered the land for sale, and the father, supposing the will to be valid, advised the defendant to purchase it, stating at the time that he had no claim to it. Subsequently, the plaintiff ascertained that the devise, being that of a feme covert, was void, and claimed the estate. He was estopped to set up a title against one whom he had thus mis- led as to the true state of the title." So, where a son settled upon his wife, at marriage, a term, in the presence of his mother, stating to her that the same was to come to him at his mothers death. This, though done in his mother's presence and hearing, and being witness to the deed, was not denied by her — she did not then know that she had a claim to the term as a tenant in tail. She was thereby estopped to set up any greater estate in the term than one for her own life.' Thus, one having a claim upon land was present at the sale, and, to an inquiry, stated that his claim had been settled, he was estopped to set up the same against the purchaser.* So the true owner was estopped, where a sale was made by another in his presence, and the pur- chaser was instigated, by the one who had the title, to buy the land." One who had been employed to purchase land for another, Avho bought and paid for the same, on the belief that he had obtained thereby a good title, was estopped to set up a pre- existing adverse title, which ho had purchased after the purchase made by the tenant." An heir who assents to a void decree and sale, and acts as commissioner to carry it into effect, passes his own title in equity.' » Tilton V. Nelson, 27 Barb. 595. ^ Snodgrass v. Ricketts, 13 Cal. 359. "^ Storrs V. Barker, 6 Johns. Cli. 166. « Bcauplaud v. McKeen, 28 Pa. St, 3 Hunsden v. Cheyney, 2 Vern. 150. 124. * Blackwood v. Jones, 14 Jones "^ Salmon v. Price, 13 Ohio, 308. Eq. 54. Equitable Estoppel. 1095 § 971. The owner of lands tlirongli which a railroad passed, having previonsl}- granted the right of way to the company, was apprised, when the agents of the company entered on his lands to open the road, and knew that they claimed the right under his deed, but raised no objection, and took a contract for supply- ing materials used in the construction of the road. He was estopped from afterwards bringing trespass against the members of the company, although the instrument by which he conveyed the right of way might be inoperative as a deed.' Acquiescence by a land-owner in the occupation of his land for the road-bed of a railway company will preclude him from maintaining eject- ment for the land on which the road-bed is built." AVhere a creditor has treated with tlie transferee of his debtor's property as the real owner, lie is estopped from contesting the sale.' Where the party beneticiall_y interested in lands sold under a deed of trust to secure a debt, the sale of whicli was voidable, because the lands were put up in lump, subsequently induces a third party to purchase the lands from the vendee at the tnistee's sale, he cannot attack the validity of the sale." The defendant, having settled on and inclosed a vacant lot, told the owner that he would give it up when his family came. Afterwards, he wanted to fence with boards, and it was agreed that he should do so, and that the owner should pay one-half of the expense ; and at other times he recognized the owner's title. In ejectment by such owner's vendee, the defendant was estopped from disputing the owner's title.^ "Where the plaintiff had lived, for nearly twenty years, near the land, and had made no claim for his share of it, nor given any notice of his title, though aware that others were making valuable improvements upon it on the faith .of their titles, he is estopped from asserting title in himself, as against purchasers ignorant of his title and without notice. ° § 072. When the circumstances are such as to give rise to an equitable estoppel, it will be binding on all who acquire title sub- ' Pollard V. Maddox, 28 Ala. 321. 50 Pa. St. 417. Mvanaga v. R. R., 76 Mo. 207; ^ Ross v. Pritcbard, 15 La. Ann. 531. Provoetv. R. R., 57 Mo. 25; Baker * Taylor v. Elliott, 32 Mis.s. 172. V. R. R. Co., 57 Mo. 265; Hubbard v. ^ Downer v. Ford, 16 Cal. 345; R. R. Co., 63 Mo. 68; R. R. Co. v. Flanders v. Train, 13 Wis. 596. Straus, 37 Md. 237; R. R. v. Jones, « Woods v. Wilson, 37 Pa. St. 379 1096 AFFr.cTiXG Titlk to Land. seqneiitly, with notice or knowledge from the party estopped.' Althoui^h, in the absence of notice, the legal title must prevail where the title to land is iu question, ° generally speaking, estop- pels of this description are limited to pai'ties to whom the declaration was made, or the assurance given, but the courts liave also enforced them against third persons.^ And in one case* tlie acquiescence of the grantee in an exclusive right of way in its use by others, and his calling upon them to contribute to keep it in repair, were held to create an estoppel in favor of a third per- son, who might be presumed to have been influenced by the course thus pursued in l)ayng, although there was no evidence that it had been brought to his knowledge. In an action to recover damages for obstructing an established way over a plant- iff's land, the defendant was estopped by his continuous use of the way from repudiating his own title to it for the sake of turn- ing the plaintiff out of court on the ground that his reniedy was trespass or ejectment.^ There is no better settled principle of law than, that the express, or even tacit acquiescence, of the owner in an unauthorized sale of chattels, will estop him from questioning the title of the purchaser," and it has even been applied where a failure to inform a purchaser on credit of the real state of the title, and thus put him on liis guard against pajdng the purchase money.' Whether the acts, admissions or declara- tions constituting the estoppel are contemporaneous with or prior to the sale, makes no difference, if they tended to deceive, and the buyer was actually misled.* § 973. Upon a sale on execution, if the debtor acts in select- ing appraisers, and in giving directions to the marshal concerning the mode of sale, and these facts are known to the purchaser > Sbawv. Beebe, 35 Yt. 20.5; Wooley bard v. Stewart, 1 Hilt. 207; Tbomp- V. Edson, 35 Vt. 214. son v. Sanborn, 11 N. II. 201 ; Ilub- « Price V. Case. 10 Conn. 375. bard v. Briggs, 31 N. Y. 518; Hogan 3 Robinson v. Justice, 2 Pa. St. 19; v. Brooklyn, 52 N. Y. 282. Keeler v. Van Tuyle, 6 Pa. St. 250. ' Thompson v. Sanborn, 11 N. H. * Lewis V. Carstuirs, 6 Wliarton, 201. 193; K. R. V. Jones, 50 Pa. St. 417. « Lewis v. Carstairs, 6 Whart. 198; « R. R. Co. V. Jones, 5U Pa. St. 417. S. C, 5W. & S. 205; Quirk v. Thomas, * Thompson v. Blauchard, 4 N. Y. 6 ilich. 76; Robinson v. Justice, 2 Pa. 303; Cox V. Buck, 3 Strobh. 367; St. 19. Brew.ster v. Baker, 16 Barb 613; llib- Equitable Estoppel. 1097 when lie buys and pays for tlie property, the debtor is estopped from avoiding the sale, by showing that the marshal had not taken the necessary steps to anthorize him to sell.' Even where no judgment of foreclosure lias been entered, yet if the niort- sragee has admitted in writins^ the whole mortijaofe debt to be due, and by his signature and acts to forward and expedite the master's or sherili's sale of the mortgaged premises, waiving matters of form, surrendering possession to the purchaser, and moving away, or standing by or suffering purchasers for large and valuable consideration, to improve the propertj^, he is equit- ably estopped from asserting his ownership for wa;it of proper authority, at the time in the master or sheriff to sell.' Where a mortgagee directed and sanctioned a sale of the mortgaged prop- erty, where the pro)ierty was sold without any reference to the mortgage or the equity of redemption, and received the pro- ceeds, and did not object to or quash the sale, his conduct implies an admission of title in the mortgagor, and an abandonmant of any title in himself inconsistent thereto, and bars him from set- ting up the mortgage in a court of equity, against the purchaser.^ Where land is incumbered by a judgment, and the owner of it allows a purchaser to acquire a title to it at a sheriff's sale on execution when he could have restrained the sale by an equity superior to the judgment, he cannot then claim title to the land as against the purchaser, where such claim, if sustained, would also result in a loss of the purchase money to such purchaser." So, if the holder of a judgment which is a lien upon certain land, allows it to be believed that one assuming to act as his agent in postponing such judgment lien to a trust deed about to be made to secure a loan had authority to do so, and the lender of the > Hereford v. Bank, 53 Mo. 330; Simpson, 3 Met. (Ky.) 349; Vanness City V. Willey, 35 Iowa, 333; Craw- v. Vanness, 1 N. J. E. 248; ReicI v. ford V. Ginn, 35 Iowa, 543; Erwin v. Heasley, 3 B. Mon. 354; Banli v. Den- Lowry. 7 How. 173; Reed v. Leups, 38 nis, 37 111. 381; Hoffmire v. Holcomb, Wis. 353. 17 Kas. 378; Turner v. Watidns, 31 ^ Cromwell v. Bank, 3 Wall. Jr. C. Ark. 429; Morris v. Shannon, 12 Bush, C. 569. 89;.McBride v. Lcwisohn, 17 Hun, 2 Beall V. Barclay, 10 B. Mon. 361. 534; Holmes v. Steele, 28 N. J. E. «Ricev. Bunce, 49 Mo. 331; Stud- 173; Slagel v. Murdock, 65 Mo. 523; daid V. Lemond, 48 Ga. 100; Bryan Frost v. Quackenbush, 18 Abb. 3. V. Ramirez, 8 Cal. 461 ; Moore v. 1098 Affectin^g Title to Land. money secured by the deed, and a surety on the note given, act, in taking the deed and signing the note, in that belief, he is bound by tlie act of the agent, altliougli no consideration ac- crued to him from the transaction, and a purchaser of the judg- ment, or of a title under the judgment, with notice of the facts, is similarly bound.' § 974. In cases where the doctrine of equitable estoppel is invoked, it is administered upon the ground of fraud or gross negligence, which implies fraud. There must be positive fraud or concealment, or negligence so gross as to amount to construc- tive fraud. It would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted." AVhat shall be sufficient concealment or false representation to create the estoppel, is a matter depending in a great measure on the circumstances of the case. While it has been well established in estoppels by record and by matter of writing, or by deed, what is necessary to create either, there have been no particular rules established or adopted in regard to the nature and amount of proof or circumstances necessary to create an equitable estoppel. Every case in which this branch of the law of estoppel is applicable must therefore depend upon the peculiar circumstances connected with it ; but some degree of moral tur- pitude is indispensably necessary to give mere silonce or acqui- escence the force of a peremptory estoppel.* Good faith and diligence must concur on one side, with the want of them on the other, and no estoppel can arise in the absence of actual fraud, unless the purchaser was destitute, not only of actual knowledge of the true state of the title, but of a means of acquiring knowl- edge by a recourse to the record,' or in any other manner equally ' Booth v. Wiley, 102 111. 84. v. Roberts, 109 Moss. 53; Pai-ker v. « Brant v. Coal Co., 93 U. S. 386; Barker, 2 Met. 423: Morris v. Moore, Hill V. F.pley. 31 Pa. St. 335; Ilea- 11 Humph. 433. sliaw V. Bisscll, 18 Wall. 271; Boggs » Titus v. Morse, 40 Me. 348; Col- V. Mining Co., 14 Cal. 368; Davis v. bert v. Daniel, 32 Ala. 314; Hill v. Davis, 2() Cal. 23; Commoawealth v. Epley, 31 Pa. St. 331: Clabaugh v. Motz. 10 Pa. St. 531; Copeland v. Byerly, 7 Gill, 354; Robinson v. Jus- Copeland, 28 :\Ie. 539; Deleplainc v. tice, 2 Pa. St. 9. Hitchcock, G Hill, GIO; Davis V. Mar- * BigeloAv v. Topliff. 25 Vt. 273; rli-mt. 1 Curt. C. C. 136; Zuchtmanu Carter v. Cliampion, 8 Conn. 594. Equitable Estoppel. 1099 obvious or certain ;' for under such circumstances both parties will be regarded as equally negligent, and it would be wrong to relieve one at the cost of enforcing a forfeiture against the other." § 975. In order to enforce an equitable estoppel with respect to the title of property, such ;;s will prevent a party from assert- ing his legal rights, and the effect of which will be to transfer the enjoyment of the property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established. '■ The principle that one should l)e estopped from asserting a right to property, upon which ho has, by his con- duct, misled another, who supposed himself to be the owner, to make expenditures, is often applied where one owning an estate, stands by and sees another erect improvements on it in the belief that he has the title or an interest in it, and does not interfere to prevent the work or inform the party of his own title. There is in such conduct a manifest intention to deceive, or such gross negligence as to amount to constructive fraud. The owner, tliere- fore, in such a case, will not be permitted afterwards to assert his title and recover the property, at least without making compensa- tion for the improvements. But this salutary principle cannot be invoked by one who, at the time the impi'ovements were made, was acquainted with the true character of his own title, or with the fact that he had none.'" § 976. In order to create an estoppel by which an owner is prevented from asserting title to, and is deprived of his property by the act of a third person without his assent, the owner must have clothed the person assuming to dispose of the property, with the apparent title to, or authority to dispose of it. The person 'Hill V. Epley, 31 Pa. St. 331; Byerly, 7 Gill, 354; Alexander v. Taylor V.Ely, 25 Conn. 250; Crest v. Kerr, 2 Rawle, 83; Hepburn v. Mc- Jack, 3 Watts, 238; Commonwealth Dowel, ITS. &R. 383; Crest v. Jack, V. Moltz, 10 Pa. St. 527; Fi.sher v. 3 Watts, 238; Menges v. Oyster, 4 W. Mossman, 11 Ohio St. 42; Odlin v. & S. 20; Baldwin v. Richman, 9 :^r. Gove, 41 N. H. 465. J. E. 394; Moncure v. Hanson, 15 = East India Co. V. Vincent, 2 Atk. Pa. St. 385; Ins. Co. v. Martin, 13 83; Gray v. Bartlett, 20 Pick. 86; Minn. 59. Casey V. Inloe, 1 Gill, 430; Tongue v. » Steele v. Smelting Co., 106 U. S. Nutwell, 17 Md. 212; Knoupf v. 456: Brant v. Coal Co., 93 U. S. 326; Thompson, 16 Pa. St. 357; Carpenter Henshaw v. Bissell, 18 Wall. 255. V. Slillwell, 11 K Y. 61; Clabaughv. 1100 Affecting Tfixeto Laxd. allcgini-; tlie estoppel mnsL have nctetl and parted with value, upon the faith of such apparent ownership or authority, so that he will be the loser, if the ai)pearances to which he trusted ai-e not real.' The general rule is. that the estoppel thus created, operates to put the party entitled to the benefit of the estoppel in the same posi- tion as if the thing represented was true, or that the action taken upon the faith of the conduct of the party estopped, is such that no tribunal will permit him to prove the contrary," One who assists at a sale and recommends the title as being good in the vendor, is estopped to set up against the purchaser a secret equita- ble title in himself/ A sale of a tract of land bj one of several joint owners will bind the others, or either of them, if it is shown that they, or either of them, were present at the sale and made no objection thereto, but on the contrary urged and advised the sale.* So. where the holder of the legal title to lands acknowledges in a letter of attorney duly executed and acknowledged, which is recorded, in which he authorizes their sale and that the attorney is a joint and equal owner with him, and a stranger buj^s it on an execution sale against the attorney, without notice that the attorney was still indebted for the price of the land (his share), the purchaser acquires a good title as against the owner ; neither the widow nor the heirs can take advantage of any secret equities against one who purchased on the faith of such written de-.-lara- tion.' § 977. A man cannot deny the validity of a sale made by a 1 "Weaver V. Barden, 49 N. Y. 286; Appeal, 90 Pa. St. 40; Rabun v. McGoldiick v. Willetts, 52 K Y. 612; Rabun, 61 Ga. 647; Green's Appeal, Bank v. R. R., 44 N.Y. 136; Saltus v. 97 Pa. St. 342; Schenck v. O'Neil, 23 Everett, 20 Wend. 207; Wooster v. Ilun, 209. Sherwood, 25 N. Y. 278; Pcabody v. » Winchell v. Edwards, 57 111. 41; Brower, 13 N. Y. 121; Walsh v. Dean v. Martin, 24 La. An. 103; Tro- Bank, 94111. 191; Dahlraan, V. Fors- bridge v. Mathews, 28 Wis. 656; ter, 55 AVis. 382; Hart v. Giles, 67' Leeper v. Hersman, 58 111. 218; David- Mo. 175. son V. Silliman. 24 La. An. 225; ^Grissler v. Powers, 81 N. Y, 57; Henson v. Westcott, 82111. 224; Miller S. C, 37 Am. R. 475; Renkin v. Hill, v. Springer, 70 Pa. St. 26'.t. 49 Iowa, 270; Bemis v. Becker, 1 Kas. * Crownover v. Randle, 21 La. An. 226; Welsch v. Bank, 94 111. 191; 469. Kirkpatrick v. Brown, 59 Ga. 450; ^ Richardson v. Hyams, 1 La. An. Mayer v. Erhardt, 88 111. 452: Hend- 286. ricks v. Kelly, 64 Ga. 388; AYylies Equitable Estoppel. 1101 person whom he has enabled to hold himself out to the world as the owner, or duly authorized to sell.' In order to produce this result, there must be fraud or neglect on the part of the owner, as well as good faith on the part of the purchaser.^ When A., with a view to hinder and delay his own creditors, falsely and fraud- ulently holds out to the public and pretends that certain chattels bought and paid for by him, and then in his possession, belong to B., who has the lease of the store where the articles are sold, and whose name is upon the awning, he will be precluded from claim- ing the property as against the creditors of B., who seize the property upon their executions." Where the owner of goods stands by and allows another to treat them as his own, by which means a third person is induced to purchase them, the former cannot recover theu^ from the purchaser; and if one by his con- duct causes another to believe in the existence of a state of facts, or by his silence admits another to be the owner of property, when such ownership is asserted, so that a third person, in acting upon it, assumes a responsibility or parts with the property, he cannot afterwards aver his own title to the injury of such pei'son.^ If, after an alleged purchase of goods, the vendees cause an exe- cution to be levied upon them as the property of the vendor, this is a solemn admission on their part that the goods were, at the time of the levy, the property- of the vendor, and they are estop- ' Pickering v. Busk, 15 East, 38; 105; Cox v. Buck, 3 Strobh. 366; Davis V. Bradly, 24 Vt. 35; Dyer v. Combes v. Chandler, 33 Ohio St. 178; Pearson, 3 B. «& C. 38; Reed v. Van- Wood's Appeal, 91 Pa. St. 379; S. C. cleve, 27 N. .J. L. 352; Caimichael v. 37 Am. R. 694; Tucker v. Bank, 58 N. Buck, 1 Rich. Eq. 332; Wiuton v. H. 83: S. C, 42 Am. R. 580. Hart, 39 Conn. 16; Dodd v. R. R. ^ ]Sixon v. Brown 57 K H. 34; Co., 48 Ga. 102; Moore v. Bank. 55 Barnard v. Campbell, 55 N. Y. 546; X. Y. 41; McStea v. Mathews, 50 K Coffin v. Gephart, 18 Iowa, 256; Towle Y. 166; Horn V. Cole, 51 N. H. 287; v. Leavitt, 23 N. H. 373; Faucett v. Mason v. Williams, 8 Jones L. 478; Osborn, 32 111. 41; Dyer v. Pearson, Keyser v. Harbeck, 3 Duer. 373; 3 B. & C. 38. Quirky. Thomas, 5 Mich. 76; Cald- ^ pjckard v. Sears, 6 A. &E. 469; wellv. Bartlett, 3 Duer, 341; Lowber McLean v. Dow, 42 Wis. 610; Bird V. McCoy, 12 La. An. 795; Gregg v. v. Benton, 2 Dev. L. 179: Governor v. Wells. 10 A. & E. 90; Saltus v. Ever- Freeman, 4 Dev. L. 472; Rigney v. ctt, 20 Wend. 268; Jlowrey v. Walsh, Smith, 34 Barb. 383. 8 Cow. 238; Root v. French, 13 * Hatch v. Kimb:ill, 16 Me. 146; Wend. 570; McNeil v. Bank, 46 N. Hibbard v. Stewart, 1 Hilt. 207. Y. 325; Jarvis v. Rogers, 13 Mass. 1102 Afi-ecting Title to Land. ped from claiming the goods in any other way than by virtue of the said levy, even where it was proven that they did not intend to abandon their alleged purchase, and acted under the advice of counsel that their title would not be affected thereby.' The owner of goods, who stands by and voluntarily allows another to treat them as his own, whereby a third person is induced to buy them bona fide, cannot recover them from the vendee. § 978. Where the owner holds out another, or allows him to appear as the owner of, or as having full power of disposition over, the property, and innocent third parties are led into dealing with such apparent owner, they will be protected. Tlieir rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken conlidence, he caused or allowed to appear to be vested in the party making the sale or conveyance. Posses- sion of personal property \^ prima facie evidence of title : it would furnish fraudulent parties with the means of defrauding honest purchasers, to intrust them with the apparent ownership of prop- erty, while the real title is allowed to remain in a third party, who can reclaim it at pleasure. If a vendor, by collusion with his vendee, enters into a contract for the purpose of enabling the latter to obtain a false credit, or to impose on innocent parties, by means of property placed in his possession, the vendor, being a party to a fraud, will be estopped to set up any title to the prop- erty, and creditors, as well as innocent purchasers of the vendee, may well claim to hold it, on the ground that it was placed in his possession for a fraudulent purpose." Thus, where the vendor of ' Smith V. Taylor, 14 La. An. 668; 456; Anderson v. Arraistead, 69 111. Drew V. Kimbuii, 48 N. H. 282; Field 452; McDermott v. Baruum, 19 Mo. V. Laugsdorf, 48 Mo. 32. 204; Sanders v. Keber, 28 Ohio St. * Pickering v. Busk, 15 East, 38; 641; Johnson v. Lyonnais Co., L. II. Gregg V. Wells, 10 Adol. & El. 90; 3 C. P. 82; Wood's Appeal, 92 Pa. St. Saltus V. Everett, 20 Wend. 267; 379; S. C, 37 Am. R. 694; Combes Mowrey v. Walsh, 8 Cow. 238; Root v. Chandler, 33 Ohio St. 178; Tu(;ker V. French, 13 Wend. 570; Moore v. v. Bank, 58 N. H. 83; S. C, 42 Am. Bank, 55 N. Y. 41; Dyer v. Pearson, R. 580; Dyer v. Pearson, 3 B. & C. 38; 3 B. & C. 43; Nixon v. Brown, 57 N. Bauldug Co., in re, L. R. 3 Ch. App. H. 4; Bai uard v. Campbell, 55 N. Y. 154. Equitable Estoppel. 1103 property gives to the purchaser's ageut, through whom the pur- chase was made, a receipt in fnll for the purcliase money, and the purchaser, in good faith, relying on the truth and validity of the receipt, pays the amount to the agent, the vendor, is estojjped, as between him and the purchaser, from denying the truth of the receipt, and can not recover the money from the purchaser, or reclaim the property/ Thus scrip certificates are issued to A., and by him deposited with his broker B., for the purpose of pay- ing the assessments remaining due, and dealing with them as they should direct. B., in fraud of the rights of A., aud without his authority, deposited the scrip with C, as security for amount due from B. to C. C. was not aware of the fraud. Such certificates having become by custom and usage, negotiable instruments trans- ferable by mere delivery, C. was entitled to them as against A., on the ground of their negotiability and by reason of his deposit- ing them with B., and allowing him to appear as the owner and as having full disposition over them.* So, where an owner of state warrants loaned them to the auditor to be exhibited in evidence, and the auditor sold them to a purchaser for value without notice ; the owner by delivering the warrants to the auditor had enabled the latter to make the sale of them, and could not impeach the purchaser's title.' § 979. One who willfully or negligently enables another to hold himself out to the world as the owner, by furnishing him with the documentary evidence of title, or suffering the goods to be entered in his name on the books of the warehouse where they are deposited, will be estopped as against a purchaser who gives value in the belief that the apparent ownership is real.* If a ' Miller v. Sullivan, 3G Ohio St. * Dyer v. Pearson, 3 B. & C. 38; 639. Saltus v. Everett, 20 Wend. 267; Pick- " Rumball v. Bank, L. R. 2 Q. B. eiing v. Busk, 15 East, 38; Davies v. D. 194; Goodwin v. Roberts, 1 xipp. Bradley, 24 Vt. 55; Copelaud v. Bos- Cas. 476; S. C, L. R. 10 Excbq. 377. quet, 4 Wash. C. C. 588; McCau- 3 Mahau v. Du Buclet, 27 La. Ann. ley v. Brovi'n, 2 Daly, 426; Porter v. 45; Ruiz v. Norton, 4 Cal. 355; Coles Parks, 49 X. Y. 564; Dixon v. Rol- V. Anderson, 8 Humph. 489; Kessler ards, 17 Mo. 580; Keyser v. Harback, V. Zimmercbite, 1 Tex. 50; Wood's 3 Duer, 373; Carmic'hael v. Beck, 10 Appeal, 92 Pa. St. 379; S. C, 37 Am. Richardson, 333; Whitman v. Boiling, R. 694; Combes v. Chandler, 33 Ohio 47 Ga. 135; Coombes v. Chandler, 33 St. 178. Ohio St. 178; Studdard v. Lemond, 48 1104 Affecting Title to Land. party lias by deed admitted the title of the plaintiff to the chattels in respect of which the action is brought, he will be estop[)ed from disputing it at the trial.' If he has accredited the title of some third person to the goods, and so induced the plaintiff to buy frum the latter, he will be estopped from setting up any title in himself.* If the owner of goods parts with the possession of them, and knowingly suffers his bailee to deal with the goods as owner, and culpably and negligently stands by and allows a third person to acquire an interest in the goods on the faith and under- standing of a fact which he can contradict, he will be afterwards estopped from disputing the fact in an action against the person whom he has himself assisted in deceiving. Tlius the plaintiff, the owner of the fixtures of a public house, demised them to A., who thereupon became tenant of the house to B., under an agree- ment which gave his landlord a lien on the fixtures, the plaintiff' being present at the execution of such agreement. A. afterwards sold the good-will and fittings, without the plaintiff's Icnowledge or assent, to the defendant, who, being told by B. that A. was his tenant, bought them honajide, in ignorance of the plaintiff's title, and was accepted by B. as a tenant in the place of A. JleUl, that he was estopped in an action to recover the fixtures.' § 980. So where one of several administrators was present at a levy upon the property of his intestate, and furnished to the ofificer a list of tlie slaves, and was present at the sale, and made statements to the bidders; although it did not appear that he acted fraudulently, the administrators were esto])ped from proceeding against the officer as a tresspasser.* So where A. had a large quantity of flour stored in the warehouse of B. and sold a portion of it to C, and gave an order for the flour sold on B , Ga. 100; Wood's Appeal, 92 Pn. St. = Waller v. Drakeloid, l^E. & B 379; S. C. 37 Am. R. 694; Jame.son v. 753. Jam(!Son, (ifi III. 259; Tucker v. Bank, =* Gregg v. Weils. 10 Ad. & Ell. 99; 58 N. H. 83; S. C, 42 Am. II. 580; Francis v. Welch. 11 Ired. 215: Tucker v. Coinvell, 67 111. 552; Mar- Downer v. Flint, 2 P. Wms. 527; quat V. Bradford. 43 Cal. 52G; Basher Vilas v. Madison, 25 Wis. 310; Geb- V. Wolf. 59 111. 470; Niven v. Bel- hard v. Bates, 2 Q. B. 476; llolroyd knap, 2 Johns. 573; New Iluveu v. v. Marshall, 2 De G. F. & J. 596; Pairbaven, &c. Co., 38 Conn. 421. Briusmade v. Hurst, 3 Duer, 206. ' Wiles V. Woodward, 5 Exchq. « Ponder v. Moselej', 2 Fla. 207; 557. Ackley v. Neufville, 25 Cal. 551. Equitable Estoppel. 1105 who accepted the same, and gave C. in exchange a receipt for the same, and transferred it on his warehouse books to the account of C, but did not separate any specific portion from the flour of A. as the property of B., and the whole was subsequently seized in an action against A. : Held, that the sheriff was not liable to C. in the absence of segregation of the flour ; but that B. was estop- ped by his receipt, from denying his liability.' Warehousemen, who give their receipts for goods on storage, are estopped from setting up a want of segregation of the goods receipted for, from other goods in an action against them, by the holder of the recei))t, for a conversion of the goods by a seizure in an action against a vendor of the plaintiff.^ § 981. So where A. sold by contract to B. 100 casks of tallow then lying at a wharf, and on the same day gave him a written order to the defendants, the wharflngers, " to weigh, deliver, transfer and re-house the same." The next day B. who had previously entered into a contract with the plaintiffs for the sale of 300 casks of tallow, in part fulflllment of that contract, obtained from the wharfingers and sent to the plaintiffs the following acknowledgment : " Messrs. 0. & Co : We have this daj' trans- ferred to your account (by virtue of an order from B.) 100 casks tallow, &c., with charges from 10th October." Upon the receipt of this, the plaintiffs paid B. the full amount of the tallow. Shortly afterwards, the defendants delivered twenty-one of the casks to the order of the plaintiffs. On the 11th of October, B. stopped payment, and on the 11th, A. sent notice to the defend- ants not to deliver the remainder of the tallow to B. or his order; and though the tallow had not been weighed, held, the defend- ants were estopped by their acknowledgment, and could not set up in defense a right in A. to stop intransitu.^ The defendant, a wharfinger, having. acknowledged certain titnber on his wharf to be the property of the plaintiff' ; held that he could not dispute the plaintiff's title." A manufacturer deposited goods with a wharfinger at Stockton, for the purpose of being shipped • Adams v. Gorliam, 6 Cal. C8. 6G0. 2 Goodwin v. Scr.unell, 6 Cal. 541. « Goslinir v. Biinie, 7 Bing, 339; ^ Ilawes V. Watson, 4 Dowl. & Ry. Bassett v. Holbrook, 24 Coun. 452; 22; Woodley v. Coventry, 3 H. & C. Gillelt v. Hill, 3 C. & M. 530; Stonard 164; Knights v. ^Viffen, L. R. Q. B. v. Duncan, 3 Camp. 344. Vol. I.— 70 JJ06 Affecting Title to Land. from the defendants' wliarf in London, receiving from him receipts describing them. The phiintiflf sent the receipts and Jelivery orders to the defendants, and demanded the goods. The defendants stated that the goods had not arrived, but promised that when they did arrive they should be forwarded to the pUiint- iffs ; the defendants, having thus assented to the plaiutifi's title, could not afterwards dispute it. § 982. The expenditure of money or labor by one man on the land of another, under a license given by the owner, will estop the owner from revoking the license and wresting the former from his possession of the land.* Where a licensee has expended money on the faith of the license, and put himself in a position that he would be seriously damaged b}" allowing it to be revoked, the estoppel is applied in the same manner as it is to tho'se cases of acquiescence and silent consent.* A parol license, when ' Simmons v. Morehouse, 88 Ind. 391; Lane v. Miller, 27 Ind. 534; Ogle V. Dill, fj.j Ind. 130; Lee v. McLeod, 18 Nev. 280; Hodgson v. Jeffries, 52 Ind. 334; Dyer v. Caunall, 4 Pa. St. 353; Bridge Co. v. Bragg, 11 N. H. 702; Rikerv. Kelly, 1 Me. 117: Bab- <;ock V. Utter, 1 Keyes, 115; Van Oiileu V. Van Ohlcu, 56 111. 528; Thompson v. McElarney, 81 Pa. St. 174; Clute v. Carr, 20 Wis. 53; Ilazle- ton V. Putnam, 3 Wis. 107; Swartz v. Swartz, 4 Pa. St. 353; Ilulins v. Ship- ham, 5 B. & C. 221; French v. Owen, 2 Wis. 250; Fryer v. ^V^arncr, 29 Wis. 511: Ebmer v. Stichler, 19 Pa. St. 19; Ilutr V. McCauley, 57 Pa. St. 206; Winter v. Brockwell, 8 East, 308; Cook V. Stearns. 11 Mass. 533; Hous- ton V. Laffee, 46 N. H. 505; Batchel- der V. Hibburd, 58 N. H. 259; Taylor V. Waters, 7 Taunt. 374; Ward v. Lake, 1 Sawyer, 3; Liggins v. Inge, 7 Ring. 682; Rerick v. Kern, 14 S. & R. 267; Lane v. Miller, 27 Ind. 534; Water Power Co. v. Veghte, 21 N. J. Eq. 463; S. C, 19 N. J. Eq. 142; Hall V. Chaffee, 13 Vt. 150; Fool v. Co., 23 Conn. 302; Blanchard v. Baker, 8 Me. 253; Bridge v. Bragg, 11 N. H. 102. Munford v. Whitney, 15 Wend. 380; Addison v. Hack, 2 Gill, 221; Van Ohlen V. Van Ohleu, 56 111. 528; Sheffield v. Collier, 3 Ga. 82; Stiles v. Cowper, 3 Atk. 692 ; Ea.st, &c. Co. v. Vincent, 2 Atk. 83; Hardcastle v. Shafts, 1 Anst. 184; Dann v. Spur- rier, 7 Vcs. 235; Powell v. Thomas, 6 Hare, 300; Canal Co. v. Sling, 16 Beav. 634; Devonshire v. Eglin, 14 Beav. 530; Mold v. AVheatcroft, 27 Beav. 510; Canal Co. v. Harcourt, 2 De G. & J. 608; Williams v. Earl, Cr. & Ph. 97; Monroe v. Perkins, 9 Pick. 298; Lawrence v. Dole, 11 Yt. 549; Hoffman v. Lee, 3 Watts, 352; Russell V. Pfubbard, 50 III. 335. ^ Cook V. Pridgcn, 45 Ga. 331 ; Win- ham v. McGuire, 51 Ga. 578; Wj'nn V. Garland, 19 Ark. 23; Fuhr v. Dean, 26 Mo. 716; Lefevre v. Lefevre, 4 S. & R. 241; McKellip v. Mcllhenny, 4 Watts, 317; Lee v. McLeod, 12 Nev. 280; Gooch v. Sullivan, 13 Nev. 78; Rhodes v. Otis, 33 Ala. 578; Grant v, Davenport, 18 Iowa, 178. Equitable Estoppel. 1107 executed, may become an easemeDt on tlie land, and where acts have been done in reliance npon a license, tlio licensor will be estopped from revoking it to the injury of the licensee.' This rule, that a license to do something on the licensor's land, fol- lowed b}' expenditure on the faith of i't, is irrevocable, rests upon the principle of estoppel, because the parties cannot be placed in statu quo. Equity treats a license thus executed as a contract giving an absolute right.* A license cannot be revoked or with- drawn, as long as it is essential to the possession or enjoyment of a vested right or interest, which has been created by the licensor, placed, with his assent, where the continuance of the license is essential to its enjoyment. This is a branch of the rule that no one can withdraw a promise or declaration, made with a view of inducing others to act, after they have acted upon it, and thus placed themselves in a position where they must necessarily suffer, if it be withdrawn.^ § 983. There is a vast and apparent distinction between a refusal to fulfill an executory contract, and the destruction or deprivation of a right, whicli lias actually vested. No man is allowed to keep the property of others, by inducing them to place it upon his soil and then I'efusing a right of entiy to regain it. The estoppel is properl)^ ajtplied, and without divesting the title to the land, prevents its ])eing used as a means of injustice. Thus tlie plaintiff's father, by oral license, permitted the defendants to lower the bank of a river, and make a weir above the plaintiff's mill, whereby less water than before flowed to the mill. It was held, that plaintiff" could not sue the defendants for continuing the weir. " We consider the license," said Tindal, C J., in entering the judgment, '* to be simply an acknowledgment, on the part of the plaintiff's father, that he wanted the water no longer for the purposes of Jiis mill, and that he gave back again and ' Dark v. .Jolinson, 56 Pa. St. 164; v. R. R. Co., 71 Ind. 265; Snowden v. People V. Goodwin, 5 N. Y. 568; Mur- Vilas, 19 Ind. 310; Stephens v. Beu- ble V. Whitney, 28 N. Y. 297; Thomp- .son, 19 Ind. 367; Hodgson v. Jeffrie.s son V. McElarney, 82 Pa. St. 174; 52 Ind. 334; Nowlin v. Whipple, 79 Marsh v. Weckerly, 13 Pa. St. 250. Ind. 481 ; Hydraulic Co. v. R. R. Co., » Huff V. McAuley, 53 Pa. St. 206. 29 Ohio St. 343; Miller v. Brown, 33 ^ Simons V. Morehouse, 88 Ind. 391; Ohio St. 547; Pierpont v. Barnard, 6 U. S. V. R. R., 1 Hugh. 138; Buchan N. Y. 279. 1108 Affkcting Title to Land. yielded np, so far as he was concerned, that quantity of water which found its way over the weir which he then consented should be erected by the defendants. And we think after he has once clearly signified such relinquishment, whether b}' words or acts, and suffered other persons to act on the faith of such relin- quishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or to throw on those other persons tlm burden of restoring mat- ters to their former state and condition." He said further : " This is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to lish in the waters of another, or the like ; which license, if countermanded, the party is put in the same situation as he was before it was granted ; but this is a license to construct a work which is attended with expense to the ])arty usini;' the license ; so that after the same is counternumded, the party to whom it was granted may sustain a heavy loss. It is a license to do something that, in its nature, seems intended to be permanent and continuing."^ § 984-. Whenever a party has induced another, upon the faith of his promise, though verbal, to expend money or labor, for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promisor to give such deed or writing as shall be requisite to secure the possessor in the enjoyment of what was promised, and, in those States where there are no courts of equity to compel such things to be done, courts of law consider the thing as actually done, and the grantee will accordingly be protected in the enjoyment of the thing promised." This principle has a much wider i-ange in equity, which draws the line between participation and inducement, in the shape of assurances, or mutual promises and mere acquiescence,^ and ' Taylor v. "Wiiliers, 7 Taunt. 374; Cas. Abr. 522; Thomas v. Sorrell, Liggius V. Inge. 7 Bing. 082. Vaugli. 350; Wood v. Leadbitler, 13 - MeKillip V. Mcllheny, 4 Watts, M. A; W. 844; Pierpout v. Barnard, 317; Swartz v. Swuriz, 4 Pa. St. 353; 6 N. Y. 279. Rerick v. Kerns. 14 S. & H. 207; » AYells v. Pierce, 27 111. 503; Sotn- IJoud V. Hopkins, 1 S. & L. 433; er>;ctsiiire v. Harcomt, 2 De G. E. & Clement v. Durgin, 5 Me. 9; Addiscm J. 596; Beaufort v. Patrick, 17 Be;i.v. V. Hack, 2 Gill, 521; Caldwell v. 70: Mold v. Wheatcroft, 6 Jur. N. S. Scott, 10 Yerg. 209; Jackson^. Cator, 2; Cumberland v. JMcLannaban, 59 6 Yes. C'JO; Short v. Taylor, 2 Eq. Pa. St. 23; Ingersol v. Horton, 7 Equitable Estoppel. 1109 enforces agreements which have been so far executed by an actual transfer of possession, as to put their existence beyond question, and renders it ditiicult to restore the parties to their actual position, without injustice, and a license which has been acted upon, falls directlj^ within this principle, and stands in the same position with other executed agreements. % § 985. The principle on which chancery precludes men from falsifying hopes or expectations, on which others have acted, now forms one of the most pi'ominent doctrines of the common law, under the title of equitable estoppel, and enables a court of law to do that indirectly, which would otherwise fall clearly beyond the scope of its powers. Wlien a thing sold or given, is at the time on the land of him who gives it, he will be estopped from defeating his own grant, by refusing the grantee permission to enter on the land for the purpose of carrying the gift away. An executed license stands on the same footing, at law, as an executed parol agreement in equity, and is equally irrevocable, whether lands or chattels are in question.' The estoppel is limited by the purpose for which it is called into being, and will be extended as far as the exigencies of the case and the purposes of justice require. § 986. Where a person entitled to a right in the nature of an easement encourages another, though passively, to acquire title and expend money on tlie assumption that that right will not be asserted, he will not be permitted in a court of equity to assert his right to the prejudice or injury of those who have been encouraged, by his acquiescence, to expend money on the faith that his rights will not be exercised to defeat the just expectation upon which such expenditures have been made. Where such acquiescence has continued for the period of tw^enty years, or even less, his right is extinguished by estoppel. « The owner of Mich, 405; Farley v. Vaughn, 1 Cal. bard, 59 111. 335; King v. Batteison, 227. 6 T. R. 554; Copeland v. Copeland, ' Woodbury v. Parshley, 7 N. H. 28 Me. 525; Shaw v. Beebe, 35 Vt. 237; Sheffield v. Call is, 3 Ga. 82; Wil- 205. son V. Chalfant, 15 Ohio, 248; Cle- '' R. K. Co. v. Pri)dden, 20 N. J. Eq. ment V. Durgin, 5 Me. 9; Androscog- 530; Higbee y. Camden, &c. Co., 20 gin Co. V. Bragg, 11 N. H. 102; Pope N. J. Eq. 435. V. Henry, 14 Vt. 560; Russell v. Hub- 1110 Afp^kcting Titlk to Land. land, who stands by witliont objection, and sees a public railroad constructed over it, cannot, after the road is completed, or lar^e expenditures have been made thereon upon the faith of I is apparent acquiescence, reclaim the land, or enjoin its use by the railroad company. In such case, there can only remain to the owner a right of compensation.' Thus persons holding lai'/ in common, who grant a license to erect a dam, each of them is estopped to claim damages for an injui'v to land held by either in severalty." Plaintiff sued defendant for damages for Hooding his land by a dam raised to an unlawful height. Defendant answered that the dam was of the same height as when he pur- chased the premises ; that he was a stranger and knew nothing of the lawful height of the dam, but that the plaintiff knew it ; that he made incpiiries of other residents in the neighborhood before purchasing, and with a view to the purchase, and was assured by them that the dam was of lawful height ; that plaintiff knew of such inquiries and information before the purchase, and did not notify him to the contrary. These facts constituted an estoppel if the purchase-money, or any part of it, had been paid.^ § 987. An estoppel hi pais can only be set up as a means to prevent injustice.* And not when a person through misappre- hension, ignorance or inadvertence, does acts or makes declara- tions that mislead another to his injury, but where at the same time there is no willful deception or culpable negligence, and no intention that the representation should be acted upon as true by the other party, and nothing that is equivalent to a promise that the representation is true.^ It must appear that there was fraud or gross neglect; that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title ; and that others were acting in ignorance of it ; that he intended to deceive or was culpably negligent in the non-assertion ' Goodin v. Cincinnati, &c. Co., 18 Doub v. iNIason, 2 Md. 380; Bittings' Ohio St. 169; Evansvillc v. Grady, 6 Appeal, 17 Pa. St. 211; Phillips v. Bush, 144. Cooper, 50 Miss. 722. 2 Francis v. Boston, &c., 4 Pick. ^ Hefner, v. Vandolah, 57 111. 520; 365. Horn v. Cole, 51 N. H. 287; Farist's ^ Anderson V. Hubble, 93 Ind. 570; Appeal, 39 Conn. 153; Turnipseed v. S. C, 47 Am. R. 394. Hudson, 50 Miss. 429; Danforth v. ♦ Thorne v. Mosher, 20 N. J. E. Adams, 29 Coon. 107. 257: Thomas v. Bowman. 29 111. 426; Equitable Estoppel. 1111 of liis rights ; that the other party had no knowledge, or means of acquiring knowledge, of the true state of the title, and that he relied upon such admission to his injury.' The declarations must have been the main inducements of the purchase.''^ Representa- tion or silence must not only have misled, bu\ have been intended so to mislead ; or at least there must have been such culpable negligence or carelessness as amounts to such intention. Reason- able care on the one side or negligence on the other, will not estop.' The circumstances must be such, in case of silence, as to render it the duty of the party to speak. But it has been held that there can be no verbal estoppel,* none by a contract invalid under the statute of frauds.^ And not by a parol promise of which there can be no specific performance.'' This estoppel does not apply to an after-acquired title.' The cases cited will serve in a measure to illustrate the rules adopted and the manner in which estoppels in pais, or technically speaking, equitable estoppels, have been and are applied to questions concerning the title to real estate and pei'sonal property. The rules in regard to estop- pels by deed will, as we have already noticed, be found to be more uniform and systematic in regard to their nse and applica- tion. iBoggsv. Merced Co., 14 Cal. 279; Baker, 64 Mo. 218; Shaw v. Beebe, E. R. Co. V. Harpold, 19 Ind. 347; 35 Vt. 205. Woods V. Wilson, 37 Pa. St. 379; ^ Taylor v. Ely, 25 Comi. 250; Tur- Brewer v.R. R., 5 Met. 478; Brubaker ner v. Coffin, 12 Allen, 401; Plumer V. Okeson, 36 Pa. St. 519; CalifE v. v. Lord, 9 Allen, 455. Hillhouse, 3 Minn. 311; Robinson v. ■* Hamblin v. Hamblin, 19 Me. 141; Barnett, 18 Fla. 60-J; S. C, 45 Am. Stiucbfield v. Emerson, 52 Me. 465; R. 24. See Haj^es v. Livingston, 34 Mich. "" Duell V. Bear, &c., 5 Cal. 84; Woo- 384. ley V. Edson, 35 Vt. 214; Austin v. ^ Miranville v. Silverthorn, 48 Pa. Thompson, 45 N. H. 113; Hazleton v. St. 147. Batchelder, 44 N. H. 40; Califl v. « Wright v. De Graff, 14 Mich. Hillhouse, 3 Minn. 311; Turner v. 164. ' Gluckauf v. Reed, 22 Cal. 468. 1112 TiiK Law of Estoppel. CHAPTER XVI. THE APPLICATION OF EQUITABLE ESTOPPELS TO INSTRU- MENTS NOT UNDER SEAL. NOTES, BILLS, BONDS, CONTRACTS, DEBTS, ETC., ETC. Section 988. The apj^licatioii of this branch of estoppels, un- der the principles of commercial jurisprudence, is attended with as much of the same harshness and rigor, which were aj)plied to technical or legal estoppels, under the common law. Tlie distinc- tion between legal and equitable estoppels, is forcibly illustrated in their application to obligations, under seal, for the payment of raone3\ In this country, the estoppel attached by the common law to scaled instruments, has been to so great extent destroyed or modified by statute or custom, as to permit fraud or a failure of consideration to be pleaded or given in evidence, as a defense to an action brought upon a specialty. But the modern decisions have established another important change in the application of the estoppel to this effect. That if such an instrument be pur- chased by a third person, in consequence of a statement by the covenantor or obligor that he is liable to pa}' it, the admission operates and precludes him from controverting it, and setting up a defense in a suit brought for the benefit of the purchaser, which would have been available against the assignee. Thus, while the common law estoppel of a declaration of debt, solemnly made un-. der seal to the obligee, has been to a great extent done away with, a subsequent parol promise or statement to an assignee, has in lieu of the common law estoppel, become binding and acquired the conclusive force and effect which the former has lost.' 1 Watson V. McLaren, 19 AVcml. S. & K. 18; Buckner v. Smitli, 1 Wash. 557; Holbrook v. Burt, 23 Pick. 546; 296; Elliott v. Callace, 1 P. & W. 24; Decker V. Eisenhavier, 1 Pa. St. 476; Jones v. Hardest3^ 10 G. & J. 404; Davis V. Thomas, 5 Leigh, 1; Brown Sand v. Lacoste, 5 How. 471; Sar- V. Wright,17 Ark. 9;Petriev. Feeler, geant v. Sargeaut, 18 Vt. 371; Foote 24 Wend. 172; Foster v. Newlaud, 21 v. Ketchum, 15 Vt. 258; Bank v. Wend. 94; McMullen v. Wenuer, 16 Jerome, 18 Conn. 443. Unsealed Instruments. 1113 § 989. In a leading English case,' Bj'les, J., says : " The argu- ments drawn from negotiable instruments appear altogether inap- plicable." The object of the law merchant as to bills and notes made or become payable to bearer, is to secure theii- circulation as money ; therefore, honest acquisition confers title. To this despotic but necessary principle, the ordinary rules of the common law are made to bend. The misapplication of a genuine signature written across a slip of staniped paper (which transaction being a forgery would in ordinary cases convey no title), may give a good title to any sum fraudulently inscribed within the limits of the stamp, and in America, where there are no stamp laws, to any sum whatsoever, negligence, in the maker of an instrument payable to bearer, makes no difference in his liability to an honest holder for value ; the instrument may be lost by the maker without his negligence, or stolen from him, still he must pay. The negligence of the holder, on the other hand, makes no difference in his title. However gross the holder's negligence, if it stop short of fraud, he has a title. The truth is, that in the case of a bill of exchange or promissory note, as well as in the case of a deed, the law respects the nature and uses of the instrument, more than its own ordinary rules. Alderson, B.,'' refused to adopt the proposi- tion that the previous party to a bill is estopped from setting up the defense of fraud against the case of a honajide holder for value, and thought it better to say that by the law merchant every per- son having possession of a bill, has, notwithstanding any fraud on his part, either in accpiiring or transferring it, full authority to transfer it to a hona fide holder for value. " It seems, therefore, doubtful, whether the cases as to the liability of a man who signs a blank l)ill or note or cheque, are founded on the doctrine of estoppel, or on a rule of the law mer- chant, that an actual authority is thereby conferred on the person in whose hands the instrument is. It is however plain, that none of the decisions as to the effect of signing instruments in blank, extend beyond the ease of negotiable instruments, and it seems to me, that it M'ould be inconvenient and dangerous to apply the ' Swan V. North, &c. Co. , 7 C. B See also Goodwin v. Roberts, L. R. N. S. 400; 7 11. & N. G03 ; 2 II. »& C. 1 App. Cas. 476; Rumball v. Bank, 17o. L. R. 2 Q. B. D. 194. - Marstou v. Allen, 8 31. k, W. 494. 1114 The Law of Estoppel. principle of them any furtlier." In the satne case Wilde, B., says : '' It has been contended that the doctrine of estoppel is limited in its application to cases arising on negotiable instruments. Bnt why should it be so? It rests upon a ground totally different from that which renders negotiable instruments valid. Tlie law of negotiability is the law of property passing by deliver}-. It gives to actual transfer the effect of real title. The law merchant validates, in the interest of commerce, a transaction which the common law would declare void for want of title or authority ; and transactions within its operation are as absolutely valid and effectual, as if made with title or authority. But how different is the principle of estoppel ? It validates no transaction whatever. It all along implies a transaction itself invalid, and a person who is forbidden for equitable reasons to set up that invalidity. It is therefore independent of negotiability ; it operates in a diffei'cnt way; founded upon principles of equity and fairness between man and man, it rests on a wider basis than the principle which supports title in negotiable instruments; and as it has no relation to commercial intercourse or the exigencies of trade, so it is not confined to instruments which have become negotiable by the demands of commerce. § 990. As regards the application of the estoppel, there is no difference whether the debt assigned is a simple conti'act debt or one under seal ; the debtor is estopped from taking advantage of any defense that was concealed or withheld from the assignee.' It is a universal rule that estoppels shall not be extended by implication or intendment. But as regards this class of estoppels, the rule is not applied with the rigor and strictness, with which it is to estoppels by record and deed. Courts are inclined to extend rather than restrict their operation of this class of estoppels in their application to mercantile transactions where men are to a great extent compelled to trust to appearances.' The estoppel must, however, be limited within such bounds as are ' Plant V. Voeglin, 30 Al;i. 160; 344; Brooks v. ]Martin, 43 Ala. 360; Powers V. Talbot. 11 Ind. 1; Forsythc Rose v. Tceple, IG Ind. 37; Rose v. V. Day, 46 Mc 166; Buckner v. Col- Wallace, 11 Ind. 112; Drake v. Foster, cote, 28 Miss. 432; Homer v. Brown, 38 Ala. 649; Davis v. Thomas, 3 16 Howard. 354; Wright v. Alien, 16 Leigh, 1. Ind. 284; Morrison v, Weaver, 16 Ind. ' State v. Pepper, CI Ind. 76. Unsealed Instruments. 1115 sufficient to place the party wliohas dealt on the faith of appear- ances which turn out to be incorrect, in the same position with reference to the author of such appearances as if they were really true. The utility of this class of estoppels has met with great favor by courts, while they have been hostile to their technicality. Perceiving how necessary and essential it is to the easy and rapid transaction of business, that one man should be able to put faith in the conduct and representations of his fellow man, the courts have almost uniformly decided and established the princi- ple that such representations and conduct shall be binding and conclusive, in cases where a mischief or injustice would be caused by treating them in effect as revocable, while they are unwilling to allow men to be inveigled by former statements and admis- sions, which are regarded as unimportant when made, which neither deceive nor induce any one to alter their position. Sucli estoppels are regarded and held to be as odious as they were formerly. § 991. These estoppels arise where a party by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief and so alter his owm previous position.' A party who so acted is estopped and precluded from falsifying his own representation. The doctrine of estoppel in jpais is applied in a great variety of circumstances, but its great object is to prevent injustice being done where one party has been led into eri-or by the fault or fraud of the other. It is a most valuable doctrine for the pro- motion of justice ; but it can have no application except where the party invoking it canshow that he has been induced to act or refrain from acting by the acts or conduct of the adverse party, under circumstances that would naturally and rationally influence ' Simpson v. Moore, 5 Lea, 372; Neb. 523; Grant v. Cropsey, 8 Neb. Brown v. Wheeler, 17 Conn. 345; 205; Davis v. Handy, 37 N. H. 65; Whitacre v. Culver, 8 Minn. 133; Bank v. Rudolph, 5 Neb. 527; Moffitt Kinney V. Farnsworth, 17 Conn. 345; v. Adams, 60 Iowa, 44; Mills v. Lefi, Rangelyv. Spring, 22 Me. 130; Preston 60 Iowa, 168; Verrier v. Gillon, 14 V. Mann, 25 Conn. 118; Heath v. Phila. 2; Lengan v. Ilazelwood, 11 Bank, 44 N. H. 174; Cummings v. Lea, 539; Vogel v. Breed, 14 III. App. Webster, 43 Me. 192; Turner v. Flinu, 538; Williams v. Wells, 62 Iowa, 740; 72 Ala. 532; Guicharde v. Braude, 57 Ante, ch. XII. Wis. 534; Newman v. Mueller, 16 1116 The Law of Estoppel. ordinary men. It can tlicrcforc only be set up and relied on by a pai'ty who has been actually misled to his injury ; for if not so misled he can have no ground for the protection that the prin- ciple affords. The doctrine has been applied in many cases by the courts of most all civilized countries.' If one party dealing with another puts fuith a sealed instrument as his deed, or if he represents it to be a binding obligation which he has himself executed, he cannot be heard in any court of law or equity to say, as against a party who has dealt with him on the faith of the correctness of the representation, that the instrument is not his deed, or that he never executed it ; or that it is not a binding obligation.' § 992. Any act of the principal which estops him from set- ting up a defense personal to himself, operates equally against his surety. Where the principal maker of a promissory note not governed by the law merchant, was informed by a person that the latter was about to purchase said note, and would do so if it was good, and if there was no defense to it, and said principal thereupon informed such person that the note was good, that there was no defense to it, and that it would be paid to such person if he should purchase it, and, by reason of such representa- tions, such person thereafter purchased the note, and the same was assigned to him. In a suit on the note by a subsequent assignee of such purchaser, the principal and liis sureties were estopped from setting up a defense, personal to the principal, existing at the time of said representations. 1 Preston V. Mann, 25 Conn. 128; v. Roberts, 3 Lans. 14; Wadtlcl v. Bank v. Bank, 50 N. Y. 575; Hayner Morris, 26 Wis. 611; Mahaska v. Des V. Ins. Co., : Howard v. Moines, 28 111. 437; Erie, &c. Co. v. Hudson, 2 E. it B. 1; Voorlicos v. Delaware, &c. Co., 21 N. J. E. 383: Olmstead, 6 T. & C. 172; Hamilton Bramble v. State. 41 JId. 435; Dean v. V. R. R. Co., 44 Md. 551; Baliia Co., Martin, 24 La. Ann. 103; Trowl)ridge in re, L. R. 3 Q. B. 584; Brown v. Ins. v. Mathews, 28 Wis. 656; Davidson Co., 42 Md. 385; McCance v. R. R. v. Silliman, 24 La. An. 225; Alexan- Co., 24 L. J. E.xchq. 39; Lathrop v. dcr v. W^ilter, 8 Gill, 252; Homer v. Knapp, 27 Wis. 215; Winchell v. Grosholz, 38 Md. 520; Ante, Ch. XII. Edwards, 67 111. 41; Miller V. Springer, ^^ Straffon, in re, 22 L. J. ch. 202; 70 Pa. St. 269; Ford v. Smith, 27 Wis. Williams v. Robinson, 73 Me. 186; S. 261; Leeper v. Hersmau, 58 111. 218; C. 40 Am. R. 352; McCourt v. Mc- Hall V. Dock Co., 23 Wis. 276; Favil Cabe, 46 Wis. 596. Ux\SEALED Instruments. 1117 § 993. An iinqualilied assurance by a debtor that lie Las no defense, or that the debt will be paid, will inure as a new con- tract, and is equally binding, whether it is made under a niistaken impression or with a fraudulent design to conceal the truth from the assignee.' Such an estoppel arises where the representations are recklessly made, without knowing or inquiring into the real state of the case."'' A man who acts or speaks in a way to influence the conduct of others, cannot escape from the responsibility, on the ground that he had no intent to mislead, and believe what he uttered to be true. When language is ambiguous, and spoken in a double sense, the meaning should be preferred whicli it was meant to have in the ears of those to whom it M'as addressed.* Every one whc> participates in the sale of a bond or note, or takes an active part in inducing another to become a purchaser, M'ill be bound by what he does or says in the course of the transaction, whether it results from mistake or fi-oni any other cause, while his acts and declarations will be weighed, and not interpreted as meaning more than tliey import." Thus, where a party in pur- suance of an agreeuicnt made with a railroad company, guar- anteed the paynuiut of interest on certain of its bonds; and these bonds subsequently cauje into possession of sucli party, who sold them for a valualjle consideration ; in an action brought to recover the interest due on such bonds, the party having transferred the bonds and received the consideration therefor, was estopped from denying its liabilities on its guarantee of the interest."^ The pur- cJuise of a debt on the faith of an admission by the debtor of his liability to pay for it, deprives him of the right of making any defense to any suit which may be brought subsequently on behalf of the purchaser.'' The purchaser of a promissory note, on • Elliou V. Callace. 1 P. & W. 34; 210; Keed v. Vancleve, 27 N. J. L. McCiibe V. Kauey, 82 lud. 8U'J. 852; Simpsou v. Moore, 5 Lea, 372. "Preston \. Manu, 25 Coiiii. 118; ^ Anio't v. Kaihva)^ Co., 5 Hun, Smith V. Stone, 37 B. Mou. 1(38; Cul GU8. huun V. Kichardsou, 80 Conu. 210; "Paul v. Bauglier, 8 Ind. 501; Simpsou V. Moore, 5 Lea, 872; iJaii- Buckner v. Sniitli,l Wash. 296; Tobey lonh V. Adams, 29 (-'oun. 107. v. (.'hipnian, 18 Allen, 128; Vauder- =* AYLeeltou v. Haulesty, 8 Ell. & B. poel v. Brake, 28 Ind. 480; MeMulleu 282; Graee v. McKissaek, 49 Ala. v. Warner, 10 S. & K. 18; Elliott v. 168 (Wallace, 1 P. & W. 24; Sloan v. Rich- * Cambridge v. Llttletield. 6 Cush moud Co., 6 Blackfd. 175; Williams 1118 The Law of Estoppel the representation of the maker that it is good and valid in every respect, may recover the full amount of the maker ; though pur- chased at a discount. And the maker is estopped from availing himself of any defense which he had against the payee.' When a note is purchased by a third person on the faith of a promise by the maker to pay it, the latter is thereby esto])ped from set- ting up the invalidity of the note as between himself and the payee, whether on the ground of fraud in the original contract, not known to the maker at the time of such promise, or of sub- sequent failure of consideration ; and will be compelled to pay the assignee at all events.' § 994. Where a surety signs an instrument apparently perfect and complete, and hands it to his principal, to be finally delivered to the obligee, only when it shall have been executed by certain others as co-sureties, and the princij^al, without complying with the condition, delivers the instrument to tlie obligee, who has no notice, actual or constructive of the condition, and takes the instrument in good faith, such surety will be bound. The payee is not affected by an agreement, whereby he has no notice, be- tween the makers, A. & B., that a note be delivered without the signature of C (Post, § 983.) AVhen a debtor willfully admits a greater liability than actually exists, or conceals the equity or defense on which he subsequently relies, such concealment or admission is absolutely conclusive in favor of the assignee, if acted on by him in accepting the assign- ment.* A debtor will not be prejudiced by failing to state a defense of which he is ignorant, nor unless his statements are valid and acted on by the assignee in taking the assignment. No V. Parker, 1 Ind. 230; Crout v. De- « Cloud v. Whiting, 38 Ala. 57. Wolf, 1 K. I. 393; Swenson v.AValkcr, ^ Davis v. Gray, CI Tex. 506. 3 Tex. 93; •* Jones v. Ilardesty, 10 Gill & J. ' Tobey v. Chipman, 13 Allen, 123; 404; Sands v. Lacoste, 5 How. 471; Honore v. Dougherly, 4 Bibb, 280; Decker v. Eisenhauer, 1 Pa. St. Sand V. Lacoste, 6 Miss. 471; Hariier 476; Sargeant v. Sargeant, 18 Vt. 371; V. .Johnson, 1 S. & M. Ch. 563; Agnes Foot v. Ketchum, 15 Vt. 258; Bank V. Mitchell, 11 Miss. 683; Adams v, v. .Jerome, 18 Conn. 448; Watson v. Biancan, 6 liobt. 334; Ingham v. v. M'J^aren, 19 Wend. 557; Petrie v. Vaden, 3 Humph. 51; Sargeant v. Feeter, 21 Wend. 172; Jioe v. Jerome, Sargeant, 18 Vt. 371; Farrington v. 18 Conn. 138. Bank, 24 Barb. 554. Unsealed Instruments. 1119 admission, however formally or solemnly made, can be binding on the debtor, without specific proof that it has injured or preju- diced the assignee.' Wliere the assignee of a judgment purcliased it in good faith, relying upon the statement of the defendant tliat no part of it had been paid, when in fact a payment had been made by the defendant to the plaintiff, before assignment, the defendant cannot, as against the assignee, set up such payment as a discharge of so much of the judgment, nor, by confessing a second judgment to another creditor, can he enable the latter to attack the tirst judgment iu the hands of such assignee for the same cause." § 995. One is estopped from alleging the truth when his assertion of a falsehood or his silence has been the inducement to action by another party, which would result in loss but for the estoppel. A party may be estopped by his acts or his declara- tions, made even in mistake of his rights, if by them others have beed led to the expenditure of money. A party will be e&topped from taking advantage of an action in which he has acquiesced for his own benefit.^ If the payer of a n'ote stands by and sees it assigned to a third person, without giving the assignee notice of an existing defense, he shall afterward pay the amount of the note to the assignee ; although the consideration thereof should have entirely failed, and whether his conduct proceeded from ignorance or design.* § 996. In the case of equitable estoppels, the burden of prooj is on those who seek to shut out evidence which is prima facie admissible, or exclude a defense which is valid under the ordinary rules of law ; and they must show, in order to be successful, not only that the debt or demand assigned was admitted to be good, but that the assignment was accepted on the faith of the adnjis- ^ Hall V. Parmlee, 2 Md. Cb. 137; Gutterman v. Landis, 1. W. N. 0. Weaver v. Lynch, 25 Pa. St. 449. 022; Com. v. Moltz, 10 Pa. 531. =* Rae V. Lawsou, 18 How. Pr. 23. " Decker v. Eiseuliauer, 1 P. & W. 3 Patterson v. Lytle, 11 Pa. St. 53; 476; Rudy v. Wenner, 16 S. & R. 28; Musser v. Oliver, 21 Pa. St. 362; Watt's Appeal, 78 Pa. St. 370; Ackla Proxell V. Iron Co., 42 Pa. St. 513; v. Ackla, 6 Pa. St. 288; Water's Ayres v. Wattson, 57 Pa. St. 360; Appeal, 35 Pa. St. 523; Reel v. Elder, Newman v. Edwards, *34 Pa. St. 32; 62 Pa. St. 308. McCully V. R. R., 32 Pa. St. 25; 1120 The Law of Estoppel. sion. The admission must not only be contemporaneous with and precede the assignment, but must l)e made directly to the assignee, or in sucli a manner as to jnslify the inference that it M'as meant to reach his ears and induce him to become a pur- chaser of the debt." The transfer must be for valne, and nut a gift or benefaction," although value may be given b}- surrender- ing an antecedent security or obligation/ In order that the principles of equitable estoppels may be made aj)plicable to instances like those above cited, it is not necessary that the admis- sion be made in express terms. It is sufficient if the language or conduct of the debtor is such as to lead the assignee to believe the debt is valid, and may be purchased with safety. A man standing by and seeing an instrument from which he has been discharged transferred to another as a valid and existing obliga- tion, is as much bound as if he had taken an active part in the transaction." § 997. Where a maker of a note, by himself or agent, repre- sents to a person about to take an assignment of the note that it is a valid obligation, that he has no defense to it, he cannot, in an action brought bj^ the assignee on the note, jilead a failure of consideration.' And where a note is transferred to a creditor fur an antecedent debt, who takeo it upon the statement of the maker, he is estopped to deny its validity." The maker of an accommodation note, by delivering it to the payee, invests him with the character of a creditor, and if a third party in the belief tliat such note is given for actual indebtedness, from the makers to such payee, at the solicitation of the latter, and to enable him to negotiate it, signs such note, the maker, after paying the note, is estopped from claiming contribution from him.' A ' Eldred v. Ilazlett, 31 Pa. St. 307; ' Ahcni v. Good.spcod, 72 N. Y. Martin v. Richter, 10 N. J. E. 510; 108; Wilder v. Cowlos, 100 Mass. 47; Lounsbury v. Depew, 28 Barb. 44; Cloud v. Whiting, 38 Ala. 57; Camp- Plant V. Vogolin, 30 Ala. 160. bell v. Nichols. 33 N. ,J.L. 81; Fcrgu- " Weaver V. Lynch, 25 Pa. St. 449. son v. Hamilton, 35 Barb. 427; Yan- 3 Boyd V. Cumming, 17 N. Y. 101; derpoel v. Brake, 28 Iml. 130; AVil- Roxboiough V. Messick, 6 Ohio 8. liams v. Jackson, 28 Ind. 334; Pliim- 448. mer v. Bank, 90 Ind. 380. ♦ Greening v. Patton, 51 Wis. 146; « Fo.ster v. Xewland, 21 Wend. 94. Lee V. Kirkpatrick, 17 N. J. E. 274; " Melms v. Weiderhoff, 14 Wis. Libbey v. Pierce, 47 N. H. 300; 18. Cambridge v. Littlefield, 6 Gush. 210. Unsealed Instruments, 1121 party who intrusts a blank acceptance to another, who fills in a larger amount than that fixed by the acceptor as a limit, and pro- cures it to be discounted by a bank, which acts in good faith and without notice of fraud upon the acceptor, estops the acceptor in an action upon the bill by the bank, from setting up fraud or foi-gery as a defense to it.' So a person who u)akes his negotiable note and gives it to another to raise mone_y on, is bound by the note to a third person who takes it lor value ; and, in this respect, there is no difference between a promissory note and a bill of exchange.^ The same rule was applied to a mortgage, with a blank for the mortgagee's name/ If the maker of a promissory note tells one seeking to trade for it, and desirous to know whether he has any defense against it, that it is '• all right," he will not be permitted afterwards to dispute this admission when sued on the note.. It is such an admission as estops the maker from denying that the note is all right, if the facts upon which the subsequent defense is rested, existed at the time of making such admission. Such admission is good against the maker of the note, if it be negotiable, not due, and unpro- tested, whether it be false or true, or fraudulent or innocent, if it is made so as to have a tendency to mislead or deceive, and has that effect.* Declai'ing a note to one about to purchase it, to ' Young V. Grote, 4 Bing. 253; Mitchell V. Colson, 7 Cow. 336; Yio- lett V. Pattou, 5 Cranch, 142; Russell V. Lungstaff, 2 Doug. 514; Fullerton V. Sturgcs, 4 Ohio St. 429; Putnam v. Sullivan, 4 Mass. 45; Simpson v. Board, 74 Pa. St. 351; Roberts v. Tucker, 16 Q. B. 560; Halifax v. Wheeiright, L. R. 10 Excliq. 183; Swan V. North, &c. Co., 2 H. & C. 175; Ingham v. Primrose, 7 C. B. 82; Van Duzer v. Howe, 21 K Y. 531; Freeman v. Cooke, 3 Exchq. 654; Arnold V. Bank, L. R. 1 C. P. D. 578; Baxendale v. Bennett, L. R. 3 Q. B. D. 525 ; Garrard v. Lewis, L. R. 10 Q; B. D. 30; Montague v. Perkins, 23 L. J. C. P. 187; Foster v. Green, 7 H. & N. 881. " Hawkins v ISTeal, 60 Miss. 256; Meggett V. Baura, 57 Miss. 22. Vol- I.— 71 ^ Hemmenway v. Mulock, 56 How. Pr. 38. ■^ Wright V. Allen, 16 Ind. 284; Brooks V. Martin, 43 Ala, 300 ; Clem- ents V. Loggins, 2 Ala. 514; Rose v. Teeple, 16 Ind. 37; Simpson v. Moore, 5 Lea, 372; Reedy v. Brunner, 60 Ga. 107; Grissler v. Powers, 81 N. Y. 57; S. C, 87 Am. R. 475; Callanan v. Shaw, 24 Iowa, 441 ; Helfner v. Daw- son, 63 111. 403; Plant v. Vogelin, 30 Ala. 160; Vanderpoel v. Brake, 28 Ind. 130; Morrison v. Weaver, 16 Ind. 344; Powers v. Talbot, 11 Ind. 1; Wells V. Lewis, 4 Met. (Ky.) 269; Brown v. Wright, 17 Ark. 9; Rose v. Ilarley, 89 Ind. 77; Cloud v. Wliiting, 38 Ala. 57; McCabe v. Raney, 32 Ind. 309; Bates v. Lc Clair, 49 Vt. 229; Stutsman v. Thomas, 39 Ind. 384; Tobeyv. Ciupman, 13 Allen, 133. 1122 The Law OF Estoppel. be good, such party is bound to know that lie will bo understood as speaking intelligently of a contract with which he is familiar, and lie cannot afterwards be permitted to claim that it is invalid, by reat^on of a defense of which he was ignorant at the time, or standing by in silence Avhen it is transferred for a consideration, is an estoppel injxds against a debtor.' This is upon the broad principle, that whenevei' one of two innocent persons must suffer hy the acts of a third, he who has enabled such third person to occasion the loss, must sustain it. This rule is based on a sound legal principle, and commends itself to the good sense of ev'ory intelligent person, Avhich is an axiom of the law that is too well settled to be rpiestioned at this late day. § 998. A person to whose order a bill or note is made paya- ble, is generally vested with the right to transfer the same by indorsement, and the maker or acceptor cannot dispute the power of (he payee to indorse and transfer the instrument. The mak- ing or accepting of it is an assertion to all the woj'ld of the com- petency of the payee to uegotiate and transfer the psper, and they are estopped from afterwards gainsaying the assertion so made. One who transfers a negotiable instrument by delivery, or by indorsement, impliedly guarantees that it is genuine, and that he has title to it.'' Thus, where one of the members of a lirm drew a bill payable to the order of a third party, paj'able ten days after sight, the bill was delivered with the forged > Watson V. McLaren, 19 Wend. "Wheeler, 14 Wis. 281; Marr v. How- 557; Petrie v. Feeter. 21 Wend. 172; land, 20 Wis. 282; Reedy v. Bruinier, Drake v. Foster, 28 Ala. 649; Plant v. 60 Ga. 107; Buckuer v. Smith, 1 Wash. Yogejin,30Ala. 160; Cloud v. Whiting, 299; Woodson v. Burnett, 2 II. & M. 38 Ala. 57; Preston v. Manu, 25 Conn. 80; Mayo v. Giles, 1 Munf. 533; Plum- 118; Rose v. Teeple, 16 Ind. 37; mer v. Bank, 90 Ind. 386. Wright V. Allen, 16 Ind. 284; Hoomes « Congdon v. Pearce, 43 Md. 83; V. Smock, 1 Wash. 389; Morrison v. Allen v. Clark, 49 Vt. 390; McGregor Weaver, 16 Ind. 344; Vanderpool v. v. Rhodes, 36 E. L. & E. 144; Lam- Brake, 28 Ind. 130; Smith v. Stone, bert v. Oakes, 1 Ld. Raymd. 444; 17 B. Mon. 168; Power v. Pinkerton, Critchlow v. Parry, 3 Campb. 183; 1 E. I). Smitli, 30; Crout v. De Wolf, Lambert v. Pack, 1 Salk. 127; Erwin 1 R. I. 393; Parshall v. Laniaroux, 37 v. Downs, 15 N. Y. 576; Murray v. Barb. 189; Davis v. Thomas, 5 Leigh, .Judah, 6 Cow. 484; Morrison v. Cur- 1; Firman v. Blood, 2 Kas. 496; Tylee rie, 4 Duer, 79; Herrick v. Whitney, V. Yates, 3 Barb. 222; Lee v. Kirk- 15 Johns. 240. Patrick, 17 N. J. Eq. 264; Cary v. Unsealed Instruments. 1123 indorsement of the payee, and tliat of a second indorser thereon, to a bank in L'tiea, whicli discounted the bill, indorsed and sent it forward for collection. The drawee, after having accepted and paid the bill, discovered it was a forgery, brought an action against the bank, to whom he had made the payment, to recover back the amount paid ; he was lield to be estopped, because the drawers delivering the bill, with the name of the payee indorsed upon it, affirmed that the indorsement was genuine, and that it might be negotiated by delivery, and because such a bill, when transferred by the maker, indorsed in this manner, is in effect payable to bearer. So, if a party whose signature has been forged, or placed on a note without his authority, promises to pay it, or has led a hona fide holder to believe that the signature is genuine, he adopts the signature as his own, and is estopped from pleading that as a forgery.' Or, if a party accepts a convey- ance of property as indemnity against promissory notes, on which his name has been forged, he thereby adopts and ratifies the debt ; his liability being so fixed, he is estopped from any relief in equity against the notes, nor can the fact of his tiling a bill afterwards, repudiating the debts on account of the forgery, affect the validity of the conveyance.^ § 999. Although an accommodation note is invalid in the hands of the person for whose benefit it was made, still, if it is transferred as business paper, at a usurious discount, to a hona fide purchaser, the payee is estopped from setting up usury as a defense against his liability on the note.^ § 1000. The principle " that where one of two innocent persons must be the loser by the deceit or fraud of another, the loss must fall on him who employs and puts trust and confidence in the deceiver, and not on the other," is based upon the ground 1 Bankv. Keen, 53 Me. 103; Livings Coggiil v. Bank, 1 N. Y. 113; Erwin V. Wiler, 32 111. 357; Wilkinson v. v. Downs, 15 N. Y. 576; Prescott v. Stoney, 1 J. & S. 509; McKenzie v. Calvcily, 7 Gray, 217. Liueu Co., L. R. 6 App. Cas. 82; ^ Jones v. Hamlet, 2 Sneed, 256. Hogg V. Skeeu, 18 C. B. N. S. 426; =* Snyder v. Vandoren, 46 AVis. 602; Beenian v. Duck, 11 M. & W. 251; Fleischman v. Stern, 24 Hun, 265; S. Jones V. Handet, 2 Sneed, 256; Wcl- C, 61 How. P. 124; Jackson v. Fassitt. lingtou V. Jackson, 121 Mass. 157; 33 Barb. 645; Housum v. Rogers, 40 Remsou v Groves, 41 N. Y. 471; Pa. St. 190. 1124 The Laav of Estoppel. that, " seeing that somebody must be a loser by the deceit, it is just and reasonable, that he who employs and puts trust and con- fidence in the deceiver, should be a loser rather than a stranger.'" Thus, where one whose name appeai-s upon the note, as indorser, adopts the same before maturity, and, by such adoption, assists the negotiation thereof, he is estopped from setting up, as a de- fense to an action against him by a bona fide holder of the note, that the indorsement is a forgery.'^ Thus a party was requested to sign a note as surety, but refused unless another person named would execute the same. The principal thereupon forged the signature of the other person, whereupon the person asked was induced to sign the note. The princij)al subsequently negotiated the note to an innocent party, without notice of the fraud. The fact of the forgei-y and fraud could not release the surety who signed the note from liability.' The principle may be further illustrated by the following case: When a surety signs a note and places it in the hands of the principal, with the agreement that other persons should sign it as sureties, and the note would not be delivered until thus signed, but the other signatures were not obtained, aiid the note was delivered to the payee without notice of the agreement, the surety could ijot set up the fi-aud practiced upon him by his principal against the innocent payee. § 1001. AV^here the maker, indorser, drawer, or acceptor of negotiable paper represents the same to have been made, indorsed, or accepted for value, and the same is purchased or taken on the strength uf those repiesentations, he is estopped from showing the contrary.* The rights of the indorsee thereon ' -^lera v. Nichols. 1 Salk. 289; Lick- 59 111. 364; Wiley v. IMoore, 17 S. & R. barrow v. Msison, 2 T. R. 70; Mtiuf 488; Kn.ippv. Multby, 13 Wend. 587; Co. V. Brooks. 51 Me. 506; Selser v. Boarduian v. Grove, 1 Stew. (.\la.) Brock, 3 Ohio St. 302; Stouer v. 517; State v. Dean, 40 Mo. 464; Bank Millikeu, 85 111. 218; Turnbull v. v. Kortright, 22 Wend. 348;- Sthal v. Beyer, 40 N. Y. 450; Robinson v. Berger, 10 S. & R. 170; Sigfield v. Yarrow, 7 Taunt. 455; Bank v. Bank, Sevan, 6 S. & R. 308; Bank v. Curry, 1 Hill, 287; Lambert v. Pack, 1 Salk. 2 Dana, 142; Texira v. Evans, 1 Anst. 137. 229. 2 Woodrufl V. Munroe, 33 Md. 140. Mknedict v. Caffe, 5 Ducr, 226; 3 Stoner v. Millikcu, 85 111. 218; Bobbins v. Richardson, 2 Bosw. 248; Stern v. People, 102 111. 540; Ward v. Williams v. Holmes, 1 Peuuypacker, Y^oung, 21 111. 223; Bartlett V. Board, 441; Lynch v. Kennedy, 34 N. Y. Unsealed Instkuments, 1125 are the same against the parties so representing it, as if it had been in fact business paper.' AVhen an indorser of a note com- mits it to the maker with the date in bhmk, the note carries on the face of it, an implied authority to the maker to fill up the blank ; as between the indorser and third persons, the maker, under such circumstances, must be deemed to be the agent of the indorser, and as acting under his authority and with his approba- tion. In like manner, where a person indorses his name upon a piece of blank paper, and delivers it to another for the purpose of giving him a credit, the latter is authorized to write on the other side a promissory note payable to the order of the indorser.* Such a blank indorsement is, in effect and intention, a letter of credit, and being made with the intent that a promissory note shall be written on the other side of it, it does not lie with the indorser to say that he did not indorse the note. A party who makes a blank acceptance, or signs his name on a blank paper and delivers it to another person, to be over written with a note, gives an implied authority to fill up the instrument, and he is liable thereon to the party receiving it honestly and for value, though filled up for a larger amourit than was actually author- ized, and in a different manner.^ The vendor of a promissory 151; Powers v. Talbot, 11 Ind. 1; Dean v. Savage, 28 Coun. 359; Bank V. Buffiiigton, 98 Muss. 498; Rose v. Wallace, 11 Ind. 112; Forsyth v. Day, 40 Me. 176; Power v. Pinkertou, 1 E. D. Smilh, 30; Sloane v. Richmond, G Blackf. 175; Fort v. Meachem, Riley (S. C.) 248; Overton v. Bolton, 9 Heisk. 763; Charles v. Dennis, 42 Wis. 56; Eaton v. ]\IcMabon, 42 Wis. 484. ' Burrell v. Degroot, 5 Duer, 379; Chamberlain v. Towusend, 20 Barb. 611; Bank v. Jerome, 18 Conn. 450. = Redlich V. Doll, 54 N. Y. 234; Kitchen v. Place, 41 Barb. 465; Bank V. Woodworlh, 18 Johns. 314; Griggs V. How, 31 Barb. 100; Garrard v. Iladden, 67 Pu. St. 388; Yocum v. Smith, 63 111. 821: Ramboe v. Eddy, 31 Iowa, 440; Young v. Grote, 4 Bing. 253; Milchell v. Colson, 7 Cow. 336; Violet V. Patton, 5 Cranch, 142; Rus- sell V. Langstaff, 2 Dong. 514; Van- duser v. How, 2-1 N. Y. 521 ; Ingham V. Primrose, 7 C. B. 82; Fullerlon v. Sturgis, 4 Ohio St. 429; Putnam v. Sullivan, 4 Mass. 45; Simpson v. Board, 74 Pa. St. 351; Roberts v. Tucker, 16 Q. B. 560; Halifax v. Wheelright, L. R. 10 Excbq. 183; Horstmau v. Henshaw, 11 How. 177; Fort V. Meacham, 3 Hill (S. C.) 227; Burgess v. Bank, 4 Bush, 600; Vere V. Lewis, 3 T. R. 182; Minet v. Gib- son, 3 T. R. 481 ; Cooper v. Meyer, 10 B. & C. 468; Overton v. Mathews, 35 Ark. 146; S. C, 37 Am. R. 9. 3 State v. Yoiaig, 23 Minn. 551; Frazier v. Ganis, 58 Teun. 92; Dears- doff V. Foresman, 24 Ind. 481 ; U. S. V. Nelson, 2 Brock. 64; Byers v. Mc- Lannahan, 6 G. & J. 250; McKee v. Hicks, 2 Dev. 379; Ay res v. Harness, 1126 The Law of Estoppel. note who transfers it by indorsement, inipliedly warrants that the signatures of the prior parties, whose names appear thereon, are genuine, notwithstanding the indorsement is expressed to.be without recourse to liim.' And tliis is not afifected by the fact that the indorsee may know that one of the prior parties is in fact incompetent. § 1002. Where a negotial)le instrument, with the genuine sig- nature of a prior party, comes into the hands of a honajide liolder for vakie, before maturity, the presumption is in favor of its validity ; and if such jjarty seeks to escape liability, on the ground that it was not voluntarily executed, the burden of sliowing that fact rests upon him, and also to show that he was without negli- gence in the premises. And the same principle applies where the defense is that blanks in a printed form were filled, without authority, subsequent to the delivery. The signing and deliver}^ of a printed form, with blanks which, when tilled up in accord- ance with the tenor and apparent purpose of the paper, makes it a negotiable promissory note, is such carelessness in the signer as will estop liim from denying the autliority for filling the blanks, ns against an innocent holder, before maturity and for value.* 1 OLio, 368; Kortrigbt v. Bank, 20 Wend. 91; Bank v. Pennick, 5 Mon. m- Bank v. Curry, 2 Dana, 142; Moody V. Tlirekold, 13 Ga. 55; Scbultz V. Astk-y, 2 Bing. N. C. 544; Armfield V. Armport, 27 L. T. Excliq. 42; Mather v. Madeslone, IS C. B. 273; Russell V. LangstalT, 2 Doug, 514; Col- lis V. Emet, 1 H. Black. 313; Mouu- tague V. Perkins, 17 Jur. 557; S. C, 22 E. L. & E. 51G; Ciuchly v. Clar- ence, 2 M. peJ from setting np in defense a want of deniiu>d and notice at the maturity of the note.' ^ lOOtt. Where one having the opportunity and the power to ascertain with certainty the exact obligation he is assuming, yet chooses to rely npon the statements of the person with whom he is dealing, and executes a negotiable instrument, without i-eading or examination, as against a hona fide holder for vah;e, he is bound by Iris act, and is estopped from claiming that he intended to siijn an entirely different obligation, and that the statements upon which he relied were false. This principle, as applied in cases of severe hardship, cannot be more forcibly illustrated than by giving a copy of a contract or agreement which, after signing and delivery, has been transformed into a promissory note, viz : This is the contract or agreement as made : North East. April .3d, 1872. * * " Six months after date 1 promise to p.ral turpitude. Thus, where a sale of a note is negotiated by an agent of the maker, for the pur])ose 1 Conrad v. Calk-ry, 22 La. Ami. ^ Parker v. iloody, 58 Me. 70. 428. « Cravens v. Gillilaii, 6;3 M<>. 28; 2 Tainter v. Winter, 5;J j\Ie. 348; Bank v. Gay, 63 Mo. 3;j. Irvine V. Adams, 48 Wis. 4G8; S. C, '' Goodspeed v. Cutler, 75 111. 534; 33 Am. R. 817. Evans v. Forman, 65 Me. 449. 3 Green's Appeal, 97 Pa. St. 343. « Battle v. Breniger, 31 Iowa, 139. * Walchner v. Sells, 87 Ind. 71. » Blodgett v. Webster, 24 K H. 91. Unsealed Instkitments. 1137 of raising money for tliem jointly, and the agent in the sale of the note declares to the purchaser that it is a valid business note, the maker is estopped from setting up the defense of usury.'. A note was made payable to the maker's own order, and his certifi- cate was attached thereto, stating that the note was given for value and would be paid when due. The note was then sold to the plaintiff for a greater discount than the legal rate. In an action by the plaintiff thereon the maker cannot set up the defense of usury, as that would give him an opportunity to profit by his own deception practiced on the plaintiff.'' This estoppel is as applicable to an indorser of an accommodation promissory note, who represents that the note . is valid business paper, as to the maker of the note. Where the maker of a note annexes thereto at the time of executing it, a certificate that it was given for value received, and that it will be paid when due, he will be estopped from setting up usury as a defense to it in an action by a honajide holder for value. One who transfers a note void for usury with full knowledge of its invalidity, though without indorsement is responsible on an implied warranty to repay the amount of it.^ When the name of one of two or more obligors, in a bond or other written obligation has been forged, the sup- posed co-obligor, though a surety only, and though lie sign in the belief that the forged name was genuine, is nevertheless bound, if the payee or obligee accept the instrument without notice of the forgery.* § 1013. In regard to bonds, where a special agent is clothed with the apparent authority to make an unconditional delivery of a bond, the obligee, without any knowledge that any conditions 1 Ferguson v. Hamilton, 35 Barb. « Helms v. lus. Co., 73 N. 825; 427; Muuson v. Anthony, 3 Keyes, State v. Pepper, 31 lud. 7G; Veazie 609; Parshall v. Lamereaux, 37 Barb. v. Willis, 6 Gray, 90; Craig v. Hobbs, 189; Smilli V. Monroe, 84 N. Y. 534. 44 Ind. 363; Stoner v. Millikeu, 85 2 Chamberlain v. Townsend, 26 111. 218; SeJser v. Brock, 5 Ohio St. Barb. 611; McKnight v. Wheeler, 6 302; Bigelow v. Comegys. 5 Ohio St. Hill, 492. 256; Hagar v. IMoimts, 5 Blackf. 57: » Bank v. Townsend, 29 Barb. 569; Harter v. Moore. 5 Blackf. 367; CaiT Edwards v. Dick, 4 B. & A. 212; Bank v. JVIoore, 2 Ind. 602; State v. Van V. Jarvis, 20 N. Y. 226; Plolmes v. Pelt, 1 Ind. 304; Dearsdorf v. Fores- Williams, 10 Paige. 326; French v. man, 94 Ind. 481; Ins. Co. v. Brooks, Rowe, 15 Iowa, €63. Me. Vol. I.— 72 1138 The Law of Estoppel. were imposed by the principal, to bo complied M'ith before the agent is authorized to deliver the bond, and the bond is delivered to the obligee, nothing short of absolute notice will vitiate or avoid it, and the sureties are estopped from setting up anything in order to vitiate the bond. The surety signs an instrument complete on its face, and delivers it to the principal to pass to the obligee. If he impose any condition upon his delivery, he must rely upon the principal to execute that condition, for he has made liim Jiis agent for the general purpose of a delivery, and has clothed him Avith the imHcia of a sub-agency. The obligee accepts an instrument perfect in form and execution, which comes to him from the person who should have possession of the instrument for the purpose of such delivery. The entire trans- action, so far as the obligee is involved, is according to the ordi- nary and natural course. The surety, liowever, while he executes the instrument and places it in the usual channel for delivery, departs from the ordinary course of procedure by circumscribing the general authority by a condition unknow to the obligee. The condition is disregarded, a fraud is accomplished, and he who has not scrupled to trust his principal with the semblance of a gen- eral authority to make the delivery, must stand the hazard he has incurred. So where a surety signed a county treasurer's bond, at the request of the principal obligor, after the signatures of other sureties, Avithout reading it, or hearing it read, or asking what it was, upon being told by the principal that it was a county paper, such surety is not released by the fact that one of the signatures is forged. When a bond has been signed and delivered to the principal obligor by a surety, upon the condition that others, not named in the instrument, shall sign before it is delivered to the obligee, and it is delirered without the signatures being obtained, and received by the obligee without notice of such condition of circumstances which should put liim upon inquiry, the condition imposed will not avail the sure4y. This is not a question of the power of the principal to deliver tije bond in its apparently per- fect condition, but simply a question of estoppel.' In the lirst 1 Deaisdorf v. Foiesiiian, 24 Ind. sou v. Board, 71 Pa. St. 351 ; ]\lillc'r v. 481; Webb v. Baiid, 27 lud. 3G8; Flotcber, 27 Gratt. 403; Slate v. Pot- Bhickwell V. Stale, 26 Ind. 204; ter, 63 3I(). 212; Brown v. Probate ■\Vri^-bt V. Harris, 31 Iowa, 272; Simp- Ct., 42 Mich. 501; Probate Ct. v. St. Unsealed Instruments. 1139 case cited, tlie court sa\^ : " Strangers can only look to the acts of the parties, and to tlie external indicia of property, and not to the private communications which may pass between a principal and his broker ; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. I cannot subscribe to the doctrine that a broker's ensajrements are necessarilv, and in all cases, limited to his actual authority, the reality of whicli is afterward to be tried b}' the fact. It is clear that he may bind his principal within the limits of the authorit}'^ with which he has been apparently clothed by the principal in respect to the sul)ject-matter ; and there would be no safety in mercantile transactions if he could not. If the prin- cipal send his commodity to a place where it is the ordinary busi- Clair, 52 Yt. 24; Brown v. Perkins, Micb. ; Cutler v. Roberts, 7 Xeb. 4 ; State v. Lewis, 73 N. C. 438; Hunt V. State, 63 Ind. 321; Duir v. U. S., 16 Wall. 1; Bank v. Goss, 31 Vt. 315; Rbodes v. Scbool Dis., 30 .Me. 117; Butler V. U. S., 21 Wall. 272; Mc- Cormick v. Bay City, 23 Mich. 457; Smith V. Peoria Co., 59 111. 412: Tid- ball V. Halley, 48 Cal. 610; Kicbard- son V. Rogers, 50 How. P. 403; State V. Garden, 32 Ind. 1; Kash v. Fugate, 24 Gratt. 202; Russell v. Pieer, 56 N. Y. 67; State v. Peck. 53 Me. 234; Bartletl v. Board, 59 111. 364; Lyttle V. Cozad, 21 W. Ya. 183; Ney v. Orr, 2 Mont. 559; Smith v. ]\Ioberly, 10 B. 3Ion. 260; ]\Iilkr v. Parker, 2 Met. (Ky.) 608; Jordan v. Jordan, 10 Lea, 124; Cutter v. Roberts, 3 Neb. 637; Ward V. Ilackett, 30 Miim. 150; S. C, 44 Am. R. 187; Chicago v. Gage, 95 111. 593 ; S. C, 35 Am. R. 182; Goodman v. Litaker, 84 N. C. 8; S. C, 37 Am. R. 602 ; Clark V. Biyce, 64 Ga. 486 ; Helms v. Agricultural Co., 73 Ind. 325; S. C, 38 Am. R. 147; Agricultural Co. V. Cardwell, 73 Ind. 555; Wright V. Lang, 06 Ala. 389; Gary v. State, 11 Tex. App. 527; Bramley v. Wilds, 9 Lea, 674; Rhode v. McLain, 104 111. 467; Tidball v. Halley, 48 Cal. 610; Ins. Co. V. Wilcox, 8 Biss. C. C. 197; Stern v. People, 102 111. 540; Mowbray V. Peru, 88 Ind. 324; Yass v. Riddick. 89 N. C. 6; State v. Harney, 57 Miss. 863; Allen v. Marney, 65 Ind. 398; Barnes v. Lewis, 73 Ind. N. C. 138; Auderson v. Warren, 71 111. 20; Guyn V. Patterson, 72 N. C. 179; Hunt v. State, 53 Ind. 321; Howell v. Parsons, 89 N. C. 230; Branch v. Ball, 45 Ind. 213; Spitler v. James, 32 Ind. 202; Mowbray v. State, 88 Ind. 384; Lewis V. Comm'rs, 70 Ga. 486; Gothrupt v. Williamson, 61 Ind. 599; State v. Pepper, 31 Ind. 76; Stoner v. Milli- ken, 85 111. 218; Selser v. Brock, 3 Ohio St. 302; State v. Gorman, 75 3Io. 370; West v. Thompson, 49 Mo. 188; Cahill's Appeal, 48 Mich. 616; Ahrend v. Odiorne, 125 Mass. 50 ; Slate V. Yan Pelt, 1 Ind. 304; Yeazie V. Willis, 6 Gray, 90; Craig v. Hobbs, 44 Ind. 363; Bigelow v. Comegys, 5 Ohio St. 256 ; Hagar v. Mounts, 3 Blackf. 57; Ilarter v. Moore, 5 Blackf. 367; Carr V. Moore, 2 Ind. 602. 1140 The Law of Estoppel. uess of the person to whom it is coiiiided to sell, it must be intended that the commodity was seiit thither for the purpose of sale. If the owner of u horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale ? Or if one send goods to an auction room, can it be supposed that he sent them thither merely for safe custody ?'" And where the surety signs and delivers the bond to the princi- pal, from whom it would naturally pass to the obligee, are we to suppose that such delivery to the principal was merely for safe custody ? The rule laid down in the case cited is, where the conmiodity is sent in such a way, and to such a place, as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser safe. If the servant of a horse-dealer, with express directions not to warrant, do warrant, the master is bound ; because the servant, having a general authority to sell, is in a con- dition to warrant, and the master has 7iot notified to the world that the general authority is circumscribed. And is not tlie surety upon a bond, \tl)0 delivers it to his principal in apparent proper condition to be delivered by him to the obligee, and with the general authority to make such delivery, but circumscribed by a condition, unknown to the obligee, bound by the delivery which the principal may make in disregard of the condition ? An agent's authority is that which is given by the declared terms of his aj^puintiuent, notwithstanding secret instructions ; or that with which he is clothed by the character in which he is held out to the world, although not within the W'. rds of his commission. Whatever is done under an authority thus manifested, is actually within the authority, and the principal is bound for that reason ; for he is l)Ound equally by the authority which he actually gives, and by that which, by his own acts, he appears to give. The appearance of the authority is one thing, and for that the princi- pal is re.sp(.)nsil)le." The surety places the instrument, perfect upon its face, in the hands of the proper person to pass it to the o!)ligee, and the law justly holds that the apparent authority with which the surety has clothed him shall be regarded as the real authority, and as the condition imj)osed upon the delivery was unknown to the obligee, therefore the benefit of such condition shall not avail the surety. ' Pickering v Busk, 15 East, 38. Unsealed Instruments. 1141 Thus, ill our opinion, should the rule be established upon prin- ciple ; and, as it appears by the examination we have made, that the autliorities relied upon to sustain a contrar}' rnle are, in tlie main, irrelevant, and are in turn quoted to support the cited decisions which are really in point, Ave are inclined, after a review of all the cases, to regard the real weight of well-considered decis- ions as sustaining the rule which to us seems to rest also upon a correct principle. • § 1014, A much broader scope has been given to the doctrine of estoppels in. imis^ both in this country and in England, than formerlv obtained ; and it is now established that whenever an act is done or a statement made b}' a party, which cannot be con- tradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the actor admission, the character of an estoppel will attach to wliat would otherwise be mere evidence. The estoppel must obviously be limited within such bounds as are sufMcient to put the party who has dealt on the faith of appearances that turn out to be incorrect, in the same position with reference to the author of such appear- ances as if they were true. Courts have been for some time favorable to the utility of the doctrine of estoppels, hostile to its technicality.' The rule is " that where a note with the names of certain persons upon it, who stood in the relation of co-sureties for the maker, has been offered for discount, and not being satis- factory, the name of another person has been procured, who also became a surety for the maker, all these persons are co-sureties with one another, and subject to mutual contribution though the earliest sureties had no knowledge of the last hecoming a surety.''''^ In State ^». Pepper' the court say, " Every one must allow that it would be a monstrous violation of law, justice and good faith, to permit one party to a contract to introduce into it conditions, upon the happening of which alone he will be bound, that are not J Smith V. Newton, 38 111. 230; Coons, 8 Denio, 130; S. C, 6 N. Y. Knoebel V. Kirclier, 33 111. 308; State 33; Woodworth v. Bowers, 5 Ind. V. Pepper, 31 Ind. 76. 277 ; Sesson v. Barrett, 6 Barb. I'JO; ^ Bearing v. Earl of Winchelsea, 1 S. C, 2 N. Y. 406; McMel v. Sand- Leading Cases in Eq. 120; Stout v. ford, 3 B. Mou. 11. Vanze, 1 Robinson (Va.) 169; Warner ^ 31 i^^ 75. V. Price, 8 Wend. 397; Norton v. 1142 The Law of Estoppel. made known to tlic other party. Is it any less so to permit a man to deny liis own solemn declaration that he has become a party to it, when that declaration has l)een communicated to the other party, and acted npou by him to his prejudice, nnder cir- cumstances not calculated to excite even a suspicion that such a denial would ever be attempted? That the estoppel imposed !)y law, in a case like the present, would not apply in a case where thei'e was anything upon the face ot" the paper, or in the circum- stances attending the reception of it by the obligee or his agents, to put him upon inquiiy, nor where the obligee has not been induced to act to his pi'ejudice by the imprudent act of the obligor, may well be conceded, and it is believed that no well considered case has ever gone further. If the doctrine contended for can prevail, it is not easy to perceive why sureties, who may hereafter find themselves in a similar unfortunate position, may not with equal propriety come into court and set up, and testify to, some purely mental reservation which should exclude the idea of an intention on their part to make an absolute delivery; for it is certainly true that the question of delivery depends upon an act done and the intent with which it is done." § 1015. In State v. Potter' on a similar bond the court say, " Here the surety who defends this action, had invested the prin- cipal with an apparent authority to deliver tlie bond ; and there was nothing on the face of the bond, or in any of the attending circumstances, to apprise the official who accepted it, that there was any secret agreement which should preclude the acceptance of the bond, and the surety is alone in fault in the matter, as but for his unwarranted trust in Turley, the latter would never have had it in his power to occasion the loss which the beneficiaries of this bond must suffer, if the defense made by the surety is suc- cessful. " Surely then, a more opportune application of the language of Lord Ilolt^ could not occur, than in the case defore us, that ' seeing that somebody must be a loser l)y this deceit, it is more reasonable that he that employs and puts trust and confidence in the deceiver, should be a loser rather than a strangei'.' " If the doctrine of estoppel would 7iot apply here, might not > 63 Mo. 213. "" Hera v. Nichols, 1 Salk. 289. Unsealed Instruments. 1143 the significant query well be asked, to what state of fac^s would it apply ? "Now, the rule is well settled, that if I stand by, and, without objection, see another disj)ose of my pro[>erty I can- not be afterward Iieard to assert ownersliip in it ; and, this, in accoi'dance with the maxim : ' that he who did not si)eak when he should have spoken, shall not be heard, now that he should be silent.' In such instances the question of power to make the sale and pass the title is one not worthy of a moment's consideration. The oidy proper inquiry is, did I, by my silence, give the purchaser reason to infer that his vendor had the right to dispose of the property ? If so, then, upon every principle of fair dealing, the true basis of such estojipels, I am estopped to assert anything to the contrary of what my silence might natur- ally be inferred to indicate, and the hypothetical case is by no means stronger than the real one under discussion. For the officer to whom was committed the d'lty of taking the bond had literally conformed to tliat duty, by the acceptance of an instru- ment perfect in every particular, and emanating from the proper custody ; and he had, therefore, the riglit to infer, and it was the defendant's conduct which gave origin to this reasonable infer- ence, that the delivery of the bond was in conformity to the usual course of such transactions. " A stronger case of estoppel could not well be considered than this, where a surety, after standing by for years, and allow- ing the patrimony of orphans to be squandered, now steps in, at this late day, and asserts that, owing to a hitherto undisclosed arrangement, he, although apparently bound for any default of his principal, was not in fact bound. But there are other elements which also enter into a proper consideration of this cause, and which, on that account, should not be ignored. Are not sureties sufficiently solicitous about escap- ing from what they regarded, when signing, as remotely contin- gent possibilities, without opening new avenues to facilitate their eager escape? And would it not be acting in flagrant violation of one of the most familiar rules of evidence, and of tlie very- spirit of the law itself, to permit formally executed securities to be annulled by testimony of some contemporaneoiis parol agree- ment? If, under ordinary circumstances, such testimony would 1144 The Law of Estoppel. be objectionable, would it nut be doubly obnoxious in cases like this one, where the tiij^reenient is kept sedulouslj concealed from the other contracting part}'? There is but one answer, an emphatic affirmative can be returned to these questions. " Again, it concerns the state, tliat the lieritage of tiie helpless, confided to the protection of her courts, should not suffer detri- ment. The consequences would be fraught with disaster, and it would be subversive of the plainest dictates of public policy, if sureties in such cases, were permitted, by means of some ' lU- remembered conversation,' or some occult understanding, never disclosed, but under the sliudow of impending loss, to escape liabilities which their own solemn deed and recorded specialty announces them to have incurred." § 1010. It may therefore be considered, as well as settled, that a bond regulur inform, cannot be avoided by a suret}^ upon the ground that it was delivered in violation of a condition upon which it was signed by such surety, such condition being that the principal should not make such delivery until it was also signed by a certain other person, and the obligee having no notice of such condition. Thus, where a treasurer's bond was written by him, and he left a blank for the names of his sureties and the amount of the penalty ; tlie sureties filed a plea of non est factum, and it appeared on the trial that the sureties signed the bond, and the blank for the amount of the penalty was subse- quently filled up by the treasurer and delivered to the board, who had no notice that the blank had been tilled after the bond was signed. The sureties never gave notice to the board that the bond had been altered, and the treasurer received large sums of money by virtue of having given the bond, and afterwards became a defaulter : if not a fraud perpetrated by the sureties, it is unfair and unjustitiable in morals, and would, if allowed, be an ungracious defense, and that the bond did not become void. When commercial paper, and unsealed agreements are signed with blanks, and thus delivered, and the blanks are subsequently filled, the law presumes that authority to fill them was given at the time of their delivery. Where sureties know that there is such a blank, and they sign the instrument and fail to notify the obligees that they regard the bond as void, and they know that, by filing the bond, the treasurer would obtain Ujssealed Instruments. 1145 money, it will be inferred that they ratified the act, rather than that they were intending to aid tlie treasurer to perjjetrate a fraud on the obligees.' The case is one where the surety must run the risk of the fraud of his own agent. It is the dutj^ of the signer of au instrument, under siich circumstances, to see to it that the authority he has so delegated is not abused, and that it is not just nor reasonable to allow liitn to take advantage of its abuse to defeat his obligation. A delivery of a writing of this character, under such circum- stances, to the principal, does not have the effect of characteriz- ing it as a mere escrow^ but on the contrary, the principal should be considered as tlie agent of the surety, and empowered by him to pass the writing to the person to whom it may be made pay- able, and his delivery as being sufficient to make it effectual, unless the payee had notice of the special terms upon which it was signed. The implied discretionary authority to use the note, arising out of its possession by the principal, uncontradicted by its terms or any thing apparent on its face, can not be restricted by any agreement between the payors themselves, of which the payee had no notice. § 1017. In Lyttle v. Cozad," the court said : "The reason of this is that the sureties, having in such a case willfully caused the obligee to believe that they were willing to become sureties on the bond, in the form and with the names on it which were there when it was delivered to the obligee, and thereby he was induced to accept such bond, and thus change his previous position, the sureties must thereby be concluded against the obligee from averring that they were not then willing to sign the bond as the sole sureties in the form in which, by their connivance and fault, it had been presented to the obligee. " When one of two innocent persons must suffer by the act of .a third, lie M'ho has enabled such person to occasion the loss must sustain it. The sureties, by entrusting the bond to the principal in such a case, make him their agent to deliver the bond to the obligee, for this is the ordinary mode of conducting such trans- actions. And. having given the principal instructions that he must get other securities on the bond before he delivers it to the ' Bartlett v. Board, 59 111. 364. « 21 W. Va. 183 1146 The Law of Estoppel. obligee, the}', by giving the bond in a perfect form, trust liini to carry out such instructions ; ami if he fails to do so, but delivers the bond to the obligee in such perfect form, it mubt be obliga- tory on them, for it is their fault that injury luis resulted ; and the loss thus resulting, they cannot shift to the obligee by proving such private instructions given by them to the principal ol)ligor, except M'here the obligee is guilty either of fraud or rashness in accepting such bond. " In the case of Miller v. Fletcher,' the court seemed to have gone still further in holding a bond valid. In that case it was decided that ' if a bond, perfect on its face, is delivered to the obligee as an escrow, to be valid on another person executing it, it is valid, though the condition is not complied with.' In this case, Judge Staples reviews a number of cases as sustaining the position that a deed or bond cannot be delivered to the obligee as escrow, and if it be, the condition will be regarded as invalid and the deed or bond as absolute. § 1018. A surety signing and delivering to the principal obligor a bond, before the names of the sureties have been inserted in the body of the instrument, will be held as agreeing that the blank for such names may be filled in after he has executed it." When a surety bond is executed by the plaintiff, at the request of the defendant, and upon his promise to indem- nify the plaintiff, the defendant is estopped from alleging that the bond given by the plaintiff is invalid." A party who executes a bond as surety for a baid^, which receives canal tolls on deposit, » Miller v. Fletcher, 27 Gratt. 405. Co. v. McMillan, 29 Ala. 147; Sliep. Simonton's Case, 4 Watts, 180; Touch. Vol. 1, pp. 58, 59; Ilicks Duncau v. Tope, 47 Ga. 445; R. It. v. Goodes, 12 Leigh, 479 ; Ward v. Co. V. lliffe, 13 Ohio St. 235; Ward v. Churn, 18 Gratt. 8U1. Lewis, 4 Pick. 518; Currie v. Donald. ^ Eagleton v. Gutridgc, 11 M. & W. 3 Wasii. 58; Brackett v. Barney, 28 465; Smith v. Crocker, 5 Alass. 538; N. Y. 333; Worrall v. Munn, 5 N. Y. luh. of Berwick v. Huntress, 53 Me. 238; Jackson v. Catlin, 2 Johns. 256; 89; Hudson v. Perwett, 5 Biug. 368; Black V. Shreve, 13 ISI. J. Eq. 456; State v. Pepper, 31 Ind. 76; Mow- Herdman v. Bratteu, 2 Har. (Del.) bray v. Stale. 88 Ind. 384; Lewis v. 396; R. R. Co. v. Slevens, 10 Ind. 1; Conmi'rs, 70 Ga. 486. Brown v. Reynolds, 5 Snecd, 039; ^ Jarvis v. Sewall, 40 Bub. 449; Gibson v. Partele, 2 Dev. & Bat. 530; Commissioners v. Tower, 28 Minn. Hay good v. Harley, 8 Rich. L. 325; 45. Graves v. Tucker, 18 Mi'^'^. 9; Ins. Unsealed Instruments. 1147 and thus admits its existence, and, by his bond, covenants for a faitliful performance of its contract, -s^all, when sued upon such bond, be estopped from den_ying that such bank has a legal exist- ence.' Where one has voluntarily signed a guardian's bond, which has been accepted by the probate court, he is estopped to set up that the court did not order the bond to be made. The obligors in a bond will be bound, though their names are not inserted in the body of the instrument.'' So, where the principal is ■A feme covert^ it will not be avoided as to the sureties.' So an attorney who tenders himself as a surety on a bond, and is accepted by the proper officer, cannot afterwards plead his dis- ability to relieve himself from his obligation, even though it is provided by statute that " no attorney shall be received as security in any proceeding in court."* A person who signs, seals and delivers an instrument as his deed, will never be heard to question its validity, upon the ground that it was not acknowledged by him, nor proved at the time of the delivery. It is the sealing and delivery that gives efficacy to the deed, not proof of its execution. And this princi- ple applies to all bonds, whether executed by public officers or private persons, unless there is a statute making the acknowledg- ment, or proof in court, essential to the vah"dity of the instru- ment.'^ § 1019. Where a mortgage is made in express terms subject to certain bonds secured by a prior mortgage, these bonds being negotiable in form, and having in fact passed into circulation before such former mortgage was given, the junior mortgagees, and all parties claiming under them, are estopped from denying the amount or the validity of such bonds so secured, if in the hands of hona fide holders.^ Where a bond and mortgage has been assigned to and deposited with the comptroller as security ' People V. McCumber, 18 N. Y. ^ Lobaugh v. Thompson, 74 ]Mo. 315. COO. "" Griramett v. ITenderson, 66 Ala. * "Wright v. Schmidt, 47 Iowa, 223. 521; Rader V. Davis, 5 Lea. 536; Mc- ^ Supervisors v. Dunn, 27 Gratt. Lain v. Simmgton, 37 Ohio St. 484; 009. Trustees v. Schenk, 10 111. App. 51; « Bronson v. E. R, 2 Wall. 283; Scheid v. Leibshultz, 51 Ind. 38; Coulter v. Kaighn, 31 N. J. L. 98. Douker v. Atwood, 119 Mass. 146. 1148 The Law of Estoppel. for circulatins^ notes of a bank, the party wlio deposited the same is esto])pod from denying tlieir vah'dity in his hands. And if they have been sold by the comptroller in the party's presence, the party making no objection thereto, he is estopped from deny- ini^ their validity in tlie hands of the purchaser.' One wiio guar- antees "in writing the payment of a bond assigned b}" him, thereby estops himself from denying in an action on the guaranty, that the makers of the bond were competent to contract in the man- ner they did. The guaranty of the payment of the bond by the defendant, imports an agreement or undertaking that the makers of the bond were competent to contract in the manner they did, and the instrument is a binding obligation upon the makers." If an obligor, who was also one of the obligors in a bond, could not make a delivery to himself, an assignment and delivery of the bond to a third person estops him from setting up the objec- tion in a suit on the bond by the assignee. It is like the case of a partner making the note payable to one of the firm, which becomes -valid and collectible at law in the hands of a honafide holder.' It is the dut}^ of the obligor, in a voluntarj' bond, to add the stamp, and neither he nor his sureties can allege his own neglect in avoidance of the stamp." § 1020. Where there has been a special contract, and the plaint- iff has performed a part of it according to its terms, and has l)een prevented by the act or consent of the defendant, or by the act of the law from performing the residue, he may in general assumpsit recover compensation for the work actually performed, and the defendant cannot set up the special contract to defeat him. But where there is an entire executory contract, and the plaintiff has performed part of it, and then willfully refuses with- out legal excuse, and against defendant's consent to perform the rest, he can recover nothing either in general or special assumpsit. 1 Land v. Shackfonl, 5 N. H. 133; Coggill v. Bank. 1 N. Y. 11:]; Mc- RouikIs v. Baxter, 4 jMc. 454; Ayer v. Laugliliu v. McGm^ern, 34 Barb. 208; Hawkes, 11 N. H. 148; Ketclium v. Eiwin v. Downs, 15 N. Y. 575. Evcrfson, 13 Johns. 365; Hill v. ^ Bradford v. Williams, 4 How. Grosser, .59 N, H. 513; Green v. Green, 576. 9 Cow. 46; Hubbard v. Briggs, 31 N. " McGovern v. Iloesback, 53 Pa. St. Y. 518; Remsen v. Graves, 41 N. Y. 76; Chaffee v. Ludelliug, 27 La. Ann. 471. 607. "ZabrLskie v. R. R., 23 How. 399; Unsealed Instruments. 1149 No one who waives or dispenses with the performance of a con- tract can relj upon the faihire to perform it, either as a defense or a cause of action, for no one can complain of a default which he has caused or sanctioTied.' A stranger to a contract is estop- ped from taking advantage of a breach of its conditions. "Where, in part performance of a contract, a party has advanced money or done an act, and then stops short and then refuses to proceed to its conclusion, the other party being ready and willing to proceed to fulfill all his stipulations according to the contract, such first named party is estopped from recovering back what has thus been advanced or done.'' § 1021. A party performing acts under a contract is bound thereby, although it is signed by the other party only.^ So, where a party accepts a performance different from that contracted for, will estop the i)arty from taking advantage of the failure to per- form in accordance with the contract." The vendor or party to be charged who has subscribed the contract is estopped by his signa- ture fi-om denying tliat the contract was validly executed, although not signed by the other party who sues for the performance.^ One Avho knowingly permits a stipulation to be excluded from tlie writing, is estopped from setting it up as part of the contract. Sucii testimony eaimut be received on the ground of fraud, where it is the only evidence of the alleged deceit, nor unless a founda- tion is laid by other proof." When the wi'iting purports to con- tain the contract, the parties are estopped from setting up any 1 Sluiw V. Turnpike Co., 2 Pa. St. Ca. 60; Roget v. Merritt, 2 Caines, 454; McKee v. Miller, 4 Blackf. 222; 120; Russell v. Nicholl, 3 Wend. 112; Young V. Hunter, GN. Y. 203; Bout- Shriley v. Shriley, 7 Blackf. 452; well V. O'Keefe, 32 Barb. 434; Hart v. Pennimau v. Hartshorne, 13 Mass. 88; Lanman, 29 Barb. 410. Fowler v. Freeman, 9 Ves. 357; Wood- ^ Hansbrough v. Peck, 5 Wall. 497. ward v. Aspinwal, 3 Sand. 272; Wor- 3 Street v. Chapman, 29 Ind. 142; rail v. Munn, 5 N. Y. 229; Sutherland Smith V. Mor.se, 20 La. Ann. 220; Mc- v. Briggs, 1 Hare, 34; Schneider v. Millau V. Mich. &c. Co., IG Mich. 79. Morris, 2 M. & S. 286; Hattonv. Grey, * Gilraau v. Douglass, G Nev. 27. 2 Cas. Ch. 1G4; Martin v. INIitchell, 2 5 Clason V. Bailey, 14 John. 4SG; Jac. & M. 426. Allen V. Bennett. 3 Taunt. 