Quirk v. Bedal

*573 HAETSON, District Judge. This appeal is from a decree quieting respondent’s title to two lots in Boise City, Ada county, Idaho. The dispute arose out of an execution sale, initiated by appellant, and the latter’s alleged conduct and representations which, it was claimed, induced respondent to bid and purchase at the sale. In 1917, appellant had begun suit in Gooding county against a Mrs. Johnson, seeking to establish a trust in the lots (and other property), and notice of action was filed in Ada county. In May, 1919, appellant recovered judgment against Mrs. Johnson, which provided, in so far as *574 material here, for the recovery of $40,000 with interest; that appellant was sole owner of the lots, and directing Mrs. Johnson forthwith to convey the legal title to appellant. Transcript of the judgment was filed in Ada county. In June, 1919, Mrs. Johnson perfected an appeal, but filed no bond to stay execution. In July, 1919, appellant caused execution to issue on the money judgment, and levied upon all “right, title, claim and interest” of Mrs. Johnson in the lots. Respondent purchased at the sale on her bid of $5,000, and in September, 1920, received sheriff’s deed. Subsequent to the sale, appellant asserted claim to the lots as against respondent, and the latter brought this suit to quiet her title. The cause was tried by the court. Findings, conclusions and decree were made in favor of respondent. Originally James Bedal and Mrs. Johnson were parties defendant. The former disclaimed. The latter appealed from the judgment, but the appeal was dismissed. The trial court found that, intervening the levy and sale, appellant requested respondent to bid at the sale, and represented and caused to be represented to her that the lots would be sold; that if she should bid and purchase, her title would be absolutely good. Further, that such representations were knowingly false, that “then and ever since appellant did and does claim an interest”; that the lots were not then solely owned by Mrs. Johnson, that appellant knew it, and knew respondent would not receive good title; that respondent had no knowledge of the falsity of the representations, but believed them, and relied fully thereon, attended the sale by her agent, and bid the sum of $5,000, the highest and best bid which was accepted and paid in cash through the sheriff to appellant, who ever since has retained it without offer of return. The court also found that appellant and her attorney personally attended the sale, and appellant bid against respondent’s agent, with knowledge that respondent was so bidding, and knowing that respondent was the purchaser; that during the sale neither appellant nor her attorney in any way disclosed appellant’s claims to the property. *575 It was found that appellant’s judgment against Mrs. Johnson has at all times been a final judgment, unreversed and unmodified, and no stay of execution has been had, all of which appellant knew, but that notwithstanding, appellant still claims title to the lots under and by virtue of the judgment. That although the lis pendens and judgment in Bedal v. Johnson were of record in Ada county at time of sale, respondent had no actual knowledge of its terms, except that she knew there was a money judgment for appellant against Mrs. Johnson, on which execution issued; that respondent was induced to forego examination of the records by the false representations. As conclusions of law, the trial court held, that respondent was the owner in fee simple, and entitled to possession; that respondent was not, as against appellant, bound or affected by constructive notice of the records; that by virtue of appellant’s judgment against Mrs. Johnson, and her representations to respondent, she is estopped to claim any interest as against respondent. The assignments of error considered as of controlling importance are: (1) Error in permitting respondent to testify to alleged statements of appellant’s attorney, as not responsive to any issue, and not pleaded. (2) Findings are not supported by the evidence, numerous particulars being assigned. (5) That the trial court erred in holding that appellant was estopped in law by the judgment in Bedal v. Johnson, or by any statements shown by the record. Respondent was permitted to testify to statements alleged to have been made to her by appellant’s attorney, in the absence of appellant. Objection was made on the ground that such statements were not pleaded. The pertinent allegations of the complaint are: “ .... that said Kate Cecelia Bedal repeatedly and insistently requested this plaintiff to bid on said property at said execution sale when the same should be held, and repeatedly represented, and caused to be represented, to plaintiff that said property was owned solely by the said *576 Nellie Payne Johnson, that the said Kate Cecelia Bedal and the said James Bedal neither had nor made any claim of right, title or interest in or to said property, and that if this plaintiff should purchase said property at said sale and should thereafter receive a deed for the same, her title under said deed would be absolutely good.” There is evidence in the record that shortly before the sale, appellant referred respondent to her (appellant’s) attorney, for information concerning the title, saying: “He will tell you all about it.” Having thus appointed the attorney her agent within the scope of the reference, appellant was bound by his statements and representations on that subject no less than if she had made them herself. It is well settled that where one person refers another, on some disputed fact, to a third