Bloch v. Sammons

• Decision Date: 08 October 1900
• Parties: BLOCH v. SAMMONS et al.
• Court: Oregon Supreme Court

62 P. 290

37 Or. 600

BLOCH v. SAMMONS et al.

Supreme Court of Oregon

October 8, 1900

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Jacob Bloch against Sarah Sammons and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This action was commenced in a justice's court to recover possession of certain real property in the city of Portland. The complaint alleges that the plaintiff is the owner, and entitled to the possession, of the property in controversy and that defendant is in possession thereof, and unlawfully holds the same by force. The answer denies the allegations of the complaint, except defendant's possession, and for a further defense avers that he is the owner of an estate by curtesy in the premises described in the complaint, as the husband of Mary Hubbell, deceased, and that whatever estate if any, the plaintiff has therein is as remainder-man. The reply puts in issue the affirmative allegations of the answer, and, for a further and separate defense thereto alleges that the defendant was plaintiff's tenant, but having failed to pay rent, the plaintiff, more than 10 days previous to the commencement of the action, served upon him a written demand for possession of the premises; that plaintiff purchased the property in controversy at administratrix's sale made under an order of the county court of Multnomah county in the matter of the estate of Mary Hubbell, deceased; that, while the property was being offered for sale at public auction, the defendant willfully stood by and represented to the plaintiff that he could safely buy the property, and, to induce him to bid thereon, represented that he had no interest of any kind therein, and that whoever purchased it would get a title in fee thereto free from all incumbrances; that the plaintiff, believing such representations and relying thereon, was induced to, and did, purchase the property at such sale for the sum of $630. The trial of the cause in the justice's court resulted in a judgment in favor of the plaintiff, from which defendant appealed to the circuit court, where a jury trial was had, without objection, and a verdict returned in favor of the plaintiff. The defendant thereupon moved for judgment notwithstanding the verdict, upon the ground, among others, that the plea of estoppel set up in the plaintiff's reply is insufficient, in that it does not allege fraud on the part of defendant Hubbell, or facts from which fraud could be inferred, nor does it allege that he had knowledge of his title at the time he made the declaration in reference thereto. This motion was allowed, and a judgment entered in favor of the defendant, adjudging that he is the owner of a life estate in the premises described in the complaint, and plaintiff appeals to this court.

E. Mendenhall, for appellant.

L.A. McNary, for respondent Joseph Hubbell.

BEAN, C.J. (after stating the facts).

The only question discussed in defendant's brief, or to which we shall allude, relates to the sufficiency of the plea of estoppel set up in the reply. The point of the objection is that it is not alleged that the representations of the defendant were made with a fraudulent intent, or that he was apprised of the true state of his own title at the time he made them.

It is difficult to ascertain from the adjudged cases how far positive fraud must enter into the acts or declarations of the party sought to be estopped from asserting title to real estate. The authorities are practically agreed that fraud is an essential ingredient of such an estoppel, but disagree as to whether it must be in the positive intent of the party sought to be estopped, or may be inferred from the effect of the evidence he is attempting to set up. The cases upon the subject are numerous, and not easily reconciled. They will be found referred to and commented upon in 3 Washb. Real Prop. (5th Ed.) 87; 2 Pom.Eq.Jur. (2d Ed.) §§ 807, 808. There seems, also, to be a distinction in this regard between estoppels implied from mere silence and from positive acts. In an early case (1830), Mr. Chief Justice Gibson stated the rule to be that silence will postpone only where it was a fraud, and hence the fraudulent concealment of title would not be imputed to one who was ignorant that he had any title to conceal. But positive acts, for the consequences of which the doer is civilly liable without regard to the question of ignorance or knowledge, stand on a different ground. For these his title may be postponed, even without actual fraud, in accordance with an equitable principle of universal application that, where a loss must necessarily fall on one of two innocent persons, it shall be borne by him whose acts occasioned it. Robinson v. Justice, 2 Pen. &amp W. 19. This rule seems to have been followed in many instances (11 Am. & Eng.Enc.Law [2d Ed.] 434; 2 Washb. Real Prop. [ 5th Ed.] 89; 2 Dembitz, Land Tit. § 138; Chapman v. Chapman, 59 Pa.St. 214; Martin v. Railroad Co., 83 Me. 100, 21 A. 740; Banking Co. v. Duncan, 86 N.Y. 221; Trustees v. Smith, 118 N.Y. 634, 23 N.E. 1002, 7 L.R.A. 755; Beardsley v. Foot, 14 Ohio St. 414; Cady v. Owen, 34 Vt. 598; Moore v. Brownfield, 10 Wash. 439, 39 P. 113; Rice v. Bunce, 49 Mo. 231), although there are well-considered cases holding the contrary doctrine (2 Pom.Eq.Jur. [ 2d Ed.] § 821; Boggs v. Mining Co., 14 Cal. 279, 367; Davis v. Davis, 26 Cal. 23, 38; Brant v. Iron Co., 93 U.S. 326, 23 L.Ed. 927).

It is not necessary at this time, however, to examine the decisions upon the subject in detail, or to indicate a preference for one view or the other. Whatever the rule may be, the doctrine seems well supported that if a party, with full knowledge of all the facts, voluntarily represents to another, who is about to purchase real estate, that he has no interest therein, intending such representation to be, and it is acted upon, he cannot afterwards assert title in himself as against the purchaser, although he may have been ignorant, as a matter of law, of his legal rights when he made the representation, and may have intended no positive fraud. In such case, fraud will be inferred. Knowledge of the true state of the title is necessarily imputed from knowledge of the facts, and, whether intended or not, the subsequent assertion of title would operate as a fraud upon the purchaser in the same manner as if the representation had been made with fraudulent purpose in the first instance. As a general rule, relief is never granted upon the ground of a...