Blodgett v. Perry

Decision Date04 March 1889
PartiesBLODGETT v. PERRY.
CourtMissouri Supreme Court

Appeal from circuit court, Johnson county; NOAH M. GIVAN, Judge.

Ejectment by Wells H. Blodgett against Nathan W. Perry. Judgment for defendant, and plaintiff appeals.

S. P. Sparks and H. S. Priest, for appellant. Cockrell & Suddath, for respondent.

SHERWOOD, J.

Ejectment for certain land in Johnson county. Both parties claim title under Amos M. Perry, the former owner. Action brought January 22, 1885.

1. The agreed statement of facts shows that the Union Bank of Missouri was the creditor of Amos M. Perry, and the purchaser of his interest at execution sale; that the Union National Bank of St. Louis is the successor of the former bank as to all rights, interest, etc. The plaintiff claims under a quitclaim deed made by the latter bank to him, October 22, 1884, and filed for record November 1st next thereafter. The sheriff's deed to the Union Bank is dated October 20, 1866, and filed for record October 22, 1870. To this deed objection is made that it shows that the special execution therein mentioned was issued September 5, 1865, delivered to the sheriff on the 15th of that month; but that no sale thereunder occurred till April 17, 1866, long after the return-day of the writ, and that, therefore, the sale was void. To this objection it may be replied that, under the law as it then stood and now is, executions might have issued, and may issue, returnable, at the option of the plaintiff, either to the first or the second term after such issuance, (Rev. St. 1879, § 2338;) and, in the absence of aught to the contrary, it will be presumed that the clerk who issued, and the sheriff who sold under the execution, obeyed the dictates of duty, and complied with the law. The indulgence of such presumptions is of common occurrence, and of daily recognition in the courts. Long v. Joplin, 68 Mo. 422, and cases cited; Addis v. Graham, 88 Mo. 197; Hammond v. Gordon, 93 Mo. 223, 6 S. W. Rep. 93.

2. Now, as to the plea of estoppel in pais, or equitable estoppel, as set forth in the answer. The gist of the plea is that plaintiff was the attorney for the Union Bank in the attachment suit instituted by the bank against Amos M. Perry, in 1870; that defendant claims under one Shumate, and has acquired all of Shumate's rights in the premises by proper conveyances; that Shumate, under the sale made by virtue of the attachment proceedings aforesaid, bought the premises in controversy, relying upon the acts of the bank in attaching and selling under execution said property as that of Amos M. Perry, as a declaration and admission of the bank that it was not, and Amos M. Perry was, the owner of said real estate, purchased the same, and paid therefor, and this defendant, as his assignee, has received a deed from the sheriff for said land; and that plaintiff had acquired his deed with notice, etc. This plea is plainly bad on its face. It does not contain within its allegations a single element of estoppel. It is not alleged that Shumate was misled by any act of the Union Bank, or of plaintiff, or that he was in ignorance of the true state of the title, or that the former deed to the Union Bank was not put on record, or that the act of the Union Bank induced Shumate to buy the land, which otherwise he would not have bought.

An eminent text writer, treating of the subject of equitable estoppels, says: "The cases, when carefully analyzed, show that all of the following elements must actually or presumably be present in order to an estoppel by conduct: (1) There must have been a false representation or a concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to whom it was made must have been ignorant...

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  • Quirk v. Bedal
    • United States
    • United States State Supreme Court of Idaho
    • May 29, 1926
    ...... be plain, not doubtful or matters of mere inference or. opinion. ( Fredenburg v. Lyon Lake M. E. Church, 37. Mich. 476; Blodgett v. Perry, 97 Mo. 263, 10 Am. St. 307, 10 S.W. 891; Brown v. Bledsoe, 1 Idaho 746;. Breshears v. Callender, 23 Idaho 366, 131 P. 15;. Nelson ......
  • Roth et al. v. Hoffman et al., 23274.
    • United States
    • Court of Appeal of Missouri (US)
    • January 4, 1938
    ...have been made with the intention that the other party should act upon it. The other party must have been induced to act upon it. [Blodgett v. Perry, 97 Mo. 263, l.c. 272, 273, 274, 10 S.W. 891; Bigelow on Est. (3 Ed.), Nor will mere silence or some act done, where the means of knowledge ar......
  • Richards v. Earls, 35820.
    • United States
    • United States State Supreme Court of Missouri
    • November 3, 1939
    ......[Blodgett v. Perry, 97 Mo. 263, 10 S.W. 891; 892; Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 518, 75 S.W. 445; Waugh v. Williams, 342 Mo. 903, 119 ......
  • Woodside v.
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    • United States State Supreme Court of Missouri
    • May 23, 1927
    ...been made knowingly by the one to be estopped and believed and acted upon by the one claiming the estoppel. Blodgett v. Perry, 97 Mo. loc. cit. 272 [10 S. W. 891, 10 Am. St. Rep. 307]; Scrutchfield v. Sauter, 119 Mo. loc. cit. 623 III. It is clear to us that respondent acquired no paper tit......
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