Rising, C.
Appellant assigns for error that the court erred in rendering judgment in favor of the appellee. The consideration of the question raised by this assignment requires an examination of the pleadings with a view of determining the applicability of the evidence to the issues made. The first and second defense in the answer put in issue the ownership of the premises in controversy, and the third defense and cross-complaint, and the answer thereto, present (1) the question whether the conveyance from Clise to the plaintiff conveyed the prem*407ises to her in trust for the purpose of paying the debt secured by the trust deed to McCartney; and (2) whether the plaintiff is estopped by her acts from asserting title to the premises as against the defendant. There is no evidence tending to establish the trust pleaded.
Was the evidence sufficient to establish an estoppel ? In Patterson v. Hitchcock, 3 Colo. 533, and in Griffith v. Wright, 6 Colo. 248, the essential elements of an estoppel by conduct were held to be: First. There must have been a representation or concealment of material facts. • Second. The representation must have been made with knowledge of the facts, unless the party making the representation was' bound to know the facts, or ignorance of them was the result of gross negligence. Third. The 'party to whom it was made must have been ignorant of the truth of the matter. Fourth. It must have been made With the intention that the other party should act upon it; but gross and culpable negligence upon the part of the party sought to be estopped, the effect of which is to work a fraud on the party setting up the estoppel, supplies the place of-intent. Fifth. The other party must have been induced to act upon it.
It is contended by appellant that the third and fifth elements of an estoppel are totally wanting. The evidence tending to establish each of these elements is so connected that we will examine it as to its bearing upon both of these questions at the same time. While the testimony of the witnesses is somewhat conflicting, we think it clearly appears from a consideration of all the evidence that before defendant purchased the premises the plaintiff was fully advised by the defendant that she was talking about purchasing the premises from Olise, and that plaintiff did not then make any claim to them, but gave the defendant to distinctly understand that she was paying rent to Olise for the premises, and that Olise had the sale of the premises. Plaintiff also, being in possession of the premises, told the defendant that if de*408fendant bought them she would move out. These facts, with the further fact that it is well established by the .evidence that plaintiff had no equitable right to the premises, and that she was occupying the same as the tenant of Olise, and that Clise was the actual owner, leads us strongly to believe the testimony of the defendant, although denied by the plaintiff, as to the direct representations of the plaintiff that the premises once belonged to her, but that she lost them on account of a mortgage, because the statement, if made, would accord with the facts as shown by the evidence. It appears from the evidence that the defendant employed attorneys to examine the title to the premises, and that she acted on their advice; but it also appears from the evidence that she would not have purchased the premises if the plaintiff had made any claim to them, and this evidence is in no manner contradictory to the assertion that she acted on the advice of her attorneys. She might have reposed implicit confidence in the advice of her attorneys as to the condition of the title, and still have refused to take the property with threatened litigation. We think the evidence is sufficient to show that defendant would not have purchased the premises had the plaintiff made known to the defendant that she made any claim to them.
The doctrine of estoppel applicable to this case is so well stated in Hill v. Epley, 31 Pa. St. 331, 334, that we quote therefrom: “ The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up. Thus, if a person positively encourage another to purchase either land or a chattel, he cannot afterwards assert any title in himself to the thing purchased, and this though he may have been ignorant of his rights when *409he gave the encouragement. Bor though, in the latter case, there may have been no fraudulent intent, yet the assertion of his title would operate as a fraud — as much so as if there had been a fraudulent purpose. Besides, the equitable principle is that when a loss must befall one of two innocent persons, that one must bear it through whose act it was occasioned. It seems also to be well settled that silence in some cases will estop a party against speaking afterwards. Thus, if one suffers another to purchase and expend money upon a tract of land, and knows that the other lias a mistaken .opinion respecting the title to it, and does not make known his claim, he shall not afterwards be permitted to set up a claim to that land against the purchaser. His silence then becomes a fraud. But silence without such knowledge works no estoppel. ” In the case under consideration the plaintiff, knowing that defendant was about to expend her money upon the premises then occupied by the plaintiff, not only remained silent as to any claim she had thereto, but, by her conduct, positively encouraged the defendant to so expend money, by making the statement that she was paying rent therefor to Clise, and by her willingness to give up the possession in case of a sale by Clise to defendant; and by this conduct she is estopped from asserting any claim to the premises known to her or which should have been known to her at the time of the purchase by the defendant, unless the defendant had knowledge of the true -condition of the title to the premises, or the same means for ascertaining the true state of the title that plaintiff had.
It is urged by counsel for appellant that the deed from Clise to the plaintiff being of record at the time defendant purchased the property, her means for ascertaining the true state of the title thereto were equal to the plaintiff’s opportunities in that respect, and that the rule that “where the condition of title is known to both parties, or both have the same means of ascertaining the *410truth, there can be no estoppel ” (approved in Patterson v. Hitchcock, 3 Colo. 533-537), must be applied, so that no estoppel may arise from the conduct of the plaintiff. We do not think the facts of this case bring it within the rule relied upon, in that they do not show that the plaintiff and defendant both had the same means for ascertaining the truth. If the record did not disclose the true state of the title, the plaintiff knew, or should have known, that fact; and in so far as she knew, or should have known, of any fact relating to the title, not disclosed by the record, she possessed knowledge, or the meqns for the acquirement of knowledge, not possessed by the defendant. The court below found as a fact in the case, and the evidence is sufficient to warrant such finding, that the deed from Samuel Birch to Clise was made for the purpose of vesting in his wife, the plaintiff herein, only such right or interest in the premises as said Birch had, and subject to the right of said Clise in said premises, and that the deed from Clise to the plaintiff was made for the same purpose and subject to the same right of said Clise, and that the plaintiff took said deed with full notice of all these facts and of the rights of said Clise, and that she paid no consideration for said'deed. These findings of the court show conclusively that the record of the title did not disclose all the facts relating to the title to said premises, and that the facts not disclosed by the record were known to the plaintiff at the time when it is said she made the representations in relation to her rights, and from which facts it clearly appears that the true condition of the title was not equally well known to the plaintiff and to the defendant, and that each did not have the same means for ascertaining the truth in relation thereto. The case of Griffith v. Wright, 6 Colo. 248, 251, clearly recognizes the principle that a record is only constructive notice to a purchaser, and that having such notice a purchaser would be put on inquiry. In the case at bar the party sought to be estopped is the *411party to whom the purchaser should apply for information.
From the views herein expressed it follows that the plaintiff is by her conduct estopped from asserting title to the premises against the defendant. “This conclusion renders any further consideration of the case unnecessary.
The judgment should be, affirmed.
Stallcup, C., concurs. De France, C., dissents.
Per Curiam.
For the reasons assigned in the foregoing opinion the judgment is affirmed.
Affirmed.