Bryan v. Pinney

WELLS, J. This is an action in ejectment brought in the district court of the second (now third) judicial district of Arizona territory on the eleventh day of July, 1887, by T. J. Bryan against D. H. Pinney, Mary E. Pinney, M. H. Sherman, George H. Mitchell, George W. Mauk, and the Bank of Napa, a corporation, to recover block No. 98, situate in the city of Phoenix, in Maricopa County, this territory. The property in question belonged to one J. M. Bryan, who died intestate August 29, 1883, leaving, as sole heir at law, Vina Bryan, his widow, who subsequently'married R. D. Brown. She is hereafter referred to as Vina Brown. Plaintiff alleges ownership, — 419 — deraigning title from J. M. Bryan, through his estate, by conveyance from said Vina Bryan or Brown. Defendants plead not guilty, and, further, base their defense upon an equitable estoppel. The cause was tried by the court, sitting without a jury, on the eighth day of July, 1890, and on the first day of December, 1890, the court rendered judgment in favor of defendants, from which, and the order denying him a new trial, plaintiff appeals. It appears that said J. M. Bryan was indebted to one M. ~W. Kales, which indebtedness was evidenced by a promissory note made by said Bryan on the fourteenth day of March, 1883, for the sum of five hundred dollars, payable on the fourteenth day of September, 1883, with interest at the rate of one and one half per cent per month, to secure the payment of which note said Bryan on said fourteenth day of March, 1883, made and delivered to said Kales a certain mortgage, conveying said block No. 98. To enforce the payment of the note and mortgage, Kales, on the twenty-eighth day of September, 1883, brought a foreclosure suit in the district court of the said second judicial district of this territory, in and for the county of Maricopa. Judgment and decree were rendered by the court on'the sixteenth day of October, 1883, decreeing a foreclosure of the said mortgage, and a sale of the property conveyed by said mortgage to satisfy the judgment, for $529.37. The property was sold at public sale, under said decree, on the fifteenth day of December, 1883, and said Kales became the purchaser at said sale for the sum of six hundred dollars. A sheriff’s certificate of sale was, upon the completion of said sale, given to said purchaser, who on the thirty-first day of January, 1884, sold and assigned said certificate to the defendant D. EL Binney, in consideration of the sum of six hundred and fifty dollars. There1 being no redemption of the property, a sheriff’s deed was executed and delivered to said Binney on the sixteenth day of June, 1884, who went into possession of the property, and has ever since, by himself and his grantees, been in such possession. Subsequent to the making of said sheriff’s deed, Binney conveyed portions of said property to the other defendants in this cause. It further appears that on the twenty-fourth day of September, 1883, said Kales was appointed administrator of .said Bryan’s estate, and acted — 420 — as such until December- 6, 1884, when the estate was settled and closed, and the administrator discharged. No distribution of block 98 was made in the administration of the estate. In the foreclosure suit Kales was plaintiff, and also, as administrator of Bryan’s estate, was defendant. Plaintiff here assails the judgment and decree of foreclosure, and the proceedings had thereunder, in the former suit. ■ In determining the rights of the parties in this action, we deem it unnecessary to pass upon the question of the validity of the judgment and decree in the foreclosure suit, or to consider it, beyond where, in connection with the facts appearing in proof, the rights contended for by the defendants were developed. The record shows the following facts to have existed: M. W. Kales was appointed administrator of J. M. Bryan’s estate at the suggestion of Yina Brown, the widow of said deceased, Bryan. At the time of the foreclosure sale of block 98,—the property in question,—and for a long time afterwards, she lived across the street from' said land, and while defendant D. H. Pinney was in the possession thereof, and erecting improvements and paying taxes thereon. After the foreclosure sale she informed one Mrs. Cotton of her desire and intention to redeem the land, and afterwards declined to do so. Before the time of redemption had expired she (Yina Brown) signed a paper for the purpose of allowing the plaintiff in this action to redeem the property. On the day of the foreclosure sale the plaintiff was present in the town of Phoenix, where the land is situate, for the purpose of bidding on some of the property sold, but arrived too late. He after-wards tried to redeem the property in question. After the sale Mrs. Brown informed Mrs. Cotton that she was going to redeem block 98, but; when informed that defendant Pinney was about to buy it, she said she was glad of it, and did not want to redeem it. This declaration, however, was not communicated to said Pinney. Between the time of the purchase of block 98 by said Pinney, and the date of the commencement of this action, he expended the sum of four hundred dollars in the payment of taxes, .and the further sum of four thousand eight hundred dollars in improvements on the premises. The property was sold at the foreclosure sale for its full value. The note and mortgage executed by Bryan to Kales, and the — 421 — indebtedness secured