169; Mc- « Proctor v. Ghilson, 49 N. H. 62; .Crea V. Purmort, 16 Wend. 465; Seton McElderry v. Shipley, 2 Md. 25, v.Slade, 7 Ves. 265; Davis V. Shields, Broughton v. Coflfer, 18 Gra«. 184- 26 Wend. 362; Rogers v. Saunders, 16 Beers v. Beers, 22 IMich. 42; Fultoa v Me. 92; Ballard v. Walker, 3 John. Hood, 34 Pa. St. 365. 1150 The Law of Estoppel. stipulation which does not appear in the writing, and the case can not bo taken out of this rule by alleging that the writing was exe- cuted on the faith of an assurance that the stipulation should be as valid as if it had been inserted in the instrument.* § 1022. Contracts vitiated by fraud are regarded by the law as voidable, not void. So a n)an who has his option whether he will affirin a particular act or contract, must either elect to affirm or disaffirm it altogether. He cannot adapt that part which is for his benefit and reject the rest. He cannot do both, theiefore, if a party with knowledge of a fraud in a contract which would enable him to avoid it, treats it as a subsisting contract, he is estopped afterwards from repudiating it." A party delivering goods and inducing his creditor to accept them in payment, is estopped from alleging the contract to be void, and recovering their price.' If the vendor of a chattel receives payment of the purchase money and delivers possession of the property to the purchaser, he is estopped from asserting that the contract is invalid, whether such invalidity arises from the illegality, or of the consideration, or from the legal incapacity of the purchaser to make the contract.' A party to an illegal contract is not allowed by an allegation of his own turpitude to recover back what, in pursuance of a forbidden bai-gain he has delivered to the other party, or in any way avoid the bargain when once executed." A party who lends money, or one who sells land or personal ' Ruse V. Ins. Co., 23 K Y. 516 ; 58 N. Y. 515; Riclimonav. R. n. Co., McElderry v. S ipley, 2 Md. 25; Wil- 33 Iowa, 422. son V. AVatts, 9 .Md.35G; Smith v. Wil- =* Fowler v. Moller, 10 Bosw. 874; liams, 1 Murphy, 426 : Howard v. Bronsou v. Wiman, 8 N. Y. 182. Thomas, 12 Ohio N. S 201. ■* .Morris v. Hall, 41 Ala. 510; llarbiu 2 People V. Stevens, 71 N. Y. 527; Levi. 6 Ala. 399. Sclway V. Fogg, 5M. & W. 83;R. R. 'Evans v. Trenton, 24 N. .1. L. Co. V. Rowe, 24 Ind. 24; Veruall v. 764; Hendrickson v. Evans, 25 Pa. Vernall, 63 N. Y. 45; Bank v. Carver, St. 441; Hunt v. Turner, 9 Tex. 385; 31 Barb. 230; Lloyd v. Brewster, 4 Jones v. Davidson, 2 Sueed, 4t7; Ins. Paige, 537; Sweetman v. Prince, 26 Co., in re, 35 E. L. & E. 178; Wyciic N. Y. 227; Bronson v. Winian, 10 v. Greene, 26 Ga. 415; Baniebe v. Barb. 406; Reed v. Randall 29 N. Y. Sauer, 18 La. An. 148; Chew v. Bank, 358; Lake v. Dawson, 17 Pick. 284; 14 Md. 299; Johnson v. Byler, 38 Gurney v. R. R., 58 N. Y. 358; Clark Tex. 606; Shawluin v. Long, 26 Iowa, V. Wliite, 12 Pet. 178; Osborn v. 488; Rice v. R. R. Co., 12 Allien, Gance, 60 N. Y. 540; Fowler v. Mol- 141. ler, 10 Bosw. 374; G. M. Co. v. Allen, Unsealed Instruments. 1151 property, and receives tlie consideration tlierefor, is estopped from setting up its invalidity by reason of defectiv^e execution or want of authority in tlie party to purchase, nor can be set up bis own illegal acts for the purpose of avoiding the transaction.' A party who has caused the making of an illegal contract by others cannot liave it set aside to benefit himself, to the injury of the contract- ing parties.* So, where parties to a contract have mutually recognized its binding force upon them, by performance in part of its conditions and otherwise, each will be thereby estopped from denying its obligation upon both.' Thus, where a com- pany was, by its articles of association, prohibited from issuing shares below par without the sanction of a general meeting M. agreed to subscribe for 2,000 shares in the company, which should be taken up and paid for in full by him in such numbers and at such times as should be recpiired for the purposes of the company. On the day he made this agreement, the board of directors agreed to pay him four thousand pounds in considera- tion of his services rendered to the company. The company failed. . . . On an action brought by the company against him for specific performance of his contract, he having acted in collusion with the directors to defraud the comjjany, he was estopped from setting up the fraud to avoid his agreement to take his shares.* § 1023. The taking of usury is a misdemeanor by statute in many of the states. The borrower may set up usury for the pur- pose of avoiding a contract tainted with it, but not the lender, it cannot be avoided by the party guilty of the fraud, he is estop- ped from setting it up to his own advantage." A party to a con- tract who himself knowing the special or technical meaning of certain material words as used in such contract, and knowing that the other party is ignorant thereof , falsely states to the latter that they have some other or different signification, and thereby induces him to execute and act upon his contract to his injury, is estopped by such representations from taking advantage of the ' Bauk V. Case, 99 U. S. 628; Shaw- « Johnson v. Byler, 38 Tex. 602. ban V. Long, 26 Iowa, 488; Rice v. ^ Richmond v. R. R. Co., 33 Iowa, R. R. Co., 12 Allen, 141; Wyche v. 422. Greene, 26 Ga. 415; Barnebe v. Saucr, * Tramway's Co. v. Mendel, 38 L. 18 La. An. 148; Chew v. Bank, 14 T. R. N. S. 731. Md. 209. 6 Lafarge v. Herter, 9 N. Y. 241. 1152 The Law of Estoppel. contract.' Where a contract on behalf of the state, between an ofHcer thereof and an individual, is, pursuant to a power vested in him by the statute declared illegal, by the proper law officer of the state, the state, its agents and servants are estopped from denying its illegality.'' A creditor, who with knowledge of an assignment b}' his debtor, fraudulent in law upon its face enters into an agreement witli his debtor and the trustees named in the assignment, for the management of the trust property, and the distribution of its proceeds in accordance with the terms of the assignment, the performance of such agreement having been entered upon, is estopped from impeaching the assignment for such patent defect.' A party to a contract, after receiving the benefits thereof is estopped from affirming that the same was not to be binding unless reduced to writing,* or that there was no written evidence of it.* ^ 1024. A creditor who has confirmed a fraudulent deed by receiving a benefit under it, or has become a party to it is estop- ped from afterwards impeaching it.* Thus a creditor who has levied on an equity of redemption, and bid in the premises at the sale, at the value of the equity, is estopped to deny the validity of the mortgage although it be fraudulent.' Where a creditor by undertaking to discharge his debtor, induces other creditors to accept a composition and discharge the debtor from further liabilit}', he is estopped from afterwards enforcing his claim for the reason that it would be a fraud on the other creditors. Where the plaintiffs sold the defendant a large amount of wheat in bulk, and furnished him with a weigher's certificate of the quantity, and were paid for the quantity certified, and the defendant relying upon the correctness of the certificate, resold it as of the same quantity, the plaintiffs are estopped from afterward disputing the accuracy of the certificate." Where a charter party provides that 'Calkins v. State, 18 Wis. 389; ^ Edeliu v. Clarksoo, 3 Mon. 31; Mattoon v. Youug, 2 Hun, 559; State Gillospii- v. Battle, 15 x\.la. 276. V. Loeb, 21 La. Ann. 599. « Kiclianls v. AVhite, 7 Minn. 345; 2 Peckv. BuiT, 10 N. Y. 294. Leniiiy v. Biboau, 2 Minn. 291; But-l 3 Rappello V. Stewart, 27 N. Y. v. Harris. 18 B. ]Mon. 195. 310. ' Brown v. Snell, 46 Me. 490. * Miller v. McMannis, 57 111. 126; « Gillespie v. Carpenter, 1 Robt. (N. Conover v. Stillwell, 34 N. J. L. 54. Y.) 65; Woodley v. Coventry, 2 H. & C. 164. Unsealed Instruments. 1153 a vessel shall carry a certain number of tons, and the charterer permits her to carry a less cargo without objection, he is estopped from objecting that it was not a performance of the contract.* Where, under a contract for the sale of hops, a third j^arty who was to inspect and brand them, neglected to put on the brand after inspection, and the purchaser at a time when the omission might have been supplied said it would make no difference, he is estopped from insisting on the omission to brand in an action against him on the contract.* § 1025. Where one purchased an interest in a patent, and agreed with the patentee, upon certain conditions, to give his personal attention to manufacturing of machines under the patent, afterwards made a second agreement with the patentee, Mdiereby he agreed to discontinue such manufacture. He was estopped in an action brought against him by the patentee for continuing such manufacture, and for an account, from setting up the defense that such patentee was not the original and tirst inventor of the thing patented.' Where a party claiming to be the owner of a patent right or a machine licenses another to make and sell such machine within a certain territory, and in consideration of such license tlie latter agrees to pay the for- mer a given sum by way of "■oyalty on each machine manufac- tured by him and sold, and a large number of machines being manufactured, a part of which are sold and a part remain on hand the parties enter into a compromise agreement whereby the licensee executes to the licensor his promissory note for the amount due under the former contract for the machines sold, but largely reducing the royjilty payable for the machines remaining on hand and those thereafter to be made, the makers of the note having fully enjoyed without interruptiori everything for which they stipuhited in the contract under which they proceeded, are estopped to deny a consideration for the note either on the 'Roberts v. Opdyke, 1 Robt. (N. Hall v. Condor. 89E. C. L. 22; Marston ■Y.)287. V. Swett, 66 N. Y. 206; Bellas v. ' Clinton V. Brown, 41 Barb. 2C:6. Hays, 5 S. & R. 427; Palmer's Ap- ^ Patterson's Appeal, 99 Pu. St. 521; peal, 2 Pitts. L. J. 299; Manf'g Co. v. Norton v. Brooks. 7 H. & N. 499; Supply Co., 48 Mich. 331; Parkliurst Hills V. Laming. 24 E. L. & E. 452; v. Kinsman, 1 Blatchf. 488. Angler v. Eaton Co., 98 Pa. St. 594; Vol. L— 73 1154 The Law of Estoppel. ground of utility or the want of novelty in said machine* Where a patentee assigns his patent, he has no right to manufac- ture the patented article, and in an action brought against him, he cannot set up that the patent was void ; lie is estopped by his deed.'' And the same principle applies where an assignee allows a bankrupt to transact business without giving notice of his adjudication/ § 1026. A person who signs and delivers a message under tlie printed heading furnished by a telegraph company containing the terms and conditions upon wliich messages will be sent, is estopped from denying the agreement which he has signed by alleging that he never read it.' Where a board of supervisors ' Kinsman v. Park, 18 How. 284; Baitlett V. Holbrook, 1 Gray, 114; Cutler V. Bov.'en, 11 A. & E. 253; Laws V. Pnrsere, E. & B. 930 ; Bowman V. Taylor, 2 A. »£ E. 278; Davis v. Gray. 17 Ohio S. 530; Kernodle v. Hunt, 4 Blackfd. 57; Wilder v. Adams, 2 W. & M. 3--i9; Jones v. Burnham, 67 Me. 93; Walton v. Lavater,8 C. B. (K S.) 162; S. C, 29 L. J. C. P. 279; Edwards v. Smith, 63 Mo. 119; Marston v. Swctt, G6 N. Y. 119; Gil- lett V. Bate. 86 N. Y. 87; Crossly v. Di.xon, 10 H. L. C. 293; Clark v. Adie. 2 App. Cas. 435; Smith v. Scott, 6 C. B.(N. S.)771; Chambers V. Crich- ley, 33 Beav. 274; Walton v. Lavater, 3 L. T. R. (N. S.)273; Palmer's Appeal, 96 Pa. St. 106; Hall v. Condor, 89 E. C. L. 20; Birdsall v. Perrys, 5 Blalch. 255; Bellas v. Hays, 5 S. & K. 427; Yaughn v. Prrter. 16 Yt. 270; Purifier Co. V. Guilder, 3 McCrary. 186; S. C, 9 F. 11. 155; :\rf'gCo. V. Supply Co., 48 Midi. 331; Hayne v. Maltby, 3 T. R. 438; jS'otou v. Brooks. 7 II. & N. 499. * Hayne v. Maltby, 3 T. R. 438; Waltcm V. Lavater, 3 L. T. R. (N. S.) 272; Chambers v. Crichley, 33 Beav. 274; Oldham v. Langmead, 3 T. R. 429. 3 Ford, in re, 1 Ch. D. 521; Engel- bach V. Nixon, L. R. 10 C. P. 1045; Brown, in re, 2 Yes. Jr. 67; Everett V. Backhouse, 10 Yes. 99; Butler, in re, M. D. & D. 73; Bowne, in re, 2 G. & J. 141; Troughton v. Gillej', Amb. 629; Tucker v. Herman, 4 D.M. & G. 395; Wadlingv. Oliphant, 1 Q. B. D. 145. "Lewis V. R. R., 5 H. & K 867; Camp V. Telegraf Co., 1 Met. (Ky.) 164; Andrew v. Telegraf Co., 17 C. B. 3; McMillan v. Telegraf Co., 16 Mich. 79; Young V. Telegraf Co., 65 N. Y. 163; Burney v. Telegraf Co., 18 Md. 341; Telegraf Co. v. Gildersleeve, 29 Md. 232; Wolf V. Telegraf Co., 68 Pa. St. 83; S. C, 1 Am. R. 387; Breeze v. Telegraf Co., 48 N. Y. 132; S.C.,8Am. R. 526; Grinnell v. Telegraf Co., 113 Mass. 299; S. C, 18 Am. R. 485; Swart v.Telegrnf Co., 18 Hun, 157; Redpath V. Telegraf Co., 112 Mass. 71; S. C, 17 Am. R. 79; Telegraf Co. v. Buchanan, 35 Ind. 429; S. C, 9 Am. R. 744; Tele- raf Co. V. Neill, 57 Te.x. 283; S. C. 44 Am. R. 589; Womack v. Telegraf Co.. 58 Tex. 176; S. C, 44 Am. U. 614; Becker v. Telegraf Co., 11 Neb. 87; S. C. 38 Am. R. 1; Breeze v. Telegraf Co., 45 Barb. 274. Unsealed Instruments. 1155 accept and act upon an account containing various items pre- sented to them for audit and allowance, they are estopped from subsequently objecting that the account only is verified and not the items of the account as required by the statute.' § 1027. It is a general rule of law that all bills, notes, bonds, contracts, &c., made, executed and delivered on Sunday, are void between the parties ; yet, if falsely dated as of another day, and such an instrument comes to the hands of an innocent holder, who takes it for value, without notice, the maker, acceptor, iudorser, or guarantor is estopped in an action on such instrument, and the defense that it is a Sunday contract, and therefore void, cannot be maintained against such innocent holder.^ Where one makes a deed on Sunday, and fraudulently dates it as of another day, and his grantee conveys the estate to a stranger who is ignorant of this fact, the grantor is estopped to set up that the original deed was made on Sunday.* An official bond signed by the surety on Sunday and handed to the principal, who afterwards delivers it to the proper officer on a secular day, who receives and approves it, binds the surety.* ' Sherman v. Supervisors, 30 How. Mo. App. 11; Evansville v. Morris, 87 Pr. 173; People v. Fitzgerald, 54 lad. 269; S. C, 44 Am. R. 763; How. Pr. 1. Manfg Co. v. Brucker, 111 U. S. 597. ^ Ball V. Powers, 63 Ga.757; Leight- ^ Love v. Wells, 25 Iiid. 503; Riley man v. Kadetska', 58 Iowa, 676; Con- v. Butler, 36 Ind. 51; Knox v.ClilTord, tra, see Richmond v. Moore, 107 111. 38 Wis. 65; State v. Young, 23 Minn. 429; S. C, 47 Am. R. 445; King v. 551; Hall v. Parker, 37 Mich. 590. Fleming, 72 111. 21; Swan v. Swan, ■» Evansville v. Morris, 87 Ind. 269. 21 F. R. 299; Moore v. Clymer, 12 1156 The Law of Estoppel. CHAPTER XYII. EQUITABLE ESTOPPEL, AS APPLIED TO THE% RELATION OF PRINCIPAL AND AGENT, MARRIED WOMEN, INFANTS, ADMINISTRATORS, &C. Section 1028. The doctrine of election is founded upon the principle that there is an implied condition, that he who accepts a benefit under an instrument must adopt the whole of it, con- forming with all its provisions, and renouncing every right incon- sistent Avith them. The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who claims an interest under an instrument, is bound to give full effect to that instrument as far as he can. A person cannot accept and reject the same instrument, or having availed himself of it as to part, defeat its provisions in any other part ; and this applies to deeds, wills, and all other instruments whatsoever.' Taking possession of property under a will or other instrument, and exercising unequivocal acts of ownership over it for a long 1 Wilbanks v. Wilbauks, 18 111. 19; Y. SoS; Monette's Succession, 26 La. Walcrs V. Howard. 1 Md. Ch. 112; An. 26; Weedon v. Landiaux, 26 La. M'Ell'resli V. Schiley, 2 Gill, 181; Field An. 729; Counibau v. Thompson, 111 V. Eaton, 1 Dev. Eq. 283; Cogdell v. Mass. 270; LilJey v. Adams, 108 Widow, 3 Dess. 846; Whilldin v. Mass. 50; Sloan v. Holcomb, 29 Mich. Whilldin. Kelly's Ch. 205; Cauffman I'yd; Pickett v. Bank, 32 Ark. V. Cauffman, 17 S. & R. 16; Stumps 346; Walpole v. Conway, Barn. CIi. V. Findlay, 2 Ravvle, 168; Preston v. 159; Kirkham v. Smith, 1 Ves. 2oS; Jones, 9 Pa. St. 450; George v. Bas- McN?imara v. Jones, 1 Bro. C. C. 411; sing, 15 B. Mon. 558; Tierman v. Frank v. Staudish, 1 Bro. C. C. 588; Roland, 16 Pa. St. 430; Smith v. Blake v. Bunbury, 4 Bro. C. C. 21; Gould, 7 M. & S. 238; Patton v. Swan v. Holmes, 19 Beav. 471; Wint- Moore, 25 Pa. St. 468; Glen v. Fisher, our v. Clifton, 21 Beav. 447; Crosby 6 Johns. Ch. 33; Wyche v. Greene, v. Ld. Asplown, 10 Ir. Ch. 119; 26 Ga. 416; Simmone v. Hendricksou, Ileale v. Fitzraaurice, 13 Ir. Clu481; 3 Harr. 103; Rodermund v. Clark, 46 Dillon v. Parker, 1 Swanst. 359; N. Y. 354; Morris v. Rexford, 18 N. Grelton v. Howard, 1 Swaust. 409. Election^. 1157 period of time, will amount to a binding election to confirm tlie instrument.' § 1029. The same rules are applicable as to election, acquies- cence and ratification. Ratification is the adoption of a previously formed contract, notwithstanding a vice which rendered it rela- tively void ; and by the very nature of the act of ratification, con- firmation or aflirmance, the party confirming becomes a party to the contract ; he that was not bound becomes bound by it, and entitled to all the benefits of it. He accepts the consideration of the contract as a suflficient consideration for adopting it, and usually this is quite sufficient to support the ratification.^ Elec- tion, ratification and acquiescence, are prominent elements in the creation of equitable estoppels and may be consolidated under the general term of estoppel by conduct. Ratification and election imply knowledge, and so does acquiescence. Estoppels arising from either one of these causes proceed upon the gi'ound that the party knows or had notice of the facts upon which the estoppel is founded and to which it refers. A.n estoppel of this nature cannot arise, unless the part}^ against whom it is sought to be made available is aware of his rights. A party cannot be adjudged to have acquiesced in, or ratified an act of which he has no knowl- edge, actual or constructive. We shall endeavor in this chapter to illustrate these principles by reference to numerous cases and its application to various persons, principal and agent, married women, infants, trustees, and others. § 1030. The doctrine of election originated in inconsistent or alternative donations ; a plurality of gifts, with intention, express or implied, that one shall be a substitute for the rest. In the judgment of tribunals, therefore, whose decision is regulated by that intention, the donee will be entitled not to both benefits, but 1 Preston v. Jones, 9 Pa. St. 45G; Smith v. Smith, 14 Gray, 532; Weeks Vanduyne v Vanduyne, 17 N. J. E. v. Patton, 18 Me. 43; Deslondes v. 49; Smith V. Guild, 34 Me. 443; Lan- New Orleans, 14 La. Ann. 552; Up- dis V. Landis, 1 Grant Cas. 249; shaw v. Upshaw, 2 H. & M. 381 ; Wil- Stump V. Gaby, 3 D. M. & G. G23; son v. Hayne, Cheve. Eq. 37; Gaston Ranks v. Amnion, 27 Pa. St. 172; v.Caston, 2 Rich. 1; Stark v. Huuton, Benedict v. Montgomery, 7 W. & S. IN. J. E. 217; Clay v. Hart, 7 238; Bradford v. Kent, 43 Pa. St. 474; Dana, 1. Tnrnhow v. Groach, 12 Bush, 455; ' Pearson v. Chapin, 44 Pa. St. 9. 1158 The Law of Estoppel. to the choice of either. The second gift is designed to be effect- ual only in the event of liis declining the first ; and the snbstance of the gifts combined is an option. If the individual to whom, by an instrument of doriation, a benefit is offered, possesses a previous claim on the author of the instrninent, and an intention appears that lie shall not both receive the benefit and enforce the claim, the same principle of executing the purpose of the donor, requires the donee to elect between his original and his substituted rights; the gift being designed as a satisfaction of the claim, he cannot accept the former without renouncing the latter. § 1031. A new modification of the doctrine arises on the occurrence of gifts of a peculiar nature. The owner of an estate having, in an instrument of donation, applied to the property of another, expressions, which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his estate in favor of the proprietor whose rights he assumed, is understood to impose on that proprietor the obligation of either relinquishing (to the extent at least, of indemnifying those whom, by defeat- ing the intended disposition, he disappoints) the benefit con- ferred on him by the instrument, if he asserts his own inconsist- ent proprietarj' rights, or if he accepts that benefit, of completing the intended disposition by the conveyance in conformity to it, of that portion of his property which it purports to effect. The foundation of the doctrine is still the intention of the author of the instrument ; an intention which, extending to the whole dis- position, is frustrated by the failure of any part ; and its cha/'ae- teristic, in its application to these cases, is, that by equitable arrangement, effect is given to a donation of that which is not the property of the donor ; a valid gift, in terms absolute, being qualified by reference to a distinct clause, which, though inopera- tive as a conveyance, affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition (though destitute of legal validity), not express but implied, annexed to the benefit proposed to him. To accept the benefit, while he declines the burden, is to defraud the design of the donor. § 1032. The doctrine of election, in common with many other Election. 1159 doctrines of courts of equity, appears to be derived from the civil law. In that system, a bequest of property which the tes- tator knew to belong to another, was not void, but entitled the legatee to recover from his heir, either the subject of the bequest, or, if the owner was unwilling to part with it at a rea- sonable price, the pecuniary value.' It was also competent to the testator, by express direction (originally in the form oifidei com- Tnissum, at a later period in terms of gift, under the denomina- tion of legatum, ah aliquo)^ to impose the obligation of providing the bequest or its value, on anj^ person deriving a benefit under his will,* to the extent of that benefit.^ But a bequest, on the erroneous supposition that the subject belonged to tlie testator, was, it seems, void ;* unless the legatee stood in a certain degree of relation to the testator,* or the subject was the proj)erty of the lieir." In every instance, the heir or legatee possessed the option of accepting or renouncing the inheritance or legacy thus burdened, but it seems that no medium was permitted between these alter- natives; no text has occurred recognizing the right of the heir or legatee at once to accept the benefit offered by the Avill, and to retain the property of which it assumed to dispose, on the terms of compensation or indemnity to the disappointed claimant. The effect, therefore, of election to take, in opposition to the will was forfeiture of the benefit offered b}'' it. The effect of election to take under the will varied, as the property of which the will assumed to deprive the legatee was pecuniary or specific; in the former case, he was compelled to perforui the bequest to the extent of the principal and interest which he had received ; in the latter, a peremptory obligation was imposed to deliver the specific object, though exceeding the amount of the benefit con- ferred.' § 1033. In the following decisions will be recognized the doc- » Inst., lib. 2, tit. 20, S. 4, tit. 24, S. * Inst., lib. 2, tit. 20, s. 4; Dig., lib. 1; Dig., lib. 30, 1. 39, s. 7; 1. 104, s 2; 31, 1. 67, s. 8. 1. 71, s. 3; lib. 32, 1. 30, s. 6. ^ Cod., lib. 6, tit. 37, 1. 10. » Dig., lib. 32, 1. 1, s. 6; 1. 14, s. 2; « Dig., lib. 31, 1. 67, s. 8; Cod., lib. Cod., lib. 6, tit. 37; 1. 10, tit. 42, 1. 9. 6, tit. 42, 1. 25. » Inst., lib. 2, tit. 24, s. 1; Dig., lib. ' Dig., lib. 31, 1. 70, s. 1. 30, 1. 114, s, 3. 1160 The Law of Estoppel. trine of election as applied in circnmstances constituting what in courts of equity are technically denominated cases of satisfaction. Cum pater pro filia sua, dotls oiomine, centum jrromisissct, deinde eidem centum eadem Jegasset, doli mali exce^tione heres tutus erit, si et gener ex promissione, et puella ex testamento agere institueret j convenire enim, inter eos oportet, ttt alterutra aciione contenti sint.^ Lucius Titius, cum duos filios heredes reUnqueret, testa - viento ita cavit / Quisquis miki liherorum meorum heres erit, ejus Jidei committo^ ut si quis ex 7ns sine liheris decedat, heredi- tatis mece hessem, cum m-orietiir, fratrihus suis restituat j f rater decedens fratrein suiim ex dodr ante fecit heredem j quoaro an jidei commisso satisfecerit f Marcellus respondit, id quod ex tes- tamento Lucii Titii fratri testator debuisset, pro ea parte, qua alitis heres extitisset, peti posse, nisi diversum sensisse eurn pro- haretur / nam. parvum inter hanc speciem interest, et cum alias creditor debitori suo extitit heres: sed plane audiendus erit coheres, si prohare possit, ea mente testatorum heredem instituisse fratrem suum, -ut contentus institutione fideicommisso abstinere deheret.^ § 1031. By the civil law the doctrine of election seems to have been confined to wills, and in that application it originated in English jurisprudence. One of the earliest instances of inter- ference by a court of equity to restrain the assertion of a legal claim, by reason of its inconsistency with the intention expressed or implied in an instrument conferring a benefit on the claimant, is Lacy v. Anderson, in the reign of Elizabeth. " The suit was to stay a suit at law in a writ of dower made by the defendant, for that the defendant's wife had certain copyhold lands devised unto her in lieu of her thirds at law, which slie accepted of and enjoyed twenty years, and yet seeketh now to recover dower of the freehold lands. The defendants demurred, because copyhold lands can be no bar of dower. But the court thinks it no con- science she should have both ; therefore ordered to answer.''' In an earlier case contained in the san)e collection,'' the court * Dig., lib. 30, 1. 84, s. 6. Choice Cases in Cbaiiceiy, pr. 155, »Dig., lib. 30. 1. 123, pr. 156. * Lacy V. Anderson, An. 24; El. ^ Rose v. Reynolds, 23 & 24 Eliz Choice Cai=es, 147. Election. 1161 assumed jurisdiction upon tlic principle that dower was barred in equity hj acceptance of a benefit designed as a recompense, though not constituting a bar at law. The apph'cation of the general rule to compel election, in the instance of devises to the testator's widow, between her claims as devisee and as doweress, underwent repeated discussion in the well known case of Lawrence v. Lawrence, the record of which lies dispersed through many volumes.' § 1035. The general i-ule which has obtained since Noys v. Mordaunt," is clear, that w^here a man does by will more than he has strictly a right to do, and gives a bounty to the person to whose prejudice that is done, the person prejudiced by one part shall not insist upon his right, and at the same time upon the bounty by the will.' § 1036. The foundation of the equitable doctrine of election, is the intention, explicit or presumed, of the author of the instru- ment to which it is applied,' and such is the import of the expres- sions by which it is described as jDroceeding, sometimes on a ' Ld. Raym. 438; Lutw. 734; 2 Vein. 365; 3 Freem. 234; 3 Bro. P. C. ed. Toml. 484; 2 Freem. 235. » 2 Vern, 581. ^Boiightonv. Boughton, 2 Yes. 12; Kitson V. Kitson, Prec. in Chan. 351 ; Streatfield v. Slreatfield, Ca. t. Talb. 176: Forrester v. Cotton, Amb. 388; 1 Eden, 532; a deci^-^ion contradicted by later authorities; Jenkins v. Jen- kins, Belt's Supt. 250; Anon. Gilb. Rep. in Eq. 15; Cowper v. Scott, 3 P. Wms. 119; Cookes v. Hellier, 2 Ve.s. 234; Morris v. Burroughs, 1 Atk. 399: Kirkham Smith. 1 Ves. 258; Chetwynd v. Fleetwood, 1 Bro. P. C. 300; Unett v. Wilkes, Amb. 430; 2 Eden, 187; Highway v. Banner, 1 Bro. C. C. 584; Lewis v. King, 2 Bro. C. C. 600; Hoare v. Barnes, 3 Bro. C. C. 316; Stratton v. Best, 1 Ves. Jr. 285; Finch v. Finch, 4 Bro. C. C. 38; 1 Ves. Jr. 534; Biglandv. Huddleston, 3 Bro. C. C. 285 ; Blake v. Bunbury, 4 Bio. C. C. 21; 1 Ves. Jr. 514: Wilson V. Lord John Towushend, 2 Ves.Jr.693; Whistler v. Webster,2 Ves. Jr. 367; Wilson v. Mount, 3 Ves. 191; Blount V. Bestland, 5 Ves. 515; Butler V. Maclean. 4 Ves. 531; Webb v. Lord Shaftesbury, 7 Ves. 480; Andrew v. Trinity Hall, 9 Ves. 533; Stewart v. Henry, Vern. & S. 49; Moore v. But- ler, 3 Sch. & Lef. 249; Birmingham V. Kirwin, 2 Sch. & Lef. 444; Welby V. Welby, 2 Ves. & B. 187; Green v. Greet), 2 Meri. 86; Tibbits v.Tibbits; 2 Jleri. 96, n. ; Raucliffe v. Parkyns, 6 Dowe, 149: Ayres v. Willis, 1 Ves. 230; Robinson v. Hardcastle, 2 Bro. C. C. 344; Crosbie v. Murray, 1 Ves. Jr. 555; Frekc v. Barriugton, 3 Bro. C. C. 274; Rushoutv. Rushout, G Bro. P. C. 89; S. C, 2 Sch. & L. 267; Sheddon v. Goodrich, 8 Ves. 481; Rich V. Cockell, 9 Ves. 369. * " There can never be a case of election, but upon a presumed inten- tion of the testator;" Eyre, C. in Cros- bie V. Murray, 1 Ves. Jr. 557. 116*2 The Law uf Estoppel. tacit,' implied,' or constructive' condition,* sometimes on equity.* From this principle the whole doctrine, with its distinctions and exceptions, is deduced." The intention of the author of the deed (for it is established that the doctrine of election extends to deeds),^ or will, to dispose of property which is not his, must be mani- fest,* not conjectural.* It is not necessary that the intention be expresslj' declared ; it may be gathered from the whole of the instrument.'" § 1037. The election may be made impliedly as well as expressl}'', and whether there has been ai> acceptance may be determined by the circumstances of the case. Acts of owner- ship, lapse of time, ability to restore others to the same situation as if there had been no election, are some of the indicia of accept- ance." Thus a devisee, by proving the will, by accepting the position of executor, by giving bond, and by continuing to occupy the real estate left by the deceased, adopts, ratifies and confirms the will, and becomes bound to execute it according to its terms ; and he and all persons claiming under him are estopped from setting up any claim or right which would defeat it."* When election has once been made, and thereby an estate vests in a debtor, the latter can no more defeat the right of his creditors to subject that estate to their claims, by a dischiimer of ' StreatfieUl V. Strcatficld, Ca. temp. 300; Moore v. Butler, 2 Sch. & Lef. Talb. 183; Frank v. Lady Standish, 249; Birmingham v. Kirwan, 2 Sell. 15 Yes. 392, it. & Lef. 266; Green v. Green, 2 Meri. "Noys V. Mordaunt, 2 Vern. 582; 86. Broome v. Monck, 10 Ves. 609; « Forrester v. Cotton, Amb. 388; Thellusson v. Woodford, 13 Ves. 220; 1 Eden, 532; Judd v. Pratt, 13 Ves. Bor V. Bor, 3 Bro. P. C. ed. Toml. 168; 15 Ves. 390: Penn v. Guggen- 177. lieimer, 76 Va. 839; Dasbwood v. 3 Jones V. Tinberville, 2 Ves. 14. Peyton, 18 Ves. 27. * Forrester v. Cotton, 1 Eden, 536. » Blake v. Bunbury, 4 Bro. C. C. 5 Boyle V. Bishop, &c.,l Ves. 306; Bor 21; 1 Ves. Jr. 514; Read v. Crop, 1 V. Bor, 3 Bro. P. C. ed. Toml. 177; Bro. C. C. 492. Morris V. Burrows, 2 xVtk. 629; Heale '"Penn v. Guggenheimer, 76 Va. V. Greenbank, 3 Atk. 715. 839: Dillon v. Parker, 1 Sw. 402. * Dillon V. Parker, 1 Swanst. 394. " Penn v. Guggenheimer, 76 Va. 'Llewellyn v. Mackworth, 3 Bar- 839; Johnson v. Duncan, 67 Ala. 61; nard, 445; Freke v. Lord Barrington, Pientice v. Johnson, 79 N. Y. 47^ 3 Bro. C. C. 274; Bigland v. Huddles '= Smith v. Wells, 134 Mass. 13; ton, 3 Bro. C. C. 285, n. ; Chetwynd Hyde v. Baldwin, 17 Pick. 303; Smith V. Fleetwood, 1 Bro. P. C. ed. Toml. v. Smith, 14 Gray, 532. Election. 1163 title, than by a voliiutarj deed of gift or assignment ; and those creditors may resort to a court of equity for tlie purj^ose.' § 1038. This doctrine of election is founded upon principles of universal equity which prevail in the laws of all coutries, and the principle of it is clear ; not merely as an abstract theory, but pursued to practical consequences. It appears to have been originally derived from the civil law, in which are found the following passages, " Quando cesset honorum possessio § 1 . Prima causa : Si jyatronus'^ eui contra tabulus possessio coni- petehat, judicium defuncti agiioverit. Patronus patronique lib- erie si secundum volmtateur mortui liherti Jiaereditathn adieruit legatumive aut fidei commissum peters malueruit / ad contra, taltdas honorum. possessionum non admittuntur I. 6 %fin ulp lib 43 ad sabin. Nam ohsurdum mdetur licere eidem partim com- probare judicium defuncti, partim, evertere, I. 7, Gai lib. 15 ad ed ProvincP " Then follows several illustrations of the doctrine, while the foregoing rules are applicable to wills only, yet furnishes the principle of the doctrine in its full extent against whatever instruments it is brought to bear. The condition in which this doctrine existed in the civil law has been materially modified and enlarged upon by courts of equity, and it has been reduced to a well established system, and one of frequent use. This doctrine is a principle of law as well as equity,^ while more frequent in equity than of law, is often recognized by the latter. You can- not act, you cannot come forth to a court of justice claiming repugnant rights ; upon this principle, it is that a court will not allow a tenant to set up a title against his landlord." § 1039. A man who has his option whether he will aflSrm a particuhir act or contract, must elect either to affirm or disaffirn it altogether ; he cannot adopt that part which is for his own benefit and reject the rest. One cannot blow hot and cold, this is a trite expression of the maxim allegans contraria non est audiendus, he is not to be heard wlio alleges things contradictory to each other. This fundamental is of wide application in the law of ' Pennv. Guggenheimer, 76 Va. 839. Cowp. 597; Doe v. Cavendish, 4 T. R. "^ Wilson V. Lord Townshend, 2 741, Ves. Jr. 096; Goodtitle v. Bailey, 1164 The Law of Estoppel. equitable estoppel.' lie cannot treat a contract as subsisting, and afterwards avoid it.' * Keyser v. Simmons, 16 Ala. 268; Blair v. Wait, 69 N. Y. 113; Woods V. Rocchi, 32 La. Ann. 210; Green's Appeal, 97 Pa. St. 342; Winton v. Lit- tle, 94 Pa. St. 64: Moale v. Baltimore, 5()]M(1. 496; Hart v. Iliiguet, 33 La. Ann. ;362; K. R. Co. v. Cliambcrlain, 84 111. 333; Stewart v. In.s. Co., 9 Lea, 104; Aiusworth v. Miller, 20 Kas. 220; White v. Smith, 37 Mich. 291 ; Louks V. Kenniston, 50 Vt. 116; Loan Co. V. King, 58 Iowa, 598; (Joodwia V. Keney, 49 Conn. 563; Browtr v. Callender, 105 111. 88; Ass'n v. Beck, 77 Ind. 203; S. C, 40 Am. R. 295; AYashabaugh v. Stauffer, 81 Pa. St. 97; Mowry's Appeal, 94 Pa. St. 376; Dock Co. V. Trustees, 35 N. J. E. 181; Nelson V. Claybrooke, 4 Lea, 6S7; Tetter's Appeal, 99 Pa. St. 52; Pack- ing Co. V. Tilton. 87 111. 547; Androw.s V. Ins. Co., 18 Hun, 163; Cro.^s v. Levy, 57 Miss. 634; White v. State, 69 Ind. 273; Byrne v. Bank, 31 Lii. Ann. 81 ; Dii-cctors v. Hernandez, 31 La. Ann. l.")S: Vanneter v. Crossir.an, 42 Mich. 4()5; Power v. Thorp. 92 Pa. St. 346; Brady v. Seligraan, 75 Mo. 31; Miller v. Aj'ers, 59 Iowa, 424; Fitz- patrick v. Apperson, 79 Kj'. 272; Kile V. Yellowhead. 80 111. 208; Hartshorn V. Potroff, 89 111. 509; 3Iathew v. Knox, 34 La. Ann. 410; Test v. Larsh, 76 Ind. 452; Dows v. Napcr, 91 111. 44; Ins. Co. v. Hauck, 71 Mo. 465; Gregory v. Patchett, 33 Beav. 602; Mathewman's Case, L. R. 3 Eq. 781; Eberts v. Selover, 44 Mich. 512; S. C, 38 Am. R. 278; Bank, in re, 22 X. Y. 9; Baukv. Case, 99 U. S. 628; Kim- « Smith V. Hodson, 4 T. R. 211; Hitchin v. Campbell, 2 Black, 827; King V. Leith, 2 T. R. 141: Wilson v. Poulter, 2 Str. 859; Billon v. Hyde, 1 Ark. 128; Hovil v. Pack. 7 East, 164; Ferguson v. Carrington, 9 B. & C. 59; Selway v. Fogg, 5 M. & W. 83; Rus- sell V. Bell, 8 M. & W. 277; Campl)ell V. Fleraming, 1 A. & E. 40; Richard- son V. Dunu, 2 Q. B. 218; Jordan v. Norton, 4 M. & W. 155; Brewer v. Sparrow, 7 B. & C. 310; Burns v. Morris, Tyrwh. 486; Burcb v. Wright, 1 T. H. 378 ; Keech v. Hall, Dougl. 21; Marshall v. Nav. Co.. L. R. 7 Q. B. 16!!; Bennett v. Wade, 1 Dick. 84; Bellamy v. Sabine, 2 Ph 450; Han.soM v. Keating. 4 Hare, 1; Great, &c. Co. V. Maguay, 25 Beav. 594; Bank V. Groves, 12 How. 51; Kinney- V. Kieman, 2 Laus. 492; Voorhies v. Earl, 2 Hill, 288; .lenkins v. Simpson, 14 Me. 364; Fay v. Oliver, 20 Vt 118; Jenuin-rs v. Gaze, 13 111. 610; Mussou V. Bo vet, 1 Denio, 69; Clarkson v. Mitchell, 3 E. D. Smith. 269; Jewett T. Petit, 4 Mich. 508; Kimball v. Cun- ningham, 4 Mass. 504; Stevens v. Hyde, 32 Barb. 171; :,!( Guire v. Cal- lahan, 19 Ind. 128 ; Bronson v. Wimau, 10 Barb. 406; [Mickle v. Miles, 1 Grant Cas. 320: Backenstoes v. Stabler, 33 Pa. St. 251; Mcyseni)urg v. Schlieper, 48 Mo. 426; Peo]-)le v. Stephens, 71 N. Y. 527; R. R. Co. v. Rowe, 24 Wend. 24: Vernal v. Vernal, 63 N. Y. 45: Bank v. Carver, 31 Barb. 250; Lloyd v. Brewster, 4 Paige. 537; Sweetmiui v. Prince, 26 N. Y. 227; Reed v. Randall, 29 X. Y. 358; Gnr- ney v. R. R., 58 X. Y. 358; Oshornc Y. Gantz, (>0 X. Y. 540: G. M. Co. v. Allen, 53 X. Y. 515; Clarke v. White, 12 Pet. 178; Lake v. Dawson, 17 Pick. 284; Kellogg v. Turple, 93 ill. 205; Whipple v. AVhitman, 13 R. I. 512; Bank v. Hollander, 35 La. Ann. 582; Smith V. Pettce. 70 X. Y. 13. Election. 1165 § 1040. Among the rules which have become axiomatic is one that a party must be consistent and not contradictory in tlie posi- tions which he talces, Jn the hmguage of Lord Kenyon, he must ball V. Lincoln. 7 111. App. 470; Ho bart V, Johnson, 8 Fed. R. 493; Kirk V Hamilton, 103 U. S, 68; Cheatham V Wieber, 1 Dak. T. 335; Hart v, Giles, 67 Mo. 175; Youngbloodv. Cun- ningham. 38 Ark. 572; Kirkpatrick v. Brown, 59 Ga. 450; Montague v. Weil, 30 La. Ann. 50; Koon v. Suodgrass, 8 W. Va. 320; Bonner v. Spring Co., 44 N. Y. Super. 454; Gallagher, in re, 16 Blatchf. 410; Betts v. Wurth, 32 N J. E. 82: Payne v. Payne, 5 Mo. App. 188; Rabun v. Pabun, 61 Ga. 647; Redman v. Graham, 80 N. C. 231; Siraplot v. Dubuque, 56 Iowa, 639; Rich V. Savage, 12 Neb. 413; Mc- Donough V. Ilanii'an, 7 111. App. 50; Lacoste"s Estate, Myr. Prob. (Cal.) 67; Garrett v. Mulligan, 10 Phila. 339; Quigley v. Comm'rs, 24 Kas. 293; Dillon V. Dillon, 60 Ga. 204: Robin- son V. Kitchin, 21 Beav. 365; Green V. Weaver, 1 Sim. 404; Williams v. Holmes, 1 Pennypacker, 441; Branch V. Jessup, 106 U. S. 468; Clermontels Estate, 1 Phila. 139; Whitney v. Rob inson, 53 Wis. 309; Goodman v. Win- ter, 64 Ala. 410; Downey v. O'Donnell, 82 111. 559; Welch v. Shearer, 93 111. 64; Talcott V. Brackett, 5 111. App. 60; Davis v. Williams, 49 Iowa, 83; Crequc v. Sears, 17 Hun, 123; Dolde V. U. S , 13 Cl. of Clms. 97; Neal v. Field, 68 Ga. 504; Love v. Rockwell, 1 Wis. 382; Tracy v. Cover, 28 Ohio St. 61 ; Cave v. Mills, 7 H. & N. 513; Bailey v. Stone, 41 How. Pr. 349; Glackin v. Zeller, 52 Barb. 147; Kirk V. Blasstieid, 6 T. & C. 509; Bradner V. Howard, 75 N. Y. 417; Robinson v. Bank, 18 Ga. 65; Ferguson v. Lau- drau, 5 Bush, 230; Dardin v. Harrill, 10 Lea, 421; Wright v. Langenour, 55 Cal. 280; Ryan v. Maxey, 43 Tex. 192; Cravens v. Booth, 8 Tex. 243; Grande V. Chaues, 15 Tex. 550; Power v. Thorp, 92 Pa. St. 346; Flucker's Suc- cession, 32 La. Ann. 292; Bxmtyn v. Holmes, 9 Lea, 319; Knaggs v. Mas- tin, 9 Kas. 532; Van Hasselt v. Sack. 13 Moo. P. C. C. 185; Bobbins v. Mylin, 34 K J. E. 205; Ireland v. Nichols, 46 111. 413; Shattuck v. Love- joy, 8 Gray, 204; Webster v. Nichols, 104 111. 160; Frick v. Trustees, 99 111. 167; Kennick v. Eggleston, 56 Iowa, 128; S. C, 41 Am. R. 90; Ry. Co. v. Ry. Co., 87 111. 317; Jeffries v. Clark, 23 Kans. 448; Payment v. Church, 38 Mich. 776; Robeit.son v. Bradford, 73 Ala. 116; Morey v. Pierce, 14111. App. 91; R. R. Co. V. Mead, 63 Cal. 112; Gill V. Russel, 26 Minn. 302; Apple- ton V. Ins. Co. 59 N. H. 541; S. C, 47 Am. R. 220 ; AVakefi(dd v. Ins. Co. 50 Wis. 532; Baird v. New York, 96 N. Y. 567; Brooks v. Brooks, 90 N. C. 142; Tunnel v. Burton, 4 Del. Ch. 382; Stevens v. Brown, 60 Iowa, 403; City Council v. Caulfield, 19 S. C. 201; Gilmore v. Devlin, 4 Me Arthur, 306; Folger V. Palmer, 35 I^a. Ann. 743; Plummer v. Bank, 90 Ind. 386; Genoa V. Van Alstyue, 108 111. 55 ; Manf'g Co. V. Funge, 109 U, S. 651; R. R. Co. V. R. R. Co., 19 F. R. 804; Land Co. V. Tiltou, 19 F. R. 73: McAlpine Y. Hedges, 21 F. R. 089 ; Norris v. Ins. Co., 51 Mich. 651; Lane v. Black, 21 W. Va. 617; Dennis v. Stoughton, 55 Vt. 371; Mackey v. Swartz, 60 Iowa, 710; Philleo v. Manf'g Co., 15 Neb. 625; Comstock v. Sanger, 51 Mich. 497; Weybrich v. Harris, 31 Kas. 92; Womble v. Leach, 83 N. C. 84; AVilson v. Hicks, 40 (Jiiio St. 418; Bailey v. Hewey, 135 iMass. 142; Per- kins V. Jones, 62 Iowa, 345; Nichols 1166 The Law of Estoppel. not " blow hot and cold " at the same time. And one of the most important applications of the rule is, where a party endeavors to establish a right or title in himself under one provision or implica- tion of a deed or other instrument by ignoring, or contradicting another provision or implication, which is destructive or fatally repugnant. Now, according to the reason of the rule, which applies. as well to deeds as to wills, a person cannot claim under the instrument without confirming it. lie must found his claim on the whole, and cannot adopt that feature or operation, which makes in his favor and at the same time repudiate, or contradict another feature or operation which is counter or adverse to it.' If a voidable contract, or other transaction is voluntarily acted on with a knowledge of all the facts, in the hope that it may turn out to the advantage of a party who might have avoided it, he cannot avoid it, when after abiding that event, it has turned out to his disadvantage.^ So an elector, who has himself been instru- mental in electing a candidate, will not be allowed afterwards to V. Gage, lOOreg. 82; Porter v. Worm- ser, 94 N. Y. 431; R. R. Co. v. Hitch- cock, 37 N. J. E. 549; Cranston v. Smith, 47 Mich. G47; Hahn v. Kelly, 62 Cal. 150; Dorris v. Smith, 7 Oreg. 267. ' Wright V. Rutter. 2 Ves. Jr. G73; Holt V. Rice, 54 N. H. 398; Hyde v. B:i!dwin, 17 Pick. 308; Moore v. Butier, 2Sch. & L. 249; Hapgood v. Haughtou, 22 Pick. 483; Mayuard v. Maynard, 4 Edw. Ch. 711; Hamblett V. Hamblett, 6 N. H. 383; Monison v. Bowman. 29 Cal. 337; Claggett v. Richards, 45 N. H. 303; Thompson V. Thompson, 19 Me. 235; Haven v. Foster, 9 Pick. 112; Crosby v. Chase, 17 Me. 869; Ladd v. Kenney, 2 N. H. 340; Smitii v. Smith, 14 Gray. 532; Waters v. Travis, 9 Johns. 464; Board V. Board, L. R. 9 Q. B. 48; Lawrence V. Ins. Co., 11 Johns. 241; The Water Witch, 1 Black, 494; Reed v. Dicker- man, 12 Pick. 146; Cowell v. Springs Co., 100 U. S. 55; Co. Litt. 145; Scholey v. Rew, 23 Wall. 331 ; Tuite V. Stevens, 98 Mass. 305; Penu v. Guggenheimer, 76 Va. 839; Gregory V. Gates, 30 Gratt. 83 ; Lee v. Lee, L. R. 4Ch. D. 175: Kellogg v. Turpin, 93 111. 265; Codrington v. Lindsay, L. R. 8 Ch. App. 578; Whipple v. Whitman, 13 R. L 513; Caullield v. Sullivan, 85 N. Y. 153; Aiusworth v. Miller, 20 Kas. 220; Swanson v. Parkington, 7 Heisk. 612; Ry. Co. v. Ry. Co., 87 111. 317; Emmons v. Mil- waukee, 32 Wis. 434; Sinclair v. Jack- son. 8 Cow 543; Jackson v. Ireland, 3 Wend. 99 ; Overbach v. Heermance, Hopk. 337; Hart v. Johnson, 6 Ohio, 87; May v. Tillman, 1 Mich. 262; Bank V. Bronson, 14 Mich. 361; Botsford v. Murphy, 47 Mich. 537; Jacobs v. Miller, 50 Mich. 126. « Ormes v. Beadel, 2 D. F. & J. 336: R. R. Co. v. Rowe, 24 Wend. 74; BIydenburgh v. Welch, 1 Bald. 331; Bunce v. Davenport, 3 Kej'es, 472; Collyer v. Thompson, 4 Mon. 81; De Armand v. Phillips, AYalk. Ch. 186; Edwards v. Rol)erts, 15 Miss. 544; Finley v. Lynch, 2 Bibb, 560; Bronson v. Wiman, 10 Barb. 406. Electioit. 1167 complain of the election of that candidate.' dpon similar prin- ciples it has been held, that a councillor who is instrumental in the election of a particular person as Reeve or Deputy Reeve, cannot afterwards be allowed to move against the person so elected Reeve or Deputy Reeve." § lOil. Where a party whose land is taken by a railroad com- pany, under the right of eminent domain, and in whose favor damages are assessed and deposited to his credit, who knows of irregularities in the proceeding, and receives the money without objection, and sees the company construct its road over his land, cannot thereafter maintain any proceedings on account of such irregularities, as by accepting the damages he waives all right to object to the proceedings. He cannot have the money and liti- gate with the company as to their right to occupy the land.^ So, where a party sells land and receives the purchase money there- for, and afterwards attaches the land in an action against a former grantee of his, under an unreco^'ded deed ; and the purchaser, from whom the consideration has been received, interpleads and claims title. The plaintiff is estopped from denying such title even by showing that such grantee had notice at the time of his purchase of the prior unrecorded deed.* So, where one who has contracted to complete a building with knowledge of a mortgage thereon, given for the purpose of obtaining money for that pur- pose, and who receives a portion of the money so raised, on his contract, is estopped from claiming a priority of lien as against such mortgage." So, where a party accepts an insurance policy with certain conditions incorporated therein, is estopped from denying their validity." An actual acceptance establishes a valid contract.' So, where two persons contract in view of an existing ■' Queen v. Watson. 1 U. C. L. .J. v. Blackberry, 29 111. 137; School 48; Queen v. Ponton, 2 U. C. P. R. Dist. v. Copelaud, 2 Gray, 411; Kile 18 ; Queen v. Parker, 2 U. C. C. P. 15; v. Yellowhead, 80 111. 208. Kelly V. Macarow. 14 U. 0. C. P. ■» Needham v. Clary, 62 111. 344. 457; Queen v. Bell, 1 U. C. L. J. N. » Wroten v. Armat, 31 Gratt. 228. S. 130; Regina v. Cusac, U. C. P. e Ilygum v. Ins. Co., 11 Iowa, 21. R. 303. ' Sliinley v. Houston, 1 N. Y. 261; 2 Queen v. Parker, 2 U. C. C. Stone v. Browning, 68 N.Y. 598; Caul- P. 15. kins V. Ilellman, 47 N. Y. 449; Fitz- * Hitchcock V. R. R. Co., 25 Conn. simmons v. Woodruff, 74 N. Y. 621; 516; Burns v. R. R. Co., 9 Wis. 450; Weist v. Grant, 71 Pa. St. 95. Burnes v. Dodge, 9 Wis. 458; Town 1168 The Law of Estoppel. ordinance on the subject, which' both recognize as valid and bind- ing, neither can afterwards question its validity. So, where a party executes a chattel mortgage on ]>roperty, which like engines, machinery, &c., woukl become part of the realty by being annexed thereto ; by thus treating it as personal property, he is precluded fi'om thereafter claiming it to be realty as against the parties who have acted on such recognition.' So a party who induces the owner of land to convey the same in trust, by threatening to have a conservator of the grantor appointed, and instituting proceedings to have the grantor adjudged insane, and dismisses such proceed- ing nj)on the executing of such deed, will be estopped from after- wards avoiding the deed on the ground that its execution was pro- cured by duress.' § 1012. Wliere a man has enjoyed a homestead and an exemp- tion of personalty for nine or ten years, he, and a wife whom he subsequently married, are estopped from claiming that his application failed to set forth jurisdictional facts, in order to obtain a second homestead and exemption." In an action by A. against B. to recover an alleged debt, A.'s allegation in previous suits that the consideration of the debt inured to the benefit of C, estops A. from alleging and proving that it inured to the benefit of B.^ By an agreement for composition, the bankrupt was to assign all his interest in certain lands to A., a mortgagee thereof, who, by the understanding of all parties, was to ]iay off an earlier mortgage on the lands, which was regarded as a secured debt by all except A., who knew that it was invalid as to a part of the debt it v.-as given to secure, and intended to contest it, but who gave no information of such knowledge and intention to the parties interested : lleld^ that A. was estopped from denying his obligation to pay off said mortgage." One having a right to ' Moale V. Baltimore, 06 Md. 496; rane v. Flint, .57 X. H. 514; Blanche White v. Smith, 37 Mich. 291. v. Rogers, 26 N. J. E. 563. See llerm. ^ Test V. Robinson, 20 Ind. 251 ; Real Estate iMoi tgages. § 390, el seq. Salloii V. Jones, 37 111. 95; Eaves v. for additional cases on this subject. Esfes, 10 Kas. 314; Gallagher, in re, » Brower v. Callender, 105 111. 88. 16 Blatch. 410 ; Haven v. Emory, 33 * Torrance v. Bt)yd, 63 Ga. 22. N. H. 66; Dame v. Dame. 38 N. H. ^ Dunham v. Williams, 32 La. Ann. 429; Hunt V. Iron Co., 97 Mass. 279; 962. Wagner v. Railroad. 22 Ohio St. 563; ^ Bank v. Hammond, 51 Vt. 203. Hines v. Ament, 43 Mo. 298; Coch- Electio]^. 1169 redeem, and assuring a proposed purchaser of the fee that he will not exercise it, whereby the purchaser is induced to buy, is estop- ped from afterwards enforcing it against the purchaser or his assignees.' So also is one purchasing the right to redeem, estop- ped, if he has notice of the facts. Where an attaching creditor lias induced another creditor to levy an attachment which after- wards became a prior lien by reason of the discontinuance of the first suit, the former is estopped, in so far as the value of the property may be needed for satisfying the latter claim, from asserting that the ownership of the property was in himself.^ A liusband made oath that his deceased wife left an estate, was appointed her administrator, and filed an account in which certain money was returned as her whole estate. He was estopped, as against a creditor of the estate, to claim the money as his own property.' Where the vendor tenders a deed to tlie vendee, and the latter makes no objection to it, but places his refusal to receive it on the sole ground that he has not the money to pay for the property, he cannot, when sued on his agreement to purchase, defeat the action by showing that the land was not free fi'om incumbrance." Where a grantee, as additional security to D., the grantor, executed a bond to make $4,000 worth of improvements within a specified time, but was afterwards advised by D. not to make them becai^se he could never pay for the land ; D. was estopped to maintain suit on the bond/ A white man married a woman without any license or the usual ceremony, and reared a family of children by her (although possibly, there was negro blood in hei'), he was estopped to deny her right to maintain a bill for pentianent alimony for herself and minor children ; and this, where he had procured an act of the legislature declaring her entitled to citizenship.^ A party who assumes to act as a broker or agent, is estopped from denying it as against the party employing him.' § 1043. Where a party to a contract, which might be impugned on the ground of fraud, knowing of the fraud, nevertheless elects ' Southard v. Sutton. 68 Me. 575. * Ashbaugh v. Murphy, 90 111. 183. 2 Vannetter v. Grossman, 42 Mich. « Davis v. Williams, 49 Iowa, 83. 465. « Dillon v. Dillon. GO Ga. 204. 3 Garvey v. McCue, 3 Redf. (N. Y.) ' Robinson v. Kitchin, 21 Beav. 313. 365; Green v. Weaver, 1 Sim. 404. Vol. I. — 74 1170 The Law of Estoppel. to treat the transaction as a binding contract, lie thereby loses his right of rescinding it ; for fraud only gives a right to avoid or rescind a contract. A party cannot retain the ]>enelit of a trans- action and at the same time repudiate it as null and void.' A person who is induced to part witli his property on a fraudulent contract, may, on discovering the fraud, avoid the contract and claim a return for what he had advanced upon it. Fraud destroys the contract ah initio, and a fraudulent purchaser has no title. But if the party defrauded would disaffirm the contract he must do so at the earliest practicable moment after discovery of the cheat. That is the time to make his election and it must be done promptly and unreservedly. He must not hesitate ; nor can he be allowed to deal with the subject matter of the contract as his own and afterwards rescind it.^ Thus, where a party liaving full knowledge of the facts, nevertheless enters into new stipulations with his vendor, by which he obtains an extension of time for the payment of the purchase money, he thereby ratifies the trans- action, waives the objection, and cannot afterwards take adrantage of it when sued on the contract.' So, where a party had the use of property for nearly a year without making any claim for damages for breach of warranty and arranged for securing his notes given for the purchase money he was estopped from setting up any claims for damages.* So, where a party after discovering that a sale of goods which he had nuide was obtained by fraud, brought assumpsit for the price and attached the goods in his hands. Soon after another creditor of the purchaser attached the same ffoods ; after both suits had been in court fur more than a 1 Jcffei-s V. Forbes, 28 Kas. 174; v. Wiman, 10 Barb. 406; Frank v. Tisdale v. Buckmore, 33 Me. 4G1; Holhuider, 85 La. Ann. 5«3. Bisby V. Ham. 47 JNle. 543; Evans v. ^ Hall v. Fullerton, 69 111. 448; Gale, 17 N. H. 573: Nichols v. ]\Iasou v. Bovet, 1 Deuio, 69; Byrue v. Michaels, 23 N. Y. 264; Cobb v. Hat- Bank, 31 La. Ann. 81; Willaiier v. field, 46 N. Y. 533; .McDonald V. Neil- Fellows, 48 Wis. 105; Taynion v. SOD, 2 Cow. 139; Ford v. Harrington, Mitchell, 1 Md. Ch. 496; Bower v. 16 N. Y. 285; Bamler v. Fults, 15 Metz, 54 Iowa, 394; Cates v. Bales, 78 Kas. 323; Beekman v. Fletcher, 48 Ind. 285; Dill v. Camp, 22 Ala. 249; Mich. 535; Coffey v. Ins. Co., 10 Bis. Clement v. Smith. 9 Gill, 156; Me- 3*54; Chaffee v. K. R. Co.. 55 Vt. 110; Culloch v. Scott, 13 B. Mon. 172. Schaffer v. Dietz, 83 N. Y. 300; Crus- ^ Thweatt v. McLcod, 56 Ala. 375. selle V. RcinhardI, 68 Ga. 619: Steven- * Abbott v. Johnson, 47 Wis. 239. son V. Nevvuham, 13 C. B. 302 ; Bronson Electiott. 1171 year the vendor became satisfied that his suit could not be main- tained because prematurely brought, and withdrew it. He then demanded the goods of the other creditor and of the ofiicer who held them under the other attachment, claiming to have rescinded the sale on account of the fraud, and subsequently brought trover for them against the creditor. The vendor by bringing and prosecuting for so long a time his suit for the price of the goods, had affirmed the sale, and the mere delay, after .knowledge of the fraud was sufficient to destroy the vendor's right to rescind the contract of sale.' § 1044. If a party desires to rescind on the ground of fraud or mistake, he must, upon the discovery of the facts, at once announce his purpose and adhere to it ; if he be silent, and con- tinue to treat the property as his own he waives the objection, and will be as conclusively bound by the contract as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vascillation are fatal to the right which had before subsisted.^ Thus, the maker of a note given to secure the purchase money for land, cannot defend a suit on the note on the ground of a failure of title, and still retain the land and enjoy the profits.^ So a party cannot hold money as county funds and refuse to account for it to the county authorities.^ So, where a party has collected, on behalf of a municipal corporation, a tax, levied on goods consigned to him, is estopped when sued by the corporation for the amount of the tax, from setting up want of authority in the corporation to impose the tax. So a widow who has voluntarily ratified a mortgage debt by paying interest thereon, is estopped from asserting that the preliminary examina- ' Bulklej' V. IVIorgan, 46 Conn. 393. 83 N. Y. 300; Humiston v. Trustees, 'Grymes v. Sanders. 93 U. S. 55; 7 111. App. 122; Field v. Bland, 59 Thomas v. Bartow, 48 N. Y. 200; How. Pr. 85; Wroten v. Armat, 31 Flint V. Wood, 9 Hare, 622; Jennings Gratt. 228; Frank v. Hollender, 35 V. Broughton, 5 De G. M. & G. 139; La. Ann. 582. Lloyd V. Brewster, 4 Paige, 537; R. ^ ;jj(.Daniel v. Bryan, 8 111. App. R. Co. V. Rowe, 24 Wend. 74; Mintiun 273; Wyatt v. Garlington, 56 Ala. 576. V. Main, 7 N. Y. 220; Campbell v. * Fleischer v. Klumb, 56 Wis. 439; Flemming, 1 A. & E. 41; Duncan v. Fuller v. Atwood, 13 R. L 310. R. R. Co.. 5 R. I. 130; Hunt v. Hard- = Trustees v. Sterrett, 31 La. Ann. wick, 68 Ga. 100; Schieffer v. Dietz, 719. 1172 The Law of Estoppel. tion required by statute was not made.' So, in an action on notes given in settlement of a suit, the maker of the notes cannot set uj> that the suit was not based on a legal cause of action.'"' So one who receives possession of land from a married woman under an executory contract of purchase, and enjoys it for years, will not be lieard in equity to plead that the contract was not binding upon her, or to refuse payment upon her tender of a sufficient deed.' These instances will serve in a measure to show the application of this just and equitable doctrine. § 1045, If a pirty having the right to repudiate or affirm a transaction, affirms it, he cannot afterwards resort to his right of repudiation. Thus, where the assignees of a bankrupt brought trover for chattels of the bankrupt, of which the defendant had taken possession. The chattels were part of the bankrupt's stock in trade, which, on the bankrupt's absconding, the defendant had taken possession of and carrie Camp V. Snott, 47 Conn. 366. v. Lumley, 5 El. «& Bl. 648; and the " Winterink v. Maynard, 47 Iowa, opinion of the judges in the .same case 366. in the House of Lords, 6 H. L. Case, 3 Roe V. Harrison, 2 T. R. 425; Doe 672. V. Birch, 1 M. & W. 402. ^ Doe v. Meux, 4 Barn. & C. 606; * Goodright v. Davis, Cowp. 803; Doe v. Birch, 1 M. & W. 402; Doe v. Browning's Case, Plowd. 133; Roe v. Lewis, 5 Ad. & El. 277; Dendy v. Harrison, 2 T. R. 425; Doe v. Recs, 4 Nicholl, 4 C. B. (N. S.) 370; Ward v. Bing. K C. 384; Walrond v. Haw- Day, 4 B. & S. 337; affirmed, 5 B. & kins, L. R. 10 C. P. 342; and as to S. 359; Pellatt v. Boosey, 31 L. J. C. the effect of notice of one breach of P. 281; a notice to repair generally, covenant where several of the same " in accordance with the covenants kind have been committed, see Croft in a lease, was held, no waiver of for- Election. 1175 § 1047. The mere receipt of subsequent rent does not, of it own proper force, operate as a waiver of the forfeiture. It is only evidence of the election of the lessor to retain the reversion and its incidents, instead of the possession of the land ; and, as an election once made and expressed cannot be retracted {quod semel placuit in electionibus mnplius displicere non potest) /' the I'eceipt of subsequent rent, as such, without more, binds the landlord by proving an election. So the acceptance of rent from an assignee or purchaser of the lessee, will preclude the lessor from insisting upon a forfeiture on the ground that the assign- ment was made without his written assent, as provided in the lease.' § 1048. Where a tenant holds over after the end of the term, or incurs a forfeiture by committing a breach of condition during its continuance, the landlord may treat him as a trespasser, or as being rightfully in possession, but must choose between the two, and cannot enter and bring ejectment after the receipt of subse- quent rent, nor enforce the payment of rent after entry and bringing ejectment.' As the election when once made will be final, the institution of a suit for rent, will, though nothing is recovered, operate as an estoppel to a subsequent ejectment.* While issuing a writ or serving a declaration in ejectment will preclude the right to sue for subsequently accruing rent.* Where a tenant holds under a written agreement, " for five years and as much longer as he desires," at a fixed rent, and performs all that is required of him by the terms of the lease — although the five years have expired — and the lessor has given the lessee notice to quit. As between the parties the right of occupation by the lessee continues as long as he fulfills its conditions, and can not be defeated at the option of the lessor. The lessor as estopped by the receipt of rent, and his own written agreement feiture for non-repair. Few v. Per- B. & S. 337; Grimwood v. Moss, L. kins, L. R. 2 Ex. 93. In Ward v. R. 7 C. P. 360. Day, 4 B. & S. 337; the forfeiture ^ Webster v. Nichols, 104 111. 160. of a grant was held to be waived by ' Hemphill v. Flynn, 2 Pa. St. 144; the grantor having in negotiations for Stuyvesant v. Davis. 9 Paige, 427. a rencMal of it, treated it as subsist- * Dendy v. Nichol, 4 C. B. (N. S.) ing. 376. > Co. Litt. 146. a. ; Ward v. Day, 4 * Jones v. Carter, 15 M. & W. 718. 1176 The Law ok Estoppel. from asserting tliat the lessee's possession is nnla-wfnl.' He can- not at the same time claim that tlie lease is void for one purpose, and valid for another." So one in possession under a lease 'for three years, with a privilege of five years upon the same terms, by continuing to occupy after the expiration of three years, elects to hold for the full term of five years.' § 1049. A person shall not be allowed at once to benefit b}' and repudiate an instrument, but if he chooses to take tlie benefit M'hich it confei's, he shall likewise take the obligation or bear the omis which it imposes ; no person can accept and reject the same instrument. If a testator give his estate to A., and give A.'s estate to B., courts of equity hold it to be against conscience tliat A. should take the estate bequeathed to him, and at the same time refuse to give effect to the implied conditions contained in the will of tlie testator. The court will not permit him to take that which cannot be his but by virtue of the disposition of the will, and at the same time to keep what, by the same will, is given, or intended to be given, to another person. It is contrary to the established principles of equity that he should enjoy the benefit, while he rejects the condition of tlie gift.* Where, there- fore, an express condition is annexed to a bequest, the legatee cannot accept and reject the will containing it. If, for example, the testator possessing a landed estate of small value, and a large personal estate, bequeaths by his will the personal estate to the heir, M'ho was not otherwise entitled to it, upon condition that he shall give the land to another, the heir mnst either compl}^ with the condition, or forego the benefit intended for him.^ Although ' Swcetzerv. McKenney, 60Me. 225. Arney, 1 D. & B. Eq. 376; KeiT v. « Sands V. Hugbes, 53 N. Y. 287. AVaucbopo. 1 Bligb. 21; Upsbaw v. 3 Montgomery v. Commissioners, 76 Upsbaw, 2 H. & M. 381 ; Kinniard v. Ind. 3G2; S. C. 40 Am. It. 250. Williams, 8 Leigh, 400 ; Brown v. * Glenn v. Clark, 21 Gratt. 35; Kicketts, 3 Johns. Ch. 553; Allen Benedict v. :M(mtgomery, 7 W. & S. v. Getz. 2 P. & W. 311; Preston v. 238; Sloan v. Holcomb, 29 Mich. 153; Jones, 9 Pa. St. 457; Hall v. Hall, 1 Moore v. Bowman, 29 Cal. 337; Blake Bland. 130; Craig v. Craig, 7 Dana, V. Bunbury, 4 Br. Ch. 25; Boughton 1; Cogdell v. Widow, 3 Dess. 346; V. Boughton, 2 Ves. 12; Whistle v. McGinnis v. McGinnis, 1 Kelly, 496. Webster, 2 Ves. Jr. 367; McElfresh v. « Emmons v. Jlilwaukee, 32 Wis. Schley, 1 Gill, 181; Van Duyne v. 434: Swanson v. Tarkington, 7 Heisk Van Duyne, 17 ,N. J. E. 49; Field 612; State v. Lo:iger, 29 Wis. 68; v. Eaton, 1 Dev. Eq. 283; Wilson v. Williams v. Giileon, 7 Heisk. 817. Election. 1177 a widow may not be concluded by an election made unadvisedly, or in ignorance of facts calculated to influence her choice, she cannot treat such election as a nullity, nor avoid it, except upon the restoration of what she has received under it. The widow's right of dower is superior to the claims of creditors, devisees, or legatees ; but, when she elects to accept the testamentary provis- ion made for her in lieu of dower, and it becomes necessary to sell lands for the payment of debts, her rights must yield to the claim of creditors, though superior to that of legatees or devisees.' § 1050. He who accepts a benefit under a deed, a will or other instrument, must confirm the whole instrument, conforming to all its provisions and renouncing every right inconsistent with them." The doctrine of election is founded on the same reasons and governed by the same rules when applied to a widow claim- ing dower as to any other case. One entitled to a benefit under an instrument, whether it be a will, or any conveyance or con- tract, must, if he claims the benefit of such instrument, abandon every right, the assertion whereof would defeat, even partially, any of the provisions of that instrument. A party cannot occupy inconsistent positions, but will be confined to his election.' ' Steele V. Steele. 64 'Ala. 438. * Walpole V. Conway, Barn. Ch. ]59; Kirkham v Smith, 1 Ves. 258; Frank v. Standish, 1 Bro. G. C. 588; Swan V. Holmes, 19 Beav, 471; Win- tour V. C if ton, 21 Beav. 447; Noys v. Monlauiit, 2 Vern. 581; Cowper v. Scott. :i P. Williams, 119; Streatfield V. Stn-atfield, Cas. T. Tal. 176; IJoufrliton V. Coughton, 2 Ves. 12 ; ViDareal v. Galway, Amb. 682; Rob- erts V. King.^ley, 1 Ves. 238; Bigland V. Huddieston, 3 Bro. C. C. 285; Al- 'eu V. PouUon, 1 Ves. 121; Finch v. Finch, 4 Bro. C. C. 38; S. C, 1 Ves. .Jr. 534; McNamara v. Jones, 1 Bro. C. C. 481 ; Broome v. Monck, 10 Ves. 609; Jiirmingbam v. Kirwan, 2 Sch. & L. 444; Blake v. Buubary, 4 Bro. C. C. 2-i; S. C. 1 Ves. Jr. 514;' Ileazle v. Fitzmaurice. ]3 li. Ch. 481; Dillon v. J'arker, 1 Sw. 359: Wilson v. Town- send, 2 V'es. Jr. 093; Crossby v. Lord Ashtown, 10 Ir. Ch. 219; Penn v. Guggenheimer, 76 Va. 839; Thelluson V. Woodford, 13 Ves. 219; Watson v. Watson. 128 Mass. 152 ; Picket v. Bank, 32 Ark. 346; Jacobs v. Miller, 51 Mich. 119 ; Wise v. Rhodes, 84 Pa. St. 402; Zahrt, in re, 94 N. Y. 605; Benson, in re, 96 K Y. 499; S. C, 48 Am. R. 646; Cory v. Cory, 37 N. J. E. 198. ^ Adams v. Agnew, 15 S. C. 41, Wyatt V. Garlington, 56 Ala. 576 Rodermund v. Clark, 46 N. Y. 354 Colclough V. Johnson, 34 Ark. 312 Hyde v. Baldwin, 17 Pick. 303; Miller V. Ayers, 59 Iowa, 424; Dewey v. Bell. 5 Allen, 165; Steele v. Steele, 64 Ala. 438; Hooper v. Hubbard, 7 Mass. 177; Feeter v. Webber, 44 N. Y. Super. 255; Ry. Co. v. Ry. Co., 87 111. 317; ^Vright v. Wright, 72 N. Y. 149; Pickett V. Bank, 32 Ark. 346. 1178 The Law of Estoppel. Where a widow's taking dower would interfere with the provis- ions of the will, she must make her election.' AVhere a widow is put upon her election between dower and legacies in lieu thereof, a suit for legacies is a substantial election." A slight expression of intent will be considered sufficient to show an election. No positive act is required therefor.' Tlie election is conclusive, and cannot be set aside.* The right of a widow to elect to take under her husband's will must be exercised by her in person, either by matter of record in a proper court, or by acts creating an estoppel of her right to claim under the law.* Where there is a plurality of rights, the party from whom one is derived intending that both shall not be enjoyed, the doc- trine of election is enforced by the court. Therefore, where a widow sues for a tract of land, which was hers before marriage, but disposed of by her husband's will, and sold to defendant by the executor ; and by the same will devises and bequests were made to her, which she accepted and enjoyed for two years, and dower under the will was allotted to her, she is not entitled to recover, first, by reason of the estoppel arising out of her elec- tion, and secondly, of that growing out of the judgment of the court in the dower proceedings." § 1051. Where a party has two or ijiore remedies for the same wrong, in which the measure of damages might be different, electing one and pursuing it to judgment is a bar lu any other remedy.' Thus, where a party has his election to proceed at law ' Rutherford v. Mayor. 76 Va. 117; • 97 Mass. 15; Beall v. Pearre, 12 Md. Dixon V. McCue, 14Grat. 540; Gib- 566; Bunker v. Tufts, 57 Me. 417; sou V. Gibson, 17 E. L. & E. R. 676. Bennett v. Hood, 1 Allen, 47; Swecl ■^ Johnson v. Duncan, 67 Ala. 61. v. Brackley, 53 Me. 346; Smith v. 3 Prentice v. Jolnison, 79 N. Y. 478. Way, 9 Allen. 472; Ilolbrook v. Foos, « Harvey v. Ashley, 3 Atk. 607; 27 Me. 441 ; Warren v. Cumniing;;, 6 Butricke v. Broadhurst, 3 Bro. C. C. (Xi.sh. 103; Norton v. Dougherty, 3 88; Northumberland v. Aylesford, Gray. 372; O'Donald v. Constant, 82 Amb. 540; S C, 1 Eden, 489; Strat- Ind. 212; Nield v. Burton. 49 Mich, ford V. Powell. 1 B. & B. 23. 53; Nichols v. Gage. 10 Oreg. 82; ^ Millikin v. Welliver, 37 Ohio St. Wells v. Robinson, 13 Cal. 141 ; Hahu 460; Ragsdalev. Parish, 74 Ind. 491. v. Kelly, 62 Cal. 155; Buchanan 6 Signion v. Havvn, 87 N. C. 450. v. Dorsey, 11 Neb. 373; Milroy v. ' Phillips V. Myers, 55 Iowa, 255; Mining Co., 43 Mich. 231 ; Haralson Finnv. Peck, 47 Mich. 248; Walsh v. v. George, 56 Ala. 295; Perkins v. Canal Co., 59 Md. 423; Ware v. Per- Jones, 62 Iowa. 395 ; Craigin v. rival, 61 Me. 391; Goodricli v. Yah', Lnvcll. 109 U. S. ID-J : Harris v. Election. 1179 or equity, if he proceeds at law he is estopped from proceeding in equity.' So, a party waives a tort and conversion by suing in assumpsit ; it is an election which estops the plaintiff from bring- ing an action of trover ; the fact that tiie first suit was brought in a court without jurisdiction does not destroy the election.'' So a party who brings an attachment suit against a debtor, affirms thcsale, and cannot maintain an action to recover the goods.' So, where a party, in an action of ejectment, elects to institute proceedings under a statute, as under the occupying claimant law, he is estopped from seeking relief by proceedings in error against the judgment in the former action.* So, where under a statute authority is given to bring suit for labor against the corporation, alone or jointly with one or more stockholders ; where a suitor has elected to sue the corporation alone, and has recovered judg- ment, he cannot afterwards bring his action on the same debt, or upon a claim including it, against the corporation and stockhold- ers jointly, or conversely.^ So, where a party prevents a con- firmation of a sale, and obtains an extension of time for ])ayment of the purchase money, he is estopped from afterwards raising the question of the payment of the purchase money, as required by the terms of the decree under which the sale was made." So, where a party claims a contract has been rescinded, and a judg- ment rendered against the other party to it upon a quantum merxdt^ he is estopped, in a subsequent litigation with the san»e party, from claiming the right to carry out the contract ; the record in the former action being admissible to prove the estop- pel.' This principle is one of great antiquity. " But of civil actious which are for a thing, some are allowed in regard to possession, others in regard to the property. And if upon the same subject several actions are competent to one claim- ant, as an assize of novel disseysine, an assise of the death of an ancestor, concerning the possession, and a writ of entry, and a writ of right as regards the property, he cannot make use of all Brown, 9B N. Y. 390; R R. Co. v. 'O'Donald v. Constant, 82 Ind. Bank, 102 U. S. 14. 212. 'Halm V. Kelly, 62 Cal. 155; ■» Buchanan v. Dorscy, 11 Neb. 373. Wells V.Robinson, 13 Cal. 141 ; Craus- * Milroy v. Mining Co., 43 Mich, ton V. Smith, 47 Mich. 647. 231. » Nield V. Burton, 49 Mich. 53. « Haralson v. George, 56 Ala. 295. ' Martin v. Boyce, 49 Mich. 122. 1180 TiiF Law of Estoppel. at one and the same time, but he must choose one at his pleasure ; he sliall never have recourse to the others whilst that is ])ending, but if he sliall have recourse to another, his claim on the other shall not be entertained. If a person has abandoned one form of action after electing it, once extinguished, it never revives, except where there is a defect in the wn-it." And the doc- trine was the same in the civil law thus : " Ctim autem actlone in, rem qids semel recesscrlt., vel ah actione se re- traxerit, vel judicium contrariuin hahuerit, nunqua ad eandem redire jpoterit^ cum semel actio extincta non reviviscit. Si autem ex quacunque causa d hrevi se retraxerat pro aliquo defectu, cfcc.cfec, non ah actione^ aliuderit. Actione aute ceviliu^ q sunt in re, alicB datoe sunt sxip ipsa possessionem alice peditce super ipsa prietate. Et si super eadem re uni p>ctenti competdt plures aciiones^ sicut assisa nov(B disseysince mortis antecessoris super possessione cfi hreve de ingressu, et hreve de recto super proprie- iate. simrd (& semel omnihus nti non poterit, sed unam, elegat qua voluerit <& una electa nunq hdbehit regressxim ad alias, pendente ilia q si ad aliain recurrat, impetratio de secunda nonvalebit. § 1052, If a party be induced to purchase an article by fraud- ulent misrepresentations of the seller respecting it, and after- ward discovering the fraud, continue to deal with the article as his own, he cannot recover the money paid from the seller; nor does there seem anj' authority for saying that a party must, in such a case, know all the incidents of a fraud before he deprives hiiKself of the right of rescinding. Where an agreement has been procured by fraud, the party defrauded may at his election treat it as void, but he must make his election within a reason- able time.' The party guilty of the fraud has no such election. Preltymaa v. Supervisors, 19 111. Shafer, 19 Tnd. 165; Sicvekiug v. 406; Gilbert v. Hunnewell, 12 Heisk. Lilzler, 13 Ind. 13; Fitch v. Aiclii- 289; Couseqna v. Fauuing, 3 Johns. bald, 29 N. J. 160; R. R. v..R. R., Ch. 587; Fisher v. Merwin, 1 Duly, 11 C. B. 803; PilbroTv^ v. R. R., 5 C. 2:U; Luud v. Bank, S7 Barb. 129; B. 453; Bio-isou v. Wiraan, 10 Baib. Vv'eisl V. Grant, 71 Pa. St. 95; Rogers 40G; Masson v. Bovet, 1 Denio, 14; V. lliggins, 57 111. 244; Shindler v. Parj^ons v. Hughes, 9 Paige, 591; Houston, IN. Y. 261; Stone V, Brown- Dill v. Camp, 22 Ala. 249; Clement ing, 68 N. Y. 598; Caulkins v. Hell- v. Smith, 9 Gill, 156; Edwards v. man, 47N. Y. 440; Fitzsimmons v. Roljerts, 15 3Iiss. 547; McCulloch Woodrufl, 74 N. Y. 621; Dynes v. v. Scott, 13 B. Mon. 172; Grimes v. Election. 1181 So a party ■wlio accepts part payment of the purchase money or brings an action to recover the proceeds of a contract or sale, affirms its validity, and cannot thereafter be permitted to ques- tion its force and effect."' So a party having taken pay for an article as his sole property, thereby impliedly warrants such title, and is estopped to show a different one.' So, where exempt property was wrongfully sold, by an administrator, it was com- petent for the widow to ratify the sale, which she did, by bring- ing suit on the note, and that a recovery upon the note would vest the property in the purchaser, and estop her from recovering the property from him.' So a surety on a replevin bond, who after judgment against him, takes the property on a mortgage, and delivers it in satisfaction of the judgment, gives up his claim as mortgagee.* So, where the owner of property, pur- chases it at a tax sale and assigns the certificate for value, he cannot deny the assignee's title.' Money paid under a contract which the payor might have resistdd as a forfeiture, is presumed to have been paid, because the party elected to waive the forfeit- ture.'"' Thus, where a party voluntarily pays a disputed claim, pending litigation, he is estopped to recover the money, even though the suit is decided in his favor." So a party who has Saundeis, 93 U. S. Co; Taymon v. 495; Flannigan v. Turner, 1 Black, Milcbell, 1 Md. Ch. 496; Sledmau v. 490; Waterwitch, The, 1 Black, 494; Boone, 49 Ind. 169; Krutz v. Craig, Southard v. Porr}^. 21 Iowa, 488; Far- 5o lud. 561; Moon v. Bauni, 58 lud. row v. Bragg, 30 Ala. 261; Dalton v. 194; Hiiies v. Laiigley, 85 Ind. 77; Whittem, 3 Q. B. 961; Wilkinson V. Bush V. Sherman, 80 111. 160; Bristol Mosely. 30 Ala. 562; Kellogg v. Tur- V. Gridley, 28 Conn. 201; Beelem v. pie, 93 111. 265: Whipple v. Whitman, Burkholder, 69 Pa. St. 249; Summers 13 R. I. 512. V. Kichie, 30 Pa. St. 147; Seylar v. ^ Starr v. Anderson, 19 Conn. 338. Car.son, 69 Pa. St. 81; Clarke V. Dick- ^Johnson v. Perkins, 57 Tenn. inson, 1 E. B. & E. 148; Downer v. 367. Smith, 32 Vt. 1; Clark v. Neufville, " Rich v. Savage, 12 Neb. 413. 46 Ga. 201; Barton v. Simons, 14 ^ Kinsworthy v. Mitchell, 21 Ark. Ind. 49. 145. ' Ish V. Crane, 8 Ohio St. 520; Mor- « Gist v. Smith, 78 Ky. 367; Rump ris V. Hall, 41 Ala. 510; Smith v. v. Schwartz, 56 Iowa. 611; Heath v. Shely, 12 Wall. 358; Phillips v. Rog- West, 68 Ind. 548; Dawson v. Mann, ers, 12 Met. 405; Breeding v. Stamper, 49 Iowa, 596; Taylor v. Prestidge, 33 18 B. Mon. 175; Sherman v. McKeon, La. An. 41; Goeting v. Outh(j^use, 95 38 N. Y. 266; Wood v. Seely, 32 N. 111. 346. Y. 105; Rcqiia v. Holmes, 26 N. Y. ' Dawson v. Mann, 49 Iowa. 596; 338 ; Horton v. Davis, 26 N. Y Clark v. Everett, 2 Grant Cas. 416. 1182 The Law of Estoppel. made arrangements to borrow money, and has given his collater- als as securitj, and has them returned to him without protest or reservation, w.iives liis claim for damages for breach of contract.' Thus A., after his wife's death, was unable to iind liis l)ank book which had been in her charge. Ho at once notitied tlie cashier not to pay out any of his money there deposited. The cashier told him that his wife had made deposits in her own name, and advised him to procure some one to 'act as administrator of his wife's estate. A. accordingly procured B. to act as administrator, and upon B.'s demand, the bank paid to him the whole sum standing to the credit of his wife. Subsequently, A., without w\aiting for accounting by B., brought an action against the bank to recover the amount paid out to the administrator ; the money having been paid to B., as administrator, with the consent and by the procurement of the plaintiff, the latter was estopped from setting up any claim against the bank, and was relegated to the position of a creditor of his wife's estate.' § 1053. Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from det'' Draper v. Draper, 5 Harring. 358. V. Lefi, 60 Iowa, 168. 1190 The Law of Estoppel. irregular.* Nor can he object to a want of appraisement when he refuses to choose an appraiser, and tells the officer that there is no appraisement necessary.* Where a party uses property as her own, afterwards marries and treats the property as her husband's, she cannot object to its being taken for her husband's debts ;* nor can a debtor set up an outstanding title to defeat that of the purchaser.* A creditor who has a levy and sale set aside on the ground that the debtor has no title to the property, cannot claim it thereafter by virtue of such seizure and sale ;^ nor can a pur- chaser question the validity of the decree," or quash for irregu- larity of the sale,'' or failing to object to the confirmation of the gale by the court, cannot complain of the sale nor resist payment of the purchase money/ nor deny the validity of an incumbrance if the sale is made subject to it ;" or where a purchaser is informed, by the attorney of a party interested, that the prop- erty will be sold free from such party's claims, he cannot after- wards levy on the property, and the officer levying is a trespasser.'" But where the writ is void, and confers no power whatever upon the officer, there is no estop))el." Filing a bill of injunction waives any irregularity.'^ Where a vendor selling property brings suit to recover the purchase money, and recovers a judg- ment for the amount due, issues execution, and causes a levy ;ind sale to be made of the property, the officer sells it free from uny claim of his for the purchase money, he elects to sell just such a ^ Catlin V. Mercliants' Bank, 30 Vt. Hubbert v. McCullum, 6 Ala. 221 ; 572; Manner v. Coon, 16 Wis. 465; Ilaily v. Cuney, 3 Strobh. 49; Janson Gillett V. Edgar, 22 Iowa, 293. v. Tudor, 3 B. Monr. 355; Miller v. ^Desplate v. St. Martin, 17 La. Wilson, 32 Md. 297; McKnigbt v. Ann. 91. Gordon, 13 Rich. Eq. 222. 3 Quick V. Staines, 1 B. & B. 263. ^ Bacon v. Kimmell, 14 Mich. 201. * Strickey v. Crosswell, 12 Rich. Eq. « Howe v. Whited, 21 La. Ann. 495; 222; Sumner v. Palmer, 10 Rich. L. Thomas v. McKay, 5 Bush, 475. 88; Dunlapv. Cook. 18 Pa. St. 404; '' McKinneys v. Scott, 1 Bibb, 155. Masscy v. Thompson, 2 N. & Mc. '^ Huber v. Armstrong. 7 Bush, 590; I05;llarrisv. Doe, 3 lud. 494; Richards Lassell v. Powell, 7 Coldw. 277. V. Alden, 1 Grant C. 347; Jackson v. » Ilorton v. Davis, 26 K Y. 495. Bush, 10 Johns. 223, ONeilv. Duncan, '" McElrath v. Kintzing, 5 Pa. St. 4 McCord, 246; Cooper v. Gal- 336. brailh, 3 Wash. 500; McDonald v. " Bennett v. Gamble, 1 Tex. 124; Badger, 23 Cal. 399; Farnum v. Perry, Howe v. Blandin, 21 Vt. 375; Gohegan 43 Vt. 473; Hale v. Miller. 5 Vt. 211; v. Ditto. 2 Mete. (Ky.) 483. Suavely v Waguer, 8 Pa. St. 275, ''^ Overton v. Perkins, 10 Yerg. 328. Ratification. 1191 title as liis purchaser would have obtained from him had he com- plied with his contract of purchase. Having thus made his election to sell the property, he is bound by it.' § 1060. A judgment creditor who, with fall knowledge of the facts of the case, receives and appropriates to his own use the avails of a compromise, made by his agent or attorney on his behalf, is bound thereby, and cannot be permitted afterward to deny the authority of such agent or attorney.^ An affirmance and ratification of an act, with full knowledge of all its circum- stances, operates as a waiver, and the party* is estopped from afterwards charging that it was wrongfully or fraudulently done. Thus, where a party leaves negotiable securities with another for safe keeping ; and such depository fraudulently negotiates the same, and uses the proceeds, if the depository with ■ knowledge of this fact accepts a promissory note for the value of such securities, and collects the interest on such note, the acceptance of the note creates a new contract, and is a waiver and estops the party from maintaining an action against his agent for fraudulently contracting the debt.^ If a person enters into a covenant to pay for personal property, the possession of which he acknowledges to have received, he will be estopped to deny the receipt of it, because it is a fact which he must have known. But if he recite that the vendor had title, he may, notwithstand- ing, show the contrary ; because it is apparent that this allegation must have come from the vendor, and that the vendee could not otherwise have known its truth.* A party claiming to be the owner of goods by purchase and delivery, is estopped by the levy of an execution in his favor upon the same goods as the property of the defendant in the execution.^ § 1061. Acquiescence in a transaction may bar a party of his > Love V. Jones, 4 Watts, 465; R. 11. « paine y. Hibbard, 6 Wis. 175; Co. V. Jones, 59 Pa. St. 433; Fosdick Knowlton v. Logansport, 75 Ind. 103. V. Risk, 15 Ohio. 84; McGee v. Mellon, ^ Troup v. Appleman. 52 Md. 456. 23 Miss. 585; Mahoney v. Horan, 53 * Miller v Bagwell, 3 McCord, 429. Barb. 29; Horbach v. Riley, 7 Pa. St. " Langsdorf v. Field, 36 Mo. 441; 81; Bradley v. O'Donnell, 33 Pa. St. Bradley v. Richardson, 23 Vt. 720; 281; Simond's Estate, 19 Pa. St. 439; Berry v. Boyce, a Rich. Eq. 302; Freeby v. Tupper, 15 Ohio, 467. Wriglit v. Langenour, 55 Cal. 280; Woods V. Rocebj, 32 La. Ann. 210. 1192 The Law of Estoppel. relief in a very short period. Thus, if one has knowledge of an act, or it is done with his full approbation, he cannot afterwards have relief. He is estopped by his ac(piiescence, and can not undo that whicli has been done." So, if a party stands by, and sees another dealing with ])roperty in a manner inconsistent with his rights, and makes no objection, he cannot afterwards have > Kent V. Jackson, 14 Beav. 384; Styles V. Guy, 1 II. & T. 523; Lcedt*, &c. V. Amberst, 2 Ph. 117; Associa- tion v.Siddall, 3 D. F. & J. 73; Ciozier V. Acer, 7 Paige, 137; Davis v. .James, 4 J. .1. Marsli. 81; Pollard v. Rogers, 4 Call, 239; Skottowe v. Williams, 3 D. F. Sz J. 535; Moffatt v. Wiuslow, 7 Paige, 124; Sadler v. Robinson. 2 Stew. 520; Ayresv. Mitchell, 11 Miss. 383; Moore v. Reed, 2 Ired. Eq. 580; McNaughton v. Partridge, 11 Ohio, 223; Kniickolls v. Lee, 10 Humph. 577; Dougherty v. Dougherty, 7 N. J. E. G27; Morgan, in re, 1 II. & Tw. 328: Graham v. R. R., 2 M. & G. 140; R. R. V. Schuyler, 34 N. Y. 30; Ear- gale V. Shorlridge, 31 E. L. & E. 44; Giymes V. Suunder^, 93 U. S. 55; Cole V. Tibbius, 3 P. AV'm.s. 289; Addis v. Campbell, 4 Beav. 411; Lord v. Jeff- kins, 35 Beav. 7; Ives v. North Can- aan, 33 Conn. 402; Vallctte v. Ben- nett, 09 111. G32; Coop r v. Law, 6 C. B. (N. S.)502: Banks v. Burnhnm, 01 Mo. 70; Miller v. Craig, 11 N. J. E. 175; Grant v. Davenporl, 18 Iowa, 178; .loucs v. lliggins, L. R. 2 Eq. 538: Stallord v. Siairord, 1 De G. & J. 193: Louisville v. Bank, 3 B. Mon. 138; Prendergrast v. Turton, 1 Y. & C. 98; Navigation Co., in re, .Tur. (N. S.) 975; Park v. R. R. Co., 23 Ind. 567; Perretfs Case, L. R. 15 Eq. 250; Oakes v. Turquand, L. R. 2 II. L. 327; Ilarcourt v. AVhite, Jur. (N. S.) 1087; Kentv. Freehold, L. R. 3 Ch. App. 493; Peek v. Gurncy. L. R. 13 Eq. 79; Bright v. Legeiton, Jur. (N. S.) 1179; Ormes v. Beadel, 2 Gill. 160; Smallcombe's Case. L. R. 3 Eq. 709; Clark V. Hart, 5 Jur. (N. S.)447; Brothel hood's Case, 31 Beav. 365; Sibbering v. Baccaring, 3 De G. & S. 735; Randall v. Errington, 10 Ves. 426; Flagg v. Mann, 2 Sumn. 486; Blennerhassett v. I)a}^ 2 B. & B. 104; Cholmondelej^ V. Clinton, 2Mer. 361; Ilonner v. Morton, 3 Russ. 65; Shackelford v. Hundley, 1 A. K. ilarsh. 495; Austin v. Chambers, 6 CI. & F. 1; Cockerell v. Cholmeley, Taml. 435; Charter v. Trevelyu, 11 CI. & F. 714; Cockell v. Taylor, 15 Beav. 122; Burrows v. Wales, 5 D. M. & G. 233; Lloyd v. Atwood, 3 D. & J. 614; Savory v. King, 5 H. L. 627; Shipp v. Swan, 2 Bibb, 82; Bright v. Legerton, 2 D. F. & J. 017; Ass'n V. Sicidall, 3 D. F. & J. 74; Bullock V. Downes, 9 II. L. 1; Berdoe v. Dawson, 34 Beav. 603; Wall v. Cock- erall, 10 II. L. 229; Vyvyau v. Vyv- yan, 30 Beav. 65; Spackmun's Case, 34 L. J. Ch. 329; Stewart's Case, L. R. Ch. App. 515; Elsworth v. Els- worth, 33 Iowa, 164; Charlston v. Comm'rs, 109 ilass. 270; Stanhope's Case, L. R. 1 Ch. App. 161; Munch v. Cockcrall 5 M. & C. 178: Mont- fort V. Cadigan, 17 Ves. 489; Taylor V. R. R. Co., 4 AYoods C. C. 575; Land Co. v. Tilton, 19 F. R. 73; Manf'g Co. v. Funge. 109 U. S. 651 ; Smith V. Pettee, 70 N. Y. 13; Wool- seJ^ in re, 95 N. Y. 135; Cooper, in re, 93 N. Y. 507; Parkway, in re, 67 How. Pr. 341; Ins. Co. v. Swank, 102 Pa. St. i;; Myers v. Ins. Co., 33 Ilun, 321. Acquiescence. 1193 relief. His silence permits or encourages others to part with their money or property, and he caimot complain that his inter- ests are aflFected. His silence is acquiescence and it estops him.' §1062. To fix acquiescence upon a party, it must unequivo- cally appear that he knew or had notice of the fact upon which the alleged acquiescence is founded, and to which it refers.^ Acquiescence imports and is founded on knowledge. Acquies- cence can not arise unless the party against whom it is set up is aware of his rights. A person cannot acquiesce in w'hat he is ignorant of, nor can he be bound by acquiescence unless fully apprised as to his rights and all the material facts and circum- stances of the case.' ' Jordan v. Money, 5 H. L. C. 185; Reunie v. Young, 2 De G. & J. 142; Stafford V. Stafford, 1 D. G. & J. 202; Phillipson v. Gatly, 7 Hare, 523; Leeds v. Amherst, 2 Phil. 117; Skottowe V. Williams, 3 D. F. & J. 535; Association v. Siddall, 2D. F. & J. 73. 2 Randall v. Errington, 10 Ves. 426; Spackman's Case, 34 L. J. Ch. 321; Stanhope's Case, L. R. 1 Ch. App. 161 ; Stewart's Case, L. R. 1 Ch. App. 514; Hiukson v. Morrison, 47 Iowa, 167. 3 Russell V. Errington, 10 Ves. 426; Blennerliassett v. Day, 2 B. & B. 104; Cholmondonley v. Clinton, 2 Mer. 361; Homer v. Morton, 3 Russ. 65; Cockerel 1 v. Cholmely, Taml. 435; Austin V. Chambers, 6 CI. & F. 1; Charter v. Trevelyan, 11 CI. & F. 714 ; Cockell v. Taylor, 15 Beav. 122; Burrows v. Walls, 5 D. M. & G. 233; Lloyd v. Atwood, 3 D. c% J. 614; Savery V. King, 5 H. L. 627; Bright V. Legerton, 2 D. F. & J. 617; Life Ass. V. Siddall, 3 D. F. & J. 74; Bul- lock v. Downcs, 9 H. L. 1; Wall v. Cockerell, 10 H. L. 229; Berdoe v. Dawson, 34 Beav. 603; Vyvian v. Vyvian, 30 Beav. 65; Spackman's Case, 34 L. J. Cb. 329; Stewart's Case, L. R. 1 Ch. App. 514; Flagg v. Mann, 2 Sumn. 486; Shackelford v. Hand- ley, 1 A. K. Marsh. 498; Shipp v. Swan, 2 Bibb, 82; Garvin v. Lewis, 15 Miss. 24; Cherry v. Nemson, 3 Yerg. 369; Murray v. Palmer, 2 S. & L. 486; Dunbar v. Tredennick, 2 B. & B. 317; Potts V. Surr, 34 Beav. 543; Smith V. Kay, 7 H. L. C. 750; Athen- aeum v. Pooley, 3 D. & J. 299; Wat- ers V. Thorn, 22 Beav. 547; Cockerell v. Taylor, 15 Beav. 125 ; Roberts v. Tunstall, 4 Har. 257; S.tump v. Gaby, 2 D. M. & G. 623; Salmon v. Cutts, 4 D. & S. 132; Mulhallen v. Maram, 3 D. & W. 317; Rainsford v. Rains- ford, Spears Ch. 385; De Montmorency V. Devereux, 7 CI. & F. 188; Wedder- burn V. Wedderburn, 2 Keen, 722; Molony v. Estrange, 1 Beat. 413; Roche V, O'Brien, 1 B. & B. 338; Say V. Barwick, 1 V. & B. 195; Wood v. Downes, 18 Ves. 128; Gowland v. De Faria, 17 Ves. 20; Purcell v. Mo- Namara, 14 Ves. 91; Morse v. Royal, 12 Ves. 355; Murray v. Palmer, 2 S. & L. 480; Walker v. Simonds, 3 Sw. 1; Chesterfield V. Jansen, 2 Ves. 125; Crowe V. Ballard, 2 Cox, 253; Cole v. Gibbons, 3 P. Wms. 290; Wake v. Wake, 1 Ves. Jr. 335; Cann v. Cann, 1 P. Wms. 727; Coal Co. v. Sherman, 1194 The Law of Estoppel. § 10C3. AVhen a man v/itli full knowledi^e, or at least \vitli sufficient notice or means of knowledge of liis rights, and of all tlie material circumstances of the case, freely and advisedly doesany- thing which amounts to the recognition of a transaction, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time, and knowingly and deliberately permits another to deal with property, or incur expense, under the belief that the transaction has been recognized, or freely and advisedly abstains for a considerable lapse of time fi'om impeaching it, tliere is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable in equity.' If, for instance, a man after discovering that the representations in a prospectus, on the faith of which he has purchased shares are false, deals with the shares as owner, by instructing a broker to sell them,'' or concurs in the 20 Md. 117; Williams v. Reed, 3 Masou, 40."); Butler V. Haskell, 4 Dess. 651; MeCormick V. Malin, 5 Blackf. 509; Biodduc v. Call, 3 Call, 546; Boyd V. Hawkins, 2 Dev. Eq. 195; Adams v. Bradley, 1 J. & W. 51 ; Ed- wards V. Morgan, McC. 541; Pusey V. Desbonvrie, 3 P. Wms. 315; Dillon V. Parker, 1 Sw. 359; Kidney v. Cous- maker, 12 Yes. 136; Kelly v. Sohui, 9 M. & W. 54; Townsendv. Crowdy, 8 C. B. (N. S.) 477; Sill v. Sill, 31 Kans. 248. ' Duke, &c. V. Lord Amherst, 2 Phil. 117; Lee v. Porter. 2 Johns. Ch. 2(38; Perrine v. Dunn, 3 Johns. Ch. 508; Taylor v. Cole, 4 Munfd. 351; Lee V. Monroe, 7 Crauch, 366; Ilentz V. R. R., 13 Barb. 647; Selsey V. Rhodes, 1 BUgli (N. S.) 1; Bellew v. Ru.ssell, 1 B. &B. 96; Blennerhassett V. Day, 2 B. & B. 118; Vigers v. Pike, 8 CI. & F. 652; Charter v. Trevelyan, 11 CI. & F. 714; Champion v. Rigby, Taml. 421; Maden v. Vcevers, 5 fJeav. 511; Naglo v. Baylor, 3 Dr. & W. 00; Edwards v. Meyrick. 2 Ha. 75; Loader V. Clark, 2 Mac. & G. 387; Plumb v. Flint, 2 Anst. 432; Evans v. Bicknell, 6 Yes. 174; Barnett v. Weston, 12 Yes. 130; Harper v. Faulder, 4 ]\Iad. 129; Meux, in re, 1 Gl. & J. 110; Hil- ton V. Fonda, 86 N. Y. 339; Bank v. St. Joseph, 46 jNIich. 520; Lane v. Mar.sh, 33 La. Ann. 554; Dardin v. Hanill, 10 Lea, 421 ; Wright v. Wright. 72 N. Y. 149; Walrup, in re. 1 IMcCrary. 70; Stone v. Godfrey. 5 D. M. & G. 76; Lyddon v. Moss, 4 D. & J. 104; Dimsdale V. Dimsdale. 3 Drew, 556; Farraut v. Blaucaford, 1 D. J. & S. 107; Archbold v. Scully, 9 H. L. 360 ; Pleiiderleath v. Fraser, 3 Y. & B. 174; Bernal v. Lord Donegal, 3 Dow. 138; Bayne v. Ferguson. 5 Dow. 151; Pearson v. Benson. 28 Beav. 598; Gresley v. Mousley. 31 L. J. Ch. 543; Ernest v. Yivian, 33 L. J. Ch. 513; AYall V. Cockerell, 3 D. F. & J. 742; Yerrierv. Gillou, 14 Phila. 2; Lengan V. Hazlewood, 11 Lea, 539 ; Yogel v. Breed. 14 111. App. 538; [McKcllop v. Jackman. 50 Yt. 71 ; Sehenck v. Sautter, 73 Mo. 46; Turner v. Flinn. 72 Ala. 532 ; Guicharde v. Brande, 57 Wis. 534; Davis v. Handy, 37 N. H. 05; ^Y■wman v. Mueller, 16 ^'eb. 523; Williams v. Wells, 62 Iowa. 740. =■ Briggs, in re, L. R. 1 Eq. 483. Acquiescp:nce. 1195 appointment of a committee of investigation into the affairs of the company on belialf of the shareholders/ there is acquiescence. So wliere a party, with full knowledge of the misrepresentations alleged to have been made, by his conduct agrees to treat the transaction as binding, he is precluded in equity from insisting on the misrepresentation in a suit for specific performance." And where plaintiffs sought to avoid an agreement for the lease of a mine, on the ground of fraudulent misrepi^sentation of its value, it was held that having .continued to work the mine after full knowledge of all the circumstances of the fraud, they were not entitled to relief.* The equitable rule as to acquiescence applies with peculiar force to the case of property which is of a speculative character, or is subject to contingencies, and can only be rendered pro- ductive by a large and uncertain outlay.* Thus, a patentee may, by long acquiescence in the use of his patent by the public, be estopped from setting up his rights under it.^ Cases frequently arise where a court of equity will refuse the prayer of the com- plainant for an account of gains and profits, on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent future infringement. Relief of the kind is constantly refused even where the right of the party to an injunction is acknowledged because of an infringe- ment, as in case of acquiescence or want of fraudulent intent." § 1064. This principle applies to the representatives of the party who has acquiesced in a particular transaction and a remain- > Lawrence's Case, L. R. 2 Ch. App. F. & J. 310. 424. * Pitts V. Hall, 2 Blatchf. 229; ■^ McBryde v. Weekes, 22 Beav. Wyeth v. Stone, 1 Story, 273; Carlton 533. V. Atwood. 2 A. L. T. 129; Seymour a Vigers v. Pike, 8 CI. & F. 562. v. Osborne, 11 Wall. 516; McLean v. * Norway v. Rowe, 19 Ves. 144; Fleming, 96 U. S. 245. Small V. Attwood, 6 CI. & F. 232; <> Harrison v. Taylor, 11 Jur. (N. S.) Prcadergast v. Turton, 1 Y. & C. 4U8: Moet v. Conston, 33 Beav. 580; C. C. 98; Lovell v. Hi(ks, 2 Y. & C. Edelston v. Edelston, 1 De G. J. & S. 46; Jennings v. Broughton, 5 D. M. 185; Millington v. Fox, 3 M. & Cr. & G. 140; Clegg V. Edmondson, 8 D. 348; Wyeth v. Stone, 3 Story, 284; M. & G. 787; Clements v. Hall. 2 D. Beard v. Turner, 13 L. T. (N. S.) 747; Walmcsly v. Booth, 2 Atk. 25; Luist,3Bro. C. C. 88; Northumberland Bellcw V. Russell, 1 B. & B. 96; Shan- v. Ayleslord, Arab. 540; Stnitfoid v. noil V. Bradstreet, 1 Sch. & L. 73; Powell, 1 B. & B. 23; Troup v. Apple- Walker V. Symonds. 3 Sw. 04; Bur- man, 52 ]\[d. 456; Comstock v. Smith, rows V. Wails, 5 D. M. & G. 233; 26 Mich. 306; Leonard v. Cromelin, 1 Farrant v. Blauchford, 1 D. J. & S. Ed. Ch. 206; Sloan v. Holcomb, 20 107; Liehmau v. Ilarcourt, 2 Mer. Mich. 153; Buck v. Jones, 16 Tox. .520; .folinson v. Perkins, 57 Tenn. 461 ; Meeliam v. Forrester, 52 N. 367. Y. 277 ; Clark v. Van Riensdyk, - Penn v. Guggenheimer, 76 Va. 9 Cranch, 158; Seago v. Mattin. 6 839; Pence v. Langjard to the authority of his a^eiit, and then avoid the consequence of his acts by a single disclaimer of the authority of such agent ; nor can a principal adopt a contract made by his accent or attorney without authority, under which he has acquired the title to property without further litigation, so far as to hold the title obtained under it, and repudiate the conditions upon \vhich the sale was allowed to take place. If he repudiates at all, he must repudiate the whole, so as to restore the party to his former position.' A principal cannot ratify the acts of an agent for his own benefit, and repudiate them when adversely interested." Where an agent, for the purchase of lands, without authority from his principal, employs a sub-agent to make such purchases, it is a sufficient ratification of the acts of such sub-agent if the principal subsequently agrees to receive a deed of his proportion of the land purchased, and to submit the question of the agent's expenses to arbitration. The rule that a principal is not bound by a ratification of an agent's act, which is made without full knowledge, does not require that he shall have had full knowl- edge of his rights. It is- sufficient that he had full knowledge of the facts and circumstances of the transaction.' By receiving and appropriating the proceeds of a sale made by an agent, with knowledge of the facts, the principal ratifies the sale, and makes himself answerable therefor.^ Evans v. Hunter, 28 N. Y. 389: Corning v. Scotland, '6 Hill, 552; Skinner v. Dayton, 1!) Johns. 554; Odiorne v. Mnxey, 13 Mass. 182; Ins. Co. V. DeWolf, 6 Pick. 63; Kiider v. Trustees, 31 Iowa, 541; Menkens v. Wiitson, 27 Mo. 38; Coleman v. Stark, 1 Greg. 115; Gaines v. Miller, 111 U. S. 395; Small v. Attwood, (i C. L. & F. 232; Henderson v. (/'unimiiigs, 44 111. 325. ' Biistow V. AVhitniore. I) H. L. C. 391; Henderson v. H. R. Co., 17 Tex. 560; Crump v. Mining (Jo., 7 Gratt. 352; Larapsou v. Arnold, 19 iima, 479; Paine v. Wilcox, 16 Wis. 241; Grove v. Hodges, 55 Pa. St. 504; Median v. Forrester, 52 N. Y. 277. ■-• StoTi'e v. U. S., 19 Wall. 13; Stark V. Stark; 94 U. S. 477; Beat v. Ins. Co., K; Wis. 241; Bell V. Byersoi!, 11 Iowa, 233; Silloway v. Ins. Co., 13 Gray, 13; Winder v. Lane, 14 Md- 124. ^ Stringhani v. Sehooner, 4 Ben. 16; Coles v. Trecothick, 9 Ves. 234; Gray v. Murray, 3 Johns. 167; John- son V. Cunningham, 1 Ala. 249; Laus- satt V. Lippincott, 6 S. & R. 386; Rawls v. Deshler, 3 Keyes, 572; Hen- derson V. Barnwell, 1 Y. & J. 385; Burgess v. Harris. 47 Vt. 322; .Miller V. Bank, 30 3Id. 392; Spright v. Han- ley, 39 N. Y. 441. ^ Griffin v. Iowa, &c. Co., 21 Iowa, 282; Francis v. Kerker, 85 111. 190; Pkincipal and Agent. 122i § 1089. An agent who acts wliolly and exclusively as the agent of the money lender in negotiating a loan, and, in addition, to taking security calling for the highest legal rate of interest, charges and receives a honus for his services, ninst be presumed to be acting within the scope of his authority in taking such honufi, and makes his principal chargeable with the usury.' Although an agent docs not comply with an agreement, made between him and his principal, as to the manner in which a written authority, ample on its face, shall be exercised, yet con- tracts made bj' such agent with third persons, who have no knowledge of such agreement, will be binding upon the prin- cipal, if they are within the limits of the authority expressly conferred.^ § 1090. If a party assumes to act on behalf of another h':" is estopped from claiming that he acted for his own benefit. Thus a party, who, in making a verbal contract represents that he is acting in concert with and for the benefit of another, and being afterward by letter requested to put such contract in writing, replies that the person with and for whom he professes to be acting will come and arrange it, is estopped from denying the power of such person as his agent to bind him by a written con- tract of the same effect as tlie verbal one, even tljongh it is executed by such agent in his own name only.' A party in pos- session of a mill site, who represents to a dealer in l)uilding Hikkibrandt v. Crawford, 6 Lans. S. C, 46 Am. R. 354; Avila v. Chetn- 503; B.-iiik V. Coweu, 37 N. Y. 320; ical Co., 32 Hun, 1; Lane v. Black, Cliaml)oilain v. Collinson, 45 Iowa, 21 W. Va. 617; GilTord v. LaudiiiK-, 429; Darst v. Gak, 83 111. 136; Ham- 37 N. J. E. 137; Lynch v. K. K. Co., iltou V. Bank, 22 Iowa, 306; Evans v. GO Md. 404; S. C, 45 Am. K. 741. Buckner, 1 Heisk. 291; Slocomb v. 'Young v. Wright, 4 Wis. 144; Gage. 22 La. Ann. 165; Cochrjuie v. McFarland v. Carr, 16 Wis. 251. Chitwood, 59 111. 53; Slater v. Irwin, '^ Mosher v. Chapm, 12 Wis. 453. 38 Iowa, 261; Winlon v. Little, 94 Pa. ^ Gamble v. Knott, 40 Ga. 199; Hop- St. 64; Davis v. Kruni, 12 ilo. App. kins v. Page, 2 Brock. 20; Wilcocks 279; Wallace v. Lawyer, 90 Ind. 499; v. Pliillips, 1 Wall. Jr. 47; Barry v. Breed v. Bank, 6 Cul. 235; Huntley Barry, 3 CJranch C. C. 120 ; White v. V. Mathias, 90 N. C. 107; S. C, 47 Macon, 3 Crauch, 250; Smith v. Ken- Am. R. 516; White v. Leighton, 15 nedy, 1 Wash. T. 06; Lockwood v. Neb. 424; Lynch v. Trust Co., 5 Mc- Thorn, 11 N. Y. 170; Troup v. Apple- Crary, 623; Pope v. Distilling Co., 20 man, 52 Md. 456. F. R. 35; Rboda V. Anuis, 75 Me. 17; 1222 The Law of Estoppel. materials that tlic contract for such site was taken in his own name, but for the benelit of a third party, and tiiat he had no interest therein, bnt that a third party is the real owner thereof ; and procures from such dealer mateiials for a mill thereon, in the name and as the agent of such third party, who, as he says, will pa}" therefor, and, by like statements, induces such material-man to enforce his lien on the mill by suit against such third party ; is thereby estopped from asserting that he is himself the owner of the property, as against the purchaser under the judgment in the lieu suit ; and from denying that such a third party was in possession through him as agent.' So a common carrier cannot deny the authority of the agent of a consignor, after having made a contract of affreightment with him as such agent." § 1091. Whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occa- sion the loss must sustain it.' Whenever the very act of the ' Smith V. Frost, 70 N. Y. 65; Bemis V Becker, 1 Kas. 276; Smith v. ]\Ic- Neal, 48 Pa. St. 164; Peabody v. Leacli, 18 Wis. 657; Reigard v.']Mc- Neil, 38 111. 400. * Baker v. JNIilwaukcc, 14 Iowa, 214. » Smith V. Kidd, 68 N. Y. 131; Stowe V. U. S., 19 Wall. 13; Hanks v. Drake. 48 Barb. 186; Filzherbert v. Mather, 1 T. R. 12; Neville v. Wilkiu- son, 1 Bro. Ch. 546; Smith v. Board, 59 111. 412; Ruiz v. Norton, 4 Cal. 355; Rawls v. Deshler, 4 Abb. App. Dec. 12; Kessler v. Simmerschite, 1 Tex. 50; Mahan v. Dubuclet, 27 La. Anil. 45; Coles v. Anderson, 8 Humph. 489; Iliorns v. Holton, 13 El. <& £. 596; Nicholson v. Hooper, 4 M. & C 179; Picard v. Sears, 6 A. & E. 469; Riley v. Quin;ley, 50 111. 304; llertel V. Bogert, 9 Paige, 52: Chapman v. Hamilton, 19 Ala. 121; Bradish v. Belknap. 41 Vt. 172; Hearn v. Nichols, 1 Salk. 289; Lickbarrow v. Mason, 2 T. R. 63; Lane v. Coulton, 12 Mod. 432; Troy v. R. R., 42 Vt. 265; Herrick v. Atwootl, 2 De G. & J. 21 ; Brinkerhoff v. Lansing, 4 Johns. Ch. G5; Tliorne v. Mosher, 20 N. .1. E. 257; Williams v. Mitchell, 17 ]VIass. 98; Schiiee v. Sclinee. 23 Wis. 377; Evans v. Bicknoll, 6 Yes. 173; Pearson v. Morgan, 2 Bro. Ch. 388; Chidsey v. Porter, 21 Pa. St. 390; Swethurst v. Taylor, 12 M. & W. 554; Dickson v. Green, 24 Miss. 612 ; Blount V. Robeson, 3 .Tones Eq. 73; Smith V. McGuire, 3 H. & N. 554; Edmunds v. Bushnell, L. R. 1 Q. B. 97; Stringham v. Schoener, 4 Ben. 16; Winton v. Hart, 39 Conu. 16; Scott V. Scott, 1 Cox. 378; Dorris v. Green, 16 Barb. 12; Bank v. Bank. 1 Ga. 418; Milliugar v. Sorg. 61 Pa. St. 471; Stair v. Reed, 11 Gratt. 281; Hunter v. Jameson, 6 Ired. 252; Cur- tis V. Tripp, 1 Iowa, 318; Nelson v. Cowing, 6 Hill, 336; AYoodford v. McClenuahan, 9 111. 85; Skinner v. Gunu, 9 Port. 305; Bradford v. Bush, 10 Ala. 386; Lee v. Munroe, 7 Crauch, 3G6; Ezel v. Franklin, 2 Sneed, 216; Cocke v. Campbell, 13 Ala. 286. Pkincipal and Suuety. 1223 agent is authorized bj the terms of the power, so that bj^ com- pariug the act done bj the agent, with the language of tlie power, the act itself is warranted thereby, sucli act is binding on the principal as to all persons dealing in good faith with the agent.' It is a general rule that a party cannot contradict his own note or bond.^ In accordance with this elementary principle, one expressly agreeing to be bound as principal is estopped from asserting as against the obligee, that he is a surety/ A party who for usurious consideration grants extension of time for pa3^- ment to the maker of a note, whereby the surety is released, is estopped from setting up such usury to defeat the rights which the surety acquired by reason of such extension/ If principal and surety are jointly and severally bound in a bond, though there is no express admission on the face of the instrument that all are principals, yet the surety is estoj^ped from alleging that he is surety only/ Any act of a principal which estops him from setting up a defense personal to himself, operates equally against his sureties/ § 1092. The discharge of the surety is often dependent on the doctrine of equitable estoppel and not on the variation of the contract with the principal. It will not take place unless a course has been adopted on the faith of the statements or promises of the creditor which cannot be retracted or withdrawn without injury,' nor, as it would seem unless the conduct of the creditor is marked by some violation of good faith or fair dealing." Wrong on one side and injury on the other being the essential ingredients of every equitable estoppel. A statement by the holder of a bill that it had been paid, by which the indorser was led to delay proceedings against the acceptor until the latter became insolvent was, however, held to be a good defense to the indorser whether the statement was made in good faith or fraud- ' Munay v. Binninger, 3 Keyes, 46G; Heath -v. Bank, 44 N. H. 174; 107. Bank v. Bukhvin, 41 N. H. 434. 2 Miller v. Elliott, 1 Ind. 484; Hiatt •» Riley v. Giegg, 16 Wis. 666. V. Simpson, 8 Ind. 256; Madison v. ^ Dibble v. Duncan, 2 McLean, 553; Stevens, 10 Ind. 1; Jlenaugh v. Chan- Spiigg v. Bank, 14 Peters, 201. dler, 89 Ind. 94. « McCabe v. Raney, 32 Ind. 309. 3 Sprigg V. Bank, 10 Peters, 257; S. ' Hogaboom v. Herrick, 4 Vt. 131. C, 14 Pet. 201; Dart v. Sherwood, 7 * Wilson v. Green, 25 Vt. 450. Wis. 446; Bank v. Redington, 52 Me. 1224 The Law of Estoppel. ulentl)'.' Those who have bound theniselves as eo obligors or co-eon tractors are not allowed to show that their true character is that of sureties." A surety who has bound liiniself as co-obh'gor by an instrument under seal is estopped from showing the real nature of his obligation as a defense to an action.' A party wlio has bound himself to a direct and innnediate performance is estopped from showing that his obligation is that of a guarantor, and that he is answerable only in the case of the default of a co-contractor or other person. A holder, by electing to fix the indorser's liability as the conditional one of assignor, and seeking to enforce the same, is estopped from setting up the absolute liability of guarantor, either by writing over the indorser's name, or by making proof of a verbal guaranty.* § 1093. A promise by the creditor to exonerate the surety, or to look solely to the principal, can have no effect of itself upon the liability imposed by the contract, unless founded upon a suffi- cient consideration. But when the surety is induced b}' such a promise, to surrender property or securities received from the principal, or to ])ostpone or relinquish any of the means of indemnity, to which he miglit otiierwise have resorted, it will take effect as an equitable estoppel, and deprive the ])romisor of the power of retraction.^ The result is the same, when the creditor mistakenly and without any fraudulent intent, informs the surety that the debt is paid, or adopts some other course, of a nature to mislead him with regard to the extent or existence of his liability, and the latter, in consequence, surrenders a security held for its payment." Where the guarantor of a note expi-essed to the nuikers his willingness that one of them should be discharged from liability, and the payee having been informed of the fact by the maker whose name was to remain upon the note, caused the other maker's name to be erased. In an action by the ' Kingsloy V. Vernon, 4 Sandf. 361 ; Deberry v. Adams, 9 Yerger, 52; Ayer v. Tilton, 43 N. H. 407. Dozier v. Lea, 7 Humphreys, 520; « Bull V. Allen, 19 Conn. 101; Bank Pintard v. Davis, 22 N. J. L. 632. V. Wood, 10 Vt. 582; Yates v. Donald- ■» Clayes v. White, 65 111. 357. son, 5 3Id. 389; Bank v. Shailor, 20 * Harris v. Brooks, 21 Pick. 195; Conn. 18. Bank v. Klinemuth, 7 Watts, 525; » Asldiy V. Piddufk, 1 ]\r. & W. White v. Walker, 31 111. 422. 564; Ward v. Johu.^on, 6 Mumf. 0; " Carpenter v. King. 9 Met. 511. Steptoes V. Harvey, Leigh, 501; Wilson v. Green, 25 Vt. 450. Trustees. 1225 payee against the guarantor, it was held, that the latter was estopped from denying that his liability continued after the dis- charge of the said maker.- So, where a uotc with two sureties was to be extended by the execution of a new one with the same sureties, a new note was given with the understanding that one of the sureties whose name was omitted should sign it, but the note was mislaid and never signed. In an action on this note, the sureties were held not liable ; action was then brought on the original note (which had not been surrendered), the sureties were estopped from setting up any suspension of their liability by the giving of the second note, and the judgment against the principal was a discharge to them as to the amount collected thereon." § 109-4. If the cestui qtte trust concur in the breach of the trust, he is estopped from proceeding against the trustee^ as by permitting and encouraging the trustee to hold himself out as absolute owner of the trust property, and will be postponed to an innocent purchaser who has been misled thereby.* If a married woman or an infant, by a fraud, procure the breach of the trust, they will be estopped to proceed for such breach ; for they have no privilege to commit frauds.* When the cestui que t?nist con- curs with a trustee in the misapplication of the trust funds, he cannot be heard in a court of equity to complain of the acts of the trustee which he has himself knowingly authorized. And ' Knoebel v. Kircher, 33 111. 308. Porter, 25 Beav. 336; Life Asso. of 2 Williams v. Martin, 3 Duvall, 491. Scotland v. Siddall, 3 De G. F. & J. ^Brioe v. Stokes, 11 Ves. 319; 74; Smith v. French, 2 Atk. 343; Walker v. Symonds, 3 Swans. 64; Mayer v. Gould, 1 Atk. 615; Kyder v. Wilkinson v. Parry, 4 Russ. 273; Bickerton, 3 Swans. 80. Cocker v. Quayle, 1 11. & M. 534; * Reg. v. Shropshire, L. R. 8 Q. B. Nail V. Punter, 5 Sim. 555; Newman 430; Waldron v. Sloper, 1 Drew. 193; V. Jones, Finch, 58 ; Fellows v. Rice v. Rice,. 2 Drew, 73. Jlitchcll, 1 P. Wras. 81; Booth v. » Dj^yig y Tingle, 8 B. Mon. 359; Booth, 1 Beav. 125; Langford v. Gas- Hall v. Timmons, 3 Rich. Eq. 130; coyne, 11 Yes. 336; White v. White, Stoolfoos v. Jenkins, 12 S. & R. 399; 5 Ves:. 555; in re Chertsey Market, 6 Wright v. Arnold, 14 B. Mon. 643. Price, 380; Baker v. Carter, 1 Y. & «* Buckeridge v. Classe, 1 Cr. & Ph. Col. 355; Byrchail v. Bradford, 6 Mad. 135; Fellows v. Mitchell, 1 P. Wms. 13; Morley v. Hawke, 3 Y. & J. 530; 81; Walker v. Symonds, 3 Swanst. 64; Small V. Atwood, 3 Y. & J. 530;Fyler Bj^rchall v. Bradford, 6 Madd. 13; V. Fyler, 3 Beav. 550; Griffiths v. Wilkinson v. Parry, 4 Russ. 273. 1226 The Law of Estoppel. this applies to persons under disability, as feme coverts, or infants where they have by their own frauds induced the trustees to deviate from the proper performance of their duties.' A married woman, with regard to ]>roperty settled to her sepai'iite use, is to be treated as a feme sole. She may bind her separate estate by her concurrence in a breach of trnst." Acquiescence on the part of cestui que trusts may altogether discharge trustees from all liability. Tln^, where a cestui que trust sui Juris acquiesces in an improper investment, he cannot afterward call it in question.' But it must be made with his full knowledge,* and without any misrepresentation or concealment on the part of the trustees.'' § 109.5. A cestui que trust may confirm an invalid sale, so that he cannot afterwards set it aside.' But in order to constitute a valid confirmation a person must be aware that the act he is doing will have the efiect of confirming an impeachable transaction.' Where a debt due a cestui que trust has been paid to the trustee, who had no authority to receive it, the cestui que trust is estopped from collecting it if he has received the benefit of such payment.* Where a will gives to the executor no autb.ority to sell the testa- tor's real estate or to control it, but with the knowledge of the heirs he applies to the court and obtains an order authorizing him to sell, and with the consent and at the request of the lieirs he does negotiate a sale, receives the purchase-monev ami conveys by » Savage v. Foster. 9 Mod. 35; Ryder Baraclough, 2 Sra. & G. 231; Rab}' v. V. r.ickcMton, 3 Swanst. 82; Vande Ridcbalgh, 7 Dc G. Mac. & G. 104. bend V. Livingston, 3 iSwanst. 62'); * Montl'ord v. Cadogau, 17 V'es. 489; Monllord v. Cadogan, 19 Vcs. 640; Munch v. C'ockerell, 5 My. & Cr. 178; Davic's V. riogdsun, 25 Beav. 187; Reliden v. Wesley, 29 Beav. 213. Evroy v. iSicbohis, 2 Eq. Ca. Ab. '" Wallier v. Symonds, 3 Swanst. 1; 488; Stikeman v. Dawson, 1 l)e G. &, Underwood v. Stevens, 1 ]Mei-. 712; Sm. 90; Wrigbi v. Snowe, 2 De G. & Burrows v. Walls, 5 De G. Mac. & Sm 321. G. 233. -• Clive v. Carew, 1 J. & H. 199. ^ Morse v. Royal, 12 Vcr. 335; 3 Harden v. Par.sons, 1 Eden, 145; Rocbe v. O'Brien," 1 B. & B. 353; Bue- Langforil v. Gascoync, 11 Ves. 333; rum v. Scbenck, 41 N. Y. 182; Arthur Booth V. Booth, 1 i3eav. 125; Broad- v. blaster. 1 Harp. Ch. 47. hurst V. Bilgny, 1 Y. & C. C. C. 16; ■> Murray v. Palmer, 2 S. & L. 486; Kail V. Punter, 5 Sim. 555; Walker v. Dunbar v. Tredenich, 2 B. & B. 317; Symonds, 3 Swanst. (54; Munch v. Maloney v. L'Estrange, 1 Beav. 413; Cockerell, 5 My. & Cr. 178; Farrar v. Adams v. Bradley, 1 J. & W\ 51. * Mayer v. Bills, 16 Iowa, 586. Partners. 1227 deed, the heirs also iriforniiiig tlie purchaser that the executor is the authorized agent to make the sale ; the purchaser has a right without further inquirj^ to rely upon the truth of such assurances, and the heirs are estopped from disputing them or thereafter asserting title to the land conveyed, upon the ground of want of authority in the executor. And where the purchaser has paid the contract price, entered into possession, and made valuable improve- ments, with the knowledge of the heirs, he can maintain an action against them to compel them to execute a conveyance to him so as to give him a valid title of record.' § 1096. Estoppels in pais operate only between the parties affected by them, and the limitation of their effect applies to part- nership cases as well as others. Where a person is charged as a member of a partnership, not because he is a member, but because he has represented himself as such, the law proceeds on the prin- ciple, that if a person so conduct himself as to lead another to imagine that he fills a particular situation, it would be unjust to enable him to turn round and say that he did not fill that situa- tion. If, therefore, he appears to the world, or specially, to the party who is seeking to charge him, to be a partner, and has represented himself as such, he is not allowed afterwards to say that that representation was incorrect, and that he was not a partner.