McLain v. Buliner
| Decision Date | 04 June 1887 |
| Citation | 4 S.W. 768,49 Ark. 218 |
| Parties | MCLAIN v. BULINER |
| Court | Arkansas Supreme Court |
APPEAL from Miller Circuit Court in Chancery, C. E. MITCHELL, Judge.
Reversed and dismissed.
J. M Montgomery and Oscar D. Scott for appellant.
In order to constitute an estoppel by conduct all of the following elements must actually or presumably be present:
Bigelow on Estoppel, 3d ed., p. 484.
In this case there is no proof that Ritchie made any legally false representation, and conclusively it is shown that if any was made defendants were not ignorant of the truth of the matter. Ib., p. 486, 520; 46 Tex. 371; 71 Ill. 185.
There must be some right or title existing in the party sought to be estopped, as estoppels in pais do not apply to after-acquired titles. Bigelow on Est., p. 525; 22 Cal. 468; 36 Me. 176; 55 Mo. 492; 106 U.S. 447.
Because 1. If there was any representation made by Ritchie, it was in effect a representation or future promise, in effect, that he would not, but that defendants might, purchase the lot in controversy from the railway company.
2. That defendants had full knowledge of the true state of the title at the time of the alleged estoppel.
3. That the said Ritchie had no title at that time upon which an estoppel could act, or the title in Ritchie sought to be estopped was an after-acquired title. We submit the demurrer to the cross-complaint should have been sustained.
It is the title the estoppel is against, and in this case there was none in Ritchie until the execution of the deed.
It appears from the proof:
1. That Ritchie made no false representation.
2. That defendant knew the true state of the title.
3. That the title sought to be estopped was after-acquired.
John B Jones also for appellant.
L. A. Byrne for appellees.
This is a case of estoppel by waiver, and not by conduct or representation. It is necessary that both parties should know all the facts. See Bigelow on Est., 4th ed., 639, 640; id., pp. 447, 552, 633.
One who encourages another to buy land and expend money upon it cannot set up a better title in himself to avoid the purchase. 53 Pa. 348. Estoppel operates to the abandonment of an existing right. 96 U.S. 544. See, also, 24 F. 191; 79 Ky. 148; 33 Pa. 307; 35 id., 523; 106 U.S. 30; 3 Hill (N. Y.), 216; 3 Tiff. (N. Y.), 518; 34 How. Pr., 429; 9 Wall., 254; 100 U.S. 578.
The sale and waiver by Ritchie estops Ritchie from ever thereafter asserting present or after-acquired title to the property. Herman Est., vol. 2, secs. 650, 651, 668, 669, 781-2; 12 Wall., 358; 47 Ark. 112.
J. W. BUTLER, Sp. J.
The following statement is deemed sufficient to a correct understanding of this case.
On the 31st day of January, 1878, James Ritchie, since deceased, obtained from the St. Louis, Iron Mountain and Southern Railway Company a deed to lot number five (5), in block number seventy-three (73), in the town of Texarkana, Arkansas. Sarah L. Buliner, appellee, prior to the date of Ritchie's deed had erected upon the lot a two-story frame building, under the claim, that in the year 1876 James Ritchie had relinquished to her his right to purchase the lot, as also his claim for improvements made thereon, and had promised that he would not purchase it himself from the owners, the St. Louis, Iron Mountain and Southern Railway Company. She further claimed that after securing Ritchie's interest in the lot, she contracted with the local agent of the railway company, at Texarkana, to purchase it, and immediately thereafter began to build upon it. About Jaunary, 1877, the building was completed and she took possession of the lot and the improvements, without protest or objection on the part of James Ritchie.
On the 24th of October, 1878, Ritchie brought an action of ejectment in the Miller Circuit Court against Bero Buliner, and Sarah L. Buliner, his wife, and others in possession of the property.
Bero and Sarah L. filed an answer and cross-complaint and a counter-claim making the St. Louis, Iron Mountain and Southern Railway Company a party defendant to the counter-claim. The cause was transferred to the equity docket. Ritchie demurred to the counter-claim. Pending the suit Ritchie died and the cause was revived and proceeded in the names of Lucy Ritchie, the widow, and H. N. McLain, the administrator of the deceased. The cross-bill was dismissed as to the St. Louis, Iron Mountain and Southern Railway Company.
At the July term, 1885, the court overruled the demurrer to the counter-claim and decreed that Ritchie, in his lifetime, had a preference right to purchase the lot in controversy from the St. Louis, Iron Mountain and Southern Railway Company, the owner of the lot, and that he held a claim for improvements placed thereon; that Ritchie sold to Sarah L. Buliner, for a valuable consideration, his claim on the lot and relinquished to her his right to purchase it from the railway company. That the heirs and assignees of James Ritchie are estopped from setting up the title which he acquired to the lot from the railway company as against Sarah L. Buliner. That Lucy Ritchie holds the title to the lot, acquired by purchase from her husband, in trust for the said Sarah L., and that the said Lucy Ritchie make and execute a deed conveying to Sarah L. Buliner the title to the lot. It was further decreed that Sarah L. Buliner recover from the said Lucy Ritchie the sum of $ 1000 for the rental value of the property during the time she held possession.
Counsel concede that the issues involved in this case are narrowed down to a single question, that of and equitable estoppel.
It is insisted for the appellees that the title of Lucy Ritchie to the lot in controversy cannot be set up against Sarah L. Buliner because of certain promises made by Ritchie, and because he had transferred to her all claim and right to the lot for improvements, and had relinquished his right to purchase from the railway company.
It therefore becomes necessary to ascertain whether or not the doctrine of equitable estoppel, wide and varied in application as it is, applies in this case. There was no written contract or agreement between Ritchie and appellees. The case must be determined upon the promises and representations and the alleged parol relinquishment of Ritchie.
Waiving the question of the validity of certain depositions, to which one or the other parties, respectively, took exceptions, we think the evidence establishes that the title to the lot in controversy, at the time Ritchie relinquished his claim to Sarah L. Buliner, was in the St. Louis, Iron Mountain and Southern Railway Company. That Ritchie represented he had a claim for improvements made on the lot, which claim he transferred to Sarah L. Buliner for the consideration of twelve dollars; that Ritchie advised Sarah L. Buliner to purchase the lot and to build upon it, representing that it would be a good investment; that he could not buy it himself as he had not paid for the lot adjoining which he occupied. He assured her that he would not purchase the lot himself, and this promise he frequently reiterated to Bero Buliner, the husband of said Sarah L., as also to other persons.
After Ritchie had relinquished his claim to the lot, Sarah L. Buliner, in September, 1876, applied to the local agent of the railway company at Texarkana, to purchase the lot. The agent informed her that the lot could be bought for $ 200, payable one-third in cash, one-third in twelve months, and the remainder in eighteen months. She paid to the local agent of the company ten dollars, receiving a receipt as follows;
TEXARKANA, ARKANSAS, September 11, 1876.
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Rhodes v. Cissell
... ... Rhodes was not estopped from setting up any interest he did not have at the time of the conversation. McLain v. Buliner, 49 Ark. 225, 4 S. W. 768, 4 Am. St. Rep. 36 ... For the same reason Rhodes was not barred by laches from maintaining his ... ...