Izard v. Mikell

• Decision Date: 14 October 1935
• Docket Number: 31823
• Citation: 163 So. 498,173 Miss. 770
• Court: Mississippi Supreme Court
• Parties: IZARD et al. v. MIKELL et al

163 So. 498

173 Miss. 770

IZARD et al. v. MIKELL et al

No. 31823

Supreme Court of Mississippi

October 14, 1935

Division B

1 ESTOPPEL.

Estoppel in pais arises only where there is manifest inequity, and such injustice as to require its application.

2 ESTOPPEL.

Doctrine of estoppel rests upon principle that it would be fraud for party to assert what his previous conduct had denied, when on the face of that denial, others have acted.

3. ESTOPPEL.

Estoppel by conduct arises from act or declaration of person intended or calculated to mislead another on which such other person has relied and has so acted or refrained from acting that injury will befall him if truth of act or declaration be denied.

4. LIMITATION OF ACTION.

Defendant will be estopped to set up statue of limitations in bar of plaintiff's claim when delay which would otherwise give operation to statute has been induced by promise or representation that statutory bar would not be interposed, or by inducing plaintiff to believe that amicable adjustment of claim would be made without suit, or by other forbearance to sue induced by defendant, her husband, or agent.

5. LIMITATION OF ACTIONS.

Husband and wife who induced beneficiary not to foreclose trust deed by representation that new deed would be executed. but failed to execute new deed according to representation held estopped to assert defense of statute of limitations in suit to foreclose original deed.

HON. T. PRICE DALE, Chancellor.

APPEAL from chancery court of Jefferson Davis county HON. T. PRICE DALE, Chancellor.

Suit by Mrs. Mary D. Izard and another against Elion Mikell and another. Judgment for defendants and plaintiffs appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

C. E. Gibson, of Monticello, for appellants.

It is the general rule of law that fraud can be predicased upon a false representation of the state of one's mind, and that such is actionable.

26 C. J., p. 1093; 12 R. C. L., p. 261; Gross v. McKee, 53 Miss. 536.

The prevailing rule is that the doctrine of equitable estoppel may, in a proper case, be invoked to prevent defendant from relying upon the statute of limitations, it being laid down as a general principle that when a defendant, electing to set up the statute of limitations, has previously, by deception or any violation of duty toward plaintiff, caused him to subject his claim to the statutory bar, he must be charged with having wrongfully obtained an advantage, which the court will not allow him to hold.

37 C. J. 725.

If a defendant intentionally or negligently misleads a plaintiff by his misrepresentations, and causes him to delay suing until the statutory bar has fallen, the defendant will be estopped from pleading the statute of limitations. It is not necessary that the debtor should intend to mislead, but, if his declarations are such as are calculated to mislead the creditor, who acts upon them in good faith, an estoppel will be created.

17 R. C. L., p. 886, sec. 245.

Our court seems to be thoroughly committed to the doctrine of estoppel in its broadest and most liberal aspects, being most thoroughly committed to the righteous rule that a person shall not be allowed to take advantage of a situation or condition induced by his own fraud.

Barnett v. Nichols, 56 Miss. 622; Kelly v. Wagner, 61 Miss. 299; Wilson v. Wilson, 166 Miss. 369, 146 So. 855; 25 R. C. L. 983; 59 C. J. 1092.

Under the facts of this case, I respectfully submit that even under the Wilson case, supra, the appellees are estopped from pleading the statute of limitations, and that the appellants were entitled to a decree, sustaining the prayer of their bill.

H. M. McIntosh, of Collins, for appellees.

It is our contention that the testimony in this record falls far short of all of the essential elements of equitable estoppel.

21 C. J. 1119.

The decision in the case of Wilson v. Wilson, 166 Miss. 369, 146 So. 855, is a complete bar to appellant's recovery of this case.

Secs. 1609, 2308, 2312, Code of 1930.

It is not required that the saving clause of a statute must be contained in the provision of the statute but may be contained in other sections.

25 R. C. L., p. 983, sec. 230; Underwood v. Ainsworth, 18 So. 379.

The exception with reference to concealed fraud, in section 1609, which was under consideration by the court in the Wilson case, are identical in substance and almost identical in wording.

OPINION

Ethridge, P. J.

On or about February 5, 1926, Mary D. Izard and her husband, appellants, conveyed to the appellee, Elion Mikell, a certain tract of land, taking a deed of trust thereon to secure the purchase price. The deed of trust matured in 1927, and nothing had been paid upon the purchase price. Mikell and his wife had lived upon the property for a number of years, prior to the conveyance, as tenants of the appellants, and from year to year had given deeds of trust upon the crops grown to secure advances made for supplies, fertilizer, etc., which had been, by course of dealing, renewed from time to time.

Some months prior to the date when the statute of limitations would bar the note and deed of trust, the husband of the appellant, as her agent, approached the appellees about paying the paper off, or executing a new deed of trust, which the appellees agreed to do. Several interviews took place prior to the expiration period, and the husband of the appellant suggested that if the payment was not met, or renewal papers executed, the deed of trust would be foreclosed as the statute of limitations was about to run against the same.

The appellees assured the appellant's agent that foreclosure would not be necessary; that they had never refused to execute new papers when unable to pay, and the proof shows that, through a long course of dealing, the appellees had executed papers in conformity to verbal agreements, and there had never been any question about so doing, although many times the appellees had not promptly met the payments, but had given reasons for delay, and had assured the appellant that it would not be necessary to foreclose. These promises had been made before and after the statute of limitations had begun to run against the debt, and after the statute had run against the debt, it appeared to be barred, and then the appellee agreed to renew and to bring his wife over on the following day to execute new papers. These papers were therefore, prepared, and a notary public brought, but the appellees failed...