66 Miss. 258 | Miss. | 1889
delivered the opinion.
There can be no denial of the doctrine of “ election,” as an established rule of law, but, like its theological namesake, it is held and applied with many variations by the hundreds of cases, in
The presumption must be indulged, in accordance with the fact, that every question before the court is carefully examined, and considered, by the help of counsel, in their arguments and citations, and that the court, with all the light obtainable by the efforts of counsel, and its own, solemnly adjudicates the question involved, upon grounds satisfactory to it, whether cases are cited or reasons stated in its opinion or not.
“ Circumstances alter cases,” and the circumstances of this case distinguish it, materially, from each case, so confidently relied on by counsel to show our error, and from every other case among the hundreds to be found illustrating the various phases of the doctrine of election.
This case does not present the instance of a distinct and unequivocal act evincive of a choice by Mrs. Madden to accept the money in lieu of the land. Having joined her husband, against whom the condemnation proceedings were instituted, in an appeal, and advised that her appeal would be dismissed, as too late, she interposed her claim to the money awarded to her husband, by' making affidavit in the attachment suit against him. There were then pending two proceedings by her — the appeal, and the claim in
During this time she was in possession of the land, manifesting, unmistakably, her determination to hold it against the claim of the railroad company. Where is the evidence of a choice by Mrs. Madden between the money and the land ?
If it were true that her making claim to the money was a decisive • election, where is the evidence that she made this claim, knowing the void character of the condemnation proceeding, and knowing her rights in the matter, without which it would not conclude her ?• But counsel says, the law imputes to her knowledge of the voidness of the proceedings, and affects her with knowledge of her rights in the matter, and, therefore, she must be held to have made her election, with all its consequences. Not so thought Cooley, J., in Potter v. Brown, 50 Mich. 436, whose language, applied mutatis mutandis to this case, is, “ It is enough for present purposes to say that we do not think (the company) should be suffered to take advantage of such inconsistent or foolish action of complainant (appellant) as its original fault in wrongful condemnation proceedings has led her to take.” It will be seen that he does not cite “ authorities,” but speaking for a court, decides on its own authority, as a court should.
Nor did the supreme court of Massachusetts think the mere act of inconsistency afforded a conclusive presumption against the actor, when it said, speaking of' “election,” “But the doctrine * * * depends not on technical rules, but upon principles of equity and justice, and upon actual intention. An election made in ignorance of material facts is, of course, not binding, when no other persons’ rights have been affected thereby. So, if a person, though knowing the facts, has acted in misapprehension of his legal rights, and in ignorance of his obligation to make an election, no intention to elect, and, consequently, no election is to be presumed. This has been settled in England by a long series of authorities, of which it is sufficient to cite a few.” Watson v. Watson, 128 Mass. 152.
Nor did the supreme court of Pennsylvania, when in Anderson’s Appeal, 36 Pa. St. 476, it said, “ An election by matter in pais, can only be determined by plain and unequivocal acts, under a full knowledge of all the circumstances, and of the parties’ rights. One is not bound to elect until he is fully informed of the relative value of the things he is to choose between, and if he make an election before the circumstances necessary to a judicious and discriminating choice are ascertained, he will not be bound. These positions are clearly sustained by all the authorities, etc.”
And Kent, elarum et venerabile nomen, was of the opinion that to bind one by an election it must have been an intentional choice of one thing, instead of another, and that it must appear to have been with knowledge, and that where knowledge is not proved, it will not be presumed, in order to conclude a party by a supposed election. Dash v. Van Kleeck, 7 Johns. 477; Jackson v. Brownson, Ib. 227.
We could multiply citations, but it is needless. The truth is, principle is far more satisfactory than authorities, so called. “ Estoppel in pais only arises when manifest injustice and equity, as respects the interest of another, require its applicationand we look in vain for the justice or equity of the claim of the railroad company to hold Mrs. Madden to have elected the money, instead of the land, and we cannot discover that she had knowledge of all the facts and circumstances, which rendered the condemnation void, or of her rights, or of the consequences of her act. We know that she continued to occupy the land, and is not shown to have had any intention to surrender it for the money she claimed.
We grant, if she had received the money, and held it, she could not have claimed the land too. We accept the doctrine of election as sound (orthodox), and.will not.hesitate to apply it, as understood by the sages of the law, and by us, wherever - justice and
There are many cases illustrating and enforcing the rule that, 41 Where a party whose land is taken by a railroad company under the right of .eminent domain, and in whose favor damages are assessed, and deposited to his credit, who knows of irregularities in the proceeding, and receives the money, without objection, and ■sees the company construct its road over his land, cannot thereafter maintain any proceedings, on account of such irregularities, as by accepting the damages, he waives all right to object to the proceedings. He cannot have the money, and litigate with the company as to their right to occupy the land.” Herman on Estoppel, § 1041 ; and this we accept as sound doctrine, but, in every case ■on this subject, which we have been able to find, the money was actually received by the party, with full knowledge of all the facts, and then the party having the money thus received sought to avoid the condemnation proceedings. We have not found, counsel has not, and we do not' believe there exists in England or America, a •case presenting the features of this, in which the party situated as Mrs. Madden is, has been estopped to claim her land, because of her claim to the money, under the circumstances in which it was made.
/ She is not shown to have had any knowledge of the nullity of the proceedings, and this knowledge is not to be presumed, but must be shown, as the cases cited show. She continued to hold the land, against the claim of the railroad company, having actual possession, until it was forcibly taken from her tenant. The only thing she did, seemingly inconsistent with a claim to the land, was, to interpose her claim to the money attached by creditors of her husband, and this act, equivocal under the circumstances, was effectually neutralized by her continued possession of the land, in re
Election is a matter of intention. It need not be expressed in so many words, it is true, but it will not be implied, except from some unequivocal act evincive of it. Story’s Eq., § 1097,
It cannot be said that the appellee was misled by any act of the appellant, or that it took any action in consequence of the act of the appellant now invoked as an estoppel. It is a pure assumption that the company entered on the land because the appellant had claimed the money rather than in pursuance of the condemnation it had secured, and supposed to be regular and valid, as shown by its contention here on this appeal. Indeed, upon the doctrine of estoppel, the appellee was bound to regard its proceeding to condemn as valid, and the presumption must be indulged that it took forcible possession of the land, in pursuance of its supposed right because of the condemnation. Any other view of its action would be unjust to the appellee, and we would shield it from such an imputation.
Our former decision will stand•