person, as authorized to answer for him, he is bound by what his referee answers upon the occasion as much as if the answer had been made by himself. (22 C. J. 385; 1 R. C. L., p. 483; 2 Mechem on Agency, sec. 1778; Evatt v. Hudson, 97 Ark. 265, 133 S. W. 1023.) It is urged by appellant that, “as an estoppel in pais, may operate to exclude the truth, it should be pleaded with certainty in every particular, and the facts should be set forth with great particularity and precision} leaving nothing to intendment.” (Seat v. Quarles, 31 Ida. 212, 169 Pac. 1167; 10 R. C. L. 844.) “But technical deficiencies in the pleading are not fatal if all the facts necessary to constitute it are pleaded and no objection is made to the form of the pleading.” (10 R. C. L. 844; Portland v. Inman-Poulsen Lumber Co., 66 Or. 86, Ann. Cas. 1915B 400, 133 Pac. 829, 46 L. R. A., N. S., 1211.) The allegation that appellant “represented and caused to be represented” afforded appellant notice that respondent would rely upon statements made by others at appellant’s instance, and, in the absence of special demurrer for uncertainty, the complaint is sufficient to admit testimony of representations of the- attorney within the scope of the reference. We therefore think no error was committed in that respect. *577 Exceptions are taken to the sufficiency of the evidence to support the findings. In the light most favorable to respondent, it is shown that the latter had known appellant intimately for many years, and appellant had traded at the store where respondent worked. After recovering judgment against Mrs. Johnson in Gooding county, appellant spoke of it to respondent, told her about the $40,000 money judgment, and that she was proceeding to “make” the judgment; the lots were to be sold at an execution sale, and she wanted respondent to have the property; respondent had been very good to her, and appellant had spoken to her attorney about it, and it could be had at a “bargain.” Appellant brought up the subject repeatedly, five or six times, while the sale was being advertised, and always insisted that if respondent should buy, she would get a good title, that it would be “cheap,” and a “bargain.” Appellant finally requested respondent, who inquired specially about the title, to see her (appellant’s) attorney about it, and she had already mentioned respondent’s prospective call to him; that respondent called upon appellant’s attorney, said she had come at his client’s request, and he said his client had spoken to him of her probable call; that during the ensuing conversation, the attorney told her of his client’s money judgment, on which the levy had been based, that respondent would get a deed after a year, and the title would be “all right.” The attorney said Mrs. Johnson had appealed, but the time for appeal had expired, and he was preparing a dismissal, was going to ask for a dismissal of the appeal. The attorney asked how much respondent intended to bid, and she didn’t know; he said the property was worth $10,000, and she wouldn’t pay that; he asked her how much she would bid, and she didn’t know. Respondent knew nothing about the title herself, and had never seen the records, or any abstract. Appellant again talked with respondent a day or two before the sale, and was told that respondent would perhaps attend. Respondent relied on the statements of appellant and her attorney, believed them, and consequently made no further inquiry on her own part. Respondent was represented at *578 the sale by a Mr. Hawes, who was sufficiently weE known to appeEant to be called by his first name. Hawes talked with appeEant, who was present with her attorney. AppeEant asked whether respondent was coming to the sale, and he told her that he was representing respondent. Appellant’s attorney bid against Hawes, and ran up the bid to the last one, there being no others bidding. When Hawes’ bid reached $5,000, appeEant and her attorney stepped aside and conferred, and appeEant was advised by her attorney to accept Hawes’ bid. The property was then declared sold. Neither appeEant nor her attorney gave any notice or intimation that appeEant laid any claim to the property. After ascertaining that the taxes were paid, respondent paid her bid in cash, received her certificate, and later her deed. It would serve no useful purpose here to enter into an elaborate discussion of all the various particulars wherein it is claimed the evidence fails to support the findings. Taking into account what seem to us the only reasonable inferences that could have been drawn by respondent from the statements of appeEant and her attorney, as described by respondent, we think the evidence sufficient to sustain the- findings. While it is urged that it is not shown that appeEant represented Mrs. Johnson to be the sole owner, it is only by virtue of such ownership that good title could have passed to a purchaser at the sale, since the levy ran only against the “right, title, claim and interest” of Mrs. Johnson. The testimony is conflicting, but there is substantial evidence to support the findings. The court below heard the witnesses, and was in superior position to pass upon their credibility. In conformity with a long and unbroken line of precedents in this court, the findings of fact will not be disturbed. Appellant urges that the records were open for respondent to determine for herself what she was buying, and, in a word, that the rule of caveat emptor applies. But the inducements to bid, the representations found to have been made by appeEant as to title, together with the *579 fact that appellant was present at the sale, bidding