* Where persons hold themselves out to the world to be partners they will be liable to third persons, and they are estopped from proving that any other relation exists, or from showing what the actual relation is. A person who holds himself out as a part- ner, inducing others to believe that he is such, and thereby secures credit for the supposed firm, is estopped from denying his liability as a partner for the debts inc^urred.'' But holding ones 1 Favill V. Roberts, 50 N. Y. 223. Sliailor, 20 Conn, 18; Dodd v. Bisliop '' Pace V. Barnett, 116 Mass. €512; 30 La. An. 1178; Bennett v. Bean, 42 Pott V. Eyton, 3 C. B. 32; Ness v. Mich. 346; S. C, 36 Am. R. 442; Ness Anges, 3 Excbq. 813; Miles v. Fnrber, v. Anges, 3 Excbq. 813; Sbafer v. L. R. 8 Q. B. 77; Sberod v. Laugdon, Randolph, 09 Pa. St. 250; Kirk v. 21 Iowa, 518; Dickenson v. Valp}', 10 llartman, 63 Pa. St. 97; Harrison v. B. & C. 128; Fox V. Clifton. 6 Bing. lleatborn, 6 M. «fc Gr. 81; Johnston 779. V. Warden, 3 Watts, 101; Wood v. ^Fibbard v^. Roderick, 51 Barb. Argyle, 6 'M. & G. 932; Kelton v. 616; Bank V. West, 46 Me. 15; Chase Leonard, 54 Vt. 230; Conkliu v. Bar- V. Demming, 42 N. H. 274; Bank v. ton, 43 Barb. 435; Rice v. Barrett, 1228 The Law of Estoppel. self out as a partner does not make him so, nor render him liable as such, except as to such as arc lead to believe him to be a part- ner and who give credit to the supposed firm on that belief.* Thus, a promissory note of a firm was signed by I>. who was not a meinl)er of the firm, but who represented himself to plaintiff to be such. He had, however, authority from the iirm to sign the note, but not to represent himself as a member of the firm. B. was liable to plaintiff on the note as a member of the firm." The same principk' applies where the note is made and signed in the presence of the party, who permits his name to be used as a partner without objection.' This principle extends so far as to bind the firm for the frauds of one partner, committed in the course of the firm business, though the other partners had no knowledge whatever of the fraud ;* for, by forming the connec- tion of partnership, the partners declare to the world that they are satisfied with the good faith and integrity of each other, and impliedly undertake to be responsible for what they shall each do within the scope of the partnership concerns, llence^ if in the business of the partnership money be received, partly by one of the firm and partly by another, to be laid out on mortgage, and a mortgage is forged by one partner without the knowledge of the other, the innocent partner will be liable for the whole money. So, if false lepi-esentations of certain facts are fraudulently made in the partnership business by one partner, without the knowledge of the others, the firm will be bound, the innocent partners 116 Mass. 312; Rube v. Biomeil, 121 v. Dcming, 42 ]S:. H. 270; Bryer v. Mass. 4o0; Kelly v. Scott, 49 N. H. Weston, 16 Me. 261; Ilillmaii v. 595; Guniey v. Evans, 3 H. «fe N. Moore, 3 Teun. Ch. 451. 122; Mollwo v. Court, &c. , L. R. 4 P. ' Nichols v. .lames, i:;0 Mass. 589; C. 419; Jliies v. Finbcr, L. R. 8 Q. Keltoii v. Leonard, 54 Vt. 230. B. 77; Waugh v. Carver, 2 II. Bl. ^ Langdon v. Lit.clifield, 11 Conn. 235; Fox V. Clifton, 6 Bing. 776; Mar- 251; Cniger v. Doherty, 43 N. Y. tyn V. Cray, 14 C. B. (N. S.) 824; 407; Newell v. Nixon, 4 Wall. 572; Thompson v. Bank, 111 U. S. 529; Hogg v. Skeen, 18 C. B. (N. S.) 427. Woodward v. Clark, 30 Kans. 78; " Pierce v. Wood, 23 N. H. 519; Hancock v. Hintragel Co., 60 Iowa, Locke v. Slearnes, 1 Met. 560; Blair 374; Fowler v. Stearns, 29 La. Ann. v. Bromley, 5 Ha. 557; Wickham v. 353. Wickham', 2 K. & J. 478; Lovell v. ' Goode v. Harrison, 5 B. & A. 147; Hicks, 2 Y. & C. 46; Kelton v. Leon- Wood v Peauell, 51 Me. 52; Chase ard, 54 Vt. 230. Partners. 1229 equally with the guilty.' This principle applies to an acceptance by a partner in the firm name in fraud of the partnership, and is binding on the firm.* § 1097. A member of a firm who omits to inform its cus- tomers of a dissolution of the firm, is liable on the contracts of the firm made after his retirement until the proper notice is given.' Where one partner, after the dissolution of the partner- ship, uses the firm name without authority, his act may be sub- sequentlj' ratified by the others, and the contract will be as binding on them as thougli their consent had been previously given for that purpose." As the power of a partner to bind the firm is absolutely ended on the dissolution of the firm, it cannot be exercised for the purpose of binding his co-partners to the payment of a debt from wliich they have been discharged by the statute of limitations, or in any other manner.' No party can be at once plaintiff and defendant ; hence a firm which is promisee of a note is estopped from bringing an action against a firm that are promisors, if any person is a member of both firms, although no partnership may exist between them.^ Yet, where two per- sons are joint owners of a vessel, against which a claim exists for non-delivery, and one gives a note in the joint name for a bahmce agreed on as due for such non-delivery, the other party being aware of the making of the note, and of the consideration for wliicli it was given, and making no dissent from the act of his co-owner, such note cannot be repudiated by such other party, he liaving bouglit out tlie share of his co-owner in the vessel, and agreed to pay her debts and liabilities.' A. and B. were partners in a grist mill, to which was permanently attached a circular saw mill, in which C. who had no interest in the real estate, held an intei-est. A. and B. sold, and by their joint deed convej'cd the entire property, including, with C.'s assent, the saw mill. Held, ' Papp V. Latham, 2 B. & A. 795; Richards v. Butler, 65 Qa. 593. Griswold v. Haven, 25 K Y. 595; •» Easter v. Bank, 57 111. 215. Stroman v. Varn, 19 S. C. 307; Hay- ^ Hayden v. Crutcher, 75 Ind. 108. ner v. Crow, 79 Mo. 293. « Moffatt v. Van iVIilengen, 2 B. & P. •' Hogg V. Skceu. 18 C. B. (N. S.) 124: Maiawariug v. Newman, 2 B. & 427. P. 120; Meal v. Turton, 4 Bing. 149; 3 Freeman v. Cooke, 2 Exchq. 654; Teague v. Hubbard, 8 B. & C. 345; Scarf V. Jardine, L. R. 7 App. Cas. Newell v. Nixon. 4 Wall. 573. 349; Richards v. Hunt, 65 Ga. 342; ' Pence v. McPhersou, 30 Ind. 66. 1230 The Law of Estoppkl. in a suit by C. against A., the surviving partner, to recover the vahie of the saw niill, that the hitter was estopped from denying his acquiescence in the sale. § 1098. A partner may be estopped from saying that there was no partnership. Thus, in an action by an indorsee against the acceptor of a bill of exchange, purporting to be drawn by a iirm of several persons, it the declaration avers that certain per- sons using that firm drew that bill, but the evidence is that the drawer of the bill trades singly under that firm name, and that he has no partner, this is not a variance of which the defendant can take advantage, because, by accepting the bill, he is estopped from saying that it was improperly drawn.* So, where a bill is drawn by the firm upon and accepted by one of its members, in an action by the payee against the drawers, the defendants are estopped from setting up as a defense any irregularity in the drawing. Under such circumstances, proof that the bill was accepted is sufficient evidence of its having been regulai-ly drawn." So a firm was held estopped by its conduct from deny- ing that certain property, consigned to one of its members prior to the formation of the firm, had come into its possession and was held by it as factor,' although a purchase of property, made b}' one partner upon the credit of the firm, was originally outside of the scope of the firm business, 3'et if the other partner subse- quently claims and obtains possession of it from the partner making the pui'chase, upon the ground that it is firm property, he ratifies the purchase and becomes liable for the price. He can not take the benefit and deny the obligation." So the recog- nition by a partner of a chattel mortgage, executed by one partner on the firm property, estops him from denying its validity.^ So where a private creditor has no knowledge that the property belongs to the partnership, and the partnershi]i has intrusted its property to one partner in such a manner as to enable him to deal with it as his own, and to induce the public to believe it to be his, then the other partners fall within the rule that when one of two innocent persons must suffer, that one » Bass V. Clivc, 1 Camp. 78; Wilde ^ Coleman v. Peaice, 26 Minn. 133. V. Keep, 6 C. & P. 335. * Porter v. Curry, 50 111. 319. « Porthouse V. Parker. 1 Camp. 83; Miichanlsoa v. Lester, 83 111.55; McStea v. Mathews, 3 Dal}', 349. Maun v. Ins. Co., 40 Wis. 549. Married Womeit. 1231 must suffer, who, by his acts or conduct, afforded the means of committing the fraud. It is like the case of a person entrusted with iroods as aorent, who sells them to one who has no knowledo;e that he is agent, but is led to believe, from the manner in which he has been allowed to deal with the goods, that they are his, and M'ho is therefore entitled to set-off against the principal a debt of the agent.' Where partners have done any act which precludes each and all of them from asserting their lien on the partnership effects, or where from any cause they are in a position in which they cannot assert such lien, the firm creditors are equally unable to do so.^ § 1099. When an agreement is void for infancy or coverture, an estoppel founded solely upon it must be equally void.^ The law throws its protection around infants andyeme coverts, and they cannot be made liable to contract by their own representa- tions.* A void contract cannot be made obligatory by a false statement of the fact wiiich awards the contract. " A husband and wife," said Pollock, C. B.," " are liable for frauds committed by her on any person ; as for any other personal wrong. But when the fraud is directly connected with the contract of the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife. If this were permitted, the wife would lose the protection which tlie law gives her against contracts, made by her during coverture ; for there is not a con- tract a fc-iiie covert could make whilst she knew her husband to be alive, that could not be treated as a fraud. For every such contract would involve her in a fraudulent representation of her capacity to sue." A minor will be estopped by receiving the pro- ' Rabone v. Williams, 7 T. K. 360; 65; Coward v. Hughes, 1 K. & J. 443; George v. Clagett, 7 T. R. 359; Se- Loan Ass'a v. Fairburst, 9 .Excbq. nenza v. Brinsley. 18 C. B. (N. S.) 422 ; White v. Greenish, 11 C. B. (N. 467; Turner v. Thomas, I.. H. 6 C. P. S.) 209; Wright v. Leonard, 11 C. B. 610; Dixon, in re, 4 Cli. D. 133; Kelly (N. S.) 258; Coal Co. v. Pasco, 79 111. V. Munson, 7 Mass. 319; Bank v. 164; Bartlett v. Wells, 31 L. J. Q. B. Plimpton. 17 Pick. 159; Steamship 57; Johnson v. Pie, 1 Keb. 913;' Miller Co. V. Scudder, 2 Black, 372. v. Blankley, 38 L. T. (N. S.) 527; Can- * Couchman w. Maupin, 78 Ky. 33. nan v. Farmer, 3 Exchq. 698. 3 James v. Landon, Cro. Eliz. 37. * Loan Ass'n v. Fairhurst, 9 Exchq, « Smith V. Marsack, 18 L. J. C. P. 433. 1232 The Law of Estoppel. ceeds of a void sale, utilcss he repays on arriving at full age.' And the same estoppel applies when the fruits of a void convey- ance, made by a hubbaiid, of land belonging to his wife, arc received and enjoyed by her after his death.* In the application of the principles of equitable estoppel there is no exception in the case of married women. § 1100. An infant, it was held, for the same reason, as in the case of Q,feme covert^ could not be made liable for a fraudulent affirm- ation, that he was of full age, whereby the plaintiff was induced to conti'act with him.' When the circumstances are such that there can be no direct responsibility for a fraud, there can be no estoppel indirectly. But where infants ixw^feme coverts cannot contract, there is no reason why they should be allowed to injure others with impunity.* An estoppel ma}' arise to prevent them from ]iroliting by their own wrong or fraud. ^ It has been held that neither infancy nor coverture will operate as an excuse for conduct calculated to mislead purchasers,* and that a married woman M'ho unites with her husband in an assignment ot her choses in action cannot subsequently assert her equit}' to a settle- ment against the assignee.' A feme covert was held to have lost her right to enforce her equity of redemption by acquiescing in " Commonwealth v. Sluiman. 18 Pa. St. 343; Penn v. Ilersey, 19 111. 295; Smith v. Warden. 19 Pa. St. 424. " Tilton V. Nelson, 27 Barb. 595. 3, Johnson v. Page, 1 Sid. 258; 1 Keb. 913. * FiUs V. lliill, 9 N. H. 441 ; Koseii- thal V. Mayhew,-33 Ohio St. 155. * Evans v. Bicknell, 6 Yes. 174; Drake v. Glover. 30 Ala. 382; Fitts v. Hall, 9 N. H. 441 ; Levi v. Earl, 30 Ohio St. 147; Ford v. Ford, 4 Ala. 142; Dunn v. Cudney. 13 Mich. 239; Rosenthal v. Mayhew, 33 Ohio St. 155; Vauiihn v. Vanderstegen, 2 Dr. 362; 'Connolly v. Bninstler, 3 Busli, 702; Schwartz v. Saunder.s, 46 111. 18; Jones v. Kearney. 1 U. & W. 134; Wright v. Leonard, 11 C. B. (N. S.) 258; Lush, in re, L. R. 4 Ch. 591: O'Brien v. Ililbourn, 9 To.\. 297; Gal- ling V. Roduian, 6 Ind. 281); Brown v. Coon, 3ti 111. 249; Bigelow v. Foss, 59 Me. 102; Phillips v. Graves, 20 Ohio St. 3^0; :Mount v. Morton, 20 Barb. 123; Bright v. Boyd, 1 Story, 478; Barhani v. Turbeville, 1 Swan. 437; Whittiugton v. Wright. 9 Ga. 23; Conch V. Sutton, 1 Grant Cas. 114; Fulton V. Moore, 25 Pa. St. 4(5S; lUr- ingshead v. Alien, 17 i^i. St. 275; Norton v. Nichols, 35 Mich. 148; Reed v. Hnll,57N. H. 482; Meilerv. Butler, 26 Ohio St. 535; Norris v. Wait, 2 Rich. 148; Wales v. Coffin, 13 Allen, 216. ^ Davis V. Tingle, 8 B. Monroe, 539. ' Wright v. Arnold, 14 B. Mon. 458. Married Women. 1233 the improvement of the mortgaged premises by a purchaser from the mortgagee ;' while a union of a wife with her hupband in an application uf a third person to buy a mortgage, gave it a prefer- ence over a prior mari-iage settlement in her favor.'^ § 1101. The doctrine that a married woman could not do by acts in jxds what she could not do by deed, has been materially changed by legislation in many States by the laws known as the Married Woman's Acts, and in all those States where there has been legislation emancipating her from the narrow common law doctrines by which all the various transactions of married women were construed, the application of the doctrine of estoppel has received the liberal construction, that, when a married woman is permitted to assume the privileges oiixfeme solssli^ assumes those privileges with all the burdens that are generally attached to those in a similar position ; as one of the necessary consequences, courts are compelled to hold that the same prijiciplcs of law are applicable to the transactions in the ordinary course of business in which she may be engaged in as are applicable to persons that are sici. jut'is. One of these principles is that when a married woman engages in or carries on a separate business, and habitually issues bills and promissory notes in tiie ordinarj' course of such busi- iiess, she is estopped when sued by a Ijoiuifide purchaser of a promissory note, which, on its face, purports to be made by her in the ordinary course of such separate business, from showing that such note was accommodation paper. The principle upon which this doctrine is founded, is this, whenever the law making power invests a married woma?i with certain rights and privileges in derogation of the common law without it being otherwise intended in the law, she shall be held in the exercise of those rights and privileges, to the same responsibilities and liabilities that govern tjie man or unmarried woman. " A married woman carrying on a separate business or trade, is but a member of the body politic or social organization, entitled to ever}" right that men have, but not to any exemption from the effect of those principles of law and equity which have been established by the courts for the protection of property, and the » Higgins V. Ferguson, 14 111. 269. = McCullough v. Wilson, 21 Pa. St. 476; Bigelow v. Foss, 59 Me. 163. Vol. I.— 78 1234 The Law of Estoppel. well-being of society. She need not carry on a separate business or trade. She need not accept the position and privileges given her by the statute, but if she does, and goes out into the arena of active life, seeking for its advantages and power, she should be governed by, and held to, the same rules of action, the same liabilities, and bound by the same doctrines of established law and equity, as are those with whom she mingles in the business transactions of life. She can only be their peer, and not their superior ; she cannot justly be clothed in an armor of exemption and special privileges, because of her weakness at common law, and at the same time assert her right to all the privileges of man- hood in her business transactions. If she accepts the privileges of the statutes and the position the law gives lier, she accepts them cuta onere, bearing the same burden, and subject to the same liabilities and rules of law and equity as her unmarried sister. The true solution of the question is to be found in the declared position given her by statute ; she may hold property, and carry on any trade or business on her sole and separate account, and sue and be sued as if she were unmarried. In carry- ing on her business she is to be considered as an unmarried woman, and of course an mimarried woman can claim no exemp- tion, but stands on an entire equalty with men. Before the enactment of this class of legislation, it was a well established principle, that married women and infants were not bound by the doctrine of estoppel, except in rare instances, where it became necessary to prevent fraud. But when the reason of the rule is done away with, and the married woman is placed on the same plane of equality with the man or unmarried woman, then the rule becomes abrogated, or at least not applicable to her trans- actions in carrying on her separate business. If in entering into engagements she purports to conti'act not for her husband but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom ^he contracts has the right to make her separate estate liable, unless in so doing she exceeds the limitation if any there be, u[)on ihajus dispwiendi.* ' Mrs. Miitbewman's Case. L. R. 3 2 Eq. 182; Picard v, Hine, L R. 5 Ey. 7«1; Shattock v. Shattock, L. R. Ch App. 274; Bank v. Lainpne, L. Married Women. 1235 § 1102. In respect to her real estate, the general rule is that a married woman can only divest herself of title in the manner pointed out by statute.' But when the question is not whether a married woman shall be aided in the assertion of an equitable right or interest, but whether her legal rights shall be taken awaj or restrained, equity will follow the law and refuse to hold that the disabilities, which it imposes for wise ends, can be removed even for the prevention or redress of fraud. The cases where a married woman may be estopped by standing by while her prop- .erty is sold, without warning the purchaser, is only in cases where her power over the property is unfettered, and may be exercised without the assent of her husband.^ The law protects the wife, but gives her no license to commit a fraud. The acts and representations of the wife, in respect to her rights of prop- erty, made to deceive others, and which do deceive others to R. 4 C. P. 572; Johnson v. Gallagher, 3 De G, F. & J. 494; Johnson v. Mc- Vail, 14 X. J. Eq. 423; Huntley v. Whitney, 77 N. C. 392; Butler v. Cunipston, L. R. 7 Eq. 20; Willard v. Eastbam, lo Gray, 328; Yale v. Dederer, 18 JST. Y. 265; Manchester v. Sahler, 47 Barb. 155; Jc)hnson v. Cummins, 16 N. J. E. 97; Hutch- inson V. Underwood, 27 Tex. 255; La Touche v. La Touche, 3 H. «& C. 576; Kelso v. Talior, 52 Barb. 125; Wells V. Thornian, 37 Conn. 318; Craft V. Roland. 37 Conn. 491; Bogert V. Guiick, 65 Barb. 322; Lennox v. Eldred. 65 Barb. 410; Gosman v. Cruger, 69 N. Y. 87; Yale v. Dedcrer, 68 N. Y. 329; Bank v. Miller, 63 N. Y. 639; Conklin v. Cattrell, 04 N. Y. 217; Downing v. O'Brien, 67 Barb. 582; Williams v. Arniiston, 35 Ohio St. 296; Hulmev. Tenant, 1 Bro. C. C. 16; Bell v. Kellar, 13 B. IMon. 389; Feltplace v. Gorges, 1 Ves. Jr. 48; Cowles V. Morgan, 34 Ala. 535; Mur- ray V. Barlee, 3 M. & K. 210; liurnett V. Hawpe, 25 Gratt. 481; Aylett v. Ashton, 1 M. & C. 105; Bank v. Tay- lor, 62 Mo. 338; Owens v. Dickinson, Cr. & Ph. 48; Deering v. Boyle, 8 Kas. 523: Dougherty v. Sprinkle. 88 N. C. 301; McHenry v. Davies, L. R. 10 Eq, 88; Wicks V. Mitchell, 9 Kas. 80; Pip pen V. Wessen, 74 N. C. 437; Hard}' V. Van Harlingen, 7 Ohio St. 208 , Bank v. Gueuther, 13 App. N. Cas. 428; Dilzer v. Association, 103 Pa. St. 86 ; Knowles v. Toone, 96 N. Y. 534. ' Todd V. R. R., 19 Ohio St. 514: Rice V. R. R., 320hio St. 380; Murdock V. Lantz, 34 Ohio St. 589; Dukes v. Spangler, 35 Ohio St. 119. a Spalding v. Drew, 55 Vt. 253; Duster Co. v. Hibbard, 9 F. R. 558. Slocuni V. R. R. Co., 57 Iowa, 675. Connelly v. Branstler, 3 Bu.sh, 102; Couch V. Sutton, 1 Grant Ca.s. 114; McCullough V. Wilson, 21 Pa. St. 436; Brinkerhoff v. Brinkerhotf, 23 N. J. E. 477; Godfrey v. Thornton, 46 Wis 677; Fryer v. Risbell, 84 Pa. St. 021; Carpenter v. Carpenter, 25 JST. J. E. 194; Levy v. Gray, 56 Miss. 318; Hockett V. Bailey, 86 111. 74; Henry V. Gauthreaux, 32 La. Ann. 1103; Pat- terson V. Lawrence, 90 HI. 174; Frank V. Lillienfeldt, 33 Gratt. 377; Mason V. Jordon, 13 R. I. 193. 1236 The Law of Estoppel. their injury, will preclude her from asserting her claim against those who have acted on her representations and admissions.' Thus a married woman, living with her husband and l^eeping house together, purchased a certain amount of goods. A.t the time the purchase was made, she took from her pocket an envel- ope, in which she said she had a.check for $100 which belonged to her, out of which she said she would pay for said goods upon deliveiy. The plaintiffs, relyin*^ solely upon her promise and the faith of said check, sold said goods, and charged her for the same upon their books at the time of the purchase. The carpet Avas made up by the plaintiffs according ra agreement, and the goods delivered to the defendant, the plaintiffs sending with the goods the difference in cash between the amount of their bill and said check. She received the goods but refused to pay for them. She was estopped to deny that she was the owner of the SlOO (.'heck, and judgment was I'cndered against her personally. To estop a married woman from claiuiing real property there must be some ])ositive act of fraud, or something dune, upon which a person dealing with her, or in a manner affecting her right, might rersoiuibly rely, and upon which he did rely, and was thereby injured." § 1103. Contracts and agreements of married women in refer- ence to their real estate, when not joined by their husband, where such agreement is free from traud, cannot be enforced in' law or in equity. The law protects the weakness of women, not tlieir dishonesty. Where married women make contracts or agreements affecting their real estate, by fraudulent means, and thus obtain inequitable advantages, a court of equity will hold them estopped from setting np and relying on their coverture to retain the advantage. The court will require them to execute and perform the contract, if executory, or prevent them from avoiding it, or will compel them to place the other party in istatu f/uo, before they will he allowed to lescind or repudiate such 'Read V. Hall, o7 N. II. 472; lldin- Frank v. Liiieniield, 33 Gratt. 377; niondv. Corbctt, .ll N. H. 311; iS'ixoQ lleury v. Gautlireiiux, 33 La. Ann. V. Halky, 78 111. 611; Allen v. Allen, 1103; Godfrey v. Thornton, 46 Wis. 118 .Mass. 402; O'Brien v. llilburn, 9 677; Bank v Hamilton, 34 X. J. E. Tfex. 201. 158. • TowlLs V. Tisher, 77 N. C. 437; Makried Women. 1237 asrreement or contract.' Coverture confers no privilege or license to commit either fraud or falsehood, under sanction of an oath, uor protection from the consequences. If a married woman makes a solemn disclaimer on oath, in a deposition or otherwise, of title to property which is legally hers, siie is estopped from thereafter claiming it.'' § 1104:. Equitable estoppels are applicable to married women.' Thus, a married woman standing, by and seeing costly expendi- tures made, or is silent when she should have spoken, or makes a representation which is acted on, will be estopped by such con- duct.* Thus, a woman living under her maiden name, apart from her husband, under a void decree of divorce, and acting and rep- resenting herself as a single woman, binds herself by her acknowl- edgment of a deed as a single woman.* So, a married woman is estopped by her declarations given with her husband, to a pur- chaser of a mortgage, by their certificate, that there is no legal or equitable defense to the same." So, where she is the owner of a separate estate, and executes a mortgage thereon to secui'e a loan, and makes an affidavit that the money is to be used for the pay- ment of the purchase money due on the property, she is estopped from controverting this fact, wdiere she undertakes to claim it as ' Piittcrson V. Lawrence, 90111. 174; Conch v. Sutton, 1 Grant Cas. 114; Henry v. Gautlireauz, 32 La. An. 1103; McCullough v. Wilson, 21 Pa. St. 436; Holtz V. Bolden, 12 Phila. 498; Smith Brinkerhoff v. Brinkerhoff, 23 N. J. V. Munroe, 84 N. Y. 354; Savage v. . E. 477; Sindall v. Jones, 57 Ga. 85; Foster, 9 Mod. 35; Vanghu v. Van- Carpenter v. Carpenter, 25 N. J. E. dcrsteven, 2 Drew, 363; Sharp v. 194; Jones v. Kearney. 1 D. & W. Foy, L. R. 4 Ch. 591; Bein v. HeatK, 134; Wright v. Leonard, 8 Jur. (N. S.) 6 How. 238; Schwartz v. Saunders, 415; Drake v. Glover, 30 Ala. 382; 46 111. 18; Mason v. Jordan, 13 R. I. Lush's Trust, in le, L. R. 4 Ch. App. 193; Coal Co. v. Pasco, 79 111. 164: 591; Miely v. Butler, 26 Ohio St. 535: Anderson v. Armstead, 69 111. 452. Dukes v. Spangler, 35 Ohio St. 127. « Cooley V. Steele, 2 Head, 605; ^ Reis v. Lawrence, 63 Cal. 129; S. Stephenson v. Walker, 8 Baxt. 289; C, 46 Am. R. 762; Richeson v. Sim- Hamilton V. Zimmerman, 5 Sneed, mons, 47 Mo. 20; Rosenthal! v. May- 38. hugh, 33 Ohio St. 155; Patterson v. ' Gatling V. Rodman, 6 Ind. 289; Lawrence, 90111. 174. Peck V. Hensly, 21 Ind. 344; Law v. " Smith v. Munroe, 84 K. Y. 354; Long, 41 Ind. 586; Scranton v. Stew- Holtz v. Beldin, 12 Phila. 498; Howell art, 52 Ind. 68. v. Hale, 5 Lea, 405; Irvine v. Hale, ^Slocumb V. R. R., 57 Iowa, 675; 5 Lea, 405. Connolly v. Branstler, 3 Bush, 702; 1238 Thk Law of Estoppel. a homestead.' So, wliere lier realty has been improved by her hus- band, she acquiescing therein, she may be regarded as unmarried, and her consent be implied from lier knowledge, in the absence of objection.' If an innocent purchaser from a lunatic, without knowledge of his insanity, cannot be put in statu quo^ the con- veyance of the lunatic should not be set aside at the suit of the lunatic or his personal representatives.' Thus, where a wife of a lunatic, knowing his insanity, joined with him in conveying her land in part payment of property, concealing his insanity and acquiescing in the purchase, until it was too late for the other party to be put in statu quo^ she was estopped from claiining in her own right. Coverture will not be invoked and used as a cloak for fraud." So, a married woman may elect so as to affect her interest in real property, and where she has once so elected she is bound, and the transaction will be enforced against the heir.* The wife, after her husband's death, may ratify the act b^' which, during his life time, she bound herself for the debt. Such a ratilication retroacts, and renders her act valid from its original date. Therefore, creditors who have since become such cannot attack the validity of the ratified act." § 1105. Under various statutes removing the common law disabilities from married women, coiresponding liabilities have necessarily been imposed upon them. They take the civil rights and privileges conferred, subject to all the incidental and correla- tive burdens and obligations, ajid their rights and obligations are to be determined by the same rules of law and evidence by which the rights and obligations of the other sex are determined, under like circumstances. To the extent, and in the matters of busi- ness in which they are by law permitted to engage, they owe the ' Latbrop v. Ass'n, 45 Ga. 483; God- Rusk v. Fentou, 14 Bush, 490; S. C, frej' V. Thornton, 46 Wis. 677. 29 Am. R. 413. ••* Ilustcd V. blathers, 77 N. Y. 388; ^ Ardesoife v. Bennett, 2 Dick. 463; Heck V. Fisher, 78 Ky. 643; Auder- Barrow v. Barrow, 4 K. & J. 409; son V. Mathers, 41 N. Y. 262; Dalton Willoughby v. Middleton, 2 J. & H. V. Tindolph, 87 Ind. 490. 344; Sisson v. Giles, 11 W. R. 558; 3 Musselman v. Gavins, 47 Ind. 2. Savill v. Savill, 2 Coll. 721; Andersen •» Davis v. Tingle, 8 B. :Mou. 542; v. Abbott, 23 Beav. 457. Barby V. Brainbridge, 11 B. 3Iou. 115; ^Latitte v. Delo^ny, 33 La. An. Wright V. Arnold, 14 B. Mon. 643; 659; Ilibbard v. Bugbee, 55 Vt. 506; Connally v. Bransler, 3 Bush, 752; S. C., 45 Am. R. 637. Married Women. 1239 same duty to those witli whom they deal, and to the public, and may be bound in the same manner as if they were unmarried. Their conjmon law incapacity cannot serve as a shield to protect them from the consequences of their acts, when they have statu- tory capacity to act. A married woman is sui juris to the extent of the enlarged capacity to act conferred by statute, and may be estopped by her acts and declarations, and is subject to all the presumptions which the law indulges against others, with full capacity to act for themselves. Where there is no legal capacity to contract, a party will not be estopped by falsely representing that he has capacity ; that is, the incapacity is not removed by any fraudulent representation of the actor. The law will not permit one legally incapacitated to do that indirectly which he or she cannot do directly. That is especially the case in respect to infants and married woman laboring under the common-law disabilities, the law imposing the disqualification from motives of public policy, and for the safety of those regarded as weak, and needing this protection. But the reason of the rule, ceasing with the removal of the incapacity, the rule falls in the management and control of her separate property, when acting by agents. A feme covert is answerable for the frauds of her agent, while acting within the scope of the agency, although the fraud may be with- out her knowledge or assent. Where by statute a married woman may carry on any trade or business on her sole and sepa- rate account, and the earnings from her trade or business are her sole and separate property, and she may sue and be sued in all matters having relation to her sole and separate property, in the same manner as if she were sole, she has all the legal capacity to do every act incident to the business or trade in which she may engage, which a feme sole w'ould have, that is, full legal capacity to transact the business, including, as incidents to it, the capacity to contract debts and incur obligations in any form, and by any means, by which others acting sioi juris can assume responsibilit3^' Thus, in a late case, the court said : Under • Bodine v. Killeen, 53 N. Y. 93; Mullen, 47 N. Y. 577; Lyman v. Cess- Sherman V. Elder, 24 N. Y.381; Keen ford. 15 Iowa, 239; Grove v. Jeager, V. Coleman, 30 Pa. St. 299; Lowell v. 60 111. 249; Schwartz v. Saunders, 46 Daniels, 2 Gray, 161; Goulding v. 111. 18; NetterviUe v. Barber, 52 Miss. Davidson, 26 N. Y. 604; Baum v. 168; Newman v. Morris. 52 Miss. 402; ]240 The Lawt of Estoppel. the statute the wife is clothed with the same property rights, and clKir'j-ed with tlie same liabilities as the husl)aiid. Indeed, it can not be said that, as to her propert)% she is deprived of any rights which her husband enjoys that relate to his, or that any remedy is denied her, or any lial)ility removed from her which arc pos- sessed by or imposed upon the husband. She can control her own property, vindicate her own individual rights, and bind her- self by contract as fully and to the same extent as her husband. When the law will imply a contract binding the husband, under the same circumstances it will one against the wife. In short, the statute bestowing upon her equal property rights with the husband imposes upon her the same obligations he has, and the wife may ratify a defective and void conveyance of the home- stead in all cases where the husband could ratify such an act. Where the husband or wife executes a deed for the homestead which, by reason of defects of form, is void, the same may be ratified by the assent, contract or conduct of the wife, the same as by the husband. There is nothing in the character of the property which deprives the parties of the right to ratify their void deed therefor. Where the husband and wife executed a deed for the homestead, which was v(»iil by reason of defects in its form, lldd, that where the wife liad full knowledge of her rights, but voluntarily surrendered her ])ioperty, made no objec- tion to the grantee's title when he offered to sell it, and permitted him to quietly hold possession for more than three years, and during that time to make iujprovenients thereon and dissharge incumbi'aiices upon it, such acts will auiount to a ratitication of the deed by the wife, and estop her from claiming title to the property thereafter.' On the sauje ]>riiieiple, one cannot take advantage of certain statutory piovisions without incurring thereby the attendant liabilities. This applies to a married wunian becoming a shareholder in a national bank." § HOC. There is nothing in the marital relations which prevents a wife from eniploying an jigent in the management of her property and estate. And it is well settled that a husband Davis V. Bank, 5 Neb. 24' ; O'Cotinnr. .5 Daly, 2S. Bank v. Case, 99 C. S. 028; Hobart v. ' Spairord V Warren, 47 Iowa, 47. Jobiison, 8 Fed. Rep. 49;J. Married Womeist. 1241 may be his wife's agent.' A wife may by allowing her husband to deal with her property as owner, make him her agent in respect thereto, and is bonnd by his acts to the same extent as other principals are by the acts of their agents.^ Where the wife fraudulently permitted her husband to represent himself as the owner of her separate property, and procure mechanics to make valuable improvements thereon, without disclosing her ownership or repudiating his authoritj^ she is estopped, afterwards, from denying his authority to cause the improvements to be made, when the mechanics seek to enforce liens for payment of the amount due them for work done under the faith of the husband's authority/ A married woman was not estopped by a deed fraudulently antedated to deceive a purchaser with the belief that she was sole, where she sets up coverture as a defense. While an equitable estoppel may be as effectual as a deed, it cannot be binding whei'C a deed will be void." When a tort is so involved with a void contract, and would not have occurred if the contract had been performed, and the wrong consists in the breach of the contract, the defect is vital and cannot be obviated by a change in the form of action. This is the well settled law of England and Penns^dvania.' A married woman will not be estopped by a failure to expose facts of fraud or misconduct on the part of her hu'sband, in which she does not share, or even to point out that property which he is disposing of as his own belongs to her, for ' Wells V Smith, 54 Ga. 262 ; Keller » Walker v. Walker, 17 S. C. 329; V. Mayer, 55 Ga, 406; Eystra v. Oapell, Spaulding v. Drew, 55 Vt. 255; Walker 61 ]Mo. 578; Paine v. Farr, 118 Mass. v. Carringtou, 74 111. 446: Early v. 721; Cooper v. Hann, 49 Ind. 393; Rolfe, 95 Pa. St. 60; Pierce v. Whaling, Iceland v. Collver, 34 Mich. 418; 7 Biss. 426; Moreland v. Myall, 14 Jordan v. Anderson, 29 La. Ann. 749; Bush, 474; Bowen v. Amsden, 47 Vt Cohen V. O'Clonnor, 5 Daly, 28; Sher- 569; Sawyer v. Perry, 62 Iowa, 238; man v. Elder, 21 N. Y. 381 ; Knapp Camden v. Hiteshew, 23 W. Va. 286. V. Smith, 27 N. Y. 277, Buckley v. » Coal Co. v. Pasco, 79 111. 164; Wells, 33 N. Y. 518; Gage v. Dandry, Schwartz v. Saunders, 46 111. 18; 34 N. Y. 293; Kluendcr v. Lynch, 4 Anderson v. Armstead, 69 111. 452. Keyes, 869; Rush v. Voughi, 55 Pa. * Lowell v. Daniels, 2 Gray, 161; St. 437; Musser v. Gardner, 66 Pa. St. Keen v. Coleman, 39 Pa. St. 299. 242; Mclntyre v. Knowlton, 6 Allen, * Keen v. Hartman, 48 Pa. St. 497. 565; Lewis v. Johns, 24 Cal. 98. 1242 The Law of Estoppel. the reason that the law will presume that she was swayed hj his influence or restrained by fear of giving him oflfense.' § 1107. Due regard should be had to the age of a minor in deciding upon his responsibility for wl)at he has said or done, and he ought not to be estopped from asserting his riglits, unles8 there is sufficient ground for believing he knew of their existence, and was aware of the injurious effect which his conduct might have upon others." It has been an almost universal rule that estoppels do not apply to infants' ixudyemes (Covert* Equitable estoppels are applicable to married women, and in some instances to infants. Thus, if a contract for the erection of a building is made by the husband, and the same is erected on the real estate belonging to the M'ife in her separate right, with her full knowledge, approbation and consent, and she does not disclose lier interest, and, knowing that it is being done, takes no steps to prevent it, she will be estopped from setting up her riglits as a defense to a mechanics' licn.^ A petition to enforce a mechanic's lien, on land belonging to a woman, for materials furnis^hed to her husband, of which she was aware, must allege facts to bind her by way of estoppel, or by the agency of her husband.^ Mere averments that a building was erected '' with the full knowledge, consent, and approbation," of the wife, and progressed " under her daily view and inspec- » Bank v. Lee, 13 Pet. 107; Drake 184; Ackley v. Dygert, 83 Barb. 17G. V. Glover, 30 Ala. 382 ; Palmer v. * Morrison v. (Vilson, 13 Cal. 45)1; Goss, 1 S. & M. Ch. 48; McClure v. Lowell v. Daniels, 2 Giay, 161; Kceue Doulhitt, 6 Pa. St. 414; Gatlin- v. v. Coleman, 39 Pa. St. 209; Bank v. Rodman, G lud. 2S9. Bellis, 10 Ctish. 270; Gliden v. ^ Drake v. Glover, 30 Ala. 382; Struppler, 52 Pa. St. 400; Jian-ely v. Wilks V. Fitzpatriek, 1 Humph. .'54; Spring, 21 JMe. lOO. Upshaw V. Gibson, 53 Mi.ss. 341; * Swartz v. Saunders, 46 111. 18, Rogers v. Broolis, 30 Ark. 612; Moore Higgins v. Ferguson, 11 111. 269; V. Foote, 34 Mich. 443; Carpenter v. Donaldson v. Holmes, 23 111. 85; Carpenter, 27 N. J. E. 502. Couch v. Sutton, 1 Grant Cas. 114; * Lackman v. Wood, 25 Cal. 153; Galling v. Rodman, 6 Ind. 289; Law Todd V. Kerr, 42 Barb. 465; Brown v. v. Long, 41 ind. 586; Scraiitun v. McCuue, 5 Sand. 224; Williams v. Stewart, 52 ind. 08; Pock v. Hensley, Baker, 71 Pa. St. 482; Wilkinson v. 21 Ind. 344; Wheeler v. Hall, 41 Wis. Filby, 24 Wis. 441; JSorris v. Wait, 2 147, Anderson v. Armistead, 6'.J 111. Rich. 148; Bartlett v. Wells, 1 B. Oc 452. S. 836; Merriam v. Cunningham, 11 •* Wilson v. Schuck, 5 111. App. 572, Cusli. 40; Buriey v. Pu«sell, 10 N. H. Maiiried Women". 1243 tion," and that she is living with her husband in such building, claiming it as a homestead, show no liability on her part." § llOS. Where a married woman whose husband had deserted her, sold and conveyed a tract of land and received full considera- tion therefor, subsequently she attempted to avoid the conveyance on the ground of coverture. The court say : " In making this deed Mrs. M. acted, as well she might, as a feiiw sole, and, in order to make the sale, represented herself as such. So far as appears, she received an adequate consideration for the sale. The contract was fully executed on both sides, as she then supposed. She does not offer to rescind, by tendering back the consideration ; but retains the fruit of her contract, while treating it as a nullity. In the meantime, her grantee, acting, as we may presume, on the faith of representation and covenants, had improved the property, and conveyed it to a bona fide purchaser for value — the present plaintiff in error. If this were an executory contract to convey, and the purchaser sought to enforce a convej'ance upon payment of the consideration, equity might refuse to do so ; but where she has received the consideration, and executed the contract, as far as she had capacity to do so, a court of equity will not aid her to repudiate it." " Where a wife, who was living with her husband, induced a buyer to purchase lands owned in her own riglit, by verbally agreeing that a debt due from her husband to the pur- chaser, should be taken in part paj^nent, it was held that, after such purchase, a conveyance by her, she could not repudiate this contract as to her husband's debt and collect the entire purchase money. As against the purchaser from her, she was estopped by her verbal agreement, although under the disabilities of coverture."* While a married woman's covenants in a deed in which she joins with her husband are invalid, and can not be made the foundation of an action against her for a breach, yet, as in the case of an expectant lieir, they operate by way of estop- pel on her after acquired title.^ If such is the effect of covenants ' Lauer v. Baudon, 43 Wis. 556; v. ■Sliearer, 7 Mass. 21; Colcord v. Ferguson V. Spear, 65 Me. 377. Swann, 7 Mass. 291; ^lassie v. 2 Meiley v. Butler, 26 Ohio S. 535; Sebastian, 4 Bibb, 436; Nash v. Spof- Bullock V. Gritfin, 1 Strobh. Eq. 60; ford, 10 Met. 294; Nelson v. Ilarwood, Usher v. Richardson, 29 Me. 415. 3 Call. 342; Wadleigh v. Glines, 6 N, 3 Hilly. West, 8 Ohio, 222; Fowler H. 18; Knight v. Thayer, 125 Mass. 1244 The Law of Estoppel, in a (Iced pro])er]j execnted by a married woman, acting under all the disabilities of coverture, a fortiori, it -would seem she could be estopped by such covenants where no sucli disabilities, in fact, existed. And if the covenants of an heir apparent estop him, though his deed is void as a conveyance, because he has no vested interest, why should it not estop her, who has an inchoate right of dower.' " And by bringing suit to recover the purchase money for a tract of land conveyed by a deed defectively exe- cuted, a married woman affirms the conveyance and is barred from claiming any interest in the land." * " It is well settled that a widow may bar her dower before its assignment, by way of estoppel, although she could not convey it or release it, except to the owner of the fee. Her acts and contracts, in that behalf, are subject to the same equitable rules as those of an}^ other y^me' soUy and a court of equity, by applying the doctrine of estoppel, will not allow her to commit a fraud." The court then said : " We conclude that, under the facts of this case, the disabilities of coverture were in fact removed, so far as to make her capable of contracting, and suing and being sued. At least, a court of equity would regard her ^^ ^ feme sole, and wliile the I'igid and liarsli rules of the common law, as it once existed in this State, regarded the wife, who was living and cohabiting with her husband, as under, or protected by these disabilities ; yet, where sucli relation has, in fact, ceased for eight years, she is empowered and justified in acting as a f erne sole. Having so acted, in' making this convey- ance, and in receiving the consideration it ^would be grossly inequitable to allow her to repudiate her contract after liaving enjoyed its fruits." " A widow, before dower is assigned, having only a vested right to be endowed, can not, at law, convey such right, — she can only release it. Yet, being a feme sole, she can effectually bar such right, by way of estoppel. Being ixfenie sole, equity will treat her as such, and enforce her contracts in relation to her nnassigncd dower, when she has estopped herself by her acts or contracts. Mrs. M., being empowered to act as ^feme sole by the long absence beyond the state, and desertion of her lius- band, could as fully bind herself as a M'idow, i. e., she was as fully 25 ; Dukes v. Spangler, 35 Ohio St. > Rosenthal v. Mayhugh, 33 Ohio 127. S. loo. " Share v. Anderson, 7 S. & R. 42 Markied Women. 1245 relieved from the disabilities of coverture, as if her husband had been actually dead. She was entitled, on that proof to have dower assigned as if she were a widow in fact. As a widow might do, she joined with the heirs in the deed to R. and covenanted the title. Had she been under all the disabilities of coverture, and joined with her husband in such covenants, she would have been estopped from asserting an after acquired title. If, then, a widow, or a feme covert, in fact, by uniting with her husband, can bar lier future rigiit to have dower assigned, or estopped herself from asserting an after acquired title, we are unable to see why a mar- ried woman, under the circumstances of this case, who has all the powers of Sifeme sole, can not do so. Treating Mrs. M. as wfeme sole, as to her capacity to contract, there is nothing in the nature of her interests in the property to prevent her from binding her- self by her representations and covenants so far as to estop her in equity from repudiating a contract fully executed in good faith by her grantee, and as she supposed and intended at the time fully executed on her part. Equity recognizes the separate existence of the wife, even under all the disabilities of coverture, and regards her as a rational and responsible subject of its jurisdiction, erttitled to its protection, aiid amenable to the decrees of a court of conscience.' It is said, there was no fraud in Mrs. M.'s repre- sentations that her husband was dead, because it does not appear, she knew it was false. This was not necessary. It is not neces- sary, t(^ an equitable estoppel, that the party should design to mislead another acting in good faith and with reasonable diligence."" § 1109. A married. .woman is capable of committing a fraud, and is liable to be visited with the consequences of the commis- sion of it.^ In an English case, which has been cited as estab- lishing this principle, it appeared that a married woman was 1 Phillips V. Graves, 20 Ohio S. 380; ^ Morgan v. Spangler. 14 Ohio S. Levi V. Earl, ^0 Oliio S. 147; Mount 102; Jordan v. Money, 5 H. L. C. 212; V. Morton, 20 Barb. 123; Ford v. Howard v. Hudson, 2 E. & B. 13; Ford, 4 Ala. 142; Fitz v. Hall. 9 N. Blair v. Wait, 69 N. Y. 113; Kosen- H. 41; Evans v. Bucknell, 6 Ves. 174; thai v. Mayhugh, 33 Ohio S. 155. Wright V. Arnold, 14 B. Mon. 638; ^ y^ugiian v. Vanderstegcn, 2 Drew, Dunn V. Cudney, 13 Mich. 239; Her- 363; Sharp v. Toy, Law R. 4 Ch. 35. man on Estoppel, § 494. 1246 The La\v of Estoppel. eiiritlcd to an estate in fee simple, expectant on tlie deatli of her mother, ller lialf-sister was about to be married ; the married woman entitled to this remainder or reversion was anxious to uromote that marriage, and in order to bring it abont, induced her mother to represent herself as owner in fee of the estate, though slie was only tenant for life, the married woman entitled in remainder suppressing and concealing the fact of her own title. The marriage was accordingly effected by the mother con- voying the estate, as if she were the owner in fee, to the intended husband. Afterwards the married woman, who had thus induced her mother to execute this conveyance, became a widow ; and, on a bill tiled by the husband of the sister, she was compelled by the court tu convey the estate. A married woman's estate may become bound by the partici- pation in fraud ; as where a mortgage is obtained upon property of t\\Qfemey upon the false representation made by her that she owned the absolute interest in the estate. Such a representation will give the mortgagee precedence over a prior man-iage settle- ment of the same estate, of which the mortgagee had no notice at the time ; and this, too, though there was a defect in the feme's execution of the mortgage, which was not remedied until after the mortgagee had received notice of the settlement.' If a married woman, free from all constraint, and with a full knowledge of her rights, should represent that a certain tract of land was not her homestead, and then cause a person to purchase it, she would be concluded by her acts ; but if the party purchas- ing should know all the facts, or by reasonable diligence could know, and it should be apparent that the mari'ied woman was not entirely free from restraint, or was not o<*gnizant of her rights, whatever admissions might be made under these or similar cir- cumstances could not, with any propriety, be said to intluence the purchaser, or to estop the married woman from asserting her rights. These admissions, whether of law or of fact, which have been acted on by others, and which were calculated to influence a prudent man, and which were the cause of another's actions, and which were deliberately and knowingly made, are conclusive against the party making them, in all cases between him and her, and the person whose conduct was thus influenced.*'' Thus, a party • Shurp V. Foy, L:iw II. 4 Ch. 35. « Welch v. Rice, 31 Tex. 088. Married Women. 1247 having bought and received a conveyance from ^feme covert ut" a tract of land for a full consideration, believing that she had the power to conve}', made improvements in good faith upon the land, althongh the conveyance to him cannot be sustained, jet, inasmuch as she actively participated in the sale and conveyance, appellant is entitled to be reimbursed for his improvements.' So, if a married woman induces a party to purchase an estate to which she has an adverse title, she, knowing at the time of such title and fraudulently concealing it, she will be estopped from subsequent!}' setting up her title against him." Thus, where a husband conveyed a farm to his wife, but remained in possession several years thereafter, until his death, some montlis prior to his death he granted the right to mine coal on part of this farm, to a part}' who worked it under the lease, during the lessor's lifetime, and after his death, with the widow's knowledge. The lessee had no knowledge of the existence of the deed by which the farm was conveyed to the wife, nor was it recorded until more than a year after his death. After the husband's death his widow received payments of royalty under the lease, subsequently she filed a bill to restrain the lessee from entering upon the prop- erty to mine coal ; by her acts she had ratified and confirmed the lease and was bound by it.'^ Whatever may be the rule concern- ing the formalities needed to bind married women, there is no doubt they may be estopped by their deliberate conduct, as well as any one else.* If a court can ever set aside a conveyance for a mere omission which is made out by contradicting an official act, where there has been no fault in the payment of the prop- erty, it certainly will not do so when the party complaining has not only consented to the act, but has never taken any course to repudiate it, or to save the grantee from the effects of confidence in its validity.^ So, where a wife in the possession of property, claiming to own and control it, and on her declartion of ownership, employs a party to make improvements on the same, under the belief that it is her separate property, she will be estopped 1 Hawkins v. Brown. 80 Ky. 186. 382. " McCulIougb V. Wilson, 21 Pa. St.. ^ Trout v. McDonald, 83 Pa. St. 144. 436; Couch V. Sutton, 1 Grant's Cas. * Sliarpe v. Foy, 4 Ch. App. 35; 114; Biinkerlioff v. Brinkerl:off, 25 N. Lush's Trusts, in re, 4 Ch. App. 591. J. E. 194 ; Connolly v. Branstcr, 3 * Norton v. Nichols, 35 Mich. 148; Bush, 703; Drake v. Glover, 30 Ala. Fryer v. Rishell, 84 Pa. St. 521. 1248 The Law of Estoppel. from denying that she owned it Avlieii sued for the value of the labor performed ; it is wholly immaterial whether she has any title to it or not.' So, where a wife answers to one to whom her husband has mortgaged her personal property, and wlio is demanding more security; "what more do you want? you have a mortgage on all the personal property already," had rati- fied her husband's act in giving the mortgage.' § 1110. Married women to the extent and in the matter of business in which they are by law permitted to engage, owe the same duty to those with whom they deal, and may be bound in the same manner as if unmari'ied. Where they clothe otiiers with apparent authority to act for and bind them, the apparent must be taken as the real authority, and they are estopped from disputing it so far as others have been induced to act upon the faith of it.' Thus a husband obtained from liis wife her indorse- ment of a printed form of a negotiable note, date, time, and place of payment, amount, and name of payee, being bhmk. Tlie indorsement was given to enable the husband to pui'cliase certain goods. lie failed to make the purchase, subsequently (liis wife supposing the note to be destroyed), went to another city and pur- chased a much larger amount of goods, than he contemi)lated at the time of the indorsement. The blanks in the note were tilled up to suit his purchase, the-payees not being awai'e of the cir- cumstances under which the wife signed and delivered the note. Her separate estate was made liable, and the wife bound l)y the indorsement." In another case, where the wife was the owner of the real estate covered by mortgage, with a decree of foreclosure pending; she and her husband deeded it to two of the defend- ants, with an agreement with the husband alone, that they were to pay the decree, and when the property was sold tlie proceeds were to be applied to pay the amount of the decree, to pay for the care and numagement of the property, and an indebtedness due from the husband to one of the defendants. The wife did not know what contract had been made with the defendants except as she was informed by her husband, who procured the deed to be executed and delivered it. She intrusted him with » Nixon V. Hallcy, 78 111. 611. » ^odino v. Killeen, b?y N. Y. 993; » Merrill v. Parker, 113 Mass. 250. Lavassar v. Wushljuru, 50 Wis. 200. « Frauk v. Lilieutield, 33 Grait. 377. Married Women. 1249 her title deed, and understood that Avhatever arrangement was to be made witli the defendant in i-elation to the property was to be made by him. Held, that the proceeds of the real estate should be applied in accordance with the husband's contract ; that the rule applies that where one of two innocent parties must suffer by the fraud of a third, he who has reposed a trust in the fraudulent agent ought to bear the loss.' In Texas the power of the husband over the community estate by estoppel is not less than that of a partner to estop his firm.'' § 1111. Where a man-ied woman intends to retain property as her own sole and separate estate, free from her husband, she should adopt some pla!n by which the public will have notice that the property belongs to her and not to her husband. Thus, a mar- ried woman who allows her husband to use her capital as his own, invest and re-invest it in his own name, and obtain credit on the faith of his being the owner thereof, will not be allowed to inter- pose her claim to the acquired property to the injury of creditors.' Thus, where, by allowing her husband to hold himself out as patentee and sell a patent right, and receive the proceeds which she claimed should be paid to her because her husband was improvident, she cannot take out a patent for the same thing and claim an infringement ;' or allows her husband to mortgage it in her presence, uncontradicted, cannot claim it as against the mort- gagees;^ or allows he husband to hold himself out as owner, as he sees fit, on the faith of which others have acted ;* or if he trans- acts her ordinary business, the presumption is tliat it was with her assent.' § 1112. A married M^oman is estopped from asserting any title contrary to, or from controverting facts recited in a cause to which she was a party. She should have protected her rights in ' Spaulding v. Drew, 55 Vt. 25:5. 2-4 N. Y. 381; Guill v. Hariug, 1 111. ■2 Kaniiey v. Miller, 51 Tex. 263. App. 490. 3 Hockett V. Bailey, 86 111. 74; Lich- ■■ Duster Co. v. Ilibbard, 9 F. R. tenberger v. Graham, 50 Ind. 288; 558. Bank v. Hamilton, 34 N. J. E. 158; * Levy v. Gray, 56 ISIiss. 318. Di.xon V. Brown, 53 Ala. 428; Pribble « Griffin v. Ilamsdell, 71 Ind. 440; V. Hall, 13 Bush, 61; Brooks v. Shel- Coleman v. Serames, 56 Miss. 321. ton, 54 Miss. 353; Duster Co. v. Hib- ' Early v. Ilolfe, 95 Pa. St. 58. bard, 9 F. R. 558; Sherman v. Elder, Vol. I.— 79 1250 The Laav of Estoppel. that action.' So, where she makes a disclauiier of ownership, in certain property, she cannot thereafter assert it.'' So, where an ittorney was empk)yed in a cause without the woman's knowl- edge, by her ixilative and general advisor, to assist her attorneys in tlie case, and attending to the case with her knowledge, and without her repudiation, ho will be entitled to recover from her for his services. Her acquiescence will be presumed.' So, where husband and wife recognize the title of another by taking a lease thereof or agreeing to purcliase the same, they will be estopped from disputing such title.* Where a married woman, after being examined by the judge apart from her husband, admits in open court that the claim sued on inured to her separate benefit, she will not be permitted thereafter to contradict such admission as a ground for attacking the judgment.^ § 1113. If a married woman voluntarily makes admissions and representations in respect to her rights of property which deceive others, and induce them to give credit to the husband on the faith of the property, she will be precluded from asserting her claim against the rights of those Avho have trusted in and acted upon her admissions and representations." If a wife permits an arbitration to proceed in the name of her husband, knowing her- self to be the party in interest, she will be bound by the award ;' and acquiescence in a sale by a married woman, attended with the receipt of the price by her husband, was held to render the title of the purchaser valid.* A person succeeding to the title of a married wohian, is estopped from denj-ing her competency to make the title, while on the other hand, the decisions seem to be quite as strong the other waj-. Thus, it is held, that though the wife be silent when she knows her husband is holding out her > McCaffy v. Corrigan, 49 lud. 17.j; Edwards, 57 Miss. 128. Landers v. Douglas, 46 Ind. 522 ; ^ Thornhill v. Bank, 34 La. Ann. Wagner V. Evviiig. 44 Ind. 441; Elson 1171. V. O'Doucl, 40 Ind. 300; McDaniel V. » Cravens v. Booth-, 3 Tex. 243; Carver, 40 Ind. 250; Buell v. Sliuman, Bigelow v. Foss, 50 Me. 102; Cooley 28 Ind. 67. v. Steele, 2 Head, 605; Dan v. Pudney, » Cooley V. Steele, 2 Head, 005 ; 13 iMicb. 239 ; Knowles v. Toone, 96 Cravens v. Booth, 8 Tex. 242. N. Y. 534. 3 Yerger v. Aiken, 7 Baxl. 539. ' Smith v. Sweeney, 35 N. Y. 291. * McMath V. Teel, G4 Ga. 595: Als- » Morris v. Steward 14 Ind. 334, ton V. CundiflE, 53 Tex. 453; Ilobson v. Walmsley v. Cook, 3 Neb. 344. Married Women. 1251 property as bis own, she is not estopped' even after the payment of the part of the purchase money, for the land in her presence, has been held not to prejudice her right to claim the land, after the termination of coverture.* A devisee, who, before real estate is assigned to her by the probate court, consents to the sale by the executor to settle the estate, and to confirm the sale, quit-claims to the executor three days afterwards, is estopped from setting up title in herself, adverse to executor or his vendee.^ So, where the complainant executed a covenant to reduce the rent, although insufficient to accomplish the purpose designed, and her continued acquiescence in the receipt of the diminished rent, of which she had full knowledge, and the fact that she had a trustee and other agents learned in the law, to look after her interests, and was entitled herself beneficially to the property, with power to exe- cute acquittances to her trustee or lessee, estopped her from suc- cessfully invoking the aid of a court of equity." § 1114. The contract of a married M'^oman being void, it cannot be ratified unless by deed in the mode prescribed by the statute. Positive acts of encouragement which might operate to estop one sui juris^ will not afiiect one under legal. disability ; and a wife can do or forbear to do an act to affect her propert}", unless set- tled to her separate use. Thus, a married woman, by agreement signed only by herself and without acknowledgment, contracted to sell land ; she received one year's interest and a small part of the purchase money. The purchaser took possession and made improvements witli her knowledge and encouragement. It was held, that she was not estopped from recovering the land.^ When a married woman keeps a boarding house with the consent of her husband and controls the entire business, contracts of pur- chase made by her for the purpose of such business must be con- » Drury v. Foster, 2 Wall. 24; Bank « Frazier v. Gelstoa, 35 Md. 298. V.Lee, 13 Pet. 10; Bemis v. Call, 10 * Gliddeu v. Strupler, 52 Pa. St. Allen, 512; Merrium v. R. K., 117 400; Behler v. Weyburn, 59 Ind. 143: Mass. 241; McMonis v. AVebb, 17 S. Kogeisv. Brooks, 80 Ark. 012; Woods 0.558. V. Terry, 30 Ark. 385; Coal Co. v. « Delancey v. IMcKeene, 1 Wash. C. Pasco, 79 111. 164; Saudford v. Woods, C. 354. 49 Ind. 165. 3 Crary v. Hall, 28 Vt. 364. 1252 The Law of Estoppel. sidereJ as contracts in relation to her sole property, and therefore binding upon her.' § 1115. The principle that a party cannot impeach a judgment on any ground which might have been pleaded or relied on as a defense to tlie suit, does not appl)^ to a case when the defendant is a feme covei% and not sui juris. "^ A married woman is not estopped by confessing judgment from afterwards denying that the debt inured to her benefit.' § 1116. As a general rule, infants are not bound by estoppels. It has been held even where an infant represents himself as being of full age, he is not estopped from setting up infancy as a defense to a contract entered into under such fraudulent repre- sentation.* It has also been declared that legal incapacity cannot be removed, even by fraudulent representations, so as to create an estoppel ia acts to which the incapacity relates. And it is held that estoppels in pais are not applicable to infants and married women, and that fraudulent misrepresentations as to capacity cannot be equivalent for actual capacity.' § HIT. Under the Roman law,° generally, all minors were entitled to the benefit of restitution with regard to all lawful transactions or omissions by which they have suffered an injury.' There wei-e the following exceptions, viz. : When a minor with an evil intent has represented himself to be of age ;" when he has been dechired to be of age by the proper authority ;° when after having become of age, he either expressly or tacitly approved of the transaction, '" or if pubescent confirmed it on oath ;" when » Tillinau v. Sbakelton, 15 :Micli. Innes v. Templeton, 95 Pa. St. 262; 447: Diugens v. Claucy, 67 Barb. 5 ;6. S. C. 40 Am. R. (543; Schuell v. Clii- ■" UridUh V. Clarke, 18 Md. 457; cago, 38 111. 382; Fraiiklin v. Gault, Bridges v. McKeuua. 14 Md. 2-58. 12 Ala. 298. » Barues v. Burbridge, 15 La. Anu. « Mack Rom. L. § 229, p. 191. 628. ' Fr. 3, § 4, D. 4, 4; Gaius N. 57. •" ;Merriam v. Cunningham, 11 Cush. » Const. 1, 3, C. 2, 43. 40; Briely v. Russell, 10 N. H. 184; » Const. 1, C. 2, 45. Conrad v. Lane, 26 3Iinn. 389; S. C, '"Const. 1,2, C. 2, 46; fr. 3, § 2, D 37 Am. R. 412. 4, 4. * Br own v. McCune, 5 Sandf. 224; " Const. 1, Autli Sacramenta Pube- Keen v. Coleman, 39 Pa. St. 299; rum, C. 2, 28. Sims V. Everbardt, 102 U. S. 300; Infants. 1253 the minor gave something which propriety required ;' when after a decree for payment {decretum de solvendo), a payment has been made to himself or guardian,^ and lastly there is no restitution because of a wrong by him/ The Civil Law, defining " dolutn malum esse omnen callidi- tatem,faUaciani, machinationem, ad circuinvenienduin, fallen- dum, decipiendum alterum^ adhihitam^'' says (the language is that of Ulpian), " Item in causae cognitione versari laheo ait, ne in pujpillwni de dolo detur actio, nisi forte nom^ine hereditario con- veniatur. Ego arhitior et ex suo dolo conveniendum, si jji^oxitnus pidjertaM est, maxime si locujpletior x hoc f actus est,'''' and in the words of Paulus, " Quod e7iim si impet^'averit d procuratore petitoris ut ah eo absolveretur / 'i^el si de tutore m,entitus peciin- tain accepit ', vet alia similia admisit, quae non magnam machinationem exigunt.^^ Then Ulpian, ''' Sed ex dolo tutoris sifactus est locupletior pxdo in enrri dandam actionem, sicut cxceptio datur. And unquestionably this is the law of England and the United States, that an infant, however generally for his own sake protected by an incapacity to bind himself by contracts, may be doli capax in a civil sense, and for civil purposes, in view of a court of equity, though perhaps only when pxd)ertati proximus . or older, and not at so earlj^ an age as in a criminal sense, and for criminal purposes, and may therefore commit a fraud, for which, or the consequences of which, he was after his majority made civily answerable in equity. § 1118. That an infant is answerable for a fraud is clear, if an infant, having a right to an estate, permits or encourages a purchaser to buy it of another, the purchaser will be entitled to hold against the person, who has the right, althongh covert, or under age.' In Cory v. Gertcken, the vice chancellor, in deliver- ing the opinion of the court, said : " Though in general a pay- ment to an infant may be bad, yet if the infant practices a fraud, he is liable for the consequences. At law, an infant is liable in tort, and cannot plead his infancy ; as where (a very strong case), • Fr. 9, § 1, D 4, 4; Const. 1, C. 2, '^ Savage v. Foster, 9 Mod. 35; 30. Evans V. Bicknell, 6 Ves. 174; Watts ■" Const. 25, C. 5, 37; Burcbardi, p. v. Cresswell, 9 Vin. 415; Clare v. 248. Earl of Bedford, 13 Vin. 536; Cory v. « Fr. 9, § 2, D. 4, 4. Gertcken, 2 Mad. 46. 1254 The Laav of Estoppel. an action of assumpsit was brought against an infant for money embezzled by him.* In Marlow v. Pitfield,' it was determined that if an infant borrows money, and applies it in payment for necessaries, though at law, he is not liable to the lender for the money, yet, in equity, the lender stands in the place of the creditor, who was paid for the necessaiies, and may recover these, as the other might have done at law. Infants, therefore, may, in some cases, be liable in equity, though not at law. In Watts v. Cresswell,' a tenant for life borrowed money, and his son, who was next in remainder, and an infant, was a Avitness to the mort- gage deed, and the court relieved on the ground of the fraud in the infant, by not giving notice to the mortgagee of his title. That, certainly, was a very strong case, for the young man did not know, but had only heard of the settlement under which his title arose ; but Lord Cowper said : ' If an infant is old and cunning enough to contrive and carry on a fraud, he ought to make satisfaction for it.' In Becket v. Cordley,' Lord Thurlow says : ' If there was fraud of which the infant was conusant, she would be bound as much as an adult.' In Cicii v. Lord Salisbury," an infant was held to be bound by an offer made by him in his answer, whereby the other side were delayed, the infant not having immediately after his coming of age applied to the court to retract his offer, and amend his answer. In Savage v. Foster,' the court held that, in the case of fraud, ' infancy or coverture shall be no excuse ;' and the court not only recognized the case of Watts V. Cresswell, to which I have adverted, but also relied on Olerc v. Bedford,' in which case, Clerc, an infant, and clerk to an attorney, had a mortgage on his master's estate, and ingrossed a subsequent mortgage of the same to another, without giving notice that the estate was mortgaged before to him ; and for that reason, on the ground of fraud, his mortgage was postponed. Apply these principles to the present case, did not William Cory, who was nearly of age, and married, conceal liis infancy ? It is clear he did. Did he not employ his brother, an attorney, to prevail upon the trustees to transfer the £350 stock, under a » Bristow V. Eastman, 1 Esp. N. P. n Bro. C. C. 358. 172. * 2 Vern. 224. » 1 P. Wms. 558. « 9 Mod. 35. » 9 Vin. 415. ■• 13 Vin. Abr. 536-7. Infants. 1255 representation that they ran no risk in doing so? He did. Was not that a fraud ? The conceahnent of his infancy, under such circumstances, certainly was a fraud, and prechides him, or his assigns, wlio stand precisely in his situation, from calling for a repayment.'" § 1119. Neither covertare nor infancy will excuse fraud." An infant who is privy to, or practices a fraud, or commits a tort, shall be bonnd in tlie same manner as if he had been an adult.' Thus, where an infant fraudulently represents himself to be of age and thus obtains credit for goods, he is liable in equity though not in law.' So, where a married woman represented herself to be a widow and borrowed a sum of money, she was bound by her representation.^ On the principle that a person shall not set up his own iniquity as a defense, any more than as a cause of action." Whenever an infant who has arrived at years of discretion, by direct participation, or by silence when he was called upon to speak, has entrapped a party, ignorant of his title or of his minor- ' Cory V. Gertcken, 3 Mad. 49-51. " Savage v. Foster, 9 Mod. 37; Cory V. Gertcken, 2 Mad. 51; Evroy v. Nicholas, 2 Eq. Cas. Abr. 489 ; Evans V. Bicknell, 6 Ves. 174. 3 Evroy v. Nicholas, 3 Eq. Cas. Abr. 489; Becket v. Cordley, 1 Bro. C. C. 353; Harvey v. Astley, 3 Atk. 607; Clare v. Bedford, 13 Vin. Abr. 536; Savage v. Foster, 9 Mod. 37; Watts V. Cresswell, 9 Vin. Abr. 415; Wilie V. Brooks, 45 Miss. 543; Mont- gomery V. Goi-don, 51 Ala. 377; Fitts V. Hall, 9 N. H. 441; Dead v. Wood, 9 Baxt. 296; Eaton v. Hill, 50 N. H. 235; Beasley v. State, 3 Yerg. 491; Prcscott V. Norris, 33 N. H. 101; Sikes V. Johnson, 16 Mass. 389; Wilt V. Welsh, 6 Watts, 9; Humphrey v. Douglass, 10 Vt. 71; Lewis v. Little- field, 15 Me. 233; Brown v. Ma.\well, 6 Hill, 593; Baxter v. Bush, 39 Vt. 465; Bullock v. Babcock, 3 Wend. 391; Hartfield v. Roper, 31 Wend. 615; Walker v. Davis, 1 Gray, 50G; Barham v. Turberville, 1 Swan, 437; Mathews V. Cowan, 59 111. 341. ^ Nelson v. Stocker, 28 L. J. Ch. 760; King, in re, 3 De G. & J 63; Wright V. Snow, ^ De G. & S. 331 ; Clarke v. Cobhiy, 3 Cox, 373; Huges V. Gailans, 10 Phila. 618; Kilgore v. Jordon, 17 Tex. 341. ^ Vaughan v. Vanderstegan, 3 Drew, 369. * Montefiori v. Montefiori, 1 W. Bl. 353; Overton v. Bannister, 3 Hare, 503; Dnny V. Drury, 5 B. C. C. 506; Money v. .Jordon, 3 B. G. M. & G. 318; S. C, 4 H. L. C. 185; Watson, in re, 16 Ves. 265; Clarke v. Cobley, 2 Cox, 173; Teynham v. Webb. 3 Ves. 198; Bates, in re, 3 M. D. & D. 337; Stikeman v. Dawson, 1 De G. & S. 90: Bustoro V. Eastman, 1 Esp. 193; Nelson v. Stocker, 4 De G. & J. 458; Barham v. Turbeville, 1 Swan, 437; Whitrington v. Wright, 9 Ga. 23; Thompson v. Simpson, 3 Jo. & L. 110; Esron v. Nichols, 4 De G. & S. 90. 1256 The Law of Estoppel. ity, into purcliasiiiii: liis property from another, or who in selling real estate, represents himself to be of full age, and induces tile party to buy on the strength of that representation, cannot disaffirm his contract on the ground of infancy.' Thus, an infant knowing her rights, conveyed land to her father for the ^jurposc of enabling him to borrow money thereon, by executing a mortgage to one in ignorance of lier minority. The money was loaned ; and subse- quently the lender being still ignorant of her minority, the father conveyed the land in satisfaction of the debt. The infant arriv- ing at full age, brought ejectment for the land. And it was held^ that a court of equity would restrain her from asserting her legal title, and thus perpetrating a fraud." § 1120. An infant may preclude himself from setting up title to property by disclaiming, actively or by silence, any right to the same, and tliereby inducing another to purchase it as the property of the assumed owner.' '' When anything in order to a purchase is publicly transacted, and a third person knowing thereof, and of his o'.vn right to the lands intended to be pur- cliased, and doth not give the purchaser notice of such right, he shall never afterwards be admitted to set up such right to avoid the purchase ; for it was an apparent fraud in him not to give notice of his title to the intended purchaser,* and in such case infancy or coverture shall be no excuse ; for though the law pre- scribes formal conveyances and assurances for the sales and contracts of infants and feme coverts^ which every person who contracts with them is presumed to know ; and if they do not take such conveyances as are necessary, they are to be blamed for their own carelessness, when they act with their eyes open ; yet ' Prouty V. Edgar, 6 Iowa, 353; WhiltiDgton v. Wriglit, 9 Ga. 23; Ferguson V. Bobo, 5-t Miss. 121; Watts Irvvm v. Merrill, Dud. 72; Tiiompson V. Crcsswell, 9 Yin. 415; Cluro v. v. Simpson, 2 Jones L. 110; Stocke- Bedfonl, 13 Vin. 536; Irwin v. Merrill, man v. Dawson, 1 De G. & S. 90; Dud. (Ga.) 72: Hall v. Timons, 2 Wright v. Snow, 2 De G. & S. 321; Rich. Eq. 120; Barhani v. Turbeville, Joint Stock Assoc, v. King, 3 De G. 1 Swan, 487; Adams v. Fite, 59 Tenn. & ,1. 63; Wood v. Vance, 1 N. & 69. M. 197; Morris V. Wait, 2 Rich. 148. ■^ Ferguson V. Bobo. 54 Miss. 121. * Mocatta v. Murgatroyd. 1 P. Wms " Overton V. Bauuisier, 3 Hare* 503; 393; Good title v. Morgan, IT. R. Esron v. Kieholas, 1 De G. & S. 118; 762; Towle v. Rand, 2 Bro. C. C. Hall V. Timmons. 2 Rich. Eq. ;20; 650 Infants. 1257 when their right is secret, and not known to the purchaser, but to themselves, or to such others who will not give the purchaser notice of such right, so that there is no laches in him, this court will relieve ogainst that right, if the person interested will not give the purchaser notice of it, knowing he is about to make the purchase ; neither is it necessary, that such infant ox feme covert should be active in promoting the purchase, if it appears, that they were so privy to it that it could not be done without their knowledge.'" In a late case it was said, " that if the plaintiff can aver and prove that he was induced, by the positive affirmation of the defendant, to believe that he was of age when the contract was made, and that the defendant at the time, sought to entrap him into the contract, then secretly intending to repudiate it to his own profit and to the plaintiff's loss, he would be liable for the damage resulting from his fraud.'"' § 1121. An infant's acts may be ratified by acts of recogni- tion, acquiescence or estoppel, as well as by express promises. But the ratification, whether by acts or words, should be equiva- lent to a new promise.' The deed of an infant is not void, but only voidable; and, after attaining majority, he may at his election affirm or disaffirm it. Acts of disaffirmance need not be as solemn as the original deed. Affirmance is shown by positive, unequivocal action, and not by mere passiveness, unless the ven- dee, with the infant's knowledge, is making expenditures on the property as absolute owner.'* Thus, where he stands by without warning or protest, and sees the property greatly enhanced by ' Savage v. Foster, 9 Mod. 37. Bigelow v. Graanis, 2 Hill, 120; Mil =■ Ycager v. Knight, 60 Miss. 730. lard v. Hewlett, 19 Wend. 301; Ford 3 Proctor V. Sears, 4. Allen, 95; v. Phillip, 1 Pick. 202; Wilcox v. Pierce v. Tobey, 5 Met. 168; Aldrich Roath, 12 Conn. 550; Thompson v. V. Griuals, 10 N. H. 194; Hodges v. Lay, 4 Pick. 48; Goodsell v. Mj'crs, 3 Hunt, 22 Barb. 150; Hoit v. Under- Wend. 479; Gay v. Ballon, 4 Wend. hill, 9 N. H. 439; Mawson v. Blaue, 403; Smith v. Mayo, 9 Mass. 63; 10 Exchq. 206; Rogers v. Kurd, 4 Barnaby v. Barnaby, 1 Pick. 221; Day, 57; Merriam v. Wilkins, 6 N. Alexander v. Hutchinson, 2 Hawks. H. 432; Kline v. Beebe, 6 Conn. 494; 235. Irvine V. Irvine, 9 Wall. 625;Orvisv. < Highley v. Barrow, 49 Me. 103; Kimball, 2 N. H. 314; Hale v. Gerrish. Allen v. Poole, 54 Miss. 323; Drake v. 8 N. H. 374; Morrill v. Alden, 19 Vt. Wise, 36 Iowa, 476; Irvine v. Irvine. 505; Jackson v. Mayo, 11 Mass. 47; 9 Wall, 625. 1258 The Law op Estoppp:l. valuable improvements, placed upon it bj others, be will not tben be permitted to disavow bis affirmance. Any act or declaration which recognizes the existence of the promise as binding is a rati- fication of it, just as, in the case of agency, anything which recog- nizes as binding an act done by an agent, or by a psirty who has acted as agent, is an adoption of it.' So, an election by a minor, after arriving at age of majority, with full knowledge of his rights, estops him.* If the infant purchaser of personal property, who has bought on credit, retains and uses it for an unreasonable time after be becomes of age, without giving notice of an intention to avoid the contract, or, if after coming of age, refuses to deliver it, or otherwise asserts his ownership by some unequivocal act, he may be taken to have ratified the contract, and thereby rendered himself lialile for the price. ^ An infant cannot retain the bene- fits of his contract, and thus affirm it after becoming of age, and yet plead infancy to avoid the payment of the purchase money.* Acquiescence for a great length of time after reaching the age of majority will also be an affirmance.^ Thus, three and a half years after ceasing of her disabilities, held sufficient.^ ' Harris v. Wall, 1 Exchq. 122; Hartly v. Wharton, 11 A. & E. 934. '^Padfiold V. Pierce. 72 111. 500; Penn v. Ilersej-, 19 111. 295: Smith v. Alexander, 19 Pa. St. 424: ]Maple v. Kussart, 53 Pa. St. 349; Pursley v. Hays, 17 Iowa, 310; Kane Co. v. Her- rington, 50 111. 232; Gibson v. Roes, 50 111. 383; Montgomery v. Gordon, 51 Ala. 377; Drake v. Wise, 36 Iowa, 476; Handy v. Noonan, 51 Miss. 166; Tanlum v. Coleman, 26 N. .1. Eq. 128. 3 Lawstm v. Lovejny, 8 Me. 405; Boyden v. Boyden, 9 Met. 519; Smith V. Kelly, 13 Met. 309; Bordy v. Mc- Kinney, 23 Me. 517; Deason v. Boyd, 1 Dana, 41; Aldrich v. Grimes, 10 N. H. 194: Alexander v. Herlot, 1 Bail. Eq. 223; Thing v. Libbey. 16 Me. 55; Eubauks v. Peak, 2 Bail. 497; Rob- bins V. Eaton, 10 N. II. 561 ; Cheshire V. Barrett, 4 McCord, 241; Thompson V. Leach, 2 Vent. 203; Southerton v. Whitlock, 2 Str. 690; Chandler v. Simmons, 97 Mass. 511 ; Morse v. Wheeler, 4 Allen. 570. •• Overton v. Bannister, 3 Hare, 503; Hall V. Time us, 3 Rich. Eq. 120: Thompson v. Simpson, 2 Jones L. 110; Joint Stock Co. v. King, 3 De G. & J. 63; Wright v. Snow, 2 De G. & S. 321; Esron v. Nicholas, 1 De G. & S. 118; Whittington v. Wright. 9 Ga. 23; Stokeman v. Dawson, 1 De G. & S. 90; Henry v. Root, 33 N. Y. 526; Kline v. Beebe, 6 Conn. 494; Bigelow V. Kinney, 3 Vt. 353; Cheshire v. Bar- rett, 4 McCord, 211; Lynde v. Budil, 2 Paige, 191; Kitchen v. Lee, 11 Paige, 107; Deason v. Boyd, 1 Dana, 45; Badger v. Phinney, 15 Mass. 359; Walsh V. Powers, 43 N. Y. 23. ^ Sims V. Bardonier, 86 Ind. 87; S. C, 44 Am. R. 263. ' Goodnowv. Lumber Co., 31 Minn. 468; S. C, 47 Am. R. 798. Infants. 1259 § 1122. In all cases of judicial acts of a court, under an author- ity not derived from an infant, they are binding and conclusive.' And a judgment against an infant in cases of tor% or contracts which are absolutel}^ binding upon him, is as conclusive ftpon him as upon an adult. And in pai-tition, a judgment is binding upon an infant where the judgment is regularly entered upon the appearance of the infant, by his guardian ad litems Where a person, dealing with an heir or reversioner, shows that the trans- action is reasonable and that a fair price has been given, either for a reversionary interest, annuity or post obit bond, a court of equity will not, in the absence of fraud, set it aside.' Where the heirs, after coming of age, with full knowledge of the facts, receive and retain their share of the purchase money from a sale by their guardian of their interests in lands, they thereby estop themselves from questioning the validity of such sale on the ground of defect in the proceeding,^ even if the decree be void. A guardian who has sold, under order of court, real estate of his wards, waived his vendor's lien by giving up the original notes for the purchase money and taking new notes, secured by a mort- gage of a portion of the premises ; in a suit by the wards to enforce the mortgage, they could not deny the guardian's author- ity to waive the lieu while they claimed under the mortgage.^ § 1123. Where a person having title to property, of which he is apprised, stands by and suffers it to be sold by the sheriff, 1 Brown v. Armstead, 6 Hand. 574; Miss. 680; Hadley v. Pickett, 25 Ind. Mills V. Dennis, 3 Johns. Ch. 367. 450; O'Connor v. Carver, 12 Heisk. ' Crogan v. Livingstone, 17 N. Y. 436; Kempe v. Pintard, 32 Miss. 324; 218; Althouse v. Radde, 3 Bosw. 410. Tantum v. Coleman, 26 N. J. E. 128; 3 Dews V. Brandt, Sel. Ch. Ca. 7; Drake v. Wise, 36 Iowa, 476; Willie Batty V. Lloyd, 1 Vern. 141; Wharton v. Brooks, 45 Miss. 542; Lee v. V. May, 5 Ves. 27; Curling V. Towns- Gardiner, 26 Miss. 521; Upshaw v. end, 19 Ves. 634; Lord Alborough v. Gibson, 53 Miss. 341; Gibson v. Rees, Tyre, 7 C. & F. 436. 50 111. 383; Barham v. Turbeville, 1 < Deford v. Mercer, 24 Iowa, 118; Swan, 437; Whitington v. Wright, 9 Thillate v. Stanly, 14 Ind. 409; Adlura Ga. 23; Maple v. Kussart, 53 Pa. St. v. Yard, 1 Rawle, 171; Commonwealth 349; Smith v. Warder, 19 Pa. St. 424; v. Sliuman, 18 Pa. St. 343; Handy v. Pursley v. Hays, 17 Iowa, 311; Kane Noonan, 51 Miss. 166 ; Padfield v. Co. v. Herriugton, 50 111. 222; Penn Pierce, 72 111. 500 ; Gaines V Kennedy, v. Heisey, 19 111. 295; Esron v. 63 Miss. 103; Strobel v. Smith, 8 Nicholas, 4 De G. & S. 118. Watts, 280; Parmlee v. McGinty. 52 ^ Hadley v. Pickett, 25 Ind. 450. Miss. 476; Douglass v. Bennett, 51 1260 The Law of EsTorPEL. without asserting his title or making it known to bidders, he can- not afterwards set up his chiini.' A party cannot be permitted to allow his property to be sold under a judicial process, and then claim thd proceeds under the allegation that he did not owe the debt which the property was sold to pay." And, in such case, even infancy would be no protection, provided the mind had arrived at those years of discretion when a fraudulent intent could reasonably be imputed to him.^ Where land was conv^cyed fraudulently as against creditors, and a creditor of the grantor sued him, and was about to levy on the land, and thereupon it was sold for a fair price, and a large part of the sum received was paid to the creditor, he could not object to the purchaser's title.-* Where land is devised to A, subject to the maintenance of his mother, and he allows her to sell, joining her in the deed, and requests the purchaser to make tlie notes for the unpaid part oF the price to her ; lie is estopped from setting up a claim for the purchase money, and, though he caused the notes to be so executed to defraud creditors, he cannot question her title to them, ^ § 1124. Where husband and wife separate under articles in which he covenants that he will not claim or demand any piop- erty which she shall thereafter own or acquire, and he is accoi'd- ingly relieved during her life from her support, he is estopped from claiming a life estate in one third of her real estate after lier death.* The concurrence or acquiescence of a husband in .a settlement, though he be a minor, will preclude him from taking any objections to it/ If a husband acquiesces in, or confirms a settlement, he will not afterwards be allowed to dispute it.^ Where a person of unsound mind makes a contract which is ' Mason v. William, 66 N. C. 564. ^ Hu„t y. Coon, 9 Ind. 537. " Weedon v. Landreaux,26 La. Ann. « Slocumb v. Glubb, 2 Bro. C. C. 729. 545. 3 Davis v. Tingle, 8 B. Hon. 539; ■< Maber v. Hobbs, 2 Y. & C. Excliq. McDonald v. Lindall, 3 Rawle, 402; Ca. 817; England v. Downs, 2 Beav. Wbittington V. Wright, 9 Ga. 23; Bar- 535; Asliton v. McDougall, 5 Beav. ham V. Turberville, 1 Swan, 437. 56; Grazebmok v. Percival, 14 Jur. * Seymour v. Lewis, 13 N. J. E. 1103; Loader v. Clarke, 2 M. & Y. 439; Gottschalk v. De Santos, 12 La. 383. Ann. 473; Mullen v. Follain, 12 La. « Wallace v. Bassett, 41 Barb. 93. Ann. 838. Administratoks. 1261 beneficial to him, the law suffices or presumes the existence of the requisite capacity, or for his protection estops tlie' other party to set up and sustain the objection.' § 1125. An estoppel in ixds may arise from the acts of an administrator and be set up against him.'' Thus an administrator, who finds property among the assets of the estate, and takes pos- session of it as tlie property of the estate, and sells it, having no claim to it himself, it not being claimed by any other person, is estopped from setting up a claim adverse to the estate, and is liable to the estate for the property thus sold.' So an adminis- trator pays out money, having several funds in his hands belong- ing to the estate, having charged the payment to one fund in his annual settlements, cannot thereafter apply such payments as a credit against other funds, having made his election he is bound by it.* So, where purchase money arising from a sale of a por- tion of an estate has been accounted for as an asset on final settlement, neither ho nor creditors who have participated in its distribution, will be permitted to question the validity of the proceedings although they might have been set aside.^ So, where an administrator who has loaned estate funds, and in an account- ing treats the loan as cash in his hands, is estopped from claiming to be exonerated from liability.® So, where one of two adminis- trators surrenders property to a devisee by mistake with assent of the co-executor, both are estopped to deny the propriety of such delivery. Where services beneficial to an estate are I'endered at the request of the party interested, such party is estopped from objecting to the allowance of a just compensation for them in the settlement of the administrator's account.' So one who recognizes 1 Allen V. Beriyhill, 27 Iowa, 534. * Wrigbt v. VVrigiit, 73 N. Y. 149; 2 Thomas v. Brooks, 6 Tex. 369. Lacoste's Estate, Myr. P. R. (Cal.)G7; » Iiby V. Kitchen, 43 A. La. 438; Hanisou v. Pool, 16 Ala. 157; Mc- White V. Swaiu, 3 Pick. 365; Ander- Cravej^ v. Remsen, 19 Ala. 430. son V. Smont, Spear Ch. 313; Duncan * Bell v. Craig, 53 Ala. 315; Shepley V. Bryant, 11 Ga. 63; Miller v. Jones, v. Farnsworth, 4 Mass. 633; Dutort v. 26 Ala. 247; Manigault v. Deas, 1 Cox, Riley Ch. 213; Mardis v. Mardis, Baily Eq. 383; Colburu v. Boughlon, 13 La. Ann. 236; Winn v. Brown, 14 9 Ala. 551 ; Henderson v. Segars, 38 La. Ann. 682. Ala. 553; Goodwin v. Young, 23 Ala. « Waring v. Purcell, 1 Hill Ch. 193; 553; Critchfield v. Haynes, 14 Ala. 49; Phillips v. Rogers, 13 Met. 26. Wiswell V. Stewart, 33 Ala. 433. ' Wendell v. French, 19 N. H. 205. 1262 The Law of Estoppel. an administrator in his representative capacity, cannot when sued bj him on the contract plead ne imqiies administrator.'^ An administrator is estopped by the act of his intestate, who in his life time, assigned personal property, even though fraudulently, to den}' the title of the assignee and cannot maintain an action to recover it.* An executor or administrator is not bound to advise the devisees as to their rights, &c., but if he assumes to advise them, he must give correct and true advice, so far as reasonable efforts on his part may enable him to do. And if he gives them advice, which is erroneous and it is acted upon by them, he is estopped from afterwards taking any advantage therefrom, and the acts of such parties are binding upon him.* One who executes an instrument as administrator is estopped to deny his executive capacity.* § 1126. The acts and admissions of one of several administra- tors which amount to an estoppel against him binds the whole.* Thus, were one of several administrators was present at a levy upon the property of his intestate and furnished to the ofiiecrs a list of the propert)% and was present at the sale and made state- ments to the bidders, although it did not appear that he acted fraudulently, it was held, that he and the other administrators were estopped from proceeding against the officer as a trespasser.* Where a party is both administrator and guardian, and receives funds as administrator which belong to tiie guardian and fails to credit himself with it as guardian, he is estopped to deny that he received them as administrator.' A legatee who has prayed the orphans' court to recommit a report to an auditor is estopped from alleging that such auditor was improperly appointed." Tlie exe- cutors of a deceased principal are estopped from relying on his death as a revocation of the agency against a honafide purchaser, where the act is in ])ais and may be done by the agent in his own ' Hill V. Iluckabee, 53 Ala. 155. « Pondar v. Mosely, 2 Fla. 207; * Buitou V. Faiinbolt, 86 X. C. 260; Williamson v. Ross, 33 Ala. 509. Masterson v. Pullen, 62 Ala. 145. ^ Wilson v. Wilson, 17 Ohio S. 150; 3 Bolin V. Barker, 75 N. C. 47; Rice Wilson v. Knighl, IS Ala. 129; Acker- V. Bi.xler, 1 W. «fc S. 445. man v. Vieland, 14 N. J. E. 23; Scott ♦ Duval V. Marshall, 30 Ark. 230. v. :VIoore, 14 Sim. 35; 3IcWil]iams v. 5 Camp V. Closely, 2 Fla. 171 ; Ramsay, 23 Ala. 813; Irby v. Kitchell, Wheeler v. Wheeler, 9 Cow. 34. 42 Ala. 438. 8 Ludlam's Estate, 13 Pa. St. 188. ADMIJflSTRATORS. 1263 name.' The attorney in an execution who refuses to state whether lie directs a sale of a particular chattel by instruction of his client, and challenged a suit against himself, is estopped from denying that he acted on his individual responsibility.^ § 1127. Where the administrator of an estate, who was also an lieir and agent for the other Jieirs, and as such in possession, and had control and management of a lot, allowed a third party to obstruct a way adjoining the lot, by building a barn thereon with- out laying any claim to said way, but protested against the build- ing extending over the lot, he is estopped from laying any claim to the way against the third party or his grantees.' A private sale by an administrator in his individual capacity, of property of his intestates' estate, estops him from recovering the property from his vendee, but does not pass the title to the property out of the estate ; and if the sale is perfected by delivery, and the administrator subsequently acquires possession, he is estopped from setting up against his vendees the invalidity of the sale made by himself.* § 1128. It has been pretty generally conceded that there is no estoppel against a State or the United States.^ But to this, as to almost all other propositions, there are numerous exceptions. Public agents or officers who act in violation of their authority, that is, of public law, do not bind the public by such illegal acts; and all men are bound to take notice of the authority' of such agents.* But it is a well settled principle applicable alike to States or the United States, that whenever a governinent descends from the plane of sovereignty and contracts with parties, such » Ish V. Crane, 8 Ohio St. 528. Wheat. 730; Janson v. People, 7 J. R. » Ford V. Williams, 24 N. Y. 359. 332; People v. Russell, 4 Wend. 574; * Dodge V. Stacy, 39 Vt. 558; Rice Seymour v. Van Slyck, 8 Wend. 422; V. Bixler, 1 W. & S. 445. People v. Bank, 75 N. Y. 547; Lee v. * Bragg V. JVIassie's Adm'r, 38 Ala. ^Munroe, 7 Cranch, 366; Stevenson v. 89. Mortimer, Cowp. 805 ; Taylor v. 6 Pierce v. U. S., 1 Ct. of CI. 270; Plumer, 3 M. & S. 562; People v. State V. Hastings, 10 Wis. 526; Super- Brown, 67 111. 435. visors V. Ellis, 59 K Y. 625; Johnson « Orton v. State, 12 Wis. 509; Ten- V. U. S., 5 Mason, 425; Curtiss v. U. ney v. State, 27 Wis. 387; Kneeland S., 2 Ct. of Claims, 144; Hunter v. U. v. Milwaukee, 18 Wis. 411; Harney S., 5 Pet. 173; U. S. v. Van Zandt. 11 v. Hastings, 12 Wis. 596; Randall v. Wheat. 184; U. S. v. Kirkpatrick, 11 State, 16 Wis. 340. 1264 The Law of Estoppel. government is regarded as a private person itself, and is bound accordingly.' So, vplierc a deed is executed, or a contract made on behalf of a State by a public officer duly authorized and this fact appear: on the face of the instrument, notwithstanding that tiic officer may be described as one of the parties, and may have affixed his individual name and seal, in such cases the State alone is bouned by the deed or contract and can alone claim its benefits.' Where the^powers and duties of officers are defined by the law itself any act within the scope of the powers there conferred, makes the government liable to the extent of the power it has actually given to its officers by the law.' Thus, a final settlement made by a public officer in a State with another officer which is made in pursuance of a statute, and which received the approval of the legislature, estops the State afterwards to disregard the settlement and sue for moneys alleged to have been due prior to the settlement.* So, where it is the duty of certain ^designated officers of a State to make selections of land under federal laws, the State is estopped by the action of sucii officers/ In the absence of fraud or collusion, the acts of public officers acting on behalf of the State, within the limits of their authority', con- ferred upon them, and in the performance of their duties, in dealing with third persons, are the acts of the State, and cannot be repudiated by it.° A State in its contracts v*-ith individuals must be judged and must abide by the same rules which govern similar cases between individuals ; and whenever such a contract comes before the courts, the rights and obligations of the con- ' Davis V. Gray, 16 Wall. 203; Hall 294. V. Wisconsin, 103 U. S. 5 ; People v. * State v. Dent, 18 Mo. 313; ;>ta'e v. Stephens, 71 N. Y. 527. Galveston, 38 Tex. 12; R. R. Co. v. ■ Sheets v. Selden, 2 Wall 177; Lindell, 39 Mo. 329. For other in- Hodgson V Dexter, 1 Cranch, 343; stances where Slates and the United Slinchfield v. Little, 1 Me. 231; State Stales arc estopped see Index. V. McCauley, 15 Cal. 456. « People v. Stephens, 71 N. Y. 527; Pierce v. U. S., 1 Ct. of CI. 270; People v. Thayer, 63 N. Y. 348 ; Peo- Grani v. U. S., 5 Ct. of CI. 72; Floyd pie v. Jansen. 7 .Tnhns. 331; U. S. v. Acceptances, The, 6 Wall. 666; Stale Kiikpalrick, 9 Wheat. 720; Ilayden V. Hayes, 52 Mo. 578; Mayor v. Mus- v. Stjitc Prison, 1 Sandf. Ch. 1^5; grove, 48 Md. 272; Mayor V. Reynolds, Supervisors v. Brings. 2 Der 26; 20 Md 1; Mayer v. Eschbach, 18 Md. Murtin v. Supervisors, 29 N. T. <555; 276. Chase v. Saratoga, 33 Barb. 603; Sii- * State V. Crutcher, 2 Swan, 504; pervisors v. Birdsall, 4 Wend. 453; Common wealth v. Johnson, 33 Gratt. People v. Greene, 56 N. Y. 466. Ratification. 1265 tracting parties will be adjudged upon the same principles as if both contracting parties were private persons.' Where an agent of the state, without authority, sells property of the state, and takes a note in payment, the legislature may ratify his act and enforce the note, the same as an individual.' The subsequent ratification by a State legislature of the issue of municipal bonds issued without authority, is equivalent to original authority and cures all defects of power, if such defects existed, and all irregularities in their execution.^ Thus, when the money or property of an innocent person has gone into the coffers of the nation by means of a fraud, to which its agent was a party, such money or property cannot be held by the United States against the claim of the wronged or innocent party. A fii-m had bor- rowed money belonging to the government from the cashier of the sub-treasury. In order to enable the cashier to cover up his violation of duty, and in pursuance of an agreement, one of the firm procured a bank officer to purchase gold certificates, which were to be deposited in the sub-treasury, to remain until the sub- sequent day. The bank officer did so, and the receipt for the certificates was given by the cashier to C, who indorsed it to the bank officer. The receipt entitled its owner to receive gold cci-- tificates for those deposited, or their equivalent, on demand. The bank ofiicer had no knowledge of the plan of the firm and tlie cashier, and the transaction he entered into was a usual one. Held., that the goVernment obtained no title to tlie certificates, but was liable to return their value to the bank.'' ' People V. Stephens, 71 N. Y. 527. Black v. Cohen, 52 Ga. 621; Duanes- " State V. Torinus, 26 Minn. 1; S. burg v. Jenkins, 57 N. Y. 177; Kim- C, 37 Am. R. 395. ball v. Rosendale, 42 Wis. 407; S. C. 3 Keithsburg v. Frick, 34 III. 405; 24 Am. K 431; Ritchie v. County, 22 Copes V. Cliarleslon. 10 Rich. L. 491; Wall. 67; Bradley v. County, 05 ?.Io. McMillen v. Boylcs, 6 Iowa, 304; Gel- 038; Wilson v. Ilardesty, 1 Md. Ch pccke V. Dnbiique, 1 Wall. 220; Peo- 66; Shaw v. R. R., 5 Gray, 180; Sat- ple V. IVIilcliell, 35 N. Y. 551; Thomp- terlee v. Mathewson, 3 Pet. 380; Sian- 8on V. County, 3 Wall. 327; Bass v. ley v. Colt, 5 Wall. 119; Richardson Columbus, 30 Ga. 845; Bissell V. Jef- v. Leland, 2 Pot. 627; Cro.xall v. fersonville, 24 How. 287; Campbell v. Sliered, 5 Wall. 268; Watson v. Mer- Kenosha,5 Wall. 194; City v.Lampson, cer, 8 Pet. 88; Bridge Co. v. Bridge 9 Wall. 477; Steines v. County, 48 Co., 11 Pet. 420. Mo. 167; Knapp v. Grant, 27 Wis. * Unhed States v. Bank, 96 U. S. 30. 147; Beloit v. Morgan, 7 Wall. 619; Vol. I. —80 1266 The Law of Estoppel. CHAPTER XYIII. ESTOPPEL AS APPLIED TO BOUNDARIES. EASEMENTS, DEDICATION, ORAL PARTI HON, AWARDS, ADVERSE POSSESSION. Section 1129. The principle of estoppel is applicable to the question of boundary/ As in case of verbal representation.' Or the acceptance of a warranty deed.' Or the making of improve- ments.* Also in case of assent for twenty years.* Numerous questions have arisen between parties owning adjoining lands, f i-om lixing tlie dividing lines between them or constructing division fences, separating them, where the operation of the doctrine of estoppel has been applied excluding the right to change these, if afterwards found not to conform to the true division lines. From the variety of decisions on the question of the application of this brancli of estoppel to the location of boundaries, it will be neces- sary to refer to some of the numerous cases on this question in order to deduce any rules applicable to the»subject. Thus, an enactment of the legislature establishing the boundary lines of the lands of the state, estopped the state from denying that they were the true boundaries." The practical location of a boundary Ihie and long acquiescence therein, or for more than twenty years ' H.iyc's V. Living-ton, 34 ]\Iich. Cal. 263; Bradbury v. Cony. 59 Me. 3.S4; Smitli v. ^t. Loui:?, 21 Mo. 30; 494; Vosburgh v. Teator, 33 N. Y. Corkhill V. LandcTs, 48 Barb. 318; 063. Smith V. McNamara, 4 Laos. 169; ^ Stanwood v. McCk'llan.48 Mc. 37"); Lavcrly v. Moore, 33 Barb. 347; Reed Spiller v. Scribner, 36 Vt. 245. V. McCourt, 41 N. Y. 435; Raynor v. ^ Hodiics v. Eddy, 38 Vt. 337. Timcrson, 51 Barb. 517; Reed v. * CorkhiU v. Landers, 45 Barb. 218. Farr, 35 N. Y. 113; Rutherford v. * Reed v. Farr, 35 N Y. 113; Stale Tracy, 48 Mo. 335; Davenport v. Tar- v. Boscavven, 32 N. II. 331. pin, 43 Cal. 593; Kincald v. Donnell, ' Commonwealth v. Prop.. 10 3Iasa 51 Mo. 552; Halloran v. Whitcomb, 155. 43 Vt. YOU; People v. Plumpke, 41 Boundaries. 1267 or for a period equal to that fixed by the statute for gaining title bj adverse possession, is conclusive of the location of the bound- ary line, on the ground that it is evidence of the correct location of so high a nature as admits of no contradiction,' Title to land cannot be barred by oral agreement unless it has been so far acted upon, that the parties cannot be restored to their former position or acquiesced in for sufficient length of time to raise the presump- tion of a grant.'' § 1130. The owner of property cannot recall a declaration or admission with regard to a boundary, on which third persons have relied in buying.' A proprietor who points out to a settler on land adjoining his own, a line as the true boundary, acquiescing and assisting him in a settlement and improvements thereon, is thereby estopped from afterwards asserting a claim to the -land covered by the improvements, though a subsequent survey proved it to be his own land.' Thus, A. and D. owned adjoining lots in Q, city addition. D. had his lot surveyed by the surveyor who hiid out the addition, and commenced to build his house up to the western boundary line. A., relying upon D.'s survey measured off twenty-live feet westward, and built up to his west- Reed V. Farr, 35 N. Y. 113; Bald- = Terry v. Chandler, 16 N. Y. 354; win V. Brown, 16 JSl. Y. 359; Watts v. McAtfeity v. Conover, 7 Ohio St. 99; Gauahl, 34 Ga. 290; Hibbard v. Baldwin v. Brown. 16 N. Y. 359; Stearns, 86 111. 35: Trussell v. Lewis, Carleton v. Redington, 21 N. H. 291; 13 Neb. 415; S. C, 42 Am. R. 767; Roberlson v. McNeal, 12 Wend. 578; Ri^ckwell V. Adams, 6 Wend. 468: Ormsby v. Ihmseu, 34 Pa. St. 462; Pierson v. Mosher, 30 Barb. 81; Clark v. Wethey, 19 Wend. 320; Clark George v. Thomas, 16 Tex. 74; State v. Baird, 9 N. Y. 183. V. Groendyke, 38 N. J. L. 144; McCoy '^ ii\)e-dv v. Walker, 1 Head. 166; V. Vance, 28 Pa. St. 149; Gray v. Louks v. Kenniston, 50 Yt. 116; Courvillou, 12 La. An. 730; Holmes v. Brown v. Allen, 43 Me. 590; Knapp Jersey City, 12 N. J. E. 299; Ctfte v. v. Marlboro, 29 Vt. 282; Richardson Trapp, 49 Mich. 59; O'Donnell v. v. Chickering, 41 K H. 380; Fly v. Kelsey, ION. Y. 412; S. C, 4 Saudf. College, 2 Sneed, 689; Robinson v. 202 ; Brown v. Leete, 6 Sawyer, 332; Justice, 2 Pa. St. 19. Coleman v. Smith, 55 Tex. 254; Brown •* Parker v. Barker, 2 Met. 423; Van V. Goddard. 13 R. L 76; Stockham v. Valkenburg v. Huff, 1 Nev. 142; Ac- Browuiug 18N.J..E. 390; Davis V. ton v. Doolittle, 6 Mo. App. 323; Smith, 61 Tex. 18; 3Iain v. Killenger, Rutherford v. Tracy, 48 Mo. 325; Mc- 90 Ind. 165; Hartuug v. White, 59 Namara v. Seatou, 82 111. 498; Jordon Wis. 285; Johnson v. Brown, 63 Cal. v. Deatou, 23 Ark. 704. 399. 12G8 The Lavnt of Estoppel. ern buiindarj, tinisliing liis house months before D. finished his, and, bj permission, used D.'s fence for tlie eastern wall of ]jis coal shed. Eight years afterwards A. discovered that D. encroached upon his lot four inches, and commenced au action for ejectment. These facts constituted an estoppel, and that A.'s ignorance of the true line M'as immaterial, the question being one of estoppel by acts in jjais.^ The locution on the ground of boundaries described in deeds is a question of fact." "Where the description in a deed desig- nates a piece of land as that conveyed, the description cannot be departed from by parol evidence of intent or acquiescence in another boundary, unless such an adverse possession is shown, as is in itself a bar to an ejectment.' When the disputed or uncer- tain line is fixed and adopted by parol agreement of the parties, it is binding upon them, their heirs, &c., not by way of transfer of title, but by wa}' of estoppel.^ § 1131. The presumption in favor of a boundary line, acqui- esced in by adjoining proprietors, is strengthened by lapse of time, yet there is no period fixed by statute which will render the presumption conclusive. Each case must furnish its own rulu, accoi'ding to its own circumstances, modifying the conclusiveness of the presumption.^ And where adjoining owners treat a line as the division line, and occupy with reference to it for a period of fifteen years, although it was not in the first instance estab- lished by them by agreement, it becomes the true line, as much as though it were established and evidenced by an original sur- vey." Where two adjacent owners had occupied for eleven years on either side, up to a fence as a division line, and one of them had gone on, with the acquiescence of the other, and made expensive improvements upon the land in his possession, it was held that the other was estopped from setting up the true line 'Acton V. Dooley, 6 Mo. App. ^ Cutlc-r v. Callisou. 73111. 113; Tur- 323. ner v. Baker, U Mo. 218; Kerr v. » Madden v. Tucker. 76 Me. 367; Wright, 37 Pa. St. 196; Vo.sbiug v. Williston V. Morse, 10 Met. 17; Abbott Teator, 32 X. Y. o61 ; Laverty v. V. Abbott. 51 Me. 575; Tasker v. Cil- Moore, 33 N. Y. 658. ley, 59 N. II. 575; Tebbetis v. Esles, s Laverty v. Moore. 33 X. Y. 658; 52 Me. 566. Floyd v. Rice, 28 Tex. 341 ; McNainara 3 Hubbell V. McCuUoch, 47 Barb. v. Seaton, 82 111. 498. 287. « Davis v. Judge, 46 Vt. 655. BOUNDAIIIES. 1269 against the one who had thus expended his money ; and the chancellor remarked, in giving the opinion, '• perhaps a grant might be presumed within twenty years.'" Where land was sur- veyed with a view to partition among heirs, and the heirs con- veyed the land according to the boundaries of such survey, and the husband of one of the heirs afterwards purchased an adjoin- ing lot, which included a portion of the survey, it was held that the heirs were estopped to deny the boundaries so fixed, and that the husband was estopped to claim so much of the land surveyed as was included in the deed to him.^ Where A. was about to purchase a lot of land which adjoined B.'s, and was bounded by it, and not knowing tlie boundary line, applied to B. to point it out to him, who did so, knowing that the inquiry was made with a view of purchasing it. A. having purchased it, relying on the statement of B., it was held that B. was estopped to deny that tl.ie line thus pointed out by him was the true one.^ And this claim is recognized for many years by the adjoining land owners, he may maintain a bill to enjoin a trespasser on such land, and the latter cannot set up that the line is not the true boundary." § 1132. A grantor is bound in his private capacity to a boundary line settled by him as trustee. He cannot acknowledge a line in one capacity, and be permitted to deny it in another. The government of the United States, as well as individuals, may be bound by estoppel. For instance, in the case of a mistake in the survey, and the parties building on the land, nor can the United States object to a boundary line in an approved survey, if they have not appealed from the decree approving the survey.' ' McCormick v. Barnum, 10 Wend. "■ Root v. Crook, 7 Pa. St. 378; Le- 104; Perkins v. Gray, 3 S. & R. 327; beau v. Bergeron, 14 La. An. 489. Fahey V. jMarsli, 40 Mich. 230; Wood- » gtanley v. Green, 12 Cal. 148; ward V. Tudor, 81 Pa. St. 382; Hagey Merriv.-ether v. Larmon, 3 Sneed, 447; V. Detwiler, .35 Pa. St. 409; Sneed v. Spears v. Walker, 1 Head, 1G6; Spiller Osburn, 25 Cal. 619; Joice v. Wil- v. Scribener, 36 Vt. 245; Ricliardsou Hams, 27 Mich. 332; iMayor v. Rice, v. Cliickering, 41 JST. H. 380; Grills v. 57 Mo. 384; Columbet V. Pachcco,48 Graham, 6 Litt. 450; Hallorau v. Cal. 395; Holton v. Whitney, 30 Vt. Whitcorab, 43 Vt. 312 ; McGee v. 405; Thomas V. Pallis, 56 Mo. 211; Stone, 9 Cal. 600; Louks v. Kenniston, Davis V. Judge, 56 Vt. 655; Adams v. 50 Vt. 116. Rockwell, 16 "Wend. 285; Lavarty v. " King v. Mabry, 3 La. Ann. 237. Moore, 32 Barb. 347; S. C, 33 N. Y. * R. R. v. Shurmeier, 7 Wall. 272, 658 Bates v. R. R., 1 Black, 204; R. R. v. 1270 The Law of Estoppel. A parol adjustment of boundaries, executed at the time and acquiesced in subsequently, will be as effectual as if it were by deed, and estops the parties from recurring to or enforcing their original rights. The estoppel of a parol designation of bounda- ries arises from the same cause which gave rise ta that of a feoff- ment, with livery of seizin, both having their origin in the ditReulty of having recourse to written instruments in unsettled countries, and a rude and primitive social condition.' It is too late to correct an error in the boundary line after a building has been put up, which would have to be taken down if the error were corrected." An act of the legislature may operate as an estoppel, in regard to boundaries,' but in North Carolina it is held that estoppels do not bind the State." § 1133. A party is estopped to deny the line between his own and the adjoining land to be the true line, if he has sold and con- veyed land up to such line, has pointed it out as the true line, and has induced the defendant to purchase up to such line.* If a disputed boundary line has been fixed and settled by agreement between the parties, and the defendant, i-elying on such settle- ment, has built upon the land so decided to be his, without any notice of dissent from the plaintiff in regard to the lino thus established, the plaintiff will be estopped from denying that such line was the true boundary of their respective lott;." An ac(pii- escence by a party in the dividing line between adjoining estates R. R., 26 Minn. 81; Lindsay V. Haines. Boring, 44 Tex. 256; Rutlicrford v. 2 Black, 554. Tracy, 48 Mo. 325: Watson v. Hewitt, ' Clarii V. Lockwood, 21 Cal. 220; 45 Tex. 472; Wendell v. Van Rensse- Malioney v. Vanwiukle, 21 Cal. 552; lacr, IJolins. Cli. 854; Scoby v. Sweat, Mott V. Smith, 16 Cal. 580; Fossat's 28 Tex. 713; Page v. Aruim, 29 Tex. Case, 2 Wall. OU); Alviso v. U. S., 8 58; Heffner v. Downing, 59 Tex. 576; Wall. 837. Houston V. Sueed, 15 Tex. 310; George "" Van Valkenburg v. Huff, 1 Nev. v. Tljomas, 16 Tex. 89. 142; Dement v. Williams, 44 Tex. ^ Candler v. Lundsford, 4 D. & B. 158; Singleton v. White,side, 5 Yerg. 407. 18. ^ Richardson v. Chickering, 41 X. 3 Willis V. Swartz, 28 Pa. St. 413; H. 880; Lonks v. Kcnniston, 50 Vt. McCormick v. Barnuni, 10 Weml. 116. Ill; Robinson v. Justice, 2 Pa. St. 22; « Corkhill v. Landers. 44 Barb. 218; Carry. Wallace, 7 Watts, 400; Storrs Stanwood v. McClellan, 48 Me. 275; V. Barker, 6 Johns. Cli. 167; JIcKelvy Cooms v. Cooper, 5 3Iinn. 254; Wil- V. Truby, 4 W. & S. 324; Harrison v. liame v. Montgomery, 16 Hun, 50. Boundaries. 1271 may conclude a party by those boundaries as an admission, although not constituting a technical estoppel/ Where two neighboring owners of real estate have agreed upon a boundary line between their farms, and in accordance therewith cultivate their respective shares, .each will be estopped from recovering against the other in trespass in contravention of the agreement, but not in ejectment." § 1134. It has been held that a line agreed upon, or a division fence constructed by parties, if the same were done under a nn's- take, and the true line were afterwards to be ascertained, might be corrected.' Thus,* where the parties intending to establish the true division line between them, fixed the bounds indicating this line, and occupied their lands, accordingly for more than twenty years. When the tenant, who had purchased of the original owner on one side of the line, was about to make the purchase, he inquired of the other owner as to the land, and was told by the latter, that he did not own beyond the line above mentioned. The tenant thereupon purchased and entered upon the land, filled it up, erected fences and buildings upon it, in the presence of the otlier owner, who frequently pointed out the line, and never objected to the acts of the tenant, nor gave him any notice that he claimed the land. It was, afterwards, by the decis- ion of another case, ascertained tliat the line agreed upon and occupied was not the true line, and the party who had agreed to it brought an action against the tenant to recover the strip of land between the true and agreed line. And the court held, that he was not estopped by these several transactions, because the line was agreed upon in good faith, under a mistake of facts, and it was now ascertained where the true line was. The party made no declaration contrary to his honest belief at the time, or with any intention to deceive the tenant. The court, moreover, stated this broad proposition, which certainly is apparently at variance 1 Donnell v. Kclsey, 10 N. Y. 412; v. Brown, 16 N. Y. 359; Russell v. Sheldon V. Perkins, 32 Vt. 550. Maloney, 39 Vt. 579; Francois v. ^ Dewey v. Bordwill, 9 Wend. 65; Malouoy, 56 111. 39; Clark v. Hulsey, Stanwood v. McClellan, 48 Me. 275. 54 Ga. 603. 3 Proprietor v. Prescott, 7 Allen, " Brewer v. R. R,. 5 Met. 478; 494; Thayer v. Bacon, 3 Allen, 163; Cook v. Babcock, 11 Cosh. 216. Coon V. Smith, 29 N. Y. 392; Baldwin 1272 The Law of Estoppkl. with more than one of the propositions contained in wliat has ah-eady been said : " A party is not to be estopped to prove a legal title to his estate by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot the title to which may prove defective." § 1135. If, for instance, the line between two adjacent owners be in dispute, and the parties refer to arbitrators to determine the same, who hear and award upon the subject, the several owners will be bound to conform to such award.' But while the award of arbitrators as to such line would be binding upon the parties to it, no award as to the title to an}- part of such lands would be binding." A mere agreement, though a mutual one, to employ a common agent to run a linq and set up the boundaries between two proprietors would not estop either party from showing an error or mistake in this line.' So, where the deeds of the p.'irtics called for certain monuments, not then in existence, or a certain line which had not been i-un out on the face of the earth, and the parties came together and fixed the monuments, or agreed upon where the line should run, they would, if it was followed by occupation, be bound by their agreement, and estopped from claiming another." The distinction between these classes of cases is, that in the one, the parties, by mistake, agree upon a line where their mistake can be corrected, and the true line ascertained. In the other, they simply make that certain which had never before been determined. Tims, where the deed referred to a certain line not ascertainable by existing bounds, or known monu- > Goodriflge v. Dustin. 5 Met. 3G3; v. Thomas, 16 Tex. 74; Davis v. Whitney v. Holmes, 15 Mass. 152; Raiusfoid, 17 iMass. 212; Mciiwetlier Kellogg V. Smith, 7 Cash. 315. v. BaiiDon, 3 Sueed, 447; Dudley v. 2 Vosl.urgh V. Teator, 33 N.Y. 561; Elkins. 39 X. IT. 78; Browning v. M- Jacksou V. Dy.^ling. 2 Cai. 198; Rob- kinsoii, 40 Tex. 605; Jackson v. Ogden, bertson v. McNeil, 12 Wend. 578; 7 Johns. 245; Bobo v. Redmond, 25 Terry v. Ciiandlcr. 16 N. Y. 354; Ohio S. 115; Waterman v. Johnson, Davis V. Townsend, 10 Barb. 333; 13 Pick. 267; Makepeace v. Bancroft, Sellick V. Adams, 15 Johns. 197. 12 Mass. 469; Rockwell v. Adams, 6 3 Thayer v. Bacon, 3 Allen, 164; Wend. 468; Kellogg v. Smith, 7 Gush. Russell v. Maloney, 39 Vt. 579; Doe 382; Lerned v. Morrill, 2 N. H. 198; V. McCidlongh, 1 Kerr (N. B.)466. Stone v. Clark, 1 Met. 378. * .Mull V. Ormc, 67 Ind. 95; (leorge Boundaries. 