Fielding & Gwynn v. Du Bose

Delany, J. Com. App. The plaintiffs received from I. O. Du Bose, long after its maturity, the note on which this suit is brought. Whatever defenses, therefore, could have been successfully urged against Du Bose, had he brought the suit, would be good against the plaintiffs. The question then is: Could the plea of estoppel, on which the defendants rely, have been maintained against I. C. Du Bose as plaintiff? In the case of Page v. Arnim, 29 Tex., 71, the court, after remarking that the question of estoppel in pais had been somewhat elaborately discussed in the cases of Burleson v. Burleson and Scoby v. Sweatt, 28 Tex., 383, 713, proceed as follows: “In the first of those cases it was held that the tacit presence of the owner, and his knowledge of the sale, will not estop him if the purchaser is otherwise informed of the true state of the title. And in the second it was decided that the acts from which the estoppel is claimed to spring must have in some way induced or influenced the purchaser; that the basis upon which such estoppel rests is actual or constructive fraud on the part of the owner, or such facts as would be tantamount to a fraud, if he were permitted to recover the property.” These cases have been recognized and followed in our courts. In the case before us,' counsel for appellants present us with six propositions, the last three of which seem to go a little beyond the doctrine generally recognized by our courts. They state their fifth proposition thus: “ The party invoking the estoppel must have been [637] induced to take action and change his position solely because of the representation.” The correct rule is that above quoted, that the 61 acts from which the estoppel is claimed to spring must have in some way induced or influenced the purchaser.” To show the sense in which counsel use the word “ induced,” we quote the following passage from their argument: “ A. E. Osborne, another of the original purchasers, testifies as follows: ‘I relied on the statement of I. 0. Du Bose and made no further examination into the question of title, and made the trade and took the deed for the property to myself, Greaves and Cassaday; ’ but (say counsel) he does not say that the representations constituted any inducement to the trade, and, but for said representations, he would not have made the purchase.” Hor was it necessary that he should have said so. In order to estop 1. 0. Du Bose in this case it was not necessary that he should have originally suggested this trade or have brought it about, or that he should have contributed materially to its consummation. The case against Du Bose is not that he caused the purchasers to make the trade, but that by his fraudulent representations he put them off their guard, and prevented an investigation on their part which would have discovered his lien and have enabled them to guard against it. At the time of the first negotiation for the purchase between Greaves, Osborne and Cross on the one side, and Amos Du Bose on the other, the lien of I. C. Du Bose was of record in the county. In that state of the case I. C. Du Bose was not bound to come forward and tell these parties that he had a lien upon the property. Having put this mortgage on record, and thus given the notice which the law required him to give, he might safely suppose that all subsequent purchasers from Amos Du Bose would examine the record and ascertain the existence of his lien. Bales v. Perry, 51 Mo., 449; Sulphine v. Dunbar, 55 Miss., 255. He was not bound to interfere in order to protect those who had the means of protecting themselves, especially if he was in no way connected with the particular transaction. But this is as far as the authorities go. If he interfered in the matter, and by false representations prevented inquiry as to his lien by the purchasers, he cannot after-wards set it up against them. David y. Park, 103 Mass., 501; Kingman v. Graham, 51 Wis., 233. Precisely what information was given at the first negotiation is not entirely clear from the evidence. According to the witness Cross, who was one of the parties, something was said about a lien, but whether it was upon the land, or upon some personal property which was then on the land, the witness could not say. The lien of [638] I. C. Du Bose was upon the land as well as upon the personal property. About a year afterwards a second negotiation took place, in which Cassaday took the place of Cross as a purchaser. At this time the whole matter was canvassed and I. C. Da Bose took an active part in the entire transaction. In answer to a question whether there were any liens upon the property, he answered that they had all been discharged, and that Amos Du Bose held the releases, which should be recorded. This seems to have quieted all apprehension, and the purchase was made. Counsel for appellants insist that as Du Bose did not specifically mention bis own lien, he ought not to be held estopped. But the language was such as would include his own lien; and, in the second place, there is no evidence in the record that there was at that time, or had been, any other lien upon the property. There can hardly be a doubt that his declaration deceived the parties to their prejudice; and it is difficult to believe that he did not know that he was deceiving them. The judgment should be affirmed. Affirmed. [Opinion adopted February 13, 1885.]