Page v. Arnim

• Decision Date: 31 January 1867
• Citation: 29 Tex. 53
• Parties: SAMUEL H. PAGE v. FERDINAND J. ARNIM ET AL.
• Court: Texas Supreme Court

29 Tex. 53

SAMUEL H. PAGE

v.FERDINAND J. ARNIM ET AL.

Supreme Court of Texas.

January, 1867.

Where a party relies upon an estoppel in pais, he has the right to show all the facts and circumstances of the dealings and acts of those alleged to be estopped by their acts.

The mere failure of a party to assert his right to land for ten years, where there is no adverse possession, does not amount to an estoppel.

In Burleson v. Burleson, 28 Tex. 383, it was held, that the tacit presence of the owner, and his knowledge of the sale of land in which the heir has a community interest, will not estop him, if the purchaser be otherwise informed of the true state of the title. 28 Tex. 383.

In Scoby v. Sweatt, 28 Tex. 713, it was held, that the acts from which the estoppel is claimed to spring in some way must have influenced the purchaser; that the basis upon which the estoppel rests must be actual or constructive fraud on the part of the owner, or such facts as would be tantamount to a fraud, if he were permitted to receive the property. These definitions are approved. 28 Tex. 713.

There seems no reason to suppose that the appellant was any better informed as to the character and legal effect of the grant, under which the administrator claimed and sold the entire league of land, than the purchaser. If one is presumed to know the legal effect, so is the other. The title showed the date of the grant. Knowing it to be community property, he was put upon inquiry as to the parties interested in it. If he were informed of appellant's interest, to have made it known to him at the sale would have furnished him with no additional information. If he did not know of it, appellant's presence at the sale could not have induced the impression of a waiver or abandonment of his title, and could in no way have induced the purchase.

The true rule seems to be, that the mere presence of the owner, if he have concealed no facts of which he was informed, and the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale.

It is undoubtedly true, that a party will, in many instances, be concluded by his declarations or conduct of another to his injury. The party is said in such cases to be estopped from denying the truth of his admissions. But to the application of this principle, with respect to the title of real property, it must appear, first, that the party making the admission by his declaration or conduct was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly on such admission, and will be injured by allowing its truth to be disproved.

The only qualification which seems necessary to the doctrine laid down in these cases is, that a party may be estopped by acts and declarations which were designed to influence another who has acted upon them, although both parties were ignorant that what is thereby represented is not true; for if one of two innocent parties must suffer, he through whose agency the loss occurred should sustain it.

Where the presence of counsel was not actually necessary, a continuance was properly refused.

Where the opposite party admitted the fact sought to be proved, the continuance was properly refused.

Where the certificate of the officer identified the witness who proved a deed for registration as the same person who signed it, the certificate will be taken as, prima facie, true, although there be a discrepancy in the middle initial. Pas. Dig. art. 4973, note 1084.

A mistake in the middle initial letter of a deed, as M. C. B., when it was signed M. B. B., is no discrepancy or misnomer which the law will notice. Pas. Dig. art. 1, note 221; 8 Tex. 376;18 Tex. 148.

APPEAL from Lavaca. The case was tried before Hon. FIELDING JONES, one of the district judges.

The trial in the district court was had in September, 1858. The record contains two hundred pages; the briefs of counsel cover some four hundred pages; and it is hardly probable that any reasonable history of the facts will be satisfactory to those who made the record.

The points discussed by the chief justice, however, are few, and it is not very material that other questions should be noticed by the reporter.

Samuel H. Page, on the 5th of October, 1854, commenced his action of trespass to try title under our statute (Pas. Dig. arts. 5292 to 5307, notes 1142 to 1153) against Ferdinand J. Arnim, Julius E. Arnim, C. Ballard, Richard Ceal, William Moore, Charles O. Edwards, Martha Dockery, James K. Harris, and Chester Newell, for the recovery of his interest in the league of land in controversy. The case stated by the plaintiff in his petition was, that Samuel Chase, with his wife, Eliza Chase (who had two children by a former husband), were colonists of DeWitt's colony in 1830, and that Samuel Chase, as the head of the family, received a colonist's grant for the league of land on the 17th day of August, 1831; that Eliza Page died in 1833, leaving two children by a former marriage, Joseph W. Page and the plaintiff, Samuel H. Page; that afterwards, and before 1854, Joseph died, leaving the plaintiff his only heir; and the plaintiff claimed one-half of the land, being the community interest of the mother, which descended to her sons, in 1833, under the Spanish law, which has not been materially changed by our statute about marital rights. Pas. Dig. arts. 4638, 4642, notes 1045, 1049.