1273 ments, the adjoining owners agreed, that certain existing marks or monuments should indicate where the line was, and after that, occupied each to that line for a considerable length of time. The court held the parties bound and estopped by this as the true line. Among the cases referred to by the court, was a class where the parties, in fixing the location of their lands, agreed upon a certain line between them, if followed by an occupancy, will bind them by such agreement, if the line thus fixed had previously been ambiguous and imcertain." Where the parties settled a disputed line by agreement, and occupied under it, it estops them." Where the owners of adjoining lands have agreed upon or acquiesced for a considerable time in the location of a division line (boundary) between their lands, although it may not be the true line according to the calls of their deeds, they are thereafter precluded from saying it is not the true line. " The division line when thus established attaches itself to the deeds of the respective parties." If by a mistake of the parties " one deed is in that manner made to include more than the calls of the deed would actually require, the grantee of the deed holds the excess by the same tenure that he holds the main body of the land. § 1136. If there is no way of ascertaining the true line, and the parties agree upon one, and mutually enter upon the occu- pancy of their lands in conformity to it, they make that the line and are mutually bound by it." Courts have held that parties who 1 Adams v. Rockwell, 16 Wend. 285; 45 Pa. St. 495 ; Holtou v. Whitney, Jaekson v. Ogden, 4 Johns. 140; 30 Vt. 405; Davis v. Smith, 61 Tex. Dibble V. Rogers, 13 Weud. 536; Chew 18; Main v. Killenger, 90 Ind. 165; V. Morion, 10 Watts, 331; Gray v. Harlung v. White, 59 Wis. 285; John- Berry, 9 N. H. 473; Orr v. Hadley, 36 son v. Brown, 63 Cal. 399. N. H. 575; Lindsay v. Springer, 4 ^ Smith v. Hamilton, 20 jMich. 438; Harring. 547; Rockwell v. Adams, 6 Creque v. Sears, 17 Hun, 123 ; Joyce Wend. 467: Terry v. Chandler, 16 v. Williams, 26 Mich. 332; Davis v. N. Y. 354 ; Daggett v. Willcy, 6 Fla. Townsend, 10 Barb. 333; Knowlcs v. 482; Creque v. Sears, 17 Hun, 123; Toothaker, 58 Me. 174; Richards v. Jackscm v. Van Corlear, 11 Johns. Coon, 13 Neb. 415 ; Kipp v. Norton, 123;McCormick v. Barnum, 10 Wend. 12 Wend. 127; Houston v. Sneed, 15 104; Gilchrist v. McGhee, 9 Yerg. 455; Tex. 807. Jackson v. Murray, 7 Johns. 5; Fly ^ Russell v. Maloney, 39 Vt. 580; V. College, 2 Sneed. 689; Browning v. Yates v. Shaw, 24 111. 367; McCormick Atkinson, 46 Tcx.685 ; Gratz v. Beates, v. Barnum, 10 Wend. 104; Jackson v. 1274 Tjie Law 'of Estoppel. agree upon a line by mistake, M'onld not be estopped to claim np to the true lino, although the other party un\y in the nieantiuic have erected buildings or incurred other expense upon the land which he claims.' While other courts, under similar circum- stances, held that it would work an estoppel, if the party making the improvement would otherwise lose the benelit of the same.'' And again, such an agreement was held to he ou\y prima /"acle evidence of what was the true line, but not conclusive.'' If adjacent proprietors fix a boundary line between them, in which they both acquiesce, and to which they occupy for a long period, "rarely less than twenty years," it is conclusive, and either party is estopped from offering any evidence to the contrary, " unless their acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance,"^ If, after an agreement as to the boundary one of the parties were to see a Van Corleur, 11 Johns. 123; Perkins V. Gray, 3 S. it R. 327; Jackson v. Ogdcn, 4 Johns. 143; Hagey v. Det- weilur, 35 Pa. St. 412; Jackson v. Gardner, 8 Johns. 406; Jackson v. Suflfern, 12 Wend. 421; Turner v. Baker, G4 Mo. 218; Burdick v. Hewley, 23 Iowa, 515 ; Taylor v. Zepp, 14 Mo. 482; Morse v. Connelly, 50 Cal. 295; Hdyes v. Livingston, 34 Mich. 384; Biggins V. Ciuimplin, 59 Cal. 113; Cooper V. Yierra, 59 Cal. 282; Sneed V. O'Shorn, 25 C WeLsbrod V. H. K., 18 Wis. 35; S. v. Boring, 44 Tex. 255; Dilloa v. C, 20 Wis. 419. Crook, 11 Bush. 331. ^ Kowbotham v. Wilson, 8 E. & B. * Pomeroy v. Mills, 3 Vt. 379. 145; Rawlyn's Case, 4 Co. 52; Weale ^ Dummer v. Jersey City, 20 N. J. v. Lower, Polle. 54. L. 86; Pella v. Scholte, 24 Iowa, 283; 3 Tarrant v. Terry, 1 Bay, 239; Antones v. Eslava, 9 Port. 527; Han- Powell V. Thomas, (5 Hare, 300; Will- uibal v. Draper, 15 Mo. 634; Hunter iamsv. Jersey, 1 C. & P. 91; Devon- v. Sandy Hill. 6 Hill, 407; Post v. shire v. Eglin, 14 Beav. 530; Marble Pearsol, 22 Wend. 425; President v. v. Whitney, 28 K Y. 297; Piersou v, Indianapolis, 12Ind. 620; Reynolds v, Cincinnati, 2 Dis. (O.) 100; Harrison Comm'rs, 5 Ohio St. 204; Todd v. R 1278 The Law of Estoppel. But a party having once given his free consent to forego the use of the easement, either temporarily or permanently, and suf- fered other persons to act upon the faith of that agreement, or consent, and to incur expense in doing the very act to which his consent was given, it is then too hite for him, or tliose claiming under liim, to retract such consent, or to thro\v on those relying on his good faith the burden of restoring things to their former state and condition. This is the just and equitable principle now lirmly established, and it is applied as well in courts of hiw as in courts of equity.' § 1141. Dedication is the act of devoting or giving property for some proper object, and in such a manner as to conclude the owner." It does not operate as a grant, but is in the nature of an estoppel in pais, which debars the owner from recovering it back. In regard to dedication of land to public uses, we find it elassiiied as follows: statutory dedications, and common law ded- ications. The former are made b}' a substantial compliance witli the statutory provisions. Thus, it may be requisite that it be acknowledged similar to a deed, and must also be recorded. But a common law dedication, may be shown by acts of the owner indicating an intention to dedicate, an acceptance may be shown by user for a long period, or by its otticial recognition by the constituted authorities. A statutory dedication vests the estate in the pul)lic by conveyance or grant, while under a common law dedication, where there is no express grant, to a grantee for a consideration, it operates by way of an estoppel hi j9a/6' of the owner, and not by grant, and leaves the legal title in the owner. An incomplete or defective statutorj^ dedication, where rights are acquired under it, or when accepted by the public, also operates as a common law dedication. For a full examination of lights and liabilities under a statutory dedication, the learned j'eader is referred to the able work of Judge Dillon on Municipal Corpora- tions, §§ 627-653. R Co., 19 Ohio St. 514: Smith v. 9 Met. 395; Morse v. Copclaiul, 2 Hueston, 6 Ohio, 101; Klinkeuer v. Gray, 304; Curtis v,. Noonau, 10 Al- School Dist., 11 Pa. St. 444. len, 4()6; Vogler v. Geiss, 51 .>[d. 407. ' Addison v.Huclv, 2 Gill, 221; ■Win- ^ Hunter v. Trustees. G Hill. 407; ter V. Brookwell, 8 East, 308; Li^gins Connehan v. Ford, 9 Wis. 240: Maii- V. Ingl, 7 Biug. 682; Dyer v. Sanford, kato v. Willard, 13 Minn. 13. Dedica'J'ion. 1279 § 1142. Ill order to constitute a valid dedication to the public, there must be an intention to dedicate.' Where the anitnus ded- icandi is establislied, no user for any definite period by the public is necessarj'. " No particular time is necessary for a dedication. If the act of dedication be unequivocal, it may take pKtce imme- diately. For instance, if a man build a double row of houses opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantlj' a highway. In a case Avherc, without judicial proceeding, or compensation, or solemn form of conveyance, it is sought to establish in pais a divestiture of the citizen's landed property in favor of the public, the proof ought to be so cogent, persuasive and full as to leave no reason- able doubt of the existence of the owner's intent and consent ; and the conduct and acts relied on to establish the intent should be inconsistent and irreconcilable with any construction except such consent ; nor must there be declarations and acts by the owner inconsistent with the dedication. It is purely a question of intention. To constitute a dedication of property to public use, there must be an acceptance by the public. This may be evidenced by user for a long period, or by its official recognition by the constituted autliorities. The user should be such as to indicate that the enjoyment by the public is exclusive, and not subordinate or incidental to the convenience of the owner.^ • Woodyer v. Haddon, 5 Tauut. Mansur v. State, 60 lud. 357; Jennings 125; Poolo V. Iliisliinson, 11 M. & v. Tisbury, 5 Grra3% 73; State v. New W. 827; Tupper v. Hudson, 46 Wis. Boston, 11 N. H. 413; Mansur v. 646. Haughey, 60 Ind. 364; Marcy v. Tay- ■^ Hayden v. Attleborougb, 7 Gray, lor, 19 111. 634; Waugh v. Leech, 28 338; Mankato v. Warren, 20 Minn. 111. 488: Mclutyre v Storey. 80 111. .144; Kamihun v. Halfman, 58 Tex. 127; Morgan v. E. R., 96 U. S. 716; 551; Braker v. Ry. Co., 29 Minn. 41; President v. Indianapolis, 12 Ind 620; Hall V. Baltimore, 56 Md. 187; Mauok Pennington v. Willard, 1 R. I. 93; Cin- V. Stale, 66 Ind. 177; Tupper v. Hu- cinnati v.White,6 Pet.435; Logausport son, 46 Wis. 646; Brinck v. Collier, 56 v. Dunn, 8 Ind. 378; Wilson v. Sexton, Mo. 165; Irwin v. Dixon, 9 How. 31; 27 Iowa, 15; Smith v. State, 23 N. J. Bayliss v. Supervisors, 5 Dillon, 549; E. 712; Westfall v. Hunter, 8 Ind. Kennedy v. Le Van, 23 Minn. 513; 174; Lee v. Lake, 14 Mich. 12; Onstott Henderson v. Alloway, 3 Teun. Ch. v. Murray, 22 Iowa, 466; Council v. 688; Chicago V. Johnson, 98 111. 618; Lithgoe, 7 Rich. L. 435; Mander- Commonwealth V. Belden, 13 Met. 10; schid v. Dubuque, 29 Iowa, 73; R. v. Hemphill v. Boston, 8 Cush. 195; Chi- Mellor, 1 B. & A. 32; R. v. St. Bene- cago V. Thompson, 9 111. App. 524; diet, 4 B. & A, 447; State v. Catlin, 3 1280 The Law of Estoppel. The character of an easement created by implication or estop])ol is determined by the circnmstauces in which the easement was created.' § 1143. A primary condition of every valid dedication is that it shall be made by the owner of the fee, or of an estate therein.'"' Although the assent of the owner may be inferred fiom circum- stances,^ a dedication may be made by the equitable owner, and the holder of the naked legal title is bound to respect'it.* It may be made b}' a municipal corporation, nnless restricted by statutes."* And the same rule applies to married women, as well as to per- sons sui juris." And also by an agent' of the owner. So it may be made by an administrator,* Parties claiming under one who is bound by a dedication are likewise bound by the same estoppel.' § 11-44. A dedication may be m;ide by parol,'" without any Vt. 530; .AIcKee v. St. Louis, 17 Mo. 184i Sket'u V. Stothart, 29 La. Ann. 630; Pierpont v. Harrisouville, 9 W. Va. 215; Siirauka v. Allen, 2 Mo. App. 387. ' Steele v. TiCfany, 13 R. I. 568. •^ Po.st v. Pearsall, 20 Wend. 442; Wood V. Veal, 5 B. & A. 454; Baugan V. Maun, 59 111. 492; Irwin v. Dixon, 9 How. 10; Hoole v. Att'y Gen'rl, 22 Ala. 190; Lee v. Lake. 14 Mich. 12; Leland v. Portland, 2 Oreg. 40; Por- ter v. Stone, 51 Iowa, 373; Baxter v. Taylor, 1 N. & M. 11; R. v. Bliss, 7 A. & E. 550. =* Winterbottom v. Derby, L. R. 2 Exchq. 316; Davies v. Stevens, 7 C. & P. 570; R. V. Barr, 4 Cam]), 16; Jarvis v. Dean, 3 Bing. 447; R. v. Hudson, 2 Str. 909; Harper v. Charles- worth, 4 B. & C. 574. * Williams v. Church, 1 Ohio St. 478; Baker v. St. Paul, 8 3Iinn. 491; Hannibal v. Draper, 15Mo. 638; .John- son V. Scott. 11 Mich. 232; Doe v. Attica, 7 Ind. 641; Ragau v. McCoy, 29 Mo, 356; Dover v. Fox, 9 B. Mou. 200; Banks v. Ogden, 2 Wall. 57; Sargeant v. Bank, 4 McLean, 439. ^ Boston V. Lecraw, 17 IIow. 426; State V. Woodward, 23 Vt. 1)2; Wright V. Victoria, 4 Tex. 375; Canal Co. v. Hall, 1 M. & G. 398; Green v. Canaan. 29 Conn. 157; San Francisco, v. Cal- derwood, 31 Cal. 585. '^ Todd V. n. li. Co., 19 Ohio St. 514; Roselterv. Grant, 18 Ohio, 126; Hill v. West, 8 Ohio, 225; R. R. Co. V. Crary, 1 Dis. (O.) 128; Guynne v. Cincinnati, 3 Ohio, 25 ; Moore v. ]\Iayor, 8 N. Y. 110; Smiley v, Wright, 2 Ohio, 514; Schenley v. Cc)nim'r.s, 36 Pa. St. 29. " U. S. V. Chicago, 7 IIow. 185; Brown v. ^Manning, 6 Ohio, 298; Bar- clay v. Howell, 6 Pet. 4^8; Wirt v. McEnery, 21 F. R. 233. ** Logaiisport v. Dunn, 8 Ind. 378. ^ Steam Engine Co v. Steamship Co.. 12 R. I. 348; Ewing v. Desilver, 8 S. & R. 92. 10 Robertson v. Wellsville, 1 Bond, 81; Barclay v. Howell, (5 Pet. 498; Keen v. Lynch, 1 Rob. (Va.) 186; Dummer v. .lensey City, 20 N. J. L. 86 ; Vick v. Vicksburg, 2 Miss. 379; State V. Catliu, 3 Vt. 530; McKee v. St. Louis, 17 Mo. 184; Hunter v. San- Dedicatio:n^. 1281 deed or other written evidence ; the mere oral declarations and acts of the owner will warrant the presumption of a dedication, though followed by public enjoyment for ever so short a time. The time of enjoyment is immaterial, or it may be presumed from lapse of time,' or by immediate presumption.^ The rule as to dedication at common law is but the application of the doc- trine of estoppel in pais. A dedication to the public use does not operate as a grant, but as an estoppel ia pjals of the owner of the servient estate from asserting a right of possession inconsist- ent with the uses and purposes for which the dedication was made.^ A party is as much estopped from acting fraudulently or unjustly with reference to property to which he has not strictly and technically a legal title, as with reference to property to which his legal title is perfect. So, where a person has an equitable title, and the United States have the naked fee, he may convey and dispose of it as he pleases, and if he dedicates any portion of it to the public use, he is estopped from revoking such dedication to the prejudice of anj^ individual, or to the public. A party having no title or interest in land may estop himself by his deed fron questioning the validity of his title, or denying dy Hill, 6 Hill, 407; Post v. Pearsall, 22 Wend. 425; Dover v. Fox, 9 B. Mod. 200; Macou v. Franklin, 12 Ga. 239; Morrison V. Marquardt 24 Iowa, 35; Pearsall v. Post, 20 Wend. 11; Cincinnati v. White, 6 Pet. 431; Tal- mage v. Bank, 26 N. Y. 105; Ward v. Davis, 3 Sandf. 502; Molntyre v. Storey, 80 111. 127; Child v. Campbell, 9 N. Y. 251; Gridley v. Hopkins, 84 111. 528; Barkley v. Howell, G Pet. 498; Keen V. Lynch, 1' Rob. (Va.) 486. ' WilkiJs V. Barnes, 79 Ky. 323; State V. Wilkinson, 2 Yt. 480; Bow- man V. AVicklifife, 15 B. Mon. 99; R. V. Lloyd, 1 Camp, 200; Ham v. Mc- Leotl, 2 Met. 98; Thomas v. Bertram, 4 Bush, 317; State v. Trask, 6 Yt. 355; Shaw v. Crawford, 10 Johns. 286; State v. Sartor, 2 Strobh. 61; Stevisonv. Woodi-ulf, 21 N. J. L.134; State V. Thomas, 4 Harr. 568; Reed Vol. I.— 81 V. Northfield, 13 Pick. 13: Elliott v. Treadway, 10 B. Mon. 22; Kenney v. LeVan, 23 Minn. 513; R. R. Co. v. Jollie, 79 III. 35; Robertson v. Wells- ville, 1 Bond, 81 ; Abbott v. Miles, 8 Yt. 521 ; Greely v. Qiiimby, 22 N. H. 338; Kennedy v. Jones, 11 Ala. 63; Schenly v. Commonwealth, 26 Pa. St. 29;" Reg. v. East Mark, 11 Q. B. 887. ^Earned v. Earned, 11 Met. 421; Noyes v. Ward, 19 Conn. 265. => Mankato v. Willard, 13 Minn. 13; Cincinnati v. White, 6 Peters. 431: Pawlett V. Clark, 9 Crancli, 292; Olcott V. Baufill, 4 N. H. 537; Schur- meier v. R. R., 10 Minn. 82; Cincinnati V. C(mim'rs, 7 Ohio, 188; Curtis v. Kcesler, 14 Barb. 521; Brown v. Plan- ning, 6 Ohio, 298; Hunter v. Trus- tees, 6 Hill, 407; Fulton v. Merrifield, 8 Ohio, 440. 1282 The La ay of Estoppel. t]i;it l»o had antliority to convey the fee, or devote any interest or estate to public use at the time of the sale or dedication. § 1145. This principle of estoppel in- j>a/'s is applied in the case of the dedication of the use of one's land to the public as a public conunon, landin<^ place or highway where private and individual rights have been acquired in reference to it. A dedi- cation to pious and charitable uses may be effectual, though not distinctively a public one, and if so made that the holder of the estate becomes a trustee for the purposes of a charity, no subse- quent conveyance to one having notice could change the use. The grantee would himself become tlie trustee. But the more erecting of a church for a religious society does not dedicate it. The owner may sell it if he pleases. To effect such a dedication there must be a donation by the owner, or some unequiv^ocal act united wnth an intent to divest himself to some extent of the ownership or power of control over tlie property, and to vest an independent and irrevocable interest in some other person or body.' The law considers such a state of things in the nature of an estoppel m pais, which precludes the original owner from revoking such dedication, for this would be a violation of good faith to the public, and to those who have acquired private prop- erty with a view to the enjoyment of the use thus publicly granted. But in accepting the dedication of a way, the public take it as it is, and if defective or dangerous, the public will be responsible." If land lias been dedicated and accepted as a pub- lic square, for instance, and individuals, upon the faith thereof, have built their houses in reference to it as such, the dedication cannot afterwards be rescinded and revoked.' Thus, where the Baucan v. Mann, 59 111. 492; Hard- Paige, 510; Iluber v. Gazley, 18 Ohio, ing V. Hale, Gl 111. 193; McWiVliama 18; Lecleic v. Gallipolis, 7 Ohio, 88; V. Morgan, 61 111. 89; AUv Gcnl V. Poarsall v. Post, 20 Wemi. Ill; Merrimac Co., 14 Gray, 580; Be;iUy Winona v. Ilufl, 11 Minn. 119; Doc V. Kurtz, 2 Pet. 526; Assoc. V. Bandy, v. Attica, 7 lud. 641; Reynolds v. 93 Ind. 246. Comra'rs, 5 Ohio, 204; Smith v. 2 Robbins v. .Jones, 20 L. Kop. C. B. lleusloii, 6 Ohio, 101; Brown v. Man- 291. ning, G Ohio, 298; Lebanon v. •' Commonwealth v. Rush, 14 Pa. Comm'rs, 9 Ohio, 80; Dover v. Fox, St. 186. State v. Wilkinson, 2 Vt. 9 B. ^lon. 200; Livermore v. Maquo- 480; Abbott V. Mills, 3 Vt. 521; State keta, 35 Iowa, 360; Smith v. State, V. Callin, 3 Yt. 530; State v. Trask, 6 23 N. J. L. 713. Vt. 355; Watertown v. Cowcn, 4 Dedication. 1283 commissioners of a county laid out a town for a county-seat, by a plot on which certain squares were indicated as " public lots," and individuals built around one of these, it was held that thev might enjoin the erection of buildings upon the land thus set apart.' Nor does the estoppel depend upon the length of time for which this use shall have been enjoj-ed/ § 1146. There is no necessity for a grant or conveyance by deed or writing on the part of the owner of land, in order to con- stitute a dedication. If lie do such acts in pais as amount to a dedication, the law regards him estopped in pais from denying that the public have a right to enjoy what is dedicated, or from revoking what he has thus declared b}^ his acts. There may be a dedication to the use of a town before it is incorporated, or to the public, or a body not capable of taking a grant. A dedication when once made to, and accepted by the public, is in its nature irrevocable.^ 1 Eutherford v. Tajior, 38 jSIo. 315; Abbott V. Mills, 3 Vt. 521 ; Huunibal V. Diaper, 36 Mo. 332; Price v. Thompsou, 48 Mo. 361. - Jarvis v. Dean, 3 Biug. 477; Eugby V. Meniweather, 11 East, 376; Connehau v. Ford, 9 Wis. 340; State T. Mudd, 23 N. H. 27; E. v. Lealce, 5 B. & A. 469; Hanson v. Taylor, 23 Wis. 547; Noyes v. Ward, 19 Coun. 250; Holdane v. Trustees, 21 K. Y. 474; Buchanan v. Curtis, 25 Wis. 99; NowHq v. Whipple. 79 lud. 481; Hoole V. Att'y Gen'rl, 22 Ala. 190; Boyer v. State, 16 Ind. 451; Evans- ville V. Paige, 23 Ind. 525; Cincinnati V. White,6 Pet. 431 ; Barclay v. Howell, 6 Pet. 498; Irwin v. Dixon, 9 How. 10; Hobbsv. Lowell, 19 Pick. 405; State V. AVilkinson, 2 Yt. 480; Hunter v. Sandy Hill, Hill, 407; Gamble v. St. Louis, 12 Mo. 617; Lewis v. San Antonio, 7 Tex. 288; New Orleans v. U. S., 10. Pel. 661; Weisbrodv.E. E., 18 Wis. 35; State v. Trask, 6 Vt. 353; Doe v. Jones, 11 Ala. 63; Onstott v. Murray, 22 Iowa, 457; Pelle v. Scholte, 24 Iowa, 283; Saulet v. New Orleans, 10 La. An. 81. 3 State V. Trask, 6 Vt. 355; Com- monwealth V. Albrugh, 11 Wheat. 469; ]Missouri v. How, 27 Mo. 211; Huber v. Gazley, 18 Ohio, 18; Eowan V. Portland, 8 B. Mon. 232; Eagan v. V. McCoy, 29 Mo. 356; Scott v. Slate. 1 Sneed, 632; Dubuque v. Maloney, 9 Iowa, 455; Williams v. Cliurcli, 1 Ohio St. 478; Cincinnati v. White, 6 Pet. -431; New Orleans v. U. S., 10 Pet. 662; Cady v. Conger, 19 N. Y. 256; Ilaynes v. Thomas, 7 Ind. 38; Warren v. Jacksonville, 15 111. 236: Cole V. Sproul, 35 ]\Ie. 161 ; Skeen v. Lynch, 1 Eob. (Va.) 186 ; Vick v. Vicksburg, 2 Miss. 379; Cotinehau v. Ford, 9 Wis. 240; Commonwealth v. Fi.sk, 8 Met. 238; Ward v. Davis, 3 Sand. 503; Wright v. Tukey, 3 Cush. 294; Paulett v. Clark, 9 Cranch, 292; McConnell v. Lexington, 13 Wheat. 583 ; Doe v. Jones, 11 Ala. 63; Au- toues V. Eslava, 9 Port. 537; Winona v. Huff, 11 Minn. 119; Mayor v. Com- pany, R. M. Charlt. 342; Klinkeuer 1284 The Law of Estoppel. / § 1147. Where there is a innp or plat, on M-]iich land is hiid off with streets, avenues and alleys intersecting it, and the owner of such land adopts that niaj) bj' sales with reference tliereto, his acts will amount to a dedication of the designated streets, avenues and alleys to the public. Such dedication will estop the land owner from claiming compensation for the land taken for the street. The deed is conclusive evidence of the dedication, and parol evidence of an intention not to dedicate is inadmissible.' By laying out a town, and selling lots which are sub-divisions of the land owned by the grantor who has caused a map or plat of such town, village or addition to a city, to be recorded, with streets, alleys and ways marked thereon of a certain width, and describing the property sold as lot — block— ^he conveys the lot subject to an easement which easement he has by the record of his duly acknowledged plat absolutely and irrevocable conveyed or dedicated to the public. The purchasers of all lots acquire, as appurtenant thereto, a vested right in and to the use of adjacent grounds, designated as public grounds, streets and ways, on such plat, to the full extent of the designation on such plat imports, which ]-ight cannot be divested by the owner making the dedica- tion, nor by the town in its corporate capacity.* It is immaterial V. School Dis., 11 Pa. St. 414; Pella State v. Willuuson, 2 Vt. 480; Fisher V. Scholte, 24 Iowa, 28o; "VVaugh v. v. Beard, 32 Iowa, 34G; Grhlley v. Leech. 28 111. 488; Bryant V. McCuud- Ilopkius, 84 111. 538; Woodyer v. less, 7 Ohio, 135. Iladdeu. 5 Taunt. 125; Schenly v. 'CI irk V. Elizabeth, 40 X. J. L. Commonwealth, 26 Pa. St. 29; Bartlctt 172; Denver V. Clements, 3 Col. 472; v. Bani^ur, 67 Me. 460; Zearing v. Hiss V. R. R. Co., 52 Md. 242; S. C, Raber. 74 111. 400; Ilanaibal v. Draper. 30 Am. R. 371; Field v. Carr, 59 111. 36 .AIo. 332; Livermore v. Maquoketa, 198; Vicksburg v. Marshall, 59 Miss. 35 Iowa, 358; Commonwealth v. Rush, 563; Lamar Co. v. Clements, 49 Tex. 14 Pa. St. 190; Rivers v. Dudley, 3 347; Devvitt v. Ithica, 15 Hun, 508; Jones (N. C.) 136 ; Brown v. Manning, Brooklyn, in re, 73 N. Y. 179. 6 OJiio, 298; Lewis Street, in re, 2 5 Dubuque V. Jlaloney, 9 Iowa, 540; Weud. 472; Clement v. West Troy, Leffler v. Burlington, 18 Iowa, 3.11; 16 Barb. 251; Oswald v. Gaructt. 22 Bowen v. Portland, 8 B. j\Ion. 232; Tex. 94: Preston v. iSavasota, 34 Tex. Proctor V. Lewistou, 25 III. 153; 684; Iluber v. Gazley, 18 Ohio, 18 ; Livingstone v. New York, 8 Wend. Smith v. Flora, 64 111.93; Logans- 106; Wyraan v. New York, 11; port v. Dunn, 8 Ind. 378; Beaty v. Wend. 487; Watertown v. Cowcn, 4 Kuntz, 2 Pet. 560 ; Price v. Brenken- Paige Ch. 510 ; Cincinnati v. White, ridge, 77 Mo. 447; Rowan v. Portland, 6 Pet. 431 ; Barclay v. Howell, 10 Pet. 8 B. ^Mon. 232 ; Lamar Co. v. Clem- 468; Burton v. Martz, 38 Mich. 701; ents, 49 Tex. 347; Fisher v. Beard, Dedication. 1285 whether the plat is ou record at the time of the execution of the conveyance or is subsequently recorded. The deed is conclusive evidence of the intention to dedicate. ^^The making of the map, or plan, and selling building lot-s^'thereon, and keeping silent while improvements are made, are the clearest evidence of an intention on the part of the owner to donate the land thus designated, to public use, and purchasing the lots sold in this manner, and making the improvements, or, if it be a street, work- ing and repaii'ing it by the public authorities, or a user by the public a sufiicient time, constitute evidence of acceptance of the proffered donation, which, if unequivocal, makes the dedication complete ; and the reasons that underlie an estoppel in pais are cogent against allowing the owner to revoke the dedication.* The intention of the owner, manifested by express consent, or by acquiescence in the user of the thing, will create dedication.^ § 1148. All that is necessary to constitute a good dedication, is, that tliere should be an intention and an act of dedication on the part of the owner, and an acceptance on the part of the pub- lie. Whenever these concur the dedication is complete. When the dedication is accepted it takes effect, and the owner of the soil is thenceforward estopped from reasserting his ancient rights.^ 33 Iowa, 346; Alvez v. Henderson, 16 Le Cleicq v. Gallipolis, 7 Ohio, 217; B. Men. 168; Lawrence v. Mayor, 3 Getchcll v. Benedict, 57 Iowa, 121; Barb. 577 ; Williams v. Smith, 23 Wis. Commonwealth v. Alburger, 1 Whart. 594; Abbott v. Mills, 3 Vt. 521; 485; Waiigb v. Leech, 28111. 448; Vrec- Rutberford v. Taylor, 38 Mo. 315; laud v. Torrey, 34 N. J. E. 312; Weis- White V. Flauigan, 1 Md. 525; Wet- brod v. R. R. Co., 20 Wis. 419; Engine more v. Story, 23 Barb. 414; Mayor Co. v. Steamsliip Co., 12 R. I. 348; V. Franklin, 12 Ga. 243; Moale v. Price v. Breckenridge, 77 Mo. 447; Mayor, 5 Md. 314; State v. Catlin, 3 Assoc, v. Bandy, 93 Ind. 246. Vt. SaO; Sutherliu v. Jackson, 32 Me. ' Richmond v. Stokes, 31 Gratt. 378; 80; Godfrey v. Alton, 12 111. 29; Baton Kaime v. Hart3^ 73 Mo. 316 ; Camp-^ Rouge V. Bird, 21 La. Ann. 246; 17lh bell v. O'Brien, 75 Ind. 333; Tuflfer v. Street, in re, 1 Wend. 362 ; Warren Huson, 46 Wis. 646 ; Vreeland v. V. Mayor, 22 Iowa, 351; Rung v. Torrey, 34 N. J. E. 312; Mansur v. Shoneberger. 3 Watts, 25; Mercer State, 60 Ind. 357; Bloomstein v. Clees Street, in re, 4 Cow. 543; Comm'rs v. 3 Tenn. Ch. 433. Lathrop, 9 Kas. 453; Cardy V. Conger, * ^Varren v. Jacksonville, 15 111. 19 N. Y. 256; Augusta v. Perkins, 3 236; Dimon v. People, 17 111. 433; B. Mon. 437; Gosselra v. Chicago, 103 Marcy v. Taylor, 19 111. 634. 111. 633 ; Indianapolis v. Croas, 7 Ind. » Abbott v. Mills, 3 Vt. 54; Dem- 13; New Orleans v. U. S., 10 Pet. 667; ming v. Rowe, 6 Wend. 651; Woolard 1286 The Law of Estoppel. '''Wliere land has been set apart for public use and private aud individual rights acquired with reference to it, such setting apart is regarded as an estoppel in pais, precluding the original owner from asserting a right to the ])Ossession, although the fee may be in such owner.' If proprietors of land evince by their manner in laying it out, selling it, or appropriating it to the public or cor- porate uses, an intent to set it apart and devote it to the uses of a municipal, educational, religious or other corporations, their so doing is a dedication of the property to such uses, and they are afterwards estopped from resuming control over it." It is a general rule that to constitute a valid common law dedication, there must be an intention to dedicate, and an act on the part of the owner, aud an acceptance on the part of the public. This general rule is, however, subject to modification, that if the owner of a servient estate intentionally or by gross negligence leads the public to believe that he has dedicated the premises to public use, he will be estopped from denying the dedication to the prejudice of those whom he may have misled. If he shall do such acts in pais as amounts to a dedication the law regards him as estopped in pais from denying that the public have a light V. :McCiillougli, 1 Ired. 432; State v. Trask, 6 Vt. 355; Slate v. Marble, 4 Ired. 318; Shaw v. Crawford, 10 Johns. 236; Post v. Pearsall, 22 Wend. 425; Gowen v. Phil. & Co., 5 W. «fc S. 141; Green v. Chelsea, 24 Pick. 71; Barclay v. Howell, 6 Pet. 498 ; Wooilyer v. Iladden, 5 Taunt. 125; Pritcliiird v. Atkinson, 4 N. II. 1; State V. Campion, 2 N. H. 513; Child V. Chappell, 9 N. Y. 24G; Carpenter V. Gwymi, 35 Barb. 395; Schenley v. Commonwealth, 36 Pa. St. 29; Conne- han V. Ford, 9 Wis. 240; Common- wealth v. Fisk, 8 Met. 238; Scott v. State, 1 Sneed, 633. > Morgan v. R. R., 96 U. S. 716; Princeton v. Templeton, 71 111. 68; Sanford v. Meriden, 62 Miss. 383; Mayor v. Backman, G6 N. Y. 261; Haynes v. Thomas, 7 Ind. 38; Rich- mond v. Stokes, 31 Gratt. 378; Holdaue V. Cold Spring, 24 N. Y. 474; Godfrey V. Alton, 12 111. 29; Columbus v. Bahn, 36 Ind. 330; R. v. Leake, 5 B. & A. 469; Rowan v. Portland, 8 B. Mnn. 232; Harris' Case, 20 Gratt. 833; Ful- ton V. Mehrenfield, 8 Ohio St. 40; Schurmeier v. R. R. Co., 10 Minn. 82; Penquite v. Lawrence, 11 Ohio St. 274; ]\Iathis v. Parham, 1 Tenn. Cii. 533; Lee v. Lake, 14 ]\Iich. 12; Weis- brod V. R. R., 18 Wis. 35; Common- wealth V. Albruger, 1 Whart. 469 ; Ragiun V. McCoy, 29 Mo. 359; State v. Catlin, 3 Vt. 530; Macon v. Fianklin, 12 Ga. 239: Indianapolis v. Cross, 7 Ind. 9; Mansur v. Stale, 60 Ind. 357; Cincinnati v. White, 6 Pet. 431. 2 Hannibal v. Draper, 15 Mo. 634: Trustees v. Havens, 11 111. 554; Atkin- son V. Bell, 18 Tex. 474; Mayor v. Franklin. 12 Ga. 239. Dedication. 1287 to enjoy what is dedicated, or revoking what he has thns dedared by his acts, and a dedication once made and accepted by the pub- lic is in its nature irrevocable.' The principle on which' the binding and irrevocable nature of a dedication of a street or high- Avay rests, is if it be laid out on the soil or a map, by authority of the owner of the land, and the resumption of that- street or way would be a fraud upon any interests acquired upon the faith of its being left open, the owner cannot revoke that appropriation, this dedication may be immediate, as if one owing land exhibit a map of it, on which a street is laid out, though not yet opened, and building lots be sold by liim with reference to the front or rear of chat street, or lots conveyed, being described as by streets, this is an immediate dedication of that street, and the purchasers of lots have a right to have that street thrown open forever.* This principle is not limited in its application to the single sti'eet on which such lots are situated, if it is shown that the opening of a street has induced others to become interested in such a man- ner, that the resuming of the soil would be a fraud upon them ; and without such particular showing, hipse of time operates as affording a presumption that a revocation would be injurious to interests accpiired on the faith of the streets beiug left open, and therefore would be fraudulent ; the length of time for this pre- sumption must v^ary with the circumstances, but it ought to be ' Wilder v. St. Paul, 12 Aliun. 192. Hannibal v. Draper. 15 Mo 634; ^Bartlett v. Bangor, 67 Me. 460; Sclienley v. Commonwealth, 36 Pa. Birdges v. VVycoffi, 67 N. Y. 130; St. 62; ' Doe v. Attica, 7 Ind. 641 ; Shanklin v. Evausville, 55 Ind. 240; Wyman v. New York, 1 Wend. 487; Cliurch V. Hoboken, 33 N. J. L. 13; Livingstone v. New York, 8 Wend. Baton Rouge v. Bird, 21 La. Ann. 85; McKenna v. Comm'rs, Harp. L. 244; Preston v. Navasota, 34 Tex. 381; White v. Cower, 4 Paige, 510; 684; Field v. Carr, 59 111. 198; Trus- Barclay v. Howell, 6 Pet. 498; Town tees V. Walsh, 57 111. 364; Williams v. v. Lithgoe, 7 Rich. 435; AVyman v. Smith, 22 Wis. 594; Pettibone V.Ham- Mayor, 11 Wend. 481; Dubuque v. ilton, 40 Wis. 402; Moale v. Baltimore, Maloney, 9 Iowa, 450; Pope v. Union, 5 Md. 314; White v. Flanigan, 1 Md. 18 N. J. Eq. 282; Rowland v. Port- 525; Rowan v. Portland, 8 B. Mon. land, SB. Mou. 232; Winona v. Huff, 232;Augustav.Perkins, 8B. ]Mon.2()7; 11 Minn. 119; Huber v. Gazley, 18 County V. ISewport, 12 B. Mon. 538; Ohio, 18; Shanklin v. Evansville, 55 Wickliffe v. Lexington, 11 B. Mon. Ind. 240 ; Woodyer v. Haddon, 5 155; Newport v. Taylor, 16 B. M(m. Taunt. 125; Fulton v. Mehreufield, 8 699; Stone v. Brooks, 35 Cal. 489; Ohio St. 448; Johnson v. Scott, 11 Cook V. Burlington, 30 Iowa, 94; Mich. 243. 12.S8 The Law of Estopi'el. tor sncli a length of time tliat the public accommodation and pri- vate rights might be materially affected by an interruption of the enjoyment.' In one case, the court said : "however singular the anomaly which is thus created in law, that a dedication of lands to a public use, in effect extinguishing forever the title of the owner, may be made by an act in pais ; that tlie doctrine of prescription is not applicable to the case, so as to require evidence of long user to establish the right, but that a valid dedication may be made by a single act, if positive and unequivocal in its nature, and especially where purchases have been made upon the faith which the act was meant to induce ; that to constitute a public use, it is not necessary that the public at large^ that is, all persons without distinction, shall be able, or be entitled to share its advantages, but it is sufficient that its advantages are meant to be. and may be shared by the inhabitants, or by vi por- tion of the inhabitants of a city, town, village or other locality.'" § 1149. Where defective proceedings ai*e resorted to for the purpose of laying out a highway, and the land owner accepts the damage as awarded, he is estopped from contesting the validity of the highway, and the act may be regarded as a dedication,' and if the owner of land intended and assented that the public should use it, and the public do so, that is a dedication.* The owner > Cincinnati v. White, 6 Peters, 431; R. v. State, 29 Ala. 580; Detmole v. Jarvis v. Dean, 3 Bing. 447; State v. Drake, 46 N. Y. 318; Chatterton v. Catlin, 8 Vt. 530; Saulet v. New Or- Parrot, 46 Mich. 430; Kile v. Yellow leans, 10 La. Ann. 81; Denning v. head, 80 111. 280; Prescott v. Patter- Roome, 6 Wend. 651; Tallmadge v. sou, 46 Mich. 622; Snow v. Walker, Bank, 26 N. Y. 105; Barclay v. How- 42 Te.x. 154; Kellogg v. U. S.. 1 Ct. of ell, 6 Pet. 498; Noyes v. Ward, 19 CI. 310; Pursley v. Hayes, 17 Iowa, Conn. 250; State v. Marble, 4 Ired. L. 310; Cominonweallh v. Shuman, 18 318; Skean v. Lynch, 1 Rob. (Va.) Pa. St. 343; Smith v. Warder, 19 Pa. 202; Sheen v. Stothard, 29 La. Ann. St. 626; Deford v. Mercer, 24 Iowa, 630. 118; Thillale v. Stanley, 14 Iiid. 409; « Ward V. Davis, 3 Sandf. 502. R. R. Co. v. Chamberlain, 84 111. 333; 3 Schalz V. Pfeil, 56 Wis. 429; Haw- Ogden v. Stokes, 25 Kas. 517; Harts ley V. Harrall, 19 Coin. 142; Whit- horn v. Potroff, 89 111. 509; Test v. tlcsley V. R. R., 23 Conn. 421; Burns Larsh, 76 lud. 45C; Burns v. Dodge, v. R. R. Co.. 9 Wis. 450; R. R. v. 9 Wis. 458; Pryzbylowicz v. R. R., Proctor, 29 Vt. 93; Hitchcock v. R. 17 F. R. 492. R., 25 Conn. 516; Baker v. Braman, 6 ■» Gardner v. Tisdale, 2 Wis. 153; Hill, 47; Embury v. Conner, 3 N. Y. Holden v. Trustees, 23 Barb. 103 ; 511; Karber v. Nelles, 22 Wis. 215; R. Dedication. 1289 may estop himself from demanding compensation prior to the tak- ing of his property, and also estop himself from prosecuting an action to prevent the taking of his property for public uses, in several ways ; thus, if he expressly consents, or with full knowl- edge of the taking, and makes no objection, and permits a public corporation to enter upon his land and expend money tliereon, and carry into operation the purposes for which it was taken ; or by voluntarily accepting money allowed as damages by the tribunal appointed for the assessment of such damages, the actual receipt of the money by the owner of the land ratifies the proceed- ings and amounts to a dedication of his property to such public uses. So, after having due notice of the proposed taking, the owner fails to claims damages within the time fixed by law, he cannot do so afterwards.' And a party who petitions for a change of a road, and asks for an increase of damages, ratifies all prior proceedings and is estopped from claiming their invalidity for irregularities.' So, by joining in a petition asking for a road, acting as one of the commissioners, and releasing his claim for damages, amounts to a dedication and estops him and his privies from alleging that all the statutory requirements had not been complied with.^ Neither compensation nor the intervention of a jury is required to determine the necessity of the taking, required to the valid dedication of property to the public use ; acceptance alone is necessary. Authority to an agent to purchase a town site and lay out a town, is authority to lay out streets in such town, or to dedicate them to the public use, and the acts or representations of the agent with reference to the laying out and dedication of streets will bind the principal, particularly if it appears that such acts and representations were brought to his knowledge and were ratified by him. So a party whose land has been flowed for ten years or more by means of a dam across a navigable river, and who has acquiesced in the original construction and subsequent use and enjoyment of the water-power, and the repair and rebuilding of the dam from time to time, and thereby induced the making of Dubuque v. Maloney, 9 Iowa, 455; Ogden v. Stokes, 25 Kas. 517; Wool- Connehan v. Ford, 9 Wis. 244. sey, in re, 95 N. Y. 135. ' Taylor v. Marcy, 22 111. 518; Neff ^ Trickey v. Schlader, 53 111. 78; V. Bates, 25 Ohio St. 169. Crockett v. Boston, 5 Cush. 182; Mar- 2 Jordan v. Hascal, 63 Me. 193; rati v. Deihl, 37 Iowa, 250. 1290 The Law of Estoppel. valuable improvements to be used in connection therewith, is thereby precluded from maintaining an action to abate the dam, or to restrain the owners from rebuilding it when purtiully destroyed ; but not from maintaining a common law action for his damages.' § 1150. A parol division of partition by coparceners or tenants in common, accompanied or followed by an exclusive possession of their respective shares has from a comparatively early period been held binding on grounds thought to be legal, but the origin is in fact due to the admission of purely equitable principles at common law.* Where commissioners appointed to make. partition of real estate treat a portion of the property as part of a public street and make partition of the remainder, the acceptance oi the parties to the suit of such partition estops them from denying that the portion not divided is a part of the street.^ Thus, D. and T., tenants in common of real property, made a parol partition, followed by exclusive possession and improvements. D. gave to T, a deed of the portion allotted to the latter, but afterward declined to receive a deed from him for the other portion, saying he had changed his mind. He, however, expended large sums in the improvement of that share. This gave him a right to enforce the agreement for partition. A parol partition of real estate by tenants in common, followed by an exclusive possession ai-e acts of ownership by each tenant respectively and are valid and bind the heirs.* Where a plaintiff presents a sworn petition for a partition of lands which stated that he and others were tenants in common thereof and proceedings are had thereon he is estopped ' Cobb V. Smith, 16 Wis. 661. Johns. 270; Corbin v. Jackson, 14 " McMahan v. McMahan, 13 Pa. St. Wend. 619; Brockingtou v. Camlin, 4 376; Wikley V. Bonney, 31 Miss. 644; Strobh. Eq. 189; Ryeis v. Wheeler, Piatt V. Ilubbell, 5 Ohio, 245; Baker 25 Weml. 434; Piper v. Buckner, 51 V. Lorillard, 4 X. Y. 257; ODouakl Miss. 848; Bement v. Williams, 44 V. Kelsoy, 10 N. Y. 412; Natchez v. Tex. 158; Cox v. McMullcn, 14 Gratt. Vauderwekle, 31 Miss. 70f); Slice v. 82. Derrick, 2 Rich. 027; Jackson v. liar- ^ McGregor v. Reynolds, 19 Iowa, din, 4 Johns. 202; Jackson v. Living- 228; Robins v. Gleason, 47 Me. 259. stone, 7 Wend. 130; Mount v. ^Mortiii, * Wood v. Fleet, 36 N. Y. 499; Nor- 20 Barb. 123; Jackson v. Vosburg, 9 ton v. Outland, 18 Ohio St. 383. Oral Partition. 1291 from denying that the others are his co-tenants, and cannot main- tain trespass against them for entering.' § 1151. There is one otlur act of parties wliich may operate in the nature of an estoppel, not in conveying a title to lands from one to another, but in quieting titles so as to estop any adverse claim, and that is by arbitrament and award, where the parties have submitted to arbitrators the question of property in lands, and an award upon the point has been made and published. Such award is conclusive as to their respective rights of property, even though the snbmission and award were by parol.'' While the statute of frauds and the principles of the common law may preclude the transfer or extinguishment of a right to laud, but by an award which has its origin in a parol submission, the trans- action operates as an estoppel without passing the title and pre- cludes either party from asserting in opposition to the award.* § 1152. Adverse possession cannot originate or continue while the party actually occupies under a lease from the owner," A tenant under a lease from one having possession and control of the premises but no title to them (which lease contains a clause that in case lessors should cease to control or own the property no rent should be paid unless their successors in writing should confirm the lease) by holding under and paying rent to the suc- cessive assignees of the owner, is estopped from denying that they are assignees of his original lessor, and continues bound to pay rent to them in that character or as having by the instruments of confirmation become new lessors.^ § 1153. A conveyance will not in general be presumed where the original enjoyment was consistent with the fact of there hav- ' Van Ormau v. Phelps, 9 Barb. 447 SOU •< Carey v. Wilcox, 6 K H. 177; ■' Doe V Rosser, 3 East, 15; Good Clark v. Wethey, 19 Wend. 320; Mer rich V. Dustin, 5 Met. 36:3; Trustee v. rink's Est., 5 W. & S. 9 ; Shelton v Yewrc, Cro. Eliz 223; Baker V. Town Alcox, li Conn. 240, Robertson v. send, 7 Taunt 422; Shelton v. Alcox, McNeal, 12 Wend. 578; Goodridge v. 11 Conn. 2i0; Bowen v. Cooper, 7 Dustin, 5 Met. 363; French v. New. Watts, 3li; Shepherd v Ryers, 15 40 Barb. 481 Johns. 497; Carey v. Wilcox, G N. H. ■* Corning v. Troy, 34 Barb. 485; 177; Sellickv. Adams, 15 Johns. 197; Hatch v. Peudergrast, 15 Md. 251; Davis V. Harvard, 15 S. & R . 165; De Lancey v. Ganong, 9 N. Y. 9. Meriwether v. Larman, 3 Snced, ' Whalin v White, 25 N. Y. 462, 1292 The Law of Estoppel. ing been none.' But Avliere the plaintiff produced an original lease of the premises for a long term, and proved possession for seventy years, the mesne acsignments Avero presumed." And tlie jury ^vere directed to presume that a grant regularly issued, where a certificate of recovery had been returned, and there were sundry conveyances of the land, and possession by persons claim- ing thereunder.' Presumptions of grants are founded upon the general infirmity of human nature, the difiiculty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They may be encountered by con- trary presumption, and can never fairly arise where all the cij'- cumstances are perfectly consistent with the non-existence of a grant. ^ In general, the presumption of a grant is limited to periods analogous to those of the statute of limitations, in cases where the statute does not apply. Where the statute applies, the presumption is not generally resorted to; but if the circumstances of the case are very cogent and require it, a grant may bo pre- sumed within a period short of the statute." Peaceable posses- sion of lands by a party, will form a presumption of title, on which a recovery in ejectment may be had against a mere intruder or trespasser, or any one who has entered upon the land, except the one having the real title." Where land was sold at execution sale, and the execution debtor in possession leased the land to a third person after sale, the lessee cannot set up the title of the vendee, as a defense against the action of the lessor.' § 1154. A tenant can never set up his possession as adverse to his landlord, so long as the relation of landlord and tenant con- tinues to exist. Where the relation of landlord and tenant exists a conveyance by the tenant of the demised premises cannot operate as the basis of an adverse possession so as to bar the land- lord of his ejectment, whether the grantee know of the demise or not. Where the relation of landlord and tenant is established, it 'Doe V. Reed, 5 B. & Aid. 233. « Doming v. Miller, 83 Barb. 386; « Earl V. Baxter, 2 Black, 1228. Hill v. Draper, 10 Barb. 454. 3 Tboruton v. Edwards, 1 liar. & ' Wood v. Turner, 8 Humph. 687; McH. 158. S. C, 7 Humph. 517; Crustsinger v. * Jackson v. Mancius, 2 Wend. 357. Catlin, 10 Humph. 24. Ricard v. Williams, 7 Wheat. 59. Oral Partition^. 1993 attaches to all who may succeed to the possession, through or under the tenant either immediately or remotely. And a pur- chaser who enters under an absolute conveyance in fee from the tenant, is considered as entering as the tenant of the lessor; although he may not have known that his grantor held or derived his possession from the lessor,' AltJiOugh a tenant cannot deny his landlord's title, yet he may show that it has terminated, either by its own limitation or by conveyance, or by operation of law ; after which he may disavow and disclaim the tenancy claim under another title hostile to that of his landlord, and make his posses- sion adverse.' A tenant cannot set up an adverse claim which may operate to bar his lessor's title by adverse possession under the statute of limitations, until he shall have expressly disaffirmed such title of his lessor, and given him full notice that he claims to hold ads'ersely thereto.' Without such notice the law will presume the tenant holds in accordance with the demise under which he entered.* The -owner in fee of land cannot be disseized by his tenant, but at his, the owner's election.* In orJer to have a tenancy grow into one by suCPerance, it must originally have been created by agreement of the parties, for where one was in, like a guardian, by act of the law, and held after his ward arrived at iige, he was a tort feasor, intruder, abator, or trespasser and not a tenant at sufi'ei-ance.^ A tenant at sufferance is not admitted to question the title of his lessor in an action to recover possession of the land.' Where a tenant, holding by deed to him as a ten- ant in common, ousts his co-tenant who l)rings ejectment for such ' Jacksou V. Davis, 5 Cow. 123. Eklred. IS Mich. 12; Braudou v. Ban- 2 Neliis V. Lathrop, 22 Wcud. 121. nou, 38 Pa. St. 68, Green v. JVIunson, ^ North V. Baruura, 10 Vt. 220; 9 Vt. 37; Hudson v. Wheeler, 84 Tex. Willison V. Watkins, 8 Pet. 43; Mc- 356; Assoc, v. Whitmore, 75 Me. 117; Giuuis V. Porter, 20 Pu. St. 80 ; Lee Tyler v. Davis, 61 Tex. 674; Houston V. iletherton, 9 Yeig. 315 ; Zeller v. Ferris, 71 Ala. 570; Whiting v. V. Eckert, 4 How. 289; Sher.nian Edmunds, 94 N. Y. 809 ; Vaucleave v. v Trans. Co., 81 Vt. 1(32; Ass'n v.' Wilson, 73 Ala. 387; Flanigan v. Willard, 48 Cal. 614; Galloway v. Pearson. 61 Tex. 302. Ogle, 2 Bin. 472; Graham v. Moore, ^ Bedford v. M"Eiherron, 2 S. & R. 4 S. & R. 467; Jackson v. Whitford, 49 ; Jackson v. Wheeler, 6 Johns. 2 Cai. 215; Eister v. Paul, 54 Pa. St. 272. 190; Jackson v. 3Iiller, 6 Cow. 751; ^ Stearns v. Godfrey, 16 Me. 158. Legatt V. Stewart, 2 St. 474; .Jackson * Co. Lift. 57 D. 2d Inst. 134. V. Hinman, 10 Johns. 292; Patterson ' '' Jacksou v. McLeod, 12 Johns V. Hansel, 4 Bush, 654; Ryerson v. 182 ; Strong v. Waddell, 56 Ala. 471, 1294 The Law of Estoppel. ouster, the tenant cannot set up in defense an adverse title in a stranger.* A Jjonajide purchaser holds adversely to all the world, and may disclaim the title under which he entered, setting up even against his vendor, any title whatever." § 1155. A person who acquires his possession in such a man- ner as to owe allegiance to the reversioners, cannot set up an out- standing title purchased by him to defeat their rights. A posses- sion acquired in subserviency to the title of the reversioners, can- not be defended as against them, by asserting a new title subse- quently acquired. The general principle is that one in possession may purchase an outstanding title for the purpose of strengthening bis own. The only qualification of this rule is, that his possession must not have been taken under circumstances which preclude him from disputing the title of the party claiming ; and the quali- fication of the rule has its foundation in the law of estoppel, which will not allow a man to do what, in honesty and good conscience, he ought not to do. §1156. When a tenaut in possession of a life estate in lands, purchases, of one of several cestui que trusts of the reversion, his undivided interests thereto, and suffers the land to be sold for a nmnicipal assessment, and becomes the purchaser, he cannot liold the land for his exclusive benefit. lie is bound to protect the interest of those who stand in the same relation of himself to the property, and cannot take a title, to their prejudice, but the title he receives inures to the common benefit. He cannot bring in a claim against the common propertj', and set it up adverse to the title of the common cestui que trusts.^ § 1157. One who takes a contract for the purchase of land is estopped from denying the vendor's title, and he cannot set up an adverse possession against the owner of such title ; at least, until the vendee has fully performed the contract on his part, and become entitled to a legal conveyance. Where one is put in possession of land by another, the former is not at liberty to con- trovert the title of the latter until he has restored the possession ' Braintree v. Buttles, G Vt. 395. ■• Burhans v. Van Zauclt, 7 N. Y. « Croxall V. Sberered, 5 Wallace, 523. 268. Adverse Possession. 1295 so received, and placed the other party in as good condition as he ^vas before he parted with the possession.' § 1158. An offer to purchase huid by a party, of another, is such a recognition of the title of the hitter as will bar the defense of adverse possession. Accordingly, where the defendant took a lease of a parcel of land from the plaintiff, negotiated with hiui for the purchase of the adjoining strip of laud, though he may show that the strip is included in the demise, he cannot set up adverse possession.^ And generally, one who, while in possession of land, recognizes the title of another, and offers to purchase from him, cannot set up his own possession as adverse, although he will be permitted to show title out of such person, if the acknowledgment of title in him was the fruit of mistake or impo- sition ; but he may not even do this if he entered the land under him.' Repeated application of the defendant to the lessor of the plaintiff, to purchase the premises in question, affords a presump- tion that he came into possession under such lessor.* § 1159. A party in possession of lands may be permitted to protect himself against litigation by buying in claims made by others, without invalidating his legal rights, or subjecting him- self to any allegiance to others. As between vendor and vendee before conveyance, and between landlord and tenant, the posses- sion must first be surrendered before the title can be questioned, or an adverse possession set up. There is no estoppel except where the occupant is under an obligation, express or implied, to restore the possession at some time or in some event. A party in the possession of lands acknowledging the title of another, is not estopped from subsequently disclaiming holding under such title, if the original entry was not under the person in whom the title is acknowledged ; nor is any other person deriving the pos- session from such tenant, estopped by such acknowledgment." A jDarty in possession of lands recognizing the title of a claimant ' Burhans v. Van Zandt, 7 N. Y. = Jackson v. Britton, 4 Wend. 507. 523; Flanagan v. Pearson. 61 Tex. » Jack.son v. Cuerden, 2 Johns. 302; Assoc. V. Whitmore, 75 Me. 11; Cases, 353; Strong v. Waddell, 56 Whiting V. Edmunds, 94 N. Y. 309; Ala. 471; Vancleave v. Wilson, 73 Tylei- V. Davis, 01 Tex. 674; Houston Ala. 387. V. Ferris, 71 Ala. 570 ; Bishop v. ■* Jackson v. Croy, 13 Johns. 427. Lalouette, 67 Ala. 197. » Jackson v. Leek, 12 Wend. 105. 1296 The Law of Estoppel. and agreeing to purchase, may subsequently deny such title, set up title in himself, and show that his acknowledgment was pro- duced by imposition, or made under a misapprehension of his rights ; but a party entering into possession, under an agreement to purchase, cannot dispute the title of him under whom he enters, until after a surrender of the possession. So long as the ordinary relation of vendor and vendee exists, the possession of vendee cannot be adverse to his vendor.' § 1160. When the heir apparent conveys land by deed, with covenants of warranty, and afterward inherits the property, he will be estopped from setting up an adverse possession against his grantee : but a purchaser at the sheriff's sale, under a judg- ment against the heir, under such circumstances, may claim an adverse possession against the grantee of such heir. This is upon the ground that an estoppel does not bind strangers. The heir, M'hen he conveyed, although he had no title, by his conveyance recognized a title in his grantee and warranted the same to him ; but the purchaser at the sheriff's sale is a stranger in respect to the matter that is alleged as an estoppel in the deed. He is not a party to it, and his title is in no way derived from it. He relies upon no act of the grantor, performed subsequent to the execu- tion of the deed, to give validity to his title, and has in no way recognized the title of the judgment debtor's grantee. He is not, therefore, estopped from claiming an adverse possession against the grantee of the judgment debtor.^ But a judgment debtor remaining in possession of land sold under the execution against him will not be allowed to set up an adverse possession against the purchaser at the sheriff's sale. And the possession of one holding under a judgment debtor by a conversance subsequent to the lien of the judgment, cannot be set up as adverse to the pur- chaser of the premises at sheriff's sale under such judgment.'' And one who enters undei- a title from a party subsequent to a judgment against him, though ihe title comes to the party claiming in ejectment, cannot set up another title, but is estop- ped from denying the title of the judgment debtor from whom betook a conveyance and entered into possession.* ' Jackson V. Spear, 7 "Wend. 401. ^Jackson v. Hinman, 10 Johns. 2 Jackson v. Bradford, 4 AYcnd. 617. 292 ; Buibans v. Van Zandt, 7 N. Y. ' Jackson v. Collins, 3 Cow. 89. 523. Adverse Possession. 1297 § 1161. "When two or more persons have a joint claim to property, the community of their interests creates a mutual obligation that neither shall do anything to the prejudice of the other. An expenditure by one upon the subject of their com- mon interest inures to the benefit of all ; and, on the other hand, all are bound to contribute toward that expenditure. JS^either, will be permitted, without the consent of the others, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion. " This,'' saj's Chancellor Kent, '' would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against'the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties created. Community of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incum- brance, or an adverse title, to disseise and expel his co-tenant.'" And the same eminent jurist says in another case : "■ It is a gen- eral principle that, if a mortgagee, executor, trustee, tenant for life, etc., who has a limited interest, gets an advantage by being in possession or ' behind the back' of the party interested in the subject, he shall not retain the same for his own benefit, but hold it in trust. "^ § 1162. The mutual estoppel between mortgagor and mort- gagee, by which the mortgagor is estopped from setting up an outstanding title, whether originally adverse or arising from his own prior grant or mortgage against the mortgagee, and each compelled to hold in subordination to the rights of the other, is founded upon the same principle as that which exists between vendor and vendee, and grows out of the injustice of using a possession acquired for one purpose, for one of a difi^erent nature, to the prejudice of the party from whom it was received.' ' Van Horn v. Fonda, 5 Johns. Ch. Reed v. Sheeply, 6 Vt. 602; Wires v. 388; Rui>p v. Orr, 31 Pa. St. 517; Nelson, 26 Vt. 13 ; Barber v. Harris, 15 Ferrers v. Forrers, 29 Gratt. 134. Wend. 615; Osborne v. Tunis, 25 N. J. ■^ Ilolridge v. Gillespie, 3 Johns. L. 633; Doe v. Clifton, 4 A. &E. 809; Ch. 30; Baker v. Whiting, 3 Sumner, Doe v. Vickers, 4 A. & E. 783; Clark 475. V. McClure, 10 Gratt. 305; Green v. 3 Addu-son v. Crow, 5 Dana, 271; Munson, 9 Vt. 37; Moss v. Gallimore, Vol. I.— 83 1298 The Law of Estoppel. § llfiS. To authorize the ])resumption of a grant, the enjoy- ment of the easement must not only be uninterrupted for the period of twenty years, but it must be adverse, not by leave or favor, but under a chiini or assertion of riglit, and it must be with knowledge uiid acquiesoenee of the owner.' The exclusive use of flowing water for twenty years is a conclusive presumption of right." In Vermont, title acquired b}' fifteen years' adverse pos- session, is as perfect for all purposes as though derived by deed, and no parol transfer, surrender or declaration of the person so acquiring, can have any effect upon it. He can convey it only by a deed executed according to the requirements of the statute.' j^ 1164, In cases of estoppel in pais, the rule of law merely attaches itself to the circumstances ; when proved it is not deduced from them, it is not a rule of inference from testimony, but a rule of protection as expedient, and for the general good. It does not assume that all landlords have good titles, but it will be a public and general inconvenience to suffer tenants to dispute them. Neither does it assume that all averments and recitals in deeds and records are true, but that it will lead to great mischief if parties are permitted to deny them. It does not assume, that every man, quietly occupying land for twenty years as his own, has a valid title by grant ; but it deems it expedient that claims, opposed by such evidence as the lapse of those periods affords, should not be countenanced ; and that society is more benefited by a refusal to entertain such claims, than by suffering them to be made good by proof. In fine, it does not assume the impos- sibility of things which are possible ; on tJie contrary, it is founded, not only on the possibility of their existence, but on their occa- sional occurrence, and it is against the mischief of their occurrence that it interposes its protecting prohibition.* 1 Dougl. 279; Birch v. Wright, 1 T. Ga. 518; Strong v. Waddcll, 5G Ala. R. 378; Partridge v. Bere, 5 B. & A. 471. 604; Pope v. Briggs, 9 B. & C. 251; > Flora v. Carbean, 38 N. Y. Ill; Hitchmiin v. Walton, 4 M. & W. 409; Parker v. Foot, 19 Wend. 311. Doe V. Barton, 11 A. & E. 307; Ken- ^ stillmau v. White Rock Co., 3 W. shaw V. Taylor, 7 Greg. 315; Boone v. & M. 538; Taylor v. Wilkinson, 4 Armstrong, 87 Ind. 168; Thompson IMasou, 397. V. Justice, 88 N. C. 269; Goodwin V. ^Hodges v. Eddy, 41 Vt. 485; Keney, 49 Conn. 282: Jones v. Reese, Austin v. Bailey, 37 Vt. 219; Tracy v. 65 Ala. 134; Campbell v. Tuunell, 67 Atherton, 36 Vt. 303. * Greenleaf on Evidence. COEPOKATIONS. 1299 CHAPTER XIX. ESTOPPEL AS APPLIED TO CORPORATIONS. Section 1165. A corporation, in the language of Chief Justice Marshall, is " an artificial being, invisible, intangible, and exist- ing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or incidental to its very existence. These are such as are supposed best calculated to effect that object for which it was created. Among the most im])ortant of these are imniortaliti/^ and, if the expression may be allowed, mdividuallty } A corporation being an artificial body, an imaginary person of the law, so to speak, is, from its nature, incapable of doing any act except through agents, to whom is given by its fundamental law, or in pursuance of it, every power of action it is capable of possessing or exercising. Hence the rule has been established, and may now also be stated as an indis- putable principle, thar a corporation is responsible for the acts or nesli^ence of its agents while enj2;ao;ed in the business of the agency, to the same extent and under the same circumstances that a natural person is chargeable with the acts or negligence of his agent, if the agents employed conduct themselves fraudu- lently, so that if they liad been acting for private employ- ers, the persons for whom they were acting would have been affected by their fraud ; the same principles must prevail where the principal under whom the agent acts is a corporation.^ Thus where notice of the revocation of a contract with a corporation is prepared and served upon the other party by an attorney of the company, with the knowledge and consent of its manager, the * Dartmouth College v. TVoodward, borougli v. Bank, 16 East, 6 ; Smith. 4 Wlieat. 636. v. Birmingham, &c. Co., 1 A. & E. « Thayer V. Barlow, 19 Pick. 511; 526; N. Y. &c. Co. v. Dryburg, 35 Bank v. Johnson, 24 Me. 490; Chestnut, Pa. St. 298. &c. Co. V. Rutter, 4 S. & R. 6; Yar- 1300 The Law of Estoppel. company and its manager will be bound by the act of the attor- ney, and ni)t be allowed to dispute the attorney's authority.' So where the president and treasurer of a company, but claiming to act as individuals, bought and owned a certificate of a first mort- gage sale of real estate, including lands to which the company had acquired the mortgagor's title ; and they executed to the company a release of its said lands from that sale. Afterwards, C, trustee of certain creditors of the mortgagor, held a second mortgage, including plaintiflE's said land, and prior to plaintiff's title, applied to said oliicers to purchase said certificate of sale, to protect the interests of his cestui. They claiming still to own the certificate, refused to sell it to him, but concealed from him the fact that they had released the lands therefrom to phiintifl:; and they allowed the trustee to pay to the sheriff a large sum of money to redeem from the first mortgage sale the lands of the company covered by his mortgage, and was ignorant of the release before mentioned. The moneys thus paid to the sheriff were by him paid over to the assignee of the certificate of sale, holding by special assignment excepting the released premises. The president and treasurer, in the transactions with the trustee, were under a duty, as officers of the company, to disclose the facts which would have prevented the trustee from paying the money to the sheriff for a fruitless redemption ; and their fraud- ulent conccuhnent estopped the company from claiming the bene- fit of such release.^ To bind the principal, the acts must be within the scope of the authority confided to the agent, and must accompany the act or contract which he is authorized to do or make.^ •Parmly V.Buckley, 103 111. 115. Ins. Co., 18 Barb. 69; Davfudorf v. « Miinf'g Co. V. Camp, 49 Wis. 130. B-tudsley, 23 Barb, 6o6; lus. Co. v. 3 Fairfield T. Co. v. TLorp, 13 Carpenter, 4 Wis. 20; Bank v. Sco- Conn. 173; Stewart v. Bank, 11 S. & field, 30 Vt. 590; Kneeland v. Gilman, R. i67; Haywood v. Society. 21 Pick. 24 Wis. 439; Barker v. R. R. Co., 27 270; Sterling v. Marietta Co., 11 S. & Vt, 760; R. R. Co. v. Reisner, 18 Kas,. R. 179; Bank V. Klingsmiili, 7 Watts, 458; K R. Co. v. Quigley, 21 How. 523; Bank v. Tyler. 3 Walls .Sc S. 377; 20y; Green v. Omnibus Co., 7 C. B. (N. Bank v. Davis, 6 Watts Ai S. 28.J, S,)i;90; Ins. Cij. v. lus. Co., 7 Wend. Bank v. McKee, 2 Pa. St 321, Hack 31; Leggeti v.N. J. &c. Co., 1 N. J. E. ney v. lus. Co., 4 Pa. St. 185; Spauld- 553; Clark v. Wa.sbington, 12 Wheat, iugv. Bank, 9 Pa. St. 28; Crump v. 64; Essex v. Collins, 8 Mass. 299; Cov- Mining Co., 7 Gratt. 352; Cliurcii v. ingtonv. BridgeCo., 10 Bush, 69; Ins. COKPORATIONS. 1301 § 1166. As natural persons are liable for the wrongful acts and neglects of their servants and agents, done in the course and within the scope of their employment, so are corporations, upon the same grounds, in the same manner, and to the same extent.' If the directors of a corporation, in the course of its business which it is their duty to transact, induce a man, by false or fraudulent misrepresentations, to enter into a contract for tlie benefit of the company, it is bound, and can no more repudiate the fraudulent conduct of its agents than an individual can.^ To fix the liability, it must either appear that the officers were expressly authorized to do the act, or that it was done hma fide in pursuance of a general authority, in relation to the subject of it, or that the act was adopted or ratified by the corporation/ Co. V. Pierce, 75 111. 426; Union, &c. Co.v. Bank, 3 Col.T. 248; Spellman v. Fisliev, &c. Co., 56 Barb. 151; Lamm V. Association, 49 Md. 233; Mc- Ready v. Guardians, 9 S. & R. 94; Maude v. Canal Co., 4 M. & G. 452; Moore V. R. R. Co., 4 Gray, 465; Ry. Co.v. Broom, 6 Exchq. 314; R. R. Co. V. Derby, 14 How. 468; EUing v. Bank, 11 Wheat. 59; Exchange Co. V. Drew, 2 Me. H. L. C. 103; Bar- ring V. Pierce, 5 W. & S. 548; Tar- bell V. R. R. Co., 24 Hun, 51; Orleans V. Piatt, 99 U. S. 676. ' Savings Inst. v. Bank, 80 N. Y. 162; S. C, 30 Am. R. 505; Albert v. Bank, 1 Md. Ch. 407; Bank v. Bank, 1 Pars. Sel. Cas. 180; R. R. Co. v. Schuyler, 34 K Y. 30; Thatcher v. Bank, 5 Sandf. 121; Bank v. R. R., 4 Duer, 480; Bruflf v. Mali, 36 N. Y. 200; Thompson v. Bell, 10 Exchq. 10; 26 Eng. L. & Eq. 530; Bargate v. Shortridge, 5 H. L. Cas. 297; 31 Eng. L. «& Eq. 44; Davenport v. Davenport, 43 Iowa, 301; Chew v. Bank, 14 Md. 299; Exchange Co. v. Drew, H. L. 1855; 32 Eng. L. & Eq. 1; Stevens v. R. R., 1 Gray, 277; Blackstock v. R. R. Co., 1 Bosw. 77; Ricord v. R. R. Co., 15 Neb. 167; Clark v. Bank, 3 Duer, 241; Medbury v. R. R. Co., 26 Barb. 564; Bank v. Comen, 37 N. Y. 320; Pickering v. Busk, 15 East, 42; Bankv. Aymar, 3 Hill, 262; Bank v. Bank, 10 Wall. 649 ; R. R. Co. v. Quigley, 21 How. 607; Gofif v. R. R. Co., 3 Ell. & E. 672; Porter v. R. R. Co., 34 Barb. 353; Davis v. Bank, 2 Bing. 293. 2 Burnes v. Pennell, 2 H. L. C. 479; Ranger v. Great, &c. Co., 5 H. L. C. 86; Exchange Co. v. Drew, 2 Macq. 125; Meux v. Case, 2 D. M. & G. 522; Nlcoll's Case, 5 D. & J. 387; R. R. Co, V. Conybeare, 9 H. L. 737; Henderson v. R. R. Co., 17 Tex. 560; Bank v. Peck, 29 Conn. 384; Crump v. Mining Co., 7 Gratt. 352; R. R. Co. v. Gam- mon, 5 Sneed, 567; Hester v. Mem- phis, &c. Co., 32 Miss. 378; Revers v. Plank R. Co., 30 Ala. 92; N. O. &c. Co. V. Williams, 16 La. Ann. 315; Mayor v. Norman, 4 Md. 352; Bank v. Bank, 10 Gray, 532. 3 Thayer v. Boston, 19 Pick. 516; Mitchell V. Rockland, 41 Me. 363; Da- vis V. Bangor, 42 Me. 522; Roe v. R. R. Co., 7 Exch. 36; R. R. Co. v. Broom, 6 Exch. 314; Coal Co. v. Me- gargel, 4 Pa. St. 324; Vanderbilt v. Richmond T. Co., 2 N. Y. 479; Wat- eon V. Bennett, 12 Barb. 196; Thomp- son v. Bank, 5 Bosw. 293; Edwards 1302 The Law of Estoppel. "Where a person is held out by a corporation as one of its officers, as an officer or agent, or if he is pennitted to act as such without objection for any length of time, or iiis services have been accepted by the corporation, it is inimaterial wiiether he has received a specific appointment from the board of directors or not, the company is bound by his acts, where others have relied thereon in their dealings with the corporation.' § 1167. If its agents in the line of their employment are guilty of falsehood and fraud, their principal is liable for the con- quences which may flow therefrom. If they commit a fraud in the course of their employment, and while acting in the business of their principal, the parties injured by their misconduct or fraud can resort for redress to the persons who clothed them with the power to act in their behalf, and who have received the benefits resulting from their agency. It is civilly responsible for damages occasioned by an act, as a trespass or a tort, done at its command by its agent, in relation to a matter within the scope of the purposes for which it was incorporated." V. Ry. Co., L. R. oC. P. 445; Goff v. Ry. Co., 3 Ell. & E. G72; Giles v. Ry. Co., 2 Ell. & B. 822; IMoore v. Ry. Co., L. R. 8 Q. B. 36; Brewery Co. V. Ry. Co., L. R. 9 Q. B. 468; Walker v. Ry. Co.. L. R. 5 C. P. 640; Bayley v. Ry. Co., L. R. 7 C. P. 415; Bolingbroke v. Board, L. R. 9 C. P. 575; R. R. Co. v. Wetmore, 19 Ohio St. 110. ' Walker v. Railway Co., 47 Mich. 338; Burton v. Burley, 9 Biss. 253. ^ Duncan v. Canal Co., 3 Starkie, 50; Smith v. Gas Co., 1 A. & E. 526: Rex V. Medley, 6 C. & P. 292; Mannd V. Canal Co., 1 Car. & M. 606; Regina V. R. R. Co., 2 Gale & D. 236; Ry. Co. V. Broom, 6 Exchq. 314 ; Hawkins V. Steamboat Co., 2 Wend. 452; Beach V. Bank, 7 Cow. 485; New York v. Bailey, 2 Denio, 433; Hay v. Colioes Co., 3 Barb. 42; Watson v. Bennett, 13 Barb. 196 ; Kneass v. Bank, 4 Wash. C. C. 106; Lyman v. Bridge Co., 2 Aik. 255; Rabassa v. Nav. Co., 3 La. An. 461 ; Goodloe v. Cincinnati, 4 Ohio, 513; Smith v. Cincinnati, 4 Ohio, 414; ]McCroady v. Guardians, 9 S. & R. 94 ; McKim v. Odom, 3 Bland. Ch. 421 ; Humes v, Knoxville, 1 Humph. 403; Edwards v. Bank, 1 Fla. 136; Bank v. Bank, 1 Par.sons Sel. Cas. 251; Whiteman v. R. R. Co., 3 Harr. 514; TcnEyckv. Canal Co., 3 Harr. 200; Underwood v. Lyceum, 5 B. Jloa. 130 ; Hamilton Co. v. Cincinnati T. Co., Wright (O.)603; Akron v. Mc- Comb, 18 Ohio, 229; Riddle v. Proprietors, 7 Mass. 187; Thayer v. Boston, 19 Pick. 516; Carman v. R. R. Co., 4 Ohio St. 399: Moore v. R. R. Co., 4 Gray, 465 ; McDougald v. Bellamy, 18 Ga. 411: Green v. Omni- bus Co., 7 C. B. (N. S.) 290 ; Ramsden V. R. R., 104 Mass. 117; Goddurd v. R. R., 57 Me. 202: R. R. v. Dunn, 19 Ohio St. 162 ; Tcbbutt v. Ry. Co., L. R. 6 Q. B. 73 ; R. R. Co. v. Chappell, 61 Ala. 527; Williams v. Ins. Co., 57 IVIiss. 579; R. R. Co. v. Bank, 60 Corporations. 1803 § 1168. Estoppels technically so called, and estoppels iVi pais operate for and against corporations. A corporation is bound by an estoppel and has no more right to rescind a contract once legally made, than an individual has. The same presumptions which, by general rules of evidence, are con- tinually made in respect to private persons aud public officers, that all things are rightly done, are applicable to corporations.' Thus, a corporation, duly executed to plaintiff a real estate mortgage, for valuable consideration, which, through mutual mistake of parties, misdescribed the premises intended and agreed to be mortgaged. Plaintiff caused the mortgage to be duly recorded. One of the directors, who participated in the giving of the mortgage and in the mistake, afterwards obtained a judgment against the corporation, and duly docketed the same, so as to make it a lien upon the premises, before the discovery of the error. In an action by plaintiff against the corporation and such director to correct the error and to foreclose his mort- gage as a prior lien to the judgment, the director is estopped from contesting the relief sought.'' § 1169. A corporation, quite as much as an individual, is held to a careful adherence to truth in their dealings with mankind, and cannot, by their representations or silence, involve others in onerous engagements, and then defeat the calculations and claims which their own conduct has superinduced.' " If one stand by and encourage another, though but passively, Md. 36; Ins. Co. v. Ins. Co., 7 Wend. v. Schuyler, 34 N. Y. 30;' Laurensou 31 ; Ins. Co. v. Dry Dock Co.. 31 v. State, 7 H. & J. 343; Bank v. Bank, La. An. 149; Goodspeed v. Bank, 22 16 N« Y, 135; Griswold v. Haven, Conn. 541; Bissell v. R. R. Co., 22 N. 25 N. Y. 602 : Bank v. Mouteath, 26 Y. 305; Bank v. Johnson, 24 Me. 490; K Y. 509; Bank v. Cornen, 37 N. Y. R. R. Co. V. Quigly, 21 How. 209; 320; Bank v. Turquand, 6 E. & B. Whitfiekl V. Ry. Co., E. B. & E. 327; Supervisors v. Schenck, 5 Wall. 115; Ranger V. Ry. Co., 5 H. L. C. 784; Gelpcke v. Dubuque, 1 Wall. 203. 72; Swan v. North, &c. Co., 7 H. & ' Jewett v. Alton, 7 N. H. 257; N. 603; Carter v. Machine Co., 51 Society v. Philadelphia, 31 Pa. St. 135; Md. 290; Bank v. Bank, 10 Wall. Swartz v. Fallouts, 14 La. An. 243; 644 ; Fay v. Noble, 12 Cush. 1 ; Rail- Sherman v. Fitch, 98 Mass. 59; Hil- way Co., in re, L. R. 3 Q. B. 594; lard v. Goold, 34 N. H. 230; Grant v. Webb V. Commissioners, L. R. 5 Q. Davenport, 18 Iowa, 178. B. 641; Ward v. Ry. Co., 105 Eng. " Gill v. Russell, 26 Minn. 363. Com. Law 2 E. & E. 823; R. R. Co. s Zubriskie v. Ry., 23 How. 381. 1304 The Law of Estoppel. to lay out money under an erroneous opinion of title, or undei the obvious expectation that no obstacle will afterward be inter- posed in the way of his enjoyment, the court will not permit any subsequent interference with it by him who formerly promoted and encouraj^ed those acts of which he now either complains or seeks to obtain the advantage.' Thus, in a late case where a railroad company claimed an exclusive right to a certain line, the court said, 'after so many years passively encouraging other companies to expend their money and means in the construction of a road, it is too late now for the appellant to claim that it only has a franchise to build it." The case of the Erie R. Co. v. Del. Lack. & West- ern, and Morris & Essex E,. Cos., supra^ is very analogous to this. In that case the chief justice, in delivering the opinion of the court, said : ' The case is this : The complainants claim the exclusive right to a railroad between the cities of Paterson and Hoboken ; they stood by and saw the defendants build, within sight of their own road, a rival parallel road this whole distance, at a cost of many millions of dollars ; they expressed no dissent, and gave no warning ; and, finally, they sold, for a large sum of money, a part of their own land to help the construction of this road, whicli, it is now claimed has no rightful basis whatever. In my estimation these facts are amply sufficient to debar the complainants from ever calling in question the lawfulness of this structure which has been erected, not only thi'ongh the passiveness of the complain- ants, but by their active assistance.' '" § 1170. In a recent case in England a statute declared that unless certain things were done no shares of a joint stock com- pany should be issued excepting for cash, and all which should be issued otherwise should bo subject to assessment. Shares were issued as " paid up," and wore bought by a hona fide pur- chaser. The com])any and its liquidator were held estopped to prove that the statute had not been followed." In that case a very able judge says " that the doctrine of estoppel in pais is a > Canal Co. v. King. 16 Bcav. 630. 169; R R. Co. v. Gas Co., 43 Iowa, » Plitchen v. Ry., 69 Mo. 224; R. R. 301. Co. V. R. R. Cos., 21 N. J. Eq. 283; » R. R. Co. v. R. R. Co., 36 Ark. R. R. Co. V. Piudden, 20 N. J. Eq. 663. 530; Goodia V. CanulCo. , 18 Ohio St. ■• Burkinsbaw v. NicoUs, 3 App. Cas. 1004. CORPOEATIONS. 1305 most equitable doctrine, and one without which the law of the country could not be satisfactorily administered. '• When a person makes to another the representation, ' I take upon myself to say such and such things do exist, and you may act upon the basis that they do exist,' and the other man does really act upon that basis, it seems to me it is of the very essence of justice that, between those two parties, their rights should be regulated, not by the real state of the facts, but by that conven- tional state of facts which the two parties agree to make the basis of their action ; and that is, I apprehend, what is meant by estop- pel injycbis or homologation." This doctrine has been applied by the supreme court of the United States in a large class of cases where the facts are much more open to public observation than are the votes of a private corporation, in wdiich counties and towns having power to issue bonds upon certain terms and conditions are held estopped to prove, as against honafide purchasers, either irregularity or fraud on the part of their own officers in issuing the bonds, especially if they contain upon their face a certificate that the terms of the law have been complied with. These decisions do not depend upon the negotiable character of the bonds excepting when there is a question of notice.' So, if a cashier has authority to certify a check, the bank is estopped to say that his certificate is false in fact.* If a company has issued a certificate of shares, it is estopped to prove against one who has bought the shares in good faith, or even one who has paid one call or assessment to a third person on the strength of the certificate, that it was issued improvi- dently.' The application of these principles will be illustrated by reference to many cases in this chapter. § 1171. Persons acting publicly, as officers of corporations, are to be presumed to be rightfully in office. Though the charter or ' Com'rs V. Aspinwall, 21 How. 539; 312; Warren v. Marcy, 97 U. S. 96; Moran v. Com., 2 Black, 722; Rogers See Post, Municipal Bonds. V. Burlington, 3 Wall, 654; Grand » Bank v. Bank, 10 Wall. 604. Chute V. Wincgar, 15 Wall. 355; ^ Bahia, etc. Co., in re, L. R 3 Q. Com'rs V. January, 94 U. S. 202; B. 584; Hart v. Frontino, L. R. 5 San Antonio v. MehafEy, 96 U. S. Exch. Ill; Whiting v. Wellington, 10 Fed. Rep. 818. 1306 The Law of Estoppel. act of incorporation prescribe the mode in wliich the officers of a corporation sliall be elected, and an election contrary to it would unquestionably be voidable. Yet if the officer has come in under color of riglit, and not in open contempt of all right whatever, he is an officer de facto, — within his sj)liere, an agent of the corpora- tion, — and his acts and contracts will be binding upon it.' Where an action has been commenced by the officers de facto of a cor- poration, no other persons claiming a right to act as the officers of the corporation, the defendant cannot be permitted to show, for the purpose of defeating the action, tha/t the officers were illegally elected." Acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are pre- sumptive proofs of the latter. Grants and proceedings benetlcial to the corporation, are presumed to be accepted, and slight acts on their part which can be reasonably accounted for only upon the supposition of such acceptance of, are admitted as presump- tions of the fact. If officers of a corporation openly e.xercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have con- templated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority presumed.* § 1172. Whenever a corporation neglect or dispense with any > King V. Lisle, And. 163; Church Paul Div. v. Brown, 11 Minn. 3")G; V. Mathews, 4 De.s. 578; Society v. Logan v. McAllister, 2 Del. Ch. 176; Eills, 6 Cow. 23; Church v. Lovett, 1 McLaughlin v. R. R. Co., 8 Mich. 100; Hall. 101; Lovett V. Church, 12 Barb. State v. Sibley, 25 Minn. 387; Rey- 67; Riddle V. County, 7 S. & R. 892; nolds v. Myers, 51 Yt. 444; Darren- County V. Small, 9 Watts & S. 320; bach v. R. R. Co.. 21 Hun, 612; Olcott Kingsbury V. Ledyard, 2 Watts & S. v. R. R., 27 N. Y. 564; Glidden v. 41; McGargell v. Coal Co., 4 Watts & Unity, 33 N. H. 571; Bank v. Dan- S. 425; Despatch Line v. Bellamy, 12 dridge, 12 Wheat, 64; Commonwealth N. H. 205; Smith v. Erb, 4 Gill, 437; v. Turnpike Co., 3 Pick. 327; Crump Burr V. McDonald, 3 Gratt. 215. v. U. S. &c. Co., 7 Gratt. 352; Com- « Association v. Baldwin, 1 Met. monwealth v. Cleghorn, 13 Pa. St. 359; Green v. Cady, 9 Wend. 414; 113; Cahill v. Kalamazoo, &c. Co.. 2 Academy v. Liudsey, 6 Ired. 476; Doug. (Mich.) 124; Glass Co. v. Glass Atlantic, &c. Co. v. Johnson, 70 K Co., Ill Mass. 315; Merriman v. Mc- C. 348; Thompson v. Candor, 60 111. Givenny, 12 Heisk. 494; Ins. Co. v. 244; Shewaltcr v. Purner, 55 Mo. 218; Allis, 24 Minn. 75; R. R. Co. v. R. R. People V. Hills, 1 Lans. 202. Co., 59 N. H. 385. Tariotl V. Rvors 40 Cal. 614; St. Corporations. 1307 precautions which are essential to their security, yet if there is sufficient evidence of a common consent, of a joint and corporate act, they are liable ; especially where individuals who have trusted to the good faith of the corporation, would be injured and deprived of their remedy, if any other construction of the doings of the corporation could be adopted.' Thus, where the charter of a corporation provided, that on an intended transfer of shares, notice should be given to the company, and then the director's would be bound either to purchase the shares, or grant their con- sent to the intended transfer, and that no one should become a shareholder without this consent in the form of a certificate, signed by three directors. The directors from the first, i. 6., for ten years, never gave this certificate of consent to any transfer ; but the managing director on the spot merely gave a verbal con- sent to the vendor's broker, and about nine-tenths of the original shares had been transferred in this informal way. S. having transferred his shares to T. in the same mode, and.T.'s name hav- ing been entered as the proprietor, and T. treated as such by tlie company, the board of directors afterwards canceled the entry of T.'s name in their share register book, on the ground that the consent of the directors was not given according to the deed. S. then filed a bill in equity, praying a declaration that he had ceased to be a shareholder, and praying an injunction against an action of scire facias, sued out against liim by a creditor of the com- pany'. Held, that S. had ceased to be a shareholder, and was entitled to the injunction, for that the company could not take advantage of the informality of the transfer, their course of deal- ing having been universal and for their own benefit.^ Nor can it ' Hayden v. Middlesex, 10' Mass. Barb. 358; Fishmonger's Co. v. Rob- 401; Church v. Potter, 6 Barb. 576; ertsou, 5 M. &G. 131; Mott v. Trust Keuterv. Telegraf , &c. Co., 6 Ell. & Co., 19 Barb. 568; Bank v. North, 4 B. 341; Bargate v. Shortridge, 5 H. Johns. Ch. 370; Moss v. Rossic, &c. L. Cas. 294; Hotel Co. v. Newman, Co., 5 Hill, 137; Potter v. Bank, 5 30 Mo. 118; Zabriskie v. R. R. Co., Hill, 490; Suydam v. Canal Co., 23 How. 381; Amy v. Allegheny, Hill, 217; Australian, &c. Co. v. Mar- 24 How. 364; Com'n, &c. Co., v. zelti, 32 E. L. & Eq. 57'3. Cleveland, 41 Barb. 9; Ins. Co. v. ■' Bargate v. Shortridge, 31 Eng. Smith, 11 Pa. St. 120; Conoverv. Ins. Law & Eq. 44; Higgs v. North. »&c. Co., 1 N. Y. 290; Choteau, &c. Co. v. Co., 4 Exchq. 87; Bremton's Case, Harris, 20 Mo. 382; Wood v. R. R.Co., L. R. 19 Eq. 302. 8 N. Y. 100; Beers v. Glass Co., 14 1308 The LA^Y of Estoppel. set up liens or equities against the transferror. A corporation cannot set u]) in defense that a certilicate of its organization, filed in compliance ^vith a statute, is false, nor can it avail itself of its omission to publish tlie certificate of its organization, or of its adoption of the name of another corporation, although l^oth acts are in violation of a statute, if it has held itself out as a corj)ora- tion.' Nor can it set up its failure to comply with a statute requiring it before commencing business to file a certain certi- ficate.^ So, where corporators, without having organized, created or issued any stock, or paid any capital, pretend to be incorporated and hold themselves out to the ])ublic as a corporation, they are estopped as to those who deal with them on the faith of their representations, to deny the existence of the corporation,^ § 1173. When an association of persons, having assumed a name which implies a corporate body, exercise the power of a corporation, they are estopped from denying their corporate liability." So u bank organized under a general banking law, is estopped to deny the regularity of its organization.^ Or if organized under a charter containing a disadvantageous provision are estopped from denying its validity.^ So, a corporation which has entered into contracts in its corporate capacity, is estopped when sued thereon to deny its corporate existence.' A corpora- tion is estopped from averring that officers who have acted as such were not elected at a meeting duly held.* A corpoi'ation is bound by a contract which was originally unautliorizcd if it has been executed by the other party and they have received the con- sideration for their promise, and are estopped from repudiating their obligation, but the other party may enforce it.° The presi- ' Doolt'V V. Glass Co., 15 Gray, 494. Bauk v. ^Yilhll•(], 23 N. Y. 574; Buf- ■■' JNIeirick v. Engine Co., 101 Mass. falo, etc. Co. v. Cary, 20 N. Y. 75; 381. Dooley v. Glass Co.," 15 Gray, 494; » Slate V. Simonton, 78 N. C. 57. Merrick v. Engine Co., 101 Mass. 385; * Dobson V. Simonton, 89 N. C. Telegraph Co. v. Eyser, 2 Col. T. 141; 492; Express Co. v. Bedbury, 34 III. Webb v. Comm'rs, L. R. 5 Q. B. 642; 459 ; AVhite v. State. 79 lud. 273; Grape Co. v. Small, 40 JId. 395. Parrott v. Byers, 40 Cal. 614. ^^ Sampson v. jMill Co., 36 Me. 78; s Evving V. Kobeson, 15 lud. 26. Partridge v. Badger, 25 Barb. 146; * Dolge V. Horicou Co., 22 Wis. State v. Keoktik, 9 Iowa, 438. 417; Plank R. Co. V. Reynolds, 3 Wis. » Bisscll v. R. R., 22 N. Y^ 258; 287. DeGraff v. Thread Co., 24 Barb. 375; ' Callender v. R. R., 11 Ohio, 316; Blackburn v. R. R. Co., 525. Corporations. 1309 dent of a private corporation liaving as sucli executed a promissory note in payment for property purchased for the corporation, and being afterwards prosecuted and sought to be charged as a stock- holder for the debt, he is estopped from denying the power of the corporation to make the purchase.' So, if a corporation in one action rely upon a certain instrument as their deed, they are estopped in another from denying its validity,* nor can a corpora- tion receiving the benefit of a loan avoid its liability upon a mort- gage given to secure its payment by denying the authority of those who contracted in its behalf.' The fact that the lender knew that the company intended the money for an unauthorized use, makes no difference, so long as the purpose itself is not an immoral or illegal one." A grant of a franchise, or any beneficial interest by the legislature to a corporation or a private person constitutes a contract between the government and the grantee ■which cannot be repealed nor essentially impaired by a subsequent legislature,* unless the- right to do so is reserved in the charter or act creating it, without the consent of the corporation. § 1174:. The principle that when a contract is void, essentially from want of power or ability, it can be rendered valid by the aid of the doctrine of estoppel, is applied in full force when a body corporate transcends the limitations imposed by its charter, and the defect cannot be cured by the acts or representations of its officers or agents, or even by an express recital that an author- ity exists which is in fact wanting.'^ Redress must be sought in a suit to recover back the consideration, or an action on the case against the persons guilty of the fraud ; although it has been lield that an estoppel may grov.', even under these circumstances, out of ' Moss V. Averill, 10 K Y. 449; Society v. Paddock, SO III. 263 ; Darst Ammerman v. Wiles, 24 X. J. E. 18; v. Gale, 83 111. 13G. Brown V. Tony, 42 K Y. Suiter. 1. * Bradley v. Ballard, 55 111. 413; = R. R. V. Howard, 13 Howard, 308; West v. Board, 82 111. 205; Humphries Scaggs V. B. B. & W., 10 Md. 268. v. Association. 3 R. R. Co. V. Murray, 15 111. 336; ^ Biidge Co. v Bridge Co., 7 Pick. Mining Co. v. Bank, 2 Col. T. 248; 344; Dartmouth Colledge Cases, 4 Thomas v. R'y Co., 104 111. 4(52; Wheat 636. Bradley v. Ballard, 55 111. 413; « Hood v. R. R., 21 Conn. 523; S.C, Comm'rs v. R. R. Co., 50 Ind. 35; 23 Conn. 621; Treadwell -v. Commis- Jones V. Guaranty Co., 101 U. S. 628; sioners, 11 Ohio S. 183; Popple v. Brown, 13 Ohio S. 311. 1310 The Law of Estoppel. a long cotinned acquiescence in, or enjoyment of the fruits of the contract.' But where tlie authority exists, and tlie doubt is whctlier it was regularly put forth, or the conditions precedent to its exercise fulfilled, every intendment will be made, ut res magis valeat, and third persons will not be required to look beyond the face of the proceedings, or the recitals in the instrument under which they claim" an objection . founded solely on the want of authority of the officers or agents by whom the act was done, or agreement made, may be removed by the subsequent ratification or acquiescence of the corporation.' Ratification of acts of a com- mittee, by a corporation, will cure any defects in original appoint- ment.* A corporation cannot affirm an act of its agent in part, and disaffirm as to the residue.* The Supreme Court of the United States has uniformly held, when the question has been presented, that where a corporation has lawful power to issue negotiable securities and does so, the bonafde holder has a right to presume the power was properly exercised, and is not bound to look beyond the question of its existence. Where the bonds on their face recite the circumstances which bring them within the power, the corporation is estopped to deny the truth of the recital. § 1175. If a corporation ratify the unauthorized act of its agent, the ratification is equal to a previous authority, as in' case of natural persons ; no maxim being better settled in reason and law, than " omnis ratlliahitio retrotrahitur, et tnandato 2>^'if>ri mpiiparatur i'''' where it does not prejudice the rights of stran- gers.' Where officers of a corporation purchased property and ' State V. Van Home, 7 Ohio S. " R. R. Co. v. Schuyler, 34 N. Y. 397; Goshen v. Shoemaker, VZ Ohio 30; Conloy v. R. R. Co., 45 Tex. 579. S. 624; Mining Co. v. Bank, 2 Col. T. « Fleckner v. Bank, 8 Wheat, 363; 248. Turnpike Co. v. Collins, 8 Mass. 399; • * Parish V. Wheeler, 22 N. Y. 479; Haydenv. Turnpike Co., 10 Mass. 403; Moram v. Commissioners, 2 Black, Bank v. Bank, 17 Mass. 28; White v. 722. Maiif'g Co., 1 Pick. 220; Wood v. 3 Buckley v. Fishing Co., 2 Conn. McCain, 7 Ala. 806; Taylor v. Robin- 252; Peck v. Ins. Co., 22 Conn. 557; son, 14Cal.396; Baker v. Colter, 45 Me. Bargate v. Shortridge, 31 E. L. & E. 236; Bank v. Loan, &c. Co., 16 Wis. 44; Memphis v. Gas Co., 9 Heisk. 629 ; Bank v. Patterson, 7 Crauch, 531. 297; GoJdind v. Ry. Co., 17 Beav. « Church V. Church, 2 Abb. Pr. N. 132; Argenti v. San Francisco, 16 8. 254; S. C, 32 How. Pr. 335. Cal. 255; Cook v. Tullis, 18 WaU. Corporations. 1311 gave notes tlierefor in the corporate name, and subseqneutly the company cLiimed the property and converted it to their own use, and allowed judgment by default to be rendered against it on one of the notes ; if the notes were given without authority, these acts W'ere a ratification and rendered the company liable on the other notes.' So a corporation not having at the time the requisite authority to make a particular contract, may upon obtaining such authority, ratify, by taking advantage of, or acting upon a con- tract, made by an officer or agent, even though at the time it was illegal and void.'' The same rule of agency applies to corpora- tions and individuals ; thus, where municipal bonds are signed by officers before the expiration of their term of office and are sub- sequently delivered by their successors, the corporations in an action on such bonds are estopped from setting up the defense of invalidity thereto on the ground, that they were executed by par- ties without authority, their terms of office having expired. The delivery of such bonds is an adoption of the signature as genuine and estops the town from impeaching it.' 332; McCracken v. San Francisco, 16 Cal. 591; Buckley v. Fishing Co., 3 Conn. 252; Bridge Co. v. Bank, 3 K Y. 156; Everett v. U. S., 6 Port. 166; Bank v. Curtis, 24 Me. 38; Whitwell V. Warner, 20 Vt. 425; Witte v. Fish- ing Co., 2 Conn. 260; Hoyt v. Thomp- son, 19 N. Y. 207; Bank v. Bank, 1 Ga. 428; Hoyt v. Mining Co., 6 N. J. E. 253; Baker v. Cotter, 45 Me. 236; Peterson v. Mayor, 17 N. Y. 449; Church V. Sterling, 16 Conn. 388; Bank v. Reed, 1 W. & S. 101; Hay- ward V. Society, 21 Pick. 270; Des- patch Line v. Manf'g Co., 12 N. H. 205 ; Bank v. Sharp, 12 Miss. 75; Burrrll v. Bank, 2 Met. 176; Fox v. Liberties, 3 W. & S. 103; Bank v. Bank, 1 Parr. Sel. Cas. 207; Stuart v. Railway Co., 15 Beav. 513; Maclae v. Sutherland, 3 Ell. & B. 1 ; Reuter v. Telegraf Co. 5 Ell. & B. 341 ; Durar V. Ins. Co., 4 N. J. 171 ; Emmett v. Reed, 8 N. Y. 312; Bank v. Bank, 16 Wis. 120; Kelsey v. Bank. 69 Pa. St. 426; Oliver v. Ins. Co., 3 Curtis, 277 Routh V. Thompson, 13 East, 274 Haausom v. OUverson, 2 M. & S. 485 Ins. Co. V. Massey, 33 Pa. St. 221 Telegraf Co. v. R. R., 86 III. 246 Choteau v. Allen, 70 Mo. 290; Darst V. Gale, 83 111. 136. ' Moss V. Mining Co , 5 Hill, 137; Brown v. Winnissimet Co., 11 Allen, 326; Moss v. Aveiill, 10 N. Y. 449; Olcott v. R. R. Co., 27 N. Y. 546; Shaver v. Bear, &c. Co., 10 Cul. 396; McLaughlin v. Detroit, 8 Mich. 100; Corning v. Southland, 3 Hill, 553; Couroy v. Iron Co., 12 Barb. 27; Clark V. Van Remisdyk, 9 Cranch, 158; Church v. Sterling, 16 Conn. 338; Chicago, &c. Co. v. Crowell, 65 111. 453; Institution v. Slack, 6 Cush. 408. ^ Gooding v. Railway Co., 17 Beav. 132; Edwards v. R'y Co., 1 M. & C. 650; Preston v. R'y Co., 7 E. L. & E. 124. 3 Weyauwega v. Ayling, 99 U. S. 112; Bearaan v. Duck, 11 M. & W. 1312 The Law of Estoppel. § 1176. A corporation is bouud bj a deed under its seal duly aflBxed, unless illegality or fraud can be established ; and the defense, resting ou the ^Utra vires doctrine, exists only when the corporation is prohibited by law from entering into the contract upon which the action is brought. " Corporations," said Barou Parke, in an often-quoted passage, " which are creatures of law, are, when their seals are properly affixed, bound just as individuals are by their own contracts, and as much as all the members of a partnership would be by a contract in which all concurred. But where a corporation is created by legislative enactment, forjpar- ticxdar purposes, with special powers, then, indeed, another ques- tion arises ; their deed, though under their corporate seal and that regularly affixed, does not bind them, if it appear by the express provisions of the statute creating the corporation, or by reason- able inferences from its enactments, that the deed \x^s ultra vires ^ that is, that the legislature meant that such a deed should not be made. The question," continued the learned judge, " appears to me to be simply this: — Whether it can reasonably be made out from the statute that the covenant is ultra vir'es, or, in other words, forbidden to be entered into by either the plaintiffs or defendants.'" § 1177. The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation. But Mdintever under the char- ter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is 251 ; Levy v. Bauk, 4 Dall. 234; Bank Cooper v. Meyer, 10 B. & C. 468; V. Bank, 10 Wheat. 332; Woodrufl' v. Young v. Grole, 4 Biug. 253; Ingham Mnnroe. 33 .Md. 140; Bank v. Keene, v. Primiose, J C B. (^^ 8.) 82; Bank 53 Mc. 104; Leach v. Buehanan, 4 v. Stowtll, 123 Ma.ss. lOG; Baxendale Esp. 226 ; Greentield v. Cialls, 4 v. Bennett, L. K. 3 Q. B. D. 525. Allen, 417; Bank v. Middlehiuok, 33 ' Bank v. Tuiquand, 5 E. & B. 248 ; Conn. 95; Howard v. Duncan. 3 Lans. affirmed in en or, 9 E. & B. 327; R. 174. Brook v. Hook, L. R. 1 W L. R. Co v. R R. Co., 6 H. L. Cas. 113; 200, Wilkinson v. Stoney, 1 J. & S. Ager v. Assuruuce Society, 3 C. B. 509, Robarts v. Tucker, 16 Q. B. 577, (N. S.) 725; Assurance Co. v. Hard- Arnold V. Bank, L. R. 1 C. P. D. ing, 18 E. L. & E. 181; Batenian v. 578; JVIeacher v. Fort, 3 HUl (S. C.) The Mayor, 3 H. «& N. 572; Simpson 227; Hartsman v. HeusLaw, 11 How. v. Holel Co., G Tr. (N. S.)^5. 177; Price v. Neal, 3 Burr. 1354, COEPOPRATIOI^S. 1333 created, is not to be taken as proliibited/ A corporation lias no implied power to clumge the auionut of its capital as prescribed in its charter, and all attempts to do so are void.^ But, where the action of a corporation is lawful, the motives therefor, or the expediency thereof, is not a subject of judicial inquiry/ So, where the charter originally limited the aniount of the capital stock, but, on certain conditions prescribed by the legislature, authority was given to increase it, and j^arties claiming the right to do so, complied with the required conditions, and issued addi- tional stock, as between purchasers or holders and the corporation or its creditors, the former were estopped from denying the valid- ity of their proceedings, or the validity of the stock so issued. If, through fraud or misrepresentation, parties purchase such stock, they ma}' repudiate their contract of purchase, and be relieved of liability, provided they act promptly and are without laches. But when repeated assessments have been paid by them, or they have in person or by proxy taken part in the meetings of stockholders, continuing to hold such stock a year or more, and until the insolvency of the conjpany, it will be too late to obtain relief upon allegations of fraud or misrepresentation.^ § 117S. A corporate act is xdtra vires when it is not within the scope of the powers of the corporation to perform it, under any circumstances, or for any purpose, or with reference to the rights of certain parties, when the corporation is not authorized to perform it without their consent, or with reference to some specific purpose, when it is not authorized to perform it for that ])urpose, although fully within the scope of the general powers of the corporation, with the consent of the parties interested, or for some other purpose. When a contract is not necessarily beyond the scope of the power of the corporation by whicli it was made, it will, in the absence of proof to the contrary, be presumed to be valid. Corporations are presumed to act within their powers. ' Thomas v. R. R., 101 U. S. 71; AUcrton, 18 Wall. 233; Stace's Case, Att'y Geii'l v. Ry., 5 App. Cas. 473 ; L. R. 4 Cli. App. 682. Davis V. R. R., 131 Mass. 258 , R. R. ^ Ogiesby v. Attiill, 105 U. S. 605; Co. V. Steamboat Co., 107 U. S. 98. Bailey v. R. R, 12 Beav. 433. '■' Scovill V. Thayer, 105 U. S. 148; ■• L'pton v. Jackson, 1 Flip. C. Ct. Bank v. R. R., 13 N. Y. 599; R. R. 413; Ross v. R. R. Co., 77 111. 127 V. Schuyler, 34 N. Y. 30; R. R. v. Vol. L— 83 J314 The Law of Estoppel. The doctrine of iiltra vires, when invoked for or against a corpo- ration, ehonld not be allowed to prevail where it would defeat ;he ends of justice, or work a legal wrong, if such results can be avoided.' AVhile courts are inclined to maintain with vigor the limitations of corporate actions, wherever it is a question of restraining the corporation in advance from passing beyond the boundaries of their cjuirters, they are equally inclined, on the other hand, to enforce agaii>st them contracts, though ultra vires, of which they have received the benefit. This is demanded by the plainest principles of justice." § 1179. Where a contract has in good faith been fully per- formed, and nothing remains to be done by the other party or the party seeking relief, or all the shareholdei's have acquiesced in its performance, the plea of ultra vires, or mere want of power, is not available by the corporation in an action brought against it for not performing its portion of the contract.' The objection to ' Water Co. v. Murphy's Co., 32 Cal. 620; R. H. Co. v. R. R. Co., 29 N. J. E. 542; Arms Co. v. Barlow, 63 N. Y. 62; R. R. Co. v. McCarthy, 96 U. S. 258; Saa Antonio v. Mehaliy, 90 U. S. 312; McPhersou v. Foster, 43 Iowa, 48; Whilney v. Wyman, 101 U. S. 392 ; Bank v. Graham. 100 U. S. 699; Wright v. Pipe Line Co., 101 Pa. St. 204; S. C, 47 Am. R. 701; Norwich V. R. R. Co., 4 E. & B. 397; Atkin v. Blanchard, 32 Barb. 527; Bank v. Turquand, 6 E. & B. 327; Ttiylor v. Ry. Co., L. R. 2 E.xchq. 336; Russell V. R. R. Co., 22 N.Y. 238 ; Zdlcrbach V. Ditch Co., 37 Cal. 543; Parisli v. Wheeler, 22 N. Y. 494; Eaton v. Aspinwall, 19 N. Y. 119; State v. Van Ilorne, 7 Ohio St. 327; Tash v. Adams, 10 Cush. 252; Tliompson v. Lambert, 44 Iowa, 239; Gould v. Venice, 29 Barb. 442; Bradley v. Bal- lard, 55 111. 413; Mauf'g Co. v. Can ney, 54 N. H. 295; ]\IcBroora v. Lebanon, 31 Ind. 268; Hitchcock v. Galveston, 96 U. S. 351; R. R. Co. v. Pratt, 22 Wall. 123; Machine Co. v. Ry. Co., 20 Mo. 672; Bissell v. R. 11. Co., 22 K Y. 258; Hill Co. v. R. R. Co., 104 Mass. 123. •■'2 Kent's Comm. (11th ed.) 381; Parish v. Wheeler, 22 N. Y. 494; White V. Bank, 22 Pick. 181; R. R. Co. V. Trausp. Co., 83 Pa. St. 160; Ajms Co. V. Barlow, 63 N. Y. 62; Groff V. Thread Co., 21 K Y. 124; Firth V. La Rue, 15 Barb. 322; Gould V. Oneonta, 3 Hun, 401; Hazolhurst V. R. R. Co., 43 Ga. 13; Ins. Co. v. Lanier, 5 Fla. 110. * Graham v. Ry. Co., 3 M. & G. 146; Lime Co. V. Green, L. R. 7 C. P. 43, R. R. Co. V. R. R. Co., 21 N. J. E. 283; Rich v. Iron Co., L. R. 9 E.xchq. 244; R. R. Co. v. Transp. Co., 83 Pa. St. 160; Board v. Ry. Co., 47 Ind. 407; Kent v. Mining Co., 78 N. Y. 159; Newburg v. Weare, 27 Uliio St. 343; Darst v. Gale, 83 111. 136; Cozart V. R. R., 54 Ga. 379; Beadley V. Bullard, 55 111. 417; Bank v. iSorth, 4 Johns. Ch. 37; Stoneware Co. v. Partridge, 8 Mo. App. 217; Poock v. Building Ass., 71 Ind. 357; Mining Co COEPORATIONS. 1316 snch a defense in an action upon an executed contract is given by Tjndall, Cli. J.' in this language : " Upon the general ground of reason and justice, no such power can be set up. The defendants, having had the benefit of the performance by the corporation of the several stipulations into which they entered, have received V. Bank, 96 U. S. 64: Steamboat Co. V. McCutcheon, 13 Pa. St. 13; Bank V. Bank, 31 N. Y. 490; Bank v. Mathews, 98 U. S. 621; Maher v. Chi- cago, 33 111. 366; Bissell v. R. R., 23 N. Y. 63; Hotel Co. v. Wade, 97 U. S. 13; Humphries v. Association, 50 Iowa, 607; Navigation Co. v. Weed, 17 Barb. 378; Moss v. Mining Co., 5 Hill, 137; Burtis v. Ry. Co.. 24 N. Y. 269; Fertal v. R. R. Co., 109 Mass. 898; Grant v. Coal Co., 80 Pa. St. 303; Gifford V. R. R. Co., 10 N. J. E. 177; Root V. R. R. Co., 45 N. Y. 524; Bullett V. R. R. Co., 40 N. Y. 108; McCluer v. R. R., 13 Gray, 124; R. R. Co. V. Cowdrey, 11 Wall. 459; Ins. Co. V. Ilauck, 71 Mo. 465; McLaugh- lin V. Association, 63 Ind. 264; Mosher V. Rogers, 3 111. App. 577; Massey v. Building Ass., 33 Kas. 634; Hall v. Supply Co., 48 Mich. 331; French v. Ddnolme, 29 Minn. Ill; Association V. Ins. Co., 70 Ala. 120; Baker v. JSTeff, 73 Ind. 68; Whitney v. Robin- son, 53 Wis. 309; Canal Co. v. Pink- ham, 1 Idaho (N. S.j 790; Bank v. Mc- Donald, 130 Mass. 264; Helena v. Turner, 36 Ark. 577; Society v. Pad- dock, 80 111. 2G3; Jones v. Guaranty Co., 101 U. S. 628; Conirnissioners v. R. R., 50 Ind. 85; Plank Road Co. v. ]\Iurray, 15 111. 336; Thomas v. Rail- way Co., 104 111. 463; R. R. Co. v. Trust Co., 49 111. 33; Zabriskie v. R. R., 23 How. 381; Lefevre v. Lefevre, 4 S. & R. 341; Cal lender v. R. R, 11 Ohio St. 516; Reynolds v. Myers, 51 Yt. 440 ; Manf g Co. v. Stuart, 46 Mich. 482; Relfe v. Ins. Co., 10 Mo. App. 150; R. R. Co. v. Robards, 60 Tex. 545; S. C, 48 Am. R. 368; Sav- ings lust. V. Board, &c., 75 Mo. 408; Kelly V. Transp. Co., 3 Oreg. 189; Weber v. Society, 44 Iowa, 239 ; Showalterv. Piuer, 59 Mo. 233; Smith V. Sheeley, 12 Wall. 358; Daniels v. Tearney, 102 U. S. 431; Millard v. Academj^ 8 111. App. 341; Chambers V. St. Louis, 39 Mo. 543; Robbins v. Embry, 1 S. & M. Ch. 268; Hudson V. Swan, 83 N. Y. 553; Milnor v. R. R. Co., 53 N. Y. 363; Wade v. Society, 15 Miss. 663; Land v. Coff- man, 50 Mo. 343; Maghee v. R. R. Co., 45 K Y. 514; Dimpfell v. R. R., 9 Biss. 137; Whitney v. Wyman, 101 LT. S. 392; Wright v. Pipe Line Co., 101 Pa. St. 304; S. C, 47 Am. R. 701; Taylor v. Chichesta, L. R. 3 Exchq. 356; R. R. Co. v. Proctor, 29 Vt. 93; Ry. Co. V. Hawks, 33 L. J. Ch. 77; 5 il. L. C. 331; Colliery Co. v. Wad- dle, L. R. 3 C. P. 463; Webb v. Comm'rs, L. R. 5 Q. B. 643; Canal Co.. iu re, L. R. 34 Ch. D. 85; Fouu- taine v. Ry. Co., L. R. 5 Eq. 316; Ry. Co., in re, L. R. 3 Q. B. 583; Burkiushaw v. Nicolls, L. R. 3 App. Cas. 1004; Duland v. Ry. Co., L. R. 2 App. Cas. 793; R. R. Co. v. Thompson, 103 III. 187; Auerbach v. Mill Co., 38 Minn. 391; S. C, 41 Am. R. 285; AVard v. Johnson, 95 111. 315; Chipen. dall, in re, De G. M. & G. 19; Fergu- son V. Landrau, 5 Bush, 230; Glass Co. V. Dewey, 16 Mass. 103; U. S. v, Hodson, 10 Wall. 395; West v. Board, 83 111. 306. ' Fishmongers' Co. v. Robertson, 5 McG. 131. 1316 The Law of Estoppel. the consideration for their own promises ; such promise by them is, therefore, not nudum pactuin,' they never can want to sue the corporation upon the contract in order to enforce tlie perform- ance of their sti])nhitions, whicli have l)ecn ah-eady voluntarily performed, and, therefore, no sound reason can be suggested why tiiey sliould justify their refusal to perform the stipulations made on the grt)und of inability of the corporation, which suit they can never want to sustain." The doctrine of icltra vires has no application in favor of cor- porations for wrongs comniitted by them.' Thus, a corporation, which, b}- its proper officers, executed a mortgage of its property out of the State, by virtue of a resolution passed at a meeting of directors held out of the State where it was created, Avas estopped in a suit on a bond, secured by the mortgage, to set up these facts.* So, a trustee of a junior mortgage will not be heard to contest a senior mortgage, u])on the ground that the compau}' had not the power to make it, where both mortgages were made in the exer- cise of the same asserted power, so that if one is void, the other is also.' An acce])tance by a corporation of the benefits of a con- tract, with knowledge of the fact that such contract, but for such acceptance, would not be binding u])on it, constitutes an adoption of the contract, and renders the corporation liable upon it." A de facto corporation, as against those who deal with it, cannot avoid its contracts upon the ground that it has no corporate power* or existence. So, a corporation having the power to bor- row money, executes a mortgage on its property it cannot, after receiving a loan on the security of its mortgage, avoid its liability by questioning its power to mortgage, or show a defective exe- cution of the power conferred upon it.° § 1180. In a late case the English rule was thus stated : " The question arose on the claim of transferees of debentures or 1 Bauk V. Graham, 100 U. S. 609. Jones v. Guaranty Co.. 101 U. S. G'28; 2 R. 1{. V. Cowdicy, 11 Wall. 459. Biadlcy v. Ballard, o") 111. 413; Com- '" McAllister v. Plant, 54 ^Miss. 106. missiouers v. R. R, 50 lud. 85; Darst ■> Humphrey V. Associaiion, 50 Iowa, v. Gale, 83 111. 136; Society v. Pad- 007. dock, 80 111. 263; Plunk Road Co. v. MJobson V. Simonton, 86 N. C. Murray. 15 111. 336; R. R. Co. v. Dow, 492. 19 F. R. 388. 6 Thomas V. Ry. Co., 104 111. 462; Corporations. 1317 corporate bonds, to recover on tlieni, against the claim of the company that they were not valid in the luuids of the contractor to v.'liom they were originally issued and by whom they were transferred.' Mr. Justice Kay stated the rule to be as follows : " That where a company has power to issue securities, an irregularity in the issue cannot be set up against even the original holder, if he has a right to presume omnia rite acta.^ If such security be legally transferable, such an irregularity — and, a fortiori, any equity against the original holder — cannot be asserted b}'' the company against a honajide transferee for value.^ Nor can such an equity be set up against an equitable transferee, whether the security was transferable at law or not, if, by the original conduct of the company in issuing the security, or by their subsequent dealings with the transferee, he has a superior equity.* In the case at bar, where the claimants were equitable transferees only of securities, which, the company having power to issue such represent on the face of them to be legally transferable, and where the company would be able to plead at law against the original holder, or the lirst transferee, that the debentures were invalid, because issued by an insufficient meeting of shareholders, if the original conduct of the company in issuing these debentures was such that the public were justitied in treating it as a represent- ation that they were legally transferable, there would be an equity on ihe part of any person who had agreed for value to take a transfer of their debentures to restrain the company from plead- ing their invaldity although that might be a defense at law to an action by the transferor."'' § 1181. The doctrine has been thus declared by the supreme court of the United States : " A coporation is liable for negligent ' Rumford Canal Co., in re, 49 L.T. * Bank.iu re,16 L.T. Rep.(X. S.) 1G3; (Cai. D.)N. S. 118. L. Rep. 3 Ch. App. 391; Ordnance 2 Fouutainev. Railway Co., L. Rep. Co., in re, 18 L. T. R. (X. S.) 183; L. 5 Eq. 316. R. 3 Ch. App. 154; Dickson v. Rail- 3 Webb V. Commissioners, 23 L. T. way Co., 19 L. T. Rep. (iST. S.) 346; L. (N. S.) 743; L. Rep. 5 Q. B. 642; Her- R. 4 Q. B. 441. cules V. Ins. Co., L. R. 9 Eq. 302; Rich ^ Rumford Canal Co., in re, 49 L. V. Ashbury Co., L. R. 7 H. L. 653; T. N. S. (Ch. D.) 118; Higgs v. Tea Burkinshaw v. Nichols, 3 App. Cas. Co., 31 L. T. R. (N. S.) 336; L. R. 4 1004. Exchq. 387. 1318 The Law of Estoppel. and malicious torts, including libel, assault and battery, malicious prosecution, and false imprisonment. In such cases the plea of ultra vires is unavailing. The corporation is estopped from set- ting up such a defense.' The same result is produced in like manner in many instances where a corporation, having enjoyed the fruits of a contract fairly made, denies, when called to account, the existence of the corporate power to make it." The principle of estoppel thus applied has its foundation in a wise and salutary policy. It is a means of repose. It promotes fair dealing. It cannot be made an instrument of wrong or oppres- sion, and it often gives triumph to right and justice, where noth- ing else known to our jurisprudence can, by its operation, secure those ends. Like the Statute of Limitations, it is a conservator, and without it society could not well go on. " If parties are in pari delicto, the law will help neither, but leaves them as it finds them. But if two persons are in delicto, but one less so than the other, the former may in many cases hiaintain an action for his benefit against the latter.' It is not necessary here to consider the extent and limitations of the rule. They are fully examined in the authority referred to. In the case in hand the obligee must be deemed wholly innocent, because the contrary ia not alleged, and it does not appear. Quod non apparet, non est. De non apparentxhus et non existeniihiis, eadeni est ratio. ' If the contrar't be executed, however, that is, if the wrong be already done, the illegality of the consideration does not confer on the party guilty of the wrong the right to renounce the contract ; for the general rule is, that no man can take advan- tage of his own wrong, and the innocent party, therefore, is alone entitled to such privilege.'* It is well settled as a general pro- position, subject to certain exceptions, not necessary to be here noted, that where a party has availed himself for his benefit of an unconstitutional law, he cannot in a subsequent litigation with others, not in that position, aver its unconstitutionality as a defense, although such unconstitutionality may have been pro- nounced by a competent judicial tribunal in another suit. In ' Bank v. Graham, 100 U. S. 699. » White v. Bank, 22 Pick. 181. » Railway Co. v. McCarthy, 96 U. < Taylor v. Weld, 5 Mass. 108. B. 258 Corporations. 1319 sucli cases the principle of estoppel applies with full force and conclusive effect.' " This court said : ' When a bond is voluntarily entered into and the principal enjoys the benefits it was intended to secure, and a breach occurs, it is then too late to raise the question of its validity. The parties are estopped from availing themselves of such a defense.' '" §1182. The general rule is that "if the contract be valid under any circumstances, an innocent party has a right to pre- sume the existence of such cii'cumstances, and the corporation is estopped to deny them.'-' A corporation that has exceeded its powers in issuing bonds, cannot, after receiving money thereon, defend on that ground. It is estopped from setting up the defense of ultra vires.* The question of tiltra vires can only be taken advantage of by the government under whose laws such corporation was created, and then only in a direct action of for- feiture of its charter. It cannot be raised collaterally by private persons.' In Jones v. Guaranty Co., supra, a corporation exe- cuted its bonds and mortgage to the Guaranty and Indemnity Co., and afterwards became insolvent. The unsecured creditors of the mortgaging corporation attacked the mortgage as being idtra vires. The United States Supreme Court held that this question could not be raised by the creditors of the insolvent cor- poration. It was said by Mr. Justice Swayne : " If the mortgage here in question be tiltra vires, no one can take advantage of the defect of power involved but the State. As to all other parties, it must be held valid, and can be enforced accordingly." • Ferguson v. Landrail, 5 Bush, 463; R. R. v. Thomas, 103 111. 187; . 230; Ferguson v. Landrau, 1 Bush, R'y Co. v. R. R. Co., 59 N. H. 385; 548; Van Hook v.Whitlock, 26 Wend. Jones v. Guaranty Co., 101 U. S. 43; Lee v. Tillotson, 24 Wend. 337; 628. People V. Murray, 5 Hill, 468; Bur- ^ Water Co. v. Fluming Co., 22 Cal. lingtonv. Gilbert, 31 Iowa, 356; R. R. 630; R. R. Co. v. Ellerman, 105 U. S. V. Stewart, 39 Iowa, 267. 