| Vt. | Mar 15, 1867
The opinion of the court was' delivered hy
This is an action of trover for certain chattels.
The defendant pleaded specially matter in pais in estoppel, to which there is a demurrer.
The rule is, that every thing may he given in evidence under the general issue in this form of action but the statute of limitations and release. It was permissible, however, to plead specially any thing which admitted property in the plaintiff and the conversion, hut justified the conversion. The gist of the action is the conversion. Any thing that shows that the defendant did not convert the property, as against the right of the plaintiff to the possession of it, constitutes exactly the substance and the subject of the plea of not guilty, and if it he pleaded specially, such plea will amount to the general issue.
The plea in this case meets the gist of the action hy averring facts which it is claimed in law vest the property in the defendant, and as a legal result, show that there was neither property or right of possession in the plaintiff, nor any conversion by the defendant. This certainly amounts to the'general issue, and is obnoxious to the demurrer for that cause. The plea is therefore held bad, without discussing it in any other view.
As to the questions arising upon the charge of the courts.
I. The defence is based on the evidence tending to show that the plaintiff, when enquired of by the defendant, disclaimed any ownership in the property, and that the defendant, relying on such disclaimer, proceeded to inventory and have the property appraised, and the appraisal duly returned into the probate court, which was
As to that which he owned wholly, the question is whether, upon the facts above set forth, the court should have instructed the jury as .requested on this point.
The subject of estoppel of this character has often been before tlie courts in this and other states, and in England, and has been fully discussed and considered both in reference to principle and authority, and the doctrine is now so well defined and illustrated as to need no further discussion. The present case only requires of_us to determine how that doctrine applies to it..
It is prominent for notice that the effective point is, that to permit the party to claim against his admissions or acts would operate a fraud upon, and an injury to the party who was authorized to rely, and did rely thereupon, and has acted in such reliance. Most, if not all of the cases that have been adjudicated, as shown by the books, show that the party claiming the benefit of the estoppel has paid money, parted with property, or yielded a right in reference to which he would suffer prejudice if such benefit should be denied to him. In the present case, the defendant had done neither, up to the time the plaintiff asserted his ownership of the property and forbid the defendant selling it. The property and the right and title of the parties in respect to it, remained precisely as they had been prior to, and independently of such admissions. If the defendant had sold the property before the plaintiff asserted his ownership, the case might have stood differently. But not having done so, the only point is, whether the making of the inventory, and having the appraisal made
As the property was situated under the lease, it would have been the duty of the defendant to inventory it, and have it appraised with reference to the interest that the estate had in it. The duty and the act of making an inventory and having the appraisal made was merely official, and the liability of the defendant, as administrator, in reference to such property would be only commensurate with the right and interest that the estate had in it, depending upon the relation that the plaintiff and the intestate sustained to it. The defendant would be chargeable only for a proper administration of the property .and interest that the intestate had in it; and showing that any of it was in fact owned by somebody else, would be a good accounting by the administrator for it, and secure his discharge .from further liability to the estate.
Standing in such a posture, the mere fact that he embraced the property in the inventory and appraisal as belonging wholly to the intestate, in reliance upon, and in consequence of, what the plaintiff said in respect to it, would not constitute such an acting upon the faith of such admissions — would not so operate an injury, and produce a damage to the defendant, or to the estate, as to give efficacy to the admissions as an estoppel, on the ground that otherwise a damaging fraud would be wrought upon the defendant or the estate. This being so, it is plain that the defendant had not, either personally or officially acquired any title to, or interest in, the property by reason of the disclaimer of ownership by the plaintiff, at the time the plaintiff asserted his ownership, and forbid the defendant selling the property. Such assertion of ownership would therefore countervail the prior disclaimer, and leave the parties standing in the same relation to the property as if such disclaimer of ownership had not been made. It would follow, of course, that, as the plaintiff owned the property, a sale of it by the defendant would be a conversion, and subject him to an action of trover therefor. We think the court properly refused to charge as requested, and correctly charged the jury upon this branch of the case.
The respective title of the plaintiff and the father in said articles is established by the jury. The lease fixes the character in which they were held by the intestate. The property was to be kept on the farm, and fed upon the fodder, till the expiration of the lease, April 1st, at which time the rights and interests of the parties in respect to it were to be ascertained and adjusted according to the terms of the lease.
In this respect it stands for consideration in a different light from what it might, if it were the ordinary case of a naked ownership in common. In such case it may well be held that a sale by one of the common owners would only transfer his own title and interest to the vendee, and put him in the vendor’s position of common owner with the other party. But such is not this case. As the property was conditioned in the possession of the intestate under the' lease, when the defendant, as administrator, before the expiration of the lease, assumed to sell the property off from said farm, he was doing something more than selling the absolute title of a joint owner, or owner in common, and leaving the plaintiff invested with, and enjoying his full title and right as the other joint or common owner.
If, under the lease, the plaintiff and the intestate should be regarded as having held a partnership relation to.this property, then, of course, on the decease of the intestate, the plaintiff, by the right of survivor-ship, would alone be entitled to take possession and dispose of it,— being accountable to the estate for the interest of the estate in it. This perhaps was the view entertained by the court when giving the charge to the jury. But, without determining whether this is the correct view or not, we are clearly of the opinion, that the most that the defendant could lawfully claim is, that he stands in the place and on the fights of his intestate, and that he could not lawfully do any thing with the property that said intestate could not have done if he had been living.
The creatures involved in this part of the case were the produce of creatures solely owned by the plaintiff, and the right and interest of the intestate in them were created by the provisions of the lease, and
Independently of the lease, the produce of the creatures owned by the plaintiff would have belonged solely to the plaintiff; and least of all could the defendant invest himself with a title that would warrant him in disposing of the property in the manner he did by violating the provisions of the lease, upon which provisions, and the manner in which they should be carried out, any right or interest in the defendant’s intestate depended. See Swift v. Moseley, 10 Vt. 208" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/swift-v-moseley-6572013?utm_source=webapp" opinion_id="6572013">10 Vt. 208; Buckmaster v. Mower et al., 21 Vt. 204" court="Vt." date_filed="1849-02-15" href="https://app.midpage.ai/document/buckmaster-v-mower-6574053?utm_source=webapp" opinion_id="6574053">21 Vt. 204; Grant v. King et al., 14 Vt. 367" court="Vt." date_filed="1842-03-15" href="https://app.midpage.ai/document/grant-v-king-6572619?utm_source=webapp" opinion_id="6572619">14 Vt. 367.
In the opinion of this court no error was committed in this case on the trial in the county court, and judgment is affirmed.