136 Pa. 588 | Pennsylvania Court of Common Pleas, Warren County | 1890
Opinion,
The defence was a deed from plaintiff and her husband, to which the reply was, first, a denial of the making of any deed; and, secondly, infancy at the date of the alleged execution. To this second point, the defence rejoined acts of ratification by estoppel. The cardinal facts, therefore, upon which the jury had to pass, were the execution of the alleged lost deed, the infancy of plaintiff at that time, and the acts of estoppel.
As a married woman, the plaintiff could only pass her title in the statutory mode. A disability imposed by law cannot be set aside or evaded indirectly by acts of the party : Glidden v. Strupler, 52 Pa. 400; Grim’s App., 105 Pa. 375; Stivers v. Tucker, 126 Pa. 74. The learned judge, therefore, correctly instructed the jury that if defendant had not proved the making and acknowledgment of the deed as required by the statute, they need not go further, but should return a verdict for plaintiff.
The appellant’s third and fourth specifications of error complain that too strict a measure of proof was required as to the contents of the lost deed, and that proof of the certificate of acknowledgment alone was sufficient until the certificate was called in question. But the present contention would be more tenable if appellant had asked the court to say specifically that proof of the certificate was sufficient prima facie proof of the execution of the deed and of its contents, so far as they were recited therein. If the deed had been produced, it would have been necessary to show that it contained all the requisites for the conveyance of plaintiff’s title; and a party claiming under a lost deed must be held to proof of the same requisites: Krise v.
The disabilities of coverture and infancy are separate and independent, and the mere fact that they both occur in connection with the same act, does not give either of them any greater force than it would have had separately. If a deed duly acknowledged had been produced, it would have made an end of the question of coverture in the case, and proof of the deed to the satisfaction of the jury would be equivalent to its production. The statute makes no distinction between femes-covert of full age and those under age; its requirements are the same for all. If, therefore, the jury were satisfied that a deed had been made by plaintiff, the objection of coverture was avoided, and defendant had only to meet that of infancy.
The effect to be given to an infant’s deed was long the subject of controversy, but the decided weight of authority now is that it is voidable only; that the title passes by it, and remains in the grantee until some clear act of disaffirmance is done by the grantor after coming of age. The different views are discussed by Strong, J., in Irvine v. Irvine, 9 Wall. 617, 627, and the authorities are well collected in 10 Am. & E. Encyc. of Law, tit., “ Infants,” p. 649, etc. The law makes no distinction between the deeds of infants on account of sex; nor, as already said, is the disability of coverture made any greater or any different by the additional disability of infancy. They remain separate and distinct. The dictum of Chief Justice Gibson, in Schrader v. Decker, 9 Pa. 14, that the deed, “ being executed while the wife was an infant, is absolutely void,” must therefore be referred to the unsettled position of the law at that time. The modern authorities are clearly the other way. The cases also show that the infant may affirm his deed by much less formal acts than would be sufficient to avoid it, and clearly by any act which amounts to an estoppel: Irvine v. Irvine, supra; Wheaton v. East, 5 Yerg. 41; Bostwick v. Atkin, 3 N. Y. 53; Davis v. Dudley, 70 Me. 236; Wallace v. Lewis, 4 Harr. (Del.) 75; Tunison v. Chamblin, 88 Ill. 378, 386 ; Singer Co. v. Lamb, 81 Mo. 221. The iknowledgment and certificate, even if in the strict statu ' form,
The doctrine of estoppel in pais has been very much ex-' panded in modern times, particularly in Pennsylvania, where equitable principles are applied in actions at law. The cases are very numerous, but it is not necessary to refer to more than a few of them. In Woods v. Wilson, 37 Pa. 379, the subject was discussed by Chief Justice Thompson, and it was held that silence, in ignorance of one’s own right or of another’s expenditures, will not estop, but that mere silence, with knowledge, is evidence from which a jury may find an estoppel. See, also, Hill v. Epley, 31 Pa. 331, and Miranville v. Silverthorn, 48 Pa. 147. These decisions rest on the ground that the circumstances were such as to raise a duty to speak, and that failure to do so is either a fraud, or would work such an injury as would be equivalent to a fraud, if the party should not be es-topped. On the other hand, it was held as early as Buchanan v. Moore, 13 S. & R. 304, and Robinson v. Justice, 2 P. & W. 19, that positive acts of encouragement, or which help to mislead, will raise an estoppel, without any fraud and irrespective of the party’s knowledge of his own rights. And, as was
The present case belongs in the class of Woods v. Wilson, where silence, with knowledge of expenditures being made by the part3r in-possession, may be sufficient to create an estoppel. The learned judge put it into the other class, by charging the jury that there would be no estoppel unless the plaintiff encouraged the improvements. Into this he was no doubt led by plaintiff’s sixth point, that a married woman cannot be estopped by improvements made by the vendee, even with her knowledge and encouragement. This was properly affirmed as to knowledge and encouragement during coverture; but the same phrase, thus unfortunately suggested, was no doubt inadvertently carried into the answers to points relating to estoppel by conduct after the disabilities of coverture had ceased. This tended to mislead the jury into supposing that something more than mere silence, something active or positive on the part of plaintiff, was necessary to estop her, and, in so doing, it put a heavier requirement on defendants than the case justified. For this slip, in an otherwise clear and accurate charge, we are obliged to reverse the judgment.
Judgment reversed, and venire de novo awarded.