173; Bank v. Whitney, 103 U. S. 102; ^ U. S. V. Hodson, 10 Wall. 395; Jones v. Habersham, 107 U. S. 188; Daniels v. Tearney, 102 U. S. 420. Bank v. Mathews, 98 U. S. 621; Bank 3 Bank v. Bank, 10 Wall. 640; Bank v. North, 4 Johns. Ch. 470; Gordoa V. Barge Co., 16 N.Y. 133. v. Preston, 1 Watts, 385; Bank v. * Humphrey v. Association, 50 Fall, 71 Me. 49; Pratt v. Short, 79 N. Iowa, 614; Railway v. McCarthy, 96 Y. 437; S. C, 35 Am. R. 531. U. S. 267; Thomas V. R. R., 104 U. S. 11120 The Laav of Estoppel. § 1183. TVliile it is tlie general principle that negotiable securities, issued by a corporation without authority of law, or in cxpix'ss violation ot" a statute, are inoperative and void, even in the hands of innocent holders, yet there is another rule of law equally well settled — that, al^though a contract entered into by the agents or officers of a private corporation is ultra vires, and therefore not binding on the company so long as it remains executory, yet, if the company in such case knowingly permits the other contracting party, without objection, to go on and per- form the contract on his part, and thereby obtains and appropri- ates to its own use money, property or labor, in furtherance of some legitimate corporate purpose, it will be estopped from deny- ing its liability on such contract, and where restrictions are imposed by a charter of a corporation upon the amount of prop- erty that it may hold, a party conveying to such corporation prop- erty in excess of the amount it may hold, cannot take advantage of such restrictions as a defense, in private litigation between the parties ; it can only be made available in a direct proceeding by the State which created it.' So, a party sued by a national bank for moneys it loaned him, cannot set up as a bar a violation of its charter or statute that it exceeded in amount one-tenth part of its capital stock actually paid in." So, parties accepting pre- ferred stock on which interest was payable, having received interest on such stock for several years, are estopped from ques- tioning the power of the company to issue it.' § 1184. No person, natural or artificial, can enforce a contract that is void, illegal or contrary to the policy of the law. So, a corporation cannot legally exercise any authority or power not expressly conferred upon it. Where a statute is passed creating > Runyoa v. Coster, 14 Pet. 122; Little, 94 Pa. St. 04; Oldham v. Bank, McCarthy v. Eggors, 10 Ben, 688; 85 N. C. 240; Turner v. Bank, 78 Ind. Smith V. Shecly, 12 Wall. 358; 19; Bank v. Kramer, 32 Hun, 270; Bogardus V. Churcli, 4Sand. Ch.633; Simpson v. Bank, 93 N. Y. 270; De Camp v. Dobbins, 29 N. J. E. 36; Wherry v. Hale, 77 Mo. 20; Cleveland Davis V. R. R., 131 ]\Ia5s. 258; Jones v. v. Shoeman, 40 Ohio St. 176. Habersham, 107 U. S. 174; Mat. Bunk =■ Mining Co. v. Bank, 96 U. S. 640; V. Stewart, 107 U. S. G7G; Bank v. Bank v. Fall, 71 Me. 49; Pratt v. Mathews, Xote 5, Supra ».t Cases ; Short, 79 N. Y. 437; S. C, 35 Am. R. Holmes v. Boyd, 90 Ind. 332; Bank v. 531; R. R. Co. v. Dow, 21 F. R. 388. Clears, 8 Biss. C. C. 158 ; Winton v. ^ Branch v. Jessup, 106 U. S. 4G8. Corporations. 1321 new powers, and providing that any existing corporation may accept it, and that, on filing tlieir acceptance, that part of their charter which is inconsistent with the act shall be repealed ; if a corporation assume to act under the statute and exercise its pow- ers, though witliout filing the acquired acceptance, they cannot exonerate themselves from responsibility upon contracts, made in the exercise of such powers, by objecting that they had not filed the evidence required by the statute to evince their decision to accept it. Although a corporation cannot vary from the object of its creation, and persons dealing witli them must take notice of whatever is contained in the law of their organization, never- theless, in cases in which a corporation act within the range of the general authority, they may be bound, though failing to comply with some regulation which should not have been neg- lected, but has been.' So, grantees wlio accept a statutory grant providing for an assessment of the damages of owners affected thereby, admit by such acceptance that such owners sustained damage.'' While a corporation cannot relieve itself from respon- sibility to those to whom it may be indebted, by becoming merged into a new organization, it may, by the act of merger, become so situated as to be estopped from claiming that it remains undissolved.' Persons associating and acting under the name, style and title of Express Companies, are estopped to deny that they are corporations." Where parties hold themselves out as a corporation, hold meetings as such, and in a meeting employ a person to render services for them, they cannot, in his action against the corporation for his compensation, require him to prove their corporate power to act as they have assumed to* Where a corporation imposes new assessments upon members, it is estopped from denying that they are still members.'^ A corpo- ration, whose directors have declared and paid over to all but one stockholder a dividend, will not be allowed to set up, as a defense to an action by a stockholder for his share of the dividend, that ' Zabriskie v. R. R. Co., 23 Howard, * Express v. Bedbuiy, 34 111. 459. 881 ; Lanesborough v. Cvitts, 22 Pick. ^ Stone v. Society, 14 Vt. 86. 320. 6 Hyatt V. Esmond, 37 Barb. 601; * People V. Law, 34 Barb. 494. White v. Ross, 15 Abb. Pr. 66; Hyatt 3 Carey v. R. R., 5 Iowa, 357, v. Whipple, 37 Barb. 601. 1322 The Law of Estoppel. no such dividend lias been earned.' Where a person is registered as a shareholder in a corporation, and on the faith of such regis- tration is induced to pay an assessment, the corporation cannot dispute his title to the stock." § 1185. A lease taken by an individual in trust for a corpora- tion thereafter to be formed, creates, on the formation of such corporation, and upon its receiving an assignment of such lease, with knowledge of the terms upon which it was executed and received from the lessor by the individual lessee, a liability in equity, on the part of such corporation, to pay the rent to the lessor ; and such liability cannot be avoided by a transfer of the lease by the corporation to a third person. Thus, after a lease had been made for the benetit of a partnership association, or such corporation as should be formed to succeed them, the lease being taken in the name of an individual upon an agreement to assign it upon request, the company were organized, took posses- sion of the premises, and leased them for their own purposes. Held^ that they had impliedly agreed to perform all tlie cove- nants of the lease, and to indemnify the nominal lessee against any liability on the same.' Where a corporation, organized pur- suant to law, but before its articles of association are filed, enters into a contract for machinery to enable it to conduct its business, a subsequent ratification of the validity of the contract is binding upon it, although the statute declares it shall not commence busi- ness until the articles are filed, '^ If an assignment of a right to an invention is made to a corporation not yet organized, and let- ters patent are issued to the corporation after its organization, and the corporation accepts the patent, using it, and paying a royalty, as agreed at the time of the assignment, it is estopjsed from afterwards denying its obligation under the assignment and agreement.* > Stoddard v. Shetucket, 34 Conn. 392; Sugar Co. v. Small, 45 Md. 395; 542. Preston v. Ry. Co., 7 E. L. & Eq. ' Hart V. Frontino, 5 L. R. Exchq. 124; R. R. Co. v. Titus, 49 Pa. St. Ill; Babia Co., in re, L. R. 3 Q. B. 277; Low v. R. R., 45 N. H. 370; 684; Webb v. Comm'is, 3 Q. B. 642. Manuf. Co. v. Stuart, 46 Micb. 482; 3 Van Schaick v. R. R. Co., 38 N. Bancroft v. Academy, 5 Del. 577. Y. 346. 5 Bommer v. Spring Co., 44 N. Y * Whitney v. Wyman, 101 U. S. Super. Ct. 454. CORPOEATIONS. 1323 § 1186. Shareholders cannot lie by, sanctioning, or by their silence at least acquiescing in an arrangement which is ultra mres of the company to which they belong, watching the result, if it be favorable and profitable to them to abide by it, and insist on its validity; but if it prove unfavorable and disastrous, then to institute proceedings to set it aside.' It is against good conscience that one having power to prevent, should stand by and see his associates spend money or enter into a contract, which may result to his benefit and afterwards charge them with it. His neglect to act at the proper time efEectually bars his right. Silence or acquiescence by a stockholder in the acts of the company, will be equivalent to assent, and estop him from maintaining an action to set them aside.''. The stockholders of a corporation are estopped by the acts of the officers transacted in good faith, where such acts are within the scope of corporate power.' So, where the dii-ectors of a corporation have transferred its original charter without authority of stockholders, and such stockholders have subsequently participated in the company's business under a new management, or permitted the scheme to be carried out without objection, they are estopped from denying the validity of the transfer.* § 1187. Corporations have the power to waive their rights, and are bound by estoppels in pais like natural persons." They can 1 C4regory v. Patcbett, 33Beav. 603; Blancbard, 31 Ohio St. 650: Ross v. Oil Co. V. Marbury, 91 U. S. 587; lus. R. R. Co., 77 111. 127; Clark v. R. R. Co. V. McCain, 96 U. S. 84; Hotel Co. Co., 4 Neb. 458. V. Wade, 97 U. S. 13; Perkins v. R. ^ Oglesby v. Attrall, 105 U. S. 605; R. Co., 47 Me. 591; Clark v. R. R. Baily v. R. R., 12 Beav. 433; Walker Co., 4 Neb. 458; Watts' Appeal, 78 v. R. R. Co., 34 Miss. 245; Ellison v. Pa. St. 370. R. R. Co., 36 Miss. 572; Durfce v. R. 2 Graham v. R. R. Co., 2 M. & G. R. Co., 5 Allen, 242; Came v. Brigbam, 140; Ffooks V. Railway Co., 17 Jur. 39 Me. 35. 365; Smalcombe's Case, L. R. 3 Eq. * Upton v. Jackson, 1 Flip. C. Ct. 769 ; Terry v. Lock Co. , 47 Conn. 141 ; 413. Chapman v. R. R. Co., 6 Ohio St. 119; ^ Society v. Providence, 6 R. I. 235; Grey V. R. R. Co.,1 Grant Cas. 412; Princeton v. Templeton, 71 111. 68; Tash V. Adams, 10 Gray, 252; Dunn R. R. Co. v. Tipton, 5 Ala. 787; V. Caldwell, 28 Ga. 117; Sanderson v. Athens v. Thomas, 82 111. 259; Fleisch- Nail Co., 34 Ohio St. 442; Lime Co. man v. Stern, 90 N. Y. 110; Hat Co. V. Green, L. R. 7 C. P. 43; Riche v. v. Hat Co., 90 N. Y. 607; Heath v. R'y Co., L. R. 9 Exchq. 224; Watts' Ins. Co., 1 Cusb. 257; Clark v. Ins. Appeal, 78 Pa. St. 370; Empire Co. v. Co., 6 Cush. 343; Concord v. Bank 1324 The Law of E-toppel. claim no exemption from the operation of those rules and maxims which are established to enforce good faith and fair dealing among individuals. Thus, a railroad company which had entered into an agreement with another company, granted its road-bed to the latter on certain conditions ; the grantee took possession and expended large sums of money thereon, which the stockholders and directors did not object to at the time, they were afterwards estopped from denying the validity of the agreement on the ground of irregularity, or that it was ultra vires.^ § 1188. The doctrine of estoppel is applicable to the transfer of certain species of property, or choses in action which, in accordance with general custom and usage are regarded as quasi nesotiable. The owner of certain kinds of things in action not technically negotiable, but which, in the course of business customs, have acquired a semi-negotiable character as a matter of fact, may assign or part with them for a special purpose, and at the same time may clothe the assignee or person to whom they have been delivered with such apparent indicia of title, and instruments of complete ownership over them, and power to dis- pose of them, as to estop himself from setting up against a second assignee to whom the securities have been transferred in o^ood faith and for value, the fact that the title of the first assignee or holder was not absolute and perfect. If the owner of certificates of stock ai^signs them as collateral security, pledges them or puts them into the hands of another for any purpose, and accompanies the delivery by a blank assignment and power of attorney to IG N. H. 29 ; Hale v. Ins. Co., 32 N. Co. v. Small, 40 Md. 395 ; Low v. R. H. 295; People v. Maynard, 15 Mich. R. Co., 45 N. H. 375; R. R. Co. v. 470; Bank v. Bank, 50 N. Y. 5To; Titus, 49 Pa. St. 277; Whitney v. Wilson V. R'y Co., 11 Jur. X. S. 124; Wyman, 101 U. S. 392; R. R. Co. v. Curnen v. Mayor, 79 N. Y. 511; Hill v. R. R. Co., 36 Ark. 693; Pendleton v. R'y Co., 11 Jur. N. S. 192: Ins. Co. Amj-, 13 Wall. 297; Randolph v. Post, V. Eggleston, 96 U. S. 572; Grant v. 93 U. S. 502; Mitchell v. Deeds, 49 Cropsey, 8 Nch. 205; Steckel v. Bank, 111. 416; R. R. Co. v. Trust Co., 49 93 Pa. St. 376; S. C, 39 Am. R. 758; 111. 331; Callender v. R. R., 11 Ohio Burton v. Burley, 9 Biss. 253; Bank v. St. 516; Richmond v. R. R., 33 Iowa, Kohuer, 84 X. Y. 189; Bahia Co., in 422; Gilbert v. Manchester, 55 X. H. re, L. R. 3 Q. B. 584; Hart v. Fron- 298; Xatchez v. Mallery, 54 Miss. 499. tino, L. R. 5 Exchq. Ill; Ashby v. ' R. R. Co. v. R. R. Co.. 28 111. Blackwell, 1 Amb. 503: Simm v. Tel- 437; R. R. Co. v. Transp. Co., 83 Pa. egraph Co., 5 Q. B. D. 188; Sugar St. 260. COEPORATIONS. 1325 transfer the same in the usual form, signed hj himself, and this assignee or pledgee wrongfully sells them to an innocent pur- chaser for value in the regular course of business, such original owner is estopped from asserting, as against this purchaser in good faith, liis own higher title and the want of actual title and authority in his own immediate assignee or pledgee. This doc- * trine is based upon the fact that by the form of the assignment in general use of this species of property the assignee is clothed with such apparent rights of ownership) as are recognized by all dealing in such securities, as sufficient to confer a complete title and power of disposal upon him.' § 1189. Where shares belonging to a person, have been trans- ferred by a forged transfer, the real owner may obtain the restoi'a- tion of his name to the register." And the company which has registered the forged transfer, and which, by giving certificates to the forger, has thus enabled him to hold himself out to the world as the owner of the shares, is estopped from denying its liability to an innocent purchaser for value, who has, in reliance upon such certificate, purchased the shares from the forger.^ It is estopped from denying the representations and recitals in certificates.* Where a corporation issues a certificate of stock to a party, it represents to all persons dealing with such party that he owns a » Woods' Appeal, 92 Pa. St, 379; S. ^ gahia Co., in re, L. R. 3 Q. B. C.,37Am. R. 694;Coombesv. Chaiid- 584; 87 Law J. Q. B. 176; Hart v. ]er, 38 Ohio St. 178; Tucker v. Bank, Froutino, L. R. 5 Exchq. Ill; Tele- 58 N. H. 83; S. C, 43 Am. R. 580; graf Co., in re, L. R. 9 Eq. Ca. G53; Dyer v. Pearson, 3 B. »fc C. 38; Jobu- Telegraf Co. v. Davenport, 97 U. S. son V. Lyonnais Co., L. R. 3 C. P. D. 369; Loving v. Mills, 125 Mass. 138; 32; Banking Co., in re, L. R. 3 Ch. Sim v. Telegraf Co., L. R. 5 Q. App. 154; Grissler v. Powers, 81 N. B. D. 188; Mandelbaum v. MiningCc, Y. 57 ; S. C, 37 Am. R. 475; Renkin 4 Mich. 4C5; Bank v. Field, 126 Mass. V. Hill, 49 Iowa, 270; Bemis v. Bee- 345; Stebbins v. Ins. Co., 8 Paige, ker, 1 Kas. 220; Wekch V. Bank, 94 550. HI. 191; Kirkpatrick v. Brown, 54 ^ Holbrook v. Zinc Co., 57 N. Y. Ga. 450; Mayer v. Erhardt, 88 HI. 616; R. R. Co. v. Schuyler, 34 N. Y. 452; Hendricks v. Kelly, 64 Ala. 388; 30; Davis v. Bank, 2 Bing. 393; Wylie's AppeaK 90 Pa. St. 210; Rabun Townsend v. Underbill, 52 N. Y. 211; V. Rabun, 61 Ga. 647; Greens Ap- Reg. v. Shrop. U. Co., L. R. 8 Q. B. peal, 97 Pa. St. 342; Schenck v. 420; Leitch v. Wells, 48 N. Y. 586; O'Neill, 23 Hun, 209. Bahia, in re, L. R. 3 Q. B. 584; Leavitt ^ Johnson v. Renlon, L. R. 9 Eq. v. Fisher, 4 Duer, 20; Fatman v. Ca. 181. Lobach, 1 Duer, 354. 1326 The Law op Estoppel. certain portion of its capital stock, and has full power to transfer it. Any purchaser has a right to rely upon this statement, and to claim the benefit of an estoppel in his favor. The certificate must be treated with the same effect as though inquiry were made at the ofiice of the corporation itself and precisely the same information given as that recited in the certificate of stock. If a party may safely rely upon the information thus obtained, can it be said, that a different rule is applicable to the written representa- tion of such corporation. The certificate itself is a continuing affirmation of the ownership of such party, and his power over the stock until it is withdrawn in some manner recognized by law.' Where a corporation registers a person as a stockholder, on the faith of which he pays an assessment or call, it cannot dispute his title to the shares," or if through mistake it issues its certifi- cates of stock to a party who has been registered as a share- holder.^ § 1190. Where a bank makes a certificate that a party has funds, it has the means of accurate knowledge, and it is estopped from denying the truth of the statement where parties rely on its statement.* Thus, where the teller or other proper officer of a banking corporation, representing it and doing its business at the counter, certifies the checks of its dealers and depositors drawn upon it, in the usual form, under a general power to certify, such banking corporation is responsible to holders of such checks in good faith and for value, notwithstanding private directions not to certify in the absence of funds without special permission.^ ' R. R. Co. V. Schuyler, 34 N. Y. " Irving Bank v. Weatlierald, 36 K 30; McNiel v. Bank, 46 N. Y. 325; Y. 335; Mead v. Bank, 25 N. Y. 143; Leitcb V. AVells, 48 N. Y. 586; Weaver Pope v. Bank, 59 Barb. 226; Bank v. V. Barden, 49 N. Y. 300; Holbrook v. Bank, 16 N. Y. 25; Bank v. Bank, 50 Zinc Co., 57 N. Y. 610; Kortrigbt v. N. Y. 575. Bank, &c., 22 N. Y. 348. s 3.^^ y Bank, 29 Pa. St. 42; Bank '' Ilart V. Mining Co., 5 L. R. v. Bank, 10 Wall. 604; Lickban-ow v. Exchq. Ill; Railway Co. v. Tritten, Mason, 2 T. R. 03; Rounds v. Smilh, 37 L. J. Q. B. 137; Stratton v. Lyons, 4211i.245;Bickford v. Bank, 42111.238; 53 Vt. 130. Barnett v. Smith, 30 N. H. 250; Meads 3 Simm v. Telegraf Co., L. R. 5 Q. v. Bank, 25 N. Y. 143; Brown v. B. D. 188. Leckie, 43 111. 497; Bank v. Bank, 50 ; Burkinshaw v. Nichols, L. R. 3 N. Y. 575; Griswold v. Haven, 25 N. App. Cas. 1004; Bank v. Bank, L. R. Y^ 596; Builer v. Wakins, 13 Wall. 6 H. L. 353. 456; Bank v. Aymar, 3 Hill., 262; Corporations. 1327 § 1191. The relation of a cashier to the bank is thus dechired by the Supreme Court of the United States in a late case' by Mr. Justice Harlan, delivering the opinion of the court. " We have stated with some fullness the circumstances disclosed by the record, so tliat the general expressions in this opinion may be interpreted by the facts of this case. To permit the bank, under these circumstances, to dispute the binding force of the arrange- ment made by its cashier in reference to Kenney's indebtedness, including the cancellation of the old note and trust deeds, and the acceptance of the new ones, would be a mockery of justice. If is quite true, as contended by counsel for appellants, that a cashier of a bank has no power, by virtue of his office, to bind the corporation, except in the discharge of his ordinary duties, and that the ordinarj' business of a bank does not comprehend a contract made by a cashier — without delegation of power bj^ the board of directors — involving the payment of money not loaned by the bank in the customary wa}'.* Ordinarily, he has no power to discharge a debtor without payment, nor surrender the assets or securities of the bank. And, strictly speaking, he may not, in the absence of authority conferred by the directors, cancel its deeds of trust given as security for money loaned — certainly not, unless the debt secured is paid. As the executive officer of the bank, he transacts its business, under tlie orders and supervision of the board of directors. He is their arm in the management of its financial operations. While these propositions are recognized in the adjudged cases as sound, it is clear that a banking corpora- tion may be represented by its cashier — at least where its charter does not otherwise provide — in transactions outside of his ordi- nary duties, without his authority to do so being in writing, or appearing upon the record of the proceedings of the directors. His authority may be by parol and collected from circumstances. It may be inferred from the general manner in which, for a period sufficiently long to establish a 'settled course of business, he has been allowed, without interference, to conduct the affairs Hern V. Nichols, 1 Salk. 289; Cooke « Bank v. Dunn, 6 Pet. 51; U. S. v. V. Bank, 52 N. Y. 96; Bank v. Bank, Bank, 21 How. 356; Bank v. Bank, 10 28 N. Y. 425; Clews v. Bank, 8 Daly, Wall. 604; Caldwell v. Bank, 64 Barb. 476. 333; Bank v. Kohner, 85 N. Y. 189. 1 Martin v. Webb, 107 U. S. 7. 1328 The Law of Estoppel. of the bank. It may be implied from the conduct or acquiescence of the corporation, as represented by the board of directors. Wlien, during a series of years or in numerous business trans- actions, he lias been permitted, without objection and in his official capacity, to pursue a particular course of conduct, it may be picsumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the cor- poration, that he has acted in conformity with instructions received from those who have tlie right to control its operations. Directors cannot, in justice to those who deal with the bank, shut tlieir eves to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its busi- ness, and to exercise reasonable control and supervision of its officers. They have something more to do than, from time to time, to elect the officers of the bank, and to make declarations of dividends. That which tliey ought, by proper diligence, to have known as to the general course of business in the bank, they may be presumed to have known in any contest between the cor- poration and those who are justified by the circumstances in deal- ing with its officers upon the basis of that course of business." He represents the corporation.' § 1102. The cashier of an incorporated bank is the general executive officer to manage its concerns, in all things not pecu- liarly committed to tlie directors ; he is agent of the corporation, not agent of the directors. In all transactions in wliich a bank may lawfully engage, the cashier is its managing agent, and speaks for tlie corporation. Thus, if, upon inquiry by one lioklen to a baiik as surety upon a note, the cashier, knowing tliat he is surety, informs him that the note is paid, intending tliat he sliould rely upon his statement, and the surety does so, and in consequence changes his position by giving up securities, or indorsing other notes for the same principal, or the like, the bank will be estop- ped to deny that such note is paid.^ So, where a Chicago bank drew a check on the defendant, a New York bank, for ^254.50, to the order of G. This check was sent by mail to G., but was lost. The check was presented to the defendant and by it certi- » Bissell V. Bank, 69 Pa. St. 415. » Bank v. Haskell, 51 X. H. 116; Grant v. Cropsey, 8 Neb. 205. Corporations. 1329 fied. On the day after the Chicago bank wrote to defendant that the check had been lost, and directed it to stop payment, and wrote to the Chicago bank that the check had been certified. Two weeks later a stranger purchased of plaintiff United States bonds and tendered in payment this check raised to $2,540, with the name of the payee altered to that of the plaintiff. This check plaintiff sent to defendant and asked its paying teller if the cer- tification was good, to which he answered, 3'es. He said nothing about the check having been lost, and its payment stopped. Plaintiff thereupon accepted that check in payment for the bonds. Jleld, that the bank was liable to plaintiff for the amount for which he received the check. " A liability on the part of the defendant was created through the neglect of the bank, through its paying teller, to inform plaintiffs, when the check was pre- sented with an inquiry as to the certification, that payment of the check had been stopped, and to communicate the other facts within its knowledge affecting the validity of the check. The ordinary rule as to the liability of a bank upon its certification of a check, and upon declarations of its teller as to such certification, only apply where the bank has no special knowledge of the history of the instrument and of the facts connected with the drawing, delivery, indorsement, validity, &c. Where the bank is in possession of special knowledge, it is under the same obliga- tion as natural persons to disclose it, when omission must result in injury to the person applying to them for any information on the subject with an evident purpose of acting upon infoi-mation so obtained, though questioned only that payment had been stopped, if the paying teller was not informed by the cashier or other officer receiving notice to stop payment, there is an omis- sion of a plain duty on the part of this official. With knowledge of all the facts, the defendant suffered the plaintiffs to consider and deal with the paper as genuine in all respects and is estopped from denying it.' The certification of a check written out would contain a state- ment that the drawer had funds sufiicient to meet it in the bank, applicable to its payment, and an agreement on behalf of the bank that these funds should be retained and paid upon the check whenever it was presented. The cashier has a right by ' Clews V. Bank, 8 Daly, 476. Vol. I.— 84 1330 The Law of Estoppel. virtue of his office, to make this certificate when tlic drawer has funds.' Even if the drawer had no funds, the certificate of the jasliier would hold the bank when the transaction was within the range of its legitimate business, but the acts of the cashier, or other officer of the bank, only binds the stockholders when such acts are within the regular and just sphere of banking transactions." § 1193. A bank is liable for the fraud or mistake of its cashier or clerk, in the entries in its books, and in the false accounts of deposits.' Thus, a depositor in a national bank requested a cer- tificate of deposit, drawing interest, for a portion of his dcj^osit. The teller gave him a certificate purporting to be issued by B. A: Co., a private banking firm, and informed him, in presence of the cashier of the bank, that this was the bank's certificate, ui)on which assurance the depositor accepted it. The members of the firm were the managing officers of the bank, but had a separate place of business in the same town. The bank was liable to the depositor for the amount of his deposit.* So, where the president of a national bank instructed its correspondent bank to charge up against the bank of which he was president the amount of a note given by him, in payment of such note, and an account was rendered showing the transaction, the bank Avas estopped from denying the correctness of the charge in an action by a receiver, subsequently appointed, seeking to set aside the trans- action.* A bank that has received money from a customer and credited to him on its books, may not be heard subsequently to allege that the deposit belonged to some one else.* § 1194. It is sufficient evidence of the ratification by a bank, of the unauthorized acts of its cashier, in assigning an account to other parties and taking their note in payment therefor, if it appears that the whole transaction is regularly and clearly entered on the books of the bank, subject to the inspection of committees of directors appointed to examine such books, whose report that > Cook V. Bank, 02 N. Y. !)6. 1 Parsons Sel. Cas. 248. « Lloyd V. Bank, 15 Pa. St. 172. * Steckel y. Bank, 93 Pa. St. 370; » Bank v. Bank, 17 INIass. 1; Bank S. C, 39 Am. R. 758; Zieglcr v. Bank, V. Bank, 17 Mass. 33; Foster v. Bank, 93 Pa. St. 393. 17 Mass. 479; Manhattan Co. v. ^ Burton v. Burley, 9 Biss. 253. Lydigs, 4 Johns. 377; Bank v. Bank, » Bank v. jMason, 95 Pa. St. 113; S. C, 40 Am. R. 632. CORPOEATIONS. 1331 the books are correct has been adopted by the board ; and that such note is mentioned in the sworn reports made to the state bank comptroller, as a part of the assets of the bank/ A subse- quent ratification by the directors of a bank of the unauthorized act of its cashier, is equivalent to previous express authority ; and such ratification may be made by mere silence and acquies- cence on the part of the board, after they receive knowledge of the transaction. Thus, where the cashier of a bank, without express authority for that purpose, gave a note in the name of the bank for a loan made to it, and the board of directors received and appropriated the money loaned ; or at least, acquiesced in such appropriation, and suffered such note to be several times renewed, and several payments of interest to be made thereon, such acts on their part are a sutficient ratification of the note.* If the proper officers of a bank negotiate an accommodation bill, in which it has no interest, to another bank, representing it to belong to their bank, upon the faith of which representation, and in the usual course of business, the latter discounts it, the former is estopped to say it was indorsed without authority.' § 1195. Corporations can act only through their officers, and are bound by their acts, and whenever such officers have the power to waive matters by an indorsement, under the terms of a policy, they may waive by their acts, and the couipany will be bound ;* a contrary doctrine would be to sanction the perpetra- tion of a fraud by the company upon the insured.* By a clause in the polic}^, agents of the company were permitted to give assent to assignments thereof, but were prohibited from waiving any condition therein, the authority to assent to an assignment ' Bank v. Lathrop, 13 Wis. 466. Ins. Co., 81 Ind. 300; Ins. Co. v. Gar- •^ Bank v. Bank, 16 Wis. 120. gett, 42 Mich. 289; Martin v. Ins. Co., 3 Bank v. Bank, 13 N. Y. 309; Bank 44 N. J. L. 273. V. Bank, 16 Gray, 354; Bank v. Per- ^ Iqs, Co. v. Crame, 16 Md. 295; kins, 29 N. Y. 554; Everett v. U. S., Ins. Co. v. Wilkinson, 13 Wall. 222; 6 Port. 166; Barnes V. Bank, 19 K Y. Franklin v. Ins. Co., 42 Mo. 466; 156; Meads v. Bank, 25 N. Y. 143; Rowley v. Ins. Co., 36 N. Y. 550; Bank V. Bank, 14 N. Y. 643. Coombs v. Ins. Co., 43 Mo. 150; 4 Parker v. Ins. Co., 59 N. Y. 1; Hyatt v. Waite, 37 Barb. 29; Ins. Co. Ins. Co. V. Earle, 33 Mich. 143; Blake v. Gusdorf, 43 Md. 507; Ilorwitz v. v. ins. Co.. 12 Gray, 271; Pitney v. Ins. Co., 40 Mo. 557; Ins. Co. v. Cary, Ins. Co , 61 Barb. 345; Willcuts v. 83 111. 453. 1332 The Law of Estoppel. included authority to waive a forfeiture, because of a transfer of tlic property, or to consent to the transfer ; and that an assent by the agent to an assignment to one to wlioni the property had been transferred was such waivei" or consent.' A verbal contract to insure, based upon a sufficient consideration, and made by a party having an insurable interest in property, with an agent having the requisite authority to bind his principal by such contract, may be legal and binding upon the insurance company.* § 1196. An insurance company, establishing a local agency, ia as responsible to the parties with whom they transact business for the acts and declarations of their agent, within the scope of his employment, as if they proceeded from the principal offices of the company.^ The company is bound by all the acts of its agents within the scope of his apparent authority, unless notice is' given the assured, that with reference ' to matters within the scope of his apparent authority, certain limitations are imposed upon the agent. The question is, not what the powers of the agent in fact were, but what were his apparent powers, that is, what liad the assured a right to believe were given to the agent.'' And such 1 Bcuniiigboff V. Ins. Co., 93 N. Y. 493. 2 Ills. Co. V. Wilcox, 57 111. 4S0; Ins. Co. V. Ins. Co., 19 IIow. 318; Hamilton v. Ins. Co., 5 Pa. St. 339; Davenport v. Ins. Co., 17 Iowa, 376; Brapjdon v. Ins. Co., 42 Me. 259; An- drews V. Ins. Co., 3 Mason, 6; Mc- Cullough V. Ins. Co., 1 Pick. 278; Palm V. Ins. Co., 20 Ohio, 539; Church V. Ins. Co., 19 N. Y. 305; Audobou V. Ins. Co., 27 N.Y. 316. 2 Bank v. Ins. Co., 31 Conn. 517; Vilas V. Ins. Co., 73 N. Y. 590; Plumb V. Ins. Co., 18 N. Y. 392; Sheppard v. Ins. Co., 21 W. Va. 381; Ins. Co. V. Wilkinson, 13 Wall. 222; Ins. Co. V. Baker, 94 U. S. GIO; Baker V. Ins. Co., 64 N. Y. 649; Ilorwitz v. Ins. Co., 40 3Io. 557; xVyres v. Ins. Co., 17 Iowa, 176; Ins. Co. v. Bniner, 23 Pa. St. 50. 4 Mark V. Ins. Co., 24 Hun, 565; Schomer v. Ins. Co., 50 Wis. 575; Fisbback v. Ins. Co., 54 Cai. 422; Frink v. Ins. Co., 80 N. Y. 108; Broadheadv. Ins. Co., 23 Hun, 397; Ins. Co. V. Cooper, 50 Pa. St. 331; Redstrake v. Ins. Co., 44 N. J. L. 294; Ins. Co. V. Davis, 131 Mass. 316; Ins. Co. V. Gillett, 54 Md. 212; Titus v. Ins. Co., 81 N. Y. 410; Ins. Co. v. Wilkinson, 13 Wall. 222; AYheeler v. Ins. Co., 131 Mass. 1; Martin v. [ns. Co., 44 N. J. L. 273; Kichmond v. Ins. Co., 79 xN". Y. 230; Ins. Co. v. Fabrenkrug, 68 111. 463; Ins. Co. v. Association, 43 N. J. L. 652; Grattan V. Ins. Co., 80 K Y. 281; S. C, 36 Am. ii. 617; Ins. Co. v. Gallatin, 48 Wis. 30; Ins. Co. v. Maguire, 51 111. 351; Stockton v. Ins. Co., 33 La. Ann. 577; S. C, 39 Am. R. 247; Bennett v. Ins. Co., 81 N. Y. 273; S. C, 37 Am. R. 501; Badger v. Ins. Co.. 49 Wis. 389; Ins. Co. v. Davison, 30 Md. 104- COEPOKATIONS. 1333 company is estopped bj the statements of any party, whom it holds out to the puhlio as its agent, within the scope of their authority, however much he may have exceeded it in particulars,* even though such person has authorit}^ to procure one particuhir risk/ Thus, under a condition in a policy of insurance, that " if the interest of the assured in the property be any other than the entire, unconditional and sole ownership, it must be so represented to the company and so expressed in the written part of the policy," otherwise the policy to be void, it was held, even if the assured w'as not vested with the " entire, unconditional and sole ownership " of the property, yet if the real character of the title \vas known to the officers of the company, and the company, hav- ing such knowledge, chose to assume the risk, it would be liable, in case of loss, notwithstanding the nature of the title was not expressed in the written part of the policy. The company having, knowledge of the nature of the interest claimed by the assured, and he not being present, it was the duty of the policy clerk act- ing for the company to have expressed the nature of that owner- ship in the policy. Where insurance is procured to be taken by a soliciting broker, who is in fact acting as the agent of the com- pan}', declarations and explanations made by the assured to such agent, concerning the character of the ownership of the property, Ins. Co. V. McCrea, 8 Lea, 513; S. C, 41 Am. R. 247; Guilluud v. Ins. Co., 9 111. App. 581; Castner v. Ins. Co., 46 Mich. 16; Brand rip v. Ins. Co., 27 Minn. 393; Carson v. Ins. Co., 43 N. J. L. 300; S. C, 39 Am. R. 584; Will- iams V. Ins. Co., 54 Cal. 442; Ins. Co. V. Murray, 73 Pa. St. 28; Baile v. Ins. Co., 73 Mo. 371'; Ins. Co. v. Beck, 77 Ind. 203; S. C, 40 Am. R. 295; Ins. Co. V. Kelly, 24 Ohio St. 345; Put- nam V. Ins. Co., 18 Blatchf. 368; Couch V. Ins. Co., 25 Hun, 469; In.s. Co. V. Jacobs, 56 Tex. 366; Walsh v. Ins. Co., 54 Vt. 351; Thompson v. Ins. Co., 104 U. S. 252; Kelly v. Ins. Co., 3 Mo. App. 554; Eagan v. Ins. Co., 10 W. Ya. 583; Ide v. Ins. Co., 2 Biss. 333; Ins. Co. v. Neyland, 9 Bush, 40 Ins. Co. V. Chipp, 93 111. 96; Carr V. Ins. Co. , 2 Mo. App. 466 ; Hornthal v. Ins. Co., 88 N. C.71; Collins v. Ins. Co., 79 N. C. 279; Argall v. Ins. Co., 81 N. C. 355; Palmer v. Ins. Co., 44 Wis. 201; Ins. Co. v. Luttrell, 89 111. 314. ' Perkins v. Ins. Co., 4 Cow. 645; Ins. Co. V. Ins. Co., 20 Barb. 468; Lightbody v. Ins. Co., 23 Wend. 18; Ins. Co. V. Pierce, 75 111. 426; Ins. Co. V. Shettler, 38 111. 170; Ide v. Ins. Co., 2 Biss. 333; Ins. Co. v. Stein, 5 Bush, 652; Hanson v. In.s. Co., 9 Allen, 231; Mitchell V. Ins. Co., 51 Pa. St. 402; Ins. Co. V. Brunner, 23 Pa. St. 60; Plumb V. Ins. Co., 18 N. Y. 392; Fogg V. Griffin, 2 Allen, 1; Ins. Co. v. Mal- lard, 57 Ga. 64; Ins. Co. v. White, 106 111. 67. ^ Mowry v. Rosendale, 74 N. Y, 360 1334 The Law of Estoppel. will be notice to the company, and tliis notwithstanding there be a condition in the policy that such broker shall be deemed the agent of the assured and not of the company,' § 1197. An agent may, if authorized by a course of business, waive conditions and stipulations in the policy, and the company may be bound thereby, notwithstanding the policy says he may not do so." The knowledge possessed by an agent authorized to issue policies, of facts material to the risk, is knowledge of the company ; and its effect to raise an estoppel precluding the com- pany to evade the policy by reason of such facts is not weakened by such provisions in the policy that the agent has no authority to waive its conditions, or otherwise forbidding any implied waiver.' Mere knowledge by the agent issuing the policy or renewing it, and receiving the premium, of facts constituting a breach of any of its conditions, is a waiver by him and by the company of the condition so known to be broken. It is put upon the ground that notice to the agent is notice to the principal, and that whatever the agent knows, the companj' must be regarded as knowing; and that, as it would be a gross fraud for the company knowingly to receive the premium for issuing a policy on which they did not intend to be liable, and which they intended to treat as void in case of loss, so it is equally a fraud, and their fraud for their agent to do so ; for his knowledge was their knowledge, and his acts their acts, for all the purposes of the transaction.* ' Ins. Co. V. Cbipp, 93 111. 94. 55 111. 213; Ins. Co. v. LeAvis, 30 sins. Co. V. Norton, 96 U. S. 234; Mich. 40; Cnrr v. Ins. Co., 2 Mo. Ins. Co. V. "Wall, 31 Ohio St. 628; App. 466; Palmer v. Ins. Co., 44 Wis. Stolle V. Ins. Co., 10 W. Va. 546; 201; McCulloch v. Norwood, 58 N. Murphy v. Ins. Co., 59 Tenn. 446; Y. 562; Van Scliaick v. Ins. Co., 68 Ins. Co. V. Stanton, 57 111. 354; Carson N. Y. 434; Pelton v. Ins. Co., 77 N. V. Ins. Co., 43 N. J. L. 300; S. C, Y. 605; Button v. Ins. Co., 7 Ins. L. 39 Am. R. 584; Ins. Co. v. McCrea, 8 J. 675; Bank v. Ins. Co., 31 Conn. Lea, 541; S. C, 41 Am. K. 647. 526; Ins. Co. v. Curran, 45 Mo. 142; 3 Ins. Co. V. Throop, 22 Mich. 146; Heaton v. Ins. Co., 7 R. I. 502; Ins. Co. V. Spencer, 53 Pa. St. 353; Nichols v. Ins. Co., 1 Allen, 63. Rowley v. Ins. Co.. 40 N. Y. 557; Ins. * Campbell v. Ins. Co., 37 N. H. 35; Co. V. Wells, 19 A. L. J. 263; Ins. Co. Collins v. Ins. Co.', 79 N. C. 279; V. West, 76 Va. 487; Ins. Co. v. Marshall v. Ins. Co., 27 N. H. 157; Wilkinson, 13 Wall. 222; Ins. Co. v. Argall v. Ins. Co., 84 N. C. 355; Fay, 22 Mich. 473; Ins. Co. v. 01m- Masters v. Ins. Co., 11 Barb. 624; Ins. stead, 21 Mich. 246; Ins. Co. v. Eddy, Co. v. Luttrell, 89 111.'314; Ins. Co. v. Corporations. 1335 § 1198. The doctrine of equitable estoppel has, especially in insurance cases, been extended and applied at law as well as in equity, and the current and weight of judicial precedent in this country, have established the proposition that in such cases the estoppel is equally available in either tribunal. Strictly, the more appropriate remedy would be a suit in chancery to refoi-m the contract. Those courts that reject the parol evidence, in tlie great majority of cases, would relieve in that mode. But the tendency is to attain the same result at law, by allowing the truth to be proved by parol, and giving to it the force of an estoppel in pais. Whether the disclosures of the assured are made warranties or representations is immaterial. The testimonj' shows what answers were given to the interrogatories to the 'agent. They bring to his notice the actual facts. If the agent writes down or dictates an erroneous deduction or result, he assumes for his principal that it is true, or that it is equivalent of the verbal disclosure. The assured would be regarded as declaring to the insurer : " If the answer, as written, is your understanding of the facts disclosed to your agent, then I am bound by them as 'warranties,' or as representations, as the case may be.'" In a suit in chancery for reformation of the contract, that court would esteem the verbal statements of the insurer, in answer to the interrogatories, as incorporated into the contract, and decree accordingly, if there were no other objections. A court of law reaches precisely' the same end, by putting the insurer under an estoppel to insist on a breach of the warranty, or the untruth of the representation. It is but another addition to the numerous instances where courts of law have borrowed principles from the equity courts, and adopted and enforced them. Nor should any limitation be put upon the naturalization into the common law of equitable principles, when its methods of procedure and forms of action are adapted to render complete justice. In most of the Hall, 12 Mich. 214; Coombs v. Ins. Green v. Ins. Co., 11 R. I. 434; Ins. Co., 34 N. J. E. 403; Miner v. Ins. Co. v. McCrea, 8 Lea, 541; S. C, 41 Co., 27 Wis. 693; Keenan v. Ins. Co., Am. R. 641; Horntbal v. Ins. Co., 88 12 Iowa, 126; McEwen v. Ins. Co., N. C. 71; Brandrup v. Ins. Co., 27 5Hill, 101;yielev. Ins.Co.,26Iowa, 9; Minn. 393; Putnam v. Ins. Co., 18 Can V. Ins. Co., 2 Mo. App. 466; Blatchf. 368. » Ins. Co. V. Mahone, 21 Wall. 153. 1386 The Law of Estoppel. cases in which this equitable estoppel has been applied, are those where the acts, representations, or omissions of the agents of the companies, precede or attend the issuing of policies. But it applies with equal force and effect, where facts arise during the currency of the contracts, as for example, where in case of insur- ance by a mutual insurance company, assessments have been made and received by the company on the premium note, or where premiums have been received after knowledge, actual or constructive, of the invalidity of the policy ah initio^ or of a sub- sequent breach of its conditions.' § 1199, In the case of Insurance Co. v. Wilkinson, the Supreme Court of the United States, by Mr. Justice Miller, say: '• In the case before us, a paper is offered in evidence against the plaintiff containing a representation concerning a matter material to the contract on which the suit is brought, and it is not denied that he signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond a ques- tion that this party did not intend to make that representation when he signed the paper, and did not know he was doing so, and, in fact, had refused to make any statement on that sub- ject. If the writing containing this representation had been prepared and signed by ihe plaintiff', in his application for a policy of insurance on the life of his wife, and if the repre- sentation complained of had been inserted by himself, or by some one who was his agent alone in the matter, and forwarded to the principal office of the defendant corporation, and acted upon as true by the officers of the company, it is easy to see that justice would authorize them to hold him to the truth of the statement, and that, as they bad no part in the mis- take which he made, or in the making of the instrument whic'i did not truly represent what he intended, he should not, after the event, be permitted to show his own mistake or carelessness, to the prejudice of the corporation. "If, however, we su])pose the party making the insurance to Lave been an individual, and to have been present when the ' Ins. Co. V. Stanton, 07 111. 354; v. Ins. Co., 25 Conn. 207, Wing v. Peck V, Ins. Co., 22 Conn. 575; Buck Ha-ney, 27 E. L. i E. 140; Beuion v. be ev. Ins. Co., 58 Barb. 541; Sheldon Ins. Co.,* 25 Conn. 548. Corporations. 1337 application was signed, and soliciting the assured to make the contract of insurance, and that the insurer himself wrote out all these representations, and was told by the plaintiff and his wife that they knew nothing at all of this particular subject of inquiry, and that they refused to make any statement about it, and yet, knowing all this, wrote the representation to suit himself, it is equally clear that for the insurer to insist that the policy is void because it contains this statement, would be an act of bad faith, and of the grossest injustice and dishonesty. And the reason for this is that the representation was not the statement of the plaint- iff, and that the defendant knew it was not when he made the contract, and that it was made by the defendant, who procured the plaintiff's signature thereto. It is in precisely such case as this that courts of law in modern times have introduced the doc- trine of equitable estoppels, or, as it is sometimes called, estop- pels «njf?cm. The principle is that where one party has, by his representations or his conduct, induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage. And, although the cases to which this principle is to be applied are not as well defined as could be wished, the general doctrine is well understood, and is applied by courts of law, as well as equity, where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim. It has been applied to the precise class of cases of the one before us in numerous well-considered judgments by the courts of this country.' § 1200. " Indeed, the doctrine is so well understood and so often enforced that, if in the transaction we are now considering. Ball, the insurance agent who made out the application, had been in fact the underwriter of the policy, no one would doubt its applicability to the present case. Yet the proposition admits of as little doubt that if Ball was the agent of the insurance com- pany, and not of the plaintiff, in what he did in filling up the • Plumb V. Ins. Co., 18 N. Y. 392; Bank v. Ins. Co., 31 Conn. 526; Combs Rowley v. Ins. Co., 36 N. Y. 550; v. Ins. Co. , 43 Mo. 148. 1338 The Law of Estoppel. application, the company must be held to stand just as he would if ho were the principal. "Although the very-well-considered brief of counsel for plaintiff in error takes no issue on this point, it is obvious that the soundness of the court's instructions nnist be tested mainly by the answer to be given to the question, ' Whose agent was Ball in tilling up the application?' § 1201. " This question has been decided differently by courts of the highest respectability, in cases precisely analogous to the present. It is not to be denied that the application, logically considered, is the work of the assured, and, if left to himself or to such assistance as he might select, the person so selected would be his agent, and he alone would be responsible. On the other hand, it is well known, so well that no court would be justiticd in shutting its eyes to it, that insurance companies organized under the laws of one State, and having in that State their principal business office, send these agents all over the land, with directions to solicit and procure applications for policies, furnish- ing them with printed arguments in favor of the value and neces- sity of life insurance, and of the special advantages of the corporation which the agent represents. They pay these agents large commissions on the premiums thus obtained, and the poli- cies are delivered at their hands to the assured. The agents are stimulated by letters and instructions to activity in procuring contracts, and the party who is in this manner induced to take out a policy, rarely sees or knows anything about the company or its officers by whom it is issued, but looks to and relies upon the agent who has persuaded him to effect insurance as the full and complete representative of the company, in all that is said or done in making the contract. Has he not a right to so regard him? It is quite true that the reports of judicial decisions are tilled with the efforts of these companies, by their counsel, to establish the doctrine that they can do all this, and yet limit their responsibility for the acts of these agents to the simple receipt of the premium and delivery of the policy, the argument being that, as to all other acts of the agent, he is the agent of the assured. This proposition is not without support in some of the earlier decisions on the subject ; and, at a time when insurance compa- nies waited for parties to come to them to seek assurance, or to COEPOEATIONS. 1339 forward applications on tlieir own motion, the doctrine had a reasonable foundation to rest upon. But to apply such a doc- trine, in its full force to the system of selling policies tlirougli agents, which we have described, would be a snare and a delu- sion, leading, as it has done in numerous instances, to the grossest frauds, of which the insurance corporations receive the benefits, and the parties supposing themselves insured are the victims. § 1202. " The tendency of the modern decisions in this coun- try is steadily in the opposite dii-ection. The powers of the agent are, prima facie, co extensive with the business intrusted to his care, and will not be narrowed by limitations not communi- cated to the person with whom he deals.' " By the interested or officious zeal of the agents employed by the insurance companies in the wish to outbid each other and procure customers, they not un frequently mislead the insured by a false or erroneous statement of what the application should contain, or, taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. The better opinion seems to be that, when this course is pursued, the description of the risk should, though nominally proceeding from the insured, be regarded as the act of the insurers.'" The modern decisions fully sustain this proposition, and they seem to us founded in reason and justice, and meet our entire approval. This principle does not admit oral testimony to vary or contradict that which is in writing, but it goes upon the idea that the writing offered in evidence was not the instrument of the party whose name is signed to it ; that it was procured under such circumstances by the other side as estops that side from using it or relying on its contents ; not that it may be contradicted b}' oral testimony, but that it may be shown by such testimony that it cannot be lawfully used against the party whose name is signed to it.^ ' Bc'bee v. Ins. Co., 25 Conn. 51; Mowry v. Rosendale, 74 K Y. 360; Ins. Co. V. Scliollenbergcr, 44 Pa. St. Campbell v. Ins. Co., 37 N. H. 35; 259; Beal v. Ins. Co., 16 Wis. 241; Maher v. Ins. Co., 67 N. Y. 232; Davenport V. Ins. Co., 17 Iowa, 276. Rowley v. Ins. Co., 36 N. Y. 550; « Rowley V. Ins. Co.. 36 N. Y. 550. Plumb v. Ins. Co., 18 N. Y. 392; Vilas 3 Ins. Co. V. Wilkinson, 13 Wall. v. Ins. Co., 72 N. Y. 590; Ins. Co. 232; Baker v. Ins. Co., 64 N. Y. 648; v. Baker, 94 U. S. 610. Ins. Co. v. Mahone, 21 Wall. 152; 1340 The Law of Estoppel. § 1203. The principle may be thus stated. A company, whether its business is life or fire insurance, cannot avail itself of any mis- statement or omission in the application constituting a warranty or any representation on the part of the insured, wliere such application is prepared by the agent with knowledge of the facts, or if he is intrusted by the assured to make the application, and this even though the policy, or the by-laws of the company made known to the assured, provide that the person taking the survey and preparing the application shall be the agent of the applicant, who shall be responsible for such agent's representations. The necrlect and mistakes of the accent are the ne2:lect and mistakes of the company.' As to all preliminary negotiations, the agent acts only on behalf of the company ; and a company may not escape the consequences of the fraud or mistake of the agent by inserting a stipulation in the policy that such agent shall be deemed the agent of the insured, who, at the time of applying for the policy, was ignorant of the insurer's intention so to stipulate. So, whei-e the policy provided that any person other than the insured who should procure the insurance, should be deemed the agent of the insured and not of the company ; and that a renewal certificate should not be valid unless countersigned by the duly authorized > Miller v. Ins. Co., 31 Iowa, 216; 25 Pa. St. 50; Ames v. Ins. Co., 14 N. Rathbouev. Ins. Co., 31 Conn. 193; Y. 523; Iron Works v. Ins. Co., 25 Hougli V. Ins. Co., 29 Conn. 10; Ins. Conn. -165; May v. Ins. Co., 25 Wis. Co. V. Homer, 2 Obio St.. 459; Mc- 291; Ins. Co. v. Fisb, 71 111. (520; Rob- Bride V. Ins. Co., 30 Wis. 562; Ins. erts v. Ins. Co., 41 Wis. 321; Pechner Co. V. Eddy. 51 111. 213; Ins. Co. v. v. Ins. Co., 65 N. Y. 125; Alexander Lewis, 30 Micb. 41; Ins. Co. v. Mc- v. Ins. Co., 2 Hun, 655; Ins. Co. v. Lanatban, 11 Kas. 533, Combs v. Ins. Sorrells, 57 Tenn. 352; Hurgston v. Co., 43 Mo. 148; McFarland v. Ins. Ins. Co., 42 N. Y. 46; Ins. Co. v. Co., 6 W. Va. 437; Ins. Co. v. Trust Cbipp, 93 111. 96; Ins. Co. v. Ward, 90 Co., 42 Ga. 587; Ins. Co. v. .Merritt, 111. 545^ Wbitedv. Ins. Co., 76 N. Y. 47 Ala. 387; Wilhcrell v. Ins. Co., 49 415; Carson v. Ins. Co., 43 N. J. L. Me. 200; Ins. Co. v. Spencer, 53 Pa. 300; S. C, 39 Am. R. 584; Spragnev. St. 353; Ins. Co. v. AVilkinson, 13 Ins. Co. 69 X. Y. 138; Kausal v. Ins. Wall. 222; Boetcher v. Ins. Co., 47 Co., 31 Minn. 17; S. C, 47 Am. R. Iowa, 253; Clark v. Ins. Co.,40N. 776; Bank v. Ins. Co., 32 Hun, 473; H. 333; Masters v. Ins. Co., 11 Barb. Woodward v. Ins. Co., 32 Hun, 365; 624; Rowley v. Ins. Co., 36 N.Y. 550; Ins. Co. v. Williams, 39 Obio St. 584; Beal V. Ins. Co.. 16 Wis. 24; Peck v. S. C, 48 Am. R. 474; Morrison v. Ins. Co., 22 Conn. 579; Kelly v. Ins. Ins. Co., 59 Wis. 162. Co., 3 Wis. 268; Ins. Co. v. Bruner, COBPOEATIONS. 1341 agent of the company. The agent could not be the agent of both parties ; that the company had recognized him as its agent ; and that he must be deemed to be such.^ § 1204. An insurance company is estopped from denying pay- ment of premium, where there is an acknowledgment in the policy, unless they can show that the acknowledgment was made in error, by fraud or duress.^ Officers and agents of insurance companies, whether they be mutual or joint stock companies, " may waive any of the written or printed conditions of the poiicy, and bind the company by such waiver ; and their repre- sentations or statements made, or promise, assurance or verbal consent given, to the assured at the time of issuing the policy, or when acting within the scope of their agency and with knowledge of the facts constituting the breach, will, if confided in and relied upon by the assured, who is himself innocent and makes no mis- representation or intentionally conceals nothing, amount to such waiver and estop the company from taking advantage of the con- dition waived, such waiver may be by express agreement in writ- ing or parol, or it may be by the acts and conduct of the agent, and need not be founded on a new consideration.^ Thus, they 1 ^Yhited v. Ins. Co., 76 N. Y. 415. 241; Ames v. Ins. Co., 14 N. Y. 253; « Ins. Co. V. Mueller, 77 111. 384; Mechler v. Ins. Co., 39 Wis. 104; Goit Ins. Co.'v. Wolf, 37 111. 354; Goit v. v. las. Co., 25 Barb. 189; Liddle v. Ins. Co., 25 Barb. 189; Dalzell v. Ins. Co., 29 N. Y. 184; Frost v. Ins. Mair, 1 Camp. 532; Barnum v. Childs, Co., 5 Denio, 154; Winans v. Ins. Co., 1 Sand. 58; Ins. Co. v. JMcGowa-i, 13 38 Wis. 342; Ins. Co. v. Stockbower, Kas. 300; Ins. Co. v. Neylaud, 9 Bush, 26 Pa. St. 199; Buckbee v. Ins. Co., 430; Ins. Co. v. Bocker, 9 Heisk. 606; 18 Barb. 541; Webster v. lus. Co., McCraw v. Ins. Co., 78 N. C. 149; 36 Wis. 67; Bolheu v. lus. Co., 35 Ins. Co. V. Kinnier, 28 Gratt. 88; N. Y. 131; Wing v. Harvey, 27 E. L. Michael v. Ins. Co., 16 La. 737; Goit & E. 140; Haughton v. Embark, 4 V. Ins. Co., 25 Barb. 189. ' Camp. 88; Neal v. Ewing, 1 Esp. 61; 3Viele V. Ins. Co., 26 Iowa, 90; Peck v. Ins. Co., 22 Conn. 584; Fayles Viallv. Ins. Co., 19 Barb. 446 ; County v. Ins. Co., 49 Mo. 380; Ins. Co. v. V. lus. Co., 52 Me. 336; Rathbouc v. Fahrenburgh, 68 111. 483; Ins. Co. v. Ins. Co., 31 Conn. 193; Bevin v. Ins. Moulor, 111 IT. S. 335; Wright v. Ins. Co., 23 Conn. 244; Ins. Co. v. Ins. Co., 36 Wis. 522; Campbell v. Ins. Co., 20 Barb. 4G8; Leathers v. Ins. Co., 37 N. H. 43; Devine v. Ins. Co., Co., 24 N. II. 202; Parker v. Ins. 32 Wis. 471; Marshall v. Ins. Co., Co., 34 Wis. 363; Ins. Co. v. Spencer, 27 N. H. 157; Roberts v. Ins. Co., 41 33 Pa. St. 353; Sherman v. Ins. Co., Wis. 321; Ins. Co. v. Robinson, 56 39 Wis. 104; Beal v. Ins. Co., 16 Wis. • Pa. St. 268; Hotchkiss v. Ins. Co., 5 1342 The Law of Estoppel. may waive the usual condition that the premium must be paid before the policy shall be effectual, us well as any other condition in the contract, and it is waived by actual delivery of the policy without requiring prepayment,' if it is subsequently paid after a loss occurs, and is retained and appropriated by the company, it will be a waiver of the terms of the policy, and the company can- not retain the premium and refuse to pay the loss.'' Delivery of a policy to an agent authorized to deliver it to the insured and receive the premium, and his delivery of the policy to the insured and acceptance of a note for tlie premium and procuring a dis- count of the same for his own account, without paying the premium to the principal, "constitutes a valid insurance, in spite of a provision in the policy that such agent shall be deemed the agent of the insured, and that the insurer shall not be liable until he actually receives the preminm.^ The receipt of the premium on a fire insurance policy by the local agent, binds the company, Hull, 91; Sherman v. Ins. Co., 39 Wis. 104; Ins. Co. V. Lyons, ;)8 Tex. 258; Kellips V. Ins. Co., 28 Wis. 472; Ins. Co. V. Wilkinson, 13 Wall. 222; Mc- Bride V. Ins. Co., 30 Wis. 562; Benninghoff v. Ins. Co., 93 X. Y. 495: Buckley v. Garrett, 47 Pa. 204; Howitz V. Ins. Co., 40 Mo. 557; Coursiu V. Ins. Co., 46 Pa. St. 320; Walters v. Ins. Co., 39 Wis. 489; Di<-Ll V. Ins. Co., 58 Pa. St. 444. 1 Ins. Co. V. Slockbower, 26 Pa. St. 199; Berscbe v. Ins. Co., 31 Mo. 546; Ins. Co. v. McCrea, 8 Lea, 541; S. C . 41 .Vm. K. 647; Wilcutts v. Ins. Co.. 8 Ind. 300; Ins. Co. v. Wolf, 37 111. 354: Rathburu v. Ins. Co., 31 Conn. 194: Biickly v. Garrett, 47 Pa. St. 204: Keenan v. Ins. Co., 13 Iowa, 375; Miicbell v. Ins. Co., 51 Pa. St. 402: County v. Ins. Co., 52 Me. 336; Ins. Co. V. Hall, 12 Ml Or if the agent is informed of a vacancy and replies all right." § 1214. If a company see fit to renew a policy after it has full knowledge of the risk, any misrepresentation contained in the original application must be deemed waived ; and the company are bound by the policy.* Where an insurance company, with knowledge of the facts, accepts from the assured a premium for a renewal, and renews the insurance, it will be deemed to have declared the contract of insurance valid, and to have waived a forfeiture,^ or the doing of any other act by the agent recognizing the policy as still in force and binding,* if any has occurred, by reason of the omission of the assured to give notice of other insurance and have it indorsed on the policy. Under such cir- cumstances the company is precluded from asserting either that the renewal was inoperative, or that the policy became void, immediately after it was renewed, by reason of circumstances of which it was fully cognizant at the time of renewal, on the principle of estoppel in pais. It makes no difference that the policy provides that none of its conditions " can be waived except in writing by the secretary." Tiiis provision may be rescinded or modified by a valid agreement even in parol, and the renewal of the policy has this effect.* Thus, where an insurance 1 Short V. Ins. Co., 90 N. Y. 16; Baker v. Ins. Co., 4 Rob. K Y. 333; S. C, 43 Am. II. 138; Wakefield v. Sherman v. lus. Co., 46 N. Y. 526; Ins. Co., 50 Wis. 532; Palmer v. Ins.' Goodall v. In.s. Co., 35 N. H. 328; Co., 44 Wis. 201: Castner v. Ins. Co., Hough v. Ins. Co., 29 Conn. 10; Wood 46 Mich. 110; Ins. Co. v. Wells, 89 v. Ins. Co., 32 N. Y. 619; Ayres v. 111. 82; Alkau v. Ins. Co., 53 Wis. Ins. Co., 17 Iowa, 176; Boutou v. Ins. 136. Co., 25 Conn. 522; Whited v. Ins. « Witheroll v. Ins. Co., 49 Me. 200; Co., 76 N. Y. 138; Trustees v. Ins. Robinson v. Ins. Co., 18 Hun, 395. Co., 19 N. Y. 305; Ins. Co. v. Lyons, 3 Wing V. Harvey, 27 E. L. & E. 38 Tex. 253; Winans v. Ins. Co., 38 140;Berwick,ctc. Co. v.Ins. Co.,52Me. Wis. 342; Sheldon v. Ins. Co., 26 N. 336; Ins. Co. v. Kinnier, 28 Gratt. 88. Y. 460; Fisk v. Ins. Co., 44 N. Y. * Keeler V. Ins. Co., 16 Wis. 573. 538; Myers v. Ins. Co., 27 Pa. St. 6 Carroll v. Ins. Co., 38 Barb. 402; 268; Ho'tchkiss v. Ins. Co., 5 Hun, 91; Ins. Co. V. Slockbowcr, 26 Pa. St. Luding v. Ins. Co., 48 N. Y. 384; 199; Buckley v. Garrett, 47 Pa. St. Bodine v. Ins. Co., 51 N. Y. 117; 204; Ins. Co. v. Ins. Co., 52 Me. 336; Sherman v. Ins. Co., 46 N. Y. 526; Rowley v. Ins, Co., 36 N. Y. 550; Boohen v. Ins. Co.. 35 N. Y. 131; Ilehn V. \x\^. Co.. 61 Pa. St. 107; P.-chner v. Ins. Co.. 65 N. Y. 195- Corporations. 1355 company agree to extend the time of payment of a premium by parol or otherwise it is estopped by such extension of time from claiming a forfeiture," Where the insurers of property have, by their acts and conduct, acknowledged the interest in the premises of one who has paid to them a premium for a renewal of the insurance for another term, they cannot deny his interest in a suit to recover the insurance money for a loss occurring after such renewal/ An insurance company is estopped from using the defects in a survey which has been prepared by the company or its duly authorized agent, as a means of escaping from the pay- ment of the loss.* Though there can be no estoppel under these circumstances, unless the insured acted in good faith and was misled by the agent/ An insurance company is estopped from taking advantage of the acts of its agents within the scope of their authority. § 1215. If a policy of insurance is issued by an insurance company, upon a personal inspection and survey by its agent, without any written application on the part of the insured, or any fraud, misrepresentation, or any attempt to deceive the agent, or to prevent his acquiring a full knowledge of the nature and extent of the risk, the company is estopped from taking advan- Van Schaick v. Ins. Co., 68 N. Y 434; Bidwell v. Ins. Co., 24 N. Y. 302 Broadhead v. Ins. Co., 23 Hun, 397 ' Horner v. Ins. Co., 67 N. Y. 478 Young V. Hunter, 6 N. Y. 203 Underwood v. Ins. Co., 57 N. Y. 500 Leslie v. Ins. Co., 2 Hun, 616; Slier man v. Ins. Co., 46 N. Y. 526 Hasbrouck v. Taffen, 15 Johns. 200 Keating v. Price, 1 Johns. Cas. 22 Evans v. Thompson, 5 East, 189 Boutwell V. O'Keefe, 32 Barb. 434 Bodine v. Ins. Co., 51 N. Y. 117; Howell V. Ins. Co., 44 N. Y. 276. ■' Ins. Co. V. Wetmore, 32 111. 221. a Plumb V. Ins. Co., 18 N. Y. 392; Ins. Co. V. Brunner, 23 Pa. St. 60; Iron Works V. Ins. Co., 25 Conn. 465; Van Schaick v. Ins. Co., 68 K Y. 434; Harris v. Ins. Co., 18 Ohio, 167; Beebe V. Ins. Co., 25 Conn. 51; Campbell v. Ins. Co., 37 N. H. 41; Ins. Co. v. Nelson, 75 111. 548; Mechler v. Ins. Co., 38 Wis. 665; Bodine v. Ins. Co., ,51 N. Y. 117; Ins. Co. v. Pierce, 75 111. 426; Ins. Co. v. Olmstead, 21 Midi. 246; Masters v. Ins. Co., 11 Barb. 624; Marshall v. Ins. Co., 27 N. H. 157; Ins. Co. v. McCall, 9 W. Va. 514; Ay res v. Ins. Co., 21 Iowa, 285; Clark V. Ins. Co., 46 N. Y. 333: Ins. Co. V. Wright, 22 111. 462; Ins. Co. v. Stewart, 23 Pa. St. 45; Peck v. Ins. Co., 22 Conn. 584; Rowley v. Ins. Co., 40 IS. Y. 557; Hough v. Ins. Co., 29 Conn. 10; Ames v. Ins. Co., 14 N. Y. 253; Coombs v. Ins. Co., 43 Mo. 148; Bank v. Ins. Co., 31 Conn. 520; Bid- well v. Ins. Co., 24 N. Y. 302. * Smith V. Ins. Co., 24 Pa. St. 226. 18:)6 The Law of Estoppel. tage of any inistake oi' omission of such agent in that respect.' Where an insurance agent neglects to note on a policy other insurance wliich lie takes, the company is estopped from setting up as a defense the failure to have such additional insurance noted on the policy." By accepting the premium and issuing the policy with knowledge of prior insurance, the company is estop- ped to declare the policy void- because such prior insurance is not written in the policy.^ § 1216. Insurers cannot repudiate their policy on the ground- of misstatement, by the insured, if he truly stated the facts involved, to the agent, at the time of applying for the policy, and the agent drew up the application differently from the facts stated.* Where the agent of an insurance company, who is notified in accordance with the conditions of the policy, of the state of the property insured, and its title, but fails to express it on the face of the policy and says it makes no difference, that it is all right or words to that effect, and receives the premium, the ' Beal V. Ins. Co.. 17 Wis. 241; Lasher v. lus. Co., 55 How. Pr. 318; Bidwell V. Ins. Co., 24 N. Y. 302; T5;ink v. Ins. Co., 31 Coun. 517; Moliere v. Ins. Co., 5 Rtiwle, 34; Kel- logg V. Ins. Co., 3 Wis. 254; Coombs V. Ins. Co., 43 Mo. 148; Ames v. Ins. Co., 14 N. Y. 253; Bartholomew v. Ins. Co., 25 Iowa, 507; Aj'res v. Ins. Co., 21 la. 185; Ins. Co. v. Williams, 39 Ohio St. 534; S.C, 48 Am. R. 474; Mowry V. Rosendale, 74 N. Y. 360; Greene T. Ins. Co., 11 R. I. 434; Ins. Co. V. ilcCooke}', 33 Ohio St. 555. ^ Rowley v. Ins. Co., 36 N. Y. 550; Ins. Co. V. Davidson, 30 Md. 91; Warner v. Ins. Co , 14 Wi.s. 318; Beal V. Ins. Co., 16 AVis. 241; Kelly v. Ins. Co., 3 Wis. 254; Ames v. Ins. Co., 14 N. Y. 253; Webster v. Ins. Co., 36 Wis. 67; Crane v. Ins. Co., 16 Md. 269; Mechler v. Ins. Co., 36 Wis. 665; Rathboue v. Ins. Co., 31 Conn. 193; Horwitz V. Ins. Co., 40 Mo. 557; Roberts v. Ins. Co., 41 Vv''is. 321; Mentz V. Ins. Co., 79 Pa. St. 475. 3 Webster v. Ins. Co. 36 Wis. 67. * Ins. Co. V. Lewis, 48 Tex. 622; Miner v. Ins. Co., 27 Wis. 693; Mas- ters V. Ins. Co., 11 Barb. 624; Bank V. Ins. Co., 31 Barb. 517; Ins. Co. v. Cooper, 50 Pa. St. 331 : Iron Works V. Ins. Co., 25 Conn. 465; Ins. Co. v. Spencer, 53 Pa. St. 355; Sherman v. Ins. Co., 39 Wis. 104; Bank v. Ins. Co., 31 Conn. 526; Coombs v. Ins. Co., 43 Mo. 148; Ins. Co. v. Kasey, 25 Gratt. 248; ^Miller v. Ins. Co., 31 Iowa, 216; McBride v. Ins. Co., 30 Wis. 62; Wood v. Dwarris, 11 H. & N. 493; McCall v. Ins. Co., 9 W. Va, 237; Ins. Co. v. Wcile, 28 Gratt. 389 Ins. Co. V. McGookey, 33 Ohio St 555; Ins. Co. v. AVright, 22 III. 462 Uahlberg v. Ins. Co., 6 Mo. App. 121 Ins. Co. V. Chipp, 93 111. 96; Ring v Ins. Co., 51 Yt. 563; Ins. Co. v Spankneble, 52 111. 53 CORPOEATIONS. 1357 act of the agent is sucli a waiver of the conditions named as amounts to an estoppel injpais.^ § 121Y. One who accepts a policy of insurance, in which it is expressly provided that it is agreed, and declared that the policy is made and accepted, upon and in reference to the applica- tion filed in the office, is estopped from denj'ing that the applica- I'ion is his.* If, in drawing up an application, the agent acts as the agent of the company, and neglects to incorporate in it facts, which are essential to its validity, when he promises the applicant so to do, the company is estopped to set up the omission, for the purpose of defeating an action brought upon the policy.^ Where the acts of the agent are witliin the scope of his authority, it is the same as if it is done by the company, and though statements contained in the application are untrue, the company is estopped from showing such to be the case.* An insurance company, which has had the chance of a contract of life insurance turning out in its favor cannot afterwards be permitted, on the ground of conflict with its rules, to escape from it.^ Sureties on a bond given to secure the faitliful performance of the duties of an agent, are estopped in an action on the bond from showing that the agency under whicli the breach of the bond is alleged to have been committed, was different from that described in their own instrument." § 1218. In a suit upon a premium note given to a mutual insurance company, to recover an assessment thereon to pay a loss bj fire ; the maker, after aiding to establish the corporation 1 Franklin v. Ins. Co., 42 Mo. 456; " Draper v. Ins. Co., 3 Allen, 569. Horwitz V. Ins. Co., 40 Mo. 557; ^ Kelly v. Ins. Co., 3 Wis. 254; Clark Eowley v. lus. Co., 36 N. Y. 550; v. Ins. Co., 40 N. H. 333; Alexander Ins. Co. V. Goodall, 29 N. H. 182; v. Ins. Co., 2 Hun, 655; Beecher v. Boehm v. Ins. Co., 35 K Y. 131; Ins. Co., 63 Iowa,454 Busclie V. Ins. Co., 31 Mo. 546; ^Plumb v. Ins. Co., 18 K Y. 392; Whiled V. Ins. Co., 20 N. Y. Sup. Vilas v. Ins. Co., 72 N. Y. 590; Ins. 191; Ins. Co. v. Wells, 19 A. L. J. Co. v. Baker, 94 U. S. 610; Baker v. 263; Masters v. Ins. Co., 11 Barb. Ins. Co., 64 N. Y. 649; Ins. Co. v. 624; Wood v. Dwarris, 11 H. & N. Wilkinson, 13 Wall. 222. 493; Tuck v. Ins. Co., 56 N. H. 326; ^ Collett v. Morrison, 12 E. L. &Eq. Patten v. Ins. Co., 40 N. H. 375; 171; Meyer v. Ins. Co., 73 N. Y. 516; Marshall v. Ins. Co., 27 N. H. 157; S. C, 29 Am. R. 200. Campbell v." Ins. Co., 37 N. H. 95. « Ins. Co. v. Colton, 26 Conn. 42. 1358 The Law of Estoppel. and partaking of its benefits, is estopped to deny its legal exist- ence in order to escape liability on liis premium note.' If an insurance company, with knowledge of breach of wan-anty in an application, which avoids the policy ah initio, make and receive assessments from the insured on his premium note ; after the fire it will be estopped from setting up the breach of M'arranty in defense to an action on the policy.* So where the administrator after death of the assured .paid assessments on the premium note for losses accruing subsequently to the death of the assured, the company were held estopped to denj' the validity of the in- surance after that event." So, Avhere an insurance company, with full knowledge of a forfeiture, collects assessments upon premium notes given by the assured for losses occurring after knowledge of such forfeiture, they thereby waive the forfeiture and are estopped from setting it up as a defense to an action on the policy.^ In an action on a premium note to a mutual insurance company, such notes furnishing the fund to which the other insured look for indemnity ; the maker is estopped from denying that he had an insurable interest. He can only get rid of his note by sun-endering his policy and taking it up ; nor can he reduce his liability on the note, by setting up that he was only interested in part of the property described,* Where a policy in a mutual insurance company was by its terms to be suspended if the assured should neglect for ten days to pay an assessment after it had been levied, Nearly fifteen munths after the policy was suspended in consequence of the non-payment of two assessments, the assured sold the property to another party, and with the consent of the company assigned the policy to the purchaser, who at the same time executed a mortgage to the vendor and re-assigned the policy to him with consent of the company. At the time of the sale and assignment of the policy the vendee was not informed of the defect in the policy by reason of the non-pajnnent of the assessments. The directors of the company, not having spoken to him in regard to the defect, they > Ins. Co. V. Horner, 17 Ohio, 407. 126; Carrigan v. Ins. Co., 53 Vt. 418; a Frost V. Ins. Co., 5 Deiiio, l.J4. S. C, 38 Am. R. G87. 3 Tuttle V. Robinson, 33 N. H. 104. ^ Ins. Co. v. Belknap, 9 Cush. 140; * Keenan v. Ins. Co., 13 Iowa, Ins. Co. v. McKelway, 13 N. J. E. 133. Corporations. 1359 waived it, and were estopped from setting it up, in an action for the insurance, to which- the jnirchaser of the property had inno- cently trusted till the loss liappened.' In an action by the receiver of an insolvent insurance company, upon an insurance premium note, the maker is estopped from setting up as a defense that the policy and note are void by reason of his misstatements or omissions at the time of procuring the policy." One who affects an insurance with an incorporated company by the terms of whose charter he becomes a member of the corporate body, and gives a premium note in consideration therefor, payable to the company by its corporate name, is estopped from denying the corporate existence of the company in an action against him on the note.^ The affidavit of loss made by the insured estops him to deny in a subsequent suit, on the policy, any material facts therein stated.* It is held that where the policj^ itself contains an express limitation upon the power of agents, an agent has no legal right to contract as against the company with the party to whom the policy has been issued so as to change the terms of the policy, or to dispense with the performance of any part of the consider- ation, either by parol or in writing, and such party is estopped by accepting the policy from setting up powers in the agent at the time, in opposition to the limitations and conditions in the policy.' § 1219. AVhere a party sues and obtains judgment against a corporation, he is estopped from afterwards denying its corporate capacity in an action upon the judgment.^ Where a corporation makes an assignment, and creditors claim under the assignment, they are estopped from asserting a claim upon the stockholders personally for the balance of their debts.'' But in Massachusetts, proving a claim against a corporation in insolvency and receiving a dividend is not a bar to a suit for the balance of the debt.* A judgment is conclusive evidence of the indebtedness of a corpora- ' Hale V. Ins. Co., 32 N. H. 395. « Pochelou v. Kemper, 14 La. Ann. » Huntley v. Perry, 38 Barb. 569. 308; Sergeant, in re, 17 Vl. 425. 3 Cabin V. Ins. Co., 2 Doug. (Micb.) ■> Van Hook v. Wbitlock, 26 Wend. 124. 43. ■* Irving V. Ins. o., 1 Bosw. 507. ^ Coburn v. Paper Co., 10 Gray, 5 Catoir v. Ins. Co., 33 N. J. L. 248. 487. 1360 The Law of Estoppel. tion to the plaintiff, and its validity cannot be inqnired into, but a defendant may sliow that it has been paid.' In Maine a judg- ment against a corporation is binding upon the stockholders until reversed, and is conclusive upon them in a subsequent suit by the same plaintiff.* And a stockholder in a corporation is so far privy as to bring error to reverse a judgment, but until reversed such judgment is valid against him. There can be no affidavit of defense made against the judgment, it is conclusive against him. In Massachusetts to render a stockholder liable he must be sum- moned, but where he allows judgment to go by default, he is estopped from denying the existence of the corporation in a col- lateral action, or his liability, to be arrested as a stockholder upon the execution against the corporation.' A judgment of record recovered on a contract of a corporation cannot be impeached, on the ground that the contract was void for want of corporate power to enter into it.* § 1220. AVhere a corporation takes property for private pur- poses under a void and unconstitutional act, a party receiving the amount of the damage assessed waives the benefit of the illegal- ity, and the receipt of the money operates as an estoppel and has the same effect as a conveyance, and vests the title in the cor- poration. Where a party having a right to appear and object, but does not, and takes the money for his damage, he and his heirs are estopped from claiming title to the property so taken. The receipt of the n)oney is an express consent to the taking of the property, and estops the party and those claiming under him from alleging an unconstitutional taking of private property for private purj)oses,^ and that the title to such premises did not vest in the corporation. § 1221. If a party is guilty of laches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equital)le relief. The rule is more especially applical)le to cases •where a party, being cognizant of his rights, does not take those > Corse V. Sandford, 14 Iowa, 235. St. 543 ; Glenn v. Williams, CO Md. » Milliken v. Whilchouse, 49 Me. 93; Ante, Cliap. 3, ^§ 183 et seq. 527; Slee v. Bloom, 20 Johns. 669; 3 Richmond v. Willis, 13 Gray, 18. Couklin V. Furman, 8 Abb. Pr; (N. S.) ^ Bank v. Stevens, 1 Ohio St. 233. 161; Miller V. White, 8 Abb. Pr. (N. ^Sherman v. McKeon, 38 N. Y. S.) 48 ; Bullock v. Kilgour, 39 Ohio 275. COEPOEATIONS. 1361 steps to arrest them, which are open to him, but lies by and suffers other parties to incur expenses and enter into engagements and contracts of a burdensome character/ Thus, a property holder cannot quietly permit money to be expended in work which benefits his land, under a contract with the city, and then deny the power of the city to make the contract.* Where several tax-payers petition the common council to cause certain improve- ments to be made, as grading, macadamizing, or paving streets and the improvements or work is completed in compliance there- with, without complaint or objection on their part, to the acts of the contractor or common council, in relation thereto, they are equitably estopped to deny that the common council had no con- stitutional power to do it. It would be the perpetration of a gross fraud, after their willing and active assent ; and when they impliedly consent that an assessment shall be made, to pay for ■ ^runcey V. Joest, 74 Ind. 409; Kel- logg V. Ely, 15 Ohio St. 64; Jackson V. Detroit, 10 Mich. 248; Evansville V. Pfisterer, 34 Ind. 36; ISTew Haven V. R. R., S8 Conn. 423; S. C-, 9 Am. R. 399; Lafayette v. Fowler, 34 Ind. 140; Wiggin v. Mayor. 9 Paige, 10; Dows v.^Chicago, 11 Wall. 118; Hel- lenkamp v. Lafayette, 30 Ind. 192; Weber v. City, 1 Cal. 455; Rochedale Co. V. King, 16 Beav. 63; Ferguson V. Landrail, 5 Bush, 230; Motz v. De- troit, 18 Mich. 495; Lyons v. Cool- idge, 89 111. 529; Sleeper v. Bulien, 6 Kas. 300; Pease v. Whitney, 8 Mass. 93; Peoria v. Kidder, 20 111. 351; Commonwealth v. Thomas, 32 Pa. St. 218; Chapman v. R. R., 6 Ohio St. 119; Jolinson v. County, 24 111. 75; R. R. Co. V. R. R. Co., 28 Iowa, 437; Brown v. Bowen, 30 K Y. 519; Young V. Bush, 8 Bosw. 1; State v. Vanhorne, 7 Ohio St. 327; Prettyman V. Supervisors. 19 111. 406; Zabriskie V. R. R., 23 How. 381; Pittsburg v. Scott. 1 Pa. St. 309; R. R. Co. v. Stewart, 39 low^a, 267; Buffington v. R. R. Co., 74 Pa. St. 162; Renick v. Luddiugton, 20 W. Va. 511; Patter- VoL. L— 86 son V. Baumer, 43 Iowa, 477; Math- ews V. Sands, 29 Ala. 136; Porter v. Hanley, 10 Ark. 180; Hayiiesv. Meek, 20 Cal. 288; Williams v. Lord Jersey, Cr. & Ph. 91 ; Bradford v. Patterson, 1 A. K. Marsh. 346; Bridge Co. v. Stewart, 3 How. 412; Johnson v. Glasscock. 2 Ala. 519; Cunningham v. Ashley, 13 Ark. 653; Reed v. West, 70 111. 479; Campbell v. Campbell, 22 Gratt. 049; Warren v. Raymond, 17 S. C. 163; State v. Jersey City, 40 IST. J. L. 483; Grey v. R. R. Co., 1 Grant Cas. 412; Kent v. Mining Co., 78 N. Y. 169; Terry V. Lock Co., 47 Conn. 141; Hilton v. Granville, Cr. & P. 292; Graham v. R. R. Co., 2 H. & T. 450. ^ Hellenkamp v. Lafaj'ette, 30 lud. 192; Palmer V. Stumpli, 29 Ind. 329; Nevius V. Alkire, 36 Ind. 189; Corrj' V. Gaynor. 22 Ohio St. 584; Yerplanck V. New York, 2 Edw. Ch. 220; Flora V. Cline, 89 Ind. 208; Vose v. Cock- croft, 44 N. Y. 415; Walker V. City Council, 1 Bail. Ch. 443; Griswold v. Bay City, 35 Mich. 453; Straub V. Alleghany, 1 Pennypacker, 424; Woolsey, in re, N. Y. 135. 1362 The Law of Estoppel. such iinprovements, whether the assessment is illegal or not, they are estopped troiii asking a court of equity to interpose an injunc- tion to restrain the collection of the tax.' And where an individual, whose land was appropriated for the purpose of a municipal cor- poration, was a member of the city council which authorized the improvement ; one of those who petitioned them for the purpose, a member of the committee to whom the petition was referred, participated in the proceedings which resulted in the opening, and stood silently by while the city was making large expenditures upon the work, he was held not to have either a legal or equitable right to set up his title against the city." The connnon council of a city are, in principle and in fact, nothing more than agents of the property-owners, in making improvements in the streets ; and when the property-owners benelited thereby suffer the improve- ments to proceed and be completed without remonstrance, they should be held to have affirn)ed the acts of their agents in con- structing such work.' One acting in procuring an ordinance for grading a street, selected thereunder commissioners, superintend- ing the improvement, selling the city bonds to defray the cost, and assessing the abutting properties : Hdd, to be estopped to deny ' Motz V. Detroit, 18 Mich. 496; Browu V. Bowcu, 30 N. Y. 519; Young V. Busline] 1,. 8 Bosw. 1; State V. Tieuton, 36 N. J. L. 499 ; Kearney V. Covington, 1 Met. (Ky.)339; Swift V. Williamsburgli, 24 Barb. 43; Sex- ton v. Smith, 32 Wis. 299; Kellogg v. Ely, 15 Ohio St. 64; Burlington v. Gilbert, 31 Iowa, 356; L:i Fayette v. Fowler, 34 Ind. 140; S. C, 7 Am. R. 143; Qinnlan v. Meyers, 29 Ohio St. 500; People V. Goodwin, 5 N. Y. 571; Sleeper v. Bulleu, 6 Ka.s. 300; Ilarrup V. Baylcy, 6 E. & B. 224; llarrui) v. Landrail, 1 Bush, 548; S. C, 5 Bu.sh, 230; Wild v. Deig, 43 Ind. 455; State V. Hudson. 34 N. J. L. 25; Vau Hook V. Wliitloek. 26 AVeud. 43; Karber v. Nellis, 22 Wis. 215; People v. City, 65 Barb. 1; City v. B. R., 38 Conn. 421; State v. Clark, 38 N. ,1. L. 102; State V. Commissioners, 30 N. J. L. 247; Wiggins V. Mayor, 9 Paige, 24; State V. Blake, 35 N. J. L. 208; Louis- ville v. Hyatt, 5 B. Mon. 19; State v. Hoboken, 36 N. J. L. 291; Bissell v. Jefferson villo, 24 How. 287; Patter- sou V. Baunier, 4} Iowa, 477; "Webber V. San Francisco, 1 Cal. 455; Evans- villev. Ptisterer, 34 Ind. 36; People V. Rochester, 21 Barb. 656; Grimm v. Schickle, 4 ;Mo. App. 585; People v. Muri'ay, 5 Hill, 468; Mayor v. Scott, 1 Pa. St. 309; Lee v. Tillottson, 24 Wend. 337. - Pittsburgh v. Scott, 1 Pa. St. 309; Weber v. San Francisco, 1 Cal. 455; Tosh V. Adams, 10 CusIl 252; War ncr V. Grand Haven, 30 Mich. 24; Peoria v. Kidder, 26 111. 351; Pease v. Whitiie}', 8 Mass. 93; La Fayette v. Fowler, 34 Ind. 140; Story v. Furmau, 25]Si. Y. 230; Evansviile v. Plisteier, 34 Ind. 36; Ilagar v. Supervisors, 47 Cal. 222. ■< People v. Utica, 65 Barb. 1. CORPOKATIONS. 1363 the validity of the act under which the ordinance was passed, and the mode of assessment thus adopted." But where parties peti- tion the municipal authorities to have improvements made, the work is to be done as provided by law, and they will not be estop- ped to object that the proceedings have been conducted in dis- regard to law.' But, while such work is generally undertaken, because demanded by public interests, yet the land-owners in the vicinity of the improvement, are interested therein. They must all be presumed to have had notice of the action of the author- ities in ordering the work and in causing it to be prosecuted. Especially where some of them signed the petition asking that the work be done. They cannot be presumed to be ignorant of any irregularities up to and including the letting of the contract. They should have objected thereto before the expenditure of money and labor by the authorities and contractor. The law will not permit them to remain silent until after the work is done and then raise such objections to defeat the collection of taxes. The unconstitutionality of an assessment for a local municipal improve- ment, for want of power, may not be taken advantage of by those who acted as officers of election or commissioners, voted for com- missioners, or actively participated in causing the improvement to be made ; but one who merely signed the petition, and was -silent and passive is not estopped unless he had knowledge of the making of the improvement, and that his property was to be assessed, and that the proceedings were invalid or defective ; and some special benefit accrued to his property from the improve- ment.' § 1222. In the language of the Supreme Court of Wisconsin it may be said : " But of late years, much more than formerly, the doctrine of estoppel, most wholesome and just in its opera- tion when properly applied, has been extended to these municipal corporations, so as to bind and conclude them by their own acts and acquiescence, and the acts and acquiescence of their officers, wherever an estoppel would exist in the case of natural persons. It is now well settled, tliat as to matters within the scope of their 1 Bidwell V. Pittsburg, 85 Pa. St. 104; Bultiraore v. Porter, 18 Md. 284; 412. Sharp, in re, 1 Thomp. & C. 427. » Sleclvert v. East Saginaw, 22 Mich. » Tone v. Columbus, 39 Ohio St. 218 S. C, 48 Am. R. 438. 1864 The Law of Estoppel. powers and the powers of their olficers, such corporations may be estopped upon the same principles and under the same circum- stances as natural persons."' To illustrate the application of this equitable estoppel, some cases may be referred to, not connected with the subject of municipal bonds, which will be hereafter examined. Thus, the lien of an assessment erroneously discharged of record, cannot be restored so as to affect l)ona fide purchasers." So, where the authorities of a city acquiesce for a number of years (in this case 19), in the use of a public street by a railroad company, in maintaining an arch over the street, and consented to such use of the street until it became necessary to rebuild the arch ; .the city was estopped from compelling the company to remove the arch, until its rebuilding was necessary.' So, it was hdd, that a city or county was estopped to deny the ownership of real estate by a part}', whom it had permitted to occupy the same and pay taxes thereon levied by itself.^ This application of the doctrine is denied, and a municipality is held not to be estop- ped to claim title to the land, because its officers, without author- ity, have assessed the same to private individuals, and returned it ' Kneeland v. Gilman, 34 Wis. 39. Martel v. East St. Louis, 94 111. 67; Fredericksburg v. R. R. Co., 25 Graut U. C. 360; Peek v. Burr, 10 N. Y. 294; Roby v. Cliicajjro, 64 111. 447; Goodrich v. Milwaukee, 24 Wis. 432; R. R. Co. V. Joliet, 79 111. 39; Manf. Co. V. Elizabetli, 42 N. J. L. 249; r)epf)t Co. V. St. Louis, 76 Mo. 393; State V. Dent, 18 Mo. 313; Graut v. Davenport, 18 Iowa, 179; State v. Boscawen, 32 N. II. 331 ; R. R. Co. v. Mariou, 36 Mo. 294; Logan Co. v. Lin- coln, 81 111. 156; Slater v. Ry. Co., 25 Grunt U. C. 363; Lane v. Kennedy, 13 Ohio St. 42; Bank v. Seneca Falls, 15 F. R. 783; R. R. Co. v. People, 91 111. 251; Mayor v. Sheffield, 4 Wall. 189: Wilson v. Wlieeling, 19 W. Va. 323; Houfe v. Fulton. 34 Wis. 608; Codner v. Bradford, 3 Chand. (Wis.) 291; Williams V. Cunniugton, 18 Pick. 312 ; McDonough v. Virginia, 6 Nev. 90; Gilbert v. Manchester, 55 N. H. 298; Slmplot v. Ry. Co. 49 Iowa, 630; Genoa v. Van Alstyne, 108 111. 558; Pembroke v. Ry. Co., 30 Ontario, 503; Petersburg v. Mappin, 14 111. 193; Canal Co. v. King, 3 Sim. N. S. 78. Brewster v. County, 4 Grant U. C. 443 ; Braill v. Aguew, 14 111. App. 514; Dann v. Spuirier, 7 Ves. 235; Curnen v. Mayor, 79 N. Y. 511 ; Piince- ton V. Templeton, 78 111. 68; Brandrutf Y. Harrison Co., 50 Iowa, 164; Dayton V. Pease, 4 Ohio St. 80; Ilasbrouck v. Milwaukee, 21 Wis. 217; Biickman V. Charleston, 42 N. H. 125; Brady v. Mayor, 20 N. Y. 312; and see cases cited po.st §§ 1230 et seq., on Munici- pal Bonds. ■^ Curnen v New York, 79 N. Y. 511. 8 Ry. Co. V. People, 91 111. 251. * Simplot V. Dubuque, 49 Iowa, 630; Brandruff v. Harrison Co., 50 Iowa, 164; Adams Co. v. R. R. Co., 39 Iowa, 507. CORPOEATIONS. 1365 as delinquent, and sold the same at a tax sale. The ground of this latter rule is that the acts of its officers are unauthorized and void, and that a purchaser at a tax sale is bound to take notice of the extent of their powers.* If this were not the correct rule, unscru- pulous officials might deprive a county or citj of all its property, and there would be no redress. The true principle in such cases is well settled. That one cannot do indirectly, what cannot be done directly, and where there is no power or authority vested by law in officers or agents, no void act of theirs can be cured by aid of the doctrine of estoppel. Where there is power, and it is irregularly exercised, or there are defects and omissions in exer- cising the authority conferred by law, the doctrine of equitable estoppel may well be applied by courts. Thus, a city having acted on its own construction of a special ordinance in paving a street up to a supposed required grade, cannot deny its correct, ness to the injury of a lot-owner required to comply with the ordinance." So, where, under a statute a company proceeded to acquire land for depot purposes, which was erected at great expense, and the city received a large amount from the company towards building the bridges necessary to adapt neighboring streets, to the construction of the depot, and by the ordinance permitting its construction. Subsequently, the city proceeded to repossess itself of the land on which the depot had been erected on the ground that the land was a street, and that no power existed to appropriate for such purposes. The act being broad enough to warrant the condemnation of the street, and that were it not, the city, by its conduct w^as estopped from taking action to re-appropriate the land so taken.' Thus, a city cannot be allowed to recover a penalty from a person for pursuing a trade or calling, for the privilege of which the city has received and retain the consideration exacted of him. In such case it is immaterial whether the ordinance under whi(!h the privilege was granted was valid or invalid, or whether the agents acting on behalf of the city were de facto or de jure officers, or no officers » St. Louis V. Gorman, 29 Mo. 593; v. Boston, 1 Allen, 417. Walcott V. Swampscott, 1 Allen, 101; ^ Goodrich v. Milwaukee, 24 Wis. McFarland v. Kerr, 10 Bosw. 249 ; 423; Chicago v. AVheeler, 25 111. 478. Rossire v. Boston, 4 Allen, 57; But- ^ Union Depot Co. v. St. Louis, 8 trick V. Lowell, 1 Allen, 172; Kimball Mo. App. 412; S. C, 76 Mo. 393. 1366 The Law of Estoppel. at all. Where a person takes out a license to keep a drain sltop within a city, pnrsnant to an ordinance of the city issued by de facto officers of the corporation, and paj's into the city treasury the sum exacted therefor, and gives the proper bonds, before tlic city can maintain an action against him for the penalty for carry- ing on the business without a license, it must revoke the license and return him his money. The doctrine of estoppel in ]pai8 applies to municipal corporations, but the public will only be estopped or not, as justice and right may require. Any positive acts by municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself by re-enacting what its officers have done, will work an estoppel. Where a city receives and retains money paid by a party foi- a license, to keep a dram shop, with a knowledge of the purpose for which it was paid, this will be equivalent to an adoption by the city of the acts of the officers who assumed to act on its behalf in issuing the license, and will make such acts its own, although such officers were not de jure officers of the city. Where the act done is within the powers of the corporation, and both parties have proceeded as if all the formalities have been strictly complied with, in consequence of which rights have attached, each party is estopped to set up, with a view of defeating the rights of the other, that the nmnicipality has neglected to observe some regulation, that it should have per- formed prior to entering into the transaction.' Thus, a city can- not set up its own illegality, of its assessment as a defense to an action for damages for land taken by it for use as a street." Where a corporation is sued for an injury growing out of the negligence of the corporate authorities in their care of the streets of the corporation, they cannot defend themselves on the ground that the formalities of the statute were not pursued in establishing the street originally. If the authorities of a city or town have treated a place as a public street, taking charge of it and regulat- ing it as other streets, they cannot, when sued for an injury, ' Martel v. East St. Louis. 94 111. pic v. Lowell. 9:\Iicli. 144; Higgins v. 67; Oskosh v. State, 59 Wis, 425. Chicago, 18 111. 276. " Rose V. Baltimore, 51 Md. 256; ^ (Chicago v. Wheeler, 25 111. 478; Chicago V. Wheeler, 25 111. 478; State People v. Lowell, 9 Mich. 144. V. Jersey City, 40 N. J. L. 483; Pec- Corporations. 1367 defend themselves by alleging want of antliority in establishing the street.' So, when a petition for grading a street is presented to the city council, and it makes a contract for it, and after the work has been done and a special tax has been levied to pay for the same, it is estopped from denj'ing the validity of the contract or its liabilit}^ to the contractors for the grading.^ So, after a city has taken possession of a piece of ground, used and claimed it as a street, entered into a contract to have it graded, and after the work has been done and accepted by the city, it will be estopped from denying that the street was ever legally laid out or dedicated as such,' So, a board of education which has long acted and been recognized as a legal body, cannot avoid liability on bonds issued on behalf of its school-district, by showing that the district was not legally organized." § 1223. A corporation may become bound and estopped, otherwise than under a corporate seal, and their undertakings and admissions may be evidenced otherwise than by records, resolu- tions, by laws, ordinances, or other wi'itten documents. Technical as well as equitable estoppels apply to corporations as well as to individuals. The ratification of a contract by a corporation may be inferred from facts attending the transaction, and where per- sons assuming to act as agents of a corporation, but without legal authority, make a contract, and the corporation receive the benefit of it and use the property acquired under it, such acts will ratify the contract, and render the corporation liable thereon.^ Corpo- rations, in regard to their contracts, are upon the same basis as natural persons, open to the same implications, receiving the benefit of the same j)i"esumptions." J Mayor V. Sheffield, 4 Wall. 189. 43 Wis. 420; Lovett v. Church, 13 =* Sleeper v. Bullen, 6 Kas. 300. Barb. 67 ; Kneeland v. Gilman, 24 « Leavenworth v. Laing, 6 Kas. Wis. 39; Darst v. Gale, 83 111. 36; 274. Commonwealth v. Turnpike Co., 3 ■* Sav. Inst. V. Board, &c., 75 Mo. Pick. 327; Argenti v. San Francisco, 408. 16 Cal. 255; New Orleans v. Bank, 31 ^ Bank V. Patterson, 7 Cranch, 297; La. Ann 560; Cook Co. v. Harnis, Gooding v. R W. Co., 17 Beav. 132; 108 111. 151. Muhlman v. Ins. Co., 6 W. Va. 508; « Bank v. Dandridge, 12 Wheat. 70; New Athems v. Thomas, 82 111. 259; Bank v. Root, 2 Met. 522; R. R. v. Memphis v. Memphis, &c,., 9 Heisk. Babcock, 6 Met. 346; Burgess v. Pure, 531; Germantown, &c. Co. v. Dhein, 2 Gill, 11; King v. Armory, 1 Term 1368 The Law of Estoppel. § 1224. A citj' is bound ami estopped by acts of its officers within knowledge of its common council without objection.' Tlius, where goods are legally purchased by the town agent, assuming tlie right to pledge the town's credit for the price, and the town afterwards receives them with a knowledge of the way in which they were purchased, the town is estopped from deny- ing their liability.' But where a contract, under which work is done for a municipal corporation, is void, because entered into in violation of its charter, the contractor cannot recover for it in any form, neither under the contract nor upon a quantum meruiU and a subsequent ratification of the contract, before or after the work is done, by the common council, does not make it binding upon the corporation ;' nor is the corporation estopped from set- ting up a want of authority to make the contract.* § 1225. While a municipal corporation is not bound by the unauthorized act of an individual, it may so deal with third per- sons as to justify them in assuming the existence of authority in another, which in fact had never been given.* So, a fact once admitted by a corporation through its officers, properly acting within the scope of their authority, is evidence against it, and the doctrine of estoppel applies thereto.' Where the authorities take legal steps to widen a street, appoint commissioners to assess damages — this is an admission which will estop them from claim- ing a prior dedication.' So, a contract made by a committee appointed by the city council to act for it will bind it,' and where the chairman of a committee orders a sidewalk, without the con- currence of the other members, the cost thereof having been assessed by the council afterwards, is a ratification of such act." R. 575; Muhlman v. Ins. Co., 6 W. * Davies v. Mayor, &c., 93 N. Y. Ya. 508; Thompson v. Lambert, 44 250. Iowa. 239. « O'Leary v. Board, 93 N. Y. 1 ; ' Hasbrouck v. Milwaukee, 21 Wis. Curnoii v. Mayor, 79 N. Y. 514; Ross 217. V. Baltimore, 51 Md. 256; People v. - Backman v. Charleston, 43 N. H. Lowell, 9 Jlich. 144. 125 ; Miller v. Land Co., 66 X. C. ' Princeton v. Templeton, 71 111. 503. 68. 3 Brady v. Mayor. 20 N. Y. 312. ^ Burlington v. Dennison, 43 N. J. 4 City Council v. Plank R. Co., 81 L. 165. Ala. 75 ; McPherson v. Foster, 43 ^ Brewster v. Davenport, 51 Iowa, Iowa, 48. 427. Corporations. 1369 Municipal corporations, like private corporations and individualsj may ratify the unauthorized acts of its agents and officers within the corporate powers, and such ratification may result from a failure to disavow such act, or by acquiescence after knowledge of all the material facts.' Generally, municipal corporations are liable for the torts of their agents.* For an exhaustive examina- tion of. authorities, and the doctrine of res])ondeat supeHor, the learned reader is referred to chapter XXIlI, volume 2, of the valuable and exhaustive commentaries of Judge Dillon on Munic- ipal Corporations. § 1226. The act of a city in assuming authority to control the land as a street, renders it chargeable with the same duties, and imposes upon it the same liabilities, as if it had been lawfully laid out, and it is estopped from questioning that it was a lawful road or street.^ In the last case cited it was held that it was immaterial whether the street became sucli by formal acceptance and user by the public, so far as regards the duty of the city to keep it in safe condition. It follows that the defendant, by adopting the land and allowing it to be used as a street, holding out to the public that it was such street, and by repairing and improving it as such, was boimd to exercise the same degree of care as if it had been laid out strictly according to law, and it cannot escape liability for the alleged reason that it has no control over it, and the land belonged to the State.* The laying out, opening and improvement of roads, and the erection of bridges, also the expending of work and labor upon them, as well as the raising and appropriation of money for those purposes, are all ' Peterson V. Mayor, 17 K Y. 453; 2 Sprague v. Tripp, 13 R I. 38; Fisher v. School Dist., 4 Cush. 494; How v. New March, 12 Allen, 49; Keyser v. School Dist., 85 N. H. 477; Lewis v. Brooks, 121 Mass. 501; Car- Hoy t V. Thompson, 19 N. Y. 207; man v. Mayor, 14 Abb. Pr. 301; Lee Topsham v. Rogers, 42 Vt. 189; Howe v. Sandy Hill, 40 N. Y. 442; Luttrell V. Kevlcr. 27 Conn. 538; Marsh v. v. Hazen, 3 Sneed, 20; Hildreth v. Fulton Co., 10 Wall. 670; De Grave Lowell, 11 Gray, 345; Dayton v. V. Monmonth, 4 C. & P. Ill ; Hayden Pease, 4 Ohio St. 80. T. Madison, 7Me. 79; Argenti V. San ^ Houfe v. Fulton, 34 Wis. 608; Francisco, 16 Cal. 256; Abbott' v. Stark v. Lancaster, 57 N. H. 88; Au- School Dist., 7 Me. 118; People v. rora v. Colshire, 55 Ind. 484; Phelps Swift, 31 Cal. 26; Jordan v. School v. Mankota, 23 Minn. 276. Dist., 38 Me. 164; Ante, §§ 1044, ^ gei-yell v. Cohoes, 75 N. Y. 45; et seq. * Mayor v. Sheffield, 4 Wall. 189. 1370 The Law of Estoppel. matters within the scope of the general powers of the town and its officers. The same is trne also of the adoption or ratification of roads already laid ont and opened, and of bridges already erected and in nse. When, therefore, a town or its officers ratify and adopt a bridge already bnilt without its authority, or take possession of it as one of the public bridges of the town and a part of its highways, or by other acts clearly indicate such intent and that it is to be so regarded by the public, the town may be estopped from denying that such is its true character, or from affirming that it had no lawful riglit to adopt or maintain it. And the same estoppel may arise where the town or its officers take unlawful possession of land as a highway, and expend labor upon, and improve and hold it out to the world as such. The estoppel in such cases arises from the acts of the town and its officers, performed within their apparent authority, and if they, who ought to know, were deceived and mistaken, it would be most inequitable and wrong to visit the consequences upon inno- cent third persons, who relied upon and were justified in con- fiding in their action.' Where a town which, by its officers, expends upon a road the means provided by law to make and improve highways, in order to make them safe for traveling, pro- claims to the world that such road is one of its public highways, it is thereby estopped from denying it to be so, in an action for the recovery of damages for injuries sustained through the neg- lect of its officers to keep such highway in repair.'' § 1227. When a county or other municipal corporation is authorized by statute to borrow money and issue bonds for the payment of money thereof, and bonds are made and delivered, reciting the facts which show them to have been regularly issued, the county is estopped to deny their regularity, or to assert that they were not made in conformity to the statute.' If municipal bonds are valid by the constitution and laws of the state, as expounded by the highest judicial authority, whose duty it was to interpret them, they cannot be made invalid by a subsequent judicial interpretation of an opposite kind.* Such bonds being ' Houfe v. Fulton, 34 "Wis. 608. ' Moran v. Commissioners, 2 Black, 3 Codner v. Bradford, 3 Chand. 722; State v. Board, 27 Ohio St. 96. (Wis ) 291 ; Gilbert V. Manchester, 55 * Mitchell v. Burlington, 4 Wall. N. n. ::D^. 270. Corporations. 1371 payable to bearer and bearing interest coupons, although not in the form of promissory notes or bills of exchange, are to be regarded as commercial securities, and the holder of them has a full title against one who has taken them in good faith ; the county cannot set up the equities which might have been avail- able against the original payee. The power to issue the bonds being shown, the corporation as against hona fide holders for value, is estopped to deny that the power was properly executed.* § 1228. The fulfilment of the conditions or restrictions under which a body corporate is empowered to act, will be presumed until it is disproved. When a corporation has power under any circumstances to issue negotiable securities, a bona fide holder has a right to presume that they were issued under circumstances which gave the requisite authority, and they are no more liable to be impeached for any irregularity in the hands of such a holder than any other commercial paper.' § 1229. The leading case in the Supreme Court of the United States, in which the liability of municipal and public corpora- tions, cities, counties, townships, &c., was decided, is that of Knox ' Rogers V. Burlington, 3 Wall. 654; v. Shores, 97 U. S. 272; Supervisors Cincinnati v. Morgan, 3 Wall. 275; v. Galbraith, 90 U. S. 214; Comm'rs Moran v. Comm'rs, 2 Black, 722; v. Block, 99 U. S. 686; Block v. Cromwell v. Sac Co., 96 U. S. 51; Comm'rs, 99 U. S. 686; Supervisors Bates V. Hewitt, 20 Wis. 460; Gorgier v. Sclienck. 5 Wall. 784; Goodman v. V. Micrville, 3 B. & C. 45'; Brooks v. Simouds, 20 How. 343; Murray v. Mitchell, 9 M. & W. 15; Goodwin v. Lardner, 2 Wall. 110; Bank v. Kirby, Roberts, L. R. lApp. Cas.476; Good- 108 Mass. 497; Lay v. Wissman, 36 man V. Harvey, 4 A. & E. 870; Burn- Iowa, 305; Bank v. Green, 33 Iowa, ham V. Brown, 23 Me. 400; Judge v. 140; Bank v. Watson, 42 N. Y. 490 Sherborne, 11 M. & W. 374; U. S. Fowler v. Strickland, 107 JUass. 552 V. R. R., 91 U. S. 72; Miller v. Stoddard v. Kimball, 6 Cu.sh. 469 Race, 1 Burr. 452; White v. Ver- Allaire v. Hartshorne, 21 N. J. L. 665 mont, &c. Co., 21 How. 575; Mer- Williams v. Smith, 2 Hill, 301; Bank cer Co. V. Hackett, 1 Wall. 83; Gel- v. Chapin, 8 Met. 40; Memphis v. pecke V. Dubuque, 1 Wall. 175; San Brown, 20 Wall. 289; Shirk v. Co., ^ Antonio v. Lane, 32 Tex. 405; Lex- Dillon, 209; Mayor v. Ray, 19 Wall, ington v. Butler, 14 Wall. 282; St. 468. Joseph v. Rogers, 16 Wall. 644; Hum- " Gelpeckc v. Dubuque, 1 Wall. 203. boldt V. Long, 92 U. S. 642; Macon 1372 The Law of Estoppel. Connfy v. Aspinwall.' The question arose on the liability of the county on neii^otiablc railway aid bonds, issued by the commis- sioners of tiiat county. The defense set up was want of power in the commissioners to issue them for the reason tliat some of the preliminary statutory requirements, in respect to notices for the election, were omitted. It was not controverted that notices were not given ; and the court would have decided against the county to issue the bonds were it not for other matters which pre- vented the county from maintaining that defense. The court in that case held, that the question whether or not the election was properly held and a majority" of the votes cast in favor of the issuance of the bonds was a matter that must necessarily be determined by the county commissioners in whom the power rested to call the election, and upon their determination of the result either to issue the bonds or refuse ; and when that question was once determined it could not again be determined in collateral actions arising in actions brought to compel the payment of interest, or in actions on the bonds. Tlie court in assigning its reasons for thus holding, speaking through Mr. Justice Nelson say : " The right of the board (of county commissioners) is placed upon the fact that a majority of the votes had been cast in favor of the subscription ; and to have acted without first ascertaining it, would have been a clear violation of duty ; and the ascertainment of the fact was necessarily left to the inquiry and judgment of the board itself, as no other tribunal was provided for the purpose. The board was one,, from its organiza- tion and general duties, tit and competent to be the depositor}' of the trust tlius confided to it. The persons composing it were elected by the county, and it was already invested with the higliest functions concerning its general police and liscal interest. . . . We do not say," he adds, " that the decision of the board would be conclusive in a direct proceeding to inquire into the facts previously to the execution of the power, and before the rights and interests of third parties had attached ; but after the authority has been executed, the stock subscribed, and the bonds issued and in the hands of innocent holders, it would be too late, even in a direct proceeding, to call it in question. Much less can it be called in question to the prejudice of a honafide holder ' Knox County v. xVspinwall, 21 How. 538. Corporations. 1373 of the bonds in this collateral way." And it has been extensively followed.* • Moran v. County, 2 Black, 723; Supervisors v. Scheuck, 5 Wall. 772; Rogers v. Burlington, 3 AVall. 654; Woods V. Lawrence Co., 1 Blk. 38(); County V. Hackett, 1 Wall. 83; Meyer V. Muscatine, 1 Wall. 385; Van Hostrup V. Madison City, 1 Wall, 291; Converse v. Fort Scott, 92 U. S. 503; Bissell V. Jeffersonville, 24 How. 287; Gelpecke v. Dubuque, 1 Wall. 175; Courrty v. Amy, 18 Wall. 297; St. Joseph V. Rogers, IG Wall. 644; Lex- ington V. Butler, 14 Wall. 284; Grand Chute V. Winegar, 15 Wall. 371 ; Coloma V. Eaves, 92 U. S. 484; County V. Post, 93 U. S. 502; County v. Barnes, 94 U. S. 70 ; Comm'rs v. Bolles, 94 U. S. 104 ; Comm rs v. Thayer, 94 U. S. Gol; Paua v. Bowler, 107 U. S. 529; County of Cass v. Johnson, 95 U. S. 360; City v. Shields, 62 Mo. 247; Smith v. Clark Co., 54 Mo. 58; Daviess Co. v. Huidekoper, 98 U. S. 98; Nauvoo v. Ritter, 97 U. S. 389; Venice v. Murdock, 92 U. S. 494; Anthony v. Jasper Co., 101 U. S, 693; W^arren v. Marcy, 97 U. S. 96; Mealey v. St. Clair Co. ,"3 Dill. 163; Allen v. Cameron, 3 Dill. 175; W^yatt v. Green Bay, 1 Biss. 292; Hackett v. Ottowa, 99 V. S. 86; San Antonio v. Mehaffy, 96 U. S. 312; Comm'rs v. January, 94 U. S. 202; East Lincoln v. Davenport, 94 U. S. 801; ]Moultrie v. Bank, 92 U. S. 631; Cincinnati v. Morgan, 3 Wall. 275; Lyudc v. Winnebago. 16 Wall. 6; Kcunicott V. Supervisors, 16 Wall. 452; Marcy v. Oswego, 92 U. S. 637; Humboldt v. Long, 92 U. S. 642; Cal- loway Co. V. Foster, 93 U. S. 567; San Antonio v. Barnes, 96 U. S. 315; Wil- kinson V. Peru, 61 lud. 1; Webb v. Hern Bay, L. R. 5 Q. B. 642; Imperial Land Co., in re, L. R. 11 Eq. 478; Black V. Cohen, 52 Ga. 621 ; Shorter V. Mayor, &c., 52 Ga. 621; Lj^ons v. Munson, 99 U. S. 684; Weyaywega v. Ayling, 99 U. S. 112; Supervisors v. Galbraith, 99 U. S. 212; Bargate v. Shortridge, 5 Clark H. L. 297; Wilson V. Salamanca, 99 U. S. 499; Oileans v. Piatt, 99 U. S. 676; Bank v. Turquand, 6 El. &, Bl. 325; Pompton v. Cooper Union, 101 U. S. 196; Scotland v. Thomas, 94 U. S. 682; Schuyler Co. V. Thomas, 98 U. S. 169; Block v. Commissioners, 99 U. S. 686; Dou- glas V. Pike Co., 101 U. S. 677; Dar- lington v. Jackson Co., 101 D. S. 688; Buchanan v. Litchtield, 102 U. S. 278; Davis V. Kendallville, 5Biss. 280; Foote V. Pike Co., 101 U. S. 688; Roberts v. Bolles, 101 U. S. . 119; Macon Co. v. Shores, 97 U. S. 272; Rock Creek v. Strong, 96 U. S. 271; Marsh v. Fulton Co., 10 Wall. 676; Bolton V. Board, 1 III. App. 793; Mur- ray V. Lardner, 2 Wall. 110; Quincy V. Coke. 107 U. S. 549; Nicohus v. St. Clair, 3 Dill. 163; Huidekoper v. Co.. 3 Dill. 175; Pollard v. Pleasant Hill, 3 Dill. 195: Morgan Co. v. Allen, 103 U. S. 498; Tipton Co. v. Locomotive Works, 103 U. S. 523; Harter v. Kernochan,103U. S.562; Bank v. Con- cord, 50 Vt. 257; Marshall v. Elgin, 3 McCrary, 35; Bank v. Seneca Falls, 15 F. R. 783; Singer Co. v. Elizabeth, 42 N. J. L. 249; Menasha v. Hazard, 102 U. S. 81; Ins. Co. v. Elizabeth, 42 N. J. L. 235; Gause v. Clarksville, 1 Mc- Crary, 78; San Antonio v. Gould, 34 Te.x. 49; R. R. Co. v. Marion Co., 36 Mo. 294; Lewis v. Clarendon, 5 Dill. 329; Kirkbride v. Lafayette Co., 108 U. S. 208 ; Howard Co. v. Bank, 108 U. S. 314; Bernards v. Steblnns, 109 U. S. 341; Sherman v. Simonds, 109 U. S. 735; Jonesboro v. II. R. Co., 110 U. S. 192; Bank v. Porter, 110 U. S. 1374 The Law of Estoppel. § 1230. The doctrine as established in the Supreme Court of the United States in regard to municipai bonds, is tlins stated in one of the numerous cases decided by that court in whicli such questions have repeatedly been decided. " Bonds payable to bearer," says the learned justice who delivered the opinion of the court,* " issued by a municipal corporation to aid in the construc- tion of a railroad, if issued in pursuance of a power conferred by the legislature, are valid commercial instruments; but if issued by such a corporation, which possessed no power from the legis- lature to grant such aid, they are invalid, even in the hands of innocent holders. Such a power is frequently conferred to be exercised in a special numner, or subject to certain regulations, conditions, or qualilications ; but if it appears tliat the bonds issued show by their recitals that the power was exercised in the manner required by the legislature, and that the bonds were issued in conformity with those regulations and pursuant to those con- ditions and qualifications, proof that any or all of those recitals are incorrect, will not constitute a defense to the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecedent compliance with the regulation, condition or qualitication which is alleged was not fullilled. It is definitely settled by this court that mere irregularities in the exercise of the power will not avail as a defense against an innocent holder for value, and that the only defense open against such a holder is the want of power to issue the bonds. The most important inquiries to be considered are, what will estop the corporation which issued them to set up in defense a non-conjpliance with antecedent or preliminary condi- tions ; and it is these inquiries that we shall seek to illustrate by a reference to the decisions of the courts in cases which have arisen for judgment," § 1231. Among the limitations or attempted limitations, upon the exercise of the power to issue bonds, one not unfrequently provided is, that the amount voted or issued shall not exceed a G08; Ronede v. Jersey City, 18 F. R. 341. 719; Desmond v. Jelfersou, 19 F. R. ' St. Joseph Township v. Rogers, 483; Bernards v. Morrison, 109 Q. S. IG Wall. 644, Corporations. 1375 specified proportion of the taxable property of the municipality, or such a sum as will require a greater levy of taxes than a speci- fied rate on the taxable property to pay the annual interest on the bonds. The effect of a disregard of this limitation by the officers intrusted by the statute with the exercise of the power, came, for the first time, before the Supreme Court, in a case arising under the legislation of Kansas.' In this case the bonds wei-e duly executed, and contained a recital of the act, and that they were issued " in virtue of and in accordance " with it, and *' in pursuance of and in accordance with the vote of three fifths of the legal voters of the township, at an election to be held on " a specified day. The plaintiff was a hona fide holder for value, without notice. The defense was that they were voted and issued at one time, as one act, and in payment of one sub- scription in excess of the amount authorized by the statute. The defense was held unavailing. The case was considered to fall within the principle of the previous decisions. Mr. Justice Strong, speaking for the court, after stating the facts as we have given them, observed : " In view of these facts, and of the decisions heretofore made by this court, tlie question cannot be considered an open one. We have recently reviewed the subject in the case of The Town of Coloma v. Eaves (supra) and reas- serted what had been decided before, namely, that where legis- lative authority has been given to a municipality to subscribe for the stock of a railroad company, and to issue municipal bonds in payment of the subscription, on the happening of some precedent contnigency of facts, and where it may be gathered from the legislative enactment that the officers or persons designated to execute the bonds were invested with power to decide whether the contingency had happened, or whether the fact existed which was a necessary condition precedent to any subscription or issue of the bonds, their decision is final in a suit by the bofia fide holder of the bonds against the municipality, and a recital in the bonds that the requirements of the legislative act had been com- plied with is conclusive. And this is more emphatically true when the fact is one peculiarly within the knowledge of the per- sons to whom the power to issue the bonds has been conditionally granted. . These cases afford, perhaps, a more striking illustration ' Marcy v. Oswego, 93 U. S. 637. 