31 Ind. 1 | Ind. | 1869
Before examining the questions raised by the assignment of errors, our attention is called to a preliminary one, raised by the appellee. The appeal being from an interlocutory order, and not from a final judgment, it is
Section 550 of the code authorizes appeals to this court from the circuit and common pleas courts from all final judgments, with certain exceptions; and section 576 provides, that “appeals to the Supreme Court maybe taken from an interlocutory order of any court of common pleas, or circuit court, or judge thereof, in the following cases;
Second. Eor the delivery of possession of real property, or the sale thereof.” Section 577 enacts, that “such appeal may be taken at the term of the court at which the order is made; or when made in vacation, the appeal may be taken at the time, or during the next term; the appeal shall not be granted until the appellant has filed an appeal bond, as in other cases of appeal.” Here the appeal was taken during the term at which the order was made, and a bond was filed under the order of the court; and we think the provisions of the code referred to clearly authorize the appeal. This ruling is not in conflict with Staley v. Dorset, 11 Ind. 367; Love v. Mikals;12 Ind. 439; or Berry v. Berry, 22 Ind. 275; but is- entirely consistent with them. In neither of those cases was a bond filed and the appeal prayed at the term at which the order of sale was made, and in each of them it is stated that the appeal was not prayed and perfected under sections 576, 577 of the code. •
The ruling of the couxd in sustaining the demurrers to the first paragraph of the answer of Martha 0. Simpson, and to the second paragraph of the answer of the other defendants, presents the only questions urged by the appellants fox; a reversal of the order of the court appealed from.
Husband and wife- are considered one person in law, and hence the deed from Miller to Reuben Simpson and his wife, Martha C., did not invest them of separate moieties of the land conveyed,, but each thereby became seized of it as an entirety, with the right of survivorship; and upon the death of Reuben. Simpson, his widow, Martha 0., by virtue
The acts and admissions of a party íxxay estop him from evexx speaking the truth, when in good conscience and honest dealing he ought not to be permitted to gainsay them. An estoppel may be by deed, by recoi’d, or by matter in pais. As to the latter, a party will be concluded from denying his own acts or admissions, which were expressly desigxxed to influence the conduct of another, and did so influence it, when such denial will operate to the injury of the latter. See Ridgway v. Morrison, 28 Ind. 201, axicl cases there cited. The principle underlying such estopples is, that it would be a fraud in a party to assert what his previous conduct and admissions have denied, when on the faith of that denial others have acted.
But one who insists upon the acts of anothex* as working ■an estoppel must show that ho acted upon the same, and was influenced thei’eby to do some act which would result in an injury if that other is permitted to gainsay or deny the truth of what he did. For it is a well settled rule in such cases, that no man can set up another’s act or declaration as the ground of axi estoppel, unless he has himself been misled or deceived by such act or declaration. Washb. Real Prop. b. 8, ch. 2, § 6, 9, a.
It follows from the vei’y principle on which the whole
Mr. Washbumy speaking of estoppels by deed, says: “It Should be remembered, that an estoppel by deed is always applied in some action or proceeding based on the deed, in which the fact in question is recited. In a collateral action there can be no estoppel, nor will estoppels by deed avail in favor of any but the parties and their privies.” B. 3, ch. 2, § 6,11.
Applying these rules to the case at bar, it seems evident that neither Martha C. Simpson not the heirs at law are estopped by the proceedings in the partition suit from denying, in this case, that Reuben Simpson died seized in fee of a moiety of the land described in the petition for partition, or from asserting the truth in reference to the title thereto. The administrator stands in the relation of trustee to the creditors of the decedent; but neither the administrator nor the creditors of the decedent were parties to the suit for partition, nor do they, in any manner, occupy the relation of privies to the parties to that suit, and are not therefore in a position to claim that the parties thereto are estopped thereby from showing that the decedent left no interest or estate in the lands subject to the payment of his debts.
"Wo think, therefore, that the court below erred in sustaining the demurrers.
The judgment is reversed, with costs, and the cause remanded, with directions to the Court of Common Pleas to