Hayes v. Livingston

• Decision Date: 04 October 1876
• Court: Michigan Supreme Court
• Parties: Martin Hayes v. Stillman Livingston. [*]

34 Mich. 384

Martin Hayes v. Stillman Livingston. ^[*]

Supreme Court of Michigan

October 4, 1876

Heard June 15, 1876

Error to Montcalm Circuit.

Judgment reversed, with costs, and a new trial ordered.

William O. Webster, for plaintiff in error, argued that the legal title to land cannot pass by parol under the provisions of our statute: Comp. L. 1871, § 4692; that in ejectment the legal title only, and the right of possession under it is involved, and an equitable title, however clear and indisputable, will not support the action: Tyler on Ejectment, 75; Adams on Ejectment, 32; 2 Greenl. on Ev § 331; McPherson v. Walters 16 Ala. 714; Hamlin v. Hamlin, 19 Me. 141; Delaplaine v. Hitch. cock, 6 Hill 14; Whitney v. Holmes, 15 Mass. 152; Ryder v. Flanders, 30 Mich 336; that the legal title cannot be parted with by mere waiver, or transferred by an estoppel resting in parol: Gugins v. VanGorder, 10 Mich 523; Whiting v. Butler, 29 Mich. 122; Smith v. Mundy, 18 Ala. 182; Gimon v. Davis, 36 Ala. 589; Jackson v. Demont, 9 Johns. 60; Swick v. Sears, 1 Hill 18; Mills v. Graves 38 Ill. 455; Wales v. Boyne, 31 Ill. 464; Blake v. Fash, 44 Ill. 302; Hurd v. Cushing, 7 Pick. 176; Heard v. Hall, 16 Pick. 457; Hale v. Skinner, 117 Mass.

Mitchell & Pratt, for defendant in error, conceding that where, as in this state, the distinction between legal and equitable jurisdiction is kept up, the legal title so far as relates to the right of possession, must prevail, argued that a plaintiff in ejectment makes out a case when he shows title or right of possession, or any state of facts which estop the defendant from denying his title or right of possession; Gugins v. Van Gorder, 10 Mich. 523; Clee v. Seaman, 21 Mich. 287; that equity will not permit the statute of frauds to be used as a means of promoting the fraud it was designed to prevent, and that the doctrine of equitable estoppel should be adopted in legal tribunals and applied as broadly as in courts of equity: 2 Smith, L. C., 651; Rangeley v. Spring, 21 Me. 137; that an award upon a parol submission to arbitration of disputed titles, has been held to operate by way of estoppel to preclude either party from asserting title in opposition to the award: Robertson v. McNeil 12 Wend. 378; Clark v. Whithers, 19 Wend. 320; Carey v. Wilcocks, 6 N. H, 177; Doe dem, v. Rasser, 3 East, 15; Bigelow on Est., 607; that examples are abundant where in cases of dedications the owner has been held estopped by acts in pais from asserting his title to land; and see Cleland v. Taylor, 3 Mich. 201; and upon the main proposition, the following authorities are cited: Bigelow on Est., 606-7; Hatch v. Kimball, 16 Me. 146; Moose v. Child, 6 N. H., 521; Thomson v. Sanborn, 11 N. H., 201; Shaw v. Beebe, 35 Vt. 203; Halloran v. Whitcomb, 43 Vt. 306; Brown v. Wheeler, 17 Conn. 345; Johnson v. Conn. Bk., 21 Conn. 21; Sayles v. Smith, 12 Wend. 57; Presbyterian, etc., v. Williams, 9 Wend. 147; Cockerill v. Landers, 44 Barb. 218; Medley v. Williams, 7 Gill & J., 61; 6 Harris 343; Clark v. Driggs, 6 Ired. 159; Duncan v. Duncan, 3 Ired. 317; Pool v. Lewis, 21 Ga. 162; Burkhalter v. Edwards, 16 Ga. 593; Thompson v. Wheatly, 8 S. & M. 499; Winnie v. Cole, 1 Miss. 119; Doe v. Pritchard 11 S. & M. 327; Leland v. Wilson, 34 Tex. 39; Cornelius v. Burford, 28 Id. 202; Morrison v. Keeler, 13 L. A., 543; Davison v. Sillman, 24 L. A., 225; Spear v. Walker, 1 Head 166; Merriweather v. Larmor, 3 Sneed 447; McAfferty v. Conover, 7 Ohio St., 99; Shaw v. Potter, 50 Mo. 278; Fair v. Howard, 6 Nev. 304; Davis v. Davis, 26 Cal. 23.

OPINION

Cooley, Ch. J.