1376 The L\^v of Estoppel. than any previously decided by the court, that the purchaser may implicitly rely upon the recitals in the bonds made by the proper officers. The doctrine which seems to be well established, is, that as to all matters of fact ; such as the ascertainment of a compli- ance with the pre-requisites necessary to be completed prior to the vesting of authority or jurisdiction in the municipal tribunal to issue the bonds ; are matters peculiarly within the province of the body empowered to issue such bonds, and when such facts are ascertained and settled prior to the issue of the bonds ; and these facts are recited in the bonds that these matters are concluded and that no testimony is admissible to contradict such recitals in an action brought upon the bonds or coupons. The determination of such municipal tribunals that all the statutory requirements have been complied with, being a matter within the exclusive jurisdiction of such bodies, it is not subject to collateral attack any more than a judgment of any court of exclusive jurisdiction ; and the only remedy is in a direct proceeding or attack upon such judgment. But where there is a w'ant of power in the municipality, to issue such bonds, no recital or ratification will cure such defect even as against innocent holders.' § 1232, As showing the precise principles that have been firmly established in regard to this class of instruments, a brief reference may be made to some of the most recent decisions of the Supreme Court, in which it is evident that the whole subject again underwent thorough discussion. In Bank v. Township," " It is, however, contended, that by the settled doctrines of this court, the township is estopped by the recitals of the bonds in suit, to make its present defense. The bonds, upon their face, purport to have been issued ' in pursuance of the provisions of the several acts of the general assembly of the State of Ohio, and of a vote of the qualified electors in said township of Porter, taken in pursuance thereof.' These recitals, counsel argue, import a compliance, in all respects, with the law, and, therefore, ' Force V. Batavia, 61 111. 100; Wil- 20 Wall. 655; St. Joseph v. Rogers, liams V. Roberts, 88 111. 13; Sykes 16 Wall. 644; Lippincott v. Pana, 93 V. Columbus, 65 Miss. 115; Williamson 111. 24; McPliersou v. Foster, 43 V. Keokuk, 44 Iowa, 88; Aspiuwall v. Iowa, 48. County, 22 How. 364; Marsh v. ^ 110 U. S. 608. County, 10 Wall. 676; Ass'n v. Topeka, Corporations. 1377 the township will not be allowed, againat a "bona fide holder for value, to say that the circumstances did not exist wliich author- ized it to issue the bonds. It is not to be denied that there are general expressions in some former opinions which, apart from their special facts, would seem to afford support to this proposi- tion in the general terms in which it is presented. But this court said in Cohens -y. Yirginia,i and again in Carroll v. Carroll," that it was ' a maxim not to be disregarded that general expressions in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.' An examination of the cases, in wliich those general expressions are found, will show that the court has never intended to adjudge that mere recitals by the officers of a municipal corporation in bonds issued in aid of a railroad corporation precluded an inquiry, even where the rights of a honafide liolder were involved, as to the existence of legislative authority to issue them. " A reference to a few of the adjudged cases will serve to illustrate the rule which has controlled the cases involving the validity of municipal bonds. In Knox Co. v. Aspinwaii,' power was given to county commissioners to subscribe stock to be paid for by county bonds, in aid of a railroad corporation, the power to be exercised if the electors, at an election duly called, should approve the subscription. It was adjudged that as the power existed, and since the statute committed to the board of commis- sioners authority to decide whether the election was properly held, and whether the subscription was approved by a majority of the electors, the recital in bonds, executed by those commis- sioners, that they were issued in pui'suance of the statute giving the power, estopped the county from alleging or proving, to the ]:»rejudice of a honafide holder, that requisite notices of the elec- tion had not been given. In Bissell v. Jeffersonville,* the court found that there was power to issue the bonds, and that after they were issued and delivered to the railroad company it was too late, as against a hona fide holder, to call in question the deter- mination of the facts, which the law prescribed as the basis of 1 6 Wheat. 399. » 21 How. 542. » 16 IIow. 287. * 24 How. 299. Vol. L— 87 137S The Law of Estoppel tlie exercise of the power granted, and which tlie city autliorities wei-e authorized and required to determine before bonds were issued. " Probal)ly the fullest statement of the settled doctrine of this court is found in Coloma v. Eaves.* In that case the autliority to make the subscription was made, by the statute, to depend upon the result of the submission of the question to a popular vote, and its approval by a majority of the legal votes cast. But whether the statute, in these particulars, was complied witii, was left to the decision of certain persons who held official relations with the municipality in whose behalf the proposed eubscriptiou was to be made. It was in reference to such a case that the conrr said : ' When legislative authority has been given to a munici- pality, or to its officers, to subscribe to the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subseripiion, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide wdiether the condition precedent has been com- plied with, their recital that it has been made in the bonds issued by them and held by a bona Jide purchaser is conclusive of the fact and binding upon the municipality ; for the recital is itself a decision of the fact by the appointed tribunal.' This doctrine was re-affirmed in Buclianan v. Litchfield,' and in other cases, and we perceive no just ground to doubt its correctness, or to regard it as now open to question in this court." '" But we are of opinion that the rule, as thus stated does not support the position which counsel for plaintiff in error take in the present case. Tlie adjudged eases, examined in the light of their special circumstances, show that the facts which a municipal corporation, issuing bonds in aid of the construction of a railroad, was not permitted, against a honajide holder, to question, in face of a recital in the bonds of their existence, were those connected with or growing out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute conferring the power made it tlieir duty to ascertain and determine before the bonds were issued ; not merely for themselves, as the ground of their own action in 1 92 U. S." 49. "" 102 U. S. 290. Corporations. 1379 issuing the bonds, but equallj^ as authentic and final evidence of their existence, for the information and action of all others deal, ing with them in reference to it. Such is not the case before us. Had the statutes of Ohio conferred upon a township in Delaware county authority to make a subscription to the stock of this com- pany, upon the approval of the voters at an election previously held, then a recital by its proper officers, such as is found in the bonds in suit, would have estopped the township from proving that no election was in fact held, or that the election was not called and conducted in tlie mode prescribed by law ; for, in such cases it would be clear that the law had referred to the officers of the townsliip, not only the ascertainment, but the decision of the facts involved in the mode of exercising the power granted. Bnt in this case, as we have seen, power in townships to subscribe did not come into existence, that is, did not exist, except where the county commissioners liad not been authorized to make a sub- scription. Whether they had not been so authorized, that is, whether the question of subscription had or not been submitted to a county vote, or whether the county commissioners had failed for so long a time to take the sense or the people as to show that they had not, within tlie meaning of tlie law, been authorized to make a subscription, were matters with which the trustees of the township, in the discharge of their ordinar}' duties, had no official connection, and wliicli the statute had not committed to their final determination. Granting that the recital in the bonds that they were issued ' in pursuance of the provisions of tlie several acts of the general assembly of Ohio,' is equivalent to an express recital that the county commissioners had not been authorized by a vote of the county to subscribe to the stock of this company, and that, consequently, the power conferred upon the township was brougiit into existence, still it is the recital of a fact, arising out of the duties of county officers, and which the purchaser and all others must be presumed to know did not belong to the town- ship to determine, so as to confer or create power which, under the law, did not exist. In the view we have taken of this case, McClure V. Oxford' is instructive. That was a case of munici\3al subscription to a railroad corporation. The act conferiing tlie authority provided that it should take effect (and, therefore, should ' 94 U. S. 420. 1380 The Law of Estoppel. not be a law except) from and after its publication in a particular newspaper. Thirty days' notice of the election was required. But the election was held within thirty days from the publication in the paper named in the act. The bonds recited that they were issued in pursuance of the statute, describing it by the date of its passage, not the date of its publication in the newspaper designated. They showed upon their face that the election was held April 8, 1872. But the purchaser was held bound to know tliat the act was not in fact published in that newspaper until March 21, 1872 ; that, therefore, it did not become a law until fiom and after that date. He was, consequently, charged with knowledge that the election was held upon insufHcient notice. The bonds were, for these reasons, declared to be not binding upon any township. The publication of the act, plainly, was not a matter with which the township trustees, as such, had any offi- cial connection. It was not made their duty to have it published. The time of publication would not necessarily appear upon the township records ; but publication in a named newspaper was, as the face of the act showed, vital, not simply to the exercise, but to the v(*i-y existence of the power to subscribe. We may repeat here what was said in Anthony v. Jasper Co.' that purchasers of nninicipal bonds 'are charged with notice of the laws of the kState granting power to make the bonds the}' find on the market. This we have always held. If the power exists in the municipal- it3\ the hma fide holder is protected against mere irregularities in the nuinncr of its execution; but if there is a want of power, no legal liability can be created.' So here. Porter toNvnship is estopiK'd, by the recitals in the bonds, from saying that no town- ship election was held, or that it was not called and conducted in the particular mode required by law\ Bnt it is not estopped to show that it was without legislative authority to order the elec- tion of August 30, 1851, and to issue the bonds iu suit. The question of legislative authority iu a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals; but the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of that power; or, w'hen the law prescribes conditions upon the exercise of the power granted, aud commits to the officers of such munic- ' 101 U. S. G97. CoRPORATIOIJS. 1381 ipality the determination of tlie question whether those condi- tions liave been performed, the corporation will also be estopped by recitals which import such performance." § 1233. The well settled rule may therefore be thus formu- lated where a corporation, public or priv^ate, has lawful power to issue negotiable securities, such as city, county, township and other bonds, or bonds secured by deeds of trust and mortgages. A' bona fide holder for value has the right to presume that the power was properly exercised, and is not bound to look beyond tlie question of its existence. Where the bonds on their face recite the circumstances which bring them witliin the power, the corporation is estopped to deny the truth of the recitals. Such corporation cannot take advantage of any irregularities in their issue as against the public, who were justified in believing Omnia rite esse acta.^ They cannot deny wdiat their agents have affirmed in order to place them on the market. § 1234. Where municipal bonds are irregularly or defectively issued, in the absence of constitutional restrictions, on the powers, a State legislature may enact retrospective statutes to validate such bonds and such subsequent legislative sanction is equivalent to oi-iginal authority to issue such bonds." •Bank v. Turquand, 6 Ell. & B. Wilson v. Hardesty, 1 Md. Ch. 66- 248; Kumford Canal Co., in re, L. Shaw v. Norwalk, 5 Gray, 180: R. 24 Ch. D. 85; Webb v. Commrs. Satlerlee v. Mathewson, 2 Pet. 380; L. R. 5 Q. B. 642; Aspinwall v. Knox Stanley v. Colt, 5 Wall. 119; Wilkin- Co., 21 How. 539; Bank v. Augusta, son v. Leland, 2 Pet. 627; Croxall v. 49 Me. 505; Zabriskie v. R. R., 23 Sheerd, 5 Wall. 268; Leland v. Wilkin- How. 400; Doming v. Houlton, 64 son, 10 Pet. 294; Kcithsburg v. Frick, Me. 254; Venice v. Murdock, 92 U. 34 111. 405; Bridge Co. v. Bridge Co., 8. 494; St. .Joseph v. Rogers, 16 AVall. 11 Pet. 420; Kniipp v. Grant, 27 Wis. 644; Lane v. Embden, 72 Me. 354; 147; Copes v. Charlestown, 10 Rich. Iluidekoper V. Buchanan Co., 3 Dill. L. 491; McMillen v. Boyles, 6 Iowa, 175; Orleans v. Piatt, 99 U. S. 676; 304; Gelpecke v. Dubuque, 1 Wall. ShurUell v. Wiscassett, 74 JMe. 130; 220; People v. Mitchell, 35 N. Y. 551; Coloma V. Eaves, 92 U. S. 484; Bucha- Bass v. Columbus, 30 Ga. 845; Bissell nan v. Litchfield, 102 U. S. 278; Davis v. Jellersonville, 24 How. 287; Camp- V. Kendall viile, 5 Biss. 280; Nicholay bell v. Kenosha, 5 Wall. 194; Steines V. St. Clair, 3 Dill. 163; Humboldt v. v. County, 48 Mo. 1G7; Black v. Long, 93 U. S. 642; Pollard v. Cohen, 52 Ga. 621; Duanesburgh v. Pleasant Hill, 3 Dill. 195; Sherman Jenkins, 57 K Y. 177; Kimball v. Co. V. Simonds, 109 U. S. 735. Rosendale, 42 Wis. 407; S. C, 24 Am. "Thompson v. Lee Co., 3 Wall. 337; R. 421; Ritchie v. County, 23 Wall 1382 The Law of Estoppel. § 1235. Where authority is given to a city to take stock in a n^ih-oad, provided that none should be taken " unless on the peti- tion of two-thirds of the citizens," this proviso will be presumed to have been complied with, where the bonds show, on their face, that tiiey were issued in virtue of an ordinance of the council of the city making the subscription, the bonds being in the hands of honajide holders for value.' Thus where the common council of a city were authorized by a statute to issue bonds of the city in aid of a railroad, on the petition of three-fourths of the legal voters, the common council decided that such proportion had petitioned and issued the bonds to the plaintiffs. Duly certified copies of their proceedings were exhibited to the plaintiffs at the time they received the bonds ; and upon the bonds themselves it was recited that three-fourths of the legal voters had petitioned for the subscription. Held, that the bondholders and their assigns had the right to rely upon such recitals as importing abso- lute verity, and the city was estopped to deny that three-fourths of the legal voters had petitioned.'' "Where the nnmieipality has repeatedly recognized the validity of the bonds issued by them, by paying them out, levying taxes and paying interest on them for a series of years, it is estopped from claiming that the issue is illegal.' And the same principle applies in the case of coupon bonds in the hands of honajide holders ; the city is estopped in an action upon the coupon to deny the regularity of tiieir issue.* So, on a petition for a peremptory mandamus, to compel the trustees of a township to pay the overdue interest on certain bonds, issued by said trustees to a railroad company, incorporated by an Ohio statute, and indorsed by the petitioners : Held, that the defendants were estopped to aver, as to third persons holding such securities in good faith, without notice, that the act of incor- poration of said railroad company was abrogated by the new con- stitution of the state, and if not superseded, that the proceedings preliminary to the issuing of the bonds were not comj)lied with, 67; Bradley v County, 65 Mo. 638; '' Bissell v. Jeffersonville, 24 IIow- St. Joseph V. Rogers, 16 Wall. 666. ard, 287. ' Van Ilostrup v. Madi-son, 1 Wall. " Keitbsburg v. Frick, 34 111. 405; 291; Venice V. Murdock, 92 U. S. 494; R. R. Co. v. Commissioners, 18 Kas. Mason v. Shawneetown, 77 111. 533; 169. Converserv. Fort Scott, 92 U. S. 503; * Clark v. ZanesTille, 10 Wis. 136; R. R. Co. V. Sparta, 77 111. 505. Supervisors v. Hubbard, 45 111. 139. Corporations. 1383 as to notice of elections, &c.' The bonds of a municipal corpor- ation, issued in aid of a railroad, were publicly sold, with a knowledge of all the inhabitants of the city. Many of them had been deposited with the State Treasurer by banks as security for their circulation, one of which located in the city, had for several years published in a newspaper there a quarterly statement, embracing such fact. The city had paid the semi-annual interest on the bonds, down to to a certain date, and the payments had been reported at the annual city meetings. Ileld^ under these circumstances that the corporation was equitably estopped from denying the validity of the bonds, against parties who held them in good faith, and that individual citizens and tax-payers who had acquiesced in the conduct of the cit}-, and taken no measures to prevent the sale of the bonds, or the payment of interest, were equally estopped from denying their validity, so far as their indi- vidual rights were concerned,' So, levying a tax for and making part payment upon a judgment, against a municipal corporation will estop it from appealing from it." § 1236. A provision in a city charter restraining them from borrowing money for any public purpose, does not estop it from issuing bonds in payment for property purchased.* The seal of a municipal corporation attached to a contract, does not estop the corporation from inquiring into the power of its ofBcers to make it.'' The legislature enacted that a city might abandon its char- ter and become incorporated under the general law, by a vote of two-thirds of its council, entered in the journal ; a copy thereof, under the corporate seal, to be tiled in a certain office. Which was done by tlie defendant, as required, except that it was not sealed, the city having no seal. The city had been incorporated for twenty years, and had never had any seal. Ileld^ that the provision for tlie sealing was merely directory ; and that the city was estopped from raising the objection." Mere non -action of ' State V. Van Home, 7 Ohio St. Ann. 230. 327; State v. Trustees, 8 Ohio St. ■■ People v. Brennan, 89 Barb. 522; 394. Hitchcock v. Galveston, 96 U. S. "^ Society v. New London. 2:» Conn. 341. 174; Keithsbuvg V. Frick, 34 111. 405; '^ Leavenworth v. Rankin, 2 Kaus. Mayher v. Chicago, 38 111. 266; Shoe- 357. maker v. Goshen, 14 Ohio St. 569. « Brennan v. Weatherford, 53 Tex. -» Daird v. Baton Rouge, 27 La. 330; S. C, 87 Am. R. 758. 1384 The Law of Estoppel. the officers of a inui)ici|5al corporation to assert a right will not work an estoppel. There must be some act done, influencing the act of another, which renders it ine(|uitable to permit the corpo- ration to stultify itself.' But a municipal corporation is not estop- ped from maintaining an action upon a treasurer's bond, by accept- ing a report of an auditing committee who had approved his accounts by making a report founded thereon to the legislature.' Where a bond reciting that a party has been appointed for a par- ticular office, and that he should ])ay over all moneys collected, tfec, the sureties are estopped frorri denying such a fact in an action on the bond, and their liability is co-extensive with the princijials.' § 1237. Where a city, by its ordinances, has released all its rights in certain premises to the owner, and the owner's grantees occupy and improve the same on the faith of such ordinances, the city is estopped to claim the land.* Where money is raised by a town in pursuance of a statute, for the purpose of paying the interest due on bonds issued by such town, and the money is placed in the hands of the supervisor, who is required by statute to pay it over to the proper bondholders, such supervisor will be liable to an action by a bondholder for his share, and will also be estopped from alleging that the bonds are not legal. ^ § 123S. Where a corporation have the power to do an act they may be estopped from objecting that the form they adopted was not the exact mode prescriljed in the charter ; but where the question is one of power, they cannot be deariied estopped to deny that they have done what they never could by legal possibility have done." But if the agents of a railroad company represent the company to the public as conuiion carriers to a place beyond the limits of their own road, in such a manner and for such a time that the corporators may be presumed to know and assent to it, the company will be estopped to deny it, although no actual arrangements with connecting lines exist, although the company may have had no special authority by their charter to make such ' Logan Co. v. Lincoln, 81 111. 156. * Grant v. Davenport, 18 Iowa, 179; » R. R. Co. V. Elwell, 8 Allen, 371. R. R. Co. v. Brownsville, 45 Tex. 88. 3 Hoboken v. Harrison, 30 JN\ J. L ^ Ross v. Curtis, 31 N. Y. C06. 73. «Hoodv. R. R. Co., 23 Conn. 502; McPherson v. Foster, 43 Iowa, 48. Corporations. 1385 contracts, and conld perhaps by proper proceedings, have been restrained from so doing. They cannot plead such want of author- ity against persons contracting with their agents, empowered so to contract by express act of the company or their directors, or by implication arising from a mutual arrangement amongst all the carriers, between the place where the goods are received and the place where they are delivered, and although the agent making such a contract had no authority from the company to do so, 3'et if for several years before and after the transaction sued upon, he made similar contracts to deliver goods at various places beyond the line of the company's road, their assent may be presumed, and they will be estopped from denying their authority. Thus, a railroad company, contracted to carry sixteen car-loads of cattle from St. Louis to Phihidelphia, nothing was said about a change of cars or other companies. It was held^ tliat unless forbidden by its charter, it miglit make a contract to carry cattle over connect- ing lines, and it would be liable in all respects upon other lines as on its own. The public has a right to assume, that the contract- ing company has made all arrangements necessary to the fulfill- ment of the obligations it has assumed.' § 1239. In regard to this class of written instruments, they may best be described in the language of Judge Miller, of the United States Supreme Court. " As civilization has advanced and commerce extended, new and artificial modes of doing business have superseded the exchanges by barter and otherwise, which pi-evail while society is in its early and simple stages. The inven- trion of the bill of exchange is a familiar illustration of the fact, if more modern, but still not recent invention, of like character, for the transfer, without the somewhat cumbersome, and often ' R. R. Co. V. McCarthy, 96 U. S. Pontius, 19 Ohio St. 321; Buffett v. 267; R. R. Co. v. Pratt, 22 Wall. 123; R. R. Co., 40 N. Y. 168; MuchineCo". Railway Co. v. Blake, 7 H. & N. 987; v. R: R. Co., 70 Mo. 672; Maghee v. Buxton V. R. R., L. R. 9 Q. B. 549; R. R. Co. 45 N. Y. 514; Fertal v. R. Weed V. R. R., 19 Wend. 534; Knight R. Co., 109 Mass. 398; Hudson v. V. R. R., 56 Me. 240; Buffit v. R. R. Swan, 83 K Y. 552: Hill Co. v. R. R. Co., 36 Barb. 420; Perkins v. R. R. Co., 104 Mass. 122; Milnor v. R. R. Co., 47 Me. 573; Bissell v. R. R. Co., Co., 53 N. Y. 363; Root v. R. R. Co., 22 N. Y. 258; Navigation Co. v. Dan- 45 N. Y. 524; McCarthy v. Eggers.lO dridge, 8 G. & J. 248; Burtis v. Rail- Ben. 688. way Co., 24 N. Y. 269; R. R. Co. v. 1386 The Law of Estoppel. impossible operation of actual deliveiy of articles of personal property, is the indorsement or assignment of bills of ladins^ and ■warehouse receipts. Instruments of this kind are sui generis. From long use in trade, they have come to have among com- mercial men, a well understood meaning. And the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale.' In the hands of the holder of it, it is evidence of ownership, general or special, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwith- standing, it is designed to pass from hand to hand, with or with- out indorsement, and it is eflicacions for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it comes into the hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers applies to it in a limited sense. It is an instrument of a two-fold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on his vessel by the owner of the vessel. In the latter it is a contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver. Before the power to make and deliver a bill of lading could arise, some person must have shipped goods, only then could there be a shippei', and only then could there be goods shipped. It is not necessary that the goods shall be actually loaded. If they come within the custody, and control of the parties for the purpose of shipment, the contract of carriage commences, and the evidence of it in the form of a bill of lading will be binding — without such delivery there is no con- tract of carrying, and the agents have no authority to make one — they have no authority to sell bills of lading, nor power to execute them and go out and sell them to purchasers. Ko man has a light to buy such a bill of lading, who has not delivered them, the goods, to be shipped.' Neither the master of a vessel nor its ship- ' Austin V. Craven, 5 Taunt. 167; v. Su^-dam, 7 N. Y. 357; Gibson v. White v. Wilkes, 12 East, 614 ; Con- Bank, 11 Ohio S. 311. rad v. Ins. Co., 1 Pet. 386; Gardiner * Freeman, Schooner v. Bucking- Corporations. 1387 ping agents can, by giving a bill of lading for goods not received "for shipment, bind the vessel or its owner, and such bill is void even in the hands of a transferree iii good faith for value.' In a recent case in Kansas, it was held : — Where the agent of a railroad corporation, which is engaged as a common carrier, has authority to receive grain for shipment over its road, and issue in the name of the corporation a single bill of lading for each consignment received, on September 4th, received 23,000 pounds of wheat for transportation to St. Louis, Mo., and at the instance of the shipper, issues in the name of the corporation two original bills of lading, of the same terms, tenor and effect, for the wheat, and each of which shows the receipt of 23,000 pounds of wheat and its con- signment to the order of the shipper at St. Louis, Mo., and the shipper on September 5th, negotiates one of the bills to W., who, as holder of such bill of lading receives all the wheat forwarded to St. Louis, and on September 6th, negotiates and transfers by indorsement in writing the other bill of lading to a bank, and the bank, knowing the custom of the railroad corporation to issue only one bill of lading for each shipment, and relying wholly on the bill for its security, accepted the same, advanced money thereon of less amount than the value of the wheat called for in good faith and in the re<2;ular course of business and havino; no knowl- edge of the issuance of the two original bills of lading ; that the railway corporation is estopped by its statement and promise in the bill of lading to deny that it has received the grain mentioned therein, and is liable to the indorsee and assignee for its advances made in good faith on the bill of lading.^ § 1240. Warehouse receipts are written statements that the party named in the receipt has deposited or left for storage cer- tain personal property which the receiptor acknowledges to be in his possession. When a warehouseman issues such a receipt, he puts it in the power of the holder to treat with the public on the faith of it. He enables him to say, and to induce others to believe, that he has certain property which he can sell or pledge for a loan of money. If the warehouseman gives to the party ham, 18 How. 182; Grant v. Norway, Mass. 99 ; Pollard v. Vinton, 105 U. 10 C. B. 665; Coleman v. Riches, 16 S. 7. C. B. 104 ; Hubbersty v. Ward, 8 ' Pollard v. Vinton, 105 U. S. 7. Exchq. 330; Walter V. Brewer, 111 '■' Bank v. R R. , Kas. 1338 The Law of Estoppel. who holds snch receipt a false credit, he will not be suffered to contradict the statement which he has made in the receipt, so as to injure a party who lias been misled by it. That is within the most exact definition of estoppel. If A. gives B. a warehouse receij^t for articles which he has never received, a third party treating with B. on the faith of the statement contained in the receipt will hold A. for the goods or their value. It is of no con- sequence what the transaction may be between the original parties, whether the receipt is a security for a loan or entirely false.' § 12-11. A railroad companj'^, having procured an assessment of the value of lands to be taken and appropriated to the use of their road, by persons mutually chosen by them and the ostensible owner, are estopped from denying his title on the ground that his sale to them was fraudulent and void as to creditors, without showing that they were creditors, that the title had failed, and that they had been evicted by some of the creditors, or that they had acquired a paramount title.' After land is condemned for the use of a railway company, the adjudication can no more be impeached by any collateral proceedings, or by evidence, than the judgment of any other court of competent jurisdiction.' Where the owner of land condemned for the use of a railway company is also an officer of the company, whose duty it is to see tliat the proceedings are correctlj'' conducted, he cannot be heard to object to the title acquired by the company, on the ground of defects in the proceedings which he ought to have prevented.' After a railroad has lawfully taken lands under their charter, and the damages have been duly assessed by the commissioners, and, npon appeal, the assessment has been confirmed and the amount received by the owner, he is estopped from setting up any claim against the company's possession, while the lands are used for any of the ])urposes authorized by their charter.^ So, where a party acquiesces for a short period of time, whereby the company may infer that he intends waiving present payment, it concludes the • McNiel V. nni, 1 Woolwortb, 97; " R. VI. v. Seeger, 4 "Wis. 268. Kubl V. Mayor, &c., 23 N. J. E. 84; 3 Hamilton v. R R., 1 ]Md. Ch. 107; Can- V. Miner, 42 111.179; People v. R. R. Co. v. Potter. 42 Vt. 265. Reeder, 25 N. Y. ;^02; Knights v. * R. R. Co. v. Potter, 42 Vt. 265. Wifieu, L. R. 5 Q. B. 660; Griswold v. * Dodge v. Burues, 6 Wis. 514. Haven, 25 N. Y. 595. Corporations. 1389 owner from af terwai'ds stopping the company in the progress of their work or the running of the road.' Wliere the legal title of streets in cities is vested in the municipal corporation, and a cor- poration has been authorized by competent legal authorities to construct railroads in or upon the streets of such cities, courts cannot interfere to prevent their construction.* Where one gives a railroad verbal permission to use his land, he is estopped from bringing a suit for damages for such use as long as the permis- sion is unrevoked.' A subscriber for stock in a corporation with an unconditional charter, will not be permitted, in a suit against Inm by the corporation for the recovery of installments on his stock subscription, to inquire into and contest the validity of its charter.^ § 1242. Fraudulent misrepresentations relative to the past earnings of a railroad, the pecuniary condition of the railroad company, and the value of its stock, made by the officers or agents of such company while acting for it, in obtaining subscrip- tions to its stock, must be deemed to be made by them in the execution of their agency, and the company will be held liable therefor.^ On the same principle where the general agent of an insurance company makes false statements to a local agent in regard to tlie condition of the company, and the latter, believing such statements, repeats them to a third party, thereby inducing him to take out a policy of insurance in the company, the insured may set up the misrepresentations as a defense to an action by the company on his premium note.° A sale of property belonging to a railroad company made by the president, without authority, will be deemed ratified, if the fact that such sale had been made was communicated to the board of directors, and openly talked of at one of their meetings, or by ' McAulay v. R. R., '63 Vt. 311. Bank, 1 Md. Cli. 407; R. R. Co. v. "Milburn v. R. R., 12 Iowa, 246; Coiiybeare, 9 H. L. 725; Taylor v. R. R. Co. V. Brownsville, 45 Tex. 88. Alston, 11 M. & W. 415; Thorn v. 3 Miller V. R. R., 6 Hill, 6. Biglaud, 8 Exchq. 725; Kennedy v. * Woods V. R. R., 32 Ga. 273; R. R. Ry. Co., L. R. 2 Q. B. 580; National Co. V. Kyle. 64 N. Y. 185. &c. Co. v. Drew, 2 Macq. 103. 5 Waldo V. R. R., 14 Wis. 575; « Ins. Co. v. Humble, 100 Pa. St Booth V. Bank, 50 N. Y. 396, Stevens 495. V. R. R. Co., 1 Gray, 277; Albm v. 1390 The Law of Estoppel. long acquiescence, and they did nothing to disaffirm it.' So a satisfaction piece of a judgment in favor of a corporation, which shows upon its face that it was executed by its president in his official capacity is binding on the corporation, although not exe- cuted in the name of or under the seal of the corporation." A person who has given a note and mortgage to a raihoad company in payment for its stock, is estopped from setting up, in a suit thereon, that such transaction is a fraud upon cash paying sub- scribers. He cannot set up his own fraud to defeat his own con- tract, when the party defrauded chooses to acquiesce in it.' § ]243. A railroad company, against which a judgment for land damages has been rendered, was sold jinder a mortgage, and a new company organized. It was held that the new company entering upon the judgment creditors land, and running trains was estopped to deny his claiui and was liable on the judgment.* A carrier who contracts with a corporation to carry goods for it, cannot defend an action for daniages resulting from his negli- gence in transporting such goods, on the ground that the corpo- ration cannot lawfully acquire title in tliem.'' § 1244. A foreign corporatioTi is estopped from availing itself of the statute of limitations as a defense to an action in the courts of the states.* TV hen a foreign corporation, by its officers comes within the limits of any state it becomes subject to the Jaws of that state, and to the process of the courts; and where such a corporation by its officers is guilty of a wrong, or commits a trespass within such state, the corporation is estopped from set- ting up its existence uiider a foreign government as a means by which to escape the consequences of its illegal acts.' liy coming into a State to transact business, it comes in under the provisions of the statute, as to license ; it cannot agree to conditions as to the price of admission and after having been admitted turn around and disi)Ute theni ; it waives all question as to their validity, and by coming into the State is esto})ped from ' Bank v. Loan & T., 10 Wis. 0^ Bavington v. R. R. Co., 34 Pa. St. iel, 2 Q. B. 281; Taylor v. Hughes, 2 358; Nulton v. Clayton, 54 Iowa, 425; J. & L. 24; Bank, in re, 22 L. J. Ch. S. C, 37 Am. R. 213. 194; Bank v. Allison, L. R. 6 C. P. « R. R. v. Johnson, 30 N. H. 490, 1408 The Law of Estoppel. from denying the legality of the assessments, on the ground that all the shares are not taken,' and where a party has paid calls on shares,or attended meetings of the company as the owner of shares, this estops him from denying membership.* Testimony tending to show that a company is a corporation de facto dispenses with strict proof and estops the party offering it from afterwards disput- ing the company's right to act as a corporation. Where a party defendant pleads the general issue, it is an admission of their corporate capacity, and estops any proof to the contrarj-.' § 1259. A deed to a company describing them as a corporation, before in fact any act of incorporation has been passed, estops the grantor from claiming title against them, upon their becoming incorporated; it inures by way of estoppel, against the grantor. And no other proof of the fact of its being a corporjition is neces- sary.* Where a mortgage or other instrument is given to a cor- poration, it admits the corporate existence of the mortgagee, &c., and no further proof is necessary. So, giving a note is an admis- sion of its existence, and estops the maker from denying that there is such a corporation,^ and estops the maker from alleging that the charter was forfeited before the note was made. ' Greer v. Railway Co., 96 Pa. St. 391; S. C, 42 Am. 548. * Crawford v. Lacey, 3 Young & C. 80: R. W. Co. V. Graham, 3 E. R. C. 870; Tramway's Co. v. Willows, L. R. 8 C. B. D. 685; Hallows v. Fernic, L. R. 3 Ch. App. 467; Howards, in re. L. R. 1:J Eq. 30; Fowler, in re, L. R. 14 Eq. 316; Lime Co. v. Green, L. R. 7 C. P. 43; Sewell's Case, L. R. 3 Ch. App. 131 ; Hull, &c. Co. v. Wel- lesley, 6 H. & N. 38. 3 Roundell v. Fay, 32 Cal. 354; Couaril V. Ins. Co., 1 Peters, 450; Seaton v. R. R. Co., 55 Mo. 416; Bank V. Bagley, 68 Me. 249; Alderman v. Finley. 10 Ark. 423; Teatou v. Lynn, 5 Pet. 231; Mackenzie v. Trustees, 72 Ind. 189; Miss. &c. Co. v. Cross, 20 Ark. 443; Bank v. Curtis, 14 Conn. 437; Railsback v. Liberty, inc. Co., 2 Ind. 656; Jones v. R. R. Co., 14 Ind. 89; Hardy v. Merriweather, 14 lud. 203; Smith v. R. R. Co., 55 Mo. 526; Harrisonville v. Martinsville, &c. Co., 16 Ind. 505; Carpenter v. Bank, 17 Ind. 253; Commissioners v. Bright, 18 Ind. 93 ; Boom Co. v. Lamson, 16 ]Me. 224; Savage, &c. Co. v. Arm- strong, 17 Me. 34; School v. Fisher, 30 JNIe. 523; R. R. Co. v. Yeates, 67 Ala. 164; Ro.xbury v. Huston. 37 ]\Ie. 42: R. 1^ Co. V. Shirley, 20 Kas. 260; People V. Turnpike Co., 20 Barb. 518; Bank v. Orme, 3 Gill, 443; Oroiu v, Wedge wood, 44 Me. 49; Rlu'en v. Nagatuck, ifec. Co., 33 Pa. St. 356; Whittington v. Bank, 5 H. & J. 489; Furnace Co. v. Herkimer, 46 Ind. 142; Church V. Wood, 5 Ohio, 286; Hud son V. R. R., 53 Mo. 525. " Bryer v. Rich, 1 Met. 180; Ecker V. R. R. Co., 8 Mo. App. 223; Whit- ney V. Robinson, 53 Wis. 309; Bank V. Stumpf, 6 Mo. App. 17. * Franklin v. Twcogood, 13 Iowa, Corporations. 1409 § 1260. Indorsing a note to a bank does not admit that they are a corporation. To give it such an effect would be to make them, for judicial purposes, a corporation, though they had no existence in fact.' A party is estopped from setting up that a foreign corporation cannot, by its charter, make a loan, when he is sued for a loan made to him.'' Wl;ere a charter of a corporation is judicially declared to be forfeited, and a trustee is appointed to take charge of its assets, on a bill filed for the distribution of the assets, the trustee is estopped to deny the title of the stockholders to such distribution.* An individual stockholder cannot maintain a suit against the directors of a corporation for mismanaging its affairs, for the purpose of defrauding the corporation,* nor can he object to a transfer of all its property to another corporation, where it is done under a law passed by a state legislature.^ nor can lie, by injunction, restrain the transfer or sale.* A stockholder, standing silently by, and seeing an illegal act performed, cannot liold the directors responsible for such act. His acquiescence in it estops him.® 515; Society v. Perry, 6 N. H. 164; Jones V Bank, 8 B. Mon. 122; R. R. V. Hurst, 9 Ala. 513; John v. Bank, 2 Blackfd. 357; Bank v. Phoenix Co., 6 Hun, 71 ; Bank v. Trimble, 6 B. Mon. 599; Parish v. Wheeler, 22 N. Y. 49-1; Palmer v. Lawrence, 3 Sandf. 163; Den v. Van Houtou, 10 N. J. L. 270; Vater v. Lewis, 36 Ind. 288; Studdebaker v. Montgomery, 74 Mo. 101; Bank v. Glendon Co., 120 Mas.s. 97; R. R. Co. V. McPherson, 35 Mo. 13; Peck v. Ass. 71 Ind. 357; Stouti- more v. Clark, 70 Mo. 471; Topping V. Beckford, 4 Allen, 120; Ins. Co. v. Needles, 52 Mo. 17; Huffaker v. Bank, 12 Bush, 287; Rector v. Lovett, 1 Hall, 191; Hall v. Harris, 16 Ind. Vol. I.— 89 180; lus. Co. V. Bowman. 60 Mo. 252; Bank v. Harding, 1 Neb. 461; Ransom V. Lodge, 51 Ind. 60; St. Louis v. Shields, 62 Mo. 247; Ryan v. Val- landinghara,7 Ind. 416; Nasshau, &c. Co. V. Moore, 55 N. II. 48; Meikel v. Society, 16 Ind. 181; Snyder v. Stude- baker, 19 Ind. 463; Whitney v. Robin- son, 53 Wis. 309, ' Ilargiave v. Bank, 1 111. 84; Bank V. Van Nostrand, 106 JVlass. 559. ^ Nav. Co. V. Weed, 17 Barb. 378. 3 Bacon v. Robertson, 18 How. 480. 4 Allen V. Curtis, 26 Conn. 466. 5 Lauwan v. L. R. R., 31 Pa. St. 42. ^Hodges V. Screw Co., 3 R. I. 9; Graham v. R. R. Co., 6 Eng. L. & Eq. 132, 1410 The Law of Estoppel. CHAPTER XX. HOW AN ESTOPPEL IS TO BE :\IADE AVAILABLE— PLEADING AN ESTOPPEL;— WAIVING IT, Etc., Etc. Section 1201. Having shown what an estoppel is, liow it is created, and its operation and application to parties, privies, titles to real estate, commercial jurisprudence, corporations, &c,, it is proper now to show in what manner the estoppel, where it exists, is to be made available. There has been quite a diversity of opinion in regard to this question, and in the old English author- sities, commencing with Coke's reports to the present time, there has been a variety of decisions, and it has been the prevailing opinion that in order to make a judgment conclusive by way of an estoppel, that it must be pleaded as such. In the celebrated case of the Duchess of Kingston,' the law was laid down that a judgment between the same parties on the same point is in plead- ing a bar, in evidence conclusive ; and the law seems to be well settled, that where there is an opportunitj' of pleading it, it is conclusive as a plea, but where there is no such opportunity it is conclusive as evidence.^ Thus to a plea oilihcimm Unementum ' 20 How. State Trials; S. P. Paiuell V. Habn, 61 Cal. 131. "' Howard v. ]\Iitcliell, 14 Mass. 241; McNair v. O'Fallon, 8 Mo. 188; Sheltou V. Alcox, 11 Conn. 250 ; Isaacs V. Clark, 12 Vt. 692; Wood- liouse V. Williams, 3 Dev. 508; Trevi- baa V. Lawrence, 1 Salk. 370; Ilitchin V. Campbell. 2 W. Bla. 827; Warix-n V. Comings, 6 Cusb. 103; Wbittaker V. Jackson, 33 L. J. Exch. 181 ; Chamberlain v. Carlisle, 26 N. II. 540; JIagrathv. Hardy, 4 Bing. (N. C.),782; Vooght V. Winch, 2 B. & A GG2; Uoc V. Wright, 10 A. & E. 7G3; Doe v. Huddart, 2 C. M. & II. 316; Bell v. Raymond, 18 Conn. 240; Jackson v. Lodge, 36 Cal. 28; R. R. Co. v. How- ard, 13 How. 307; Wight v. Butler, 6 Wend. 284; Burt v. Sternbergb, 4 Cow. 5U9 ; Wiles v. Howard, 5 Exchq. 557; AVard v. Ward, 22 N. J. 699; Dows v. McMicliael, 6 Paige, 139 ; Larum v. Wilmer, 35 Iowa, 244 ; Outram v. Morcwood, 3 East, 346; Wood v. Jackson, 8 Wend. 10; Dame v. Win- gate, 12 N. H. 291; Perkins v. Walker. 19 Vt. 144; Adams v. Barnes, 17 ]\Iass. 365; Beebee v. Elliott, 4 Barb. 457; Lord v. BigeloAV, 8 Vt. 461; Flandrau v. Downey, 23 Cal. 354; Beal V. Pearre, 12 Md. 550. How Made Available. 1411 the plaintiff may reply, that the defendant ought not to be admitted to plead the plea, because, &c. (showing some ground of estoppel) ; and the defendant must answer the replication by a rejoinder; but if a party means to insist on an estoppel, he must take the first opportunity of doing so which the pleadings afford him. If he fails to do this he leaves the matter at large so that the jury may decide upon the evidence before them with- out regard to an estoppel.' § 1262. While it is also a rule that a party neglecting to plead an estoppel cannot take advantage of it, if denied the opportunity to plead it, he may give it in evidence under the general issue. Thus where A. brought trespass quare clausum against B., to which B. pleaded title in C, under whom he chiimed without showing liow C.'s title was derived, or when it accrued, it was held that A. might give in evidence an award against the title of C. without pleading it.^ If no objection is taken when the estoppel by record is offered in evidence, that it was not specially pleaded, no objection can be afterwards made to that pleading.^ A party is bound to abide by his pleadings, and is estopped from proving anything in opposition thereto. A party is not allowed to state one case in a bill or answer and make out a different one by pi'oof .* The allegata and probata must agree ; where tlie case is such that the plaintiff cannot plead an estoppel, it is conclusive as evidence. A judgment to constitute an estoppel must show that the subject mutter has been passed on and adjudicated.'* There can be no averment in pleading against the validity of a judgment, though there may be against its operation." § 12G3. The court or jnvy are equally bound by an estoppel, whether it be plead(.'d or given in evidence.' Lord Coke, in one ' FeveryUam v. Einerscn, 11 Exch. Padgley v. Stilhvell, 27 Mo. 128; Bid- 385; S. C, 33 E. L. & E. 351; Mathcw die v. Wilkins, 1 Pesters, 686; French V. Osborne, 20 E. L. & E. 238; Cooky v. Ins. Co., 5 IMcLeau. 466; Young v. V. .Braj'tou, 16 Iowa, 10. Pritcbard, 75 Mo. 513; Altbrop v. ^ Sbclton V. Alcox, 11 Conn. 250. Beckwitb, 14111. App. 628. 3 Gray v. Pingiy, 17 Vt. 409. « Flandrau v. Downey, 23 Cal. 354; ^ R. R. Co. V. McCartliy, 96 U. S. R. R. v. Howard, 13 How. 308; 267. Griffin v. Reynolds, 17 How. 609; 5 Clemens v. Murpby, 40 Mo. 121; Cecil v. Jobusou, 11 B. Mon. 35. Wight V. Walbaum, 39 111. 555 ; ' R. R. v. Howard, 18 How. 308. 1412 Estoppel. of tiie earlier cases, decided that a jury were not bound by an estoppel, becanse they liad taken an oath to decide according to the truth, but this was in the case of an estoppel by deed. But this is denied in its application to judgments recovered, for the obvious re.isons, lii'st, that juries are not sworn to say the truth, but to give a true verdict according to the evidence. An estop- pel ]iiecludes the party estopped from oifering any evidence to the contrary. And it is difficult to see in what manner the oath of a jui'or can be opposed to the rule, that a record shall prevent the party against whom it is offered in evidence from producing other evidence to controvert it, and that all the evidence being thus one waj', namely, loith the record^ the jury shall be hound to give their verdict for the party with whom all the evidence is, and against the party in whose favor there is no evidence. Second, the esto})pel b}' deed is allowed for the benefit of the paity, which he is at liberty to waive, but in the case of an estoppel by judgment, the whole community have an interest in holding the parties conclusively bound by their own litigation. Interest relpuhlicae res judioatae non resci7idl. If the law of estoppel is founded on justice and good sense, if it be true that ncr/io debet his vexaripj'o eadem causa, it would indeed be strange it' the accidental form of an issue deprived a party of the benefit ot" it, and force him to litigate tlie same question twice over. It nj^pears inconsistent that the authority of a res judicata should govern the court, when the matter is referred to them by plead- ing, but that a jury should be at liberty altogether to disregard it, when the matter is referred to them in evidence, and that the operation of so important a principle should be left to depend upon the technical forms of pleading in particular actions.' $^ 12(51. It has never, with one or two exceptions, been held, that where a decree in chancery or judgment of an inferior court, or any other matter quasi of record, is conclusive, any necessity exists of pleading it, in order that it may be held so. The obliga- tion of a jury to find a true verdict is equally as great whether tlie matter offered as conclusive, be a decree, or a judgment. The same rule prevails in regard to awards, which is applicable to judgments, while the forura of an arbitrator is a domestic one, ' Doe V. AVright, 10 A. & E. 763. How Made Available. 1413 constituted by the parties themselves. ThcA' are as much bound bj it as bj a judgment of a court of record, and, therefore, the same rule is applicable in regard to pleading them or giving them in evidence. It has, therefore, become a well established principle of law in the majority of the American states as well as in Eng- land, that a verdict and judgment upon the merits in a former suit, are, in a subsequent action between the same parties, where the cause of action, damages, or demand is identically the same, conclusive against the plaintiff's right to recover, whether pleaded in bar, or given in evidence under the general issue, where such evidence is legally admissible ; and that such prior verdict and judgment need not be pleaded by way of estoppel.' Wliere, how- ever there is perfect identity in both suits as to the plaintiff's right, the defendant's wrong, and plaintiii's damages, the I'ecord of the former suit is complete bar, whether pleaded technically as an estoppel with n prout patet per recordum, or given in evidence to the jury.* § 1265. The reason for this rule is tlius stated by Kennedy, J., in Marsh v. Pier, sujyra : "The maxim nemo debet his vexari si constet curice quod sit pro una et eadem causa, being considered as doubtless it was, established for the benefit and protection of the party, he may, therefore, waive it ; and unquestionably, so 1 Marsh v. Pier, 4 Rawle, 288t Kil- 5o0; Taylor v. Dustin, 43 N. H. 493; heffer v. Herr, 17 S. & R. 325; Shafer Chamberlain v. Carlisle, 2l) X. H. 540; V. Stonebraker, 4 G. & J. 300; Cist v. Young v. Black, 7 C ranch, 566; State Zeigler, 16 S. & R. 282; Bctts v. Starr, v. Nourse, 9 Peters, 8; McNight v. 5 Conn. 550; Preston v. Harvey, 3 H. Taylor, 1 Mo. 282; Doty v. Brown, 4 &M. 55; E.stillv. Taiil, 2 Yerg. 467; N. Y. 71; French v. Neal, 24 Pick. King V. Chase, 15 N. H. 9; Lawrence 55; Penrose v. Green, 1 Mo. 774; V. Hunt, 10 Wend. 83; Thompson v. Strong v. Ins. Co., 62 Mo. 289; Staf- Roberts, 24 How. 223; Hancock v. ford v. Clark, 2 Bing. 277; Gray v. Welsh, 1 Stark. 347; Wheately v. Man- Pingry, 17 Vt. 419; Niles v. Totman, heim, 2 Esp. 608; Slrutt v. Boving- 3 Barb. 594; Jones v. Lavender, 55 ton, 5 Esp. 66; Rex v. St. Pancras, ■ Ga. 228; Whitehurst v. Rogers, 88 Peake, 220; Bird v. Randall, 3 Burr. Md. 503; Briggs v. Bowen, 60 K Y. 1353; Offut V. Johns, 8 Mo. 120; Wal- 454; Reynolds v. Stansbury, 20 Ohio. Iter V. Chase, 53 Me. 258; Gray v. 344; Krekeler v. Ritter, 62 N. Y. 372; Gillalan, 15 HI. 453; Vallandingham Ins. Co. v. Harris, 97 U. S. 331; Cecil V. Ryan, 17 111. 25; AVarwick v. Un- v. Cecil, 19 JMd. 72. derwood, 3 Head, 238; Blodgett v. " Jones v. Lavender, 55 Ga. 228; Jordan, 6 Vt. 580; Geoige v. Gillespie, Krekeler v. Ritter, 62 K Y. 372; 1 Iowa, 421; Beall v. Pearre, 12 Md. Rucker v. Steelman, 93 Ind 222. 1414 Estoppel. far as lie is individnally concerned, there can he no rational objec- tion to his doing so. But tlien it oui^ht to be recollected that the conininnitj has also an equal interest and concern in the matter, on account of its peace and quiet, which ought not to be disturbed at the will and pleasure of every individual, in order to gratify vindictive and litigious feelings, llenee, it would seem to follow, that wherever on the trial of a cause from the state of the plead- ings in it, the record of a judgment rendered by a competent tribunal upon the merits in a former action for the same cause, between the same parties, or those claiming under them, is prop- erly given in evidence to the jury, that it ought to be considered conclusively binding on both court and jury, and to preclude all further inquiry in the cause, otherwise the rule or maxim exped'it reip\iblic(B id sit finis litium^ which is as old as the law itself, and a part of it, will be exploded and entirely disregarded. But if it be part of our law as seems to be admitted by all that it is, it appears to me, that the court and jury are clearly bound by it, and not at liberty to find against such former judgment. A con- trary doctrine subjects the public peace and quiet to the will or ueglect of individuals and prefers the gratiiicatioii of a litigious disposition on the part of suitors, to the preservation of the pub- lic tranquility and happiness. The result among other things would be, that the tribunals of the State would be l)oniid to give their time and attention to the trial of new actions, for the same causes, tried once or oftener, in former actions between the same parties or privies without any limitation, other than the will of tiie parties litigant, to the great delay and injury, if not exclusion occasionally of other causes, Avhich have never passed in rem judicatam. The effect of a judgment of a court, having jurisdic- tion over the subject-matter of controversy between the parties, even as an estoppel, is very different from an estoppel arising from the act of the party himself, in making a deed of indenture, tfec, which may, or may not be enforced at the election of the other party, because whatever the parties have done by compact, they may undo by the same means. But a judgment of a proper court, being the sentence or conclusion of the law, upon the facts contained within the record, puts an end to all further, litigation on account of the same matter and becomes the law of the case, which cannot be changed or altered, even by the consent of the How Made Atatlable. 1415 parties, and is not only l)inding npon them, but upon tlio courts and jnries, ever afterwards as long as it shall remain in force and unreversed." § 1266. ITeither a judgment inter paries, nor a deed, will operate conchisively as an estoppel, unless the matter of estoppel -appears on the record, and is met by a demurrer, noi' unless it has been expressly pleaded by way of estoppel, at least where an opportunity of so pleading it has been afforded. If a party having such an opportunity, does not avail himself of it, the court will conclusively presume that he has intended to waive all benefit derivable from the estoppel, and will leave the jury to form their own conclusions from the facts presented to them in evidence. If, indeed, no opportunity has arisen for pleading the matter of estoppel in bar, it would seem on principle, that an estoppel by record or by deed ought to be binding when offered in evidence.' But a judgment in revi is held to be conclusive if not pleaded.^ A plea of estoppel admits the cause of action, and if the estoppel fails, judgment follows in due course against the defendant.^ § 1267. "The effect of a former judgment, if such judgment is admissible in evidence, under the pleadings, cannot depend upon tlie form of the pleadings. If the judgment be a fact relied upon in avoidance of the action, it must be set forth in the answer. Such a judgment, of a peculiar nature, is a discharge in * Hannaford v. Ilunu, 2 Cut. & P. St. 345 ; NowLiu v. Gibson, 13 Ir. 148; Magrathv. ILirdy, 4Bing. (N. C.) Law R. 5; Matthew v. Osborne, 13 782; Co. Lit. 352, a. ; R. v. Hebden, Com. B. 919; Doe v. Wright, 10 A. & And. 389; Doc v. Lloyd, 5 Bing. (N. E. 703; S. C, 6 Scott, 627; Howard v. C.)657; Bradley v. Beckett, 7 M. & Gr. 3Iitche]l, 14 Mass. 242; Bartholomew 994; Ontrara v. Morewood, 3 East, v. Candee, 14 Pick. 167; Carpenter v. 364; Taylor v. Needham, 2 Taunt. Buller, 8 M. & W. 213; Potts v. 278; Smyth v. Wilson, 2 Jebb. & Sy. Nixon, 5 1. R. C. L. 45; Freeman v. 660; Harper v. Hooper, McC. Exch. Cooke, 2 Ex. R. 062; S. C, 6 Dowl. 509; Cleaton v. Chambliss, 6 Rand. &, L. 198; Howard v. Mitchell, 14 86; Adams v. Barnes, 17 Mass. 368; ]Mass. 241; R. v. Blackeraore, 3 Den. Picquet v. McKay, 2 Blackf. 405; 410; R. v. Hanghton, 1 E. & B. 512. Vooght V. Winch, 2 B. & A. 662; '^ R. v. St. Pancras, Peake N. P. C. Doe V. Hnddart, 2 C. M. & R. 816; 219; Cammell v. Sewell, 3 H. & N. S. C ., 5 Ty r. 846 ; Feversham v. Emer- 61 7. son, 11 Exch. 385; Dimes v. G. J. ^ Whittemore v. Stephens, 48 Mich. Canal Co., 9 Q. B. 469; Long v. Long, 573. 5 Watts, 103; Smith v. Elliott, 9 Pa. 1416 Estoppel. bankruptcy or insolvency. But if the judgment be an adjudica- tion between tlic same parties, and ai^jainst the plaintiff, of issues whicli tend directly to dispi'ove the allegations contained in the declaration, then it is admissible in evidence under an answer denying those allegations. A former judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action for the same cause of action, between the same parties. The parties are concluded by the judgment, not only upon all the issues which were actually tried, but upon all issues %vhich might have been tried in the former action ; so that a new action for the same cause of action, between the same parties, cannot be maintained or defended on grounds which might have been tried or determined in the former action. But when the second action between the same parties is upon a different cause of action from the first, then the judgment in the former action is conclusive only upon those issues which were actually tried and determined. What these issues were may appear from the record, or may not ; but w^hen extrinsic evidence is necessary in order to determine what issues were actually tried and deter- mined, or to determine the identity of the parties or of the sub- ject matter, such evidence must be submitted to the jury, with appropriate instructions ; and only such issues as they find by evidence to have been actually tried and determined, and on which the judgment was rendered, or such issues as by reasoning are essential to and necessarily involved in the forn)er verdict and judgment, are to be considered as conclusively determined between the parties. It may be that in the former action there were distinct defenses or distinct gi-ounds on which it might have been maintained, and that evidence was introduced and submitted to the jury on more than one issue, and that a general verdict was returned, on which judgment was entered, so that it becomes impossible to determine, in a subsequent action, either by reasoning or by evidence, what issues were actually tried and determined in the former action.'" 1 Foye V. Patch, 182 Mass. 105; 79 Ind. 93; Hartley v. Gregory, 9 Neb. Burien v. Shannon, 99 Mass. 209; 279; Hawks v. Truesdoll, 99 Mass. Benton v. Burgot, 3 B. &, C. 235; 557; Krutsinger v. Brown, ;2 Ind. Griffin v. Wallace, GG Ind. 410; Lea 46(5; Cromwell v. Sac, 94 U. S. 351; V. Len, 99 Mass. 493; Brown v. Cain, Davis v. Brown, 94 U. S. 423; Russell How Made Available. 1417 When the grounds of the judgment appear by tlie record, they must be proved by the record alone. Where the record of a case fails to show the ground upon which judgment therein was rendered, a resort may be had to the next best evidence. Oral testimony may, for that purpose, be received in support of a plea in bar or under the general issue. The fact that the form of action in the two cases is different does not affect the ques- tion/ The whola record should be produced in order that the court may be able to determine whether in the prior action the court rendering the judgment had jurisdiction, and also to enable it to construe the judgment in the light of all the proceedings on which it is founded, and to determine what the issue was.'' A part of a record or a record which does not show service or a waiver thereof is inadmissible in a subsequent suit between the same parties or their privies.' So a record of a judgment refer- red to in a finding by a court from which an appeal is taken, cannot be set up as an estoppel, where the record is not set forth and the finding is silent as to the ground of the decision.* In an action upon a promissory note, by tlie assignee, the plaintiff put in evidence a judgment recovered by him against the maker, and a summons showing the commencement of the suit which resulted in the judgment ; but omitted to introduce any other part of the record. Held, that as this did not show that the judgment introduced was upon the note in suit, the evidence was insufficient to bind the assignor.^ Where tlie party relies in defense upon an agreement under which a former action for the same cause was dismissed, settled, or released, he must raise such defense by * . . . plea, or it will not be available as a bar.^ But where upon facts v.Place,94 U.S. 606; Vooghtv. Winch, 458; Bryan v. Malloy, 90 K C. 508; 2 B. & A. 663; Outram v. Morewood, Brady v. Pryor, 64 Ga. 691. 3 East, 345; Hopkins v. Lee, 6 Wheat. ' Harryman v. Roberts, 53 Md. 64. 109; Fairmau v. Bacon, 8 Conn. 418; « Harper v. Rowe, 53 Cal. 333; Gray V. Ping-ry, 17 Vt. 419; Goodenow Donald v. McKinnon, 17 Fla. 746; V. Litchfield, 59 Iowa, 226; Davis v. Adams v. Olive, 62 Ala. 418; Avon, Talcott, 14 Barb. 611; Aiken v. Peck, «fec. Co. v. Andrews, 30 Conn. 476. 22Vt. 250; Davenport V. Barnett, 51 ^ Carrick v. Armstrong, 2 Cold, Ind. 329; Merch. &c. Lme v. Lyon, 12 265; Muller v. Rhuman, 62 Ga. 332. ., F. R. 63 ; Althrop v. Beckwith, 14 ^ U. S. v. Lane, 8 Wall. 185. III. App. 638; Young V. Pritchard, 75 ^ Miller v. Deaver, 30 Ind. 371; Me. 513; Stewart v. Beck, 90 Ind. Crandall v. Gallup, 12 Conn. 365. e Halderman v. U. S., 91 U. S. 584. 1418 Estoppel. disclosed by tlie pleadinc;s an estoppel is shown, the adversary party may take advantai>;e of such estoppel without pleading it by replication, and witliout making affirmative proof of the fact.' Nov is it important that an estoppel or bar should exist before the commencement of the action, the first judgment rendered merges the cause of action and it will be conclusive if properly pleaded.* § 1268. The estoppel of a judgment only binds parties and privies,' and does not extend to those who are strangers in person and estate, excejit in those cases where the suit, in which the judgment is rendered, partakes of the nature of a proceeding in rem. A recovery against a vendee in possession will not bind a vendor,* so a judcrment for or against a garnishee in an attach- ment issued by one creditor, cannot be pleaded as an estoppel to a subsequent attachment by another creditor of the defendant in attachment for the same debt, because the parties are different, and there is no such privity as to bring the second proceeding within the estoppel of the first. ^ So, a judgment against one co-partner, co contractor, co-obligor, will not be conclusive in a subsequent action in which another joined, because it would be unjust to bind him bj the result of a proceeding where he had no opportunity of cross-examining the witnesses or making a defense," unless the plea shows that the judgment was recovered on a ground wdiicli operated as a discharge to all.^ A pai-ty pleading an estoppel must be one who was adversely affected by ' Scott V. Luther, 44 Iowa, 570; Lee Lawrence v. Haines, 5 N. 41. 33; V. Summers, 2 Oreg. 260. Slieldou v.«Wliite, 35 Me. 253; "Wanzer 2 Morgan v. Barker, 2G Yt. G02; v. De Baum, 1 E. D. Smith, 261; Ante, ^j!j. Bennett v. West, 2 N. H. 32 : Fraser 3 Decour v. Morrison, 2 Gratt. 250; v. Council, 19 S. C. 384. Greely v. Smith, 1 3L & W. 181; Bank * Warren v. Cochran, 27 N. H. 539. V. Bahcock, 3 Uill, 152; Leland v. ^ Breading v. Siegworth, 29 Pa. St Touscy, 6 Hill, 327; Chirac v. 396; Tarns v. Bullitt, 35 Pa. St. 308, Reiuacker, 11 Wheat. 286; Alexander « Carlisle v. Chamberlain, 26 N. H. V. Walter, 8 Gill, 239; Sergent v. Sal- 540; Bank v. Bobinson, 13 Ark. 214; moud, 27 Me. 539; Cecil v. Cecil, 19 McLelland v. Ridg\va3^ 12 Ala. 482; Md. 72; Moss V. McCullough, 5 Hill, Sturges v. Beach, 1 Conn. 507; Hud- 134: Parsons v. Copeland. 33 ^le. 370; son v. Robinson, 4 M. & S. 482. Trammell v. Thummond, 17 Ark. ' Phillips v. Ward, 2 H. & C. 716. 203; Whiting v. Ins. Co., 15 Md. 297; How Made Available. 1419 tlie act wliich constitutes it. A surety, entitled by subrogation to the rights of the liolder of a note, may avail himself of an estoppel which might have been pleaded by the holder.^ § 1209. A judgment in one action to be an estoppel in another, must be averred, and when not apparent it must be proved to have been rendered on the merits, as well as for the same cause of action.^ A plea may be good whicli shows this with substantial accuracy, Mdthout being certain in every particu- lar,* and it will be enough to set forth a prior recovery between the same parties, for the recovery of the same property, without averring that the recovery was for the same conversion.^ That the former decision was on technical grounds, and did not touch tlie merits of the controversy, will be immaterial, unless the pro- ceeding was one in which they could not be heard or determined ; a party who fails to sustain his case by the proper evidence and allegations must submit to the consequence of his negligence, and cannot have relief in another suit." The same result will follow "when the failure to make a good defense arises from a mistaken impression that the matter will remain open, and may be the foundation of a subsequent suit. So, a judgment rendered on a question of law, wlien the facts are admitted by demurrer, or case stated, Avill estop a renewal of the controvei'sy on the same ground.' A defendant, relying upon the defense that the same matter was in issue and deterniined in a former suit, should set forth so much of the former proceeding as will show that the same point was then in issue and determined, and should aver that the allegations as to the title were substantially the same in the second bill as in the first.* The correctness of a judgment 1 Cuttle V. Brockway, 32 Pa. St. 45; Miss. 584; Smith v. Smith, 79 N. Y Miller v. Holman, 1 Grant Cas. 243. 634; Young v. Pritclmrd, 75 Me. 513. ^ Campbell v. Goodall, 8 111. 266. 4 Shields v. Taylor, 21 Miss. 127. 3 Gieely v. Smith, 3 W. & M. 236; ' Eversole v. Plank, 17 Ohio, 61. Taylor v. Barron, 35 N. H. 484; Drea « Gray v. Gililliau, 15 111. 454; V. Carriveau, 28 Minn. 280; Campbell Carter v. Groat, 6 Johns. 168; Jones V. Butts, 3 N. Y. 173; McKnight v. v. Screven, 8 Johns. 453. Taylor, 4 Barb. 36; Baxter v. Aubrey, '' Perkins v, Moore, 16 Ala. 9; Val- 41 Mich. 13; Hopkinson v. Shelton, landiugham v. Ilyan, 17 111. 25; Robin- 37 Ala. 306; Lockwood v. Wildman, son v. Howard, 5 Cal. 423; Birkhead 13 Ohio, 450; Heatherly v. Iladley, v. Brown, 5 Sandf. 167. 2 Oreg. 269; Goddard v. Benson, 15 « Marvin v. Hampton, 18 Fla. 131; Abb. Pr. 191 ; Johnson v. White, 21 Vance v. Olinger, 27 Cal. 358. 1420 Estoppel. cannot be impeached on the ground that the law \ras mistaken by tlie court, or tlie facts wrongly found by tlie jury, because the proper remedy is by bill of exceptions or motion for a new trial, and any injury which results from a failure to it must be imputed to the laches of the injured party, and not to the tribunal which decided against him.' § 1270. Although a judgment recovered, if for the same cause of action, and between parties substantially the same, will be admissible in evidence, yet, in order to render it conclusive as an estoppel, it should, if the opportunity presents itself, be so pleaded.' The proper requisites to a plea of judgment recovered are thus specified by Vinnins, lib. 4, tit. 13, § 5 : IIcbc autem exceptio {rei judicatce) non aliter genti obstat quam si eadem quoBstio inter easclem personas revocetur y itaqueita denimn nocet si omnia sint eadem^ idem corjnis, eadem quantitas^ idemjns, eadem causa petendi, eademque conditio personarum^ A judg- ment recovered will be admissible as evidence, not only between the same parties, if suing in the same right,* but likewise between their privies, whether in blood, law, or estate :" and a judgment will be evidence between those who, although not nominally, are ' Bakcv V. Rand, 13 Barb. 152; Waugh V. Jobnsou, ; Miles V. Knott, 12 G. & J. 442; Clark Y. Bryant, 16 Md. 172; Rogers v. Evans, 8 Ga. 143; Kelly v. Pike, 5 Cush. 484; ]\Iarsli v. Pier, 4 Rawlc, 288; Merviue v. Parker, 18 Ala. 241; Barney v. Patterson, 6 H. & J. 182; Manlon v. Iloyt, 43 ild. 254; Brown V. Isbell, 11 Ala. 109; Elliott v. Knott, 14 :Md. 121; Schley v. Mayor, 29 3Id. 34; Rogers v. Rogers, 15 B. Mou. 3G4; ChesTnut v. Marsh, 12 111. 173; Lloyd v. Barr, 11 Pa. St. 41. 2 Stroder v. Seaton, 2 Cr. M. A:R.731 ; Doe V. Wright, 10 A. & E. 763; God- dard's Case, 1 Co.432; Palmer v. Ekins, 2 Str. 817; Janes v. Landon, 1 Cro. Eliz. 36; Doe v. Welsman, 2 Exchq. 368; Wilkinson v. Kirby, 15 C. B.430; Navigjitiou Co. v. Guillou. 11 M. & TV. 877; Litchfield v. Ready, 5 Exchq. 9n9; Spcake v. Richards, Hob. 207; Fevershain v. Emerson, 11 Exchq. 385; Young V. Raincock, 7 C. B. 310; Doe V. Iluddart, 2 C. M. & R. 316; Coxv. Cannon, 4 Bing. (N. C.)453; Ashpitel v. Bryan, 3 B. ifc S. 474; Gregg V. AA'ells, 10 A. & E 90; Robinson v. Robinson, L. R. 2 P. D.75; Trevivan v. Lawrence, 1 Salk. 276; IMagrath v. Hardy. 4 Bing. (N. C.)783; Freeman v. Cooke, 2 Exchq. 654; :\Ivirray v. Murray, 6 Greg. 23; Wil- son V. Butler, 33 E. C. L. 950. 3 Ricardo v. Garcias, 12 CI. & Fin. 368; JS^elson v. Couch, 15 C. B. (N. S.) 99. * Outram v. Jlorewood, 3 East, 346; Com. Dig. Estoppel (C). * Trevivan v. Lawrence, 1 Salk. 276; ^lagrath v. Hardy, 4 Bing. (X. C.) 782; Rex V. Hebden, And. 389; Locke v. Norborne, 3 Mod. 14. How Made Available. 1421 really and substantially the same parties.^ If there be a breach of contract or wrong done, or any other cause of action, by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained so far as it can be at that stage, and it would -be useless and vex- atious to subject the defendant to another suit for the purjDose of obtaining the same result," provided the cause of action in the two suits is identical.^ Hence the legal maxim, Transit in rem judicatum, the cause of the action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged into the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action being single, cannot after- wards be divided into two. § 1271. A judgment recovered will be evidence whenever the cause of action is the same,* although the form of the second action be different from that of the first ;^ and the record, when produced, must be such as to show on its face that the cause of action in the second case may be the same as that for which the judgment was recovered in the former action." A recovery in trover will vest the property in the chattel sued for in the defendant, and will be a bar to an action for trespass in the taking ;' and '• If two jointly convert goods, and one of them 1 Kiunersley v. Orpt^, 2 Doug. 517; * Nelson v. Couch, 83 L. J. C. P. Simpson V. Pickering, 1 Cr. M. & R. 46; Williams v. Thacber, 1 B. & B. 529; Strudt v. Boviugdou, 5 Ep. 56; 514; Hopkins v. Freeman, 13 M. & Hancock v. Welsh, 1 Stark, (N. P.) C. W. 372; Guest v. Warren, 9 Exchq. 347; Ehle v. Bingham, 7 Barb. 494; 379; Dunckle v. Wiles, 5 Deuio, 303; Case V. Reeve, 14 Johns. 79; Tate v. Felter v. Beal, 1 Lord Raym. 339; Hunter, 8 Stiobh. Eq. 13(J. Slade's Case, 4 Co. 94 ; Phillips v. 2 King V. Hoare, 13 M. & W. 504; Berrymau. 1 Doug. 288. Biickland v. Johnson, 15 C. B. 163; ^ Foster v. Allanson, 2 T. R. 483 ; Hitchin v. Campbell, 3 Wils. 308; Pease v. Chaytor, 32 L. J. M. C. 121. Stewart v. Todd, n L. J. Q. B. 327. « Wadsworth v. Bentley, 23 L. R. 3 Slade's Case, 4 Co. 94; Phillips v. Q. B. 3; Ricardo v. Garcias, 12 CI. & Berryman, 3 Dougl. 228; Nelson v. F. 369; Austin v. Mills, 9 Exchq. 288; Couch, 33 L. J. C. P. 46; S. C, 15 C. Jones v. Fales. 4 Mass. 245. B. ^N. S.) 99. ' Smith v. Gibson, Cas. T. Hardw. 1422 Estoppel. receive the proceeds, you cannot, after a recovery against one in trover, have an action against the other for the same conversion, or an action for money had and received to cover the vahie of the goods, for which a judgment has already passed in the former action.' § 1272. If, however, it be doubtful whether the second action is brought j?r«9 eadem causa^ it is a proper test to consider whether the same evidence would sustain both actions,^ and what was the particular point or matter determined in the former action ; for a judgment in each species of action is final only for its own purpose and object, and qiooad the subject matter adjudi- cated upon, and no further. For instance, a judgment for the plaintiff in trespass affirms a right of possession to be, as between the plaintiff and defendant, in the plaintiff at the time of the trespass committed, but, in a subsequent ejectment between the same parties, would not be conclusive wirh respect to the general right of propert}' in the locus in^uo. Where, in an action for the stipulated price for a specific chattel, the defendant pleaded payment into court of a sum, which the plaintiffs took out in sat- isfaction of the cause of action, it was held that the defendant in that action was not thereby estopped from suing the plaintiff's for negligence in the construction of the chattel.' !Not only are the facts actually decided by an issue in any suit, but caimot be again litigated between the same parties, and are evidence between them, and that conclusive, for the purpose of terminating litiga- tion; but so likewise are the material facts alleged by one party which are directly admitted by the oj^posite party, or indirectl}' admitted by taking a traverse on some other facts, provided that the traverse thus taken be found against the part}' making it. Thus, where tlie plaintiff sued the defendant in trover for the conversion of a piano, the defendant plead in bar a judgment for 319; Buckland v. Johnson, 15 C. B. Wiat v. Essinton, 2LoidRaym, 1410; 145; Moor v. Watts, 1 Lord Raym. CI egg v. Dearden, 12 Q. B. 576; Hun- 614; Vooght V. Winch, 2 B. & A. 662; ter v. Stewart, 4 De G. F. & j: 178; Overton v. Harvey, 9 C. B. 324; Hunt Gates v. Gorham, 3 Vt. 317. V. Bates, 7 R. I. 217. ^ Rjggg ^ Burbidge, 15 M. & W. » Cooper V. Shepherd, 3 C. B. 266; 598; Mondel v. Steele, 8 M. & W. Adams v. Bougliton, Aiidr. 18. 872. 'Hadley v Green, 2 Tyr^\^ 390; How Made Available. 1423 costs recovered against himself on submission in an action of replevin for the piano, wherein the parties were reversed, and the plea was non cejpit only. The plaintiff demurs. The defend- ant contends that inasmuch as he alleged himself to be the owner of the piano in the action of replevin, and the plaintiff did not traverse the allegation, but impliedly admitted it by pleading simpl}^ non ce])it^ he cannot now claim to be the owner himself, but is estopped by the former judgment. We think the argu- ment is invalid, for the reason that the allegations so impliedly admitted did not pass into judgment, the judgment having been rendered for, and not against the plaintiff. To make the admis- sion conclusive, the judgment should have been rendered against him.' § 1270. It has been held that a former judgment, upon the some cause of action, was inadmissible, under the general issue in trespass or assumpsit.'' This is still true in regard to actions founded on a tort or trespass.' But in this country a former judgment is conclusive between the same parties in any of fhe forms of case or ejectment, without pleading it,* although it will not be conclusive unless the circumstances are such that it could not have been pleaded.* An estoppel will therefore be conclusive in evidence whenever there has been no opportunity to take advantage of it in pleading.* § 1274. And in those States where special pleading has been abolished, by usage or statute, estoppels are conclusive in evidence, although not pleaded.'' There is this distinction between case and 1 Boilean v. Rutlin, 3 Exchq. 665; v. Emerson, 11 Exchq. 385; "Woods v. Buckmaster v. Meiklejohn, 8 Exchq. Jackson, 8 Wend. 9. 634; Carler v. James, 13 M. & W. ^ Fowler v. Hill, 10 Johns. Ill; 137; Hult V. Morrell, 3 Exchq. 241; Coles v. Carter, 9 Coweu, 691; Brown Buikett V. Blanchard, 3 Exchq. 89; v. "Wilde, 12 Johns. 455. Mariauski v. Cairns, 1 ]Macq. 212; ^ Gilchrist v. Ball. 8 Watts, 355; Mayor v. Queeu, 10 Q. B. 511; Sweet Young v. Rummell, 2 Hill. 478; Miller V. Tattle. 14 N. Y. 465; Buck v. v. Manice, 6 Hill, 114; Wanu v. Mc- Rhodes, 11 Iowa, 348; Cuttle v. Biock- Nulty, 7 111. 355; Johnson v. Pate, 90 way, 32 Pa. St. 45; Holcomb v. Brick- N. C. 334. ey, 12 R. I. 255. * Young v. Black, 5 Cranch, 565; « Young V. Raincock, 7 C. B. 310; Robinson v. Town, 30 Ga. 618. Seymours Case, 10 Coke, 970; Gilbert « Sprague v. Waite, 19 Pick. 455. V. Thompson, 9 Cush. 348 ; Feversham ^ Whitney v. Clarendon, 18 Vt. 252; Clink V. Thurston, 47 Cal. 21. 1424 Estoppel. trespass tliat wliilc nn estoppel in one must be pleaded, it is con- clusive in evidence under the general issue in the other.' A former recovery for the same cause of action is an absolute bar under a general plea of non-assumpsit,* or upon the plea of nil debet,^ while it has been held, that there is no difference between the effect of a judgment, when pleaded and when given in evidence, in those actions, like trespass on the case or trespass for mesne profits, which are the creatures of the law, and therefore less subject to strict or technical rules of pleading/ It has been held that the doctrine that actions on the case or trover afforded an exception to the general rule, requiring a former judgment to be pleaded was unsound, and could not be reconciled with the English decisions.' A distinction founded merely upon the form of action, is too narrow and technical to rule a point which should be governed by general and liberal principles of policy and convenience ; and if the defendant can rely on a former judgment as a bar without pleading it in any caiee, he should have the same privilege in all. And accordingly a defendant was permitted to give a judgment in his favor in evidence under a traverse of the plaintiff's title in replevin, with the same effect as if it had been pleaded. ° In some states, under the code S3^stem, a former judgment, must, in common with all other defenses, be set forth specially in pleading.' Upon the ' Y(mng V. Rummcll, 2 Hill, 268; 372: Biirritt v. Belfy, 47 Conn. 323; Whitney v. Clarendon,' 18 Vt. 255. S. C. B Am. R. 79; Atkins v. Hudson, ■ Reynolds v. Stanbeig, 20 Ohio, 19 Ind. 392; Vooight v. Winch, 2 B. 244; King V. Chase, 15 KH. 13; Gray & A. 662; Cooley v. Braytou, 16 V. Gillilau, 15 111. 453: Finlcy v. Iowa, 10; Van Orman v. Shafford, 16 Ilambest, 30 Pa. St. 190; Carvill v. Iowa, 186; Brazil v. Isham, 12 N. Garrigiies, 5 Pa. St. 152; Ins. Co. v. Y. 9; Lyon v. Talmadge, 14 Johns. Harris, 97 U. S. 331; Niles v.Totman, 501; White v. Bank, 6 Ohio, 528; .lex 3 Barb. 594; Ridgway v. Cheqnier, 1 v. Jacob, 7 Abb. N. 9. 452; Whitte- Cranch, 87; Wann v. McNulty, 7 111. more v. Stephens, 48 Mich. 573; Bow- 055; Stafford v. Clark. 9 Moo. 724; man v. Cudworth, 31 Cal. 153; Sharos 1 C. &P. 403;2 Bing. 377. v. Minnock, 6 Neb. 377; Brady v. 3 Welsch V. Lindo, 1 Cranch, 508. Murphy, 19 Ind. 258; Clink v. Thurn- 4 Man V. Drexell, 2 Pa. St. 202. ton, 47'Cal. 21; Ulhfelder v. Levy, 9 =• Miller v. Manice, 6 Hill, 114. Mo. 607; Vance v. dinger, 27 Cal. « Marsh v. Pier, 4 Rawle, 279; 358; Inman v. .lenkins, 3 Ohio, 276; George v. Gillespie, 1 Iowa, 241. Ransom v. Stanberry, 22 Iowa, 334; ' Tanning V. Insurance Co. , 37 Ohio Hendricks v. Decker, 35 Barb. 298; St. 346; Krekeler v. Ritter, 62 N. Y. Slate v. Twaddle, 12 Nev. 17; Graham How Made Available. 1425 ground that the code furnishes an opportunity to plead the former adjudication, the object of requiring pleadings in writing is, to advise the opposite party of tlie facts constituting their respective claims and defenses. This object is defeated by allowing the record to be offered in evidence without notice by pleading, that it is relied oif, after the defendant had offered in evidence the facts constituting his defense. " The former adjudication is new ^natter, which the code practice requires should be pleaded. It is matter ex post facto, and should be specially pleaded, so that the court may, as matter of law, determine as to its effect. This was the settled rule at common law, whenever there was an opportunity to plead such former adjudication. The code having furnished that opportunity to plead it, we think the record was inadmissible as evidence." • § 1275, A plea of estoppel must be properly framed as such, especially in opening and closing, and it must set forth a claim that the plaintiff should not be admitted to make use of what the estoppel would exclude. The matter of estoppel alleged must be material and traversable, and if a judicial decision is relied on thci'efor, it must be so averred ; and tlie decision must have been in a matter coram judlce. It is based on a judicial act which it does not aver as matter of estoppel in itself, but merely intro- duces as evidence and by way of argument and as a basis for a deduction, presents an issue which is a matter of legal inference only, and not traversable.' A plea of estoppel puis darrein con- timiance, however defective in frame and substance, must be entertained if defendant rests his case entirely upon it.^ It is held, that a judgment may be given in evidence by the plaintiff, only when the defense is the general issue. When the defense is V. Gordon, 1 Chip. 115; Phillips v. Blandy v. Griffin, 3 Fish. Pat. Cas. Van Schaick, 37 Iowa, 229; Hopkins 609; Picqiiet v. McKay, 2 Blackf. 465; V. Sht'Uou, 1 Ala. 303; Piercy v. San Francisco v. Water Works, 40 Sabin, 10 Mo. 22; R. R. Co. v. Harris, Cal. 473; IMcKnight v. Taylor, I Mo. 8 Neb. 140; Gray v. Massier, 17 Vt. 282; Stewart v. IBeck, 90 Iud.45S. 419; Richards v. Hickman, 22 Ind. ' Whittemore v. Stephens, 48 Mich. 244; Wood v. Nichols, 33 La. Ann. 573. 744; Mnrray V. Murray, 6 Oreg. 20; MVhittemore v. Stephens, 48 Mich. Lockwood V. Wildman, 13 Oliio, 430; 573. Vol. I.— 90 142G Estoppel. by special plea, the matter of estoppel must be set up in a special replication,' § 1270. When the estoppel already appears from the plead- ings on cither side, it need not be set out again, formerly of record, and the proper course is to demur without going further. So, where a plaintiff declared on an instrument that contained a recital, that the defendant possessed certain shares of stock, and defendant craved oyer, and then denied possession of the stock by plea, it was held, that the estoppel was apparent on the face of the record, and might be taken advantage of at once by demurrer, without replication.* Estoppel .igainst an estoppel will set the matter at large ; so, when an issue found for the plaintiff in one action is found against him in another, neither will be conclusive, and the question will then remain open for decision. But to pro- duce this result, it nmst appear affirmatively, and not by mere argument or inference, that both adjudications were identical, or turned on the same point.^ § 1277. Judgments and decrees, as estoppels, conclude parties and privies only. The grounds on which persons standing in the relation of jprimty to the litigating party are bound by the pro- ceedings to which he was a part}-, is, that they are identified with him in interest ; and when this identity is found to exist, all alike are concluded. When, therefore, one binds and obliges that the defendant in an attachment would cause the property levied upon and replevied by the said bond to be forthcoming, to abide the final order of the court in the said suit, he connects liimself in pfivity with the proceedings therein, and makes the record of the judgment conclusive evidence against him. Whenever the mat- ter of the estoppel is apparent on the face of the record advantage may be taken thereof by demurrer." In an action on a bond, if the record in the suit on the bond shows that a recovery was had for damages, the record cannot be controverted, and a pleading in ' Hayes V. Ass., 76 Va. 225; Carroll ■•Collins v. Mitchell, 5 Fla. 364; V. Coliier. 23 Gratt. 309 ; Davis v. Trimble v. Stott, 4 Biackf. 435; Hill Thomas, 5 Leic^h, 1. v. Waterworks Co., 2 B. & A. 544; * Bifkctt V. Bradlej-, 7 :\I. & G. 994; Bowman v. Taylor, 2 A. & E. 278; ]\Iill(,'r V. Elliott, 1 Carter, 484. Beckett v. Bradlej', 7 M. & G. 994; ■"' ]Mersfrau v. Pearsall, 19 N. Y. iMcFarland v. Rogers, 1 Wis. 452. 108. How Made Available. 1427 another action which attempts to controvert it is bad on demur- rer.' If to a plea of former recovery the plaintijS reply that the causes of action are not the same, it was held that the issue was for a jury.^ The jury are to inquire under the plea of res adjudicata, whether the right asserted or the wrong complained of, is virtually or substantially identical with that involved in the first suit, and this identity is determined not by the pleadings only, but, when submitted to the jury, by parol proof.' A party who has been unsuccessful in pleading an estoppel is not after- wards precluded from confessing and avoiding or traversing the allegation of his adversary.* An answer of former recovery is bad, which merely avers that, in a former suit upon the same cause of action, the defendant by agreement recovered judgment for costs,* or that the parties are not the same as those in the second suit, if the first was decided on the merits, and not on exception to the joinder of parties.^ § 127S. In an action for trespass for breaking and entering a warehouse, and taking therefrom certain goods, the defendants pleaded that they took the goods by virtue of legal process, as the property of a third person, and that they broke into the ware- house because they were refused admittance upon demand. The plaintiffs replied that the goods were the property of A., and not of the debtor, as whose they were then taken and that they had received the goods to keep for A. The defendants rejoined, in estoppel, that A. had brougiit an action of trespass against them for taking and carrying away the. same goods, and that issue had been joined in that action upon the question of A.'s title to the goods, and that judgment had been rendered thereon in favor of the defendants. Held, on demurrer to this rejoinder, that the matter was well pleaded as an estoppel, and that the defendants were entitled to judgment.' A party cannot be estopped from pleading the general issue, nor is a party estopped from maintain- ' Sheppard v. BuUerfiold, 41 111. » Wliitehurst v. Rogers, 38 Md. 77. 508. 2 James v. Ins. Co., 6 Blackfd. 525; « Dana v. Bryant, 6 III. 104. Amsden v. R. R. Co., 32 Iowa, 288; '= Reed v. Higgins, 86 Ind. 143. Rockwell V. Langley, 19 Pa. St. 503. « Girardin v. Dean, 49 Tex. 243. ' Burton v. Wilkinson, 18 Vt. 186. 1428 Estoppel. ing :iii action, although it bo in violation of an executory agree- ment.' ^ 1279. A recovery in suit upon an agreement, wherein the right to recover depended, by the pleadings, upon the truth of the allegation made in the complaint, and denied by the answer, that the ])laintiff had fully performed the agreement, was a bar to an action brought subsequently, by the defendant in the first wiit against tlie defendant thereon, to recover damages for the alleged non -performance of the same agreement. § 1280. The record of the recovery estops the defendant from controverting that the plaintiff fully performed the contract.' Aftei' joinder of an issue of fraud in obtaining a dischai-ge, an estoppel cannot be taken advantage of against the party pleading the fraud ; it must be pleaded.^ A party is not estopped from })Ieading a just defense, because his evidence tends to prove him guilty of fraud in relation to a matter on which his defense does not lest.* When the fact which concludes the defendant from making the denial appears in the declaration, the estoppel may bo insisted on by a demurrer to the plea, by which the same mat- ter is set up as a defense.^ It is held in Indiana, that in order to I'ender a former recovery an estoppel to a subsequent suit, embracing the same matter in controversy with the first, the judgment must be sj)eeially pleaded as an estoppel. ° Where a former recovery and judgment is set up by way of estoppel, it must be on a precise point distinctly in issue.' § 1281. A party who is in laches cannot complain of the neg- lect or delay of his adversary arising from that laches." AVhere evidence is offered of facts which the party is estopped from pi'oviiig, and no objection is made, the estoppel is waived." If a 'Gibson V. Gibson, 15 Mass. 106; Liiiuson v. Tremere, 1 A. & E. 793; Fry V. Cook. 3 Ark. 343. Bowman v. Taylor, 3 A, & E. 278. •' Davis V. Talcolt, 13 N. Y. 184. •* Ficquet v. McKay, 3 Blackford, ' Sawyer v. Hoyt, 3 Tyler (Vt.) 288; 4(io; Stewart v. Peck, 90 lud. 458. Chew V. Moffatt, 6 Muaf. 120. ' Riclimond v. Hays, 3 Pa. St. 493; •> Wood V. Kirk, 38 X. H. 824. Aiken v. Peck, 23 Vt. 355; Smith v. 5 Smith V. Whittaker, 11 HI. 417; Sherwood, 4 Con u. 376. Baiu^ford v. Smith, Dyer, 196; Kemp ^ L")ansen v. Johnson, 1 Greeu, 364. V. Goodall, 1 Ld. Raymd. 1154; Pal- » Hanson v. Buckner, 4 Dana, 251 mer v. Ekins, 1 Ld. Raymd. 1554; How Made Available. 1429 party, instead of taking advantage of an estoppel by demurrer or plea, takes issue on the matter of the estoppel, the estoppel is waived/ In an action of assumpsit on a charter-party made between the defendant, described in the declaration as the owner of the ship, and S., the plaintifl:, merchant and freighter, for not taking the cargo on board, the plea was non-assumpsit. The charter-party stated that it was made by the plaintiff, as agent for the freighter, and concluded thus: "This charter-party being concluded on behalf of another party, it is agreed that all respon- sibility on the part of S. & Co. ceases as soon as the cargo is shipped." At the trial, it was proved that the plaintiff was the real freighter. Ileld^ that the plaintiff was entitled to sue as principal, notwithstanding the terras of the charter-party.^ A., the mother and guardian of certain minors, in that capacity released certain real estate, belonging to them, to B. When one of the minors came of age, he sued the administrator of B. in assumpsit for use and occupation, and it was held that, as there was no privity between the minors and B., they could not main- tain tlieir action. In an action of trespass by the minors against B., it was held that B. was estopped by his plea in the former case from claiming a privity of contract, and he was adjudged a wrongdoer.^ § 1282. It has become a settled practice, in declaring in an action upon a judgment, not, as formerly, to set out in the decla- ration the whole record of the proceedings in the original snit, but only to allege generally, that the plaintiff, by the consideration and judgment of that court, recovered the sum mentioned therein, the original cause of judgment 'having passed in rem judicatum. Technical estoppels must be pleaded with great strictness, but when a former judgment is set up in bar of a pending action, or as having determined the entire merits of the controversy involved in the second suit, it is not requisite that it should be pleaded with any greater strictness than any other plea in bar, or any plea in avoidance of the matters alleged in the antecedent pleading. Reasonable certainty is all that is required in such a case, whether ' Burdit V. Burdit, 2 A. K. Marsh. 2 Schmalz v. Avery, 3 E. L. & E. 143; Keel v. Ogden, 3 Dana, 43; Chew 391; S. C, 16 Q. B. 655. V. Moffatt, 6 Munf. 120; Brinsmaid » piardy v. Williams, 11 Ired. 499. v. Mayo, 9 Vt. 31. 14B0 Estoppel. the test is applied to the declaration, plea, or replication, as the party whose ])leadinf>; is drawn in qnestion cannot anticipate what tlie response will be when he frames his pleadings.' A judgment is not a written instrument within the meaning of the statute requiring copies of written instruments which are the foundation of an action or defense to be set out.* An allegation that the causes of action in the two suits were identical is sufficiejit, with- out explicitly describing them.' It is a general rule of pleading that matter, which should come more properly from the other side, need not be' stated. In other words, it is enough for each party to make out his own case or defense. He suflBciently sub- stantiates the charge or answer for the purpose of pleading, if his pleading establish a jprima facie charge or answer. He is not bound to anticipate, and, therefore, is not compelled to notice and remove in his declaration or plea every possible exception, answer, or objection, which may exist, and with which the adversary may intend to oppose him. It is usual to allege that the judgment still remains in full force and effect, and that the plaintiff has not obtained execution or satisfaction thereof ; but this allegation is unnecessary. A party in pleading a judgment is not bound to allege, in addition to the statement of its recovery or rendition, that it still remains in full force, etc., because when rendered it is presumed to remain in force until the contrary appears. Presumptions of law need not be stated. If a judg- ment pleaded has been set aside or reversed, or has been rendered by a court without jurisdiction, the other party can avail himself of the fact in response to the party pleading the judgment.* J Gray V. Pingry, 17 Vt. 419; Per- 27 Miss. 744; Wyant v. Wyant, 38 kins V. Walker, 19 Vt. 144; Shelly v. lud. 48. Blake v. Burley, 9 Iowa, 592; Wright, Willes, 9; Mass. v. Shannon, Biddle v. Wilkins, 1 Pet. 692; Rey- 1 Ililt. 175; Aurora v. West, 7 Wall. nolds v. Fentou, 8 C. B. 187; Smith 821. Blake v. Burley. 9 Iowa, 592. v. Nicholls, 5 Bing. (N. C.) 208; Tal- ■^ Lytle V. Lylle, 37 liid. 281 ; Camp- madge v. Chappel, IG Mass. 71 ; Mil- bell V. Cross, 39 Ind. 155; Wyant v. ler v. White, 57 Barb. 504; Caldwell Wyant, 38 Ind. 48. v. Bichards, 2 Bibb, 331; Williams v. 3 Wythe V. Salem, 4 Sawyer, 88; Preston, 3 J. J. ]Marsh. 600; Robert- Perkins V. Moore, 16 Ala. 17. sou v. Struth, 5 Q. B. 941; Burnes v. " Murphy v. Orr, 32 111. 489: Rog- Simpson, 9 Kas. 663; Downer v. ers V. Odell, 39 N. H. 452; Campbell Dana, 22 Vt. 337; Butcher v. Bank, V. Cross, 39 Ind. 155 ; Bissell v.Whee- 2 Kas. 70; Spaulding v. Baldwin, 31 lock, 11 Cush. 277; Stephens v. Roby, Ind. 376; Pennington v. Gibson, 16 How Made Available. 1431 Objections that the court, in whicli the judgment is rendered, liad not jurisdiction over the subject matter of the suit, or that the judgment upon which suit is brought is absolutely void, may be pleaded in bar, or may, in some cases, be given in evidence, under the general issue, in an action brought upon the judgment. But the general rule is that there can be no averment in pleading against the validity of a record, though there may be against its operation ; and it is upon this ground that no matter of defense can be pleaded in such case which existed anterior to the judg- ment.' In the trial of a cause, it is competent for either party to prove, by parol testimony, that the precise question in dispute was decided in a previous action between the same parties, and thus create an estoppel." § 1283. It is necessary to plead a judgment of a limited juris- diction ; it is held that it cannot be pleaded in bar, or proved as an estoppel, while it is pending on appeal.' But where the only ground alleged for annulling said judgment be error of decision upon the issues involved, the decision upon those issues by a competent court, operates as a conclusive estoppel between the parties before the court as long as it remains unreversed.* § 128i. The mode in which this class of estoppels is made available may be illustrated by reference to the following cases : In an action to recover damage for breach of an alleged contract for the sale of real estate, the defendant pleaded that in an action brought by him against the plaintiflE and others to quiet his title to the land in question, the said plaintiff, for an equitable defense,, set up the contract in question and prayed for a specific perform- ance, and that judgment was rendered against him ; and the court found accordingly. Held, the judgment rendered in the former case is, as a plea, a bar, and, as evidence, conclusive in How. G5; Holmes v. Campbell, 12 ^ Keys v. Grannis, 3 Nev. 54S. Minn. £21; Lathrop v. Stuart, 9 Mc- ■* Heroman v. Institution. 34 La. Lean, 1G7; Reid v. Boyd, 13 Tex. Ann. 805; Bond v. White, 24 Kas. 45; 241; WLeeler v. Raymond, 8 Cow. Haygood v. McKoon, 49 Mo. 79; 341; Diblee V. Davidson, 25 111.486; Parker v. Wright, 62 Ind. 398; Walker Cowen V. Braidwood, 9 Dowl. 27. v. Chase, 53 Me. 258; Stewart v. Steb ' Biddle v. Wilkins, 1 Peters, 686; bins, 30 Miss. 6G; Kingsland V Ricardo v. Garcias, 12 CI. & F. 368. Spaulding, 3 Barb. 341. 2 Rogers v. Libbey, 35 Me. 200. 1432 Estoppel. tliis action against the plaintifT.' So, an answer of res adjudicata averring tliat in a fui'mer action, giving time and place, between tlio identical parties to this suit, in a court liaving jurisdiction of the persons and subject matter of tlie action, the identical claims of " the said defendant P. against the defendant R. were tried and determined, and all matters of difference fully tried and adjudicated, and judgment rendered thereon in favor of this defendant in the sum," etc., sufficiently shows that the same matter had been theretofore adjudicated and is good on demurrer." Where the defendant pleaded res adjudicata, and the plaintiff, in order to avoid the effect of the plea, insisted that the facts relied upon by him for recovery were not sufficiently pleaded, and, therefore, were not admissible in defense of the former suit, but it appeared that that question was raised in that suit and was decided in favor of the admission of the evidence, and it was admitted. Held, that the plaintiff could not raise it again.' In an action brought by an administrator de honis non, a plea of lie unques admhiistrator, denied the validity of the grant of administration to plaintiff, on the ground that there was no vacancy in the administration at the time his letters were granted; to which it was specially replied, that a former action by the administrator in chief, founded on the same cause of action was defeated by a plea in abatement, which averred the removal of said administrator after the commencement of that suit, "after due and legal proceedings had in the premises," and that letters of administration de honis non were granted to plaintiff after the rendition of the judgment in that case ; the replication was held good and sufficient, since the plea and judg- ment in the former action estopped the defendant from making that defense* In an action which has been once litigated, a plea averring that the plaintiff ought not to be permitted to implead the defendant, because, after the accrual of the plaintiff's cause of action, the plaintiff commenced a suit in chancery, and im- pleaded the defendant for the very same rights, claims, and cause of action as in the declaration alleged, and that such proceedings were thereupon had in said suit ; that before the commencement 1 PiU-nell V. Habn, 61 Cal. 131. s Chouteau v. Gibson. 76 3Io. 38. 5 Kyuearson v. Parkhurst, 88 Ind. ■> Hills v. Huckabee, 70 Ala. 183. 564. How Made Available. 1433 of the present suit, the court of chancery determined said cause of action in favor of the defendant, — and gave judgment — and decreed in i-espect thereof in favor of the defendant ; and that tlie said judgment and decree still remain in force, — is good on demurrer.' A replication averring that the court of chancery, in dismissing the plaintiff's bill, reserved to him the right of proceeding at law, is also good upon demurrer. Where a decree in equity is relied upon as res adjudicata, and is pleaded in bar in a subsequent suit, it must be shown that the decree was made upon the same subject matter and for the same purpose, and that the parties in the character in which they are litigants, are identical. For the purpose of ascertaining the point in con- troversy in a former suit and what the court really intended to settle by its decree, not only the record, but, if necessary, the opinion, as reported in the officially published report of the case, will be examined.^ § 1285. This doctrine at law gives rise to a kind of pleading that is neither by way of traverse, nor confession or avoidance, viz. : a pleading, that waiving any question of fact, relies merely on the estoppel and after stating the previous act, allegation or denial, of the opposite party, prays judgment if he shall be received or admitted to aver contrary to what he before said or did. This is a pleading by way of an estoppel. In order take advantage erf the latitude thus given, and bring the estoppel of a judicial decision to bear on a point which it does not directly adjudge, requires the utmost certainty of allegation and proof. The proper course is to plead the judgment specially, fortifying it with the averments necessary to supply the vagueness of the record, and show that the precise question which is again agita- ted has been already determined. No estoppel will arise, unless this is made out with a clearness that leaves nothing to intend- ment or inference.^ A plea to an action of trover for a slave, that » Langmead v. Maple, 18 C. B. (N. ^ Tams v. Lewis, 43 Pa. St. 40 S.) 255. Davidson v. Shipman, 6 Ala. 27 '^ Strong V. Grant, 2 Mackey, 218; Packet Co. v. Sickles, 24 How. 333 Ry. Co. V. New Orleans, 14 F. R. 378; Jarrett v. Jobson, 11 G. & J. 173 Plicque v. Ferrett, 19 La. Ann. 318; Cecil v. Cecil, 19 Md. 172; Chamber- Kcane v. Fisher, 10 La. Ann. 261; lain v. Gaillard, 26 Ala. 54; Lawrence Ante, p. 470, note 3. v. Hunt, 10 Wend. 80; McKnight v. 1434 Estoppel. tlio defendant had sued for liis lure in a former action, in which the riglit of ownership or title was in issue, and obtained judg- ment, will consequently be bad on demurrer, because a man who hires a chattel from another, cannot dispute the title of his bailor, and the judgment may have been based upon the peculiar relation that the parties then held, and decided nothing further. When a record is presumptive in favor of the estoppel, less certainty will be required. So a general verdict. The determination of a contro- verted point in one action \& prima fctcie evidence in ever}' other in which the same matter is in controversy, although there can be no estoppel unless the issue was specially raised in the plead- ing and determined hy the verdict} When sufficient evidence is adduced to satisfy the jury that the cause was heard and decided at the trial, they will be bound by the verdict and'cannot return their own in any other way.' § 1:386. The burden of proof is on those who rely on the estoppel, and they must show that the matter for Avhicli the plaintiff sues has been already heard and determined.' When, however, it is made to appear that a transaction lias undergone a judicial investigation, the presumption will be irresistible that the judgment covered the whole, so far as it was entire and indivis- ible and cannot be overcome by the clearest proof that no evi- dence was given as to part by the plaintiff, or that the defendant failed to take advantage of a defense that might have been made availal)le. A judgment for the plaintiff in an action of replevin, will be equally conclusive in his favor against the defendant, whether the latter traversed the averment in the declaration that the goods were the plaintiffs, or confined himself to a denial of the taking and detention. In like manner, a recovery on the contract will preclude him from suing for any breach or default on the Dunlap. 4 Barb. 36; Jackson V. "Wood, Langdon. 3 Gray, 513; Richard v. 3 Wend. 27; Rich v. Hotcbkiss, 16 Boston, 19 How. 263; Cabot v. Arnold, Conn. 409; Lajoye v. Premin, 3 Mo. 12 Met. 136. 529; Crundall v. Galhip, 12 Conn. 365. ^ Sawyer v. Woodbury, 7 Gray, 499; ' Standish v. Parker, 2 Pick. 20; Jeiinison v. Springfield, 13 Gray, 544; Parker v. Standish, 3 Pick. 288; Burlen v. Shannon, 14 Gray, 433. Arnold v. Arnold, 17 Pick. 7; Button '^ Cummings v. Colgrove, 25 Pa. St. V. Woodman, 9 Cush. 255; Gilbert v. 50; Bennett v. Holmes, 1 D. & B. Thompson, 9 Cush. 348; Burlen v. 486. Shuinion, 3 Gray, 387; McDonald v. How Made Available. 1435 part of the plaintiff that would have constituted a bar as distin- guished from a defense, by way of set-off or recoupment to the action. For when an act or contract is entire, and might be dis- posed of in one suit, the law will not suffer it to be divided or made the subject of distinct proceedings, and hence a defendant who suffers judgment to go against him for the price of machin- ery manufactured by the plaintiff cannot subsequently recover damages for an alleged want of care or skill in the workmen by whom the machinery was made. § 1287. Nil debet cannot be pleaded to an action of debt on a judgment where the court rendering the judgment had jurisdic- tion.' A debt cannot be denied without denying the instrument on which it is founded. Hence a plea of nil debet is a bad plea in an action founded on a judgment. If it is desired to attack the judgment, the plea should be nul tiel record."^ Under the plea of mil tiel record the existence of the judgrnent sued on is denied, and, being thus denied, its existence can be determined alone by an inspection of the record itself; and, if such inspec- tion shows an omission in the record of any essential feature, it is fatally defective, and no testimony dehors the record can supply the omission or cure the defect.^ To scire facias on a judgment nil d^ehet cannot be pleaded. The proper plea is mil tiel record, which puts in issue the fact whether notics to the defendant of the pendency of the suit was given. ^ Where it appears from the record of a foreign judgment that process was served on the defendant, or that he appeared in the suit, the fact cannot be denied by plea. But the plea may show in what manner, whether by personal service or by attachment, notice was given, as this does not contradict the record, but limits its operation.^ § 1288. Facts, in opposition to the record of a judgment ' French v. Ins. Co , 5 McLean, "Wilbur v. Ab])ott, 59 N. H. 133. 461; Reed v. Ross, 1 Baldw. 36; ^ C\2,x^ v. Melton, 19 8. C. 498; Hampton v. McConnell, 3 Wheat. Wright v. Fletcher, 12 Vt. 431; Bar- 333; Benton v. Burgott, 10 S. & R. mud v. Flandeis, 13 Vt. 657. 240; Ind. & Co. v. Risley, 50 Ind. 60; * Bergerv. Williams, 4 McLean, 125. Lawrence v. Jarvis, 73 111. 304; Boston, ^ Lincoln v. Tower, 2 McLean, 473; &c. V. Hoit, 14 Vt. 92. Thompson v. Emmert, 4 McLean, 9(); * Armstrong v. Carson, 2 Dall. 302; United Stales v. Little, 3 Cranch C. Manf'g Co. V. Ins. Co., 2 Paine, 501; Ct, 351. 143G Estoppel. obtained in one State, cannot be alleged to contradict the jndg- Hient, in an action brought upon it, in another State. A judg- ment in one State is conclusive between the parties in another State.' The pleadings in an action are governed by the dignity ol" the instrument on which it is founded. If it is a record con- clusive between the parties, it cannot be denied but by plea of nul tiel record. And when Congress, by the act of May 26, 1788, gave the effect of a record to the authenticated copy of the judi- cial proceedings of one State, in another, it gave all the collateral consequences, among which are that, if conclusive between the parties, it cannot be denied only by that plea.^ The only avail- able defense to judgments of other States is that of jurisdiction over the person or subject matter. Every fact which would go to show want of jurisdiction must be clearly and positively alleged.' § 1289. A plea of judgment recovered in a foreign court of competent jurisdiction must show that the judgment so recovered is linal and conclusive between the parties, according to tlic law of the plnce where such judgment is pronounced.* But such judgment cannot be conclusive where the proceedings are so defectively set out that the point which is sought to be estab- lished by it does not clearly appear to be decided.^ § 1290. The discharge of a debtor under an act of bankruptcy is no estoppel to an action in any stage, unless it is pleaded." Where the matter on which an estoppel arises has not appeared in the preceding pleadings, it is unnecessary to plead it specially.'' ' Piolds V. Gibbs, 1 Pet. C. Ct. 155; * Frays v. Worms, 10 C. B. (N. S.) Todd V. Crump, 5 McLean, 173. 149; Plummer v. Woodburne, 4 B. & * Mills V. Duryee, 7 Crauch, 481; C. 625; Douglass v. Forrest. 6 Blng. Hampton v. McConnoll, 3 Wlieat. 334. Gb6; Smith v. Nichols, 5 Bing. (N. C.) 3 Thompson v. Whitman, 18 Wall. 223; Behrens v. Sieveking, 3 M. & G. 457; Shumway v. Stillman, 4 Cowcn, G03. 2!)3; Starbiick V. ]Murray.5Weud. 148; M:)biciui v. Bligh. 8 Bing. 351; Mills V. Duryee. 7 Crauch, 481; Davis Sadler v. Robbius, 1 Camp. 253; Cal- V. Lane, 3 Ind. 548; Andrews v. louder v. Diltrich, 4 M. &. G. 83. Montgomery, 19 Johns. 162;Evausv. * Palmer v. Hutchias, 1 Cow. 43; Tatem, 9 S. & R. 353; Moulin v. Ins. Baker v. Taylor, 1 Cow. 1G5; Cornell Co. ,34 N. J. L. 323; Foster v. Glazener, v. Dakin, 38 N. Y. 253. 27 Ala. 391; Latterett v. Cook, 1 Iowa, ' Howard v. Mitchell, 14 Mass. 341; 1; See Ante Ch. VII., Judgments of Adams v. Barnes, 17 Mass. 365. other states for additional authorities. How Made Available. 1437 In a plea of estoppel, everj fact necessary to create the estoppel must be directly and precisely proved, and nothing is to be taken by inference. Thus, where a former decree in chancery on a bill brought by A., as administrator of the estate of B., was pleaded as an estoppel, and it appeared from the plea that A. claimed to be administrator, and as such brought his bill, and described him- self as such throughout, but there was no direct averment that A. was in fact administrator, it was held that the plea was, for such cause, insufficient.' A party is not estopped by every aver- ment made by the other side which he does not deny, but only by averment of facts material and traversable, alleged directly and precisely, and not by way of argument, inference or recital. Thus, where to an action of the sheriff against a surety on his deputy's official bond, the surety pleaded that on a certain day notice was given to the sheriff, by another surety, that he would no longer be responsible for the official conduct of the deputy, who became insolvent, and that the sheriff still carelessly and fraudulently continued him in office, and that all his defaults happened after such notice ; to which the sheriff replied by alleging a breach previous to the notice, without denying or pro- testing against the other facts alleged, and had judgment upon a general demurrer to the replication; it was held, in a scire facias for further execution, that the facts so stated in the plea, and not denied, did not constitute an estoppel, the fraud not being directly alleged, nor necessarily deducible from the other facts in the plea.^ § 1291. An estoppel by deed is to be made available in the same manner as the estoppel of a judgment of a court of record. It must be pleaded, if there is an opportunity, otherwise the party omitting to ])lead it waives the estoppel, and the jury must find according to the truth. ^ Thus, where a grantor denies title 'Crandall v. Gallup, 12 Conu. 373. 295; Carpenter v. Buller, 8 M. & W. ''■ Adams v. Moore, 7 Me. 86. 213; Freeman v. Cooke, 2 Exchq. ^ Trevivan, v. Lawrence, Salkeld, 663; Vooght v. Winch, 3 B. »& A. 662; 276; Young V. Raiucock, 7 C. B. 310; Hooper v. Hooper, M. C. C. *fc Y. Magrathv. Hanly, 4Bing. (N. C.)782; 509; Whittaker v. Jackson, 1 H. & Davenant v. Rafter, 2 Ld. Raymd. C. 936; Wilson v. Butler, 4 Bing. (N. 1054; AVilkins v. Wingate, 6 T. R. C.) 748; Brinsmaid v. Mayo, 9 Vt. 62; Bowman v. Rostron, 2 A. & E. 31. 1438 Estoppel. at the time of the execution of the deed, and the assignee of the grantee takes issue on that point, the assignee waives liis right to object that the grantor is estopped by his deed from denying seizin, and the jury may find the trutii.' If his adversary does not rely upon tlie estoppel, the court and jxny are not bound by it, but the jury may find tlie matter at lai'ge according to the fact, and the court will give judgment accordingly. He asks them their opinion, and they are bound to give it. Where, however, the title of the party is by estoppel, and he has no oppoitunity of pleading it, the jury cannot find against the estoppel. Thus, in debt for rent or an indenture of lease, if the defendant plead nil debet, he cannot give in evidence that the plaintili had nothing in the tenements, because if he had pleaded that specially, the plaintiff might have replied the indenture, and estopped him ; but if the defendant plead ivihil hahuit, &c., and the plaintiff, instead of relying up the estoppel, reply habuit, &c., he waives the estoppel, and leaves the matter at large ; he puts the fact in issue, and the jury are to find the truth, notwithstanding the indenture." But when an estoppel creates an interest in lands, the court will adjudge accordingly upon the facts found by the jury. As, if A. lease land, in which he has no interest, to B. for six years, and then purchase a lease of the same lands for twenty- one years, and afterwards lease to C for ten years, and these facts are found by verdict, the court will adjudge the lease in B. to be good, though it was so only by the conclusion.' If a plaint- iff in ejectmcMt make title by a judgment, in a scire facias, on a judgment in Trinity Term, when the judgment was in fact of Michaelmas Term, the juiy cannot find that the original judgment was of Michaelmas Term.* So, in trespass for mesne profits, if the defendant pleads that the plaintiff Avas not possessed, the judgment in ejectment may be replied by way of estoppel, and will be conclusive." If the plaintiff neglects so to repl}', and joins issue on the plea, the judgment will not be conclusive." ' Bartholomew v. Candee, 14 Pick. 783. 167. 5 Doe V. Wright, 10 A. & E. 763; « Com. Dig. Estoppel, C. ; ib. Wilkinson v. Kirby, 15 C. B. 430. Pleader, S. 5; BuUer's N. P. 298. « Dee v. Hi;ddart, 2 C. M. &, R. 316; * Com. Dig. Estoppel E. 10. Feveisham v. Emerson, 11 Exchq. ♦ Trevivan v. Lawrence, Salk. 276; 385; Mathew v. Osborne, 13 C. B. Magrath v. Hardy, 4 Bing. (N. C.) 919. How Made Available. 1439 § 1292. If a woman sue or be sued as sole^ and judgment be against her as such, though she was covert^ the sheriff shall take advantage of the estoppel.' In other cases, where the party who might have relied on the estoppel in pleading waives it, and gives the deed in evidence, although the jury are not bound by the estoppel from finding according to the truth of the fact, yet it seems that they would not be warranted in finding a verdict contrary to the solemn admission of the part}', without the strongest evidence of fraud. As, for instance, before the rules of Hilary Term, 1834, in an action of assurrvpsit, where the defendant pleaded the general issue, and gave in evidence a release which he might have relied upon as an estoppel ; although he waived the estoppel, still the release was considered to be conclusive evidence for the defend- ant, in the absence of fraud. Though one mortgaging a water privilege with general warranty is estopped by the deed to deny the mortgagee's title, yet if it be agreed in a case stated that nothing passed by the deed, the estoppel is removed. § 1293. An estoppel effecting the title to land may be given in evidence.* But only a sealed instrument can be pleaded by way of an estoppel.^ And if is not so pleaded it will be con- sidered as waived.