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§ 35. Let the Purchaser Beware.-Parties contracting for the purchase of property protected by homestead laws are presumed to have knowledge of the law; and if there be no special release of the homestead estate in the manner prescribed by the law, the inference must be, although by the language of the deed all rights, claims and interest are conveyed, that the homestead was intentionally reserved by the grantor.'

36. Equitable Estoppels as Defenses-The Term Defined. An equitable estoppel, or as it is frequently called, estoppel by matters in pais, is the preclusion of a person from asserting a fact by some previous conduct as regards matter of fact, inconsistent therewith on his own part, or on the part of those under whom he claims. Bigelow defines it to be a right arising from acts, admissions, or conduct which may have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.'

§ 37. Requisites of the Equitable Estoppel.-(1) A false representation or a concealment of material facts, and silence, when it is the duty to speak, is equivalent to concealment."

(2) The representation or concealment must be made with knowledge of the facts, unless the party was bound to know them or his ignorance was the result of his negligence."

(3) Ignorance of the facts in the party relying upon the estoppel.

(4) The representations or the concealment must have been made with the intention that it was to be acted upon, or with negligence amounting to a breach of duty."

(5) The party relying upon the estoppel must have been

1 Breese, J., in Redfern v. Redfern, 518; Griffith v. Wright, 6 Colo. 248; 38 Ill. 509 (1865).

Bigelow on Estoppel, 4th Ed., 445. 3 Pittsburgh v. Danforth, 56 N. H. 272; Parliman v. Young, 2 Dak. 175; Blum v. Merchant, 58 Tex. 400; Martin v. Angel, 7 Barb. (N. Y.) 410; Copper Min. Co. v. Ormsby, 47 Vt. 709.

7 Am. & Eng. Ency. of Law, 16.

5 Williams v. Wodworth, 51 Conn. 277; Kingman v. Graham, 51 Wis. 232; Powell v. Rogers, 105 Ill. 318; Shillock v. Gilbert, 23 Minn. 373; Robbins v. Potter, 98 Mass. 532: 7 Am. & Eng. Ency. of Law, 16.

Allum v. Perry, 68 Me. 232; Robb * Stone v. Great W. Oil Co., 41 Ill. v. Shephard, 50 Mich. 189; Zutch85; Leather Mfg. Bk. v. Morgan, 117 man v. Roberts, 109 Mass. 53; Muller U. S. 96; Raley v. Williams, 73 v. Powdir, 55 N. Y. 325; Durant v. Mo. 310; Bullis v. Noble, 36 Iowa, Pratt, 55 Vt. 270.

induced to act upon the representation or concealment in a manner which, were it not for the estoppel, would result in substantial prejudice to him.'

§ 38. An Application of the Doctrine.-If a person knowingly, although he does it passively by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his own claim, he shall not afterward be permitted to exercise his legal right against such person. In an action of ejectment these facts constitute an equitable estoppel or an estoppel in pais and are sufficient as a defense.'

§ 39. Silence as an Estoppel in Pais.-Cases in the Supreme Court of Pennsylvania when cited by the Supreme Court of the United States as sustaining the rule, hold that when the plaintiff's title appears of record in the proper office, mere silence on his part, when another makes claim of title to the same with a view to have a third person act upon such a claim of title, will not estop the plaintiff from asserting his title against the person acting upon such claim of title to his prejudice. The party who has placed his written title upon record has given the notice which every person is bound to know and respect. The law does not require him to go further. But if he speaks or acts it must be consistent with his recorded title. The law distinguishes between silence and encouragement. While silence may be innocent and lawful, to encourage and mislead another into expenditure on a bad or doubtful title would be a positive fraud that should bar and estop the partythe author of that encouragement and deception—from disturb ing the title of the person whom he misled, by any claim of title in himself."

The rule in Indiana.

A land owner who takes no steps to prevent the location or construction of a railroad upon his land, although he is fully apprised of its construction, can not maintain ejectment against the company, after the road has been fully completed and put into operation. His remedy is confined to the recovery of such compensation and damages as he may be entitled to. Louisville, N. A. & C. R. Co. v. Soltweddle (Ind.), 19 N. E. Rep. 111 (1888).

1 Sulphine v. Dunbor, 55 Miss. 255; Burke v. Adams, 80 Mo. 504; Canning v. Brocon, 50 Mich. 346; 7 Am. & Eng. Ency. of Law, 17.

Brant v. Virginia C. & I. Co., 93 U. S. 326; Knauff v. Thompson, 16 Pa. St. 357, 364; Crest v. Jack, 8 Watts (Pa.), 240; Hepburn v. McDow

2 Kirk v. Hamilton, 102 U. S. (12 ell, 17 S. & R. (Pa.) 383; Kingman v. Otto) 68 (1879).

Graham, 51 Wis. 232.


The rule in Pennsylvania.


A plaintiff in ejectment against a railroad company which has taken his land without compensation or condemnation proceedings, will not be denied judgment because he has knowingly permitted the company to put improvements upon the land; but a stay of execution may be had, giving the company an opportunity to condemn the land. Allegheny Valley R. Co. v. Colwell (Pa.), 15 Atl. Rep. 927 (1888).