It is needless to follow the various pleadings of the parties defendants and intervenor. They covered their defenses, and plead all our statutes of limitation of three, five, and ten years; but as the whole defense might have been had under the plea of “not guilty,” the material facts only are stated.

On the 20th day of February, 1830, William Chase was received as a colonist by Green DeWitt, as a married man and head of a family. His wife, Eliza, was formerly Eliza Page, and the mother of two children, to wit, Joseph W. and Samuel H. Page. On the 17th day of August, 1831, they received a grant of a league of land on Lavaca river, in DeWitt's colony, formerly in Gonzales, now in Lavaca county. In the year 1833, Eliza Chase died intestate, leaving her two sons, Joseph W. and Samuel H. Page, together with her husband, surviving her. No administration was had on her estate. Chase subsequently married, date not given, and died about the month of January, 1843, in Brazoria county. On the 4th of March, 1837, Chase sold to one E. R. Rainwater, and Rainwater sold to Chester Newell, one-fourth of the said league of land, designating it as the upper fourth of said league. This is all of the league that was sold by Chase, or any other person, during his life-time. On the 12th of January, 1843, Mary Chase filed her application in the probate court of Brazoria county for letters of administration on William Chase's estate, representing that she was his widow, and that he left one child, the issue of their marriage. Letters were granted to her on the 30th day of January, 1843. She subsequently married William B. Bayes, who joined her in the administration September 27, 1848, and on the same day they applied for a sale of the whole league, for the purpose of raising her allowance and for support of child, etc. On the first Tuesday in November, 1848, the same was sold at the court-house door, in the town of Brazoria, in Brazoria county, and Peter McGreal became the purchaser thereof, for the sum of $885.60. The deeds from Chase to Rainwater and from Rainwater to Newell were filed for record the 15th June, 1844, in Gonzales, and recorded 4th September, same year.

From the year 1852, and subsequently thereto, Peter McGreal sold off various and sundry tracts of the land to defendant, Arnim, and all the co-defendants of this appellant, or to their grantees, who went into possession of said tracts under deeds from McGreal, having no respect for the appellant's upper quarter. In the early part of the year 1854 Joseph W. Page died, leaving no wife, parent, or descendant, and no other relative but Samuel H. Page, his brother. On the 5th of October, 1854, said Samuel H. Page, as heir of his mother, Eliza Chase, and of his brother, Joseph W. Page, instituted his suit against all the purchasers under McGreal and against the appellant, Chester Newell, claiming to be entitled to, and asking a decree for, one-half of the land. By an amendment Newell was declared to be a non-resident, and cited by publication; and on the 12th day of August, 1857, he came in with his answer and cross-bill, setting out his title to one-fourth of the league, deeded to him by Chase and Rainwater, and asking a decree in his favor for said quarter. The other defendants set up their respective deeds under McGreal, who was made defendant also by amendment, all of whom came in, and answered both the petition and cross-bill and answer of Newell.

The verdict was general for the defendants. Plaintiffs appealed, and defendant, Newell, also appeals, and makes his assignment of errors.

The foregoing is more materially the case made between McGreal and his vendees as against Newell, who held under Rainwater, who purchased the upper fourth of the league from Chase in 1837. Page claimed that that deed did not convey a fourth, but only an eighth of the league; that it could not pass the community interest of the heirs of Eliza Page Chase.

Against Page, McGreal proved the following facts: In 1831, at the time of the grant, Chase was married to Eliza Page Chase, the mother of the appellant; she died in 1833, leaving two children by a...