81 P. 382 | Idaho | 1905
(After Making Statement.) — Fleming, the appellant, relies upon the insufficiency of the findings to support the judgment allowing a lien against his property. It is very plausibly argued by his counsel that since the court found that appellant’s title was a matter of record, as appeared by the official records of the county, that such finding contradicts the findings to the effect that his actions and conduct in not notifying the plaintiffs of his title was such as to deceive
Professor Bigelow in his text on Estoppel, as found in 16 Cyc. 738, says: “A public record is an available means of information as to questions of title, and one who does not take advantage of it cannot claim estoppel against one who merely fails to furnish such information. There are, however, cases in which the representation, by actively misleading the person setting up the estoppel and preventing him from having recourse to available means of information, has been held to excuse his failure to inform himself of the facts, even in the ease of constructive notice by a matter of record.” It seems to be in harmony with the trend of authority to say that a person may rest upon the constructive notice which the record of his title imparts, and that he is under no duty or obligation to give any other notice to anyone who assumes to deal with other parties in reference to such property. He may remain silent and passive. (11 Am. & Eng. Ency. of Law, 2d ed., 435; Porter v. Wheeler, 105 Ala. 451, 17 South. 221; Bigelow on Estoppel, 594; Campbell v. Jacobson, 145 Ill. 389, 34 N. E. 39; McCormack v. James, 36 Fed. 14; Frazee v. Frazee, 79 Md. 27, 28 Atl. 1105; Thor v. Oleson, supra; Dameron v. Jamison, 143 Mo. 483, 45 S. W. 258; Griswold v. Boley, 1 Mont. 345.) But so soon as he becomes active, his actions, declarations and conduct with reference to the
If we should understand from these findings that the appellant simply remained silent, knowing that the plaintiff were working upon the property, without either informing them as to his title or making any statement or representation in the premises or performing any act that would mislead them, then we should undoubtedly hold that the findings are not sufficient to estop the appellant from asserting his title in this case. But it is our duty to give to the findings the most liberal construction the language used will justify in order to sustain the judgment founded thereon. (Breeze v. Brooks, 97 Cal. 72, 31 Pac. 742, 22 L. R. A. 256, 257; Warren v. Hopkins, 110 Cal. 506, 42 Pac. 986; People’s Home Sav. Bank v. Rickard, 139 Cal. 285, 73 Pac. 858; Paine v. San Bernardino Valley Trac. Co., 143 Cal. 654, 77 Pac. 659.) The import
The evidence is not before us, and we must therefore assume that it, in all respeets, supports the findings.
It follows from what has been said that the judgment must be affirmed, and it is so ordered. Costs awarded to respondents.