Richardson v. Chickering
41 N.H. 380
N.H.
1860
Check Treatment
Nesmith, J.

Thе question involved in the first instructions given by the court to the jury in this case has been too often settled to be now considered open for argument or adjudication. If lot number twenty was originally located by boundaries marked upon the ground, or subsequently thus located, and recognized as correctly located for more than twenty yeаrs by all parties in interest, including the plaintiffs themselves, that location must prevail rather than the description сontained in the original laying out; and the actual lines and monuments, marked upon the ground, must control the courses and distances named in the original laying out. This rule of construction was recently considered and recognizеd by the court in Hall v. Davis, 36 N. H. 569; Hanson v. Russell, 28 N. H. 111; Colby v. Collins, 41 N. H. 301; Berry v. Garland, 26 N. H. 473; Clough v. Bowman, 15 N. H. 504; Prescott v. Hawkins, 12 N. H. 267; Day v. Enfield, 11 N. H. 525; White-house v. Bickford, 29 N. H. 479; Hobbs v. Cram, 22 N. H. 130; Fellows v. Sawyer, 26 N. H. 107; Brown v. Gay, 3 Gt. 126; Esmonds v. Tarbox, 7 Gr. 61; Thomas v. Patten, 13 Me. 329; Clark v. Withey, 19 Wend. 320; Slater v. Rawson, 1 Met. 451. Recently, in New-York, the court, in reviewing the authorities on this subject, confirmed the old doctrine that a party is precluded, upon principles of public policy, from setting up or insisting upon a boundary line in opposition to one which has been steadily adhered to, upon both sides, for more than twenty years; and, in detеrmining boundaries under a grant, natural objects as *385landmarks are to be considered as binding ‍‌​​‌‌​‌​​‌​​​​‌‌​‌‌​‌‌‌​​​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​​‍before courses and distances. Baldwin v. Brown, 2 Smith (N. Y.) 359; 7 Cush. 375.

The principle of estoppel we believe to have been correctly stated to the jury by the judge who tried the cause. That principle has often been recognized, in this State and elsewhere. If a party is present, and sees another sell and convey property, whether real or personal, to which he may assert a title, without disclosing his title, or objecting to the sale or conveyance, and the sаle is made with a full knowledge on his part, he will be estopped by his silence from thereafter setting up his title agаinst the purchaser. Corbett v. Norcross, 35 N. H. 99. The whole principle involved in this ¡Dart of the case is fully discussed and settled by the foregoing case; and the rule long recognized in equity is established as a just legal rule, and to be applied to pai'tiеs accordingly. The same doctrine was fully established by our court in Watkins v. Peck, 13 N. H. 361. If an act be done by a party, which would be а fraud in him to impair, and which so influences another that he acts on it, the first actor is estopped from the power of retraction. 2 Stock. (N. J.) 510. A representation, which estops the party making it from denying its truth, must not only have mislеd the party to whom it ‍‌​​‌‌​‌​​‌​​​​‌‌​‌‌​‌‌‌​​​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​​‍was made, but have been intended so to mislead him, or at least there must have been such сulpable negligence or carelessness as may be regarded as amounting to an intention to mislead. Thе same is true when a party, by his silence — which is one mode of making a representation — has misled another as to the matter not communicated. Taylor v. Ely, 25 Conn. 250. A party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the other. Cummings v. Webster, 43 Me. 192. If one, having the title to an estate, and knowing it, stand by and see another, *386who, ignorant of it, рurchases the estate, and suffer him to improve it under the belief that his title is valid, such an one is bound by the sale, and cannot invoke the aid of a court ‍‌​​‌‌​‌​​‌​​​​‌‌​‌‌​‌‌‌​​​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​​‍of justice to dispute it. “ Standing by” may not import actual presence, but “imрlies knowledge under such circumstances as to render it the duty of the possessor to communicate.” Galleny v. Rodman, 6 Ind. 280. Equity, as wеll as law, will interfere to prevent a party from asserting his own legal title against a third person, who had been induсed by him to part with his money for the estate of which he was seeking to deprive him. Story v. Barker, 6 Johns. Ch. 166, and cases there cited. The same rule at law is stated in Dinsmore v. Ely, 1 Barb. 620. “ Qui tacet, consentire videtur.” “ Qui potest et debet vetare, jubet.” As parties, the plaintiffs are estopped from setting up their claim herе, as they, by the acknowledgment expressed in their deed, by the reception of the consideration monеy there stated, are thus estopped from setting up title to the same land for which they have once received their pay. Having participated in the profits ‍‌​​‌‌​‌​​‌​​​​‌‌​‌‌​‌‌‌​​​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​​‍arising from the sales, the plaintiffs are not now to be рermitted to inquire into the consideration of their deeds, for the purpose of showing an interest different from оr additional to the interest expressed in the operative words of the conveyance, or to defеat the deeds, or to change their legal effects. 2 C. & H. Phill. Ev. 1444. If the owner or claimant of property activеly persuades or encourages another person, who is ignorant of his right, to purchase the propеrty, or any right or interest in it, he will not be permitted to claim the property, or any right in it, against the purchaser, though hе was not aware of his rights. It will be reckoned his fault that he did not inquire what his rights were. Wells v. Peirce, 27 N. H. 511.

Applying the law of the above deсisions to the facts as admitted in this case, finding Richardson, first as agent, afterward as an interested owner, upon two different oc*387casions selling parts of lot nineteen; again, pointing ont tbe line claimed to by the defendants, upon three other occasions, as the true line between lots nineteen and twenty; again, showing the valuаble timber then standing on lot nineteen, and urging Chickering, one of the defendants, to cut the timber up to this line claimed tо by the defendants, and, after the purchase by him, looking ‍‌​​‌‌​‌​​‌​​​​‌‌​‌‌​‌‌‌​​​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌​​‌‌​​‍on and seeing him do what he 'had directed him to do; again, on another occasion, disavowing the line as a freak of the surveyor, which the plaintiffs now claim to be the true one;— all these facts combined should constitute in law an estop-pel to the plaintiffs’ recovery in this action, and justify the jury in rendering their verdict for the defendants, and the court in confirming it.

Judgment on the verdict