Estis v. . Jackson

*149 Shepherd, J.: Without discussing the general doctrine, it is sufficient to say in the present case that, in order to work an estoppel in pais, “ there must be conduct — acts, language or silence — amounting to a representation or a concealment of material facts,” and that “ the truth concerning these facts must be unknown to the party claiming the benefit of the estoppel.” 2 Pom. Eq., 264. “ The estoppel is removed by proof that the party claiming its existence, even though mistaken in regard to his rights at law, had notice of the actual state of the facts at the time of acting upon the representation, and this, though the representation was made under oath.” Bigelow Est., 520. “ The estoppel does not apply where everything is equally well known to both parties.” Herman Est., Sec. 957; Bispham Eq., 288; Dutchess Kingston’s Case, notes Smith, L. C.; Holmes v. Crowell, 73, N. C., 613; Loftin v. Crossland, 94 N. C., 76; Exum v. Cogdell, 76 N. C., 139; Mayo v. Leggett, 96 N. C., 237. In Exum v. Cogdell the Court uses the following language: “ In this case it appears, either by admission or the findings of the jury, that the plaintiff knew all the material facts in regard to the title, and could not have been deceived by misrepresentations of the defendant.” Applying the foregoing principles to the facts before us, it is plain that there is no estoppel. Mrs. Loyd was the owner in fee of the land in controversy, the same having been conveyed to her by one N. E. Cannady. She, her children, and the purchaser were all alike ignorant of the legal effect of the conveyance which-was read to the parties at the time of the present transaction. It was supposed by them that Mrs. Loyd had but a life-estate, and that the children were entitled to a remainder in fee. The plaintiff purchased what she understood was the interest of the children, and the consideration was paid to them alone. Mrs. Loyd appears to have had nothing to do with the transaction but to signify her assent to the sale, which, in view of the under *150 standing of the persons interested, was entirely unnecessary. She made no representation as to the rights of the children, except to state in effect that she was willing that they should sell their supposed interest, reserving to herself a life-estate. This, as we have seen, was done in view of a misapprehension of her title, which misapprehension was .common to all of the parties, and it cannot reasonably be inferred that anything she said or did had the slightest effect in misleading the plaintiff. There was no withholding of information on her part, but, on the contrary, every fact which she knew concerning her title was equally well known to the purchaser. She was no party to the deeds executed by her children, and her signature to the same was of no effect. King v. Rhew, 108 N. C., 696. Having received no consideration, and being guilty of no misrepresentation or concealment as to the real facts constituting her title, there is nothing in the nature of fraud, either actual or constructive, which can estop her grantee from asserting her interest in the premises. The affidavits filed before his Honor in reference to his alleged misunderstanding of the testimony cannot be considered by us. The granting of a new trial upon such a ground is a matter of discretion, and not the subject of review in this Court. Munden v. Casey, 93 N. C., 97; McCullock v. Doak, 68 N. C., 267. Affirmed.