35 Tenn. 373 | Tenn. | 1855
delivered the opinion of the Court.
Morgan & Co., obtained a judgment for about
The case made out is, that a short time before the attachment, the said Benjamin had sold verbally, a negro boy named Sam, to his son, the said J. S., for $900, but the title was withheld by express- stipulation until the money was paid. Tom was afterwards exchanged for Sam, under the same contract. Possession was delivered under this contract, and so remained with J. S. until attached. No part of the $900, has been paid, and the title of the complainant is clear, unless he is estopped from the assertion of it, by signing the said .bond for the delivery of the slaves and other property, or the attending circumstances and consequences. This is the only ground of defence, and that failing the complainant must succeed.
Does this estop B. Decherd from asserting the truth as to his title, to the boy, Tom? or, is he concluded by the bond? There is no express acknowl-edgement in the bond, that the property belonged to the defendant in the process, J., S. Decherd, but it is only recited that it was levied on “as” his property. That is no contradiction of the right now set up. The covenant is, that the said property shall be forthcoming to satisfy such decree as may be made. From the performance of this covenant, a Court of Equity may discharge him, upon a proper case made out. But it is argued, that if this be not a case of estoppel by deed, it must under the circumstances, operate as an estoppel in pais. A much broader range has been given to the doctrine of estoppel in pais, by the recent decisions both in England, and in this country, than that which formerly existed.
This doctrine has been guarded with great strictness, because an estoppel may exclude the truth. No one shall be deprived of setting up the truth, unless it is a direct contradiction of his former allegations, or acts, and if so, where this rule applies, he is estopped. 1, Gr. Ev. 26.
In Dazell vs. Odell, 3 Hill, 219, Judge Brown holds, that to constitute an estoppel in pais there must be, “ 1st, an admission inconsistent with the evidence which is proposed to be given; or the title or claim proposed to be set up: 2d, an action of the other party upon such admission; and 3d, an injury to him by allowing the admission to be disproved.”
According to these principles, can it be pretended that B. Decherd has done anything to preclude him from the benefit of asserting the truth in relation to his title to Tom? We think, most clearly not. He has in no way admitted the title to be in his son, as the bond only states, that he was levied on “ as the property of J. S.” It is no contradiction of this, to contend that the sheriff was mistaken in the ownership. Here there is no admission inconsistent with the claim now set up; and so the first requisite of an estoppel in pais, according to the above analysis, does not- exist; neither does the. second, as no act or admission has been done or made by which any
At the time of executing the bond, he did not conceal his claim, or remain silent, but asserted it.
The levy was not the consequence but the cause of' the execution of the bond. The cause might be different and fall under the operations of the principle, if any admissions, or declarations, or acts of B. Dech-erd, had produced the action of the officer, and injury would result to the other party, from permitting him to set up a right in conflict with such admissions, &c. It is said in argument, that other steps could have' been successfully taken to secure this debt, if it had not been for the reliance upon this property. That was the risk of the party, and cannot change the principle or defeat an opposing title.
This case then, we think, presents the simple question, whether the execution - of an ordinary delivery bond, either as principal or surety, by one whose property is levied upon, under an execution, or attachment, against another, estops him from the assertion of his right? And we think, it does not. Such bond is required by law, and must be given, or the property surrendered; no matter how clear the right of the party may be. It does not stand upon the same ground, as to its effects, or consequences upon the party, as if it were freely and voluntarily entered into without legal compulsion. In such a case, something more than the mere execution of a delivery bond, is necessary to raise the conclusive legal presumption
The case of Helm vs. Wright, 2 Hump. 75, is much stronger than the present. There, the delivery bond recited that the property levied upon, was that of defendant in the execution; here, there is no such statement; but it is, that it was levied upon “as the property of J. S. Decherd.” Relief was given by reforming the bond, on the ground, that such recital was not noticed by Helm, and signed by mistake, and thereby saving the party from the estoppel in his suit, for the property. The case before us is very similar to that, except the distinction before stated, and that difference in favor of the case under consideration. The Chancellor in this case, based his decree upon the ground of mistake, which might well be done in view of the facts. Rut without that, his conclusion was right on the other grounds we have stated.
There is then, in this case, no estoppel in deed or in pais, and the complainant having clearly established his title to Tom, the decree in his favor will be affirmed.