§ 40. Estoppel in Pais in Actions for the Recovery of Real Property.-In this class of cases the doctrine of estoppel in pais proceeds upon the ground of constructive fraud or gross negligence, which in effect implies fraud, and, therefore, when the circumstances of the case repel any such inference, although there may be some degree of negligence, yet the courts will not grant relief. It has been laid down by a very learned judge that the cases on this subject go to this extent only-that there must be positive fraud or concealment, or negligence so gross as to amount to constructive fraud, and it would seem that the enforcement of an estoppel of this character, with respect to the title of property, such as will prevent a party from asserting 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.' It is essential also for the application of the doctrine of estoppels in pais, with respect to the title of real property, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the true state of the title, but also of any convenient or available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.❜

§ 41. An Equitable Estoppel a Sufficient Defense.-A serious question arising on this branch of the law is, whether, consistently with the authorities, the defense of the equitable estoppel is available as a defense in actions of ejectment.

'Kingman v. Graham, 51 Wis. 232; Brant v. Virginia, C. & S. Co., 93 8 N. W. Rep. 413 (1881); Brant v. Vir- U. §. 326; Kingman v. Graham, 51 ginia, C. & I. Co., 93 U. S. 326; Nor- Wis. 232. ton v. Kearney, 10 Wis. 610; Vilas v. Mason, 25 Wis. 310; McLean v. Dow, 42 Wis. 610.

There are cases, however, that come within the reasons upon which rest the established exceptions to the general rule, that title to land can not be extinguished or transferred by acts in pais or by oral declarations. "What I induce my neighbor to regard as true is the truth, as between us, if he has been misled by my asseveration," became a settled rule of property at a very early period in courts of equity.' Chancellor Kent stated the principle thus: "There is no principle better established nor one founded on more solid considerations of equity and public utility, than that which declares that a man who, knowingly, though he does it passively, looks on and suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, shall not be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by his equitable estoppel." While this doctrine originated in courts of equity, it has been applied in cases arising in courts of law.

Mr. Justice Lawrence said: "I remember a case some years ago in which Lord Mansfield would not suffer a man to recover, even in ejectment, where he had stood by and seen the defendant build on his land."


In Smith's Leading Cases, 7th American edition, with notes by Hare and Wallace, the authorities are carefully examine, and it is said that there has been an increasing disposition to apply the doctrine of equitable estoppel in courts of law. It is there said: The question presented in these and other cases which involve the operation of equitable estoppels on real estate, is both difficult and important. It is undoubtedly true that the title to land can not be bound by an oral agreement, or passed by matter in pais, without an apparent violation of those provisions of the statute of frauds which require a writing when the realty is involved. But it is equally well settled that equity will not allow the statute to be used as a means of effecting the fraud which it was designed to prevent, and will withdraw every case not within its spirit from the rigor of its letter, if it be possible to do so without violating the general

1 Kirk v. Hamilton, 102 U. S. (12 Otto) 68 (1879).

3 King v. Butterton, 6 T. R. 554.

+2 Smith L. Cas. pp. 784-740, 7th

* Wendell v. Van Rensselaer, 1 Am. Ed. Johns. Ch. (N. Y.) 344.



policy of the act and giving rise to the uncertainty which it was meant to obviate. It is well established that an estate in land may be virtually transferred from one man to another without a writing, by a verbal sale accompanied by actual possession, or by the failure of the owner to give notice of his title to the purchaser, under circumstances where the omission operates as a fraud; and although the title does not pass under these circumstances, a conveyance will be decreed by a court of equity. It would, therefore, seem too late to contend that the title to real estate can not be passed by matter in pais without disregarding the statute of frauds, and the only room for dispute is as to the forum in which relief must be sought.

The remedy in such cases lay originally in an application to chancery, and no redress could be had in a merely legal tribunal, except under rare and exceptionable circumstances. But the common law has been enlarged and enriched under the principles and maxims of equity, which are constantly applied at the present day in this country, and even in England, for the relief of grantees, the protection of mortgagors and the benefit of purchasers, by a wise adaptation of ancient forms to the more liberal spirit of modern times. The doctrine of equitable estoppel is, as its name indicates, chiefly, if not wholly, derived from courts of equity, and as these courts apply it to any species of property, there would seem no reason why its application should be restricted in courts of law.

Protection against fraud is equally necessary, whatever may be the nature of the interest at stake, and there is nothing in the nature of real estate to exclude those wise and salutary principles which are now adopted without scruple in both jurisdictions, in the case of personalty. And whatever may be the wisdom of the change through which the law has encroached on the jurisdiction of chancery, it has now gone too far to be confined within any limits short of the whole field of jurisprudence. This view is maintained by the main current of decisions." "

42. The General Rule. The authorities monious on the subject of estoppel in pais.

are quite harWhen a party,

1 Kirk v. Hamilton, 102 U. S. (12 Otto) 68 (1879); 2 Smith L. Cas. 781,

7th Am. Ed., Hare & Wallace' notes.

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