Duckwall v. Kisner

• Decision Date: 12 December 1893
• Docket Number: 16,315
• Parties: Duckwall et al. v. Kisner et al
• Court: Indiana Supreme Court

35 N.E. 697

136 Ind. 99

Duckwall et al. v. Kisner et al

No. 16,315

Supreme Court of Indiana

December 12, 1893

From the Miami Circuit Court.

The judgment is affirmed.

L Walker, W. B. McClintic and J. Mitchell, for appellants.

G. W Stults, C. W. Watkins, L. P. Milligan, O. W. Whitelock and S E. Cook, for appellees.

OPINION

Hackney, J.

The appellee, Kisner, sued to foreclose two mortgages executed by the appellants to secure notes executed by John Duckwall. The co-appellees of Kisner were made defendants to answer as to their interests.

The second answer of Lydia Duckwall was that she became the owner, by descent, of an interest in a body of land of which the tract mortgaged was a part; that she and the other tenants in common of said body of land, a brother and two sisters, made partition deeds; that the deed to that interest which should have been conveyed to her was made to and in the name of her husband, the said John Duckwall, without consideration and without her knowledge or consent, thereby placing the legal title to the undivided three-fourths of her said interest in her husband and leaving her the owner, by virtue of the descent aforesaid, of an undivided one-fourth of said interest; that said deed was so executed on the 1st day of July, 1851, and the title so conveyed remained in her husband without any knowledge on her part, until after the present suit was instituted.

It is also alleged that the debt, to secure which the mortgages in suit were executed, was for money borrowed for the exclusive use and benefit of her husband, no part of the same having been received by her. The theory of this answer was that she should maintain an ownership, adverse to the mortgages, by reason of the trust relation arising from the conveyance to her husband of the undivided three-fourths of the land mortgaged, and to the undivided one-fourth by descent from her father.

The only pleading, the sufficiency of which is in question, is the second paragraph of the reply of Kisner to this answer. It alleges that John Duckwall held possession of the lands from 1851 until the execution of said mortgages under a deed of record therefor and by the legal title thereto; that when said mortgages were executed the said Lydia was present and joined her husband in the execution thereof, then well knowing that the title to the lands mortgaged was in the name of her husband, and then knowing that Kisner was relying upon the ownership of her husband, and was parting with his money upon that reliance; that in her presence and with her knowledge said money was paid to John Duckwall without objection by her and upon her failure to give Kisner any notice or information that she held or claimed any interest in said lands, and that Kisner then had no knowledge of any claim of ownership by said Lydia in said lands.

The theory of this reply was that Lydia was estopped to deny the ownership of her husband as against Kisner. While its sufficiency as such is attacked, no authority has been cited lending support to the contention.

There is no doubt, upon principle and the decisions of this court, that a married woman may be estopped by acts in pais in cases involving her equitable title to real estate. Catherwood v. Watson, 65 Ind. 576; Gifford v. Bennett, 75 Ind. 528; Anderson v. Hubble, 93 Ind. 570; Kelley v. Fisk, 110 Ind. 552, 11 N.E. 453; Michener v. Bengel, 135 Ind. 188, 34 N.E. 664; Minnich v. Shaffer, 135 Ind. 634, 34 N.E. 987.

The rule applied in the cases cited is but the general rule that one may not stand by and permit another to invest on the strength of an adverse claim of title or may not permit another to remain clothed with the indicia of ownership by which third persons are misled in their investments. Though such conduct is not in itself fraudulent, the law holds it a fraud, after such conduct, to deny the results which have flown from such conduct. Hirsch v. Norton, Admr., 115 Ind. 341, 17 N.E. 612; Wisehart v. Hedrick, 118 Ind. 341, 21 N.E. 30; Maxon v. Lane, 124 Ind. 592, 24 N.E. 683, and the numerous cases cited in each.

The principle underlying the rule is that where one of two, even innocent persons, must suffer by the act of a third, he must suffer whose conduct has made it possible to do the act.

The reply states facts which, under the authorities cited and upon the principles stated, create an estoppel against the appellant Lydia Duckwall.

It is further insisted that the reply purports to meet the entire answer, while it covers but three-fourths of the land included in the mortgage and sought to be excused by the answer. This contention proceeds upon an erroneous construction of the pleading. The reply clearly pleads legal title to all of the land in John Duckwall, and...