unfrequently characterized as odious, and not to be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood,-would be the denial of a previous affirmation, upon the faith of which persons had dealt and pledged their credit or expended their money. It is a doctrine therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when, in conscience and honesty, he should not be allowed to speak."

Sec. 312. Recitals in deeds-Covenant assuming payment of debt. One who bases his rights upon an estoppel by a recital in a deed must show that he acted upon the strength and faith of such recital to his detriment. Bisbee v. Carey, 17 Wash. 224 (49 Pac. Rep. 220). One who founds his right to land upon an instrument which admits title in a certain person and which does not purport to be executed by or on behalf of such person, is estopped to deny the title of a grantee of such person. Dederick v. Alexander, 58 Kan. 56 (48 Pac. Rep. 594). The mere fact that a grantor, in a conveyance of a family homestead, is described therein as a single person, will not estop the grantor from asserting the homestead character of the premises included in the conveyance, or the right of homestead therein, as against a grantee or mortgagee. France v. Bell, 52 Neb. 57 (71 N. W. Rep. 984). A grantee's covenant in a deed to assume and pay an existing lien, estops him from questioning its validity. Michigan Sav. & Loan Ass'n v. Attebery, 16 Tex. Civ. App. 222 (42 S. W. Rep. 569). Citing, 1 Beach, Mod. Eq. Jur., § 455; 1 Jones, Mortg., § 744; Dean v. Walker, 107 Ill. 540 (47 Am. Rep. 467); Foster v. Wightman, 123 Mass. 100; Freeman v. Auld, 44 N. Y. 52; Pidgeon v. 7rustees, 44 Ill. 501; Crawford v. Edwards, 33 Mich. 354; Parkinson v. Sherman, 74 N. Y. 86 (30 Am. Rep. 268); Shepherd v. May, 115 U. S. 505 (6 Sup. Ct. Rep. 119); Moore's Appeal, 88 Pa. St. 450 (32 Am. Rep. 469); Association v. Bostwick, 100 N. Y. 628; Chadwick v. Beach Co., 43 N. J. Eq. 616 (12 Atl. Rep. 380); Dean v. Walker, 107 Ill. 544; Miller v. Thompson, 34 Mich. 10; Manwaring v. Powell, 40 Mich. 374; Tanguay v.

Felthousen, 45 Wis. 30; Hancock v. Fleming, 103 Ind. 533 (3 N. E. Rep. 254).

Sec. 313. Estoppel in pais-General principles. One cannot estop himself to prove facts which show a contract to which he is not a party to be opposed to law or public pol-` icy. White v. Brown, Ind. Ter. (38 S. W. Rep. 335). In the absence of fraud there can be no estoppel as to matters contained in a public record equally open to both parties. Jameson v. Rixey, 94 Va. 342 (26 S. E. Rep. 861; 64 Am. St. Rep. 726). The grantee of one who is estopped to assert title in real estate, as against one who purchased in reliance upon his disclaimer of any interest therein, is bound by such estoppel. Stivers v. Gardner, 101 Ia. 85 (69 N. W. Rep. 1140). The rule that an estoppel must be pleaded, cannot be invoked for the first time on appeal by one who has acquiesced in the admission of evidence concerning the estoppel, without such special plea. Price v. Hallett, 138 Mo. 561 (38 S. W. Rep. 451). For a discussion of the principles of estoppel in pais, see Williamson v. Jones, 43 W. Va. 652 (27 S. E. Rep. 411; 64 Am. St. Rep. 891; 38 L. R. A. 694); Bristol-Goodson Elec. L. & P. Co. v. Bristol Gas E. L. & P. Co., 99 Tenn. 371 (42 S. W. Rep. 19).

There can be no estoppel unless the party relying on the estoppel has been injured on account of such reliance. Rancy v. Hines, 120 N. C. 376 (27 S. E. Rep. 92). To bind one by estoppel in pais from statement or conduct, he must have stated, or led another to believe in, something as a fact, and that other must be ignorant of the contrary, and must rely on it, and act to his injury differently from what he would have done but for such statement or conduct. Bettman v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566). An estoppel is worked, not because the loss to the party injured was a succeeding event to the act or omission of the party to be estopped, in dealing with the subject-matter of the transaction, but because the act or omission of the party to be estopped was the moving cause which led to the party injured to do the act resulting in the loss. There must have been a relation of cause and effect, by which the injury and consequent loss to the injured party were the result of previous

misconduct of the party to be estopped. The party setting up an estoppel must show that he relied on and was misled by the conduct imputed to the party to be estopped. Mott v. German Hospital, 55 N. J. Eq. 722 (37 Atl. Rep. 757).

Sec. 314. Estoppel in pais-Accepting benefits. Where pending the erection of improvements thereon, a landowner conveys land to his bookkeeper, who does not record her deed, but continues to superintend improvements without giving notice of her title, she is estopped to deny the right of the contractors to enforce mechanics' liens. Phillips v. Browne, 20 R. I. 79 (37 Atl. Rep. 490). A creditor who accepts payment of a mortgage from a subsequent grantee of premises, fraudulently conveyed by his grantor, is not estopped from attacking the conveyance as fraudulent.

Arnold v. Hoschildt, 69 Minn. 101 (71 N. W. Rep. 829).

