42 Wis. 610 | Wis. | 1877
It seems too clear for argument or doubt, that if the agent of the defendants knew, when he found the property in controversy at the depot at Wilson’s Station, that the mortgagors were endeavoring to obtain a loan of money on the property, with which to pay the freight, and concealed the fact of the existence of the Indiana mortgage for the express purpose of enabling the mortgagors to obtain such loan, the defendants are estopped from setting up their mortgage against one who, being ignorant of its existence, and being thus intentionally kept ignorant of its existence, advanced the money to pay the freight on the faith that the property was unincumbered and on the security of the property. Such a case is within the rule, that one who does not speak when, justice and fair dealing require him to do so, shall not be allowed to speak afterwards, to the prejudice of another who has been misled by his silence. And the case is much stronger where a person employs means, other than mere silence, to conceal the knowledge of a fact from one who proposes to act on the belief of its nonexistence, for the purpose of inducing such action.
This principle in the law of estoppel is elementary, and the books abound in cases in which it has been applied and enforced. The principle was stated by the late Mr. Justice Paine in Vilas v. Mason, 25 Wis., 310, as.follows: “ Where an owner of property stands by and sees a third party sell it as his own, without asserting his own title or giving the pur
The testimony of the defendant’s agent tends to show that he knew the mortgagors were seeking to borrow money on the security of the property with which to pay the freight; and that, for the purpose of enabling the mortgagors to effect such loan, he intentionally concealed the fact of the existence of their mortgage, as well ás the fact that he had been at 'Wilson’s Station at all. We do not say that those facts are proved, but only that the testimony tends to prove them. And because it so tends, the questions of fact upon which the estoppel depends should have been submitted to the jury, under proper instructions.
It is scarcely necessary to remark that it is quite immaterial that the agent of the defendants did not know that the mortgagors were seeking a loan from the plaintiff. It is sufficient if the agent knew that they were in the market for a loan wherever they could obtain it, on the security of the property. Acts of estoppel m 'pais, under such circumstances, are just as available to the plaintiff as the same acts would have been had the agent known that the mortgagors were negotiating for the loan with the plaintiff See cases on this point cited on behalf of the plaintiff.
Other questions were discussed in the arguments; but we find it unnecessary to pass upon them.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.
