Hill et al. v. Epley et al.
| Citation | 31 Pa. 331 |
| Parties | Hill et al. versus Epley et al. |
| Decision Date | 01 January 1858 |
| Court | Pennsylvania Supreme Court |
4. The information which makes it the duty of a party to make inquiry, and shows where it may be effectually made, is notice of all facts to which such inquiry might have led: 1 Curt. C. C. 390; Ringgold v. Bryan, 3 Md. Ch. Dec. 488; Stockett v. Taylor, Id. 537; McGehee v. Gindrat, 20 Ala. 95; Tardy v. Morgan, 3 McLean 358; Lodge v. Simonton, 2 Penn. R. 445; Barnes v. McClinton, 3 Id. 67.
5. A party's mere presence and silence, in such a case as this, will not affect him: Batchelder v. Sanborn, 4 Foster 474; Valls v. Clemens, 18 Miss. 486; Cicotte v. Gagnier, 2 Mich. 381; West v. Tilghman, 9 Ired. 163; Schultz v. Elliott, 11 Humph. 183; Cambridge Institution v. Littlefield, 6 Cush. 210.
6. There is no estoppel in pais, unless the party who sets it up has, by the acts or declarations of the other party, been induced to believe the existence of facts inconsistent with the claims of such other party, and acted on such belief: Lawrence v. Brown, 1 Seld. 394; Carpenter v. Stilwell, 12 Barb. 128; Hunley v. Hunley, 15 Ala. 91; Taylor v. Toppe, 14 Miss. 482; Whitaker v. Williams, 20 Conn. 98; Dyer v. Cady, Id. 563; Pennell v. Hinman, 7 Barb. S. C. 644; Martin v. Angell, Id. 407; Bank v. Wollaston, 3 Harrington 90; and the English decisions are to the same effect: Freeman v. Cook, 12 Jurist 777; Pickard v. Sears, 6 Ad. & Ellis 469; Gregg v. Wills, 10 Id. 90.
Neither the former nor subsequent opinions of this court sustain Mr. Justice KENNEDY: Knouff v. Thompson, 4 Harris 364; Carr v. Wallace, 7 Watts 401; Crest v. Jack, 3 Id. 238; Alexander v. Kerr, 2 Rawle 90; Goundie v. Northampton Water Company, 7 Barr 233; Bellas v. McCarty, 10 Watts 25.
Wills and Cooper, for the defendants in error, relied upon the case of Epley v. Witherow, 7 Watts 163. They also cited 1 Story's Eq., § 385; Storrs v. Barker, 6 Johns. Ch. 166, 172; Wendell v. Van Rensselaer, 1 Id. 354.
The question presented by this record is, whether when a tract of land has been sold at sheriff's sale, under a judgment obtained against a tenant in common, and the co-tenant, whose deed was upon record, was present at the sale, and caused notice to be given that it was only the interest of the judgment-debtor which was being sold, such co-tenant is estopped from asserting his title against the purchaser.
Confining our attention to the facts which are material to the inquiry brought up here, we have the following: —
David Witherow and Samuel Witherow were owners as tenants in common, of a farm and mill property. They held under the same deed from Christian Routzong. Samuel lived upon the land, and David lived a few miles distant. A judgment was recovered against Samuel Witherow, upon which execution was issued and levied upon the property. It was condemned and sold on the 2d of August 1823, to Solomon F. Linn. That sale was set aside. On the 12th of August 1823, the deed to David and Samuel Witherow was recorded. The property was again sold on the 10th day of November 1823, under an alias venditioni exponas, and Peter Epley became the purchaser. At the second sale, David Witherow was again present, and by his attorney requested the sheriff to give directions to the crier that he claimed one-half of the property as a tenant in common with his brother Samuel Witherow. The sheriff gave the directions requested, and the crier, in a loud and distinct voice, desired all present to take notice that it was only the interest of Samuel Witherow that he was then selling. This he repeated several times. The court below instructed the jury that these facts would deprive David Witherow of all right to claim the land, unless the purchaser had seen his title on record. The court further charged the jury that it was the duty of David Witherow, if he wished to secure his claim, and set it up against the purchaser at sheriff's sale, to give direct and explicit notice of his title, — in short, to say he claimed the one undivided half. Was this instruction correct?
The doctrine of equitable estoppel by matter in pais, has doubtless been greatly extended by the courts in modern times; yet, it is not entirely without limits, and it professes to be founded upon the principles of natural justice. The general principle now is, that where the conduct of a party has been such as to induce action by another, he shall be precluded from afterwards asserting, to the prejudice of that other, the contrary of that of which his conduct has induced the belief. The primary ground of the doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up. Thus, if a person positively encourage another to purchase either land or a chattel, he cannot afterwards assert any title in himself to the thing purchased, and this though he may have been ignorant of his rights when he gave the encouragement. For though, in the latter case, there may have been no fraudulent intent, yet the assertion of his title would operate as a fraud, as much so as if there had been a fraudulent purpose. Besides, the equitable principle is, that when a loss must befall one of two innocent persons, that one must bear it through whose act it was occasioned. It seems also to be well settled, that silence in some cases, will estop a party against speaking afterwards. Thus, if one suffers another to purchase and expend money upon a tract of land, and knows that that other has a mistaken opinion respecting the title to it, and does not make known his claim, he shall not afterwards be permitted to set up a claim to that land against the purchaser. His silence then becomes a fraud. But, silence without such knowledge works no estoppel. It is only when silence becomes a fraud, that it postpones: Beaupland v. McKeen, 4 Casey 124; Robinson v. Justice, 2 Penn. 19; Keeler v. Vantuyle, 6 Barr 253. The doctrine of estoppel, by matter in pais, resting thus upon the supposed existence of fraud, it is essential to its being allowed in any case, that it would work an injury, if the party alleged to be estopped should be permitted to set up his case. If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations, or silence of a party, he will not be estopped from contradicting them, even though they would be conclusive against his right if not contradicted: Dezell v. Odell, 3 Hill 215; Patterson v. Lytle, 1 Jones 53. If, therefore, the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel. Accordingly, it has been held that one is not relieved, who had the means of becoming acquainted with the extent of his rights: Crest v. Jack, 3 Watts 240; Hepburn v. McDowell, 17 S. & R. 383; and in Knouff v. Thompson, 4 Harris 361, it was ruled, that silence does not estop when the party's deed is on record. It should never be forgotten, that there is a wide difference between silence and encouragement.
Inasmuch as the operation of an estoppel is ordinarily to prevent proof of the truth, and in such a case as this, to pass title to land without writing, it would seem indispensable that what is necessary to estop should appear affirmatively: Commonwealth v. Moltz, 10 Barr 531.
Applying now these principles to the case in hand, it may be asked where is the affirmative evidence of fraud which is necessary to constitute an estoppel? Intended fraud is out of the question, for at the time of the sale, and for three months previous, the deed to David Witherow and Samuel Witherow was on record, and instead of active...
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