1 S.D. 563 | S.D. | 1891
This is an equitable action, brought upon the following alleged facts: In December, 1887, one Severson was the owner of a certain lot in the city of Madison in said Lake county, which respondent desired to purchase. While negotiations to that end were pending, respondent learned that there were outstanding and unsatisfied of record various judgments in favor of the Hoosier Drill Company against said Severson, procured by appellant, Soper, as attorney for said company. That for the purpose of ascertaining which of said judgments, if any, were really unpaid and of paying such if any as were not paid, respondent, in company with said Severson, applied to said appellant, Soper, as such attorney, and imformed him of his intention to buy said lot, and inquired of him concerning any unpaid judgments of said Hoosier Drill Company against Severson, at the same time telling him that he would not buy said lot until all of said judgments were paid and discharged; whereupon, in answer to such inquiries,' appellant, Soper, expressly stated to respondent that all of said judgments were fully paid, except one against one Davies and said Severson, amounting to about $37, and that, if that were paid, the said Hoosier Drill Company would have no lien or claim by judgment or otherwise against said Severson or against said lot. That, relying upon said statement and representation, he then and there paid the said Davies judgment to said appellant, Soper. That said representations were, to the knowledge of said Soper, false and untrue, and were made by him with a fraudulent intent. That in fact, as was well known to said Soper, and fraudulently concealed by him from said respondent, the said Hoosier Drill Company then had another unpaid j udgment against said Severson and one Burk, obtained by said Soper, as said attorney, which was a lien upon said lot. That, relying upon the truth of said Soper’s representations, the respondent, hfi ving paid th e said Davies j udgment, completed his purchase of said lot, and took a deed therefor
There is but one general question in the case, and that is, is the evidence such as to estop appellant, Soper, in equity from taking and enjoying the rights of a purchaser of this lot under the execution sale on the Burk judgment, as against -respondent Eickelbei-g? It is assigned as error, but not argued, that the court found that Soper was the attorney of. the Hoosier Drill Company up to and at the time of the alleged purchase of the lot. In the complaint it is alleged that Soper, as attorney for said company, obtained these various judgments against Severson, including the Burk judgment. The answer, while denying generally, admits the obtaining of the Burk judgment, but denies that he obtained it fraudulently only. The evidence upon the point of Soper’s relation to these judgments is not explicit, but does plainly show that he was recognized bj' all parties as the attorney in charge of these claims, who knew their amounts and condition, and to whom they might be paid. He determined and received the amount required to cancel the Davies judgment. Against this evidence in part of his own acts, he can hardly ask us to reverse this finding. To constitute an equitable estoppel there must be (1) a false representation or a concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to -whom it was made must have been ignorant, actually and permissibly, of the truth of the matter; (4) it must have been made with the intention that the other panty should act upon it; and (5) the other party must have been in-' duced to act upon it. Bigelow, Estop. (5th Ed.) p. 570. Substantially the same rule, more briefly stated, was laid down by Bronson, J., in the case of Dezell v. Odell, 3 Hill, 215, and