* But Avhere a writing is introduced as evi- dence the other party may avail himself of it as an estoppel.^ No instrument in writing not under seal can be pleaded as an estoppel. The manner of pleading an estoppel, is to relj' on the deed as an estoppel, and pray judgment that the party be estop- ped, or not admitted to deny the facts which the deed purports, without demanding judgment, si actio, etc., etc.^ There are cases in which the defendant is not permitted to controvert the title of the claimant in an action of ejectment on the ground of estoppel, or where a privity exists between the defendant and the plaintiff, or those from whom he derives title. If a privity in estate has subsisted between the parties, proof of title is ordinarily unnecessary on the part oi the plaintiff, for the reason that a party is not permitted to dispute the title of him ' Wheelock v. Henshaw, 19 Pick. * Brinsmaid v. Mayor, 9 Vt. 31. 341. 6 Hall V. liann, 5 Dana, 55. - Adams v. Barnes, 17 Mass. 365. ^ Davis v. Tyler, 12 Johns. 490. •' Davis V. Tyler, 12 Jalins. 490. 1440 Estoppel. by whom he has been lot into possession. In all these cases, therefore, the proof is directed to the question as to whether snch relation exists between the parties as to operate as an estop- pel, and thereby supersedes the necessity of inti'oducing any evi- dence to establish the title of the claimant. The principle of estoppel arises where the action is between mortgagee, mort- gagor, their privies or assigns. A landlord who brings an action against a tenant, is in no case obliged to prove his title to the demised premises, for the landlord's title is admitted by a tenant who takes a lease from him, and on the faith of the lease occupied the premises. And where rent has been paid to a tenant for life, the same rule applies, and he will not be permitted to dispute the title of the reversioner. In these cases, the plaintiff is not required to make proof of his title.' No third title can be pur- chased by an agent or a tenant, and made use of to defeat that of the landlord. If the tenant, after renting the premises^ acquired rights adverse to his landlord, he is bound to surrender the pro])ei-ty before he can be permitted to assert them." § 1294. He who claims title by estopjDel is, as to those estop- ped, in the constructive possession of the land, and may main- tain trespass.^ Where a party claims to establish his right merely by estoppel, the instrument by which the estoppel is sup- ported should be precise, clear and unequivocal, not depending upon doubtful inference. In a real action a disclaimer estops the tenant denying the title set forth in the demandant's writ,^ but he n)ay show that the lessor's title has expired. And if he is evicted and deprived of the use and enjoyment of the demised premises by some person claiming by title i)aramonnt, the evic- tion is pleadable in bar to the demand for the rent. Where the matter which constitutes an estoppel is set up in the declaration, the plaintiff" may demur to a plea which attempts to set up the same matter as a defense. ]3ut if such matter does not appear on the face of a declaration, the plaintiff must, by a replication, expressly show such matter, and rely thereon." An estoppel ' Doc V. Wbitioe, D. & R. N. C. P. ^ piielps v. Blount, 2 Dev. 177. 1; Kenuie V. Robertson, 1 Bing. 147; * Prescott v. Hutchinson, Vd Mass. Tilgbman v. Little, 13 111. 23t). 439. » Brown v. Keller, 33 111. 151; Rus- ^ Smith v. Wbittuker, 11 111. 417. sell V. Titus, 3 Grant's Cas. 295. How Made Available. 1441 cannot be taken by inference, but must be relied on in the pleadings.' If tbe matter is not expressly and precisely alleged, it will be no estoppel.* Where a party relying on a matter in estoppel lias no opportunity of pleading it as a landlord relying on his lease in ejectment, he may give it in evidence with the same effect as if pleaded.^ § 1295. AYhenever the application of the doctrine of estoppel would be likely to defeat the principle upon which it rests, to effect justice and prevent wrong, it becomes the duty of the courts to prevent its application. But to be available where there is more than one party, they must be mutual, and can only operate upon the parties to the issue and those who stand in privity of estate or descent, and one who is not bound by cannot take advantage of an estoppel ; an estoppel must be reciprocal and certain to every intent binding both parties; a defendant in an action of covenant is estopped from pleading that the contract was entered into for any fraudulent purpose against the govern- ment,* a jury is bound by an estoppel, and a court will disregard a finding contrary tliereto, except where the party has waived his rights by mispleading.^ In debt on bond, the defendant pleaded that the same was obtained by false suggestions and misrepre- sentations by the plaintiff, " as per preamble in the said bond."* The plaintiff joined issue as to that fact, which was found against liim by the jury. Held, that the plaintiii", by joining issue and not demurring, had waived any estoppel which he might have had to such plea.' § 129G. In regard to estoppels in 2)ais or equitable estoppels, there is a remarkable difference between this and other kinds of estoppels, that is, that estoppels in ^^(/m^ may be relied on in evi- dence as conclusive without being specially pleaded, and from some of the reported English cases it seems that it is optional either to plead specifically the facts out of which the estoppel • Lansing v. Montgomery, 2 Johns. ■* Pbilpots v, Pbilpots, 1 E. L. & E. 383. 339. '^ Guild V. Richardson. 6 Pick. 3G4; '" Bufferh)w v. Newsom, 1 Dev. Crandall v. Gallup, 13 Conn. 365. 208. '^ Lord V. Bigelow, 8 Vt. 445; Shel- « Wright v. Hazen, 34 Vt. 143; Ghew ton V. Alcox, 11 Conn. 250. v. Moffet, 6 Munf. 120. ' Black V. Tucker, 13 Vt. 44. Vol. L— 91 1442 Estoppel. arises, or to allege and deny, as the case may be, that which those facts conclude the opposite party from denying or alleging, and .'ely at tlie trial upon the matter in jmis which creates the estop- pel, as being conclusive evidence of such allegation or denial. A party setting up an equitable estoppel, or m j>ais, is himself bound to the exercise of good faith and due diligence to ascertain the truth. What is reasonable diligence, is a question of fact for the jury, under all the circumstances of the case. They might sometimes find that the party setting up such estoppel could reasonably rel}'' on the representations made to him, without injury.' The facts constituting an estoppel in j>a{s against a plaintiff, must l)e set out in the answer, otherwise proof of them is n(>t admissible.'' They must be sufficiently pleaded to warrant the court in granting a decree which will estop the further prose- cution of the action.^ § 1297. The origin of this branch of estoppels being purely equitable, the remedy in such cases were in an application to chancery, and no redress could be obtained at law unless under rare and exceptional circumstances.* But the common law has been enlarged and enriched with the principles and maxims of equity which are constantly applied at the present time, both in England and America, for the relief of sureties, the protection of mortgagors, and benefit of purchasers, by a wise adaptation of ancient forms to the more liberal spirit of modern times. § 1298. The application of equitable estoppels by courts of equity is to every species of property, and there can certainly be no reason for restricting its operation by coui'ts of law, the neces- sity of protection against fraud, no matter what the interests are • Moore v. Bowman, 47 N. 11. 494; Smith, 24 Cal. 124; Bray v. Marshall, Odliu V. Gove, 41 N. H. 65. 75 Mo. 327; Noble v. Blount, 77 Mo. ' Gill V. Rice, 13 Wis. 885; Wood 235; Blum v. Robertson, 24 Cal. 14«; V. Ostiain, 29 Ind. 177; Bray v. :\Iar- Meador v. Parsons, 19 Cal. 294; Car- shall, 75 Mo. 327; Tailman v. Varick, penter v. Oakland, 30 Cal. 597; 5 Barb. 277; i\Iaxwell v. Longnecker, Lcstrath v. Barth, 19 Cal. 660; Pattcr- 89 111. 102. son v. Ely, 19 Cal. 28 ; Estrade v. 3 Gaylord v. Van Loan, 15 Wend. ]\Iurphy, 19 Cal. 248; Clark v. liuber, 308; People V. Turnpike Co., 23 Wend. 25 Cal. 593: Davis v. Davi.s, 26 Cal. 222; Gill v. Rice, 13 Wis. 549: R. R. 39; Argucllo v. Ediuger, 10 Cal. 150. Co. V. Harris, 8 Neb. 140; Waddell v. * Tilton v. Nelson, 27 Barb. 595. Morrill, 26 Wis. 611 ; Downer v. How Made Available. 1443 or may be that are at stake. There is nothing in the nature of real estate, whether the action be at hiw or in equity, which should deprive it of the benefit of those wise and salutary prin- ciples which are applied without hesitation in both jurisdictions in the case of personalty. The doctrine of equitable estoppels has become too firmly established to question at this day the wis- dom of the change which released it from the exclusive equity jurisdiction of former times, enlarging its operation to the whole field of jurisprudence." In one case* it was held that the applica- tion of equitable estoppels to the title of land is not a variance with the interpretation which has invariably been given to the statute of frauds, in equity, and that it is essentially necessary to the administration of the common law, while in some of the other states^ it is held that the only remed}'^ lies in equity. The doctrine of equitable estoppels is one which at the present time can be applied at law to real and personal property without forcing the parties to seek relief in equity, and as between co-ordinate powers neither can lessen tlie power of the other by arrogating them to itself ; the appropriation of the doctrines of equity by the com- mon law will not estop the right to seek redress by an application in due form to chancery.* § 1299. Whether declarations were made or a course adopted of a nature to njislead others, and how far the latter were actually deceived, are questions of fact which must be submitted to a jury when the suit is brought in a court of law.* But the court should at the same time declare what the elements of an equitable estop- pel are, and if they are present, the conclusion will follow as a * Burkbalter v. Edwards, 16 Ga. Sasser v. Joaes, 3 Ired. Eq. 19; Blake 593; Merritt v. Home, 5 Ohio St. 307; v. Fash, 44 111. 302; Walker v. Mur- Shaw V. Beebee, 35 Vt. 205; Hatch v. -phy, 34 Ala. 591; Smith v. Mundy, 18 Kimball, 16 Me. 146; Ruulet v. Otis, Ala. 182; Mills v. Graves, 38 111. 455; 2 N. II. 167; Gregg v. Wells, 10 A. & Doe v. Walters, 16 Ala. 714; Kuight E. 90; Copelaud v. Copeland, 28 Me. v. Wall, 2D. & B. 125. 525; Marshall v. Pierce, 12 X. H. 134; 4 Chui-oh v. Moore, 10 Pa. St. 273; Gerhard v. Bates, 2 Q. B. 476; Morse Wells v. Pierce, 27 N. H. 503; Cor- V. Child, 6 K H. 521; Ilolvoyd v. bett y. Norcross, 35 N. H. 99; Wat- Marshall, 2 De G. J. & F. 596. kins v. Peck, 13 N. H. 160. » Rangely v. Spring, 22 Maine, 130. * Forsyth v. Day, 46 Me. 176; Odlin 3 Danly v. Rector, 10 Ark. 211; v. Gove, 41 N. H. 465; Gunn v. Bates, West V. Tilghman. 8 Ircd. Eq. 163; 6 Cal. 263. Jones v. Sasser, 1 Dev. & B. 452; 1444 Estoppel. matter of law." Thus, where tlic owner of real or personal prop- erty says or does that which necessarily tends to convey the impres- sion that he has no title or means to waive the title which he has, the presumption that subsequent purchasers were influenced by his conduct will, in the absence of rebutting testimony, be irresistible and will be enforced as a matter of law.^ Where good faith is a necessary ingredient in the issue, and there can be no estoppel unless there was a design to mislead, the decision should be left to the jury, who are under all circumstances the appropriate tribunal to determine between honesty and fraud, and in one case,^ the question whether the silence of the plaintiff had estop- ped him from asserting his title was said to be one Avhich the court could not decide, and must leave with proper instructions to the jurors. § 1300. There are few more difficult questions tlian those which arise when a bond or deed is executed on the faith of a promise that it shall be subject to a qualification or condition inconsistent with its terms. In such cases tlie principle that a sealed instrument shall not be varied by parol evidence, is brought in antagonibm witii the equitable one that a promise on the faith of which others have acted cannot be recalled, and it is not always easy to draw the line between them, or know how far the one shall be allowed to modify the operation of the other. It has, however, been held in Pennsvlvania, and that State has gone far- ther than any other on this point, that when the promise and insti-ument differ, the promise must prevail, if the evidence justi- fies the belief that the instrument would not have been executed but for the promise.'' Where the pi'omise can be proved, the course of decisions would be eminently just, because it would appear that the writing did not contain the whole contract, and that the meanitig of the parties must be sought elsewhei'e.* It is difficult to reconcile these decisions with the well established principles of equity and justice, that where the contract is reduced ' Lewis V. Carstairs, 6 Wliart. 193. 2i2; Taylor v. Gilmer, 25 Vt. 411; ** Robinson v. Justice, 2 Pa. St. Keisselbrack v. Livingston, 4 Jolins. 19: Koelcr v. Vaniuyle, Pa. St. 250; Cii. 144; Renshaw v. Gaus, 7 Pa. St. McMullen v. Werner, Ki S. & R. 18. 119. 3 Gunn V. Bates, 6 Cal. 263. ^ Thurston v. Ludwig, 6 Ohio St. 1. ^Chalfant v. Williams, So Pa. St. How Made Available. 1445 to writing, tlic writing is not only the best, but the only evidence of the contract, which was intended to give stability to the trans- actions of life, by enabling men to put their acts and agreements in a form that should be beyond the reach of the uncertainty incident to oral testimony, and would be of comparatively little value if witnesses could be called to prove that stipulations omit- ted, with the knowledge and assent of both parties, were, not- withstanding, meant to be as binding as if they had been set forth in terms/ § 1301. The weight of authority is decidedly in favor of hold- ing, that a man who is so ill advised as to execute a Avritten con- tract, in reliance on a promise that it shall not be literally enforced, must submit to the loss if he is deceived, and that he cannot ask .that a principle of great moment to a community, shall be made to yield for the sake of relieving him from the consequences of his own indiscretion.^ But this does not apply to those cases when the writing accidentally fails to express the agreement, and w4iere it is executed in ignorance of the mistake. For where the vari- ance is not known, neither party can be charged without willfully exposing himself to the consequences. Under these circumstances parol evidence is admissible in equity to prove the mistake, and to show in what particulars the contract actually entered into, differs from that reduced to writing.' § 1302, Courts of equity exercise this branch of jurisdiction, with much caution, and refuse relief unless the grounds on which it is sought are clear and unequivocal.* The question arose in an insurance case,* where it was said that the plaintiff could not show that he had effected the insur- ' Fulton V. Hood, 34 Pa. St. 365; 320; Williau v. Willian, 16 Vesey, Wheelton v. Hardisty, 8 Ell. & B. 72; Bellows v. Stone, 14 N. H. 175 232; Cozzens v. Stevenson, 5 S. & R. Worden v. Haviland, 18 Conn. 101 421. Langdon v. Keith, 9 Vt. 299; Lancker * Wilson V. Watts, 9 Md. 355; An- v. Rex, 20 Pa. St. 464; Larkins v. drew V. Spurr, 8 Allen, 412; Howard Biddle, 21 Ala. 557; Trick v. Fulton, 3 V. Thomas, 12 Ohio St. 201; Bingham Gratt. 193; Ross v. Wilson, 15 Miss. V. Rogers, 17 Mass. 571; Irnham v. 783. Child, 1 Brown Ch. 92; Cook v. '» Hall v. Claggett, 2 Md. Ch. 153; Eaton, 16 Barb. 439; Thurston v. Lud- Pliilpot v. Elliott, 4 Md. Ch. 273. wig, 6 Ohio St. 1. 5 Plumb v. Ins. Co., 18 N. Y. 385; 3 McCann v. Letcher, 8 B. Men. Chaffee v. Ins. Co., 18 N. Y. 376. 1446 Estoppel. ance on tlie faith of a promise by the agent of the insurers, that the policy should not be vitiated by the inaccuracy of the survey, because tlus would be in direct opposition to the warranty con- tained in the policy ; but he was permitted to show that the agent of the insurance company prepared the survey, and was thus excluded from the warranty, the presumption of which was, that the warranty refeiTcd to the act of the insured, not the insurers. But when the peculiar nature of the case, or from the circumstances, it can be shown in accordance with the established rules of evidence, that the contract cannot be enforced, as it stands, without a breach of faith, relief may be granted in equity, or under the principles of equitable estoppel at law.' § 1303. The estoppel in pais, as applied to mercantile trans- actions, may be taken advantage of by a plea containing the necessary averments, and concluding with a prayer, whether the defendant shall be admitted to say that the bill which he has accepted, was not made by the party whose name is affixed as drawer. When a party to a bill, as an acceptor or indorser, is concluded from denying a fact, as, for example, the drawing of a prior indorsement, the estoppel may be applied, or it seems that the plaintiff may demur.' For estoppels in pais are not pleaded but are in general, given in evidence, and will, prima facie, operate as effectually to estop the party under the direction of the court.^ So, that a party without pleading it, may take a*dvantage > Wood V. Dwarris, 11 Exch. 493. 453; Gregg v. Wells, 10 A. & E. 90; « Sanderson v. Coleman, /m. &,. G. Coles v. Bank, 10 A. & E. 437; Gains 209; Lyon v. Reed, 13 M. & W. 285; v. Ins. Co., 43 Wis. 108; Railway v. Armani v. Castrique, 13 M. & W. Woodcock, 7 M. & W. 574; Cornisli 443. V. Abingdon, 4 H. & N. 549; Baliia 3 Canal Co. v. Hathaway, 8 Wend. Co., in re, 3 L. R. Q. B. 584; Railway 480; Reed v. Pratt, 2 Hill, 64; Peo- v. Daniel, 2 Q. B. 281; Sandys v. plev. Turnpike Co., 23 Wend. 222; Hodgson, 10 A. «& E. 472; DowneS v. Bill V. Richards, 2 H. «fc N. 311; Cooper, 2 Q. B. 526; Freeman v. Hostler v. Hays, 3 Cal. 302; Alexander Cooke, 2 E.xch. 654; Clarke v. Hart, 6 V. Walter, 8 Gill, 239; Kieran v. San- H. L. 656; Newton v. Lidgard, 12 Q.- ders, 6 A. & E. 515: Phillips v. Blair, B. 925; Howard v. Hudson. 2 E & B. 38 Iowa, 649; Mayer v. Ram.sey. 46 1; Dunston v. Patterson, 2 C. B. (N. Tex. 372; Vaughan v. Mathews, 18 L. S.) 495; Simpson v. Ins. Co., 2 C. B. J. Q. B. 191; Caldwell v. Augur, 4 (N. S.) 257; .Jordan v. Money, 5 H. L. Minn. 217; Johnson v. Byler. 38 Tex. C. 185; Tyerman v. Smith, fi E, & 610; Coleman v. Pearce, 20 Minn. B. 719; White v. Greenish, 11 C. B. 128; Cox v. Caanon, 4 Bing. (N. C.) (N. S.) 209; Aslipitel v. Bryan, 3 B. & How Made Available. 1447 of this estoppel derived from the rule laid down in Pickard v. Sears, where one bj his conduct willfully, &c. By the term will- full}^ in this rule, it must be understood that the party against whom this estoppel is sought to be made available, means that his representation to be acted on accordingly, and in most cases ■within the rule, the representation is such as to amount to a con- tract or license of the party making it. They may be pleaded as well as those by record and deed.' § 1304. A party who claims that another, seeking to enforce his rights, shall not be permitted to allege and show the truth, must establish that he has been induced, by his faith in or reli- ance upon the assertions or acts of such party to the contrary, to do some act, or incur some liability, which would make it injuri- ous to, or a fraud upon him to allow the truth to be shown. A party setting up an estoppel must be personally misled or deceived by tlie acts which constitute the estoppel alleged ; he must have trusted to them, in some particular business transaction.'' It is said, that facts relied upon as an estoppel in pais must be specially pleaded ; otherwise evidence of them cannot be received.^ Thus, it was said that if it should be conceded that the evidence shows that appellant, notwithstanding the fact was otherwise, represented that he held the money to pay appellees, and promised to do so, S. 474; Saaderson v. Colman. 4 Scott Wilson v. Castro, 31 Cal, 420; Ackley N. R. 638; Lyon v. Reed, 13 M. & v. Dygert, 33 Barb. 176; Lawrence v, W. 285; Darlington v. Pritchard, 4 Brown, 5 N. Y. 394; Bank v. White, M. & G. 783; Halifax v. Lyle, 3 6 N. Y. 236: Cadwell v. Colgate, 7 Exchq. 446; Veale v. Warner, 1 W. Barb. 253; Keeler v. Davis, 5 Duer, Saund. 576; Vaughn v. Mathews, 18 507; Andrews v. Bond, 16 Barb. 633; L. J. Q. B. 191: Bank v. WoHaston, 3 Simpson v. Pearson, 31 Ind. 1; Mc- Harring. 90; Waddle v. Morris, 26 Kinzie v. Steele, 18 Ohio St. 38; Wis 613; Manning v. Cogan, 49 N. Donaldson v. Hall, 2 Daly, 325; State H. 331 ; Blake V. Barnett, 61 Iowa, 79. v. Pepper, 31 Ind. 76; Devries v. ' Darlington v. Pritchard, 2 Dowl. Haywood, 64 N. C. 83; Alexander v, N. S. 664; Sanderson v. Collman, 4 Walter, 8 Gill, 239; Piper v. Gilmore, Scott N. R. 638; Gaylord v. Van 49 Me. 149; Reeves v. Mathews, 17 Loan, 5 Yf end. 308. Ga. 449; McClellan v. Kennedy, 8 2 Garliughouse V. Whitwell,51 Barb. Md. 230; Brown v. Bowen, 30 N. Y. 208 ; Malony v. Horan, 12 Abb. P. 519; Watson v. Hewett, 45 Tex. 472; (N. S.) 289; Fitts v. Brown, 20 N. H. Plumb v. Ins. Co., 18 N. Y. 392. 393; Catlin v. Grote, 4 E. D. Smith, » Bray v. Marshall, 75 Mo. 327; 296; Diller v. Brubaker^ 52 Pa. St. Maxwell v. Longenecker, 89 111. 102; 498; Jewett v. Miller, 10 N. Y. 402; Tallman v. Varick, 5 Barb. 277. 1448 Estoppel. upon tlicir completing the work, and that they, relying upon this rej)ivscntation and promise, did coni])lote tlie work, and it should tliereupon be liehl that ai)pellant is estopped to deny tlie trutli of what lie represents, and must make good his promise. Yet there coitld he no recovery without a sj^ecial count in the declaration averring the facts} So, in a late case in Indiana it was said, " a settled rule of pleading is that estoppels must be specially pleaded, and jilcaded with great particularity and precision leaving noth- ing to intendment.-' This rule proceeds upon the theory tliat as an estoppel concludes a party from asserting the truth, all things essential to give the right to shut out the truth, should affirm- atively appear.'' An owner of property, who stands by and sees a tliird party sell it under claim of title, without asserting his own title, or giving the purchaser any notice of it, is estopped as against such purcliaser, from asserting it afterwards. In such a case the purchaser need not show by further pi-oof that, such owner intended to influence or did influence his conduct in mak- ing the purchase; since the law v^-ill &o presume from the facts stated." But it may be shown that the purchaser had received information as to the title from a stranger, as the testimony may be contradicted.* § 1305. Equitable estoppels growing out of acts in lyais^ con- stitute an exception to the general rule, and are equally conclusive whether pleaded or given in evidence. This is peculiarly true, of estoppels in pais, which generally arise out of a great variety of circumstances that cannot well be set forth with the precision and brevit}' required for good pleading, except where otherwise pro- vided by statute. § 1306. Ill many states the estoppel arising from fraud and misrepresentation of the title to land, is a good defense at law in an action of ejectment.^ Nor need they in certain cases be ' 3Iax\\-oll V. Longenecker, 80 111. < Fecklcy v. Barr. G6 Pa. St. 796. 102. 5 Nixon' v. Carco, 28 Miss. 414; ^ Anderson v. ITubboll, 93 Ind. 570; Thompson v. Sanborn, 11 N. H. 201; S. C, 47 Am. R. 394; Louis v. City, 79 Gove v. White, 23 Wis. 282; Brown Ind. 452; Robbins v. ilagee, 76 Ind. v. Wheeler, 17 Conn. 345; Reed v. 881; Lash v. llcDdell, 75 Ind. 475; Bensley. 2 B. Men. 254; Hamilton v. Wood V. Ostran, 29 Ind. 177. Hnmilton, 4 Pa. St. 193; Slieplcy v. 3 Vilas V. Mason, 25 Wis. 310; Ruiigley, 2 I^. & M. 213; Mayer v. Arnold v. Comman, 50 Pa. St. 361. Ramsey, 46 Tex. 372; ))ickeison v. How Made Available. 1449 pleaded in order to make them obligatory. Where one party read a deed in evidence, signed by certain persons as executors, it was held to operate as an admission that they were such executors in lien of proof to that effect by the other party.' A court of equity will enjoin a party from setting up an unconscientious defense at law, or from interposing impediments to the just rights of the other party.* § 1307. A party who sets up an estoppel in pais as a bar to receiving evidence contrary to the repsesentation made to him by another, must show that there was a willful intent to make him act on the faith of the representation, and that he did so act.' Estoppels, whether claimed as of record or in pais^ must, to be such, be within the principle which gives them force before they will be effectual.* Colgrove, 100 U. S. 579; Dickerson v. Board, 6 Ind. 128; Concord v. Norton, 16 F. R. 477; Johnson v. Byler, 38 Tex. 610; Pool v. Lewis, 41 Ga. 163; Davis V. Davis, 26 Cal. 23; Lee v. Gettj-. 26 111. 76; Kirk v. Hamilton, 103 U. S. 68; Shears v. Walker, 1 Head, 166; Dodge v. Stacy, 39 Vt. 658; Phillips v. Blair, 38 Iowa, 649; Noble V. Chrisman, 88 111. 87; Halloran v. Whitcomb, 43 Vt. 306; Rangely v. Spring, 28 Me. 127; Buckholder v. Edwards, 16 Ga. 597; Fisher v. Milmine, 94 111. 328; Shaw v. Beebe, 35 Vt. 209; McCafferty v. Conover, 7 Ohio St. 99;. Kelly v. Hurt, 74 Mo. 561; Evans v. Snyder, 64 Mo. 515; Follansbree v. Kilbreth, 11 111. 522; Mariner v. R. ,R. Co., 36 Wis. 84; Collins v. Rogers, 63 Mo. 515; Steven- son V. Saline Co., 65 Mo. 425; Sayles V. Smith, 13 Wend. 57, Spiller v. Scribuer, 36 Vt. 245; Ante, Ch. XV. ' Walton V. Newsom, 1 Humph. 140. 2 2 Story Ev. § 903; McPherson v. Walters, 16 Ala. 714; Walker's Heirs V. Murphy, 34 Ala. 591; Smith v. Mundy, 18 Ala. 183; Stone v. Britton, 23 Ala. 543; Deleplaine v. Hitchcock, 6 Hill, 14. 2 Andrews v. Lyon, 11 Allen, 349; Plumer v. Lord, 9 Allen, 455; Piper V. Gilmore, 49 Me. 149; Wythe v. Salem, 4 Sawyer, 88. * McKennahan v. Crawford, 59 Pa. St. 390. INDEX. INDEX. [Meferences are to pages.] Abandonment and Surrender — doctrine in regard to, 1003, 1006 Abatement — failing to file plea in, binds parties, 298 judgment on plea, of what conclusive, 232 plea of, when available against another action, 251 Abolishment — of fictitious forms renders judgment in ejectment conclusive, 221 Absolute Verity — of records, 19 Acceptance- admits drawer's signature, 1132 by an heir of purchase money estops him, 910 official of his salary waives claim for more, 1198 public, of dedication, effect of, 12S2 mortgagee estops him from denj'ing the power to execute mortgage, 1022, 1023 of an amount estojis further prosecution of claim, 1197 damages for laying out highway, a dedication, 1288 a deed when it estops party, 1008 devise estops devisee to set up title in opposition to the will, 1014 an estate creates an estoppel, 1011 indenture binds grantee, 724 judgment as merger, 49, 560 money from a debtor estoppel to deny right of redemption, 1199 mortgage, waives vendor's lien, 9G8, 969 part payment of a claim, when an estoppel, 1197 [1453] 1454 Index. [Jie/crencee Acceptance (continued). of partial allowance of a claim an estoppel. 1198 policy of insurance estops \rerson void, 378 Administrator- appointment of cannot bo questioned by surety, 387 conclusive, 348, 87(5, 390 bonajide dealings of, conclusive, 377 are to pages.] INDEX. 1459 Administrator (continue^. by allowing claims, estopped to deny validity of, 1261 charging funds to one account estopped from denying it, 1262 effect of covenant in warranty in deed of, 791 estopped by acts of his.intestate, 1262 advising devisees, etc., 1262 allowing expenditures on property of estate, 1263 charging money to a particular fund, 1261 to deny recitals in record, 390 estoppel of by accounting for estate funds, 1261 delivery of property to a devisee, 1261 silence at a sale, 1104 executing deed cannot denj' his official capacity, 1262 judgment against, effect of, 94, 181 or agent may make a valid dedication, 1280 recognizing his representative character conclusive, 1261, 1262 taking possession of property as, estopped to deny title of estate, 1261 when aflfected by estoppels in pais, 1261 estopped by private sale, 1263 Administrators — acts of one bind the whole, 1262 settlement conclusive, 348, 381 Admiralty Courts — doctrine as to conclusiveness of judgments in, 349 judgment of acquittal, conclusive, 349 condemnation conclusive on the world, 349 sale on judgment of passes indisputable title, 334, 349 sentences in, a bar, 107 Admiralty — decrees, when enforced by courts of other countries, 577, 578 foreign judgments in, conclusive effect of, 573, 586 judgments in courts of, conclusive, 349 proceedings, in rem, conclusive on the whole world, 349 Admissibility — of judgment to establish its own existence, 334 record between same parties, what dependent on, 258 Admission — by debtor bars defense in suit by purchaser, 1117 party that he is stockholder, estoppel of, 1395 payment of money in court, effect of, 964, 965 effect of depends on purpose for which it was made, 950 where possession of property is obtained on the faith of, 919 of improper evidence, when an estoppel, 950, 951 maker of note, when an estoppel, 1112 that a note is all right, an estoppel, 1121 title exists, what it implies, 1000 1460 Index. [Ee/ercnces Adiuissiou {continued). as to boundary lines, effect of, 1275 by attorneys, when they operate as estoppels, 941 way of demurrer, conclusive effect of, 944 conclusiveness of, 862, 808 . extension of the principles regarding, in England and America, 861 in a deed, when they obviate pleading an estoppel, 1449 deeds that are conclusive, 747, 748 legal proteedings, what necessary, to be conclusive, 1423 pleadings not denied, conclusive, 944 statutory and other bonds, conclusive, 7G7, 773 intended to influence the conduct of party are estoppels 914, 919. " judicial us estoppels, 940 made in the trial of a cause conclusive, 964 of attorneys must be formal to create estoppels, 941, 942 law or fact, when conclusive against party making them, 889 married woman in judicial proceedings, when an estoppel, 1249, 1250 party, how regarded in law, 862 solemn and unsolemn, effect of, 861 that are known as equitable or estoppels in jjais, 861 substitutes for ordinary and legal proof, 862 have been acted upon, effect of, 861 under seal, conclusive, 767 upon which legal proceedings are taken, an estoppel, 888 which are estoppels in pais, 8, 938 and acts in 2}ais, when they operate as estoppels, 950 Affidavit — of loss estops party from denying material facts therein, 1359 Affinnance — of void sale by receiving proceeds thereof, 1197« After-acquired — personal property, when it passes by mortgage, 1035 title, doctrine in regard to based on covenant of warranty, 805, 806 of, applicable to leases, 834 the civil law in regard to passing, 779, 780 does not inure when an interest passes, 808 where lessee no legal estate, 834 eftect of covenants of warranty in passing, 783, 784 extraordinary effect of esto]>pcl in passing, 781 forms of conveyance which operate to pass, 783, 784 how affected by covenants running with land, 806, 807 inures to mortgageee, 1018 where conveyance is made of a defective title, 779 nature of doctrine in regard to its passing by estoppel, 803, 805 of a party, when it passes by his deed as guardian, 807 administrator, when it passes by his deed, 791 are to pages.'] InDEX. 1461 After-acquired (continued). title of heirs passes by deed of ancestor, 791, 807 mortgagor, why it passes to mortgagee, 794, 800 when transfeiTed in equity, 799 patentee passes when he obtains it, 785, 786 vendor inures to benefit of vendee, 786 passes by a covenant against all claims and demands, 791 deed which purports to convey an absolute title, 787 covenants of non claim, 789, 790 estoppel, doctrine in regard to, 777, 833 reason of covenants of warranty in a deed, 788 instantly, on being acquired, by force of warranty, 788, 789 though conveyed by an undefined interest, 829 party is discharged as bankrupt, 806 - to grantee, under a conveyance with warranty, 778 where none passed by conveyance, 785, 786 lessee, 781, 782 where lessor has no title at time of demise, 787 passing by estoppel depends on intention of grantor, 781, 7&2 to mortgagees, 794, 800 of a woman prior to marriage, when it passes, 791 principles applicable to, vesting it in a grantee, 802, 805 what requisite to pass, 807 when it inures to the grantee, heirs, etc., 792 passes a homestead right, 786 by a covenant in a quit-claim deed, 815, deed of release, 784, 785 an executor, 792 corporation, 793 mortgage with warranty, 794, 800 why grantor estopped to set up, 792 legal title, when it passes to grantee of equitable title, 792 Agent- acting on behalf of another cannot claim he was acting for himself, 1221 acts and declarations of, when binding on insurance company, 1332 collecting money for corporation estopped to deny its title thereto, 1409* collecting money in the name of association cannot question its exist- ence, 1406 contracts of, without knowledge of his rights, when binding, 1221 drawing application estops company, 1355, 1356 held out as such by principal, binds him by his acts, 1207 issuing a policy iifter knowledge of breach, binds company, 1334 laying out streets in a town, dedicates them to public use, 1289 making verbal contract to insure, binding on company, 1332 may waive the condition in regard to payment of premiums, 1342 misconduct of, when principal liable for, 1204, 1205, 1208 1462 Index. [Meferences Agent (continued). notice to, is notice to principal, 1334 of lessor, estopped by lease, 846, 847 party may bind bis principal by usury, 1221 penuitting assignment of polic}-, binds company, 1331 receipt of premium by, binds company on policy, 1342 statements within scope of his authority binds principal, 1332, 1333 when his waiver binds company, 1334 when not allowed to dispute title of another, 1013 Agents- acts without authority may be ratified, and bind principal, 1202 declarations in soliciting a policy binding on company, 1333, 1334 delivery of policy without payment of premium, estops company, 1342 fraud in receiving premium, is fraud of the company, 1334 knowledge is knowledge of company, 1333, 1334 of corporations may bind them by waiver, 1331 representations or statements, bind insurance company, 1341 waiver by, estops company from taking advantage of condition, 1341 and officers may bind company by w^aiver of conditions in policy, 1341 Agreeing — to boundary line in absence of monuments an estoppel, 1272 facts stated in case, an estoppel, 964 Agreement — by neighbors as to boundary line, when conclusive, 1271 judgment by, when an estoppel, 41 by attorneys, when they operate as estoppels, 941 of parties cannot be affected by a mistake in expressing them, 902 to submit matters to third parties, when conclusive, 933, 936 Aiding — a deed by estoppel, 713 Alien — naturalization of, conclusive, 348 Alienation— of interest of one joint tenant, as an estoppel, 810 Alimony — judgment for, when conclusive in divorce cases, 238 All matters — that might have been litigated included in Res judicata, 130 Allegata and Probata— must agree, 1411 Allegation — of jurisdiction not necessary in actions on foreign judgments, 664 in pleading or complaint, conclusive, 943 not denied, estops part}', 939 not traversed, conclusive, 944 that grantor has good title, effect of, 782 are to pages.] IndEX. 1463 Alleging— title in another estops party from claiming, 340 Allowance — of claim by probate court, effect of, 393, 394 Allowing — another to dispose of property estops owner, 1052 one partner to claim property as his own, estops firm from denying it, 1230 party to go into possession, when an estoppel, 1079 party to procure additional security, postpones prior mortgage, 1037 strangers to impeach judgments for fraud, 452 suit to be brought for the use and benefit of another, estops party, 918 Alterations — of record, effect of, 23 A Man — can be only estopped from denying what he has once admitted, 914 Ambiguity — • in record will not affect the estoppel, 237 Amount— of evidence necessary to impeach judgment of other states, 665 Ancestor— acquiescence of, an estoppel on heirs, 930 judgment against, effect as res judicata, 184 for or against, binds the heir, 202 Ancient— doctrine of estoppels in pais, 863, 870 doctrines in regard to the plea of res judicata, 77, 96 Answers— statement in of no defense conclusive, 943 Appeal—^ from sentence of prize court, effect of, 584 the only remedy against irregularities in judgments, 58 Appealing— from judgment as a waiver of irregularities, 943 estops party from questioning it, 339 Appearance — a matter of statutory regulation, 71 in a cause as a waiver of jurisdiction, 942, 948 party entering, cannot question jurisdiction of court, 951 Appellate Court- decision of binding on inferior one, 118 remains the law of the case, 118 judgment of, res judicata, 118, 119 Application — for injunction, when res judicata, 139 of election, to judicial proceedings, 535 equitable estoppels in courts of law, 872 1464 Index. {Referencei Application (continued). of equitable estoppels to executors, guardians, etc., 1261, 1263 judgments, 337, 343 realty, 806 shares of stock, etc., 1324, 1326 states, 1203, 1265 the relation of landlord and tenant, 969 estoppels by waiver of proofs of loss, 1348, 1353 to boundaries, 1206, 1278 of estoppel to insurance companies, 1331, 1359 mortgages, 1018, 1052 municipalities issuing bonds, 1370, 1383 stockholders, 1394, 1409 estoppels in pais, 882, 885 to every species of property, 872 instruments not under seal, 1112, 1155 licenses, 1105, 1110 prevent fraud, 882, 885 prevent injury to others, 918 principal and agent, 1202, 1215 real property, requisites of, 1053, 1073 rea judicata to criminal cases, 485, 507 estoppels wi j9«js to tax-payers, etc., 1301, 1363 United States, 1263, 1204 where party endeavors to obtain undue advantage, 930, 931 the doctrine of res judicata, 117 maxim in regard to subsequent ratification, 1212, 1213 Appointment — of guardian or administrator, conclusive, 348, 376, 377 Appraisement — waiver of sale without, 963 Appraisers - selecting by debtor, 1096, 1097 Appropriatini,' — proceeds of sale made by agent binds principal, 1220 Approval — of deed by parent estops him claiming as heir, 910 Arbitration — when binding on a married woman, 1250 and award, when it may create an estoppel as to real property, 1291 Arbitrators- award of, accepting benefit under, effect of, 532 at common law, 529 binding until set aside, 529 binds jiarties and privies, 531 cannot be contradicted by arbitrator, 531 are to pages.] INDEX. 1465 Arbitrators (continued). award of, cannot be defeated, 528 impeached by strangers, 531 money paid on award of, cannot be recovered, 529 award of, conclusive against fraud, etc., 531 conclusiveness of, 528, 530 impeachment of, 527 merges all defenses, 529 demands, 529 award of, rule in Massachusetts as "to, 228 when it operates as a judgment, 528, 529 award, when sufficiently certain, 530 is an entirety, and must be affirmed as a whole, 531 effect of their decision, 527 judgment on award of, conclusive, 299 jurisdiction of, 527 how acquired, 530 Ascertaining — test for, whether two actions are for the same cause, 302 Assent — for twenty years to a boundary line, 1266 of mortgagee to sale of property, 1036, 1051, 1052 owner, when it may be inferred as to dedication, 1280 Assenting — to public improvements estoppel to deny power of council to make, 1361 sale of land, 929 Assertion — of ownership by married woman when it operates as an estoppel, 1247,1248 unequivocal rights prevented by estoppel, 1070 Assessing — a member of a mutual company, effect of, 1358 Assessments — collection after forfeiture, a waiver, 1358 receipt of by insurance company with knowledge, 1358 Assessor — listing his land, estopped from setting up defects in description, 897 Assignee — allowing bankrupt to carry on business, when estopped, 1154 bound by estoppel of lessee, 844 estopped bj^ deed which estops his assignor, 850 estoppel in favor of by certificate of mortgagor, 1028, 1029 for creditors when estopped by recitals in assignment, 756 of corporation, defense of irregular organization cannot be set up against, 1401 lessee cannot dispute title of lessor, 971 mortgage, when estopped to deny right of redemption, 1048 1466 Index. [He/erences Assignee (continued). purchaser from, when estopped, 756 recovery of judgment by, effect of, 297 statement to, by maker of a note, 1112 ■when bound by a judgment, 154, 203 Assijfnct'S — judgments against, effect of, 476 judgment in favor of, when a bar, 297, 302, 303 subject to the same estoppel as their assignors, 977 when bound as privies, 844, 850 Assignment — of part of claim no effect against judgment, 246, 247 Assignor- estopped by recitals in deeds, 764 of stock certificates, when estopped to claim title, 1324, 1325 Assisting — at a sale and recommending title, 1100 Association — of persons acting under color of authority, effect of, 1404, 1405 Assumpsit — judgment for plaintiff in, effect of, 326 in action of, when conclusive against fi'aud, 231 will bar action of trover, 96 on insurance policy, 96 when judgment in trespass a bar to action of, 235 Assurance— by a debtor that he has no defense, 1117 Assuring — party that he has given bail, an estoppel in pais, 918 Attachment — bonds, parties executing can not deny jurisdiction of court, 338 essential purposes of, 359, 360 proceedings in the nature of proceedings in rem, 358, 363 Attending— meetings prevents party from questioning title of officers elected, 1402, 1403 meetings of a corporation estops party from denying its existence, 1402 Attorney — advising his client to purchase, estopped from setting up title, 1034 appearance by, when it may be shown to be fraudulent, 630 of, doctrine in relation to, 681, 633 effect of appearance of in judgment of another state, 630 appearance of may be contradicted when judgment used in another state, 635 presumptions in regard to, 680, 631 deed of estops him and all persons claiming under him, 816 are to pages.] InDEX. 1467 Attorney (continued). estoppel of inducing his client to purchase property at a void sale, 830 executing bonds in violation of rules of court, etc., 1147 inducing purchase of a mortgage, 1034 married woman, when bound by acts of, 1250 recitals in deed of, when not binding on principal, 755 silence of, on trial when conclusive, 951 when estopped from denying truth of his representations, 1034 acts of, doctrine in regard as to, 940 Attornment — to receiver creates tenancy by estoppel, 969 Auctioneer — estopped to question party's title for whom he sells, 1015 Authentication— of judgments of other states, effect of, 635 nature, form and requisites of, 661, 664 Authority — of agent when implied from circumstances, 1214 a judgment on a record containing several matters, 122 sale by, when owner cannot dispute, 1100 Autrefois acquit and convict — constitutional provisions applicable to, 485 maxims applicable to doctrine of, 486, 500, 502 Autrefois acquit — upon an indictment, a good plea in bar, 485 principles upon which this doctrine is founded, 486, 487 question of, how decided, 496 for burglary and larceny, effect of, 497 of offenses, effect of, 485, 497, 507 how it must be taken advantage of, 498 defense of must be specially plead, 498 plea of must set out indictment, 499 in plea of must show court had jurisdiction, 499 what plea insufhcient, 499 plea of, parol evidence admissible to identify offense, 500 Arerments — and allegations admitted in pleadings, conclusive, 943 Avoiding' judgments — in collateral actions, 311 Award — as conclusive as judgments in pleading, 1412, 1413 to boundary line, conclusive, 1272 cannot be contradicted, 527 effect of, 527 inducing one to comply with, an estoppel in pais, 918 judgment on, 215 146^ Index. [He/ereneea Award — continited. principles applicable to, 527, 532 rule ill regard to making it available, 1412 Avben conclusive as to rights of property, 1291 Awarding: money — to claimants, when a bar, 107 Awards- governed by same principles as judgments, 530, 538 judgments confirming, when conclusive, 41 Axioms— of the law applicable to estoppel by deed, 709 B. Bailee— cannot dispute title of person from whom he receives goods, 1013 estopped to deny bailor's title, 937 Bailment— or lease of chattels, when it creates an estoppel, 1014, 1015 Bailor- judgment against, bars an action by the bailee, 214, 215 Bank- estopped by certification of checks, 1326-, 1330 receiving money from depositor, to deny his title, 1830 liable for fraud or mistake of its cashier, 1330 ratification of cashier's acts an estoppel, 1330 when bound by acts of cashier, 1327, 1328 estopped from denying its corporate existence, 1308 Bankruptcj — discharge in, must be pleaded, 276, 277 Bankrupt!* discharge- doc? not ufl'ect passing his after- acquired title, 806 judgment that it was obtained by fraud, conclusive, 282 must be plead, 1415, 1416 Banks- bound by ratification, same as individual, 1330, 1831 Bar- judgment when, to a subsequent suit, 331 requisites to make a judgmLUt, 94 Basis- of equitable estoppels, 862 estoppel by parol designation of boundaries, 1270 the doctrine of estoppel by warranty, 805 Res judicata, 133 that an after-acquired title inures by an estoppel, 792 Beneficiaries- standing by and witcessing the expenditure of money, 1065, 1066 are to pages.] InDEX. 1469 Benefits — arising from the doctrine of estoppel by judgment, 8 Bill- allegations in, when conclusive, 934, 944 dismissal of, when conclusive, 477, 478 without prejudice, effect of, 471, 474 in equity, doctrine in regard to dismissal of, 470, 477 of lading, estoppel by recitals therein, 776 application of estoppels to, 1384, 1387 Binding^ effect — of a judgment where record contains several points, 122 Bona flde dealing: — with administrator unimpeachable, 377 Bona fide purchasers — when equitable estoppels will be extended in favor of, 923 Bond- attachment, conclusive on whom, 770, 771 judgment for interest on, when conclusive, 231 on, when a bar to an action of tort, 257 upon, when it may and may not be a bar, 103, 104 party executing estopped to deny that the court ordered it made, 769, 770 recitals in estops obligor from denying it, 770 Bondholder — estopped by judgment against the trustee, 167 when estopped from denying existence of corporation, 1401 Bonds- execution of by parties estops them from questioning jurisdiction, 968 estops party from denying official character of principal, 769, 771 estops party from denying that it is double the amount required, 767 general principles of conclusiveness of, 771, 772 guarantee of, estops party, 1148 issued by municipalities, principles applicable to, 1331, 1381 judgments in forthcoming, estop parties from controverting them, 768 of indemnity, application of estoppels to, 1137, 1138 parties signing us principals cannot show they are sureties, 770 • recital in conclusive, 767, 773 of particular facts in, estops party from denying them, 767 recitals in delivery bonds conclusive, 768 sureties on appeal and other bonds estopped, 768, 769 Bondsmen — doctrine in regard to, how concluded by judgments, 169, 177 Boundaries- acquiescence by party in seeing expenditures made, 1275 in a division line, 1273 for fifteen years conclusive, 1268 act of legislature, when it operates as an estoppel, 1270 1470 Index. [lie/erencea Boundaries (continued). agreement as to, when parties estopped from denying, 1271 application of estoppels in pais to, 1275 disputed, that have been fixed and settled, when conclusive, 1270 distinction in the cases as to, 1271, 1272 erecting improvements in reliance on, 12G8, 1269 estoppels as applied to, 1266 estoppel to dis))ute when settled by arbitration, 1272 fixed by adjacent proprietors, what necessary to make conclusive, 1274 government of U. S. estopped by, like individuals, 1269 grantor when estopped from disputing, 1269 length of time required to prevent questioning, 1 266 location of and acquiescence, when an estoppel, 1276 by state legislature, an estoppel, 1266 when conclusive, 1266, 1268 owner pointing out to settler, when estopped from denying, 1267* parol adjustment of, when conclusive, 1270 designation of, cannot be recalled, 1270 parties estopped from questioning by plats and maps, 1276 party when estopped to deny true line, 1270 presumptions in favor of regularity of, 1268 recognition of by a party, when an estoppel, 1275, 1276 state estopped by, as well as individuals, 1275 what necessary to estop parties from disputing, 1275 when party estopped from claiming different, 1275 where parties agree upon a line, conclusive, 1273 Boundary- acquiescence in by parties, when conclusive, 1270, 1271 declarations as to, when conclusive, 1267 Boundary Lines- principles of estoppel applicable to, 7o2, 754 recitals of in deed, when conclusive, 753 statutory proceedings, when conclusive, 395 Bounds — within which equitable estoppels are limited, 909 Building Contraots — estoppels ,\vhen applicable to, 933, 936 Burden of Proof — on parties relying on an estoppel, 481 whom, in cases of estoi)pel in pain, 1119 pleading judgments, 236, 237, 1484 when on party claiming the estoppel, 307 Bnrgundus — classification of actions by, 27, 29 Buyer— of a chattel, when bound by an estoppel of vendor, 922 are to pages.] IndEX. 1471 C. California — conclusiveness of actions in ejectment in, 225 Can— a defendant in a criminal trial, waive a jury, 956, 960 Carrier — estopped from denying recitals in bill of lading, 776 in action for damages, 1390 ■when lie cannot deny authority of an agent, 1222 Cases- affecting personal status bind the whole world, 115 illustrating the application of estoppels to states, 810, 814 doctrine of election, 1159, 1164 in U. S. supreme court on collateral impeachment of judgments, 426, 446 where relief is granted against judgments for fraud, 453, 467 showing what matters might have been litigated, 276, 277 to which the doctrine of res judicata applies, 319 where the estoppel of warranty does not apply, 818, 819 Cashier — of bank power to bind it, as managing officer, 1327, 1329 performing official duty, estopped from denying it, 1398 Cause— jurisdiction of, what it is, 65 Cause of Action — different in second suit makes judgment evidence, 106 must be substantially same in both, 110, 111 same in two suits, former judgment a bar, 106 once plead or offered in evidence barred, 312 when merged in a judgment, 124 res judicata^ 98 . the same, 91, 331 Causes — for which judgments may be impeached, 452, 530 must be properly prepared and presented before judgment, 128, 129 of action must be sustained by the same facts, 111 Certificate — by mortgagor that he has no defense, 1025, 1026 of acknowledgment, proof required to impeach, 733 as to judicial acts, 731, 732 effect of, 731, 755 except in cases of fraud, 732 doctrine of U. S. supreme court, as to, 733, 735 executed by married womn, 731, 735 what necessary to impeacli, 732, 733 1472 Index. [BefereTicea Certificate {continued). of architect, an estoi^pcl, 933, 936 deposit recital in, conclusive, 773 engineer, when conclusive, 934, 935 no defense, w hen binding on married women, 1237 Certifloatioii — of checks by banks, conclusive, 1326, 1327 effect of, 1328, 1329 Certified Checks — doctrine in regard to, 1325, 1321 Cestui que trust — allowing trustee to hold himself out as owner, 1225 application of equitable estoppels to, 1225 bound by a de'cree against his trustee, 187 effect of acquiescence on part of, 1225, 1226 bound by confirming an invalid sale, 1226 concurrence in a breach of trust, 1225 Chancery — appointment in of a trustee, conclusive, 523 conclusiveness of proceedings in, 467, 478 decree in, admissible to show rein ipsam, 468 concludes parties and privies, 477 couclusiva as to what matters, 478 impeachment of, 4G9 conclusiveness of, 467, 478 inquirable into for jurisdiction, 468 in personam when they affect real estate, 468 who bound by, 469 of dismissal, effect of, 473 dismissal of bill brought by tax-payers, 472 in, when a bar, 471 without prejudice, efFecf; of, 471, 474 effect of, 473, 474 creditor's bill in, 472 libel for divorce in, effect of, 471 injunction in, when it cannot be pleaded, 470 perpetuation of, after removal of case, 469 parties estopped b}- mutters put in issue and settled, 477 Avhen decrees in will not operate in personam, 468 opinion will be used to aid decree, 470 will not review a decision of a court of law, 470 Changes — in records in modern times, 21 Charterer — when not permitted to deny performance of contract, 1153 are to pages.] InDEX. 1473 Chattel- judgment against vendor of, effect of, 373 in replevin for, when no bar, 373 Chattel Mortgage — recognition of, estops denial of its validity, 1230 when party estopped from denying validity of, 1035 Chattels- title to, judgment, who concluded by, 203, 204 Choosing Arbitrators — effect of, 529 Circuity of Action- prevented by title by estoppel, 805, 806 Circulars and Advertisements — when binding on authors of, 923, 924 Circumstances— illustrating estoppels m pais, 1091, 1095 which render foreign judgments in rem conclusive, 583 Citation — a matter of natural right, 54 judgment without, absolutely void, 54 Cities — liable for torts of their agents, 1369 Citizens — of other states receiving dividends under assignment, 1186 City- after improving a street cannot deny its dedication, 1367 levying a special tax to pay a contract cannot question it, 1367 allowing large expenditures without objection, bound, 1365 bound by acts of oflBcers, when, 1308 same as individuals, by unauthorized acts, 1369 cannot plead its own illegality in actions, 1866 councils, acts of, when binding on property-owners, 1362 concluded by working roads already laid out, 1370 estopped by treating a place as a street, 1366, 1367 where they have licensed a party, 1365 by taking unlawful possession of land for street, 1370 issuing a license cannot sue party for violating the law, 1366 liable when assuming control of streets, 1369 suing for injury cannot set up want of authority, 1366 when bound by actions of its officers, 1365, 1366 admission of its officers, 1368, 1369 compelled to refund money on revoking licenses, 1366 it cannot deny legal existence of a street, 1369, 1370 set up want of authority, 1368 not bound by subsequent ratification, 1368 93 1474 Index. [References Ciyil Conrts — no ecclesiastical jurisdiction, 532, 534 Civil Law — doctriuc as to election of remedies, 1179, 1180 estoppels on infants, 1252, 1253 of election, 11 GO in reganl to the plea of res judicata, 77, 96 rule of equitable estoppels to judgments, 342, 343 doctrine of res judicata, 85 Claim — judgment for, conclusive in mandamus, 138 allowed in probate court, merged, 393, 394 arising from contracts or wrongs cannot be divided, 251 of no defense by mortgagor, effect of, 1024, 1025 title which cannot be set up by a privy in estate, 993 or title, when a party cannot set up, 739 Claiming — property to be free prevents party setting up lien, 904, 905 Claimants — of a fund, when not barred, 115 Class— of admissions which are conclusive against parties, 863 Classificatiou — of actions, 27 by Bracton, 27, 29 Burgundus, 37 Gaius, 29, 31 Justinian, 32, 35 cases -where an estate passed in the civil law, 779, 780 judgments as to their conclusiveness, 37 Clerical Errors- do not affect estoppel of judgment, 313 in judgments of courts with jurisdiction, 317, 318 Code System — plea of res judicata under, 317, 319 Codes- judgments, how made avaibible, when they are a defense, 1425 Coke's decision — why judgments conclusive on juries, 1412 description of a release with a warranty, and effect of, 808, 809 Collateral- actions in, no estoppel b}' deed, 713 attack of judgment for want of jurisdiction, 317, 318 impeachment of judgments, doctrine of U. S. supreme court, 426, 446 questions not concluded by a judgment, 142 matters not included in probate decrees, 378 are to pages.] IndEX. 1475 Collateral {continued). not included in merger of a judgment, 477 proceeedings in what, judgments may be assailed, 311 and incidental questions are not concluded, 324 and principal elements in plea of res judicata, 65 Collector — of taxes cannot deny right of county thereto, 1016 Comity — doctrine of, applicable to foreign judgments, 591 Commissioner — actions of, when conclusive, 523 of internal revenue, decisions of, conclusive, 525 of counties, adjudications of cannot be collaterally attacked, 520 allowance of claims by, a merger, 519 conclusiveness of actions in opening roads, etc., 523 doctrine applicable to, 523, 525 principles applicable to their actions, 517, 524 presumptions in favor of findings of, 520 proceedings of, conclusive on successors, 521, 522 when conclusive, 517, 524 of patents, decisions of, conclusive, 523 pensions, decisions of, conclusive, 526 under legislative acts, decisions of, conclusive, 523, 526 Common law — doctrine that no one shall be punished twice, &c., 486 incapacity of women, effect of, on estoppel, 1239 rule applicable to judgments applies to decrees, 468 rules as to awards, 529 and statutory dedications, 1278 Compromise — judgment binds parties, 341, 342 of claim, when an estoppel, 1197 Comptroller — of the cun-ency, certificate of, conclusive, 525 Concealment — of lieu by party, prevents setting it up, 1199, 1200 mortgage, when it postpones it, 1042 secret titles by infants, 1256 title by party, when an estoppel, 1052 Conclnsive — effect of a judgment, 133 cannot be questioned, 323 on demurrer, 321, 323 whether after trial or on technicality, 128 illustrated, 309, 311 of courts of exclusive jurisdiction, 143 1476 Index. IBe/ercncea Couclusire (continued). effect of personal judgmcuts, on what dependent, 105 plea of tender, 964, 965 probate proceedings, 375 promise by an obligor, 1112 evidence of judgments, where title is in issue, 222, 224 and yet no bar, 1 03, 106 by default and confession, 41 reasons why judgments i7i rem are, 351 when foreign judgment is, 589, 590 Concliisiveuess — of admissions, 861 an election when once made, 1162 awards, 527, 532 decrees of forfeiture, etc., 351 dedication when once made, 1283 entries and orders made in a cause, 306 findings of courts in sales of real estate, 379 foreign judgments as to every fact except jurisdiction, 608, 610, 674 grant of letters of guardianship, 378 judgment aflBrmed by a divided court. 121, 125 when used in mandamus proceedings, 138, 139 as to matters in the record, 122 dismissing a bill, 233 in ejectment, 220, 231 «?i rem, 344, 396 where numerous questions involved, 233 requiring parol evidence to identify issues, 238 not affected by fraud, 298 on specific issues, 232 rendered on one of several notes, 232 whether of law or fact, 232 assimilates them to estoppels, 9 between same parties on same points, 299 doctrine in regard to, 552 in attachment, garnishment, 352, 372 ejectment in California, 225 action for mesne profits, 220, 228 Iowa, 220, 221 Kentucky, 220, 221 Minnesota, 220, 221 Missouri, 227 New Jersey, 220, 221 Ohio, 220, 221 Pennsylvania, 220, 221 South Carolina, 220, 221 are to pages.] InDEX. 1477 Conclnsiveness (continued). of judgments in ejectment in Tennessee, 220, 221 replevin, 203, 294 one of two courts of concurrent power, 465 of dismissal, 295, 296 inferior and military courts, 510 ecclesiastical courts, 532, 534 other states, 601, 703 as to all matters, 675 where jurisdiction is shown, 600, 674 on questions of law, 280 parties, reasons for, 277, 278 or sentences in rem, 356, 357 ordering sale of a foreign vessel, 351 whether pleaded or offered in evidence, 1413 and decrees in partition, 303, 307 officer's return, 539, 546 probate of a will, 377 proceedings in inferior courts, 107 of societies, &c., 534 ^ where inferior courts have jurisdiction, 379 recitals, exceptions to rule of, 759, 760 of jurisdictional facts, 418 facts, 743, 744, 752 records, 22 as to material allegations, 141 in justices' courts, 403, 404 of courts of competent jurisdiction, 315, 316 rule of the same, no matter what question determined, 100 of sentences of visitors, trustees, etc., 510 Condemnation — foreign decrees of, effect of, 573, 587 of land, who cannot question, 1388 sentences extinguish title, 577 Condition — in insurance policy, when it may be waived by agent, 1332, 1334 Conditional Judgment— in foreclosure suit, no bar, 256 Conditions — in deeds, which bind vendor, 1011 etc., that are not conclusive, 744 requisite to the plea of res judicata, 85 under which the plea of res judicata becomes applicable, 102 Conduct- by negligence or omission when it creates an estoppel, 880, 881 estoppel by, effect of intent of party, 889, 890 1478 Index. {Reference» Conduct {continued). illustration of estoppels by, 890, 891 rule in regard to estoppel by, 882 that creates an equitable estoppel, 880 of vendor which postpones his lien, 966, 967 Conducting — one's self so as to appear as a partner, 1227 Conferring — an apparent title on another, effect as against owner, 893 Confession — in pleading, when conclusive, 944 judgment by, effect of in other states, 678, 679 when a bar, 41 of judgment bars writ of error, 47 by administrator, effect of, 48 in ejectment, conclusive, 228, 229 may be validated by ratification, 48 when invalid, 48 Conflrniation — of report, conclusive effect of, 305 sales, effect of ratification and acquiescence, 1189, 1190 fraudulent deed estops party from disputing it, 1188 Confiscation Cases — judgments in, 212 Consent — judgment waives prior errors, 49 which cures errors in proceedings, 963 Consenting — to a reference as a bar, 945 assessment for special improvements, effect of, 1361, 1362 judgment, binds party, 341 Consideration — in a deed, effect of recital of, 761, 763 of foreign judgments, and judgments of other states, 571, 703 recital of, may, and may not, be conclusive, 762, 763 limiting the conclusive effect of judgments, 24 Constable — return of, effect of, 965 Constitutional law — questions of may be decided in private litigation, 113, 114 provisions as to judgments of other states, 599, 600 twice in jeopardy, 485 constitutional rights, waiver of, 955, 963, 996 Construction — of an instrument once determined binding, 232, 233 a statute should be followed, 123 are to pages.] IndEX. 1479 Constructive fraud — of party with unrecorded title, ]089 Constructive service — doctrine of U. S. supreme court, on judgments by, 621, 627 Contempt — conclusiveness of judgment in, 568, 570 doctrine of res judicata, when it applies, 568, 570 judgment in, 568 when valid, 53 rules and principles applicable to judgments in, 568 Contract — action for breach of, when a bar to an action of tort, 239 cannot be treated as void and valid, 1163, 1164 varied by parol proof, 708 conclusive effect may be vitiated by fraud, 710 damages for breach of, when a bar, 288 entered into without fraud binding, 708 for sale of land, judgment on, in action of ejectment, 220 of married women, that are binding, 1230, 1260 of municipal corjiorations, when conclusive, 1367, 1868 judgment for one breach no bar for another, 300 on, of what conclusive, 283 when a bar, 249 bars another action for a part, 311 in writing, application of estoppels to, 707, 858 etc., made on Sunday, 1155 operation of, ascertained from its language, 709 several, when not included in judgment, 135 verbal, of insurance, when binding on company, 1332, 1833 when merged in a judgment, 198 oral evidence, when inadmissible to vary, 708 which are binding on the U. S. government, 1263, 1264 turned into notes binding, 1128, 1129 Convenient test — for ascertaining whether second action is the same, 96 Conveyance — estoppels in pais do not operate as an, 1077 by record or deed indented conclusive, 817 application of estoppel to, 707, 858 binding on states, 1264 of land, when it passes after-acquired title, 777, 778 to corporation estops grantor denying its existence, 1401 power to take title, 1401 Conviction — of crime, when a good plea in bar, 486, 507 1480 Index. [lieferences Coram non jnais, by waiver in judicial proceedings, 943, 946 fraud in judgment which equity relieve against, 456 void judgments, 52, 53 are to pages.] InDEX. 1549 Instigator — of legal proceedings, when bound, 167, 168 Institution — of suit by principal, ratifies act of agent, 1219 Instruments— not under seal, cannot be pleaded as estoppels, 1439 Insurance — circulars and advertisements, when estoppels tn pais, 923, 924 company, agents of, may waive conditions of policy, 1834 bound by accepting assessments after forfeiture, 1358 premium with knowledge, 1354 knowledge of prior insurance, 1356 acts of parties held out as agents, 1333 or knowledge of oiEcers, 1353 agent's knowledge as to defects in title, 1341, 1342 where he neglects his duties, 1357 inspection of property, 1355 neglecting to note additional insurance, 1358 failure to indorse additional insurance on policy, 1382 knowledge of agent, 1333, 1334 negot.iildons of agent, 1340, 1341 receipt of proofs without objection, 1349 recognition of policy after forfeiture, 1358 verbal contract to insure, 1332 waiver of condition by agent, 1347, 1348 in receipt of premium by agent, 1334 if agent delivers policy without payment, 1342, 1343 where agent knows of oth^r insurance, 1344 1351 cannot be permitted to escape from bad contract, 1157 declining to pay on one ground, cannot set up another, 1350 without any reason, estopped, 1351, 1352 doctrine of U. S. supreme court as to estoppel of, 1336, 1339 judgment against one may bind several, 168 knowledge of agent, knowledge of company, 1334 estopped by receiving premium after forfeiture, 1355 renewal of policy, 1354 • waiver in regard to proofs, 1348 from taking advantage of agent's acts, 1355 may waive benefits of conditions, 1350 must exercise good faith as to proofs of loss, 1349, 1350 to claim forfeiture for non-payment of premium, 1346 rejecting proofs on one ground, cannot set up another, 1348 when estopped from denying payment of premium, 1341 companies bound by acts of agents, etc., 1331, 1359 directors, 1353 1560 Index. [Ue/erences Insurance (continued). companies cannot " blow hot and cold " as to proofs of loss, 1348, 1350 extension of equitable estoppels in cases of, 1 335 Intention — estoppels founded upon and limited by, 762, 773 of grantor when it creates an estoppel, 782, 785 to deceive not necessary to an estopijel, 897, 899, 912 dedicate, necessary at common law, 1286 when immaterial to an estoppel in pais, 1086, 1087 Interest — after-acquired, when it passes by deed, 781, 782 cannot be recovered when principal cannot, 91 judgment for, conclusive in action on bond, 231 when it accrues, feeds estoppel of lease, 834 where it passes by deed, no estoppel, 781 Interlineation — of record, 23 Intervener — dismissing case, when not conclusive, 332 Inventors — estoppels in pais operate for and against, 932, 933 Iowa — conclusiveness of judgments in ejectment in, 221 Irrebuttable — presumptions as to judgments, 75 Irregularities — cannot affect estopjiel of judgment, 316 be inquired into in collateral proceedings, 58 how taken advantage of, 58 in judgments, 63, 64 confessed, taken advantage of, 47 where court has jurisdiction, no efifect, 58 Irregularity — may be waived, nullity cannot, 64 and nullity, distinction between, 58 Irrevocable — confirmations, recitals that are, 749 Irrevocability — ' of admissions, 1284 Issuance — of execution, when it creates an estoppel, 300 Issue — matters in, how ascertained, 553, 559 of fact, judgment on, conclusive without granting relief, 233 Issues — must be false, to render judgment fraudulent, 463 are to pages.] INDEX. 1551 Issues (continued). may be shown by evidence, 24 not an action, 26 once tried, are concluded, 98 J. Jeopardy — constitutional provisions in regard to, 485 person once placed on trial is in, 492 principles applicable to, 491, 495 what is, 491 Joining — issue, and not demurring when it waives an estoppel, 1441 Judge's — errors or mistakes do not aifect judgments, 312 Judgments — a bar when the same matter directly in question, 107 acceptance of, as a merger, 560 acquiesced in, conclusive, 341 adjudicating questions of title, conclusive, 294 admissible between same jiarties, etc., 1420 admissibility of, depends upon whether questions are same, 258 admissible to establish its existence, when no estoppel, 334 against administrator as to title, binds heirs, 180 assignor, binds the assignee, 203 bailor is a bar against the bailee, 214 bankrupt failing to plead discharge, conclusive, 186 church, binding on members, 166 city, a merger, 551 county, etc., binds citizens, 166 corporation, binding on stockholders, 164, 166, 1360 covenantee, when it binds covenantor, 158 defendant on note, bars action for fraud in obtaining, 279 executor or administrator by default, 181 a garnishee, 365 garnishee, cannot be litigated by another creditor, 562 guardians, etc., conclusive on what parties, 178 heir, conclusive, 215 or devisee, bar against executor, 153 when a bar, 187 infants and minors, 179, 180 in verdict, 181 ' intervenor, when a bar, 332 lessor, when it binds lessee, 163 married women, doctrine as to, 188, 192 master for negligence of servant, 283 1652 Index. [References Jadgments {continued). against one, co-trespasser, effect of, 194 English rule as to, 194, 196 joint debtor, merges liability of all, 564 nullity in action against two, 026 not a party, 52 of several makers of note, bars action against all, 133, 833 partners on joint liability, a merger, 563 two joint contractors, merges action, 187, 188 when release is a bar, 196 wrongdoers, bars action against both, 249 who has no opportunity to defend, 311 partner constitutes an estoppel, 297 party appearing when sued by wrong name, 298 contributing money for counsel in case, 167, 168 neglecting to set up fraud, conclusive, 280 officially, when a bar personally, 153, 154 sued by a wrong name, 298 who is dead, void, 62 without service, void, 50, 51 plaintiff, bars an action for same cause, 562, 568 principal, 168, 177 and surety, binds principal when, 550 when it binds surety, 199 receiver conclusive on trustee and bondholders, 167 R. R. Co. for damages, bar to future action, 288, 310 schoolmaster esto])s his successor, 152 servant or agent, binds master or principal, 160, 161 several, bars action against subsequently discovered partners, 563 sheriff, effect of, 483 several joint debtors, 187 two joint contractors, merges action, 187, 188 debtors, 216 or more defendants jointly, effect of, 283 joint makers, merges cause of action, 564 trustee, binds beneficiaries, 166 vendor of chattel, operates in rem, 373 wife, binds husband, 151 allegation that cause of action is same, sufficient, 1430 ambiguity in may be explained by parol evidence, 237 are always of record, 8, 9 as a plea, a bar as evidence conclusive, 107, 141 merger of void contract, 505 to mortgagor bars assignee from pleading usury, 154 status of person, upon whom conclusive, 160 are to pages.] InDEX. 1558 Judgments (continued). asserting right under it, estops party from attacking it, 337, 377j assignee of, cannot plead usury, 154 concluded, 154 at law, applicable in equit}'-, 108 conclusive in equity, 108 when defendant not barred from equitable relief, 299 bars another action for part of same demand, 1421 the original cause, 1421 same matter, 561 any defense that might have been litigated, 561 defense, if party neglects to make, 260 to a former suit, 276 of fraud, 276 party beneiited by prosecution of action, if notified, 159 successor of the parties, 164 benefits, how secured, 80 between parties and privies, must show matter litigated, 295 the same parties a bar to another action pending 127 or privies, conclusive, 1 07, 140, 141, 144, 145 what parties they are conclusive, 146, 147, 155, 176, 284 binding effect of, 44 on one who instigates litigation, 167 binds all persons who are rejireseuted by parties, 148 parties and privies thereto, 145, 148, 149, 155, 176, 228, 268, 284 appearing by agents or representatives, 163 and privies only, 176 notified to take defense, 157 party who has been admitted to defend, 199 takes the defense of suit, 157 • with ordinary rights of a litigant, 167 principal when noticed to defend, 159 privy in blood, as heir, 150 purchaser 2^6ndente lite, 206, 208 third persons liable to defendant, if notified, 159 ^ vendee of chattels, 204 both litigants must be concluded bj', 156 Bracton's definition of, 35, 37 by agreement and consent when res judicata, 41 assignee, conclusive of assignability of cause, 297 confession, bars defendant from recovering judgment, 261 confession or default, of what conclusive, 41 consent effect, of as res judicata, 132 of parties, final, 551 default and judgment on verdicts, same cfiect, 42 98 1554 Index. [References Judgments {contimied). by default bars a writ of error, 47 receiver, binds trustee and bond-holders, 167 cannot avail or bind strangers, 114, 140 be collaterally impeached, 46 contradicted by evidence, 24 impeaclied, 108 from within, 454 because based on -wrong grounds, 314 in action of mandamus, 138 obtained where party divides claim, 246, 250 questioned for erroneous instructions, 312 reviewed in equity for mistakes, 454 operate as a bar unless subservient action is for same wrong, 242 clerical errors in, will not vitiate its conclusiveness, 313 collateral and incidental questions not concluded by, 324 collecting by execution, bars appeal, 339 concludes rights of parties as to causes stated in pleading, 251 conclusive against party enticed into a state, 547, 549 as to all allegations on record, 281, 282 matters litigated in actions to revive, 137 that might have been litigated, 201, 276, 277, 278 parties and their rights, 482 relation of debtor and creditor, 413 usury, 47 because defendant is bound to use diligence, 278 effect of, cannot be questioned, 290 how limited, 25 limited, 46 by the matters in issue, 241 evidence of indebtness of corporation, 1359, 1360 their own correctness, 307 in equity to defenses, party fails to plead, 276 if same question arises directly or collaterally, 279 in case of ejectment without pleading it, 1423 .equity, as to defense party failed to plead, 276 no matter how numerous the questions involved, 233 of every fact esscmtial to adjudication, 264 everything necessary to sustain, 263 matters properly alleged, 46 that might be and were decided, 295 same facts though cause of action different, 238 matter, in second suit, 279 the same matter in another tribunal, 284 on all matters that might have been litigated, 1416 points within scope of record, 312 are to pages.} IndEX. 1555 Judgments {contijiued). conclusive on all questions involved, if tried and decided, 233 defense pleaded in former action, 312 defendant, if lie has had his day in court, 278 parties who fail to defend, 277 party who becomes responsible for the litigation, 155 privies who are liable over, 158 same issues between same parties, 232, 278, 279 though cause of action different, 238 evidence necessary to identify cause, 238 parol evidence necessary to identify matters, 238 to prove its own existence, 38 the fact that it was rendered, 482 where actions are identical as to parties and cause, 278 upon party to questions that might have been decided, 295 privies in estate, in blood or in law, 155 extent of, 282, 283 depends upon same point in issue, 305 conclusiveness of, 376 not affected because procured by fraud, 298 conditional, when no bar, 256 confessed by husband in favor of wife, void, 41, 42 contract unimpeachable for want of corporate power, 1360 covers all objections open to party in fiist suit, 549 creditors bound by estoppel of mortgagor, 1023 when estopped from setting up their liens, 1097 date of, when immaterial, 126 debtor, cannot set up adverse title against purchaser, 1296 decides every matter which appertains to cause, 133 defined, 25, 27 deJBnition of the term, 68 denying recovery of principal no bar to recovering interest, 91 determining jurisdiction, bind parties, 315 dismissing an appeal for divorce, a bar, 296 the suit agreed, a bar, 296 distinction between court of superior and limited, 898 one entered by court and clerk, 51 those in x>ersoiiam and in rem, 38 doctrine as to setting aside for fraud, 453, 467 on demurrer, 181 verdict, 181 of Roman law as to privies, 182, 186 do not bar counter-claim, when, 47 include counter-claim not presented, 309, 310 bar counter-claim not presented, 268 bind party without notice, 156 1556 Index. [Beferenceg Jud^nients (continued). efifuct between parties and privies depeuds on the issues, 299 of, cannot be questioned by argument or inference, 323 not dependent upon its reasons, 101 recital that defendant was served, 316 record containing inconsistent counts, 243, 245 when rendered by arbitrators, 299 depends upon their validity, 50, 51 when relied on as evidence, 325 used in pleading, 325 where claims are divisible, 244, 245 no opportunity to plead, 1410 elements of a valid, 84 entered in open court by consent, conclusive, 841 errors in, must be remedied by appeal, 312 essentials of, on the plea res judicata, 38, 39 estoppel by at law, applicable in equity, 108 extends beyond what appears on face, 282, 307 is never inferred, 290 must be mutual, 15, 147, 242 when parol evidence necessary te create, 290 of, must be certain to every intent, 289 set aside by new trial, 333 every party plaintiff and defendant represent, bound, 164 evidence admissible to show matters passed on, 234, 235, 236, 242, 243 to establish identity of cause, 242 identify controversy merged in, 235 aliunde admissible to show basis of judgment, 234 inadmissible to take matters out of bar of, 245, 259 show part of demand not litigated, 245 necessary to show it is for same subject matter, 300 of jury admissible to identify subject matter, 237 to make it conclusive, what should be shown, 292 will be allowed to help record, 291 extrinsic evidence to show matters in issue, 312 extinguishes cause of action on which founded, 560 the demand, 279 final and conclusive as to all matters that might have been litigated, 481 as to matters parties neglect to htigate, 276, 277, 278 points decided, 105 subject matter determined, 130 however erroneous, 107 finality of, 107 first recovered in one of two actions merges cause, 562 rendered in two or more actions, a bar, 126 where separate actions are pending a merger^ 566 arc to pages.] InDEX. 1557 Judjfments {continued). for alimony, when bars action by husband for divorce, 238 conversion of tree, when not conchisive as of title, 257 damages for breach of contract to imply, 288 against carrier, effect of, 2G4 for destroying building by fire, 248 no bar to contesting validity of patent, 292 defendant in trespass, bars trover for same taking, 300 bars action for money received, 310 trover, bars action for money, 300, 301, 333 dower equally conclusive for mesne profits, 856 false imprisonment, when bars action for slander, 506 fraud may be against agent or principal, 3C0 on one note, conclusive in action on others, 231 when no bar to action on contract, 242 goods sold and delivered, conclusive against fraud, 231 ] interest on bond, estops defense of fraud, 231 or against the ancestor, binds the heir, 202 physician, bars action for malpractice, 2G1, 264, 275 plaintiff, conclusive of right or title set forth, 264 as to what might have been recovered, 278 on contract what conclusive of, 283 the defendant in trover, when a bar, 98, 99 wages, conclusive that services were rendered, 263 work and labor when a bar, 250 from which no appeal lies, res judicata^ 39 how it affects purchaser, pendente lite, 208 should be pleaded as a bar, 1427, 1480 notice to defend extends its operation, 199, 201 pronounced, 27 have the character which belong to all records, 24 in a criminal matter, binding on all, 491 proceeding, conclusive effect of, 491 action against sheriff, when bar against purchaser, 281 by husband and wife, bars action by husband, 152 for dower when conclusive on widow, 856 goods sold, when unavailable in similar action, 259 of mandamus, conclusive, 188 partition, bars action involving same matters, 303 trespass, when admissible in ejectment, 884 conclusive of title, 258 trover, for one conclusive as to several debtors, 248 part, bars action for residue, 245 unlawful detainer, what conclusive of, 283 on, defendant cannot plead errors, 561 two counts, when bar as to one only, 255 1558 Index, [References Judg'ments (continued). in action binding against partners, 231, 232, 233 for breach of one of several covenants, 300 recovery for damages, conclusive, 482 of limited and general issues, 237 where injury is of continuing nature, 289 admiralty proceedings, how to be determined, 67, 68 ancient times, how made available, 77, 96 assumpsit, effect of, 326 when it may bar action of trover, 96 case of Gates v. Preston, questioned, 264, 275 two or more actions, binding effect of, 125 nuisance, when a bar, 288, 289 where separate actions brought for same wrong, 836 strangers notified to assume defense, 162 code states should be pleaded, 1434 contempt, final, 568 criminal case, cannot be used in a civil one, 483 proceedings, like judgments in rem, 491 ejectment, by agreement of attorneys, 228 conclusive against defendant and privies, 222 as to mesne profits, 220, 222, 223 contract for the sale of land, 220 distinctions in regard to their conclusiveness, 229 effect in an action for trespass, 230 of mesjie profits, 229, 230 in subsequent action on the judgment, 230 is evidence of collateral matters, 223 for one of two parcels of land, effect of, 222 general rule as to effect of, 221 in actions of, conclusiveness of, 220, 231 California, 225 England, 229, 230 Iowa, 221 Kentucky, 221 Maryland, 225 Minnesota, 221 Missouri, 227 New Jersey, 220 Ohio, 220, 221 Pennsylvania, 220, 221 South Carolina, 221 on disclaimer of defendant, 229 equitable titles, 220 in ejectment on mortgage, bar in another suit, 310 no distinction between one by verdict and default, 221 are to pages.] InDEX. 1559 Judgments (continued.) in ejectment res judicata as to plaintiff's possession, 230 tenant concluded by, 223 when not available in actions for mesne profits, 223 conclusive as to claim for improvements, 277 it settles the title, is conclusive, 222 no bar to a second suit, 221 in equity as to defenses, party fails to plead, 276 efifect of, 616, 617 favor of several, bars action against one, 302 validity of municipal bonds, effect of, 549 vendor, bars suit for non-delivery, 259 for part, bars action for balance, 249 in forcible entry and detainer, conclusive as to possession, 232, 233 foreclosure, binds ail the estate held by defendants, 205 justice court, when a bar to action in superior court, 261 justice's court, when a bar to residue of demand, 246 matters of private right, binds only parties and privies, 157 one action, when a bar to another, 106 federal circuit court, conclusive in another, 284 Outram v. Morewood, 151 partition, a bar to every allegation made and denied, 307 against a widow, when conclusive, 304 binds unknown owners, 305 cannot be collaterally attacked, 305 conclusive against all parties named, 303 distinction at common law and chancery, 306 final and conclusive until set aside, 305 when conclusive on entire title, 303 executed, conclusive evidence, 306 ovXj prima facie evidence, 306 what necessary to make it conclusive, 303 in personal actions, upon what dependent, 69 in personam, 140, 571, 586 conclusive against parties, 140 on personal representatives, 144 privies, 144 upon matters directly in question, 143 difference between, and those in rem, 140 in effect as to conclusiveness, 143 of court of exclusive jurisdiction, 142, 143 on merits binding on assignees, 144 only as to material matters in issue, 141 principles which renders them conclusive, 140 strangers not bound by, 140 in .U. S. courts, 143 1.^60 Index. [lie/erencea Judgments (continued.) in personam must show that court had jurisdiction of party, 63, 64 to be binding, subject and parties must be same, 143 without jurisdiction of parties, void, 63, 64 notice void, 311 in real actions, when an estoppel, 93 in rem, 36, 37, 344, 017, 018 adjudication of party as bankrupt is, 346 affect personal status or relations of party, 347 against a garnishee, 305 bankruptcy proceedings are in the nature of, 285 conclusive if not pleaded, 1415 on the whole world, 216. 356 conclusiveness of, 344 confiscation cases, are, 349 comprises proceedings in prize and admiralty courts, 347 decree for sale of land is, 347 defendant in trover, bars action for money, 333 definition of, 344 derivation of the term, 344 distinction between them and in personam, 345 doctrine as to conclusiveness of, 349 effect of, 353, 355 essential requirements to a valid, 356, 357 for damages for broach of contract to imply a bar, 288 the recovery of title to real estate, 352 how executed, 353 in adjudication upon status, 38 admiralty, are of exclusive federal jurisdiction, 358 attachment proceedings, 358, 359 include proceedings in probate and like courts, 347, 348 is upon the status, 345 jurisdiction of court to render, how obtained, 356 federal courts to render, 347 of persons concluded by, 353 on constructive service, 359, 362 chattels, 347 probate of a will is an instance of, 346 renders the tiling wliiit it declares it to be, 346 that operates like condemnation or forfeiture, 847, 348 transferring or creating a title, 391 when they cannot Ijc enforced in other states, 620 an astoppel i7i jxtis, 373 in replevin, bars action for the same taking, 293 conclusive to recover on bond, 197 if satisfied, transfers title, 294 are to pages.] IndEX. 1561 Judgments (continued). in replevin may be identified by parol evidence, 294 plead as bar in various actions, 1434 prevent same issues being tried on bond, 293 wben title in issue, res judicata, 293 no bar, 373 second suit, when pleadable in bar to first, 252 • state court, available in federal court, 108, 109 trespass, effect of in Pennsylvania, 484, 485 or trover, when pleadable in bar, 213 when bars action of assumpsit, 235 without satisfaction, no bar, 333, 334 trover, effect of, 194 for horse, ba*-s action for taking, 244 may not cover whole conversion, 257 or trespass, when it not available as a bar, 292, 293 which record show several issues, 24 inflexibility of rule, where matter in issue, 245 intervenor, bound by, 156, 157 inter partes, binds parties, and those claiming under them, 148 involving important rights, may be re-examined, 123 title, conclusive on vendor, if notified, 199 is prima facie termination of matters in controversy, 128 res judicata in another action pending for same cause, 127 the termination of an action, 26, 27 issues that are essential to their conclusiveness, 281 joint, conclusive against one, in suit for contribution, 311 kinds of, final and interlocutory, 27 limitations to actions for relief against, 464 limited nature of, does not prevent embracing all issues, 311 of United States Courts, 399 to the points actually decided, 103 marshaling liens, when conclusive, 534 matters which would have been defense to former suit, 276 may be bar, and yet no adjudication on merits, 296 conclusive evidence and yet no bar, 103 explained by evidence, 24 given in evidence under general issue, 1425 impeached if obtained in fraud of bankrupt law, 452 made conclusive by estoppels in pais, 336 used to show suit was determined, 334 what party has been compelled to pay, 334 merges all defenses though disregarded by the conrt, 313 cause of action, 293 defenses not made, 261 note, 559, 560 1562 Index. [Re/ei-encei Judginents {continued^. merges original cause of action, 124, 133 what questions of fraud, 454 merger notwithstanding errors by the court, 313 of, 549, 552 matters in, conclusive in equity, 454 mistakes and errors iu, how corrected, 453, 454 of judge will not affect conclusiveness, 312 must be between the same parties, 313 bind both if obligatory on cither, 242 be certain, not extended by implication, 262 followed in every action by parties on same issues, 232 on the merits, 236 rendered by court of competent juri^liction, 313 nature of, does not affect its conclusiveness, 135 how determined, 27 necessary to valid judgments of inferior courts, 406 negativing right of plaintiff or defendant, 231 prevents its subsequent assertion, 152 neither benefits nor injures third parties, 885 nil debet not a good plea to, 1435 no bar to matters not in issue, 105 where the cause of action is not identical, 106 not available in favor of strangers, 1418 conclusive on collateral or incidental matters, 284 limited to facts, not admitted or proved, 280 notice given by defendant to party will bind him, 158 nul tiel record, only plea to, 1435 obtained on fraudulent instruments, conclusive, 462 perjured testimony, when vahd, 457 of acquittal, effect of, 483 appellate court, binding on lower court, 118 conclusive as to law of case, 118 binding, though of a divided court, 121 effect of, 118 when it may be questioned by that court, 121 arbitrators, how obtained, 530 a cause, what it is, 65 competent tribunal, conclusive in every other, 233 conviction, effect of, 483 in U. S. court, conclusiveness of, 484 court having jurisdiction, conclusive though erroneous, 421 until set aside, 63 of claims, when conclusive, 534 general jurisdiction cannot be collaterally attacked, 284 last resort, binding, though case dismissed, 122 are to pages.] IndeX. 1563 Jadgments (continued). of court on particular point, conclusive, 106 refusing party right to be heard, void, 110 having special statutory authority, 404 of competent jurisdiction not affected by errors, 316, 317 exclusive jurisdiction, bankrupt discharges are, 285 limited jurisdiction, 397 peculiar and exclusive jurisdiction, final, 534 limited or general jurisdiction, conclusive, 109 rightful jurisdiction conclusive, 109 confession, res judicata, 43 dismissal void, when defendant confesses judgment, 62 when a bar, 295, 296 without prejudice, no bar, 297 ecclesiastical courts, conclusive, 532, 534 inferior courts, 397 always open to inquiry, 406, 407 beyond jurisdiction, void, 453 irregularities in, cannot be inquired into, 403 rendered on insufficient evidence, 313 questionable for jurisdiction, 406, 407 what must be sbown by records, 401 when void, 51 of justices of the peace, of what conclusive, 403, 404 void without jurisdiction, 404 limited and inferior courts what must be shown, 397 jurisdiction must be pleaded, 1431 when it cannot be plead in bar, 1431 military courts, 513, 516 non-suit after trial, effect of, 296 statutory requisites of, 661, 662 subject matter of, must be within the jurisdiction, 639 upon constructive service res judicata, 627 principles apf)licable to, 624, 628 when void, 627, 628 status of parties, 623, 624 what jurisdiction dependent, 640 Utah divorces, 652, 655 valid, if parties actually domiciled within jurisdiction, 640 where court has jurisdiction, 630 . void as to one defendant void as to all, 683 what may always be set up against their enforcement, 611 included under, 612 must be shown in actions in personam, 664 record of should show, 614, 615 ■when conclusive, 616, 617 1564 Index. [References Judgments (rontimied). when courts will enjoin actions on, G71, 672 of other states, when examinable in U. S. supreme court, 684, 690 may be impeached by parties, 5S7 not conclusive, 579 party cannot question jurisdiction, 619 res j'ldico.ta, 640 valid where rendered, and invalid in other states, 620 void beyond jurisdiction where rendered, 582, 585 for uncertainty, 676, 677 where jurisdiction shown, errors will not avoid, 674 fraud no defense to, 670 party within jurisdiction of court, 624, 626 record shows no appearance or service, 681, 682 without personal service, is unenforceable, 622 - why conclusive, GOO, 601 enforcible by the whole world, 579 examinable as to jurisdiction, 678 limitation of conclusiveness of, 682, 583 may be binding where rendered, and yet void, 622, 623 valid for resident without personal service, 640 where rendered, and void in another, 620 must be final and conclusive where rendered, 681 nil deJiet not a good plea to, 606, 667 not subject to collateral impeachment, 672, 673 nul tiel record, effect of in actions on, 066 objects of constitutional provisions regarding, 599, 600 of admiralty courts, 572, 574 condemnation, 576 inferior courts, jurisdiction mu§t be show'n, 615 tribunals within constitutional provisions, 613, 614 the probate of a will, effect of, 612 on construction, of local statutes, 677 constructive service, eficct of, 620 to what extent valid, 622, 627 foreclosure of mortgage, 664 plea good, if ijood in state where rendered, 601 of fraud, not admissible in action on, 668 jurisdiction a matter of defense, 664 mil ticl record is the only defense, 614, 615 pleading fraud as a defense to, 668, 675 in actions on, 666, 667 pleas admissible to, 1435, 1436 bad in actions on, 667 questioning jurisdiction, 631 are to pages.] InDEX. 1565 Judgrments (continued). of other states, point open to litigation in actions on, 635, 686 power of court rendering, examinable into, 573 presumptions in favor of, 676 and accredited to, 602 jurisdiction, 615 * regularity, 631, 632 prima facie evidence until jurisdiction established, 611 principles applicable to, 702, 703 in regard to subject matter, 639 reasons for questioning attorney's appearance, 630, 636 why conclusive, 680, 681 recital of personal service must be impeached, 665 proof necessary to impeach, 665 recitals as to jurisdiction may be contradicted, 641, 642 record of showing neither service nor appearance, 677 rendered without jurisdiction, void, 615 general rule in regard to, 572 having no extra- territorial effect, 616 how appearance by attorney questioned, 631^ far affected by fraud. 641, 643 jurisdiction obtained, 638, 639 if appeal does not set aside judgment, conclusive, 680, 681 conclusive where rendered, fraud no defense, 672 fraudulently obtained conclusive until reversed, 674 jurisdiction not impeached, conclusive, 611 » valid where rendered, valid in other states, 668 impeaching, questioning appearance of attorney, 630, 635 importance of jurisdiction of subject matter, 639 in actions of divorce, 636, 6G1 on, want of jurisdiction maybe shown, 602, 607 admiralty, conclusive between insured and insurer, 575 enforcible by all com-ts, 577, 588 in attachment, 627, 629 and garnishment, effect of, 585, 586 no evidence of a debt, 626 no merger, 627 void as to excess, 626, 627 divorce doctrine conflicting in N. Y., 645, 647 in regard to in 111., 651 N. J., 643, 644 Wis., 652 in favor of lunatic by guardian, may be sued upon, 611 garnishment, 678 in rem, as to personal property, 572, 573 bind property within jurisdiction, 626, 627 1566 Index. [References Judgments {continned). of other states in rem, cannot be the basis of an action, G22, 623 conclusive of their own existence, 575 conclusiveness of, 579, 580, 583 interpreting statutes, conclusive, 684, 685 irregularities do not avoid, 076 jurisdiction admitted or proved, effect of, 636 complete when party served, 635 need not be averred, GG4 of court rendering, conclusive in actions,675 jurisdictional facts only, inquirable into, 578, 580 matters considered, 638, 641 questions in regard to, 615 defects in record, how taken advantage of, 666 defenses available against, 068 to, under code pleading, 671, 672 depends on competency of court pronouncing, 606 design of constitution in regard to, 606 distinction as to use of, as actions, defenses, 571, 586 between superior and inferior courts, 615 in cases as to appearance, 034 do they include justices of the peace, 613, 614 doctrine applicable to civil and criminal in N. C, 612 Texas, 612 only in civil cases in Mass., 612 courts that have no records, 613,014 fraud in ]Sr. Y., 669 England, 0G9, 673 Iowa, G12, 613, 669 Kentucky, 669 if obtained during temporary residence, 642 in regard .to, settled in U. S. Sup. Court, 608, 609 of the U. S. Sup. Court as to, 603, 607, 058, 660 Yattcl in regard to, 572 that jurisdiction is inquirable into, 610, 611 during the late war, 698, 699 revolution, G98, 702 effect given to records of, 003, 604 in each state, 678 of, 601 dependent upon the lex fori, 615 determined by laws of state where rendered, 676 fraud and collusion, 642, 652 recital of appearance by attorney, 030, 636 personal service, 665 where an appeal is pending, 679 arelopar/es] InDEX. 1567 Judgments {continued). of other states, effect of, where court has jurisdiction, 604 rendered without jurisdiction, C41, 643 constitutional provisions as to, 602 English doctrine as to, 656, (io8 rule as to appearance of attorney, 632, 634 equally conclusive, acquittal or conviction, 577 essential requisites of, to bo conclusive, 619 evidence inadmissible under plea of nul tiel record^ 666 extract from Thompson v. Whitman, 608, 609 failure of jurisdiction renders them a nullity, 571 force and effect of, 603 fraud no defense, to 618 full faith and credit given to, 620, 621 actions on, bar all defenses except jurisdiction, 607 admiralty, rule in England as to, 575 against citizens temporarily absent from state, 629 corporations, 603 not served, void, 627 one of two defendants only, 682, 683 void, 626, 627 allegations in pleading records of other states, 664 matters of legal regulation, 638 on status of pai-ties, 638 at war with each other, 698, 699, 702 authentication how executed and who by, 661, 663 binds all citizens within jurisdiction, 638 by attachment where defendant appeared, 602, 603 confession, 678 cannot be made conclusive without jurisdiction, 607, 608 competent defense to show want of jurisdiction, 607 conclusive as to everything except jurisdiction, 601 where rendered, conclusive everywhere, 601, 605 only if court has jurisdiction, 607 of courts-martial, conclusiveness of, 510 conflicting doctrine as to, 604, 605, 637, 648 contradicting jurisdiction aud attorneys' authority, 680, 636 parol evidence admissible to enlarge its operation, 312 give it proper effect, 243 show matters in issue, 329, 330 not inconsistent with record, admissible, 234 when necessary to make bar, 290, 291 party accepting, cannot reject conditions on which made, 337 cannot deny rendition on date of entry, 306 recover several by splitting up claim, 248, 253 1568 Index. [Ee/ereneea Judgments (continued). party having election as to remedies, can have but one, 535 obtaining, cannot repudiate, 337, 338 pleading, should show that matters are same, 235 taking part in, cannot deny power to render, 340 when not permitted to show errors in, 75 personal as res judicata, to whom applicable, 145 persons under disability, how bound, 178 who are not bound by, 146 plead as bar in actions arising on same contract, 1434 in bar of action arising out of same cause, 1435 must be on point distinctly in issue, 1428 pleading estops party from taking advantage of, 336 it by way of estoppel, 1433, 1434 in abatement, no right to plead it in bar, 252 precludes defendant neglecting to plead his defense, 308, 309 presumption that it is a correct record, 482 presumjitions in favor of, 316 that it covers the whole case, 257, 311 prevent its being collaterally assailed, 421 principles applicable to, 599, GOO principle of, conclusiveness of, 298 privy may take advantage of, 150 questions of identit)-, how determined, 234, 237 tliat may arise from the fact of their rendition, 38 ratification of, by enforcing it, 339 reasons assigned by court immaterial in, 312 reason for rule of conclusiveness between parties, 147 in favor, their conclusiveness, 130, 131 record imports absolute verity, 307 of, when evidence in favor of a stranger, 335 must show same matters could have been litigated, 329 with some certaintj'^ the points determined, 289 what necessary to show on its face, 1421 recovered against plaintiff on merits, conclusive, 561 may be plead in bar of a second action, 561 origin of this plea, 79 on part of claim, merges the whole, 247 demand bars action for the residue, 250 ends litigation as to whole, 247, 250 entire claim, a good plea in bar for residue, 251 partnership contract, merges it, 297 petition for a highwaj^, a bar, 296 plea in abatement, conclusive in another action, 232 of non assumpsit conclusive for plaintiff, 568 71071 est /actum eflfect of, 326 are to pages.] InDEX. 1569 Judgments (continued). on plea of mil tiel record, conclusiveness of, 298 questions of law equally conclusive, 280 or fact equally conclusive, 232, 233 title, conclusive on privies, 204 to land, 203 applies only to part of title put in issue, 203 on report of referee, master, etc , res judicata, 41 - running account when a bar, 2d0 scire facias on a mortgage, merges it, 565 single act of trespass or trover, conclusive, 247, 248 the merits an absolute bar whether pleaded or not, 1416 on scire facias conclusive, 215 point when it may and may not be a bar, 1049 title in trespass bars action for damages, 151 traversable facts, bars action for different relief, 238 trial by court without jury, 567 validity of bonds cannot be attacked in mandamus, 138 patent, what conclusive of, 284 tax binds tax-payers, 166 operation of as a merger, 559 operates when it becomes res judicata, 561 ordering defendant to pay what is demanded valid, 61 . of ouster, conclusive against successor in office, 203 in quo warranto, 152 probate court cannot be impeached collaterally, 402, 404 how avoided in Mass. 453 courts only examinable as to jurisdiction, 403 release or dismissal, how made available, 1417 retraxit, 48 a bar, 296 reversal, effect of, 106 subject matter and parties makes judgment conclusive, 421 superior court when it cannot be set aside, 418 U. S. courts when final, 306 various courts that are conclusive, 107 on accounting between partners, conclusive 232, 233 account, when a bar to an action, 246 action prematurely brought, no bar, 240, 333 agreed case, final, 551 an entire contract for delivery of goods, 311 an entire contract, prevents second suit for part, 279 bond, when bars action of tort, 257 appeal, conclusive of facts necessary to support it, 263 i or affirmance, conclusive, 262 awards of arbitrators, 527, 532 99 1570 Index. [References Judgements (continued). on book account, when a bar, 249 bonds, conclusive in action of mandamus, 138 bond or contract, extinguishes it, 564 compromise, merges all matters included in action, 562 construction of a deed, conclusive, 326 contract, conclusive in favor of plaintiff, 262 when bars action of tort, 239 ' counter-claim, when res judicata, 279, 280 covenant of wanant^', bars subsequent action on same, 565 declaration containing several causes of action, 243 demand plead as a set off, Vjarred, 279 demands presented, is complete bar, 236 demm-rer, conclusive as to what issues, 322 conclusiveness of, 321, 323 demurrer, when a bar, 106 when not conclusive, 323 dismissal, Avhen a bar, 297 distinct contracts, when no bar, 255 facts once put in issue, conclusive, 312 firm note made by one member, conclusive of partnership, 231 general issue, effect of, 328 foreclosure, conclusive between parties and privies, 205 issue of fact, conclusive, though no relief asked, 233 joint contract, a bar, 1 98 and several contract, no bar, 188 verdict for plaintiff, in trover, 244 lost note, when complete bar, 127, 128 matters growing out of one contract, 253 motion, effect of, 283 municipal securities, 549 note, of what conclusive evidence, 231, 232 when res judicata as to mortgage, 565 one item of indebtedness, when a bar, 235 remedy, when bars any other, 339 one who agrees to be bound by, is privy, 150 071US, on whom to show it is not conclusive, 295 release of for less than face, a bar, 329 relied on as fact, must be set forth in the answer, 1415 rendered against army officers during the late war, 53, 54 between persons, jurisdiction presumed, 410 by court of competent jiuisdiction, when final, 99, 100 with and without jurisdiction, 421 representing it in one aspect prevents giving it another, 336, 337 requirements to bind person not party, 159 ^ requires notice to be valid, 51 are to pages.] IndEX. 1571 Judgments {continued). requisite that amount of should be certain, 61 to its conclusive effect, 313 know what is within the bar of, 237 make party privy to, 155, 156 res judicata, 39 as to all things that were or could be litigated, 301 revivor of, 137 rules in regard to, 401, 402 ascertaining its conclusiveness, 237 of conclusiveness prevents litigation, 310 satisfaction by one of two wrongdoers a bar, 194 should be pleaded when ojiportunity presents itself, 1420 show that same matter was litigated, 328 test whether it is for same cause in second action, 96 that are absolutely void, 52, 54 conclusive, 136 ^ bankrupt's discharge is fraudulent, 232 does not determine right of j)roperty, 373 the most, extensive species of records, 25 though erroneous, binding until reversed, 534 res judicata., 312 ► informal, when a complete bar, 295 irregular, good until reversed, 58 title by, 213, 214 to be conclusive, need only be against parties' interest, 297, 298 on parties, must be adversary parties, 149 eflfectual, what it must show, 551 res judicata, must be final, valid, and on merits, 38, 39 should be for same cause, 85 between the same parties, 88, 107, 140 valid, must be against persons capable of being parties, 62 bind party by, must have his day in court, 201 operate as a bar, what must appear by record of, 1415 prove itself, is conclusive against the world, 482 transferring or creating title, 391 upoiA the findings, makes the estoppel, 240 merits, conclusive until reversed, 236, 242 unreversed and unrepealed, conclusive, .200 valid, if by reference it can be identified, 61 though irregular, 47 validity cannot be denied by party collecting money on, 337 of cannot be collaterally questioned, 313 various kinds that may be res judicata, 41 vitiated hy fraud, 256 void and voidable, distinction between, 50, 51 1572 Index. [Rejerences Judgments (eontimied). void for defective service, 315 in contempt cases, when, 53 for want of jurisdiction over iJerson, 24 subject to attack, 50 when it contains inconsistent matters, 62 judges anything contrary to law, 61 its object is impossible, Gl rendered by tribunal without authority, 52 without giving party an opjwrtunity to be heard, 52 voidable binding until reversed, 50, 58 can be assailed only by direct proceeding, 63 voluntarily adjudged is, r en judicata, 40 satisfying, prevents party disputing, 341 voluntary settlement of, prevents appeal, 339, 341 what conclusive of, 44, 48 what identity of interest to create a bar, 155 necessary to render it conclusive, 104 when conclusive as to admission of partnership, 835, 386 claim becomes merged in, 243 conclusive of title in another action, 238 considered as having settled all matters, 291 conclusive without pleading, 1410, 1423, 1424 evidence as to amount of damages, 38 of negligence, for principal, 38 equity will not interfere with, 462 final, 27 followed by U. S. supreme court, 683, 687 inadmissible under general issue, 1423 it bars subsequent suit, 331, 332 binds party to an indemnifying bond, 202 one who intervenes in a suit, 213 can and cannot be controlled by evidence, 329 cannot be rendered without deciding specific issues, 232 is uncertain, 52 may be collaterally attacked, 311 must be averred to be for the same cause, 1419 on merits, 1419 ^ operates as a bar, 110 will not bar equitable relief, 299 jurisdiction shown, conclusive, 407 jury may determine the matter in issue, 234 limited to points actually decided, 312 merely voidable, 61 no bar to a second action, 105 not necessary that precise point should be in issue, 281 arc to pages.] INDEX. 1673 Judgments (continued). when one cannot be bound by, 216, 218 parol evidence admissible to identify parties, 234, 235 party estopped from questioning, 421 may reply that it is not same cause, 234 plea of former, may be defeated, 257 prima facie evidence upon one of several counts, 234, 236 proof against collateral attack, 423 properly entered, when void, 51 it leaves questions unsettled is unavailable, 289 record sufficient proof of matter in issue, 329 regarded as rendered on merits, 331, 332 ''"- relievable in equity as to defense not plead, 260, 261 same question at issue in two cases, absolute bar, 280 U. S. cannot be bound by, 216, 218 used as evidence, cannot be impeached, 313 in pleading, must show what determined, 291 verdict without, "will be conclusive, 566, 567 void for uncertainty, 568 where bankrupt fails to plead discharge, 276, 286 conclusive in evidence without pleading, 1423 injury is of permanent character, a bar, 289 it must be specially pleaded, 1428 jurisdiction is shown, valid, 551 party against whom used fails to show it was not on merits, 236 can recover all his damages, a bar, 288 negligently fails to defend, a bar, 261 sues for part of indivisible demand, 246 plaintiff has several separate causes of action, 310 point in issue determined, a bar, 332 several actions are brought by same parties first a merger, 336 . there is no issue to be decided, 27 whether a bar depends upon its being on merits, 239 while unreversed, final, 105 without regard to nature of question that creates bar, 280 why conclusive on principals and sureties, 168, 177 the whole world, 396 regarded with favor as a bar, 89 strangers not bound by, 147 of superior court, when it cannot be assailed, 422 limited, 420 Judicial — acts of one nation to be respected by another, 579 when binding on infants, 178 determinations that are res judicata^ 42 judgments, what are to be binding, 942 1574 Index. [lie/erences Judicial (continued). proceedings examinable to ascertain authority of court, 579, 580 "what requisite to make conclusive, 579 when binding on infant, 1259 sales, estoppel applicable to, 719 Jurisdiction — always inquirable into as regards foreign judgments, 575, 576 in judgments of other states, 603, 650 cannot be conferred by consent, 67 cures irregularities in judgment, 421 decision that court has, final, 424 determination of, by court, when final, 409, 410 423 different significations of, 68 distinction between lack of and irregularly obtaining, 421 doctrine as to limitation of in various courts, 407, 408 stated as to its effect on judgments, 417 eflfect of judgment rendered without, 415 where court has none, 69 essential to valid judgments of foreign courts, 403, 404 exclusive of probate courts, 402 vested In courts, 402 facts must be shown on record of inferior courts, 401, 402 how it afi^ects the conclusiveness of judgments, 409, 410 obtained, 65 if court has, irregularities of, no effect, 316, 317 in cases in rem, 65, 69 divorce cases, 638, 650 inquirable into, in isiferior courts, 403, 404 is authority to hear and determine, 68, 72 given by law, 67 right to hear and determine, not determine without hearing, 74 pronounce judgment through due process of law, 70 the authority to judge or administer justice, 68 judgments of courts having, conclusive upon same matter, 142 limitations of, to various courts, 407 limited to persons, place and things, 415, 416 necessary to a valid judgment, 24, 70 make foreign judgments conclusive, 572, 573 valid judgment of another state, 611 no presumption in regard to inferior courts, 316 of court not impeached renders judgment conclusive, 611 federal courts in bankruptcy matters, 285, 287 foreign prize courts, what dependent upon, 583, 584 party and process necessary, 415, 416 probate court renders proceedings conclusive, 391 courts, 379, 402 are to pages.] InDEX. 1575 Jurisdiction {continued). of probate courts, when original, exclusive and general, 391 superior courts will be presumed, 413 the person, how acquired, 65 U. S. bankruptcy courts, exclusive, 285, 288 old rule of as to superior and inferior courts, 401, 402 once attaching, is not lost by arbitration, 402 over cause and person necessary to valid judgment, 65, 67 the persoQ, essential to valid judgment, 54, 55 party cannot question after bringing suit in, 451 personal judgments of courts of exclusive, 143 plea of, admissible against judgments of other states, 1436 presumptions in favor of courts of general, 447 in superior courts, 316 proceedings of courts may be assailed for want of, 415 question of, how determined, 67, 68 recital of in record, conclusive, 418 of superior court, 418 when it cannot be attacked, 418, 419 required in courts whether superior or inferior, 109 rule applicable to courts of general, 66 should always be found by court, 66 U. S. courts are of limited, 143 upon what dependent, 68, 70 waiver in regard to as an estoppel, 942, 943 what courts can determine their, 409, 410 must show their, 409, 410 is an adjudication of, 423 when presumed in actions between individuals, 410 a question of fact, when conclusive, 419 it attaches, judgment cannot be impeached, 413 must appear on face of record, 409, 410 shown, makes judgment valid and binding, 59, 60 sufficiently definite and certain, 61 Jury- bound by judgments, in pleadings, 939 whether by decree or judgment, 1412 evidence not allowed to contradict record, 237 of, admissible to prove identity of subject matter, 287 finding by, when disregarded in favor of an estoppel, 1441 trial, effect of failing to demand one, 957 trials, waiver in, 955, 964 what to determine under plea of res judicata, 1427 when and when not bound by estoppel by deed, 1438, 1439 bound by judgment, 1434 record, 1412 1576 Index. [References Justices of the peace — doi'trincs in regard to their judgments, 403, 404 judgments of, 403, 404 jdoading judgment of, 405 when hiible as trespassers, 404 Justinian's defmition of exceptionea, 76 K. Kentucky — doctrine in regard to judgments in ejectment in, 221 Kinds — of actions, 28, 38 estoppel, 1 judgments, 27 that are conclusive on the whole world, 115 res judicata, 38, 39 / may be basis of action in another state, 78, 79 records, 21 Knowledge — necessary to a valid ratification, 1215 create an estoppel by acquiescence, 1193 of agent knowledge of principal, 1334 matters avoiding policy, knowledge of Co. 1346 L. Laches — in enforcing one's right, when a bar, 1360 when it estops party, 1194 Land — commissioner, decision of, when conclusive, 525 oflicers, decisions of when conclusive, 525 Landlord and tenant — application of equitable estoppels to, 968. 1010 estoppel between binds their privies in estate, 979, 980 may be barred from insisting on their rights, 1005 Landlord — assuming defense, when estopped by judgment in ejectment, 226 when bound by same estoppel as tenant, 991, 992 Landlord's title — tenant cannot deny during contiuuancy of lease, 979 Language — of vendor, when it creates an estopjiel, 1074 Law — does not tolerate second judgment for same thing, 278 due process of, 7, 71 are to pages,] IndEX. 