Mason v. Dierks Lumber & Coal Co.

Wood, J., (after stating the facts). The uncontroverted evidence establishes the following facts: That Mason entered the land in controversy as his homestead, acquired title to it under the homstead laws, that he impressed it with the character of a homestead by residing on it as his home, that it was his homestead at the time it was sold, and that his wife, Mrs. Z. F. Mason, did not join him in the execution of the deed; that before the deed was executed Mason represented that he was an unmarried man to the agent who negotiated the sale for appellee, and who asked Mason before the deed was made whether or not he was a married man, with the view of ascertaining the fact. The testimony is in conflict as to whether Mrs. Gammill at the time of the sale or before heard her father represent himself as a single man. The finding of the chancellor as to this fact against Mrs. Gammill would not be clearly against the weight of the evidence. Inasmuch as Mrs. Mason did not join in the execution of the deed, the same was void, and appellee acquired no rights by that conveyance. Act March 18, 1887: Pipkin v. Williams, 57 Ark. 242; Bluff City Lumber Co. v. Bloom, 64 Ark. 492; Park v. Park, 71 Ark. 283. The fact that at the time of the sale Mason was living in Arkansas and his wife in Alabama makes no difference. See Duffy v. Harris, 65 Ark. 251. So far as Mrs. Mason is concerned, any representations made by her husband could not estop her, for she was not his privy in estate or blood. Gober v. Smith, 36 S. W. 910. But as to the heirs of Mason the case is different. They are his privies. Mason could have abandoned the land as his homestead, although he could not have alienated it without his wife’s joining in the deed. Farmers’ Building & Loan Association v. Jones, 68 Ark. 76. Mason did something more than merely accept the purchase money and sign the deed. He made a positive representation as to his status that he knew was untrue, and that was intended to and did mislead appellee to its damage, should the deed be cancelled. Because of such false representation, he could not maintain the suit, and neither can his privies in blood and estate. Schwarz v. National Bank of Texas, 2 S. W. 865. See on estoppel: State Bank v. Robinson, 13 Ark. 214, 220; Jowers v. Phelps, 33 Ark. 465; Conner v. Abbott, 35 Ark. 365; Rogers v. Galloway Female College, 64 Ark. 628, and other authorities cited in appellee’s brief. With respect to the persons who are bound by or who may claim the benefit of the estoppel, it operates between the immediate parties and their privies, whether by blood, by estate or by contract. Pom. Eq. Jur., § 813. “The most striking instance of the estoppel recognized by courts of equity is that * * * wherein by intentional misrepresentation, misleading conduct, or wrongful concealment, a party may preclude himself from asserting his legal title to land, or from. enforcing an incumbrance on, or maintaining an interest in, real estate. This doctrine was established in equity long before the modern rules concerning equitable estoppel by conduct had been developed; and its operation is somewhat more extensive than the effects produced by the ordinary forms of estoppel. A person may not only be prevented from asserting his title or interest, he may even ¡be compelled at the suit of an innocent purchaser, to make good and specifically perform his representations.” Pom. Eq. Jur., § 821. The decree as to Mrs. Mason is reversed, and the cause as to her will be remanded with directions to enter a decree in her favor for possession of the land in controversy. As to the heirs, the decree is affirmed.