Allen v. Exchange National Bank

STEPHENS, Associate Justice. March 10, 1896, T. R. Allen mortgaged the land in controversy to appellee bank, though he had al [451] ready in August, 1894, conveyed it to his son, T„ F. Allen, who was in possession when the mortgage was executed and recorded, but whose deed had never been placed on record, the title appearing on the face of the deed records to be in- T. R. Allen. The mortgage was given to secure a pre-existing debt, but it took the place of personal security released at the time of its execution. The mortgagee had no knowledge of the unrecorded deed to T. F. Allen until long after the mortgage was executed, but believed the title to be in T. R. Allen,. T. F. Allen testified on the trial “that his father in 1896 asked him if he had ever put his deed on record, and he told him that he had not. His father then requested him to allow him to mortgage the land, and that he consented that he might do so.” In pursuance of this understanding, though without, knowledge thereof on the part of the mortgagee, the mortgage was made. The facts are stated more in detail in the trial court’s conclusions of fact, which we adopt. Our conclusion of law is that T. F. Allen was estopped from disputing the validity of the- mortgage. Every man is presumed to- intend the natural consequences of his own conduct. In consenting for his father to mortgage the land, T. F. Allen consented for his father to- do whatever was essential thereto, to wit, to represent himself as the owner, which he in effect did when he executed the mortgage. The consent given his father to- mortgage the land, under the circumstances disclosed by the testimony, was equivalent to an agreement with his father to- withhold his own deed from record to enable him to -do it. He thus in effect, and, as must be inferred, intentionally held his father- out as the owner' with the expectation -that another would deal with him on the faith of such apparent ownership. Now that which was contemplated has actually taken place, and the- appellee bank has changed its position for the worse, it does not lie- in the mouth of T. F. Allen to deny that his father was the owner. It matters no-t that the, bank was ignorant of what had passed between the Allens. But for the consent of the son that the father might represent himself as the -owner, it is to be inferred that the father would not have -done so. It was that consent then that caused the father to deceive the bank. Nor does it matter that hut for the consent and consequent representation o-f title in T. R. Allen the possession of T. F. Allen would have given notice of hia title. He waived that -by consenting that the land might be mortgaged as the property of T. R. Allen. Besides, possession under an unrecorded deed is held to- be equivalent to registration only because it should provoke such inquiry as would lead to a knowledge of the unrecorded conveyance; but it does mot lie in the mouth of -one authorizing another by affirmative conduct to deceive- by suppressing the truth to urge that the one- so deceived should not have believed the false representation but should have inquired and found out the truth. In other words, as T. F. Allen had authorized T. R. Allen to represent to appellee bank that T. R. Allen was the owner of the [452] land and to suppress the truth of T. F. Allen’s title, it was the same as if T. F. Allen had done it himself, — qui facit per alium, facit per se,— and certainl)" he would not be heard to say to appellee- bank: “You ought not to have believed me, but should have inquired and found out the truth.” As said by Mr. Pomeroy in his admirable work on Equity, volume 2, section 810, “If the real -owner resorts to any affirmative acts or words, or makes any representation, it would be in the highest degree inequitable to permit him to say that the other party, who had relied on his conduct -and had been misled thereby, might, have ascertained the ■falsity of his representations.” This case, then, comes within the following quotation from Jones on Mortgages, volume 1, section 683: “And so if an owner of lanld represents to a creditor that it belongs to another, and induces such creditor to take a mortgage from that person, and to extend the time of payment of the debt, he is estopped to claim the land as against the lien of the mortgage.” For the requisites of estoppel, see 2 Pomeroy’s Equity Jurisprudence, section 805. The judgment is affirmed. Affirmed.