against ■respondent, without disclosing her claims of title, were calculated to mislead the respondent and would operate as a fraud upon her if held not to estop appellant from now setting up a claim superior to that of respondent. The fact that records were available to respondent will not, under these circumstances, aid appellant. In Eastwood v. Standard Mines & Milling Co., 11 Ida. 195, 81 Pac. 382, it was held, under substantially similar facts: “It seems to be in harmony with the trend of authority to say that a person may rest upon the constructive notice which the record of his title imparts, and that he is under no duty or obligation to give any other notice to anyone who assumes to deal with other parties in reference to such property. He may remain silent and passive. (Citing authorities.) But so soon as he becomes active, his actions, declarations and conduct with reference to the title must not be such as to deceive or mislead a reasonable person, or deter, prevent, or dissuade him from examining the title. (Citing authorities.) And if his conduct be such as to amount to a fraud upon one dealing with or in reference to the property, the one to whom such conduct is imputable will be estopped from thereafter asserting title in himself contrary to his previous declarations, action or conduct.” Again, in Mountain Home Lumber Co. v. Swartwout, 30 Ida. 559, 166 Pac. 271, the court said: “ ‘A strong case of estoppel is made out when by conduct or representation an owner encourages another to believe that a third person is the owner of land, and thereby induces him to purchase.....A difference is recognized by some of the authorities between mere silence and encouragement. In the latter case, the owner’s representations or conduct will stop him though he may have been ignorant of his title, for though there may have been no fraudulent intent, yet the assertion of his title would operate as a fraud, in the same manner as if there had been a fraudulent purpose.’ (10 R. C. L. 781; Kirk v. Hamilton, 102 U. S. 68, 26 L. ed. 79.)” *580 The principle stated in those cases is in line with the overwhelming weight of authority elsewhere. Many of the leading authorities, including the Eastwood case, supra, are annotated in the note: 48 L. R. A., N. S., 745. There it is said to be the general rule, that an owner of real estate who disclaims title therein, to a prospective purchaser, is estopped to assert his title against that which the latter afterward purchases from a third person who assumes to be the owner. In Amyx v. Hurt, 24 Ky. Law Rep. 291, 68 S. W. 420, the court says: “ .... It is a well-settled principle of equity that, if anyone having title to land induces another to purchase it from one who has no title, he will not thereafter be permitted to assert his title to the detriment of the purchaser.” In Stivers v. Gardner, 101 Iowa, 85, 69 N. W. 1140, it was held that one who induces another to purchase by diseláiming title, and afterward receives a part of the purchase money, is estopped to set up his own title to the purchaser’s prejudice. In Whitman v. Bolling, 47 Ga. 125, defendant bid and purchased at an execution sale, at which plaintiff was one of the principal bidders against defendant, in fact made the bid next preceding the last and purchasing bid of the defendant. The court held that the plaintiff’s failure to give notice that he claimed that the lien (which, under the evidence, did at one time exist upon the property) was divested, coupled with the fact that he was present, bidding upon the property, was well calculated to mislead the defendant, and would operate as a fraud upon him if held not to estop plaintiff from now setting up a claim superior to the lien of the judgment against the former owner. In Gregmoore Orchard Co. v. Gilmour, 159 Mo. App. 204, 140 S. W. 763, it was held: “The general rule is that a person who stands by at a judicial sale when his property is being sold as the property of a third person, and makes no objection, but permits purchasers to buy the same, believing that the prop *581 erty belonged to such third person, will be estopped from claiming the property against such purchaser.” And in Wimbish v. Mayer, 144 La. 865, 81 So. 373, the court said: “Under our well-settled jurisprudence, where one stands by and sees his property sold under legal process, without making his claim known, or objecting thereto, he will be bound by the sale; and a fortiori does that rule apply against one who, by his affirmative representations, induces another to buy property to which he afterwards asserts a claim as owner.” The principle declared in these authorities is, we think, decisive of this case, and we .find no error in the decision of the trial court that, under the facts as found by it, appellant is now estopped to claim an interest in these lots as against respondent. In appellant’s briefs, appear numerous references to a decision of this court on appeal in the case of Bedal v. Johnson, which was handed down long after trial and decree herein. Such decision does not appear in the record before us; and cannot be considered. The only matter for determination here is whether, oil the record, the court below committed error which ought to be corrected under the rules governing proceedings on appeal; we are not at liberty to interpolate into it any matter which did not form an element in the case as it was presented below. We will not presume that the facts in this case have changed in any respect since the decision of the trial court. Judgment is therefore affirmed, with costs to respondent. Wm. E. Lee and Taylor, JJ., concur.