Hart v. Giles

• Decision Date: 31 October 1877
• Parties: HART, Plaintiff in Error v. GILES.
• Court: Missouri Supreme Court

67 Mo. 175

HART, Plaintiff in Error

v.GILES.

Supreme Court of Missouri.

October Term, 1877.

Error to Marion Circuit Court.--HON. JOHN W. HENRY, Judge.

Lipscomb & Anderson and Jos. L. Hart for plaintiff in error.

James Carr and R. P. Giles for defendant in error, on the subject of estoppel generally, cited 1 Greenlf. Ev. (12th Ed.) § 207, p. 236; Campbell v. Johnson, 44 Mo. 247; Chouteau v. Goddin, 39 Mo. 229; Taylor v. Zepp, 14 Mo. 482; Newman v. Hook, 37 Mo. 207; Broom's Leg. Max. (6th Am. Ed.) pp. 222, 288; 1 Story's Eq. (7th Ed.) §§ 384, 385, p. 372; Rice v. Bunce, 49 Mo. 231; Jones v. Powell, 6 John. Ch. 194; Landrum v. The Union Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516; Skinner v. Stouse, 4 Mo. 93; Lindell v. McLaughlin, 30 Mo. 28; Welland Canal Co. v. Hathaway, 8 Wend. 480; Willing v. Brown, 7 S. & R. 467; Livingston v. Byrne, 11 Johns. 555; Huntsucker v. Clark, 12 Mo. 333; Rutherford v. Tracy, 48 Mo. 325; Lackland v. Stevenson, 54 Mo. 108; Moreman v. Talbot, 55 Mo. 392.

2. A doweress may be estopped from claiming dower if, by her words or conduct, she induces a purchaser to take the estate under a belief that she waives her dower. Sweany v. Mallory, 62 Mo. 485; 2 Scribner on Dower, 251, 257; Dougrey v. Topping, 4 Paige 94; Smiley v. Wright, 2 Hammond (Ohio) 506; Gatling v. Rodman, 6 Ind. 289; Stoney v. Bank of Charleston, 1 Rich. Eq. (S. C.) 275; Ellis v. Diddy, 1 Carter (Ind.) 561; Wood v. Seely, 32 N. Y. 105; Lawrence v. Brown, 1 Selden (5 N. Y.) 394; Deshler v. Beerry, 4 Dall. (Pa.) 300.

3. A person may be estopped, although ignorant of his rights. Simple silence is equally effectual with words or conduct, where one is acquainted with his rights. Hermann on Estoppel, Sec. 416, p. 417; Sec. 417, p. 418; Storrs v. Barker, 6 Johns. Ch. 166; Lyon v. Richmond, 2 Johns. Ch. 51; Shotwell v. Murray, 1 Johns. Ch. 512; Tilton v. Nelson, 27 Barb. 595, and cases supra.

NORTON, J.

This suit was brought in the Marion county circuit court, in July, 1868, for an admeasurement of dower in lot 4, in block 37, in the city of Palmyra. Plaintiff avers in her petition that she is the widow of Morgan Hart, who, in his lifetime, bought lots 4, 5 and 6 in block 37 in said city, from Reed & Perrin, the owners, on credit, and gave his five several notes for $500 each for the purchase money, the vendors executing to him a bond for conveyance of the title on payment of the purchase money; that under his purchase he went into possession and afterwards paid three of said notes, and died in possession of the lots. The answer admits the contract of purchase, the payment of $1,500 of the purchase money, which was $2,500, and that Hart died in possession. It avers that Hart's personal estate being insufficient to pay his debts, his administrator, under the statute, procured an order of the county court for the sale of the lot in question, and under said order sold the same on the 1st day of January, 1855, at public sale, to one Richard C. Martin; that plaintiff was present at said sale and authorized the auctioneer to proclaim to the bidders that she did not claim any dower in the property, that she would not claim any dower, and that it was clear of dower; that plaintiff was present and heard such proclamation, and remained silent; that Martin, the purchaser, heard said proclamation and bought the lot at the price of $1,830, which was its full value, and that he would not have paid that price if said statement had not been made by the auctioneer; that plaintiff delivered possession of the lot to Martin immediately after the sale; knew that it was bought by him on the faith of the representations that plaintiff would claim no dower; that plaintiff has ever since lived in the neighborhood of the lot, and did not, from that time to the commencement of the suit, assert any claim to dower, although valuable improvements were made thereon; that Martin afterwards, in 1856, sold his interest in the property to one Williams, who paid off Hart's two notes to Reed & Perrin, and received from them a conveyance to said lot; that Williams was present at the administrator's sale and heard the statements made by the auctioneer; that he afterwards, in 1865, sold and conveyed the lot to defendant, Giles, who had no notice of any claim of dower on the part of plaintiff. The replication of plaintiff denies the matter set up in the answer by way of estoppel, and avers that the statements made by the auctioneer were made on his own responsibility, and on the idea that she had no dower, because her husband had not paid all the purchase money. The issues presented by the pleadings having been submitted to a jury and being found for defendant, the court rendered judgment accordingly, and plaintiff brings the cause here by writ of error. The evidence offered on the trial clearly establishes that the administrator of Hart, under an order of the county court for the sale of his real estate, to pay debts, offered the lot for sale in the forenoon of the 1st day of January, 1855, and that it was not then sold because no person bid; that it was again offered for sale in the afternoon of the same day, and that previous to any bidding, a proclamation was made by one Hatcher, the son-in-law of plaintiff, and the auctioneer who cried the sale, that Mrs. Hart did not, nor would not claim dower therein, and that the property was clear of dower; that this proclamation was made in the hearing of the bidders, and also of the plaintiff, who was across the street, a distance of 80 feet from the place where the property was being cried off, and that she made no objection; that Martin, who purchased the lot in controversy, heard what was said by the auctioneer, and bid on the strength of it, the full value of the property, and would not have bid otherwise; that plaintiff surrendered the possession soon after the sale and had lived ever since in the immediate vicinity, without asserting any claim to dower, till thirteen years afterwards, when this suit was brought. It is, however, insisted by counsel that the evidence does not show...