Mayo v. . Leggett

Davis, J., (after stating the facts). A motion was made in this Court in behalf of the plaintiff, based upon affidavits alleging errors in the finding of facts as stated by his Honor in the case sent up, for a writ of certiorari to have the finding of facts corrected in the several particulars mentioned in the affidavits. The motion is disallowed. When counsel cannot agree, the case as made up by the Judge “must be accepted as conclusively true, and the utmost which this *241 Court can do, upon the suggestion that an unintentional omission or mistake has occurred, is to remand the cause, or award the certiorari to give the Judge an opportunity, if he thinks proper, to make a correction.” State v. Gay, 94 N. C., 822; State v. Miller, Ibid., 902; Ware v. Nisbet, 92 N. C., 202; Currie v. Clark, 90 N. C., 17; McDaniel v. King, 89 N. C., 29. There is no suggestion that the Judge will probably make any corrections in this case; on the contrary, the correspondence set out in one of the affidavits, renders it quite certain that he will not, for he says, “ I found the facts from the proofs,” and in substance, that he cannot change them without consent. The appeal can only be tried in this Court upon the case as settled by his Honor. It was insisted for the plaintiff, that the defendant was estopped by his conduct, and could not assert any right to the land as against the plaintiff, and this was the only point relied on in this Court. In Bigelow on Estoppel, page 479, relied on by the plaintiff, the rule is stated to be, “that where one, by his word or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is concluded from averring against the latter a different, state of things as existing at the same time.” This is well settled, and it is added on the same page, that “ where the true owner of property holds out, or allows another to appear as the owner of, or as having the full power of disposition, and innocent third parties are thus led into dealing with such apparent owners, they will be protected,” In such a case, the real owner is estopped from disputing the title of one who has been misled by his conduct; but that is not the case before the Court. We are unable to see, from the facts found, a single act or word of Leggett’s, intended or calculated to mislead the plaintiff, or *242 that could mislead him. Holmes v. Crowell, 73 N. C., 613; Melvin v. Bullard, 82 N. C., 34. The defendant was in actual possession of the land, and this was notice to the plaintiff of his equity — this is well, settled. But in addition to the notice which the possession of the defendant gave, the plaintiff was fully advised by Biggs that the notes secured bjr the trust had been paid off, that the land had been sold to Leggett, and that the only purpose of the sale was “to get the legal title out of the trustee.” There was nothing in what the defendant said to the plaintiff the day after the sale, that could be construed as an abandonment of his rights, or as a ratification of the purchase by the plaintiff; on the contrary, he told the plaintiff that “ Biggs had the land sold to strengthen his title, and he hoped he and Biggs would fix it up.” In Stith v. Lookabill, 76 N. C., 467, Reade, J., puts this case: “ Land is conveyed to A in trust for B. A has the legal title, and conveys to C. B has the equitable title, and conveys to D. Who is entitled to hold the land in this case, C or D ?” The answer is “ very clearly D.” Waldo has the legal title and sells to Mayo; Biggs & Co. have the equitable title and sell to Leggett; clearly Leggett is entitled to hold. This is well settled. Washbourn on Real Property, chapter 16, §§9 and 10; Jones on Mortgages, §§973 and 1799; Isler v. Koonce, 81 N. C., 378; Walker v. Mebane, 90 N. C., 259. The debts secured by the trust had been paid, and Mayo had knowledge of the fact, and the Court, instead of leaving the equitable owner to his remedy by action to redeem, will set aside the sale. This (saj^s Jones, §1799,) is the rule in the English Courts, and some of the Courts of our States. Certainly, the debts having been paid, the legal title in Waldo or Mayo is but the shell, and the equitable title in Leggett is the substance. There is no error. Let this be certified. No error. Affirmed.