By the Court,
Dixon, C. J.
We think, notwithstanding the ingenious argument of the counsel for the plaintiff, that the testimony of Foote, the deposition of Bowman, and the record of the action of Foote v. Clark, establish a clear case of estop-pel against the plaintiff and that the deposition and record should have been received in evidence. Especially do we think this of the deposition of the plaintiff contained in the *664record of Foote v. Clark. The argument against the estoppel is, that although the plaintiff represented to Foote and Bowman that Olark was the owner of the premises, jet, as he at the same time disclosed to them the relations existing between himself and Clark, showing that he was the trustee of an illegal or void trust, and that Olark had no interest which could be enforced either at law or in equity, there was in fact, and could have been, no deception. Hence it is urged, that if Foote, or his attorney Bowman, were misled, it was because of their own misapprehension of the law applicable to the facts, and not of the statements of the plaintiff that Clark was the owner, which, says the counsel, were but the statements of an erroneous conclusion of law, that ought not to have deceived any person having the same knowledge of the facts as himself. If this were so — if Foote and Bowman had been fully apprised of the facts showing that Clark had no interest, legal or equitable, in the contract, or the land, then we should not be much inclined to differ with the counsel. But we do not think that the plaintiff’s statements will bear this construction. On the contrary, we are of opinion that they are fairly susceptible of the opposite construction, that Clark’s interest was valid and binding ; and we think it more reasonable and just that they . should be so construed. Foote testifies that the articles, to recover the price of which the lien was filed and the action instituted against Clark, were bought by the plaintiff for Olark ; that the plaintiff represented himself as Clark’s agent, and said that he had taken the contract in his own name because, as he, Foote, inferred, Olark had been unfortunate and had creditors ; but that Clark was in fact the owner of the property. Bowman deposes that he was about to commence the action for Foote, and, learning that the contract was with the plaintiff, he applied to him to know who would be the proper parties defendant. The plaintiff informed him that he (plaintiff) “ had an in- ■ terest there for his services, but that he purchased the property for Harvey Olark, as his agent; that he took the property in his *665own name at tbe request of Mr. Clark. He told me that Harvey Clark was tbe owner of the premises, and he was building the mill for him, ánd that he, the plaintiff, had a claim for his services. The plaintiff was not made a party because he disclaimed any ownership ; said the property belonged to Harvey Clark, and desired me not to make him a party.” The deposition of the plaintiff in Foote v. Clark is still more explicit. After deposing to his agency, and that he bought the goods of Eoote for Clark, the plaintiff says : “ I was also the agent of said Clark some time previous to the month of June, 1858, and as such agent, and by authorhy derived from him, the said defendant, I purchased for said Clark the village lots I have just mentioned of the Wisconsin River Hydraulic Company, for the purpose of erecting said mill thereon, and upon which lots afterwards said mill was erected; and at the request of said Clark, I took a contract for a deed of the lots I have mentioned, of the said company in my own name, but for the use of Clark, and for the purpose I have stated.” He then proceeds to testify that he knows that Eoote sold the articles to Clark, and that they were used in the construction of the mill, &e. Thus we find him constantly affirming that Clark was the owner, and finally sanctioning that affirmation by the solemnity of his own oath. Honesty requires, as to Eoote and those claiming under him, that he should now be held to that - affirmation, unless, as is urged, Eoote, by himself or through his attorney, Bowman, was fully informed of the facts showing that Clark was not the owner. The tendency of the courts of late has been to favor the utility of the doctrine of estoppel, where injustice or mischief might otherwise ensue, rather than to retard or restrict it. Doe v. Oliver,—Duchess of Kingston's Case, 2 Smith’s L. C., 620, note. It is to be observed that the plaintiff did not exhibit to Eoote or Bowman the contract between himself and the Hydraulic Company; nor does it appear that it was accessible to them. He did not inform them how it was that Clark was the owner. He did not say to them that *666Clark was not named in tbe contract as tbe party beneficially interested; nor that bis interest was not declared by a separate instrument in writing; nor that tbe contract bad not been assigned to bim. Clark might have been in fact and in law tbe owner, in either of these ways ; and the statements of the plaintiff were not inconsistent with tbe supposition that be was. If we take bis statement to Foote that be was tbe agent of Clark, and that he took the contract in his own name because Clark was embarrassed, but that Clark was tbe owner, .and if this statement may be deemed inconsistent with the idea that Clark was named in the contract as the party to be benefitted, Still it is entirely consistent with the supposition that Clark’s title was evidenced by a separate instrument in writing, or that he had assigned the contract to Clark, which transactions were a secret between himself and Clark. There are many fraudulent and concealing debtors having sufficient skill and accuracy in the law to protect themselves by such measures; and the plaintiff seemed anxious not to lay open fully the relations subsisting between him and Clark. If he saw fit not to communicate the facts, but to rest his rights upon the broad assertion that Clark was the owner, he ought not now to complain that he was taken at his word. To have presented the question argued by his counsel, his declarations must have been full, clear and explicit, enough so to have raised the same question in a court of law. He could not, by disclosing in part and in part concealing the facts, evade the inquiries of Foote, and induce him to act under an impression which, whether intended or not, was certainly false, provided Clark was not in truth the owner, and then, when it is too late for Foote to remedy himself, turn around and take advantage of such false impression to Foote’s injury. The same observations are true of his declarations to Bowman. They were equally calculated to deceive and mislead, and it is difficult to perceive why he should not be concluded, the same as if he had disclaimed»in a court of justice. Again, if we look at the statement in the deposi*667tion in Foote v. Clark, we shall see that it involves tbe same implication that Clark was the lawful owner. He says he took a contract for a deed in his own name, lout for the use of Glarh. The proper, and, we think, the legal, interpretation of this language is, that the use was expressed in the body of the contract; and if so, the statute then and now in force (R. S., ch. 84, sec. 3) immediately annexed the use to the estate, and Clark became at once the equitable owner of the land and legal holder of the contract.
It seems to us, therefore, from every point from which the question can be examined, that the' estoppel was clearly established.
The question of the plaintiff’s adverse possession at the time of the conveyance from Foote to Kingsbury and Shorey, stands upon the same ground. If the plaintiff is estopped from denying the title of Clark, and his own agency, he is also estop-ped from denying the possession of Clark. Having entered as agent, and not in his own right, his possession was that of his principal; and he must be deemed as holding, not adversely, but in subordination to the title of his principal and those claiming under him. This principle of estoppel is fully illustrated by several authorities cited in Lawton v. Howe, 14 Wis., 247. The plaintiff, if he desired to claim adversely, should first have surrendered the possession acquired by him as agent, and then if he had entered, he could have done so.
Judgment reversed, and a new trial awarded.