Demars v. Hickey

• Decision Date: 17 April 1905
• Citation: 80 P. 521,13 Wyo. 371
• Parties: DEMARS v. HICKEY
• Court: Wyoming Supreme Court

80 P. 521

13 Wyo. 371

DEMARS v. HICKEY

Supreme Court of Wyoming

April 17, 1905

13 Wyo. 371 at 386.

Original Opinion of April 17, 1905, Reported at: 13 Wyo. 371.

Motion for rehearing denied.

Hamm &amp Arnold, for defendant in error.

(On rehearing.) It is respectfully submitted that the testimony in the case is sufficient to show an estoppel by the acts of plaintiff in error. He did not simply stand silent in the presence of another exercising dominion or control of the property, but he executed an instrument which was in the hands of the trial court authorizing the attorney in fact and the administrator to do what they pleased with the homestead. That is the effect of his own testimony and is the highest form of proof, being against his interest. Having so acted he cannot now repudiate. (11 Ency. Law (2d Ed.), 434; Storrs v. Barker, 6 Johns. Ch., 166; Maple v Kusart, 53 Pa. St. 348; Cox v. Roger, 77 id 160; Zollmore v. Moore, 21 Gratt, 313.) The plaintiff cannot now deny that the title to the property enured to the benefit of the one to whom it came under his power of attorney. A deed or instrument of like solemnity carries whatever interest the grantee may have acquired in the subject matter, as well as what he may have at the time of its execution. (11 Ency. Law (2d Ed.), 411; Favill v. Roberts, 50 N.Y. 222.) When one contracts with another for the conveyance of any interest in real estate, he is held bound to the exercise of his obligation, whatever may be the form of the contract or conveyance or other instrument. The title which he may thereafter acquire, even though he had none at the time of the contract, enures to his grantee. (Ryan v. U.S. 136 U.S. 68; Van Rensselear v. Kearney, 11 How., 297; Bush v. Person, 18 How., 82; Smith v. Williams, 44 Mich. 240; Case v. Green, 53 id., 615; Reynolds v. Cook, 83 Va. 817.)

POTTER, CHIEF JUSTICE. BEARD, J., and VAN ORSDEL, J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER CHIEF JUSTICE.

The defendant in error has filed a petition for rehearing, again insisting that the execution of the power of attorney referred to in the evidence and considered in the previous opinion, should be held to estop the plaintiff in error from claiming title to or right of possession of the premises in controversy. For the reasons stated in our former opinion, we are clearly satisfied that the point is not well taken. If the facts when fully brought out are sufficient to constitute an estoppel, a new trial will afford an opportunity to establish it. It is sufficient to say that enough was not brought out upon the former trial to authorize this court to hold that the plaintiff in error is estopped, in view of the fact that the limited evidence as to the power of attorney was neither considered by the court nor submitted to the jury upon the theory of estoppel, but was evidently regarded as showing a consent to the sale of property supposed to belong to the estate of the...