delivered the opinion of the court.
This was an action of ejectment, brought in the Randolph County Circuit Court, for the northwest fourth of the southwest quarter of section eleven, township fifty-three, range sixteen, lying in said county. The defendant answered, denying plaintiff’s right to the land, and for a defense stated that on a given day he sold to plaintiff the land mentioned in the petition, and made, or attempted to make, a conveyance for the same, and supposed that he had properly conveyed it to plaintiff; that in a short time thereafter, being on the eve of leaving the State, the plaintiff sued him by attachment for the price of the land in controversy, alleging that the defendant had not conveyed the land in his said deed; that thereupon he paid plaintiff the amount claimed in the attachment suit, and kept and retained possession of the land. The deed and the record of the attachment proceedings, together with the receipt showing payment by the defendant, were all given in evidence. The Circuit Court gave judgment for the plaintiff, which was affirmed on appeal in the District Court, and the case is now brought up for revision.
It is contended by the counsel for the defendant that the judgment should be reversed for two reasons: first, because the deed by which the plaintiff sought to maintain title to the premises was .void for uncertainty; secondly, on the ground that the plaintiff, having disclaimed the title on account of the alleged defective conveyance, and brought suit for the purchase money and recovered the same, was estopped from setting up any further claim to the land. The deed purports to convey the defendant’s farm,' consisting of three hundred and thirty-two acres. The land is divided and described'by legal subdivisions, according to the United States surveys, and includes seven distinct tracts. The only designation in the deed which would include and convey the forty-acre tract sued for is as follows: “the southwest quarter of section eleven, containing forty acres.” This description, by rejecting the quantity of acres, would pass the title to the whole quarter-section. That such was not the intent of the maker of the deed is demonstrable, from the fact that one of the other
As to the second point arising out of the estoppel, the law is well established in this court, and the ruling has been uniform. (See Taylor v. Zepp, 14 Mo. 482 ; Newman v. Hood, 37 Mo. 207 ; Chouteau v. Goddin, 39 Mo. 229.) In discussing the subject of estoppel, Lord Denman, in Peckard v. Sears (6 Ad. & El. 475), says that the act of the party which induced the opposite side to act must be “willful.” He remarks: “Where one, by his -words or conduct, willfully causes another to believe in the existence-of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” In commenting on this definition of an estoppel, in a subsequent case (Freeman v. Cook, 2 Exch. 654), Parke, B., said that the rule laid down in Peckard v. Sears was “to be considered as established, but that the term ‘ willfully ’ must be understood, if not that the party represents that to be the truth which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man’s real meaning may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it, as true, the party making the representation would be equally precluded from contesting its truth.” In the present case the plaintiff alleged that the defendant had not conveyed to her the land which is here in issue. In pursuance of that allegation, she commenced a suit for the purchase money, as for a failure of consideration. The defendant, relying on her assertions and representations, paid her back the money, and took a receipt therefor. He changed his condition— he acted at her instance — and there would he no justice in allowing her now to aver anything contrary to her solemn action, and to his detriment. To hold otherwise would be sanctioning wrong. It would be to permit a party, at his convenience and will, to repudiate a contract, and compel the other party to deliver up
Rut it has been argued here that there is nothing to show that the attachment suit and the money refunded was for this specific piece of land. This position is not borne out by the record. It is abundantly clear that the land for which this action was brought was the only tract about which there was ever any controversy. It was treated so by both parties; and the plaintiff, when she made a demand for it, made a solemn admission as to its identity. She has got a full, perfect, and complete deed of conveyance for all the balance of the land sold; and it is shown by the record that no other land was in dispute between the parties.
I think the judgment should be reversed. Judge Rliss concurs. Judge Currier absent.