77 W. Va. 704 | W. Va. | 1916
To restrain the prosecution of an action of unlawful entry and detainer brought by J. P. Cole against him before a justice and now pending in the circuit court on appeal, and to require specific performance by Cole of a-contract of sale for the real estate involved in the law action, T. N. Barnes brought this suit. The decree appealed from, although virtually but not in terms expressly denying right to an enforcement of the contract, did grant the injunctive relief prayed, on the theory of an estoppel by conduct.
The lot in controversy in each proceeding is a strip of ground 30 by 72 feet, situate in the city of "Weston, being part of the right bank of the West Fork river, title to which is adversely claimed by each of the parties to this litigation. Barnes acquired title, according to his contention, through his mother, who it is alleged took possession of the disputed, strip in 1878 and thereafter occupied it as part of lot number 17, conveyed to her in that year, though apparently the parcel
Whatever may have been the negotiations, if any, between the parties, it is clear that at no time did they discuss or agree on the consideration for the transfer of title. None is alleged in the bill, none is proved. The nearest approach to a discussion of the terms and amount of payment was on one occasion a suggestion by Barnes, in the nature of an offer, that $25 or $30 would be a reasonable compensation for the parcel of land, and on another occasion many years thereafter a like suggestion of $50, but as to which Barnes stated only that Cole “offered no objection” to the sufficiency of the proposal. But manifestly a failure to object, when no duty required Cole to speak, can not be deemed the equivalent of an acceptance of a price proposed for the conveyance of real estate. For to effect a valid contract of sale the minds of the contracting parties must meet on every element deemed
The most potent reason for declining to require Cole to perform the contract was the failure to aver and prove its execution and validity. Barnes assumed the burden of showing a positive and definite agreement. He and Cole alone testify as to the agreement relied on. But no testimony reasonably could be more adverse or inconclusive. Barnes affirms and Cole denies, each of them being equally positive; and, as we must assume, they are' entitled also to the same degree of credibility. Hence, the conclusion seems unavoidable that, by reason of the indefiniteness as to the factum of the agreement, the uncertainty of its terms, and invalidity for want of the essential element as to price, the contract, if made, has become wholly unenforceable.
Was the injunctive relief granted based properly upon the doctrine of estoppel, or upon any other valid ground warranting relief by that process? Apparently, every averment of the bill made with any degree- of perspicuity or definiteness to show or tending to show a purpose or intent by Cole to mislead or deceive, or that virtually or effectively he did mislead and deceive, Barnes to his prejudice and injury, directly relate to and were predicated-upon the alleged contract of sale. That agreement and Cole’s conduct respecting it the bill made the sole foundation for the equitable estoppel relied on by plaintiff, and the basis for relief by the award of the injunctive process. It was founded, and finds support,
An equitable estoppel can not be predicated upon any conduct of Cole in respect to a non-existent agreement, to which were directed the pleadings and proof. But, as Barnes did aver and prove long continued possession and improvement of the river bank, and payment of taxes on lot 17 under a misapprehension that the bank was a part of that lot, we may properly inquire whether Cole did or said or refrained from doing or saying anything that might furnish a basis of an equitable estoppel foreclosing his right to prosecute the action at law enjoined by the decree. A percursory review of the case may seem to warrant the conclusion that the facts proved were sufficient to give rise to such an estoppel. But, granting all that Barnes claims apart from the alleged agreement, by what conduct has Cole estopped himself from asserting title to the property in question? The constituent elements of an operative estoppel, as defined by Railway Co. v. Walker,
No misrepresentation or concealment was traced to Cole. Apart from the alleged contract of sale, he did not say anything that could mislead or deceive. Nor is it at all clear in what respect his silence reasonably may have that effect. Every fact regarding the status of the Cole title was equally well known to Barnes and Cole. Of that status neither of them possessed any information unknown by the other. If Barnes continued to occupy and improve the property, with knowledge of the outstanding adverse title, which, though at first it may have been fictitious or spurious, he knew would, by operation of the staute and payment of taxes, in time become consummate and absolute, and especially if such possession was merely permissive, as Cole contends, upon what reason or authority in such circumstances can it be said the latter is estopped in equity to claim the benefit of his title? No valid reason seems obvious or apparent, and the authorities deny that effect when based on mere silence unless some imperative duty required the owner to speak. Silence does not estop where the means of knowledge are equally available to both parties and both knew, or the party claiming the benefit of the estoppel knew, the actual status of the title. Williamson v. Jones, 43 W. Va. 562; 10 R. C. L. 781, 783; Crest v. Jack, 3 Watts 238, 27 Am. Dec. 353; Goodson v.
Reversed, injunction dissolved, and hill dismissed. ■