Millingar v. Sorg

The opinion of the court was delivered, January 7th 1868, by Asnew, J. — These writs of error have both been taken in the same case, and will be considered together. We agree with the court below that the facts constituted an equitable estoppel, but disagree with them in limiting its extent to those parts of the tract which were settled and improved. Hiram Payne was the owner of tract 4881, which by mistake he supposed to lie upon No. 4880, one range north of the true location of 4881. When he sold 4881 to Morris, he directed him to 4880. Morris was shown 4880 as Payne’s land, and bought it and continued to regard it as his own until he sold to Millingar, the plaintiff, who also was shown 4880 as Morris’s land, and bought it. After discovering the error in location be brought this ejectment. While Payne was the owner of 4881 he was the agent of Messrs. Benzinger & Eschbach, who owned a large tract of adjoining land. Moses McKee was the owner of 711 acres of 4884, whose true location is one tract south of 4881. B. C. Mauer was the owner of the remaining 311 acres of 4884. Payne, as the agent of Benzinger & Eschbach, supposing that 4884 was located on the ground occupied by his own tract 4881, advised them to buy McKee’s part of 4884; and accordingly entered into a contract of purchase himself with McKee; upon which a deed was afterwards made to Benzinger & Eschbach, who paid the money, and the contract was surrendered to McKee’s agent. The deed actually describes the 711 acres as lying in 4881, beginning at the sugar-tree, the south-east corner of 4881, but states the number as 4884. Benzinger & Eschbach, believing themselves to be the owners of this part of 4881, divided it into parcels and sold it, viz., 500 acres on the western side to Yan Marsonville, who conveyed to the Mitchells, two of the defendants, 50 acres, and 36 acres to Haberberger, a defendant, 50 acres to Weiner, a defendant, and 50 acres to Schoebel, a defendant. These sales were all made, deeds delivered and purchase-money received without notice or knowledge of the mistake in the location, and Morris, the owner of 4881, still remaining in the belief that it was located where 4880 lies. Morris bought of Payne in August 1849, and when on his way to visit tract 4880, accompanied by Nelson, the agent of Payne, who was going with him to show it to him as 4881, he was shown, by Nelson, Weiner’s improvement on 4881, which he pointed out as 4884. He was then also informed by Nelson, while passing through 4881 on their way to 4880, that Benzinger & Eschbach were the owners of that tract, and Weiner had bought of them. Nelson was then acting as Payne’s agent, and was going with Morris to show him Payne’s tract, which Morris intended to and did purchase immediately afterwards. According to Nelson’s testimony, Weiner’s improvement consisted of about an acre of land, and he put up a small log-house soon afterwards in the same fall. But according [225] to Payne’s testimony, the improvements on the tract were commenced as early as 1845 or 1846, and had grown to considerable size in 1849. It is thought Payne is contradicted by the date of the deed to Benzinger & Eschbach, in August 1847: But as there was a precedent contract of purchase, this is not satisfactory. Some of the vendees of Benzinger & Eschbach were in possession at least as early as 1849, and before Morris bought. Since that time Schoebel’s improvements have been increased so largely, that they were valued at $6000. He bought out Weiner, and his improvements are upon his own purchase and that of Weiner. Haberberger’s improvements were valued at $4000 or $4500. The 500 acres owned by the Mitchells are unimproved. It is very clear that all the parties have acted in utter ignorance of the true location of their lands. Payne, and Morris, his vendee, believed that 4880 was 4881; and Benzinger and their vendees believed that 4881 was 4884; and all have continued to act accordingly. But Payne’s act was a positive one, and misled all the others, he advised his principals to buy his own tract, he made the contract with McKee for it, he took the deed for it to his principals, and they paid the money for it. They actually purchased 4881, though denominating it as 4884. They did not intend to buy 4884 but 4881 as it lay on the ground. It was 4881 with all its natural advantages they intended to obtain, and their deed describes it in fact except in the number. Not only did they buy 4881 in fact, but they afterwards divided and sold it out in parcels, making conveyances and receiving payment. Their condition is such they cannot retrace their steps if they would. They are bound by their conveyances, and some of their vendees have expended large sums of money on the faith of their title. Under these circumstances Payne would be estopped as to the whole purchase of Benzinger & Eschbach. He misled them to their injury not only in expending their own money upon the purchase of 4881, but in placing themselves in a false- position towards their own vendees. To permit him now-to prove the truth of his title to 4881 would involve them not only in the loss of the land itself they were induced to purchase and pay for, but would subject them to strife and litigation with their vendees. For these reasons we think the court below erred in confining the estoppel to those parts of the tract in the hands of their vendees who had made valuable improvements upon them. It is impossible to restore Benzinger & Eschbach to the same position they were in -when they were induced by Payne to buy the land. The cases bearing upon the question of equitable estoppel are so numerous I shall only refer to the following as fully sustaining our application of the principle to the facts of the present case: Diamond Coal Co. v. Fisher, 7 Harris 267; Beaupland v. McKeen, 4 Casey 124; McKelvey v. Truby, 4 W. & S. 323 ; [226] Buchanan v. Moore, 13 S. & R. 304; Carr v. Wallace, 7 Watts 394; Lewis v. Carstairs, 6 Whart. 193; Id., 5 W. & S. 209; Commonwealth v. Moltz, 10 Barr 530-31; Hill v. Epley, 7 Casey 333-4; Woods v. Wilson, 1 Wright 379. There is no doubt of the estoppel as against Payne, but is Morris estopped ? He bought with a full knowledge tha.t Benzinger & Eschbach were claiming title to this tract, derived from Payne’s agent while on their way to visit the land he intended to purchase, and then saw himself the improvements of Weiner, their vendee. More than this, he did not intend, in fact, to purchase this tract, for he was shown and actually bought 4880, and continued to claim it as his own until he sold it to Millingar. He stands also in privity with Payne as his alienee, who sold him the land now known as 4880. It is true he was ignorant that his conveyance applied to the land which Payne induced Benzinger & Eschbach to buy, but this does not alter the fact that he did not buy that land, but bought and paid for the land covered by 4880 ; held himself out to the world as its owner, and so sold it to the plaintiff. His acts, as the alienee, united with Payne’s act in keeping up the delusion originated by Payne. Under these circumstances his purchase and continued claim of the tract known now as 4880 were positive acts connected with Payne’s act, characterizing his own continued silence, and this gave it also a positive effect in misleading those who were the professed owners-of 4881. It was not mere silence, but an operative quietude injuriously affecting those in possession of 4881; and its effect is displayed in the extent and value of the improvements which sprang up during his undisturbed and long continued repose. The case is uncommon — one of mutual error and of great hardship — but it is a mistake proceeding from one and the same person who misled all the rest, and which cannot now be remedied without great injustice to those who were first misled by Payne. It seems to be a case, therefore, to which we must apply the maxims, prior in tempore potior est in jure — melior est conditio possidentis. As to the 311 acres in possession of M. & W. Konle and F. X. Long, the case is different. The title to this part came from B. E. Mauer to Horace Little, who sold to the Konles. Payne had nothing to do with this sale, and the doctrine of estoppel, therefore, does not apply. In the writ of error taken by Henry Millingar the judgment is affirmed ; but in that taken by the Mitchells and other defendants, judgment is reversed and a venire de novo is awarded