50 W. Va. 104 | W. Va. | 1901
Mary Jane Plum being the owner of real estate in Parkersburg she and her husband, D. S. Plum, made a deed of trust to secure the Traders Building Association in the sum of twelve hundred dollars on said property. D. S. Plum confessed a judgment in favor of W. F. Atkinson, and Atkinson brought a suit in the circuit court of Wood County claiming that this property had been purchased with the means of the husband, D. S. Plum, though conveyed to his wife, and that it was liable for the debt of Atkinson. The circuit court decided that it was. not liable for Atkinson’s debt and dismissed the bill. From this decree Atkinson took an appeal to this Court, and as will be seen in ,45 W. Va. 626, this Court held that the property was liable for Atkinson’s debt, and reversed the circuit court, holding that the building association held the first lien, and Atkinson the next. Some time after the decree in the circuit court, and before Atkinson took his appeal, there was paid' on the building association debt money sufficient to reduce it to the sum of five hundred dollars, and the said Plum and wife purchased an advance of five hundred dollars from said building association and executed a deed of trust upon said property to secure the same, and the said building association surrendered the bond for the loan of said twelve hundred dollars, and executed a formal release of the deed of trust made to secure said loan of twelve hundred dollars. Afterwards this Court rendered the decision in favor of Atkin
There are only two questions which I deem material to be considered in this case. The first one is a nice and troublesome one and that is whether, as a matter of law, the new deed of trust and the release of the old one extinguished the lien of the
See also 11 Am. & Eng. Ency. L. (2 Ed.) 431. Now these declarations of Atkinson, or rather conversations, were not made to induce the association to make a release, as we have no evidence that he knew of such a transaction, nor could wo call them negligence when it is not shown that he knew of any proposed release. When the secretary of the association said that Atkin
Another important element in this case is, that in order to malee a statement operate as an estoppel there must be some misconduct of the party amounting to a representation or concealment of material facts. Eslis v. Jackson, 111 N. C. 145, 32 Am. St. R. 784; 11 Am. & Eng. Ency. L. (2 Ed.) 424. What Atkinson said did not amount to an engagement not to take an appeal, nor a representation that he would not. He had no such intention of so engaging or representing, or deceiving the association, and could not have contemplated that it would act upon the faith of his words in making a release, as he knew nothing of an3r intention to make a new loan and a release. To bind a man by estoppel should it not appear that he knew that a given transaction was about to take place so as to enable us to say that he intended to further it by his statement, or at least enable us to say that lie was grossly negligent in using language which might induce such action by the association? The Supreme Court of the United States has held in Morgan v. Railroad Co., 96 U. S. 716, that “The doctrine of estoppel in pais always presupposes error on one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.” The same doctrine is held in Sweney v. Pratt, 70 Conn. 274, 66 Am. St. E. 101. If even Atkinson had made the explicit statement that he did not intend to appeal, it would not bind him, based on no consideration; surely not unless he knew that a release of the old deed of trust was in contemplation, even if it would then. And with what show of force can the association ask a court to relieve it from its carelessness? Was it not extreme carelessness to take such conversation of Atkinson as a basis for the solemn act of the release of its mortgage ? Why did not the association
Can we cancel the release on the theory of mistake? I have stated above that where mortgages have been releasd in ignorance of the existence of subsequent incumbrances, the prior lien will be restored. Those cases go very far and -ttieir doctrine is questionable. Certainly they are questionable as to mortgages made subsequent to the release on the faith of that release. Can we say in this case that though the conduct of Atkinson does not constitute an estoppel, still the association acted under mistake in the belief that Atkinson would not take an appeal, but let the decree of the circuit court against him stand ? Can we say that it falls under the principle of those cases holding that where a release is executed in ignorance of intervening liens, equity will cancel the release on the ground'of mistake? There was no basis for an opinion or reliance on the part of the association that Atkinson would give up his debt and not appeal. A mistake to be relievablo in equity must have a justifiable basis. The'fact that Atkinson had paid the costs decreed against him in the circuit court could not fairly induce an opinion that he would not appeal, because ho was compelled to pay them. Nor would the fact that he had delayed to appeal for sixteen months, because the law gave him two years in which to appeal. Nor could such an opinion be based safely on the mere declarations of Atkinson's above stated. We, therefore, cannot say that the association acted in the well grounded belief that there would be no appeal, since it had no solid ground on which to found such belief, so as to ask equity to relieve it on the ground of mistake. The truth is that it is simply asking a court of equity to relieve it from its own carelessness by resurrecting a mortgage destroyed by its own act of negligence. We cannot do this and therefore we affirm the 'decree, even though the case seems hard upon the association.
Affirmed.