| Ill. | Apr 15, 1865
delivered the opinion of the Court:
This was an action of ejectment, for the recovery of a strip of land in the N. E. qr. of sec. 34, T. 39 N. R. 4 E. Both parties claim from Samuel Ellis as a common source of title. Plaintiff produced a regular connected chain of title to the premises in controversy. And a recovery was opposed upon the ground that Ellis and those claiming under him, were estopped by matter in pais from asserting title. The doctrine of estoppels in pads, at this day, ^eems to be that they are equitable and not legal, when they relate to real property. An estoppel is defined to be an impediment or bar to the assertion of a right of action arising by a man’s own act, or where he is forbidden by law to speak against his own act. It extends to and binds privies in blood, privies in estate and privies in law. Co. Litt. 352, A. Lord Coke says, that every estoppel, to be binding, ought to be reciprocal, and should bind both parties, and for that reason a stranger shall neither take advantage of, nor be bound by,- an estoppel. That ’iecause it concludes a man from alleging the truth it must be certain, to every intent, and must not be taken by argument or inference. That every estoppel ought to be a precise affirmation of that which creates the estop]: el, and not by way of recital, lb.
It then follows from this rule, that mere loose expressions inadvertently made, in ignorance of the party’s rights, or declarations ambiguous in their character, can not create a bar to the assertion of the truth. And it is a well recognized rule that declarations, which were not acted upon, can never operate as an estoppel. They are said to be odious to the law, and it is for the reason that they prevent the assertion of the truth. They are only sanctioned to prevent the perpetration of fraud and to effectuate justice. When a party stands by and sees another acting to his injury, and the owner declares that he has no claim, equity will not permit him afterwards to assert his title to the injury of the person he has thus misled. And cases may be found where mere silence, by the true owner being present and failing to assert his right, when he sees a person purchasing the property, has been held to create an estoppel. But to operate as a bar to the assertion of his right, the acts of the owner must contribute to the injury of the person relying upon the bar, before he can be estopped.
Mere declarations to strangers, unless communicated to, and acted upon by, the party will not operate as an estoppel. And, generally, when the avenues of information are equally open to both parties there will be no bar. Mor is the party holding |ho title bound to seek the other and inform him of his rights, when he is in no default. The owner of land having his title duly recorded, has given all the information to the purchaser which the law requires. So, a person in the actual occupancy of his land, gives thereby all the information of his claim which is required, unless specially interrogated. In case, however, he was not in possession, or his title was not recorded, it would be different.
In the case at bar, plaintiff’s title was on record, and it was the duty of persons desiring to purchase, to examine the title of record, and the presumption is that such was the case. If so, they were fully informed that Samuel Ellis or any persoff through whom defendant derives title, never attempted to convey this strip of land. Hor does it appear that any person through whom defendant’s title passed, was ever misled, or induced to believe, that they were acquiring title to these premises at the time they purchased. They all purchased by metes and bounds, and acquired all the land they purchased. And by what pretense it can. be insisted that those claiming adversely to plaintiff have ever been wronged by any declarations made by Samuel Ellis, is beyond our comprehension. When they have no conveyance for the land, have never contracted for its purchase, and never paid anything for it, we are unable to perceive how any fraud has been committed by Ellis in his life time. It is true, that this strip adjoins the land purchased by defendant in error, but that does not give him title even if Samuel Ellis did say to some person that he had no claim to the land. Titles to land are not so fleeting as tobe acquired or lost with such facility. There is more stability in our tenures, than warrants a divestiture by such slight and trifling acts by the owner. That requires more solemn and deliberate action.
Had the acts which were proved, constituted an estoppel, it would have been simply an equitable right, incapable of assertion in a court of law. Wales v. Bogue, 31 Ill. 464" date_filed="1863-04-15" court="Ill." case_name="Wales v. Bogue">31 Ill. 464. There can be no pretense that mere oral declarations can ever transfer the legal title, and equitable title and demands are not cognizable in a court of law. Even if this were such an estoppel as defendant claims, the legal title is in Ellis’ heirs or grantees. After a careful examination of the adjudged cases, we are unable to find that such estoppels can be made available in a court of law. Estoppels relating to real estate, so far as we can find, have been uniformly enforced in courts of equity, and usually by injunction. And this is manifestly in accordance with the analogies of the law. Legal rights of action or defense are allowed in courts of law, whilst those which are equitable are alone cognizable in a court of equity. Equitable titles created by parol, and not within the statute of frauds, can only be enforced in a court of chancery. If such an estoppel operates to transfer title, or to produce that effect, it is upon the principle that an equitable estate has been created and not that the legal title has been transferred.
In some cases verbal sales of land are taken out of the statute of frauds, for the purpose of preventing the statute from being used for the perpetration of the fraud it was designed to prevent. So of estoppels relating to the title to land, if the owner does by parol that which operates as a fraud and injustice upon another dealing with the property, equity will not permit him to consummate his fraud by the assertion of his legal title. In Cochrane v. Harrow, 22 Ill. 345" date_filed="1859-04-15" court="Ill." case_name="Cochran v. Harrow">22 Ill. 345, this court held, that where a person stands by and permits another to purchase land to which he had title and failed to make it known, such a failure to assert his rights constituted an equitable estoppel. But an estoppel can never be allowed where it would itself perpetrate fraud, work injustice, or fail to protect the innocent. In those States, however, where equitable rights are regarded and equitable relief administered in their courts of law, estoppels are allowed to be asserted in such courts, and their decisions would not apply to our system of jurisprudence.
The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.