27 Barb. 595 | N.Y. Sup. Ct. | 1857
Before the code, the defense which is here interposed by answer could probably have been made available only by a bill in equity and an injunction to restrain the prosecution of the plaintiff’s suit. The case of Storrs v. Barker, (6 John. Ch. 166,) is an instance of such a remedy applied to a state of facts very closely analogous, as it strikes me, to that before us. That was a case where the heir of a
In the case before us the answer states that the Westchester County Bank, the grantors of the defendant, acquired a title to the premises in dispute from a loan commissioners’ sale made with the assent and at the request of the ancestor of the " plaintiff, who had mortgaged to the loan office. An arrangement was made between him and the bank, by which the latter was to buy the property, pay the mortgages and hold the land until by sales they should be reimbursed what they advanced upon the sale and the amount of a judgment recovered by them against the mortgagor, with interest and their expenses, &c. This arrangement was acted upon during the life of the mortgagor. The bank bought, took possession, the mortgagor attorned to them, and they proceeded to sell from
The defendant insists that this conduct estops the ancestor of the plaintiff and his descendants from asserting the irregularity and invalidity of the proceedings of the commissioners to effect a sale. In what particular these proceedings were irregular does not distinctly appear in the answer; nor indeed does it appear except by way of inference, that the sale was invalid. It might be material, in some aspects of the case, to know precisely how and when the irregularity occurred which the plaintiff relies upon to defeat the defendant’s title, but which the defendant contends that • Marks the mortgagor must be presumed to have known, and has estopped himself and his heirs or assigns from asserting. But it is probably sufficient to dispose of the case to assume, as both parties seem to have done, that by some irregularity or failure of the loan commissioners the title which they could and did give to the bank at the sale under Marks’ mortgage was rendered defectiye. The answer was that Marks knew all the facts and circumstances attending the sale, but not that he knew or believed that the title was imperfect. If however he knew all the facts, then his ignorance, if he was ignorant of his rights to any extent, was of the rules or principles of law which would control the case. For instance, he may have been aware as a matter of fact that some of the proceedings, or the sale itself, had been had by one commissioner only, but he may have been ignorant that this would affect the validity of the title. And thus the question is presented, whether ignorance of the law will prevent the application of the rule of equitable estoppel. For I think this is a fairer statement of the question than to put it, as was done by the plaintiff’s counsel before us, whether the acts and assertions of Marks were not the mere assertion of a conclusion of law. The conduct of Marks cannot be considered as merely the statement of an opinion upon the known facts of the case. It was a course of conduct by which the
But it is supposed that the authority of this and similar cases has been shaken by two recent cases in the Court of Appeals, or that the latter cases are more correctly applicable to the question before us. The first of these cases is Brewster v. Striker, (2 Comst. 19.) In that case the question was whether by the will of. one John Hopper his executors took a present legal estate in his lands devised, or whether the fee simple became vested in his grandchildren who were mentioned in the will, so that a sheriff’s deed, after a sale under an execution against one of them, would cut off his rights and vest his title in the purchaser. This was a question purely of the construction of the clauses in the will, and the court were of the opinion that no present estate passed to the grandchildren or was vested in the defendant in the execution at the time of the sheriff’s sale. But the party- relying on the sheriff’s deed offered to show that after the death of the testator the defendant in the execution had gone into possession and had been a party to proceedings in partition, instituted by another heir, in which the petition alleged and his answer admitted seizin in fee in him and the other grandchildren, and thereupon a partition and mutual releases. This the plaintiffs in the suit then before the court insisted should estop him and his successors from denying that such was the true state of the title. The court held that no estoppel arose, and I conceive
In the Chautauque County Bank v. White, (2 Seld. 236,) there was at the utmost no more to sustain an estoppel than in the case I have just considered. The question there was whether a conveyance by a debtor to a receiver, under an order of the court of chancery, in a creditor’s suit, divested the title of the debtor so as to prevent the lien of a subsequent judgment. The defendant was alleged to be estopped from claiming that it did, because in a letter to the receiver he had expressed the opinion that such judgments were liens on the premises. This was, at the utmost, simply stating his opinion of the law, but as Judge Gardiner remarks, “This opinion was not declared to the complainants, who do not claim that they did, or omitted, any thing upon the faith of it; or indeed that they knew it was entertained by any one, until subsequent to the disposition of the property in question.” Under such circumstances it was idle to pretend that any statement, much less a mis
I find no difficulty, therefore, in applying to this case the rule that where a party acquiesces in a conveyance of his own property by another under color and claim of title, with knowledge of the facts, he shall not afterwards be permitted to dispute that title. It is not necessary to go to the length of the dictum of Mr. J. Laurence, reported in 6 T. R. 556, who stated a case in which Lord Mansfield would not suffer a man to recover in ejectment who had stood by and seen another build on his land. That opinion has been indeed very generally questioned. , It is questioned in the case of Miller v. Platt, in the superior court, to which we were referred, but that case is not in conflict with the views we have now expressed. The defense in that case was that the plaintiffs had lost their title by standing by and permitting the defendants to build upon the land in dispute without giving notice of their claim. This was set up as a flat bar to an action of ejectment, to have the effect of a conveyance, or a twenty years’ adverse possession. The court, without passing upon the existence or extent of any equitable right to compensation or the like by such acquiesence in erections, perhaps expensive and made in good faith, held that such silence alone, in the face of a trespass, could not divest or transfer the title, or bar an ejectment. We have no disposition to controvert that doctrine, but it is evidently not applicable to cases where equitable relief is invoked on the ground that there has been not merely silence while another infringed upon the party’s rights or trespassed upon his property, but acts and declarations inducing and sanctioning conveyances and titles which have been made and accepted in reliance upon them.
The plaintiff’s counsel contends that equity does not require that he should absolutely desist from asserting title to these lands, but only that the defendant should be regarded as the assignee of the loan office mortgage pro tanto, or that
S. B. Strong, Emott and Birdseye, Justices.]
With respect to the case of Mary Marks, I concur in the reasoning by which the learned judge, at special term, showed that she had both ratified, after her coverture had expired, the acts of her husband which operated to estop him from denying the validity of the foreclosure and sale to the bank, and had'also created an estoppel against herself by her own acts previous to the conveyance of these lands by the bank, after her husband’s death. Assuming, therefore, that the facts which distinguish her case from that of the heirs of her husband appear in the pleadings, the same principles are applicable to both.
The orders appealed from are affirmed with costs in both cases.