75 Mo. App. 494 | Mo. Ct. App. | 1898
At the trial the plaintiff testified that at the time the plaintiff’s mortgage was executed he said to defendant: “Will, you pay for writing this up; I’ll have to pay for having it recorded,” and that to this the defendant replied: “H — 1, Prank, you know nobody ain’t going to give, anybody else a mortgage on this property and there is no use in recording it;” he, defendant, “just remarked that there was no use in having it recorded,” and “that the old man wouldn’t give
If the defendant’s father, after the" said assurance had been giveh, executed a second mortgage to the defendant, this did not form the ground of an action or
There is no pretense that the defendant’s mortgage is fraudulent and void, but it is insisted though it was recorded before that of the plaintiff that the lien thereof was postponed to that of the latter, because had it not been for the misrepresentation of the defendant it would have been first recorded; or, in other words, that the defendant, in the face of the assurance given by him and on which the plaintiff was induced to rely, ought to be estopped as against the latter to claim priority under his mortgage.
The ground upon which an estoppel in pais proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. Herman on Estoppel, sec. 944. But the difficulty here is that though there was misrepresentation the same did not, for the reasons already stated, constitute a fraud. Statements looking to the future and not coming to a contract are not within the cognizance of the law. Even equity will not relieve in such cases. Bigelow on Fraud, 476. It follows from what has been said that the plaintiff’s said testimony did not tend to establish fraud and therefore there was no ground upon which to base an estoppel. But even if the evidence had been admissible to establish an estoppel in pais it could not have been admitted.
The plaintiff’s instructions in the abstract were correct but in the concrete incorrect. That of the defendant to the effect: “Although the defendant suggested to plaintiff that it was not necessary to record plaintiff’s mortgage, and stated to plaintiff that he, plaintiff, knew that the mortgagor would not give another mortgage on the property mortgaged to plaintiff, and that the plaintiff being influenced thereby, acted upon said suggestion and withheld his mortgage from record, such facts do not estop the defendant
It results that the judgment must be reversed and cause remanded.