86 Wis. 200 | Wis. | 1893
It is pretty clearly established that the father, Ohislain, raised $800 by mortgaging his farm, and then, through the agency of his daughter, Mary, purchased the property in question for*himself, but with the purpose of leasing the same to his son, John, and thus starting him in the hotel business, as mentioned in the foregoing statement. Soon after the property was so purchased, the father procured an insurance thereon for his own benefit. The lease was given, as stated, and is in the ordinary form. The lease runs to the son directly, and to no one else. By its terms the son was expressly required to keep the prop- . erty leased in repair, and was expressly prohibited from underletting the same without the consent of the father; and the father was thereby expressly authorized to terminate and cancel the lease, and to take the property covered by it from the possession of the son and from the hotel, upon any failure of the son to pay the rent at the time expressed in the contract, or in case he should underlet the property so leased without the consent of his father. The father did enter and take such possession of the prop
Counsel for the plaintiffs contend that the father is es-topped by his conduct from claiming the property, independent of the lease. Certainly, the father, as lessor, lost
The only other matter calling for consideration is the fact that at the time the father, through the agency of his daughter, Mary, bought and paid for the furniture and goods to be placed in the hotel and to be leased to the son, the son was present and selected the same. The good faith and genuineness of the whole transaction, so far as the father is concerned, are abundantly established by the evidence and findings of the court. The mere fact that such purchase was made by the father just before giving the lease gave the son no more right to dispose of the property than if the father had owned the property for months or years prior to giving the lease. The father neither said nor did anything to mislead the plaintiffs or either of them, or to induce them or either of them to give credit to the son. The case is entirely unlike one where the person in possession of chattels or goods is clothed with the apparent authority to sell and give an absolute title to the property. We must hold that such mere presence of, and selection by, the son, at the time of the purchase, and his subsequent possession of the property so purchased, under and by virtue of the lease, did not estop the father, as lessor, from claiming the property, as against the son’s subsequent creditors and mortgagees. We fully recognize the equitable rule invoked by counsel for the plaintiffs, to the effect that he who has been silent as to his alleged rights when he ought, in good faith, to have spoken, shall not be heard to speak when he ought to be silent. That doctrine, however, always presupposes mistake or error on the one side, and fault, deceit, or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage. In the case at
By the Ooiort.-— The judgment of the circuit court is affirmed.