Moreman v. Talbott

• Decision Date: 28 February 1874
• Citation: 55 Mo. 392
• Parties: THOMAS S. MOREMAN, Appellant, v. P. H. TALBOTT, Respondent.
• Court: Missouri Supreme Court

55 Mo. 392

THOMAS S. MOREMAN, Appellant,

v.P. H. TALBOTT, Respondent.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Nodaway Circuit Court.

Johnston & Royal, and G. D. Burgess, for Appellant.

I. Appellant is not estopped by anything he said or did prior to or at the time of the sale of said land under the County Court judgment.

To constitute an estoppel in pais, the act or admission relied upon to have that effect, must be the moving cause and inducement, in the absence of which the party setting it up would not have done that upon which he claims the estoppel. (Hill vs. Epley, 31 Penn. St., 334; 2 Washb. R. P. [2nd Ed.], 459, § 9 a, to ref. 5.)

The cases, says Mr. Washburne, all agree in this, “that no man can set up another's act or declaration as a ground of estoppel, unless he has been misled or deceived by such act or declaration; nor can he set it up where he knew or had the means of knowing the truth of the act or declaration in his own power.” Both Roseberry and Talbott had knowledge of Moreman's interest, and were fully advised of the true state of the title. (2 Washb. R. P. [2nd Ed.], 460 § 9 a; 2 Sm. L. Cas. 6 [Am. Ed.], 768.)

To enable a man to set up title by estoppel, he must have been ignorant at the time of his purchase of the true state of the title, and also been without the means of ascertaining it by a reference to the records. (Rice vs. Bunce, Adm'r, 49 Mo., 231; Wood vs. Griffith, 46 N. H., 237; Grove vs. White, 20 Wis., 430; Hill vs. Epley, supra; Herm. Est., p. 421, § 422; Titus vs. Morse, 40 Me., 348; Hill vs. Mossman, 11 Ohio St., 42.)

II. No time short of ten years adverse possession will bar in such case as the present, as equity acts in analogy to the law. (Ward vs. VanBokkelen, 1 Paige Chy., 100; Angel on Lim., [6th Ed.], §§ 25, 26, 382; McNair vs. Lott, 25 Mo., 190; 20 Mo., 93, 94, 95; Sto. Eq. Pl. [2nd Ed.], § 757; 50 Mo., 102, 103; Id., 445.)

Allen Vories, for Respondent.

I. If a party by his words or conduct, as in the present case, induce another to lay out his money and expend his means in the purchase of lands, which he would not have done otherwise, then such party is “estopped” by his own conduct. (Clark vs. Huntsucker. 12 Mo., 333, 339, 340; Highley vs. Barron, 49 Mo., 103; Rice vs. Bunce, Adm'r, 49 Mo., 231, &c., and authorities there referred to; Chouteau, &c., vs. Goddin, &c., 39 Mo., 229; Newman vs. Hook, 37 Mo., 207; Rutherford vs. Tracy, 48 Mo., 325.)NAPTON, Judge, delivered the opinion of the court.

This was a proceeding to have defendant declared a trustee for plaintiff, as to the title to a tract of land in Nodaway county, and to compel a transfer of the defendant's legal title to plaintiff.

Most of the facts in the case are undisputed. It appears from the pleadings and evidence, that one Davis bought a quartersection of the 16th section at one dollar and a quarter per acre, on the 30th of October, 1856, at a sale by the sheriff made by order of the County Court, and received the sheriff's certificate to this effect; that upon payment of the purchase money he was entitled to a deed; that Davis' note or bond for the purchase money, with one Roseberry as his surety, was not executed until 1858; that on the 24th of February, 1857, Davis, before the execution of any note or bond to the county, so far as appears, and certainly before the payment of any part of the purchase money, executed a fee simple deed with warranty, of the land to the plaintiff, who then lived in Kentucky, and this deed was duly recorded in Nodaway county on the day of its date.

It appears that the note or bond given by Davis and Roseberry, remained unpaid until 1864; the plaintiff in the meantime having removed from Kentucky to Nodaway county some time in 1859, and the County Court at the instance of Roseberry (who was surety for Davis), treating the note as one for school money and coming within the provisions of the 29th section of the second article of the act concerning Common Schools (R. C. of 1855, p. 1425), entered a judgment against Davis and Roseberry for the principal and interest of this note, then amounting to over $300; and an execution was levied on the land, and the land bought at this sale by Roseberry and defendant, Talbott. The purchase money was then paid to the county, and the County Court thereupon directed the Clerk to make report to the Register of Lands of the sale to Davis, and to report Roseberry and Talbott as his assignees. And accordingly, a patent was issued from the State to Roseberry and Talbott. The defendant, Talbott, ultimately bought out the interest of Roseberry. It appears, that after the removal of plaintiff to Nodaway, in the Spring of 1859, all the parties to this transaction lived in that county; that Davis did not leave the county until 1864, and at that time was apparently in good circumstances pecuniarily.

It appears that Roseberry and Talbott were fully apprised of the deed from Davis to plaintiff, and that plaintiff was equally cognizant of the fact that Davis had not paid for this land, and of all the proceedings of Roseberry, the County Court, the sale under execution, and the purchase by Roseberry and Talbott.

In 1863, Roseberry spoke to the plaintiff in regard to this note of Davis', and the necessity of plaintiff paying it off in order to get the title from the State; but the plaintiff refused to do so, declaring that he had already paid much more than the land was worth, and that Davis had swindled him, and he would sue Davis on his warranty. Roseberry told the plaintiff, that to save himself as surety of Davis, he would be obliged to buy in the land at the sale, unless he, the plaintiff, would do so; but the plaintiff declined and did not attend the sale, or if he did, made no bid for the land. The defendant, Talbott, also had repeated interviews with plaintiff before he bid at the sheriff's sale, and told the plaintiff he would not buy if the plaintiff desired to bid. Talbott knew nothing of the orders of the County Court, but, as he says, owning some land adjoining, he was induced to buy by the repeated assurances of the plaintiff. There is nothing contradictory of these statements by the defendant, Talbott, and Roseberry, from whom he purchased, or in the testimony of plaintiff, who was examined as a witness. The main facts are admitted or not denied, though the plaintiff does not remember all the conversations, and does not admit everything said by the defendant, and the witness, Roseberry.

It may be remarked, that all the allegations in the petition concerning fraudulent combinations and devices on the part of the...