Hicks v. Combs

• Decision Date: 01 November 1949
• Citation: 311 Ky. 149
• Parties: Hicks et al. v. Combs et al.
• Court: United States State Supreme Court — District of Kentucky

311 Ky. 149

Hicks et al. v. Combs et al.

Court of Appeals of Kentucky.

June 3, 1949.

Rehearing denied November 1, 1949.

Suit by Cullen Combs and others against Riley Hicks and another to quiet title to realty, wherein defendants counterclaimed and asserted their title.

Plaintiffs recovered judgment in the Circuit Court, Knott County, Edward P. Hill, J., and defendants appealed.

The Court of Appeals, Stanley, C., reversed the judgment, holding that plaintiffs purchasing from grantors under whom defendants claimed when title to realty was being vigorously disputed were estopped to question defendants' title.

1. Estoppel. — The doctrine of "equitable estoppel" is applied to transactions in which it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.

2. Estoppel. — A party may be estopped to insist on a claim or take a position which is inconsistent with an admission or denial of a fact which he has previously made or with a course of conduct in reliance upon which the other party changes his position to his detriment.

3. Estoppel. — Where one accepts and retains benefits of a transaction or of an instrument which he was not required to take, an estoppel operates to prevent him from questioning the validity of the transaction or basis of it.

4. Estoppel. — Generally, one who takes a mortgage with knowledge that it embraces land which he claims to own, thereby admits the title of the mortgagor and is estopped from contesting the mortgagor's title.

5. Mortgages. — If purchaser of mortgaged realty takes an assignment of the lien and of the debt secured, the debt is extinguished.

6. Estoppel. — One is estopped to question his grantor's title, since he may not impugn the title under which he holds.

7. Estoppel. — One is estopped to question the title of another whose mortgage he seeks to enforce, since a mortgage is in a sense a grant.

8. Estoppel. — Where plaintiffs, at time when a vigorous dispute was being waged with defendants as to title to realty which was part of tract covered by deed to defendants, purchased from grantors, under whom defendants claimed, the purchase-money note payment of which defendants had assumed, plaintiffs thereby assumed position of grantors under whom defendants claimed, and were estopped to question defendants' title to realty in action to quiet title.

9. Principal and Agent. — The rule of estoppel to assert an interest in realty covers the principal of an agent when the agent acts within the scope of his agency, or where principal has encouraged, instigated, or participated in transaction of agent.

10. Estoppel. — Where father executed a general power of attorney empowering son to do anything that father might do with respect to father's interest in realty, and thereafter the son acted in dual capacity for himself and his father with respect to third person's claim of title to the realty so as to be estopped to deny third person's claim of title, the father was estopped also to deny third person's claim of title in action to quiet title.

Napier & Napier, C.W. Napier and C.W. Napier, Jr. for appellants.

Clark Pratt for appellees.

Before Edward P. Hill, Judge.

STANLEY, COMMISSIONER.

Reversing.

This suit was evolved into one by Cullen Combs, Kelly Combs and Clara Combs against Riley Hicks and Luna Hicks to quiet title to an unidentified portion of a tract of land, described generally. The defendants counterclaimed and asserted their title. Judgment went for the plaintiffs and the defendants appeal.

The bitter controversy is over title to what is variously stated to be two to eight acres of land on Montgomery Creek in Knott County. It seems to be regarded as part of the curtilage of Riley and Luna Hicks, and it lies equally as close to the residence of Cullen and Clara Combs. Questions of overlap, of location of division lines, of priority of record title, and of adverse possession have been fought out. There are complications of champerty and after-acquired titles and hopeless contradictions in the evidence. We do not find it necessary to determine these controversies for we conclude that the plaintiffs so acquiesced in the defendants' claim of title as to be estopped to deny it.

The defendants and their predecessors in title have maintained that the parcel in controversy is included in their tract of 82.75 acres. Robert Terrell bought the tract from H.H. Smith and B.F. Combs in September, 1941, for $500, the minerals and timber being excluded. He gave them a note for $300 secured by a vendor's lien. In Terrell's deed of this land to Riley and Luna Hicks, of date January 26, 1942, they assumed the payment of the lien note on which there was a principal balance of $250. Smith testified that Cullen Combs had come to him and claimed a conflict in title and that he had the older deed, as he called it, executed by Grant Combs. They examined the record together in the clerk's office and he, Smith, had shown him that the Hickses had the older record title. "A few days or a few weeks" after that Cullen Combs again came to him and wanted to buy the purchase money note above referred to which had been assumed by the Hickses. He paid the amount due, $262.50, and had the note assigned or transferred to his wife, Clara Combs. This was on January 30, 1943. At that time plaintiffs' land was claimed to be owned by Kelly Combs and Cullen Combs jointly. Cullen Combs later conveyed his interest to his wife, Clara Combs. Before this, the defendants testified that Cullen Combs had tried to buy the parcel from them, but Cullen denies doing so.

Clara Combs filed a suit against Riley and Luna Hicks on the note which had been assigned to her and sought to foreclose the vendor's lien. Hicks obtained the money on a mortgage from a third person and paid off the obligation before judgment. Six months after this transaction the present suit was filed to quiet title and enjoin trespass.

The doctrine of equitable estoppel is applied to transactions in which it would be unconscionable to permit a person to maintain a position which is inconsistent with one in which he has acquiesced. Simpson v. Yocum, 172 Ky. 449, 189 S.W. 439; 19 Am. Jur., Estoppel, sec. 62. A party may be estopped to insist upon a claim or take a position which is inconsistent with an admission or denial of a fact which he has previously made or with a course of conduct in reliance upon which the other party changed his position to his detriment or prejudice. This principle overlaps another. Where one accepts and retains benefits of a transaction or of an instrument which he was not required to take, an estoppel operates to prevent the party that benefited from questioning the validity of the transaction or basis of it. Bush v. Chenault's Ex'r, 175 Ky. 598, 194 S.W. 777; Farmer v. Gipson, 201 Ky. 477, 257 S.W. 1; Wabash Drilling Co. v. Ellis, 230 Ky. 769, 20 S.W. 2d 1002; Pettit's Adm'r v. Goetz, 261 Ky. 107, 87 S.W. 2d 99; 19 Am. Jur, Estoppel, sec. 63, 64; 31 C.J.S., Estoppel, ...