1577 Law (continued). judgments at, when relievable in equity, 299 of estoppel, neither unjust nor absurd, 10 Lease — and release when they work as an estoppel, 816 binds all who claim through or under lessee, 835 by estoppel must bind both parties, 840 indenture, effect of, 841 party having no estate, when it operates by estoppel, 839, 840 does not prevent denial of landlord's title after expiration, 847 estoppel by, what based upon, 889 executed by agent of lessor binds him, 846, 847 making of, creates an estoppel, termination of ends it, 992 of chattels creates estoppel equal to that of land, 1014, 1015 possession obtained by lessee on faith of, 848 recital of in a release, effect of, 847 deed an estoppel, 756 title under inures by way of confirmation, when, 841 when after-acquired title inures by virtue of, 841 estoppel on acceptors of, 844 it operates between parties by estoppel, 837 works by estoppel, must be reciprocal, 840 Leases— by estoppel, 834, 858 adverse possession none while occupying under, 837 after-acquired title, when it inures, 834, 836 apply where lessor has no title, 835 assignee bound by, 838 assignees concluded by, 844 bars lessee from questioning title, 835 bind all who claim under lessee, 835 binds parties and privies, 842 confined to parties to lease, 842 do not bind infants or married women, 840 work when they piass an interest, 840 doctrine as leases by indenture, 841 in regard to, 835, 837 heirs when not bound by, 843 if an interest passes, lease cannot operate, 841 infants, married women excluded from benefits, 834, 840 lessee estopped by from denying possession, 839 must be by indenture, 834, 836 mutual, 834 nature of, 839, 840 none, if lessor has any estate which passes, 834, 842 prevents lessee from disputing lessor's title, 835 1578 In^DEX. [Eeferencea Leases {continued). by estoppel prevent lessor from avoiding his grant, 83G parties from disputing lessor's title, 844 privies entitled to benefits of, 844, 845 in estate bound by, 843, 844 runs vvith land, 842 what words will create, 846 when they become operative, 834 pass heir's after-acciuired interest, 837 where lessor has no title at time of lease, 836, 837 when they become operative by estoppel, 817 legal assertion of a right, when it estops party, 337 and equitable estoppels based on same principles, 1085 requisites to jurisdiction, 68, 74 legatee cannot accept and reject letter containing bequest, 1176 legatees, how affected by judicial proceedings, 182 legislative act, when an estoppel on state, 811, 812 legislature may by ratification bind state, 1264, 1265 lender taking title in name o^, on purchaser, 930 lessee and lessor must both be estopped, 848, 850 assignee of, estopped from disputing title, 971 by lease or occupation cannot dispute lessor's title, 992 cannot deny lessor's title in actions for rent, 971 impeach title of lessor's assignee, 971 question title of lessor, 844, 845 set up want of title in lessor, 839 estopped from questioning title in action to recover rent, 835 failing to notify landlord of suit in ejectment bound, 991 may rely on want of mutuality, 848 not bound by lease from & femes covert, 848 estopped by description of land in lease, 849 when estopped by deed-poll, 848, 849 not estopped by deed-poll, 848, 849 lessee's title when lessor estopped from alleging want of, 845, 846 lessor cannot claim lease void for one purpose, valid for another, 1176 set up adverse title of another, 992 estopped by receipt of rent, 1175, 1176 letters testamentary, effect of in other states, 38, 86 grant of conclusive, 885 levying an execution on goods bars setting up other title, 1101, 1102 Liability — of party who is notified to assume defense, 158 principal enforced on grounds of estoppel in pais, 1209 License — . to erect a dam, when estoppel, 1109 when party estopped from revoking it, 1170 are to pages.'] INDEX. ' 1579 Licensee— on same footing as tenant to deny title, 971, 973 Licensor — bound by expenditure of money on faith of license, 1106 Lien — of vendor, when merged in judgment, 560 a vendor, when waived, 965, 966 representing property to be free from, 904 title to, may be affected by estoppels in pais, 2 may be lost by operation of estoppels in pais, 1199, 1200 Limitation — of estoppel between landlord and tenant, 979, 988 equitable estoppels, 1003, 1008 estoppel in pais to notes, bills, etc., 1114, 1115 of an adjudication, 312 jurisdiction does not imply inferiority, 399 the doctrine of estoppel by deed, 714, 719 estoppel of judgments, 103 applicable to judgments in rem, 358 as to judgments by default, 45 foreign corporation, when estopped from pleading, 1390 of courts as to various matters, 72 doctrine of conclusiveness of foreign judgments, 582 preventing relief against judgments, 463, 464 to the conclusive effect of a record, 25 judgments, 24 waiving plea of, 955 when Ins. Co. estopped from pleading, 1352 on judgments of inferior courts as to jurisdiction, 407, 408 Limited — nature of judgment does not affect it as an estoppel, 311 Line — of distinction between superior and inferior courts, 409, 410 Lineal — warranty as an estoppel, 816 Lis pendens — doctrine of as affected by judgments, 205, 211, 212 Listing — property for taxation, 936 Litis contestatio — 79 Living — with woman as \^ife, estopped to deny relation, 936 Location — of boundaries a question of fact, 1268 boundary lines by legislature conclusive, 1266 Lying— by and permiting party to purchase property, 1075, 1076 1580 • Index. llie/erences M. Maker— of accommodation paper, when estopped, 1120 note, cannot deny existence of corporation, 1408 set up defense, when, 1118 estopped by negligence in its execution, 1128, 1129 executed to raise money, bound, 1120, 1121 "when estopped from setting up fraud, 1112, 1113 telling party note is all right, 1121 Makers — joint, judgment against, 187 Man — • cannot dispute recitals in deed which he accepts, 738, 739 representing woman to be his wife to tradesmen, 917, 918 Mandamus — in application for, judgment cannot be impeached, 138 used to enforce judgment, therefore judgment conclusive, 138 Manner — in which deed operates, how ascertained, 709 of making estoppels available against privies, 1439, 1440 pleading an estoppel by deed, 1439 questions actually brought before the court immaterial, 136 Manufacturer — when estopped from denying validity of patent, 775 Maps — of streets, etc., conclusive as to boundary lines, 1276, 1277 Marriage — decrees, dissolution of in other states, 637, 661 Married woman — . acquiescence of, when it will be presumed, 1250 allowing husband to deal with her ]n-operty, bound, 1241 hold himself out as owner, 1249 patentee, 1249 answerable for the frauds of her agent, when, 1239 bound by allowing husband to mortgage her jiroperty, 1249 becoming stockholder in corporation, 1240 bringing suit to recover purchase money, 1244 carrying on separate business, 1239 certificates of no defense, 1237 deed fraudulently entered into, 1241 facts recited in a cause to which she was party, 1249, 1250 participation in fraud, 1246 statement that she is divorced, 909 though agents and others protect her interests, 1250, 1251 are to pages.] INDEX. * 1581 Married woman (continued). bound, where husband manages her interests, 1248, 1249 carrj^ing on separate business bound same as single. 1233 conducting business by consent of husband, bound, 1251, 1252 covenants of warranty, when not binding, 716 failing to assert her rights in judicial action, 1249, 1250 inducing party to purchase, cannot claim title, 1243 liable for her frauds same as single, 1245, 1246 making contracts and representing herself single, bound, 1284 may bar her right of dower by estoppel, 1244, 1245 . not estopped by representation that she is single, 716 recognizing title in another, cannot controvert it, 1250 representing herself as widow, bound, 1255 to be single, 1237 requirements which prevent claiming her rights, 1236 uniting with husband in assignment of property, 1232 voluntarily surrendering homestead estopped, 1240 when estopped by admissions made in court, 1250 not allowed to contest mechanic's lien, 1242 why she should be concluded by judgments, 189 admissions and representations of, which deceive others, 1250, 1251 affected by estoppels in pais, 1076, 1077 application of equitable estoppels to, 1231, 12G0 bound by estoppels in pais, 1075 by joining with husband in deed, 716 judicial proceedings, 191 where they execute notes in blank, 1248 contracts of, when validated by estoppel, 1251 ' conveyaixie, when it operates by estoppel, 716 deed of, at common law, effect of, 715 when no estoppel, 715 where it fails as conveyance, 715 doctrine and rules as to judgments, 188, 193 as to estoppel iiniais, 1233, 1284 in N. Y. as to estoppel by deed, 715, 717 regard to in England, 717 Missouri, 717 Oregon, 717 Pennsylvania, 717 estopped by acquiescence, 1232, 1238 representations, 1233 in cases of wrong or fraud, 1232 estoppel by deed, generally inapplicable to, 713, 884 judgments against at common law, 191 may be bound by acts of husbands, 1240, 1241 make valid dedications, 1280 1582 Index. [Hejerenm Married woman (continued). may waive defenses, 192 not estopped by deeds, 742 licensed to commit fraud, 1235 representations of, which bind thfim, 1235, 1236 standing by and seeing costly expenditures made, 1237 aui juris bound by an estoppel, 1239 when after-acquired titles, inures by estoppel, 715 estoppels by deed applicable to, 716, 718 not barred by confessing judgment, 1252 required to execute their contracts, 1236 acknowledgment to deeds, when conclusive, 731, 735 Marriott v. Hampton— case of, 125 Master — estopped by recital in indenture, 772 judgment against for negligence of servant, effect of, 283 or principal, when he may be bound, 160 when he can take advantage of judgment, 335 Material — requirements of due process of law, 70, 71 Matters- merged in judgment, res judicata, 98 adjudicated become part of record, 100 and acts which bind States, 1264, 1265 cannot be presented in different and inconsistent aspects, 1185 determined at law may be a bar in admiralty, 338 essential to jurisdiction, 68, 74 finrjly determined, forever settled, 133 in controversy once settled, final, 100 issue are concluded by judgment, 243, 244 how identified, 330 must be same and between same parties, 299 not considered in supreme court not concluded, 122 in issue not barred by judgment, 105 of defense must be set up or they will be barred, 260 estoppel alleged must be material and traversable, 1425 coming from other side need not be stated, 1430 on w^hich estoppels arise, when specially pleaded, 1436 once decided by competent court not re-examinable, 121 determined cannot be again litigated, 480 settled by judicial authority cannot be again litigated, 135 litigated cannot be raised in revivor of judgment, 137 passed upon by judgment are concluded, 313, 315 submitted to arbitration, when merged in judgment, 309 that are waiver of proofs of loss by Ins. Co., 1348, 1353 are to 2^ages.] InDEX. 1583 Matters (continued.) that might be well pleaded merged in judgment, 825 have been litigated concluded by judgment, 262, 263 doctrine illustrating, 276 merged in decree, 478 waived cannot be raised in appellate court, 953, 954 which give an estoppel effect as a conveyance of title, 781 parties might have litigated merged in judgment, 131, 132 render foreign judgments in rem nullities, 583 would have been a good defense barred, 276 within jurisdiction of court adjudicated on conclusive, 419 Maxims — on which equitable estoppels are founded, 864, 865 ad solutionem, <&c., 41, 110 allegans contraria non est audiendus, 3, 110, 1163 cessante rations leyis cessat et ipsa lex, 109 concensis iollit errorem, 963 coram nonjudlce, 560 de non ajyparentihus ex non existentihits, eadem est lex, 1318 et non quieta movere, 116, 123 expedit reipublicae ut sitjiuis litum, 208, 1414 expessum facet cessare taciturn, vox emissa volat, lita scripa manet^ 709 fraus est celare fraudem, 1046 ille non hahet, non dat^ 800 immohelia ejus jurisdictionis esse reputantur ubi sits sunts, 580 interest reipuhlicae res judicatus non rescindi, 586, 788, 1412 ut sit finis litium, 248,270, 273, 352, 396, 459, 552, 586 infinitum in jure reprohatur, 8 interest reipuhlicae id sit finis litiumy 101, 125, 160 judicium a non suo judice datum nullius est momenti, 34 juris dictio est potestas de puMico introducta cum necessitate, juris decendi, 68 nemo deiet bis vexari pro una causa, 8 Ms punitur pro eodem delicto, 500, 502 debet bis vexari pro una et eadem causa, 83, 248, 272, 392, 459 (si constat curiae quod sit) pro uua et eadem causa, 502, 587, 1413 ex 2}roprio consequitur actionem, 865 nihil aliud est jurisdicta, &c., 67 nonfatetur, que errat nisi jus ignoravut, 942 nullus commodum capere potest de injuria sua propria, 864, 877, 1062 omnia prcEsumuntur rite et solemniter esse acta, 397, 413, 414, 446 omnis ratihabitio retro trahitur, et mandato mquiparatur, 1310, 1311 priori, etc., 1211, 1215,1310 prcRsumatur p>ro justitia sententim, 8 que protest et debet vetare, jubet, 865, 1047, 1062 1584 Index. [lie/eren^ea Maxims (continued). quifacit j)er aliiim, facit per se, 940, 1201 non prohihet quod jjrohibere potest, etc., 865, 1863 sentit commodum, sentire dehet et onus, 148 tacet, consentire videtur, 865, 1047, 1056, 1063, 1162 quilibet potest rcnunciare jwi pro se inducto, 207, 272, 961, 963 quod non ajjparet, ^non est, &c., 1318 semel placuit in electionibus, amplius displicere non potest, 1175' quoties in verbis nulla est amhiguitas, ilia nulla expositio contra verba fienda est, 708 res inter alios acta alteri nocere non debet, 114, 140, 147 judicatoR mdlum uliis proejudicum faciajit, 82, 140, 147 judicata pro veritate accipitiir, 79, 82, 392, 592 Jiabiiur inter pjartes, 79 sententia facet jus, et res judicata, &c., 8 solutio pretii, emptionis loco hahelur, 334 8ta7'e decisis et non quieta movere, reasons for, 116, 123 transit in rem judicatum, 334 volenti non Jit injuria, etc., 864 que tacet, etc., 2 Meaning — that estoppels must possess an clement of fraud, 901 Mechanic's lieu — married women estopped to controvert, when, 1242 waiver of, 965, 966 Members— of corporation, when they cannot question its existence, 1406 corporations bound by judgments against, 164 Merchant — concluded by act of clerk or salesman, 1201 law, in regard to notes, bills, etc., 1112, 1113 Merger — by judgment against joint debtor, 564 liens or claim in probate court, 393, 394 doctrine of applicable in revivor of judgments, 137 effect of judgment as, 279 on parties and privies, 279 first judgment rendered in two actions is, 562 in foreclosure suit, 565 judgment against plaintiff, 561 of covenant of warranty, 565 rendered on a compromise, 562 judgment on foreclosure as, 205 judgments of other States as, 602 of action against one or more members of firm, 563 two or more, when binds one only, 564 are to pages.} InDEX. 1586 Merger (continued) of l)ond or contract in judgment, 564 bonds in judgment, 550 cause of action chaugcd by matter of record, 560 of cause of action iu judgment, 126, 560 submitted to court in consent judgment, 550 of defense in judgment, 129, 130 not litigated, 262, 263 defenses that should have been litigated, 561 claims by acceptance of judgment, 49 foreign judgments, where court has jurisdiction, 587, 592 fraudulent defenses in judgment, 454, 455, 465, 466 judgments, doctrine as to, 126, 127 lower security into higher by rendition of judgment, 565 matters iu judgment, 548, 549 original cause of action, 124 partnership debt, 297 promissory note in judgment, 559 usury by judgment against mortgagor, 1019 vendor's lien in judgment, 560 void contract in judgment, 565 wife's estate by foreclosure, 1020 operation of judgment as, 559 where cause of action in two suits identical, 560, 561 Merits— decision on conclusive, though pleadings defective, 332 judgment rhust be on to be conclusive, 230 on in personal action a bar, 331 once settled by judgment is final, 99 when judgment will be regarded as rendered on, 331 Mesne i»rofits — action for, defendant barred by judgment in ejectment, 222 actions for recovery of, 223 judgments iu ejectment conclusive against tenant, 222 what conclusive of, 220 Method — of ascertaining whether judgment is a bar, 30O Military courts — judgments of, when conclusive, 510, 511, 513 nature of, 510 principles relating to judgments of, 510, 516 Minnesota — conclusiveness of judgments in, in actions of ejectment, 221 Minor — frudulently representing himself of age, bound, 1255 doctrine as to application of equitable estoppels, 1242 1586 Index. [References Minor {continued). judgments against, when valid and void, 178, 180 when estopped by receiving proceeds of void sale, 1231, 1232 See Index Infants. Misleading'— another, dealing with estate, 1074 Misnomer — failing to plead renders judgment conclusive, 298 Misrepresentation — to officer, when it estops party, 917 when they will^postpone mortgages, 1042 Mistake- party acting under, when estopped, 1080 questions of, when involved in litigation, conclusive, 98 and errors, how corrected, 453, 454 does not avoid judgments if court has jurisdiction, 316, 318 furnish no reason for avoiding judgments, 125 of judge does not affect judgment, 312 Mode — in which estoppel by judgment is made available, 1431, 1433 res judicata was available under the Roman law, 83 estoppels are made available in insurance cases, 1335 of ascertaining whether actions are several or distinct, 254 Modification — iu records, 21 of ancient doctrine of estoppel,. 12 judgments during term, 50 Money — paid before judgment cannot be recovered, 125 on judgment cannot be recovered, 536, 538 Mortgrage— acceptance of, when it waives lien, 966, 967 after-acquired title inures in case of, 1018 application of estoppel to, 1018, 1052 assignee of, when estopped to deny widow's title, 1022 assignment of, when mortgagor bound by, 1031 by husband and wife, conclusive as to title, 1019 grounds upon which after-acquired title passes, 794 homestead, when it passes as an aftcr-accjuired title, 798 instances of after-acquired title passing b}^, 704, 800 intended to convey unincumbered title, passes by estoppel, 795 may be pleaded by estoppel,- 101 8 of property in breach of trust binds mortgagor, 1050 not owned at time conveyed b_v estoppel, 1018 railroad, when it ]iasscs after-acquired property, 802 party accepting cannot deny mortgagor's power to make, 1022, 1023 are to pages.'] InDEX. 1587 Mortgage (cojitinued). party executing cannot deny title at date of, 1188, 1189 recital of in a deed, effect of, 749, 750 record of, prior to acquisition of title by mortgagor, 796 release of do'.ver in, effect of, 857 requisites to pass after-acquired title, 794, 795 usury in, when merged by judgment, 1019 validity of, when conclusive in actions of ejectment, 222 when after-acquired title passes by, 794, 800 under statutory provisions, 798 it passes house subsequently erected, 801, 802 which pass title when acquired, 796 with covenant of warranty in, effect of, 795 avoided by concealment and misrepresentations, 1042 Mortgagee — acting as witness to subsequent mortgage, 1034 acts which estop him from asserting his title, 1037, 1039 allowing additional loan of money, and concealing lien, 1087 mortgagor to sell property without asserting claim, 1047, 1048 bound by concealing his lien on property, 1034 cannot claim inconsistent rights, 1052 property sold by mortgagor, 1035, 1036 object to sale after receiving proceeds, 1097 when cannot set up usury in assignment of mortgage, 1048 encouraging third person to purchase property, 1041 estopped by consenting to sale of property, 1041, 1042 by relying on assurance of mortgagor, 1047, 1048 verbal agreement to satisfy mortgage, 1032 exception to rule that after-acquired title inures to, 799 fixing price without giving notice of claim, 1051 how equity operates to pass after-acquired title to, 800, 801 in possession cannot repudiate mortgagor's title, 1022 looking on and seeing owner convey property, 1039 may lose his priorit}- of lieu by estoppel, 1037, 1038 postjjoned to subsc(]uent mortgage, when, 1048 representing that mortgage is satisfied, 1036 seeing improvements madf on property, bound, 1068 statement of, when it ma}- be relied on, 1036, 1037 title may vest in, by estoppel, 1018, 1019 when entitled at equity to after-acquired property, 798, 800 when estopped by recitals, 749 from denying validity of prior liens, 1147 he cannot set up title anterior to mortgage, 1022, 1023 not permitted to assert his ownership at judicial sale, 1097 protected by estoppel in favor of his lien, 1049 1588 Index. [lieferences Mort^a^or — and ])iivies cannot deny title of mortgagee, 1023 bound by assenting to transfer of mortgagor, 1035 covenant from setting up after-acquired title, 1018 cannot plead failure of title in purchase money mortgage, 1032 payment after giving certificate of no defense, 1028 consenting to assignment, cannot allege satisfaction, 1050 estopped from denying existence of corporation, 1408 to deny entry, for condition broken, 1050 title of bis mortgagee, 809, 810 estoppel in pais applicable to, 1033, 1034 of in foreclosure proceedings, 1031, 1032 executing mortgage with blank for mortgagee's name, 1121 inducing party to believe he will pay debt, bound, 1033 purchase certificate of sale, 1043 iucumbmnce, bound, 1033 one to pm-chase on his statement, 1027 may be bound by ratification from setting up defense, 729 of chattel, when he cannot dispute mortgagee's title, 1051 receiving proceeds of sale cannot question foreclosure, 1050 tenant of, cannot dispute title of execution pui-chaser, 1021 vendee of, cannot dispute title of execution purchaser, 1022 when cannot deny receipt of consideration, 1031 estopped from setting up forfeiture of charter, 1405 to claim moi'tgage fraudulent, 1031 plead usury, 1019 his title passes by estoppel, 1018 Mother— when estopped from disputing her son's title, 999 Motion — overrulin^i-, effect of, 283 application of principle of 7'es judicata to, 570 decisions on, which are final, 5G9 nature of, 5G8 that become res judicata, 569, 570 , cannot be renewed under rule of res judicatay 570 variety of, 508 Motive — t of party, effect of in equitable estoppels, 881 Municipal — corporations, application of estoppels w /)a2« to, 1363 bonds irregularly issued, when valid, 1381 judgment on, merger of, 549 corporation, judgment against on bonds, effect of, 563 on bonds, effect of, 503 corporations bound by ratifying acts of officers, 1218 are to 2}(iges.] InDEX. 1589 jUunicipalities — canuot attack judgments in proceedings by mandamus, 138 estopped as against bona fide holders of bonds, 1371 by recitals in bonds, 1371, 1383 when estopped denying power to issue bonds, 1371 Jffnnicipality — bound by issuance of negotiable securities, 1371 cannot deny excessive issue of bonds, 1374, 1375 ownership of property taxed to party, 1364 Mntaal — estoppel between mortgagor and mortgagee, 1297 by deed must be, 719, 742, 743, 834 occupation of land in conformity to agreed boundary line, 1273 Mutnality — a necessary ingredient of estoppels, 1011 rule of estoppels, 146 of equitable estoppels, 921 estoppels, 483, 834, 848, 850 by judgment, defined, 242 necessary, 14 K Naturalization — case judgment in, a bar, 107 of an alien, conclusive, 348 Nature — of a common law dedication, 1281 an equitable estoppel, 6, 7 doctrine precluding surety questioning bond delivered, 1139, 1147 estoppel, 1 in jiais affecting title to land, 1054 foreign judgment sued on in other States, 587 judgments where there is no issue to be decided, 27 plea of res jtidicata in the Roman law, 77, 96 proceedings in attachment and garnishment, 352, 372 proof required to create equitable estoppels, 871 questions and dispute may be shown by parol evidence, 107 records in ancient times, 18, 19 * Naval courts-martial — conclusiveness of judgments in, 511 doctrine in regard to, 511 Necessity — of suitors having their cases properly presented, 128, 129 that identical questions litigated in estoppel of record, 242 Neglect— of parties to set up their defenses, 277, 278 1590 IlfDEX. [Be/erences Neglecting' — defense in partition suit, 304 Negligence— estoppels by, 882 in asserting one's rights, when a bar, 1360 executing deed, when it may be an estoppel, 712 of parties in executing papers, 1128, 1129 no defense to judgment, 128, 129 party in pleading an estoppel, effect of, 1438, 1439 principal, when an estoppel in pais, 1210, 1211 rule in regard to estoppels by, 882 when it creates an estoppel, 6, 880, 881 to land, 1063, 1064 Negligently- allowing bailee to deal with goods as owner, 1104 enabling another to appear as owner, 1103, 1104 signing deed, supposing it to be lease, 1129 standing by and allowing another to act, 899 Negotiable- certificates, owner of, when estopped to claim title, 1103 paper, estoppel of, party to, 1126, 1127 New Jersey— conclusivenesii of judgment in ejectment in, 220 New matter — when former adjudication must be pleaded as, 1425 Nil debet— not a good plea to judgment, 1435 plea of on judgment of sister State, 666, 667 No estoppel — where deed couvej^ed title, 820 the interest passes, 25 No man — can be tried twice for same oflense, 485, 507 shall take advantage of his own wrong, 877 No matter — how irregular proceedings where court has jurisdiction, 316, 317 No person — can recover against his own claim or covenant, 809 Non claim- effect of, in deed, 789, 790 Non est factnm— judgment on plea of, 326 Not— absolutely essential that successive causes be the same, 96 Note- judgment on firm, conclusive as to partnership, 231 are to pages.] InDEX. 1591 Note (continued). judgment on one, conclusive in action on another, 232 merger of, in judgment, 559 statement that maker has no defense, lllG, 1117, 1120 Notice — essential to a valid judgment in rem, 345 given to parties to assume defense, binds them, 162, 163 of some kind necessary to jurisdiction, 74 or citation necessary in personal judgments, 71^ 72 requisite to vahd foreign judgment, 582 personal judgment, 311 to agent is notice to corporation, 1345 covenantor or indemnitor, 162, 163 defend, how given, 160 parties liable over, effect of, 157, 160 to make judgments binding on them, 200, 202 party requisite to judgment, 51 Notiflcation — to party to assume defense of action, 157 Nullity— and irregularity, the distinction between, 58 cannot be waived, irregularity may, 64 defined, 64 foreign judgment, when, 571 grant of letters on estate of living person, 51 judgment against party not served is, 50, 51 if improi)erly entered by clerk, when, 51 when judgment rendered by a justice, is, 51 Nnl tiel— record, effect of plea of to judgment, 1435 judgment on plea of, 298 plea of, on judgment of sister state, 666, 667 the only plea in action on judgments, 1435 Nunc pro tunc — entry of judgment final, 550 0. Object— of admitting parol evidence to aid record, 112 making person a party to an action, 478 Objections — that judgment is without jurisdiction, may be plead, 1431 Obligation — created by estoppel, binds parties and privies, 950 Obligor — in bond, when estopped by acts of principal, 1137 1592 IXDEX. [References Oblig'or (continverT). in bonds estopped by recitals, 767, 772 Obtaining — loan from corporation, estops party from denying its power, 1409 Occiipaliou — by i)ermission of another, binds party in possession, 992 Occiipyingr— land in conformity to an agreed line, 1267 Odious — when are estoppels said to be, 10 Offenses— indivisible, 494 Officers- acts of, when binding on states, 1264, 1265 collecting money cannot dispute judgment, 337, 338 cannot contradict, their return, 539, 546, 762 return cannot be impeached collaterally, 539, 546 conclusive as against strangers, 539, 546 to competency of appraisers, 539, 546 date of receipt of writ, 539, 546 in federal courts, 539, 546 of sale of land, 539, 546 on courts, 539, 546 parties, 539, 546, 761, 762 to show defendant's title to property, 539, 546 doctrine in various states as to, 539, 546 exceptions to the rule of conclusiveness, 539, 546 principles applicable to, 539, 546, 761, 762 policy of the law in regard to, 539, 546 where it may be collaterally attacked, 539, 546 when they cannot question validity of discharge, 1197, 1198 Offices— of estoppels at law, 11 Official- accepting reduction of salary cannot claim any more, 1198 bonds, sureties on, how aflected by judgments, 169, 178 Ohio- conclusiveness of judgments in ejectment in, 222 Old- rule of jurisdiction, 401, 402 law in regard to estoppel by deed, 787, 788 Omissions — of attorneys in trials, when conclusive, 951 to assert title, when an estoppel, 1082, 1083 Omitting — to object to evidence on trial, 051 are to pages.] InDEX. 1593 One- action only, when maintainable, 249, 250 cannot be twice tried for the same crime, 493 judgment in ejectment, where conclusive, 220, 231 led by silence to make expenditures may claim, 1077, 1078 not bound by, cannot take advantage of an estoppel, 710 / Operation — of foreign attachment as proceeding in rem, 372 judgment as an estoppel, 110 merger, 559, 565 Opinion — of court, when it may aid decree, 470 Oral- evidence may be received to prevent defense of res judicata, 113 testimony admissible in plea or bar, under general issue, 1417 Order — of sale conclusive as to facts alleged, 304 court, when conclusive, 41 record cannot be contradicted by extrinsic proof, 23 made in a cause, when conclusive, 306 Ordinary — and extraordinary effects of an estoppel, 777, 781 Origin — and nature of estoppel between landlord and tenant, 980, 982 record, 18, 20 the plea of res judicata, 77, 96 nature and object of estoppel, 1, 16 of equitable estoppel, 865, 866, 872 estoppel, 1 the doctrine of election, 1158, 1164 plea of judgment recovered, 77, 96 Orphans' conrts — proceedings of, are mi rem, 348 Otlier— insurance, waiver by agent binding on company, 1344, 1345 Overruling— motion, effect of, 283 Owner— accepting damages for R, R. cannot set up ii-regularity, 1288 ratifies illegal condemnation proceedings, 1289 allowing his goods to be sold by third person, 1101 by allowing construction of railroad through his land, 1095 cannot assert title after permitting another to sell his property, 1099 enabling another to hold himself out as, 1103, 1104 failing to claim damages after notice cannot question proceedings, 1289 may estop himself from questioning dedication, 1288, 1289 1594 In'DEX. [References Owner (continued). of land may preclude himself from asserting his title, 1057 when precluded to deny title of execution purchaser, 729 negotiable certilicates. when estopped to claim title, 1103 non-negotiable instruments, when he cannot assert his title, 1030 standing by, when estopped in regard to land, 1064, 1065 when he cannot recall declarations as to boundaries, 1267 OTTiiersIiip— party estopped by recitals of, 764 P. Parent — allowing his minor son to collect his wages, 921 Parol— adjustment of boundaries, when conclusive, 1270 dedication may be made, 1280 evidence admissible in aid of judgment in replevin, 294 to aid a record, 234 exclude matters from operation of judgment, 259 identify the parties. 234, 235 show subject of former action different, 259 when, and for what purpose admissible to aid a record, 234, 235 admitted to limit estoppel, but not enlarge it, 312 inadmissible to contradict record, 243 take matters out of a judgment, 245 to show nature of question decided. 111 when, and not admissible as to written instruments, 1444 necessary to aid the estoppel of a record, 243 not admissible to aid record, 328, 329 partition, when parties estopped from denying, 1290 promise to an assignee, when conclusive, 1112 proof admissible to aid an estoppel, 103, 111 Part- payment before judgment no defense in action to revive, 138 Particular- questions adjudicated are conclusive, 97 recitals are conclusive, 711 Partition — conclusive effect of recital of service in decree, 306 distinction between ])roceedings in law and chancery, 306 final and conclusive, 303, 307 judgments and decrees in actions for, conclusive, 303, 307 for, effect of. when executed, 306 in actions, not subject to collateral attack, 305 when conclusive on entire title, 303 it binds unknown owp<>rs, 303, 304 are to pages.] InDEX. 1595 Partner — judgment against, when conclusive of partnership, 271 may be estopped denying partnership, 1230 bind firm by representation, 1228, 1229 jude:ments against two parties as, 335, 336, 563 Partnersliip — allowing one partner to transact its business, 894 contract, judgment on as merger, 297 matters affected by estoppels in pais, 1227, 1231 Party- accepting benefit under deed confirms it, 1177 will cannot dispute testator's right, 1185 reject its provisions, 1187 corporate office, estopped to deny its legal existence, 1402 damages cannot question dedication of highway, 1288, 1289 from cor]ioration waives illegality, 1360 with knowledge of irregularities, 1167 deed cannot set up an outstanding title, 728, 729 reciting prior conveyance cannot impeach it, 750 with recitals cannot deny validity of, 750 goods without brands cannot object to omission, 1153 insurance policy cannot deny its conditions, 1167 lien cannot question consideration thereof, 750 performance different from that contracted, 1149 proceeds from an improper sale ratifies it, 1197 acknowledging receipt of property estopped to deny it, 1191 the benefit of contract cannot repudiate it, 1153, 1154 title in another cannot set up his own. 931 of another cannot claim by adverse possession, 1295 acquiescing in representations in prospectus, bound, 1194 acting as oflBcer admits he is member of corporation, 1403 cannot deny his official character, 1402 active in organizing corporation cannot question its legality, 1401 administrators as, how bound by judgments, 180, 181 affirming a voidable contract bound by it, 1150 after judgment cannot revive matters, 99 agreeing to waive right of redemption cannot enforce it, 1169 allowing another to appear as owner to set up title, 1104 secure loan without asserting a lien, 1097, 1098 appearing in court and contesting matters bound, 479 and all who he represents, bound by judgments, 148 privies bound by estoppels, 14 in pais, 921 judgments of various courts, 109 matters adjudicated, 135 recitals in deeds, 741, 742, 758 1596 Index. [References Party (continued). and privies can use judgments to try title to land, 230 concluded by judgment in ejectment, 223 how far bound by judgments, 124 only, claim benefit of res judicata, 1418, 1426 appearing in suit, when bound, 208 attending meeting, and acquiescing in election of officers, 1402 as against creditors, cannot plead fraud in subscriptions, 1400 asking for appointment of guardian, cannot deny power of court, 451 appraisers, cannot set aside proceedings, 949 assigning mortgage on his own land cannot defeat it, 1049 assuming defense in an action, bound, 226 to act as agent, cannot claim he was acting for himself, 1221 deny it against employer, 1169 before competent tribunal concluded by the judgment, 278 bidding at sale of his goods, cannot question purchaser's title, 916 binds himself by his seal, T09, 710 bondholder, when bound, 167 borrowing money from corporation cannot deny right to make loan, 1896 bound by adopting signature written for him, 711, 1203 decree of foreclosure, 1021 estoppels in pais, 1095, 1096 negligently signing papers without examination, 1128, 1130 private acts, by obtaining their passage, 1198 recital of official character of principal, 1398 the estoppel of an election, 1183 written admissions, 948 words used and adopted in instrument, 902 when appearing by agent or rejjresentatives, 164 bringing suit affirms sale, and cannot question it, 1171 buying land for less than value on account of lien, cannot deny it, 1199 bj' acting on voidable contract, cannot repudiate it, 1 IGO appearing, cannot question jurisdiction of court, 451 bringing suit for price of goods, cannot set up fraud, 1180 insuring, estopped to deny corporate existence, 1359 obtaining extension of time, cannot deny holder's title, 1135 one benefited by prosecution of action is, 159 cannot accept purchase money and retain the property, 1167 acknowledge boundary line in one capacity and deny it, 1269 adopt part and reject rest of a transaction, 927 that which is beneficial and reject rest, 1163 affirm and disaffirm an entire contract, 1150 avoid his own deed, 712 judgment by plea of fraud, 336 benefit by and repudiate an instrument, 1176 "blow hot and cold," 1163, 1106 are to pages.} InDEX. 1597 Party {continued^. cannot claim as shareholder and repudiate his obligation, 1401 under instrument without confirming it, 1166 collaterally plead fraud in organization of corporation, 1398 raise questions of forfeiture of charters, 1381 complain of default he has caused or sanctioned, 1148 defend for failure of title and retain land, 1171 deny a forged signature adopted, 1123 boundary where he sold up to such line, 1270 character of securities he ha« borrowed money on, 1188 deed does not express its design, 755 his consent to judgment, 49 recital of facts in his deed, 711 title of one from whom he agrees to purchase, 1*294 validity of sale made by his agent, 1100 title under which he claims, 1009 escape natural interpretation of language used, 902 hold county funds and refuse to account for it, 1171 impeach title or decree he has relied on, 1186, 1187 maintain action on cause which constitutes good defense, 260 mend his hold in judicial proceedings, 947 multiply costs by bringing separate suits, 249 occupy inconsistent positions, bound by election, 1177 plead defects in organization against assignee or receiver, 1400 inconsistent matters, 336 raise questions adjudicated in reviving judgments, 137 that might have been litigated in former suit, 277 recover on parts of indivisible claim, 248 what might have been recovered in first, 278 retain and repudiate a transac:tion at the same time, 1188 benefit and repudiate the transaction, 1170 proceeds of sale and property also, 928 set up another's act unless he has been misled, 1092 state one case in pleading and prove difTerent one, 1411 take advantage of defense he neglects to plead, 1 28, 130 under a will and claim in opposition to it, 1176 treat a contract as subsisting and rJso void, 1164 one as wrong-doer and affirm his acts, 1172 citizens of municipalities, when bound, are, 166 claiming as owner of goods, estopped to deny validity of levy, 1191 benefit, must abandon every right to defeat it, 1177 by paramount title, not bound by recital, 741 estoppel must be ignorant of true state of title, 1081 through same person, estopped to question title, 1013 title by estoppel may maintain trespass, 1440 from one person as a common source, 728 1598 Index. {Beference* Party {continued). claiming to be an oflBcer, cannot denj- legality of appointment, 917 under a person, when concluded, 921, 922 tenant by purchase or otherwise, bound, 989 deed reciting mortgage, cannot deny it, 750 one bound by dedication, bound, 1280 the same grantor, bound, 788, 752 by estoppel must be precise and clear, 1440 concealing an incumbrance on property', 1034 concluded by cause of action stated in pleadings, 251 terms of deed or contract, 709 bj' conducting himself in particular manner, bound, 6 consenting that legal title should be passed to another, 1082 to loan of money, when waiver of priority of lien, 1167 collecting corporate bonds cannot deny principal's right thereto, 1384 contracting as principal cannot show he is surety, 1134, 1135 in view of ordinance, cannot question its validitj'^, 1168 to convey land, cannot set up after-acquired title, 737 with a corporation, admits its legal existence, 1396, 1397 another, cannot set up his intirmity, 1260, 1261 corporation, cannot deny acceptance of charter, 1396 its existence, 1320, 1396 that legal incoi-poration, 1399 co-trespassers as, 193 court will examine record to ascertain who are, 157 dealing with property as his own cannot rescind sale, 1180 delivering goods cannot sue for price and recover goods, 1150 demanding proceeds of sale admits its legality, 1199 depositing securities as assets, cannot deny company's title, 1397 deriving title by descent or purchase from same source, 978 doctrine of the Koman law, as to, 182, 186 during occupation of premises cannot dispute title of landlord, 970 electing candidate cannot complain ot his election, 1166, 1167 employing counsel, bound, 167 encouraging another to make expenditures on land, 106-2 entering on land as purchaser cannot question title of vendor, 1008, 1009 eijtopped by admissions on which others have acted, 938 estoppel of by confirming fraudulent deed, 1188 estopped by covenants of warranty, 749 failure to object to deed, 948 fraudulent conveyance, 712 judgment from disputing its correctness, 219 to deny that deed conveys title, lo09 by judgment on default, 47 receiving proceeds of sale from agent or attorney, 1191 from claiming benefits of contract of sale, 1079 arc to pages.] InDEX. 1599 Party {continued). estopped from denj'ing that intention manifested was real, 902 disputing title of unnamed landlord, 973 pleading no7i est factum to note, 948 setting up that maker is fictitious person, 1133 to canvass matters once adjudicated, 99 deny judgment rendered on day of date, 306 mortgage on partnership property, 1050, 1051 operation of deed as intended, 781 set up any matters outside of written contract, 1149, 1150 secret title against tonafide purchaser, 1056 executing bonds estopped by recitals therein, 767, 772 chattel mortgage cannot claim property is real, 1168 mortgage cannot deny delivery of title deeds, 1188, 1189 failing to defend, how- concluded, 48 except, estopped, 952 plead fraud in service estopped, 547, 549 misnomer bound by judgment, 298 when estopped from denying legality of corporation, 1397 giving certificate estopped from denying receipt of goods, 1017 going into possession of land, estopped, 728 guilty of, cannot complain of negligence of his adversary, 1428 guaranteeing bonds estopped from denying his liability, 1117 has a right to appear and be heard, 71 having his election to aflBrm or disaffirm must do so, 1163 no opportunity to be heard not bound, 110 right to repudiate or affirm, when bound, 1172 hiring goods estopped from denying title of lessor, 1017 how prevented from taking advantage of judgment, 336, 343 holding possession under another, cannot dispute title, 972 bonds of corporation cannot dispute its existence, 1401 mortgage in one capacity, to assert holding it in another, 1C48 themselves out as corporations cannot question it, 1321 in actions to try title bound by recitals, in deed, 752 law, blood and estate, bound by estoppels, 14 possession by permission of another cannot dispute his title, 992, 993 under lease cannot dispute title of lessor, 989, 990 prize cause, who are, 574 incurring debt to corporation cannot plead forfeiture, 1399 inducing an officer to attach property as that of another, 920 one to purchase under a voidable sale, 1095 infants and minors as, 178, 179 joint debtors or joint creditors, as, 187 judgment against his interest is bound, 297 merges joint cause of action, 564 one not a void, 52 1600 Index, [Se/erences Party (continued). judgment need not be against him by name, 297 knowing stipulation to be cxcludoil from writing, 1149 leaving negotiable securities with agent, must suffer loss if any, 1191 land sold on execution cannot deny his title, 938 making election, bound to abide by it, 1178, 1186 no defense barred, 2GI partial payment cannot repvidiate contract, 1130 manufacturing to sell machines on royalty cannot disiJutc patent, 1153 married women as, 188 doctrine in regard to, 188, 193 may be estopped by negligence in executing deed, 712 bind himself by any name he may adopt, 711, 1203 by his conduct debar himself from asserting title, 1055, 1056 prove that precise question has been decided, 1431 rely on boundaries pointed out by r.djacent owner, 1267 show by parol evidence mutters adjudicated. 111 take advantage of estoppels in pais without pleading 1446, 1447 members of church organizations, are bound, 107 must act affirmatively on instrument to be bound, 902 be consistent, not contradictory in position he takes, 1165 same to plead a judgment as a bar, 88, 94 sni juris to create estoppel by deed, 714 choose between inconsistent rights and remedies, 1172, 1173 have his day in court, 201, 203 knowledge to be estopped by acquiescence, 1193 opportunity to be heard, 51, 52, 71, 156 plead or he waives all questions of jurisdiction, 451, 452 present all their defenses, 125 making an election, bound by, 1173 not allowed to contradict record, 22, 23 dispute his own deed, 710 question legality of corporate elections, 1306 recover land he encourages another to buy, 1079 set up his own iniquit}^ as a defense, 1255 bound by a judgment when he has no notice, 156 estopped from 2)lcading a just defense, 1428 to plead a general issue, 1427 permitted to charge his own fraud on another, 4 contr-adict judgment, 75 play fast and loose, 1171 required to know that representations arc false, 900 notified to appear and defend cannot question jurisdiction, 451 neglecting to make his defense, loses it, 278 plead defense will be concluded in equity, 260 object in making a person, to a suit, 479 are to pages.] IndEX. IGOl Party {continued). obtaining judgment against corporation cannot deny its capacity, 1359 order from court, bound, 300 relief on one basis cannot litigate matter, 312 possession by collusion bound same as tenant, 999 occasioning loss cannot deny title of finder of property, 1130 or vendor signing a contract bound by signature, 1149 participating in sale of note or bond, 1117 paying or accepting rent, when estoi)ped, 1173, 1174 performing acts under contract bound thereby, 1149 • perpetrating fraud cannot avail himself of a judgment, 455 person who is regarded as, 140 placing negotiable paper in hands of broker, must suffer loss, 893 pleading an estopjiel in pais must show what, 1449 not bound to anticipate adversary's pleas, '1430 must be adversely affected by it, 1419 former adjudication need not state presumptions of law, 1430 judgment need not allege it is in full force, 1430 ownership cannot set up another title, 949 title in partition cannot deny his allegations, 1290 pledging goods he does not own, 938 pointing out jiroperty as belonging to execution debtor, 929 preventing bidding at judicial sale cannot claim deficienc}', 910 performance of contract, cannot take advantage of, 1148, 1149 procuring another to convey his property, when bound, 1081, 1082 perform an official act, 1188 ratifying a note made in his name by another, 1130 receiving benefits must bear burden of judgment, 337 possession from tenant cannot dispute lessor's title, 973 property from corporation cannot plead ultra vires, 1399 recognizing and sanctioning signature of another, bound, 1214 or assuming payment of lieu cannot question it, 750, 751 registered as stockholder estopped as against creditors, 1399, 1400 relying on correctness of certificate cannot impeach it, 1152 judgment must show matters have been litigated, 307 representing instrument to be a binding obligation, lllG as secured by first mortgage cannot deny it, 1136 that note is good to one about to purchase it, 1110 required to use full diligence in presenting their causes, 278 requisites to make a person, 15(i responsible to defendant, w'hen bound, 159 seeing property sold under defective execution, bound, 937 seeking aid of court cannot question its jurisdiction, 451 sending telegram cannot deny knowledge of conditions, 1154 served with process cannot attack judgment, for fraud, 547 setting up estoppel must be free from negligence, 1057 101 1G02 Index. {Referencea Party {continued.) signing and delivering instrument, cannot question it, 1138, 1147 telegraph messages bound by the terms, 1 154 subscription to stock cannot set up fraud, 1397 sued by corporation cannot plead ^iltra vires to its contract, 1320 Avrong name, effect of judgment on, 208 suing under dilTereut capacities, not the same, 94 in representative capacity, when not bound, 94 sufTering expenditures under an erroneous opuiion of title, 1082 property to be sold by sherifl[, 1259, 1260 selling property, receiving consideration caimot set up illegality, 1150 standing by, and allowing his property to be mortgaged, 1034 seeing another mortgage his property, bound, 1052 building or work done iu silence, 10G8 advising purchase estopped to set up title, lOoG, 1057 witnessing an illegal levy, 937 state as, 219 stockholders in corporations, wlien bound, 1G4 taking active part in an execution sale, 1090, 1097 conveyance from corporation cannot deny its existence, 1401 , issue on a matter of estoppel, waives it, 1428, 1429 taxpaj'er, bound as, 166 telling an officer that he has another's property in his possession, 920 that judgments may b6 evidence against, 282 the U. S. as a, 210, 218 to a judgment must be adversary, 149 an action, 26 bill in equity, estopped by decree as to matters, 477 contract after receiving benefits cannot repudiate it, 1152 bound which might be avoided for fraud, 1169, 1170 deed estopped from denying anything agreed therein, 783 illegal contract cannot avoid it when executed, 1150 sealed instrument cannot defeat by alleging fraud, 721, 722 suit under no disability, bound, 479 treating case on one theory cannot obtain reversal on another, 949 unsuccessful in pleading estoppel may confess and avoid it, 1427 voluntarily paying a disputed claim, 1181 employing the agent of another, bound, 1205 when estopped from amending his pleadings, 949 denying he is member of firm, 1227. 1228 truth of his admissions, 1090 to set up older and better title, 1081 statute limitations on note, 1135 he cannot question jurisdiction of foreign courts, 619, 620 may insist on estoppel by demurrer, 1428 must exercise his election, 1173 are to 2^ages.] InDEX. 1603 Party (continued). •when presumed to waive benefit of estoppel, 1415 who by misrepresentation causes an arrest or levy estopped, 917 cannot claim title by adverse possession, 1293, 1293 obtain title to exclusion of co-tenants, etc., 1297 disaffirms for fraud must do so on discovery, 1170 does not rescind on ground of fraud, waives it, 1171 has an opportunity to plead fraud but does not, 276 is bound as, when represented by guardians, etc., 178 estopped to deny title, 809, 810 makes valid dedication, 1280 may be regarded as the same, 88 must show that judgment has been reversed, 1430 waives his remedy binds his privies, 207 with knowledge recognizing transaction bound, 1194 of facts which avoid transaction may ratify, 1170 who treats contract as binding, 1195 Patentee — assigning his patent cannot set up its invalidity, 1164 when he may be estopped by acquiescence, 1195 Patent — recitals in, effect of, 758 the U. S. conclusive, 775 suit for infringement in federal courts, 284 title obtained b}', when it inures to grantee, 785 Patentees — estoppels operate for and against, 932, 933 Patents — right and other notes, estoppel of maker by negligence, 1128, 1129 Panlus's — definition of exceptions, 76 Payee — when estopped from setting up usmy, 1123 Payment— of demand estops party to plead illegality, 1183, 1183 judgment makes it res judicata, 40 money estops party from rescinding contract, 1181, 1182 on forged check, doctrine as to, 1130 judgment, cannot be recovered back, 536, 537 rent, not so strong as acceptance of tenancy, 970 prevents party from disputing title of landlord, 970 prima facie evideuce of landlord's title, 974 sufficient proof of tenancy, 979 imder distress, 970 recital of, doctrine in regard to, 760, 767 waiver of, does not afibct liability on insurance policy, 1343 1604 Index. IRe/erences Payments — voluntarily made, estop party from recovering the money, 1182, 1183 Peculiar — doctrine in Miss6uri as to judgments in ejectment, 227 Penalty— city cannot recover where it has granted license, 1365 Peudency — of action in one circuit, when bar in another, 284 antjther suit between same parties, when no defense, 566 Pennsylvania— conclusiveness of judgments of ejectment in, 220 Perjury— when it will not affect judgment, 457 Permitting — another to sell one's property, estops owner, 2 Person — accrediting another by employing him bound by his act, 1214 cannot accept and reject the same instrument, 1156 claiming an estoppel must have been mislead or deceived, 897 under one who is bound, is estopped, 720 coming into possession cannot set up outstanding elder grant, 1014 must have notice before he becomes party to action, 156 in possession, when estopped, 720 intervening without notification becomes a party, 156 not a party who takes defense in suit, bound, 157 soliciting grant froai legislative body is estopped, 1014 succeeding to title of married woman cannot deny her power, 1250 Personal actions — actions, jurisdiction in, 69 Personal judsfments — 140 comprehend all who are represented or claim under them, 148 conclusive against paities, 644 personal representatives, 144 assignees and privies, 144 as reg judicata, iipply to parties and privies, 145 conclusive as evidence, as a plea in bar, 141 upon matters directly in issue, 1-13 conclusiveness of, results from unity of courts, 143 distinction between and those in rem, 14 in courts of exclusive jurisdiction, 143 no evidence of incidental matter, 142 of courts having jurisdiction, 144 of exclusive jurisdiction, effect of, 143 judgments of other states depend on jurisdiction, 618, 619 parties and privies concluded by personal judgments, 148, 149 subject matter must be the same, 143 are to pages.] InDEX. 1605 Personal judgment (continued). parties or persons who are concluded, 146 who arc included within this term, 146 principles upou which their conclusiveness is founded, 140, 141 reason for conclusiveness of judgments between, 147 record of, conclusive as to material matters, 141 strangers not affected by, 140 Personal — jurisdiction, why necessary, 24 status, decree as to conclusive, 430 Persons — acting iiublicly as officers presumed to be rightful, 1305 acting under corporate name estopped to deny corporate powers, 1321 assuming to act as a corporation, estopped, 1308 bound by estopjiels in pais, 1075, 1077 concluded by judgments in admiralty and prize, 574 enticed into a state to serve process on, concluded by judgment, 547, 548 not in esse, how bound, 480 under disability affected by estoppels in pais, 1075, 1077 how concluded by judgment, 178 who are bound, 178 Physician — judgment in favor of bars action for malpractice, 261 Plaintiff- judgment against bars another action for the same subject, 561 tlea— judgment, when conclusive as, 481 of acquittal for murder, effect of, 488 autrefois, convict or acquit, how made available, 485, 499, 500, 507 doctrine applicable to, 485, 507 principles upon which founded, 487 of estoppel must be properly framed as such, 1425 2mis darrein continuance, effect of, 1425 what it admits, 1415 former recovery, how it may be defeated, 257 which is bad, 1427 judgment recovered in foreign court, what it must show, 1436 nil debet not a good plea on judgment of other states, 666 7iul tiel record on judgments of other states, 666 what put in issue by, 1435 res judicata, to what applicable, 131, 549 what necessarj' to support, 104 ■when not good, 104, 108 of tender, what admitted by, 964, 965 ultra vires by corporation, when available, 1317, 1318 . want of jurisdiction, how alleged, 1436 1606 Index. [References Plea (continued). that judgment is void or rendered without jurisdiction, 1431 to judgment may show nature of service, 1435 Pleading: — an estoppel by deed, 1437, 1439 by estoppel, 14, 1433 election in, conclusive, 943, 944 estoppels in pais, 1447 facts necessary to create estoppel in pais, 1447, 1448 in confession and avoidance, conclusive, 943, 944 judgment, efifect of, 33G judgment not necessary to set out the whole record, 1429 obtained during pendency of another action, 127 on judgments of other states, 1435, 1436 Pleas- admissible in actions of judgments of other states, 666 to revive judgments, 137, 138 under foreign judgments, 588 in regard to judgments which are held good, 1419 of estoppel must precisely allege facts creating it, 1437 to judgments of other states, GG4 Pledgor — of stock, when estopped from claiming title, 1324, 1325 Pointing- out boundary line to one about to purchase, 1269 Points — collateral or incidental not included, 284 not considered, not merged in judgment, 122 on which adjudication depends, how ascertained, 112 once decided, res judicata, 98 Policy— of law to prevent relitigation of same matters, 330 will not aWow tenant to dispute landlord's title, 982, 983 Possession — adverse, who cannot claim title by, 1291, 1298 obtaining estops lessee from setting up adverse claim, 975 party from relying on paramount title, 978 Possessory — action of ejectment is, in England, 229 Postponement^ of prior lien by failing to assert it, 1044, 1045 mortgage by estoppel, 1037, 1038 mortgage lien by extending time of paym.ent, 1038 unrecorded liens by failing to give notice, 1046, 1047 Power- creating corporation can only set up ultra vires, 1319 are to pages.] InDEX. 1607 Power (continued). of courts to affect judgments, 50 partner to bind firm by estoppel, 1229 to affect or modify judgments, 50 practical location of boundary line for more than twenty years, 1270 Precedents — when they become important, 116 Precise — point in issue need not be same in two suits, 281 Prejudice — effect of dismissal of bills without, 471, 474 Preniiuiu — acceptance of, waives forfeiture of policy, 1344 agent may waive payment of, in insurance policy, 1343 by extending time of payment waives conditions, 1343 receipt of after death of party waives forfeiture, 1344 by agent estops company from denying it, 1343 voluntary receipt of by agent estops company, 1344 Presumption — as to the rendition of judgments, 27 in favor of a boundary line acquiesced in, 1268 ratification by principal, 1216 record, 59, 60 that judgment covers several causes of action, 257 party had notice to a])pear and contest, 136, 137 Presumptions — as to acts of courts of competent jurisdiction, 102 appearance by attorney in foreign judgments, 630, 635 principal being bound by acts of an agent, 1211 conclusive effect of judgment may be rebutted, 257 in favor of judgments of other states, 614 proceedings of superior courts, 446, 447 records of courts of competent jurisdiction, 317 validity of corporate acts, 1317 regard to binding operations of judgment, 102 juris et dejure, 75 cannot be destroyed, 75 of law need not be stated in pleading estoppel, 1430 that all judgments apply existing law to facts, 116 matters were litigated, 481 causes of action are the same, 549 every man acts and speaks the truth, 5 judgment is final, when not controvertible, 128 pleader submitted strongest point, 567 Preventing — party from setting up defense, 938 1G08 Index. ^References Prima facie— Avhen rccitul of service in record is, 306 Primary — grovind of estoppels in pals affecting land, 1073, 1090 Principal — accepting advances from a factor, bound, 1205 and servant, wlicn are, IGl agent, are, IGl collateral elements to plea of res judicata^ 65 bound by act of agent, whether detrimental or advantageous, 1214 deeds of agent or attorney, 1208 by retaining fruits of aftinns acts of agent, 1202 cannot ratify a part and reject part, 1203, 1219, 1220 receive benefit and reject contract at same time, 1205 set aside settlement after availing himself of it, 1204, 1205 elements in plea of res judicata is valid judgment, 65 estopped from claiming to be surety, 1223 judgment against, effect of on surety, 168, 177 recovery of, bars action for interest, 91 jurisdiction of, when necessary, 70 may be bound though authority of agent withdrawn, 1210 ratify an unauthorized act so as to bind him, 1202 must adopt or reject the whole contract, 1202 when bound by agent's dedication of streets, 1289 false representations of agent, 1206 estopped by agent's act, 1201 elements to the conclusive effect of records, 25 Principle— that applies to bills and notes, 1123, 1124 wl)ere one of two parties must suffer applies to land, 1085 Principles — applicable to bonds delivered by principals without signature of sureties, 11:30, 1147 conclusive effect of records, 24 in criminal cases, 485, 487 to county courts and county officers, 522 foreign proceedings in personam, 586, 597 judgments of courts of general jurisdiction, 307 federal courts, 697, 698 proceedings in in rem, 581, 592 statutory and official bonds, 767, 772 as to application of estoppels in pais to married women, 1233, 1235 judgments of insurrectionary states, 698, 702 negntial)lu securities issued by municipal corporations, 1370, 1383 embraced in the doctrine of res judicata, 133, 134 governing the rights of strangers, 114 are to 2)ages.] InDEX. 1609 Principles {continued). in order to make estopjiels effectual, 14 regard to adverse j^ossession, 1291, 1298 dividing or splitting actions, 246, 256 judgments of other states, 702, 703 of conclusiveness as to foreign judgments in rem, 573, 587 of judgments of various courts, 20 applicable to officers' returns, 589, 546 election are rules of natural justice, 1186 estoj)pel applied to bills, etc., made on Sunday, 1155 between landlord and tenant, 970, 971 by deed, foundation of, 711 or matter in writing, 707, 858 in pais applicable to administrators, etc., 1261, 1263 apply to corporations, 1299, 1350 when applicable, 1084 penal in their character, 1084 estoppels in pais, 876, 878, 887, 899, 900, 915, 917, 919, 920, 1003, 1010, 1057, 1060, 1069, 1074, 1087. 1089, 1090, 1099, 1110, 1111, 1113, 1114, 1119, 1120, 1122 aflfecting title, stated in Wendell v. Van Rensselaer, 1056 in pais as afi'ecting title to land, 1053, 1111 applied against insurance companies, 1330 apply to real and personal property, 1074 apply without regard to nature of property, 1053, 1054 how an after-acquired title inures, 792 Private — right in matters of, judgment binds parties, privies, 157 Privies — affected by estoppel between landlord and tenant, 974, 975 and parties bound by estoppel in deed, 720 assignee, when, 154 classified by Coke, 150 covenantor, when, 162 divided mlo three classes, 150 estopped if their ancestors would be, if living, 728 heirs are when they derive title from ancestor, 160 in estate, in blood or in law, concluded, 155 blood, wlio is, 150, 151 estate, who are, 154 parties may become by notice t(^ defend, 157, 158, 162 those whose interests are identical with parties, 155 when husband may be of his wife, 151, 160 who are, afliected by estoppels by deed, 720 bound by judgments in ejectment, 226 1010 Index. [References Privilege — must be plead or waived, 452 Privity — of estate ordinarily created by payment of rent, 974 party claiming under anotlier, when not, 160 term, how used, 149 when sufficient to give rise to an estoppel, 756 Privy — in estate to a judgment, who cannot be, 155 law under statutory pi'ovision, 156 successors in office, when, 152 surety may be, 159 when a man becomes a, 150 Prize- foreign judgments of courts of, effijct of, 573, 587 Probate Court — decision, when not re-examinable in any other, 423 Probate and Partition^ conclusiveness of judgment in, 480 Proceeds- receipt of by heir an estoppel, 1080 mortgagor estops denying regularity of foreclosure, 1050 Proceedings — however erroneous where jurisdiction exists do not aflfect judgment, 316 in federal bankrupt courts conclusive, 284, 288 foreign attachment, effect of, 585 in rem, G9 of county commissioners when judicial, conclusive, 517, 518, 525 ecclesiastical bodies, conclusiveness of, 532, 534 terminating in judgment, conclusive, 26 under the civil law as to res judicata, 77, 96 without jurisdiction 69, 70 Process — jurisdiction of necessary, 70 of law, what is due, 70, 71 Promise — by principal, when it ratifies agent's acts, 1217 Promising — to reconvey estops party from setting up title, 930 Promisor — judgment finding person to be, conclusive. "33 Proof- burden of, on party opposing conclusiveness of record, 236, 237 pleading an estoppel, 1434 those T;ho rely on the estoppel, 481 oxdudod by ?'f") judicata, 75 are^o pages.'] IndEX. 1611 Proof (continued). why necessary to identify matters in issue, 330 of loss, application of estoppel to, 1348, 1353 waiver of by insurance company, 1348 Property— cannot be taken without due process of law, 70 Procuring— ordinance estops party from questioning it, 1362, 1363 Property holder — when estopped to deny power of state to contract, 1361 Propositions - assumed or decided, conclusive, 122 recognized as to estoppel i?i pais 5, 6 Proprietor- pointing out boundary line, estoppel of, 1267 Prospectuses — when estoppels in pais, 923, 925 Public- policy requires the adoption of estoppels, 7 square, dedication of land for, 1282, 1283 Purchase— of land by representing it as free, estops party denying it, 1 199 Purchaser — at execution sale, estopped to deny debtor's title, 975 judicial sales affected by estoppels by deed, 719, 721 for value of mortgage, estoppel in favor of, 1030 from tenant or at sherifTs sale bound same as tenant, 993 •not affected by secret equities, 1007 of land estopped from denying title of vendor, 975 under an en-oneous opinion as to title, 1082 doctrine in regard to, 211, 213 pendente lite how bound, 21U, 213 subject to mortgage, cannot deny validity of, 1048 when estopped from denying validity of mortgage, 1034 to deny mortgagor's right to redeem, 1048 he occupies position of tenant, estoppel of, 1013 with knowledge of an estoppel, when bound, 1079 Purchasing— subject to mortgage creates estoppel, 1034, 1035 Principles— of U. S. S. court as to collateral impeachments of judgments, 423 the civil law in regard to res judicata, 90, 94 on which jurisdiction is obtained, 05 upon which conclusiveness of judgments depends, 121, 122 doctrine of implied agency founded, 1209, 1210 of res judicata, 123 1612 Index. [lie/ercnces Principles (continued). to piirlics \vituessing execution uf instruments, 1043, 1046 upon which conelusivencss of judgments is founded, 101 doctrine of res judicata is founded, 123, 124, 133 ■which relieve judge from liability, 508, 509 Prior- judgment on the same cause of action a bar, 126 when no bar, 236 prima facie conclusive, 236 Priority — of action immaterial, the judgment controls, 126 Q. Qiiare Claiisnm Fregit— judgment in, when conclusive of title, 230 res judicata as between parties, 230 Question — litigated, when concluded by former judgment, 288 of forfeiture by charter, estoppel in regard to, 1392, 1393 of jurisdiction, decisions on, final, 418 how determined, C7, 72 when one of fact, conclusive, 419 j)robate once passed upon, final, 98, 99 pending in one court cannot be re-agitated in another, 552 whether same matters could have been litigated, how determined, 329 as to what was in issue, how determined, 553, 559 whether state statute violates U. S. constitution, decision of, 688 Questions — as to identity of matters litigated, how determined, 236, 237 cannot be raised in appellate court for first time, 953, 954 determined by probate court not re-examinable, 423, 424 of former acquittal, how made available, 498, 499 or conviction, how determined, 497, 408 recitals as estoppels, in actions of ejectment, 743 statutory construction, upon what courts conclusive, 684, 689 decision of on constitutionality U. S. laws binding, 688 once settled and determined cannot be again revived, 99 that are merged in judgment, 498, 499 arise collaterally, not included in judgment, 477 might have been determined are i)arred, 277, 278 to be determined to make judgment a bar, 300 Qnit-claim— vfithaut covenants, efiFect of, 826, 827 are to pages.] InDEX. 1613 R. Eailroad Company — bound by contracts of agents, 1384, 1385 misrepresentations as to earnings, 1389 condemnation of land, 1388 by ratifying act of oflBcers, 1389 cannot plead want of authority of agents, 1385 judgment against bars action for crossing, 310 when bound by ajiplying for appraisers, 1388 not allowed to plead ultra vires, 1385 permitted to deny bill of lading, 1385, 1386 ' K. R. Contract — judgment on part conclusive as to whole, 233 Railway — aid bonds, estoppel of municijmlities by, issuing, 13T1, 1384 when construction of cannot be interfered with, 1389 Ratification — after act done, binds principal, 1211 by accepting proceeds of sale, 1199 bank of oflBcer's acts binding, 1330 corporation in permitting judgment by default, 1310, 1311 insurance company conclusive, 1203 municipal cori^orations of agent's acts, 1218 municipality, equivalent to prior authority, 1219 state of acts of agents, when binding, 120-4, 1265 widow after husband's death, 1238 corporation bound by, same as persons, 1301, 1810 doctrine in regard to, 1157, 1200 essentials of, 12 10 implies knowledge, 1157 is founded on knowledge of facts, 1157 must be with full knowledge, 1215 nature of, 1157 of agent's acts in contracting for loan, 1204 alteration in negotiable instruments, 1136 contract by municipal corjioration, effect of, 1367 forged signature by party, 1123 effect of, 1131 impeachable transactions, 1196 infant's acts, when conclusive, 1257 judicial sales, 1189 part ratifies whole, 1203, 1204, 1219, 1220 unauthorized act by corporation, 1310 unauthorized act by principal, conclusive, 1203, 1204 1614 Index. [Seferences Ratification (continued). once made, irrevocable, 1196 subsequent, doctrine in regard to, 1212, 1213 when it will be presumed from silence, 1216 Real actions — when judgment in a bar, 93 Real Estate- may be affected by matter in pais, 2 jjroceediiigs for the recovery of in rem, 352 Real- property, judgments affecting conclusive in other states, 863, 864 Reasonable — certainty required in pleading former judgment, 1429, 1430 Reason — of conclusiveness of judgments between parties, 143, 144 rule of conclusiveness of judgments, 101 personal jjjdgments bind only parties, 140, 142 strangers are not bound by judgment, 114 why estoppels are strictly construed, 10 judgments of competent courts are conclusive, 308 there must be an end to litigation, 123, 124 they must be certain to every intent, 10 Reasons — assigned by court immaterial, 312 default judgments are within rule of res judicata, 43 for conclusiveness of decisions in rem, 396 estoppels between landlord and tenant, 974, 975 sustaining the doctrine of Gates t. Preston, 264, 275- the doctrine of stare decisis, 116, 123 universal application of estoppel, 873, 874 judgments in rem axe conclusive, 351, 357 not admissible in civil and criminal cases, 483, 484 of appellate courts not re-examinable, 121 competent tribunals may be void, 73 why judgments not subject to collateral attack, 424, 425 Receipt- of money by agent, when it binds principal, 1103 for damages, when conclusive, 1360 when an express consent, 13G0 premium by agent binds insurance companj'^, 1342, 1343 proceeds by heir, 1080 of sale made by agent binds principal, 1220 property from corporation binds party, 1399 purchase money, conclusive, 928, 929 Receiptor — estopped from proving title in himself, 916 are to 2)ages.] InDEX. 1615 Receiptor (continued). estopped from setting up title, 773 of property cannot deny sheriff's title, 93G, 987 Receiving — evidence as waiver of an estoppel, 1428 proceeds of sale under execution, 1189 proofs of loss without objection, when a waiver, 1349 Reciprocality — of estojjpels, 483 Recitals— 12 Recital— application of equitable estoppels to, 762, 763 as estoppels by deed, 741, 776 to payment of consideration, 744 binds parties claiming under deed, 759 privies in blood, law and estate, 741, 742 by admission of facts in deed conclusive, 754 carrier in bill of lading, when conclusive, 776 matter of writing, not of record, 767 by one of several loaners, 754 attorney for principal, 756 estoppel defined, 742 concludes mortgagees claiming under mortgagor, 749 conclusive effect of, 741 distinction between general and jDarticular, 748, 749, 774 does not bind infants, 758 strangers, 741, 742 estops parties and jirivies, 758 claiming under same grantor, 752 estoppel by, applicable to mortgages, 794 applies to land purchased from government, 786 caused by covenant of warranty, 788 created b}'' use of what terms, 782, 783 effect of, depends upon language used, 782 general principles relating to, 794, 795 in implied conveyance of fee simple title, 792 deed of simple release, 784 inures in favor of parties and privies, 794 must be mutual, 742, 743 passes estate in conformity with, 787 prevents party contesting grantor's title, 791, 792 from contradicting them, 783 ■what forms operate as, 783 founded on, 785 when applicable to equitable titles, 7&2 as effectual as warranties, 752 1616 Index. [Re/erencea Kecital (continued). estoppel by, wheu new title inures to grantee, 792 subsequent grantee entitled to benefit, 794 where owner convoys witliout title, 785 whether applicable to quitclaim deeds, 789, 790 will be created to prevent fraud, 7G4 where vendor no title when he conveys, 786, 787 estopping party to impeach assignment, 75G of consideration when cannot be contradicted, 7G1 delivery of deed, 751 execution of a deed of release, 756 facts in deed conclusive against grantor, 743 material facts, 751 paj'ment of purchase money may be contradicted, 761 service in record, when conclusive, 418 when conclusive, 316 title estops party from deuj-ing it, 751 in a deed, 751 deed of vendor, 1191 lease, lessee cannot contradict it, 845 or covenant, when acted on conclusive, 756 that grantor conveyed fee simple title, 755 has good title, conclusive, 754 one occupies land as tenant prevents denying it, 1006 exceptions to conclusiveness of, 760 general cannot control part of deed, 774 doctrine as to, 744, 748 in administration bond prevent denial that principal is bound, 771 assignment, assfgnee when not estopped, 764 assignments estop assignor, 764 attachment bond, conclusiveness of, 770, 771 bond, precludes surety denying appointment of principal, 1384 official bond prevents surety from disputing character, 769 bonds, 767, 772 certificates of justices of the peace, 762 deed cannot be contradicted by party, 755 effect on manied women, 742 for fraudulent puri)oses, 759 may be shown to be void, 759 of assignment, effect of, 756, 774, 775 ' existence of mortgage, 749, 750 prior lien or incumbrance, 750 stranger cannot take advantage of, 754 that party is owner, 758 bind all parties thereto, 741 doctrine as to, 756, 758 arc to i)ages.] InDEX. lGi7 Recital (continued). in deed extends to all facts therein, 760 of correction, effect of, 703 evidence against parties making them, 754 on execution sale, 7G1 restriction of, conclusive effect of, 7-io deliver}" bond, effect of, 761 forthcoming bonds, obligors bound by, 768 guardian's bond prevents denial of its validity, 770 joint bond, party cannot deny he is principal, 770 lease, effect of on parties, 704 municipal bond conclusive, 1383 oflBcial bond prevents denial of character of principal, 770 patent of prior patent, 758 receipt given estops party from setting up title, 773 record conclusive on administrator, 390 service in 2:)artition decree, 300 sheriff's return, 762 statement of facts mutually agreed, conclusive, 763 statutory bonds conclusive on sureties, 767 stock certificates conclusive, 1325, 1326 undertaking binds sureties, 769 void deed, effect of, 759 warranty deeds, effect of, 749 ■will, how made conclusive, 756 need not be made in terms to be conclusive, 773, 774 not conclusive to matters of mere description, 743 of boundary lines in deed conclusive, 752, 753, 759 consideration, reasons why not conclusive, 764, 766 date in deed not conclusive, 758 facts in bond conclusive on party executing, 772 ■which render a deed valid, conclusiveness of, 749 general words do not estop, 742 particular facts, upon whom conclusive, 752 payment of purchase mone}, 700 specific facts u^wn which others rely, 751 principals in regard to, 744, 748 questions in regard to arise in actions of ejectment, 743 specific, bind parties if not land, 743 when co-tenant concluded by, 755 intended to be statement of one party only, 7'>3 they bind grantee, 750 where party acts officially, no estoppel, 751 . Eecoguition — of chattel mortgage prevents denying its validity, 1229 102 1G18 Index. [References Eccognilion (continued). of corporation in statute binds state, 1406 party as agent binding, 1205 Kecog'iiizcd — propositions in regard to estoppels in pais, 5, 6, 882, 883 Recognizing — a liabilit}^ prevents contesting it, 1182, 1183 and adopting survey binds parties to boundary, 1276 sale prevents attack for fraud, 1194 the ofKcial capacity of one, 906 validity of mortgage precludes mortgagor, 1031 Record— absolute verity where court has jurisdiction, 408 ambiguity in, when it will not affect, 237 cannot be extended by argument, 290 conclusive, whether pleaded technically or given iu evidence, 1413 defined, 17, 18 eftect of when anything is left to conjecture, 292 facts of must be proved by record, 242 matters of need not be proved by evidence, 100 none in personal actions unless party served, 415 of acquittal in regard to malicious prosecution, 483 action of trespass quarc clausum frecflt on questions of title, 225 judgment must show points dciennined, 289 that former action was same, 1421 recovery estops defendant from what, 1428 for damages as conclusive as a disclaimer, 819 superior jurisdiction imports absolute verity, 316 on appeal, when not a bar, 1417 part of insufficient to sustain plea of former recovery, 1417 or one which does not show service inadmissible, 1417 pleadings and verdict, effect of, 290 presenting several points, judgment conclusive to all, 122 presumptions in favor of, 59, 60 regular on its face, conclusive, 306, 307 removal of, doco not vitiate b^u" of judgments, 567 requirements of, between parties and privies, 295 what necessary to make it conclusive, 306, 307 show to make available, 1417 when admissible in favor of strangers, 335 conclusive evidence, 2;>7 it must be aided by extrinsic evidence, 330 will be sufficient evidence, 328, 329 not available as a bar, 2S9, 290 prirrM facie evidence, 236 ate to pages.] IndeX. 1619 Record (continued). when the best evidence, 112 whether pleaded in bar or given in evidence, conclusive, 1413 Records — import absolute verity, 21 in the U. S. 21 judgments and verdicts are always of, 24 of county boards, supervisors, etc., conclusive, 517, 524 justices of the peace, when conclusive, 403, 404 what they are, 21 Recovery — by defendant, where fraud is pleaded, 326 plaintiff, where defendant pleads fraud, 327 in assumpsit may bar an action of trover, 96 of damages, effect of, 326 for breach of contract, 327, 328 when and when not a bar, 288, 289 matter alleged, creates an estoppel by record, 326 on contract of grantee, 327 the matter alleged, creates an estoppel, 43 Redemption — waiver of, cannot be subsequently asserted, 1168, 1169 Refusal — to pay loss, when a waiver, 1349, 1352 Refusinsj — to pay loss on one ground bars another, 1351, 1352 Regularity — of proceedings, presumptions in favor of, 413 Release — deed of, when it works an estoppel, 784, 785 of dower extinguishes right to, 857 mortgage cannot be questioned by party making it, 1051 Releases — which operate as estoppels, 823 Relief— against judgments when, and not granted in equity, 465, 467 where obtained, 459, 460 by estoppel in pais, formerly granted in equit}^ 871 Relying— on judgment, puts proof on party pleading it, 307 Remaiiiiug — passive when one is about to purchase property, 1075, 1076 Remedies — election of one, bars relief in another, 1178, 1179 Rendition — of judgment without jurisdiction a nullity, 415 1 020 Index. [Jlejercnces RcnoTTal — of policy, when waiver as to misrepresentations, 1354 Rent- acceptance of as an estoppel, 968 Ecpeated — instances of employment may bind party, 1215 Replevin — issues tried in cannot be again litigated, 293 judgment detcnuiniug right of i)osses.sion no bar, 294 in, if satisfied, a bar, 294 when a merger, 293 may lie aided by parol evidence, 294 no bar, B73 not conclusive, 293 right of property tried in conclusive, 293, 294 writ justifies officers, 374 Replication — judgment for defendant on, 197 Reply- to plea of former recovery, 1427 Representation — bj- corporation as to ownership of stock, 1325, 1326 widow, when it bars dower, 853, 854 doctrine as to infants, 1252, 1253 either in express terms or by conduct, estoppel in pais, 5 instrument valid prevents party denying it, 1116, 1118 necessar}' for infants and minors, 178, 179 of married woman that property is her ov.-n, 1237, 1238 she is single, 1237 party that he is owner of stock, 1407 rule in regard to estoppel b}-, 882 Representations — acted upon proves to be untrue, 895 as an estoppel, 895 to indorsement for value, 1124 the future, when they operate, 903 creating estoppels as to land, 1085, 1086 doctrine of estoppels by, same at law as equity, 903 if such as may be relied upon, conclusive, 899 in deeds that are conclusive, 748 ' intended to deceive one man which deceived another, 898 made by one acted upon by another conclusive, 903 of duly authorized agents bind principal, 1211 married woman, when they bind her, 1246 mortgagee, when they may be relied upon, 1037 one partner, when they bind the firm, 896 ore (o p. [Refemicea Separate — actions, rule as to one first determined, 334 suits in state aud federal courts, 284 Servant — judgment in favor of, when a bar, 283 Service — adjudication of, conclusive, 419 distinction between none, and irregularity in obtaining, 421 findings as to, conclusive, 315 Services — judgment for, bars action for malpractice, 2G1 • Set-off— or counter-claim once litigated, barred, 279 ■when of nc avail against judgment, 246 Setting— aside judgment for fraud, doctrine as to, 453, 407 Settlement — by administrator, executor or guardian conclusive, 348 Several— breaches, when must be subject to one action, 255 causes of action, merged in judgment, 310 presumed to be merged in judgment, 257 defendants, judgments in favor of, a bar, 302 sums due and payable, when actions must be brought for, 252 Share-holders— bound by acquiescence in illegal contracts, 1323 not allowed to deny existence of corporation, 1399 standing by when bound by corporate acts, 1323 Sheldon v. Edwards- case cf, 233, 240 Sheriff- judgments against, Avhat conclusive of, 281 Sheriff's return— conclusive, 197, 199 conclusiveness of, 708, 701, 702 effect of, 965 principles of conclusiveness as to, 539, 540 Silence — and acquiescence, when estoppels as to land, 1062, 1063 as an estoppel, 1069, 1097 by stock-broker, when an estoppel, 1323 in insurance company in regard to proofs of loss, 1349 legal proceedings, 963 of attorney in trial of case, conclusive, 950, 951 when alone insufficient to create an estoppel, 1088 fraudulent. 900 aretopages.^ j InDEX. 1627 Silence (continued). when it becomes fraud, postpones, 1073, 1077 party should assert his rights, binding, 899 regarded as fraud, 1092, 1093 Silently- permitting another to invest money, 1193 Solemn — admission of a fact an estoppel, 751 ■which have the force of estoppels in pais, 939 Special- finding of jury, when final, 832 verdict, judgment on, when conclusive, 566 Specific- facts, if acted upon, constitute an estoppel, 751 recitals conclude parties, 743 of good title binding, 754 Specifying— one objection Avaives others, 952 Spiritnal Courts — proceedings of, are in rem, 348 Standing by— 2 and sanctioning a sale, 876 seeing another sell land without objection, 1064 without objection and seeing one deal with property, 1192, 1193 and seeing party take deed, conclusive as to boundary, 1274, 1275 suffering others to incur expenses, 1360, 1361 * at sale, when it bars dower, 853 of married woman when it binds her, 1235, 1236 minor, when an estoppel, 1257, 1258 what is meant by this term, 1078 Stare decisis— 116, 123 principles upon which founded, 116, 123 State Court — decisions, followed by United States supreme court, 684, 689 judgments available in federal courts, 109 of, binding on federal courts, 684, 089 State- doctrine of estoppel by deed applicable to, 810, 814 estopped by act of legislature, 811 acts of its officers within their power, 811, 812 its own grant and warranty, 811 location of boundary lines, 1275 only can question forfeiture of charter, 1392, 1393 when concluded by judgment, 219 estopped from denying illegality of contract, 1152 1G28 Index. ^ [References States— when estoppels arc applicable to, 12G4 where probate proceedings may be set aside, 390 Statements — by uiarriod woman that she is divorced, 909 in one transaction l)inding when acted upon, 7G2 influencing party by assent binding, 1118, 1119 inducing contract must be adopted by principal, 1206 made to induce others to act on binding, 1199 mutually agreed on and recited in deed, conclusive, 763 of maker of note that it is valid, 910 fact which influences part}', 900 agent are statements of company, 1333 agents are statements of principal, 1205, 1206 principle of conclusiveness of judgments, 141, 142 once acted upon, when binding, 895, 896 or recitals in deeds, effect of, 714 when acted on by party, conclusive, 1074 which cannot be contradicted without fraud or injury, 861, 862 have the character of estoppels in pais, 862 Statute — of frauds do not affect estoppels in pais, 1054, 1055, 1061 limitations, waiver of plea of, 955 Statutes — adjudication on conclusive, 344, 348 decree construing conclusive, 480 Statutory — abolishment of fictitious forms in ejectment, 221 and common law dedications, 1278 construction should be followed, 123 rights, waiver of, 955, 961, 963 Stay- of execution, conclusive effect of, 425 Stipulations — by attorney of record, 964 Stockholder — application of equitable estoppels to, 1394, 1400 attending meetings, cannot deny validity of subscription, 1394 bound by inducing others to subscribe, 1094 judgments against corporations, 164, 165 cannot deny paying the first installment, 1400 prove prove corporation illegally created, 1395 question validity of corporation, 1393, 1400, 1401 regularity of organization, 1400, 1401 paying calls cauuot deny existence of company, 1394 validity of subscription, 1396, 1399 are to 2yages.] InDEX. 1629 Stockholder {continued). receiving dividends cannot disclaim ownership, 1399 ^vhen he cannot question legality of corporation, 1405 Strangers — allowed to impeach judgments for fraud, 452 may prove judgment was obtained by fraud, 412, 452 neither bound by nor take advantage of estoppels, T20, 850 not bound by estoppels by deed, 707 personal judgments, 140, 147 to deed cannot take advantage of recitals therein, 754 judgment cannot take advantage of res judicata, 114 when bound by estoppels by deed, 719 not bound by recitals in deeds, 741 they may take advantage of judgment, 334 who cannot take advantage, not bound by estoppels, 14 Subscriber — cannot denj^ legality of his subscription, 1398 take advantage of defects in organization, 1398 for stock cannot question validity of charter, 1389 to stock in corporation acting as officer, etc., 1395 when cannot question corporate existence, 1395 Subscribing- — to stock in corporation recognizes its validity, 1394 admits its legal existence, 1395 Subject-matter — must be same in both actions, 104 Subsequent — legislative authority ratifies issue of municipal bonds, 1381 purchaser with knowledge of estoppel, bound, 1079 ratification binds owner as to a sale, 1053 by municipal corporation binding, 1219 state legislature, when conclusive, 12G5 doctrine in regard to, 1212, 1214 equivalent to prior authority, 1211 relates back to what time, 1214 Substance^ only necessary to be decided to create a bar, 480, 481 Successor— when entitled to benefit of a judgment, 185 Successors — who are, 183 Sufficiency— of service, admission of, conclusive, 419 Sui juris— parties ordinarily must be, to create estoppel by deed, 714 1630 Index. [ne/ercnces Suinsj— for proceeds of goods affirms sale, 1183 Suit— definitioa of, 26 by principal on agent's contract, 1219 Summary — of doctrine applicable to judgments of other states, V02, 703 as to estoppels affecting title to land, 1298 Sunday- contracts, 1155 Superior Courts- distinction between and inferior, 397, 399 judgments of, conclusive in themselves, 397 without jurisdiction, 397 presumptions in favor of, 412 Supervisors — allowance of claim, when conclusive, 518 approval of bond by, conclusive, 519 conclusiveness of proceedings of, 521 general principles of conclusiveness of their actions, 517, 524 proceedings of not subject to collateral attack, 520 when conclusive, 517, 524 Supreme Court— of United States, doctrine as to estoppels in pais, 1057, 1059 proceedings in ejectment in, 221, 222 Sureties — delivering papers to principals for further signatures, 1124 doctrine as to effect of judgments on, 199, 201 judgments against principals, 168, 177 on bonds estopped by recitals therein, 767, 772 Surety — cannot deny his position, 1223 question delivery of bond by principal, 1138, 1147 discharge of, when dependent on eciuitable estoppel, 1223 estopped from setting up defense personal to principal, 1116 making principal his agent to deliver bond bound, 1138, 1147 not bound, but may be by act of principal, 1138, 1140 on bond of insurance agent, concluded, 1357 promise of, when binding, 1183, 1184 wdieu estopped by act of principal, 1116 judgment, 199 from showing his true character as such, 1224 to deny validity of bond, 1118 he may avail himself of an estoppel, 1419 take advantage of judgment, 334 notified to defend, bound, 159 are to 2}age8.] , InDEX. 1631 Surrender — by operation of law, what is, 1004 effect of estoppels in pais on, 1200 how affected, 1004 of premises terminates the estoppel, 1003 when contract or agreement takes effect as, 1004 Surviving— partner cannot impeach grantee's title of other partner, 829 T. Taking — conveyance from corporation admits its existence, 1401 Tax- collector cannot question county's right to tax, 1016 deeds, doctrine in regard to, 831, 833 liens, foreclosure of, conclusive, 348 return, when party estopped to deny correctness of, 708 Taxpayer- petitioning city council to make improvements, bound, 1361 bound by judgments against city or county, 1G6 Technical- estoppels must be pleaded with great strictness, 1429 Technicality — of estoppel, when will be restrained, 11 Telegrapli dispatclies — party sending on blanks of company, 1154 Tenancy — by estoppel, how created, 969 Tenant — after lease expires may assert any title he has. 984 at sufferance, not admitted to question lessor's title, 1293 bound by allowing person to put up sign, 890 by surrender of title, ends the estoppel, 998 cannot assert adverse title until he surrenders possession, 998 claim by title purchased from stranger, 984 title by adverse possession, ]2"J1 by outstanding title while in possession, 983 deny his landlord's title, 979 landlord's title during existence of lease, 984 origin of rule, 979 without disparaging his own, 987 that landlord had title, 995, 996 the title of the heir of lessor, 984 title until term expires, 997 hold adverse possession during term, 837 1032 Index. [References Tenant {continued). cannot impeach landlord's title at commencement of demise, 983, 984 plead paramount title in another during term of lease, 979 question title at time lease is made, 995 set up adverse possession against landlord, 1291 title during continuance of lease, 984 inconsistent with lease, 983 when cannot set up deed of third i)ersons, 979 concluded by judgment iu ejectment, 224 to deny possession, 224 estoppel of, by accepting lease, 988 holding over after expiration of lease, 988, 989 continues during lease, 988 extends to all persons coming iu under him, 987, 989 in actions for rent, 987 to recover possession, 987 case of defective title of landlord, 987 the essence of his contract of lease, 987 to plead nil hdhitlt, etc., 988 for limited period cannot deny landlord's title, 979 holding under husbantl cannot deny his sei/in, 852 in common cannot show mistaiie in title of co-tenant, 751, 754 effect of conveyance ijy warranty, 829 possession, when concluded by judgment in ejectment, 221, 222 may show landlord's title has expired, 995, 99G must first surrender possession before disputing title, 973 surrender possession before disputing landlord's title, 985 of heir cannot deny ancestor's title, 851 mortgagor when he may set up paramount title, 999 purchaser from bound iu same manner, 989 renting from agent cannot dis[)ut.e unnanuKl landlord's title, 973 under void lease cannot dispute landlord's title, 9G9, 970 when he cannot deny landlord's title, lUOl set up adverse title, 1293, 1294 want of seizin, 852 obtains title by estoi^pel, S35, 837 Tenants— and their privies estoi)ped from disputing landlord's title, 972 how affected by judgments in ejectment, 221 in conunon, purcluise by one benefits ail, 1000 ■when estopped from denying parol partition, 1290 Tender — plea of, as a bar, 903. 9G4 what it conclusively admits, 904, 905 Term — " equitable estoppel," origin of, S05, 806 are to pages.] InDEX. 1633 Term (continued). " judgment in rem,''^ derivation of, 344 "parties," defined, 146, 149 ^Wes judicata^'''' what included in, 130 " superior," "inferior," "limited,'' and "general," defined, 398, 399 " willfully," explained, 880, 1085 what understood by, 4 lapse of, when it bars relief against judgment, 464 Test- to ascertain whether both actions are the same, 1422, 1423 determine whether actions are several or distinct, 254 when it is doubtful whether second action is same, 96 whether two actions are the same, 302 Third- parties neither injured nor benefited by admissions, 88 not affected by judgments or decrees, 114, 115 bound by judgment in ejectment, 224 persons responsible if notified to defend, 159 when affected by estoppel by deed, 719 protected l)y probate proceedings, 394 they may impeach probate proceedings, 394 Time — in which action should be brought to obtain relief, 464, 465 necessary to fix boundary lines by estoppel, 1266, 1267 of rendition of judgment, immaterial, 126 Title— after-acquired, passes only by warranty, 809 when it inures by lease, 834 by estoppel, affects after-acquired real property of mortgagor, 796 apjjlies in cases where parties mortgage land, 796 arises where party conveys without title, 785 bars vendor from setting up after-acquired legal title, 786, 798 binds what parties, 778, 779 classes of cases applicable to at civil law, 779, 780 conclusive on parties and privies, 805 contingent remainder may pass by, 817 covenant of warranty necessary to create, 788 to create must run with the land, 808 coyenants in mortgage that creates, 794 that operate so as to create a, 783 which create, 782 created by deed with warranty, 806 warranty in a mortgage, 795 deed of attorney, when it passes, 816 definition of the doctrine of, 777, 778 depends on meaning of the deed, 782 103 ( 1634 Index. [Re/erenees Title (continued). by estoppel depends upon intent of parties to the conveyance, 797 the meaning of the instrument, 795 doctrine applies to states, 810, 812 as to passing mortgagor's after-acquired title, 783 in regard to, 821, 824 of applicable to mortgages, 783 founded on principles of morality, 805 in its application to defeasible deeds, 803 effect of, 777, 778 covenants to pass, 797 essential requirements necessary to create, 784, 785 exceptions to the doctrine of, 799 extends to all who derive title from grantor, 794 heir, deed of, when it creates a, 785 how created, 802, 805 enforced in equity, 799 illustration of under a mortgage, 800 in cases of defective title, 779 conveyance by warranty without title, 778 instruments which do not pass, 780 inures instantly on grantor's obtaining it, 805 to beneilt of grantee, 777 grantee, when, 778 mortgagee, 791, 794 with same effect as if passed by deed, 791 it applies to mortgages, 794, 795 may transfer homestead estates, 798 must be one obtained after execution of interest, 800, 801 nature of which vests in mortgagee, 801, 802 no particular form of words necessary to, 824 none by deed of simple release, 784 in covenant of non-claim in Maine, 789 (. where covenant is extinguished, 788, 789 deed contains title, 820 interest passes by deed, 781, 782 not regarded as a distinct transfer of real estate, 781 of grantee in conveyance by agent or attorney, 790 of husband and wife, 790 lessee or grantees, 797 patentee, when it inures to grantee, 785, 786 purchaser of equitable title, 790 under execution sale, 790 old rule of law relating to, 787 operates against party conveying by warranty deed, 807 ordinary and extraordinary effect of, 781 are to pages.] InDEX. 1635 Title (continued). by estoppel parties and privies bound by, 805 passes after-acquired estate which vests in mortgagor, 795 an estate in conformity to the deed, 787 estate conveyed by woman before marriage, 791 legal title when patent issues, 792 the interest of an heir, 807, 815, 818 though party is discharged as bankrupt, 806 to grantee free from incumbrances, 792 if subsequently acquired, 786 with the land, 817 prevents grantor from setting up homestead right, 786, 798 heirs denying grantee's title, 792 principles relating to, 792, 803 upon which founded, 803, 806 protects a purchaser from patentee, 786 recital that creates, 778 recitals in conveyance that pass, 780, 781 which create, 786 requires covenant of warranty in deed to create, 787, 788 good and valid deed to create, 807 rule that interest feeds the estoppel, 777 runs with land, 787, 806 statutory provisions passing, 789 striking instances of, 777 under deed from corporation, 793 quit-claim deed, 798 vests in grantee the estate intended, 805 when it bars guardian, 807 created by intention of parties, 782 it includes after-acquired legal title, 782, 783 inures to grantee, 806 and his heirs, 792 mortgagee, 779, 796 passes by release of mortgage, 797 will not inure to grantee or tenant, 780, 788 words in deed that convey, 815 which pass a title by, 815, 816 by judgments, 213 cannot be set up by tenant's privy, 983 concealment at lime of purchase, an estoppel, 1082 decree of probate court, when conclusive on, 391 judgments in questions of, of what conclusive, 203 on, when conclusive, 199 to land, application of estoppels iiijxiis to, 1053, 1111 may be affected by equitable estoppels, 866, 868 1636 Index. IRe/erenca Title (continued). to real estate may be baired by matters in pais, 1061 propert}' judgments on, couelusive in other states, 683, 685 tried in action for tresi)ass conclusive, 258 must have been tried to be affected by judgment, 295 party alleging it to be in another, bound, 340 ■when former judgment may be conclusive on, 238 it inures to co-tenants, 1000, 1001 settled in action of ejectment, 224, 227, 229 Tort- judgment in without satisfaction, effect of, 325 Transaction — cannot be affirmed in part and rejected in part, 927 Transfer — of negotiable instruments, estoppel by, 1122 stock, effect of as an estoppel, 1393 Avhen corporation bound by, 1325, 1826 Traversable — facts adjudicated conclusive, 238 Ti'eating — and occupying up to a boundary line, 12G8 forged notes as valid, estoppel by, 1122 Trespass — aud torts, general rule as to judgments in, 325 judgment in favor of defendant, bars action for money, 310 bars an action of assumjjsit, 235 when bars action of trover, 300 or trover, judgment in bars other action, 248 does not transfer title, 213 when no bar, 292, 293 quare clausum f regit judgment in, in ejectment, 334 without satisfaction, judgment when no bar, 333 Tribunal — having no authority, cannot give valid judgment, 52 Tribnnals — which must determine their jurisdiction, 412 Trial court — bound by prior decision, 118 must follow decree of appellate court, 118 Trover — judgment in favor of carrier, effect of, 335 for jiart, bars action for residue, 245 one of several actions of, when a bar, 245 when a bar to an action for trespass, 245 Tmstee— and cestui que trust bound by acquiescence, 1196 are to pages.] INDEX. 16B7 Trustee {continued) . bound by judgment against receiver, 167 judgment against, effect of, 476 Trustees- affected by estoppel in pais^ 928 Truth— when it appears in an instrument no estoppel, 722 one is estopped from alleging, 1119 Two or more — eflfect of judgments against, 283 U. Ulpian''s — doctrine of res judicata, 84 Ultra Tires — can only be raised by sovereign creating corporation, 1319 doctrine in regard to corporations, 1316, 1318 Uuappealable — judgments res judicata., 40 Uncertainty — in record, effect of, 112 may render judgment void, 47 Under-tenant — cannot dispute title under which he claims, 972 Unknown owners — when bound by judgment in partition, 303 United States — bound as to boundary lines by estoppel, 1269 courts follow state practice in ejectment cases, 225 are of limited jurisdiction, 398, 399 effect of dismissal of bill by, 473 how jurisdiction obtained, 399, 400 limited but not inferior jurisdiction, 400 government bound in case of administration, 382 not ordinarily bound by estoppels, 810 supreme court doctrine as to judgments of other states, 601, 626 of as to void judgments, 54, 59 when not concluded by judgment, 216, 217 where thej'' go into court bound like private parties, 217, 218 Universal- effect of judgment in rem, 355 rule as to doctrine of res judicata, 188, 134 Unreversed — judgment final, 100 Uses — of records, 17 1638 Index. [References Usurious — interest cannot be recovered back after judgment, 47 Usury— when mortgagor prevented from pleading, 1019, 1033 party prevented from plending, 1136, 1137 Utility— of estoppels in pais in cases of negotiable paper, 1114, 1115 V. Valid- judgments necessary to plea of res judicata, 65 Validity— of administration cannot be questioned collaterally, 379 bonds secured by mortgage cannot be questioned, 1051 corporations, when they cannot be questioned, 1393, 1409 judgment depends on jurisdiction of cause and person, 65 mortgage cannot be collaterally questioned, 1059 payment to executor on forged letters, 382 proceedings in courts depends on jurisdiction, 379, 380 where jurisdiction attaches, 380 release cannot be questioned by party making, 1051 sale of estate by probate court proceedings, 379, 381 Variety — of judgments, 27 Vattell's— doctrine in regard to foreign judgments, 572 Vendee— by reciting title in his deed cannot deny it, 1191 failing to set up fraud, barred by judgment, 280 in possession cannot, against vendor, buy oatstanding title, 1002 dispute title of vendor, 809, 810 set up outstanding title, 993 rejecting deed on one ground cannot set up another, 1169 when concluded by judgment, 299 not precluded from disputing vendor's title, 820 by allowing purchaser to execute mortgage, bound, 1040 Vendor — cannot dispute mortgage executed by vendee, 1049 concluded by receiving benefits of contract, 908 of note cannot deny genuineness of signatures, 1126 purchaser cannot deny title of, 1008 when bound by collusion with vendee, 1102 not allowed to impeach sale, 1102 after-acquired title inures by estoppel, 777, 778 conveyance, when it passes after-acquired legal title, 789, 790 after-acquired title, when it inures to vendee, 786, 787 are to pages.] IndEX. 1639 Vendor (continued). estopped by recitals, 76V, V73 lien, when merged in judgment, 560 widow, when she cannot set up outstanding title, 1002, 1003 Terbal — agreements, when conclusive, 863 contract to insure, when binding on company, 1332 Verdict- agreed upon as final, conclusiveness of, 566 efifect of, when it depends upon extrinsic evidence, 293 for defendant, for recovery of chattel, when conclusive, 238 in ejectment, effect of in action for mesne profits, 223 judgment on, when conclusive, 566, 567 on special and common counts, distinction between, 103 rule as to conclusiveness of, 566 when conclusive, 566 Verity — of records, 21 Vinnius — definition of res judicata, 85 Visitor — of corporation, sentence of, when conclusive, 509 Voet's— definition of res judicata, 84 Void— and voidable judgments, 50, 51 distinction between, 501*, 506 contract merges in judgment, 565 judgment against infant is, if not represented, 180 for uncertainty, 52 is one not against party to proceeding, 52 rendered by court giving party no hearing, 110 one pronounced by tribunal without authority, 52 judgments are those without notice, 311 that are, in other states, 682, 683 Voluntary — payment of judgment, effect of, 341, 342 or submission to judgment res judicata, 40 payments cannot be recovered back, 1182, 1183 W. Wadliam t. Gay — 73 111. 415, questioned, 43 Wages- judgment for, when a bar, 283 when they must be recovered in one action, 250, 251 1 G40 Index. [References Waiver — agents binding on corporations, 1331, 1332 by accepting part of amount due, 1198, 1199 accused in criminal cases, 488, 490 appealing from judgment, 943 special points, 953 appearing and pleading, 942 attorney, binding on client, 941 of defects in writ, 941 objections, when conclusive, 941 right of appeal binding, 941 when conclusive in a cause, 951 bringing up partial appeal, 953 corporations, binding, 1323, 1324 company consenting to assignment of policy, 1344 consenting to amendment of judgment, 946 debtor at judicial sales binds him, 1189 disclaimer of title, 947 failing to demand a jury trial, 95T object to a deed, 948 make defense to an action, 946 object to jurors, 956, 957 take advantage of defective pleadings, 945 going to trial on defective plea, 946 without objection to defects, 945 insurance company as to other insurance, 1344, 1345 objecting to the suiBciency of a writ, 953 preliminary proofs of loss, 1348, 1353 written admissions in a cause, 948 effect of in probate courts, 953 in criminal cases, 945, 946 jury trial, 956, 964 pleading an e&toppel by deed, 1437 trial of causes, an estoppel, 940 of breach of conditions by accepting rent, 1173, 1174 conditions in insurance policies by agents, 1331, 1332 defects in process conclusive, 942 demurrer, by pleading over, 945 errors by consenting to judgment, 49 exemption of homestead, 962 forfeiture of payment, binds insurance company, 1346 fraud in contract, effect of, 1171 liens, 965, 966 matters in proceedings in inferior courts, 952, 953 objections by specifying one, 952 when record is offered in evidence, 1411 are to pages.] InDEX. 1641 Waiver {continued). of one defense by setting up another, 947 right of exemption, 962 to poll jury, 957 service, by applying for continuance, 943 moving to dismiss, 943 statutory and constitutional rights, 955 when it estops party from questioning jurisdiction, 451 what it is, its effect as to estoppels, 954, 955 Waiving — an estoppel, 1410, 1449 defects in petition conclusive, 945 misnomer, binding on party, 945 Want— of jurisdiction, when it may be given in evidence, 1431 knowledge is negligence which may create an estoppel, 896 Warehouse — receipts, application of estoppels to, 1587, 1388 Warehouseman — when estopped by issuing receipt, 1387, 1388 bound by their receipts, 1105, 1106 Warranty — against particular outstanding title, eflfect of, 825 warranty, effect of, 713, 722 and covenants of non-claim, have same effect, 789, 790 covenant of, a perpetually operating one, 814 binds all parties claiming under grantor, 814 effect of in the deed, 805, 806 when extinguished, effect of, 789 grantor cannot controvert, 818 has same effect as recital in deed, 814 in administrator's deed, 791 party not allowed to claim against, 814 prevents bringing ejectment on after-acquired title, 814 which runs with land, operate as estoppels, 806 creation of estoppel bj-, 803, 805 creates an estoppel which binds grantor, 783 effect of covenant of, 788, 789 deed with, always passes after-acquired, title, 802 estoppel by, foundation of doctrine, 805 of, conveyance depends on, 788 may be restricted, 825 how it may be qualified, 826 passes after-acquired title according to intent, 802, 803 release with, passing after-acquired estate, 808 1642 Index. [References Well— established principles of mercantile law should be followed, 1 23 What— a judgment is, 25, 26 suit is, 26 title by estoppel is, 712 acquiescence sufficient to create equitable estoppels, 901 adjudications are in the nature of judgments in rem, 374 an action is, 26 constitutes a record, 23 creates an estoppel by judgment, 280, 326 decisions of state courts followed in federal courts, 684, 689 defenses allowed on judgment of other states, 666, 667 are merged in judgment, 129, 130 facts judgment conclusive of, 294 is an entire judgment, 250 jurisdiction, 68, 69 meant by an estoppel being mutual, 242 requisite to valid judgment, 34 sufficient to create an equitable estoppel, 901 the same cause of action, 91, 92 demand, 90 judgments may be sued on in other states, 612 jurisdiction depends upon, 68, 69 may be shown by evidence in aid of estoppels, 234, 235 matters are included in judgments, 134 included in record of judgment, 325, 326 term res judicata, 130, 133 necessary to apply equitable estoppels to land, 1070, 1098, 1119 constitute dedication, 1279, 1286 create an estoppel in pais, 910, 912, 1057 enforce the operation of estoppels, 906 fix acquiescence on party, 1193 maintain plea of res judicata, 104 make judgment conclusive on parties, 149 res judicata, 38, 39 prevent married women claiming her rights, 1236 raise admissions to dignity of estoppels, 917 valid confirmation by cestui que trust, 1226 ratification, 1215 official acts municipal corporations may ratify, 1218, 1219 parties bound by judgment in ejectment, 220, 231 record, 146 must show to assert equitable estoppels, 901 principles apply to sureties, 169, 178 record must show in plea of res judicata, 325 are to pages.] INDEX. 1643 TFhat (continued). representations are to be regarded as willful, 880 required of a party in order to plead estopi)els, 1449 strangers are allowed to impeach judgments for fraud, 452 term " due process of law," imports, 70, 71 was actually decided may be shown by parol evidence, 237 will estop party from questioning jurisdiction, 451 prevent lease from operating as estoppel on lessee, 995 render judgments admissible in second suit, 281, 282 When— a cause is decided between same parties, 169, 178 man becomes a privy, 150, 151 matter is finally adjudicated, it is res judicata, 133 all subsequently coming in are bound by estoppels, 817 appellate court not bound by its judgment, 121 an after-acquired title passes to lessee, 840, 842 allegation or recital is conclusive, 723 estoppel by deed is removed, 1489 can never be allowed, 10 may constitute a title, 817 sets the matter at large, 713 cause of action is merged in judgment, 129, 130 courts having jurisdiction may render void judgments, 73 may re-examine questions once decided, 123 date and place of rendition of judgment immaterial, 126 effect of record depends on jiarol evidence, 243 estoppel appears from pleadings, not.necessary to plead, 1426 is well founded, 925, 926 in pais must be plead, 1442 will affect third persons, 922, 923 is waived, jury bound to find the truth, 1438 must be plead by way of replication, 1440 of tenant to deny landlord's title expires, 984 evidence admissible to make judgment available as a bar, 1416 outside of record may be resorted to, 112 facts in second suit sustain first judgment, it bars, 96 grantee may and may not deny title of grantor, 1012 grounds of judgment must be proved by record, 1417 it becomes duty of court to apply estoppels, 1441 a judgment bars subsequent suit, 331 judgment becomes absolute verity, 70 conclusive as to landlord and tenant, 283 for part of demand bars action for residue, 246 in trover bars action for trespass, 245 not conclusive on questions of title, 1438 on the merits is a bar, 278 1644 Index. [References When {continued). judgments are interlocutory, 27 void, 52 may be impeached collaterally, 52 will not be conclusive between same parties, 299, 300 jurisdiction attaches, proceedings conclusive, 74 jury may decide without regard to estoppels, 1411 landlord has neither title or jjossession, no estoppel arises, 907 parol evidence admissible to aid record, 234, 235 a party is estopped, 2 party cannot plead, estoppel conclusive in evidence, 1411 concluded by voluntarily pajang money, 1182, 1183 may demur to plea of estoppel, 1440 give estoppels in evidence, as if pleaded, 1441 plaintiff or defendant may avail themselves of estoppel by record, 97 plea of former action will not be good, 105 principal must affirm or disaffirm agent's acts, 1216 prior mortgage will be postponed, 1036, 1037 ratification may be presumed, 1216 recovery of part bars action for residue, 246 rights of parties are decided, it is final, 117 silence a ratification of agent's acts, 1216 several actions pending, first judgment a bar, 126, 336 states are estopped, 810, 814 there is res judicata, original cause of action merged, 133 title to land in issue, judgment conclusive, 222, 224 Whenever — same question has been decided, it is res judicata, 108 Where— an estoppel passes with the land, 817 defense is by special plea, estoppel must plead specially, 1426 no mutuality, plea of estoppel unavailable, 1441 one of two persons must suffer by another's acts, 891, 892 party fails to make rights known, he is estopped, 914 point in issue has been decided, judgment bars, 332 ' the record is coram non judice, 24 truth appears in the record, 24 Willful- representation necessary to create an estoppel, 912 Will- effect of probate of, 383, 385 election, ratification or confirmation of, 1162 heir cannot take under, and in hostility to, 756 probate of, conclusive, 377 nature and effect of, 346 are to pages.'] InDEX. 1645 Will {continued). recitals in, effect of, 756, 757 of, in deed, prevents disputing its validity, 756 Willfully- causing one to believe in existence of certain things, 3, 4 defined, 4 meaning of, in the creation of equitable estoppels, 880 Without — service, judgment in personam void, 69 Witnesses— to deeds, when prevented from setting up prior liens, 1043, 1046 Woman — married, bound by declaration of ownership, 917 estate, effect of, grant of letters on, 378 vrho may take advantage of estoppel against, 1439 misleading officer, cannot deny her representation, 916 Words — "grant " and " demise," effect of, in lease, 846 Jiv\\— of entry, when a bar, 224, 225 error dismissed, makes judgment final, 122 Writing — matter in, estoppel by, 707, 858 principles applicable to, 707, 858 name on blank paper, when it binds party, 1125, 1126 Written— contract cannot be varied by parol proof, 708 instruments unnecessary to dedication, 1283 Wrong — coupled with injury, necessary to estoppels in pais, 911, 912 Wrongdoers — judgment against one of two, affects both, 249 Who— are included in the term " parties," 146 regarded as the same parties, 88 strangers to a record, 146 bound by estoppels, 14 judgments, 147, 148 i7i rem, 344 a record imports absolute verity, 19, 20 court has no jurisdiction until notice is given, 74 judgment against principal should be conclusive on surety, 169, 178 conclusive, whether in evidence or pleaded, 1414, 1415 1646 Index. Why (continued). strangers not bound by record, 147 or third persons are not bound by decrees, 114, 115 Widow — accepting dower cannot dispute husband's title, 856 acquiescing in mortgage, when concluded, 1037, 1040 barred from claiming dower by conveyance, 858 selling property, 856, 857 cannot take advantage of secret equities, 1100 concluded by her election, 1178 bound by estoppel that binds husband, 740 title derived under husband's deed, 736 failing to claim homestead, barred, 479 how barred from claiming title, 853, 855 may bar her dower before assignment, 1244 be precluded claiming dower by ancestor's covenants, 855 paying interest on mortgage cannot question validity, 1171, 1172 remaining in possession cannot deny husband's title, 856 representations at sale, which prevent her claiming dower, 853, 855 selling land free from dower, cannot claim it, 1199 standing by, seeing property sold without asserting claim, 853, 854 cannot deny her husband's seizin, 851 when estopped from denying grant, 1009, 1010 when prevented setting up paramount title, 1009, 1010 Wife- acts and representations of which bind her, 1235, 1236 bound by husband's location of boundary line, 1276 doctrine of equitable estoppels in regard to, 1231, 1260 making disclaimer, when bound thereby, 1137 not licensed to commit fraud, 1235, 1237 of a lunatic, when she cannot deny validity of conveyance, 1238 when bound by her contracts, 1236 estopped from setting up title, 1235 she has burden of establishing 'bona fides of judgment, 42 ^ \ \ % LAW LIBRARY ^ UNIVERSITY OF CALIFORNU /x '&< LOS ANGELES *>>