thereby, have not been paid, unless they have been paid or satisfied by virtue of said sale. Prom this recital of facts, it seems quite satisfactory to us that Mrs. Vina Brown and the plaintiff had knowledge, and must be presumed to have known, of the proceedings of the probate court during the probate of her husband’s estate, and of the proceedings in the foreclosure suit, including the sale of the' property under the decree, the purchase by defendant Pinney, and his going into the possession of the property sold, paying taxes, and making valuable improvements thereon. On July 11, 1887, three years after the making of the sheriff’s deed, this action was brought to divest the defendants of a possession which they held under an apparent title acquired in good faith, b.y what they supposed to be a valid judicial sale, under the sanction of a court of general jurisdiction,— as we think, a possession, owing to the line of conduct of both Mrs. Brown and the plaintiff, with their knowledge, acquiescence, and consent,—during which possession valuable and lasting improvements were made by defendant Pinney. In the case of Dickerson v. Colgrove, 100 U. S. 580, upon the subject of equitable estoppel, or estoppel in pais, the court says: “The law on the subject is well settled. The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both. This remedy is always so applied as to promote the ends of justice.” And in Daniels v. Tearney, 102 U. S. 420: “The principle of estoppel has its foundation in a wise and salutary policy. It is a means of repose. It promotes fair dealing. It cannot be made an instrument of wrong or oppression, and it often gives triumph to right and justice where nothing else known to our jurisprudence can, by its operation, secure those ends. Like the statute of limitations, it is a conservator, and without it society could not well go on.” In Wendell v. Van Ransselaer, 1 Johns. Ch. 344, approved in Kirk v. Hamilton, 102 U. S. 76, the court uses the following language: “There is no principle better established in this court, nor one founded on more solid considera — 422 — tions of equity and public utility, than that which declares that if one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his own claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.” The decree under which the sale was made may have been a nullity, likewise the sale, and plaintiff and Mrs. Brown, knowing that the claim of defendants to the property rested upon that sale, for three years stood by and remained silent while defendants expended large sums of money in the paying of taxes and making of improvements on the land. They, in effect, disclaimed title in themselves. In Evans v. Snyder, 64 Mo. 516, approved' in Dickerson v. Colgrove, 100 U. S. 580, the heirs assailed an administrator’s sale. No order of sale could be found. This was held to be a fatal defect. But the supreme court of that state» held that where they stood silently by for years, while the occupant was making valuable and lasting improvements on the property, and redeeming it from the lien of the ancestor’s debts, they would be estopped from afterwards asserting their claim. We see no reason why the defendants may not, under the circumstances disclosed in this action, avail themselves of the doctrine of equitable estoppel in their defense. Furthermore, in the original ease there was an attempted foreclosure, followed by the sale of the mortgaged property, Kales bid the property in for the mortgage debt. Pinney, in good faith and for value, purchased and took an assignment of the certificate of sale. He thereby became the assignee of the mortgage debt, if there was no valid sale of the property under the foreclosure. Miner v. Beekman, 50 N. Y. 337; Robinson v. Ryan, 25 N. Y. 320; Jackson v. Bowen, 7 Cow. 13; Cook v. Cooper, 18 Or. 142, 17 Am. St. Rep. 709, 22 Pac. 945. If the decree in the original case was a nullity, the mortgage was not foreclosed. It remained in full force and unsatisfied, and the defendants entering peaceably and in good faith, upon receiving the sheriff’s deed for the property, and Mrs. Brown and plaintiff having knowledge of such possession and acquiescing therein at the time Pinney made the — 423 — improvements on the land, we think such possession a lawful one, and are of the opinion that the defendant’s relation to the property was that of a mortgagee in possession after condition broken, and they should be protected in their possession. Jackson v. Minkler, 10 Johns. 479; Phyfe v. Riley, 15 Wend. 248, 30 Am. Dec. 58; Van Duyne v. Thayre, 14 Wend. 233; Cook v. Cooper, 18 Or. 142, 17 Am. St. Rep. 709, 22 Pac. 945. We are of the opinion that the plaintiff is not entitled to disturb the possession of the defendants. The judgment of the lower court is affirmed. Gooding, C. J., concurs. SLOAN.- J.—I concur in the views of this court as expressed in the foregoing opinion, not only in holding that the facts show an estoppel in pais, but also in holding that, assuming the judgment in the foreclosure suit of Kales v. Kales, Admr., to be void upon its face, all the facts would then exist in this, constituting appellees mortgagees in possession after condition broken. I am, however, of the opinion that the judgment in the suit of Kales v. Kales, Admr., is not open to attack in this action, for the reason stated in Bryan v. Kales, post, p. 425, 31 Pac. 517, (decided at this term,) wherein precisely the same point was presented.