In the court below Livingston recovered a judgment in ejectment on the strength of an estoppel in pais. His case was, that Hayes, whose title to the land at a former time was conceded, had given two mortgages upon it, one of which had been foreclosed under the power of sale, and the land sold to a third party; that the other being held by one Corey, an arrangement was made between him and Hayes, under which Corey was to buy up the title under the foreclosure, and then when he should be able to find a purchaser, sell the land and from the proceeds take out the amount of his mortgage and the amount he should have paid for the foreclosure title, and pay over the remainder to Hayes; that this arrangement was carried out so far as concerned the purchase of the foreclosure title, and that subsequently Corey sold to Livingston, being first told to do so by Hayes, and Livingston not making the purchase until assured by Hayes that the land was Corey's, though the latter was to pay over to Hayes a surplus from the purchase price when the sale was made. This case was disputed by Hayes, who claimed that whatever was paid by Corey in acquiring the foreclosure title was only a loan to be repaid with interest. The dispute as to these facts would not have been important in the ejectment suit had the foreclosure title proved to be valid, but it was claimed on one side, and conceded on the other, that it was defective, and left the legal title in Hayes. But Livingston insisted that Hayes, by his arrangement with Corey, and by telling Livingston, after Corey bought, that the latter was owner, had estopped himself from setting up any title in opposition to that which Livingston had acquired in reliance upon his own statement; and the circuit judge so instructed the jury. The jury having found the facts to be as claimed by Livingston, a verdict and judgment in his favor followed as of course.

If the rule of estoppel in pais is the same when the right to real property is involved as it is when only personalty is in question, the circuit judge was undoubtedly right in his instructions. The principle is so old that it has ceased to be brought into controversy, that when one has knowledge that his own chattels are being sold as the property of another, and encourages the sale without asserting his right, or even by his silence allows a purchase to be made in ignorance of his title, he shall not thereafter be permitted to assert such title to the prejudice of the purchaser. The rule is as sound in morals as it is indisputable in point of law; and has often been recognized in this court.-- Dann v. Cudney, 13 Mich. 239; Truesdail v. Ward, 24 Mich. 117; Meister v. Birney, 24 Mich. 435.

But a difficulty arises when it is proposed to apply the same principle to real estate. The statute of frauds is express that no interests in lands, with certain exceptions which are unimportant here, shall be created or transferred otherwise than by deed; and although it is perfectly true, as is shown by Mr Bigelow in his treatise on the law of estoppel (p. 606), that where one by his conduct is precluded in law from asserting his title in property, there is strictly no transmission of title, yet this is a mere technicality; the legal consequences are precisely the same, and for all practical purposes the estoppel works a conveyance. It would hardly be creditable to the administration of the law if the application of a statute so important as the statute of frauds should be turned away and defeated by a technicality so shadowy and unsubstantial.

It is not to be denied, however, that there are several cases which apply the doctrine of estoppel indiscriminately to both real and personal estate. The cases in Me. are very decided.-- Hatch v. Kimball, 16 Me. 146; Durham v Alden, 20 Me. 228; Rangeley v. Spring, 21 Me. 130; Copeland v. Copeland, 28 Me. 525; Stevens v. McNamara, 36 Me. 176; Bigelow v. Foss, 59 Me. 162. These cases appear to have overruled Hamlin v. Hamlin, 19 Me. 141. The following are usually referred to as supporting the Me. cases: Mcchine v. McMichael, 29 Geo. 312; Beaupland v. McKeen, 28 Pa. 124; Shaw v. Beebe, 35 Vt. 205; Brown v. Wheeler, 17 Conn. 345; Brown v. Bowen, 30 N.Y. 519; Barham v. Turbeville, 1 Swan 437. Of these the Georgia case related to a parol partition of slaves acquiesced in until after the death of one of the parties, and was decided without any discussion of or reference to the distinctions between real and personal estate. The case in Pennsylvania was a suit on a promissory note given on a purchase of lands, the payment of which was resisted on the ground of failure of title. The persons in whom the title was alleged to be had been the plaintiff's agents in the sale, and had been paid a commission for making it; and they were held to be estopped from denying the plaintiff's right. It is to be observed of this case that the title was only incidentally in question, and also that in Pennsylvania the distinction between legal and equitable remedies is not kept up. In the Vermont case the court is contented to dispose of the question very briefly by saying that the rule of estoppel which is applied to personal property "upon reason and principle, to prevent fraud and promote justice, should be extended to real property." It would have been more satisfactory if the court had pointed out on what grounds, when the legislature, "to prevent frauds and promote justice," had applied wholly different rules to the transfer of personal property and of real property, the courts could justify their action in venturing to abolish the distinction. The Connecticut case was one in which the question of estoppel related to a distribution of property which, though not in pursuance of the statute, had been sanctioned by a written agreement of the parties. In the New York case the complaint was of the flooding of the plaintiff's mill by a dam which set the water back upon it; and the question was, whether the defendants were estopped from asserting title to the land on which the mill stood, by the fact that their ancestor through whom they claimed had asserted no right at the time the plaintiffs bought the land...