Roberts v. Bookout

• Decision Date: 18 January 1932
• Docket Number: 29739
• Citation: 162 Miss. 676,139 So. 175
• Court: Mississippi Supreme Court
• Parties: ROBERTS v. BOOKOUT et al

139 So. 175

162 Miss. 676

ROBERTS v. BOOKOUT et al

No. 29739

Supreme Court of Mississippi

January 18, 1932

Division B

Suggestion Of Error Overruled March 28, 1932.

APPEAL from chancery court of Itawamba county HON. J. A. FINLEY Chancellor.

Suit by J. L. Bookout against Melvin Roberts, in which defendant filed a cross-bill and prayed that D. R. Bookout and his wife be made parties to the cause, which was done. From the decree, defendant appeals. Affirmed.

Affirmed.

I. L. Sheffield, of Fulton, for appellant.

Ten years lapsed before the filing of the bill in this cause and every requirement therefore has been met and therefore appellant has title by adverse possession.

Hamner v. Yazoo & Lbr. Co., 100 Miss. 349, 56 So. 466.

If a man is silent, when he ought to speak, equity will debar him from speaking when conscience requires him to be silent.

10 R. C. L., pages 692 and 693, section 21; Phillips v. Clark, 83 Am. Dec. 471.

Silence when there is a duty to speak is deemed equivalent to concealment.

1 L. R. A. 522.

Where there is a knowledge and a duty to make a disclosure as well as an opportunity so to do, the doctrine of estoppel debars him who stands by from speaking or setting up whatever defense might have availed him had he spoken at the proper time.

10 R. C. L., p. 694, sec. 22.

When injury falls to one of two parties, it must fall to him who, by his negligence or carelessness, or intentional wrong, whichever it may be, misled the other.

10 R. C. L., p. 695, sec. 23.

Equitable estoppel is either a suggestion of untruth, or a concealment of truth, when there is a duty to speak.

Bispham's Principles of Equity (7 Ed.), sec. 282.

Estoppel applies to one who denies his own title or encumbrance when inquired of by another who is about to purchase the land or to loan money upon its security; to one who knowingly suffers another to deal with the land as though it were his own; to one who knowingly suffers another to expend money on improvements without giving notice of his own claim, and the like.

Pomeroy's Equity Jurisprudence (Student's Edition), sec. 807.

Equitable estoppel, so far as it relates to the trial of title, is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words, or silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.

58 So. 721.

As a general rule, if a man knowingly suffers another to purchase and expend money on land, under an erroneous opinion of title, though he does it passively by looking on, without making known his claim, he shall not afterwards be permitted to exercise his legal right against that person.

Pom. Eq. Jur. 803.

A void deed is sufficient as color of title, upon which to base a claim.

Kiser v. Earhart, 1 So. 635, 64 Miss. 492; Mississippi Sawmill Co. v. Douglas, 65 So. 885, 107 Miss. 678.

Equitable estoppel, so far as it relates to trial of title to land, is a doctrine by which a party is prevented from setting up his legal title, because he has through his acts, words or silence, led another to take a position in which the assertion of legal title would be contrary to equity and good conscience.

Corum v. Palmer, 58 So. 21.

J. H. Brown, of Fulton, for appellees.

The testimony shows conclusively that D. R. Bookout did not go into possession of said land until September 1, 1919, and that J. L. Bookout filed this suit on July 13, 1929. The claim of adverse possession cannot be sustained because appellant did not occupy and exercise this degree of possession for a period of ten years.

To constitute estoppel there must be a duty of the party to speak or assert his rights; and the party claiming the benefits of the doctrine of estoppel must convince the court that he has exercised reasonable judgment in trying to ascertain the true facts in the case and has acted in good faith.

14 A. L. R. 904; 10 R. C. L. 689.

Estoppel by conduct arise from an act or declaration of a person intended or calculated to mislead another, and which other had relied and has so acted or refrained from action, as that injury would befall him if the truth of the act, or declaration, be denied.

55 Miss. 261.

Where a tract of land is sold under a deed of trust conveying the whole but given by a part owner, the owner of another interest in same residing upon the place and making no objection to the sale and no claim to the land at the time of the sale is not by such conduct estopped afterwards from asserting his title against the purchaser if at the time of the sale his title is a matter of record and does nothing to mislead the purchaser into buying the land although remaining silent as to his title.

55 Miss. 255.

Estoppel operates only in favor of one who, in reliance upon the acts, representations, or silence, so changes his situation as that injury will result if the truth is shown.

128 Miss. 848; 72 Miss. 830; 24 Miss. 208; 50 Miss. 648.

In absence of fraud, misrepresentation, culpable silence or their equivalent a party cannot by estoppel be divested of title to real estate.

82 Miss. 256.

It was appellant's duty to make an inquiry concerning D. R. Bookout's deed and to ascertain the contents of said deed if he could by reasonable diligence and if he does not make any inquiry or try to ascertain the true facts then in this event he is charged with notice of the contents of that deed.

128 Miss. 853; 24 Miss. 208; 50 Miss. 648.

OPINION

Anderson, J.

Appellee J. L. Bookout filed his bill in the chancery court of Itawamba county against appellant, seeking to establish his title to one and eleven-sixteenth acres of land in that county, and to have canceled as a cloud upon his title appellant's claim to the land. Appellant answered the bill, denying the material allegations thereof, and made his answer a cross-bill, asking that his claim of title to the land be established, and appellee's claim be canceled as a cloud upon his title. In the alternative, appellant prayed for compensation for valuable and permanent improvements which he had placed upon the land, and prayed further that D. R. Bookout and his wife, through whom he claimed title, be made parties to the cause. This was accordingly done, and appellee, J. L. Bookout, D. R. Bookout, and his wife, answered the cross-bill, denying its material allegations. There was a trial on the original and cross-bills; and answers thereto, and proofs, resulting in a decree in favor of appellee J. L. Bookout, establishing his title to the land, but giving permission to appellant within a specified time to remove the improvements he had placed thereon. From that decree appellant prosecutes this appeal.

Appellant admits that appellee J. L. Bookout had a perfect record title to the land in controversy, but contends that he lost his title to appellant, first, by adverse possession; second, by equitable estoppel to assert it.

There is no merit in the defense of adverse possession, because the evidence showed without conflict that appellant claimed title to the land under a deed from appellee D. R. Bookout, made on September 1, 1919, under which he went into adverse possession; but that the original bill in this cause was filed on July 13, 1929, within ten years after such conveyance and possession.

Appellant contends that appellee J. L. Bookout was estopped by his silence and acquiescence to claim title to the land. D. R Bookout is a son of J. L. Bookout and his wife, M. C. Bookout. On the eighth day of September, 1919, and for some time prior thereto, J. L. Bookout was the owner of thirty acres of land in Itawamba county, which included the one and eleven-sixteenths acres involved in...