The question confronting us here is: Was the defendant, by participating in the negotiations, by being present during the entire transaction here involved and by failing to reveal her purported interest in the property, estopped from asserting title adverse to that of the plaintiff, where the defendant’s muniment of title was recorded and the plaintiff, admittedly relying on assurances made by the deceased, made no investigation of title?
The defendant contends that the plaintiff had notice of the defendant’s interest since “the defendant’s possession of the land under a duly recorded warranty deed was notice to the plaintiff and to the world of the defendant’s claim of title.”
Poore v. Poore,
The plaintiff relies on
Code
§ 105-304 which provides: “One who silently stands by and permits another to purchase his property without disclosing his title is guilty of such a fraud as estops him from subsequently setting up such title against the purchaser.” In construing this Code section this court has found that it is inapplicable where a party had actual knowledge of the rights of the other party who remained silent or where such
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party relied upon his own investigation or was not shown to have placed any reliance on the statement, action or inaction of the one claimed to be estopped.
Brown v. Tucker,
However, in analogous factual situations to that of the instant case this court, in harmonizing
Code
§§ 105-304 and 38-115, has consistently held that a recorded deed was not necessarily such “convenient means of acquiring knowledge” of the title, within the contemplation of
Code
§ 38-115, as to abrogate the effect of
Code
§ 105-304 on one who remains silent while a third party represents to another that he owns certain property which in actuality belongs to the aphonic one.
Markham v. O’Connor,
The trial judge erred in sustaining the demurrer to the petition.
Judgment reversed.