Walker v. Flint

11 F. 31 | E.D. Mo. | 1882

Treat, D. J.

The main question is as to estoppel in pais alleged in the answer, while the petition avers on the other hand, substantially, an estoppel by record. The petition sets out with great fullness the sources of plaintiff’s title, and by anticipation negatives any question of estoppel or limitation which defendants may aver. The main ground of plaintiff’s averments as to estoppel of record relates to the fact that the Life Association of America, the landlord defendant, was a party to the partition suit, while the answer of the defendants directs attention to the alleged fact that said partition suit was for many parcels of property, in one only of which that association was interested, and that was a parcel of ground in Oarondelot, miles away from the locus in quo in this ease. The answer then avers further tiiat said association, with full knowledge of the plaintiff, proceeded, after having acquired possession of the abutting property of plaintiff, to erect thereon an expensive building, without objection, and that now plaintiff’s demand would bo, if upheld, disastrous, far beyond the value of the 2J feet of land in question. The property subsequently acquired by the association was not property involved in the partition suit, but was an abutting tract.

Is a party to a partition proceeding, who subsequently acquires adjoining propertynot involved in the partition suit, estopped from disputing the calls in such a proceeding for lands included therein, when he thereafter becomes the grantee of adjoining property? Thus the defendant landlord had no interest in plaintiff’s lot now claimed, but became a party to the suit in partition to protect its interests in a tract miles away. After partition had, it purchased a tract far away, which adjoins what had been set apart to plaintiff. Having become the owner of said adjoining tract, he was not estopped -by the record in partition, and if it be true that, after such purchase, it proceeded with full knowledge and without objection of' plaintiff to erect an expensive edifice, which possibly trespasses to the extent named on plaintiff’s property, is there not an estoppel in pais ?

The first defence is a general denial. It is contended that under such denial the defendants can rely on the statutes of limitation, and therefore that the two defences pertaining to limitations are improper. The uniform ruling of this court has been that a general denial under the Code is not equivalent to a general issue at common law, whereby certain affirmative or quasi affirmative matters can be heard. A general denial puts the plaintiff to the proof of his substantive allegations, upon which his right of recovery depends. If the defendant has an affirmative defence in the nature of an avoidance, he must plead it. In this case, in conformity with such rulings, the defence is in the first special plea one state of facts, and in the second plea another state of facts, either of which, if true, would defeat the plaintiff’s alleged cause of action. Each is well pleaded, and no demurrer thereto" can prevail.

■ The other defence is more difficult; but. what has been stated above explains the views of the court as to estoppels of record and estoppels in pais. If the averments with respect thereto are well founded, they constitute a valid defence.

In a former opinion of this court there was a dictum based on the then state of pleadings; but nów a different showing is made, raising other and substantial issues: First, as to the alleged estoppel by record; and, second, as to estoppel in pais.

Hence, the demurrer to the special defences in the answer are overruled,