30 Mo. 28 | Mo. | 1860
delivered the opinion of the court.
The instructions given for the plaintiffs in this case were not, in our judgment, calculated to lead to a proper adjustment of the controversy.
The first instruction is a mere abstraction, outside of the facts in evidence, and tending to throw no light upon the questions really contested. The legal principle asserted is undoubtedly correct, but it has a tendency to withdraw the investigations of the jury from the defence which is relied on. The case was not one of a proprietor taking possession
The second instruction is directed to the questions at issue, and the general proposition asserted in its first clause may be conceded to be correct. The objection to this instruction, as well as to the three instructions which immediately follow, is, that they select detached facts, and pronounce each separate fact insufficient in law to sustain the defence, without determining upon their effect as a whole and continuous, connected transaction.
To understand the points of law presented by the record, it is necessary to refer to the main facts, which appear to be these. Jeremiah Conner may be considered the original owner of the common field lot or forty arpent lot, concerning a portion of which this dispute has arisen. In November, 1821, Conner conveyed the west half of this lot to Col. O’Eallon, and in June, 1824, the east half was conveyed to one Fry, who immediately took possession of his half and enclosed it. The plaintiffs purchased from Fry’s administrator in 1825 or 1826, and a deed was made to them in 1827. In 1828 or 1829 they put up in place of Fry’s fence a more substantial and permanent enclosure, made of posts and rails — the posts being of cedar. In 1824, O’Fallon conveyed one arpent on the east end of his half of the forty arpent tract to Judge Lucas — the sale having been made a year or two before this. O’Fallon conveyed to the Finneys about ten arpens in 1831, west of and adjoining to the one arpent previously sold to Lucas. The sale to the Finneys had taken place two years before the deed was made, and they had en
Upon this state of facts, it is apparent that the mistake made in the original survey, or practical location of the plaintiffs’ lot, has occasioned a loss of one arpent or' more to the plaintiffs or the defendant; and the question substantially is, who must bear this loss ?
In Rockwell v. Adams, 7 Cow. 761, it was said: “It is not necessary, in order to make an actual practical location
In Dibble v. Rogers, 13 Wend. 539, it is said that long acquiescence in an erroneous location would authorize the jury to find that the plaintiff had agreed to a location different from that given by his deed; and, whether he knew his rights or not, such location and acquiescence would conclude him.
The plain and simple principle of natural equity, which lies at the foundation of these New York decisions and constitutes, in truth, the main reason for the various modifica, tions of what have been termed estoppels in pais, is that, where a man misleads another by his acts or words, so as to occasion an expenditure of money on the part of the latter, the former will not be allowed to change his assertions or claims to the detriment of the person misled. It is a practical fraud, although no fraud may be intended, to permit this to be done.
Two circumstances in the present case seem to be relied
In what respe'ct would proof of a positive agreement, between Lucas and the plaintiffs, as to the erroneous division line between them, have altered the case ? If the plaintiffs fixed the line and the defendants acquiesced in it, how could the plaintiffs bind themselves more effectually ? A positive agreement might place the defendants under stronger obligations to abide by the line if it had been their interest to disturb it, but it is hard to see how the plaintiffs could do more than they have done. If they had communicated with Judge Lucas in person and informed him of what they had done, and their reasons for so doing, and pointed out the fence on the western end of the enclosure as their line, would the case have been at all changed in any material point ? A man’s actions are generally more relied on than his declarations.
It would be strange if the failure of Judge Lucas to enclose this ground, purchased as it seems to have been for the very purpose of being left open, should have the effect of depriving his representatives of a defence to which, under other circumstances, they might be entitled. We, of course, have no reference to the effect which an enclosure by a fence would have had upon the case considered with respect to the statute of limitations. We are considering the case solely with reference to the effect of the acts and declarations of the plaintiffs upon the defendant’s rights. In this point of view, of what use would a fence have been to Lucas ? How would the case have been altered ? The only purpose a fence or enclosure could serve would be to apprise the Lindells that he (Lucas) claimed the lot. But may not the knowledge of the defendants of this fact be proved by other circumstances as well ?
The fact which, in our judgment, has the most significant bearing upon the decision of this case, is the total loss of the
The judgment is reversed and the case remanded. The other judges concur.