Nickerson v. Massachusetts Title Ins. Co.
| Decision Date | 06 March 1901 |
| Citation | 59 N.E. 814,178 Mass. 308 |
| Parties | NICKERSON v. MASSACHUSETTS TITLE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jos F. Wiggin and B. Marvin Fernald, for appellant.
P. H Cooney and F. M. Forbush, for appellee.
1. The defendant's principal contention is that the plaintiff does not make out a case of an estoppel in pais unless he proves an intent to deceive on the part of the defendant, and that all that has been found in this case is that the defendant was negligent. Where one employed to draw a deed omitted to insert in the deed drawn by him an incumbrance which he himself then owned, it was decided in England, more than 200 years ago, that he was estopped from setting up his incumbrance against the rights which his employer obtained relying upon the deed, and that equity would enforce the estoppel, and restrain him from doing so. Draper v Borlace, 2 Vern. 370. It has since then been decided that where a representation has been made by a stranger, who was under no duty to the person making the inquiry, that no incumbrance existed when he in fact had one, an estoppel was made out, even though the omission to speak of the incumbrance was an innocent one, arising from forgetfulness and equity would enjoin the setting up of the incumbrance. Burrowes v. Lock, 10 Ves. 470; In re Ward, 28 Beav. 519. See, also, Ibbottson v. Rhodes, 2 Vern. 554; Amy's Case, cited in Hobs v. Norton, 2 Ch. Cas. 128; Berrisford v. Milward, 2 Atk. 49; Stronge v. Hawkes, 4 De Gex, M. & G. 186, 194; Piggott v. Stratton, 1 De Gex, F. & J. 33. And, finally, in Low v. Bouverie [1891] 3 Ch. 82, 100, 105, 111, in which the whole question was discussed at length, it was admitted by all the judges that, where the person making the representation owed a duty to the other, an innocent omission arising from negligence would raise an estoppel. It is enough to say that in the case at bar the defendant owed to the savings bank the duty of using due care to ascertain and report all incumbrances on the land, and it was found that it was negligent; while in Stiff v. Ashton, 155 Mass. 130, 29 N.E. 203, and the other cases relied on, the defendant was under no obligation to the plaintiff, and for that reason there is an estoppel in this case, even if there is none in those cases.
2. The defendant's next contention is that, even if the savings bank had a right to have it (the defendant) declared estopped to set up the mortgage in question, the plaintiff, as grantee of the land under a quitclaim deed, has not succeeded to that right; particularly since it appears that she bought with full knowledge of all the facts, and that a deposit has been made by the receivers of the savings bank, who sold the land to her, to pay the mortgage if she cannot enforce the estoppel. The defendant seeks to escape from Platt v Squire, 12 Metc. (Mass.) 494, by pointing out that in this case there is no extinguishment of the note secured by the Hano mortgage. The contention is that where, as in this case, the employer has an action of negligence, he does not, by conveying the land, convey the right to enforce that action. But the receivers of the savings bank not only had a right to bring an action at law to recover damages suffered from the defendant's negligence, but they also had the right to bring a suit in equity founded on the defendant's estoppel, and have it enjoined from setting up the incumbrance of the Hano mortgage. Draper v. Borlace, and cases supra. They have elected to pursue the second remedy, and not the first. If the right to insist upon the defendant being postponed to them was a personal right, which could be enforced by them only so long as they owned the land, and could not be transferred by them to a purchaser, it would be of little value. It is plain that, if they elected to rely upon the estoppel, the right would pass to a purchaser (Pearson v. Bailey [Mass.] 58 N.E. 1028), and the purchaser could enforce it in a bill in his own name on the same principle on which it is held that the grantee of an estate, for whose benefit an agreement restricting the use of neighboring lands was made, can enforce that agreement as an equitable restriction against the owner or a grantee from the owner. The cases of Fairfield v. McArthur, 15 Gray, 526, and Foster v. Wightman, 123 Mass. 100, relied on by the defendant, are not cases where the grantee was seeking to keep what his grantor had, but cases where the grantee sought to avoid a transaction which the grantor might have avoided, but had not avoided, and proceeded upon the theory that the grantor had not elected to avoid the transaction. See Foster v. Wightman, 123 Mass. 100, 101, and Pearson v. Bailey (Mass.) 58 N.E. 1028. In the case at bar it directly appears from the testimony of one of the receivers, and also from the fact that the deposit already spoken of was made by them, that the real parties in interest in this action are the receivers. In this case, therefore, the receivers have elected to have the defendant estopped, and not to sue them in negligence. The fact that the plaintiff knew all the circumstances when she took her conveyance does not abridge the...
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