Sec. 315. Estoppel in pais-Silence when one should speak. One's silence will not estop him merely because he had an opportunity to speak; he must be placed in a position where it is his duty to speak. Simpson v. Biffle, 63 Ark. 289 (38 S. W. Rep. 345). One cannot lose his title to real estate on account of silence or admissions occurring when he was ignorant of his rights. Collins v. Williams, 98 Tenn. 525 (41 S. W. Rep. 1056); Hayes v. Hayes, 179 Pa. St. 277 (36 Atl. Rep. 311). Nor can the right to redeem be lost by such silence. Wood v. Holland, 64 Ark. 104 (40 S. W. Rep. 704). Where one of several claimants of land acted as a conveyancer between two others and failed to assert at the time a different title to the land which they thought was being conveyed, he will be estopped to subsequently urge such title against them. Price v. Hallett, 138 Mo. 561 (38 S. W. Rep. 451). A grantee in a deed who fails to assail the validity of conditions in it, imposing obligations on him, for a considerable length of time after he has notice of them, will be estopped by his silence to question their validity. Sutter v. Rose, 169 Ill. 66 (48 N. E. Rep.411). If one knowingly, though 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 claim, he shall not afterwards be

permitted to exercise his legal right against such person. Hagan v. Ellis, 39 Fla. 463 (22 So. Rep. 727; 63 Am. St. Rep. 167). See opinion for application of this doctrine to particular state of facts. Where one holding title merely to protect his grantor's property from certain proceedings against him, acquiesces in his grantor's conveyance of the property to another he is estopped from questioning the latter's title. Hendricks v. Edmiston, 15 Wash. 687 (47 Pac. Rep. 29). Mere failure of an owner to assert his title for a long period of time, will not estop him from maintaining an action against one claiming under a void tax deed, whose posssession has never ripened into a title by prescription and is not protected by any statute of limitations. Marysville Inv. Co. v. Holle, 58 Kan. 773 (51 Pac. Rep. 281). One who, by duly recorded conveyance, clothes another with apparent absolute title to his land, is estopped to deny such title as against the grantee's creditors who have extended credit to him on the faith of his ownership. Greer v. Mitchell, 42 W. Va. 494 (26 S. E. Rep. 302). Where an officer conducting a sale of land, executed deeds to persons whom he believed to be the vendees of the purchaser, the purchaser acquiescing for several years in their holding title and conveying the lots is estopped to afterwards set up a claim of ownership of them. Williams v. Reynolds, Va. (27 S. E. Rep. 600).

Where the owner of property subject to assessment for public improvements stands by and makes no objection to such public improvements, which benefit his property, he may not deny the authority by which the improvements are made or defeat the assessment made against his property for the benefits derived; and this is true both where the proceedings for the improvement are attacked for irregularity and where their validity is denied, but color of law exists for the proceedings. Board Com'rs v. Plotner, 149 Ind. 116 (48 N. E. Rep. 635). An owner of property abutting on a street is not estopped from maintaining trespass against a city for the destruction of a wall thereon, on the ground that it was an obstruction to the street, because he made no objections to the proceedings establishing the street, had more than ten years previous. Keifer v. City of Bridgeport, 68 Conn. 401 (36 Atl. Rep. 801). A wife, who does not join her husband in a conveyance

of his land, is not estopped to assert after his death, her title to one-third of it, by the mere fact that she knew of the sale and that the purchaser was in possession of the land and made no objection thereto during coverture. Madson v. Madson, 69 Minn. 37 (71 N. W. Rep. 824). Where a widow has knowledge of her husband's previous recorded conveyance of land in which she did not join, and which falsely recited that he was unmarried, for thirteen years remained silent and asserted no title as against his innocent grantee who made improvements increasing the value of the land ten-fold, she was held estopped by her conduct from asserting any title to the premises. Holcomb v. Independent School Dist., 67 Minn. 321 (69 N. W. Rep. 1067).

Where

Sec. 316. Estoppel in pais-Particular cases. a purchaser's note given for the purchase price for an interest in mortgaged land has not been paid, he is estopped to claim the benefits of the covenant of warranty in his deed as relieving his property from the mortgage. Truss v. Miller, 116 Ala. 494 (22 So. Rep. 863). The holder of two recorded mortgages is not estopped from enforcing the second upon assignment of the first where there is no fraud or concealment. Hussey v. Hill, 120 N. C. 312 (26 S. E. Rep. 919; 58 Am. St. Rep. 789.) One who induces another to make a loan to, and take a mortgage from, a third party, on land, the description of which he furnishes, is estopped to claim a part of such land as his own and dispute the mortgage to that extent. East Greenwich Inst. for Sav. v. Kenyon, 20 R. I. 110 (37 Atl. Rep. 632). Where the real owners of property permit the title thereof to be taken in the name of another, they are estopped to deny a valid dedication of a part of it to public use made by him. Sweatman v. City of Deadwood, 9 S. Dak. 380 (69 N. W. Rep. 582). A plaintiff who causes, under an execution in his favor, a sale of property by an officer authorized to sell, is, as against a bona fide purchaser at such sale, except for the purpose of maintaining petition to set the sale aside, founded upon facts equitably entitling him to such relief, estopped to deny either the validity of the process, the regularity of its issue, or the lawfulness of the sale. Lynn v. New England Mortg. Sec. Co., 98 Ga.