Conkey v. Hawthorne

LyoN, J. Two errors only are assigned. One is that the court erred in negativing the existence of the fraud charged in the complaint; the other is that it was error to refuse to [202] find Whorton estopped by bis admissions to assert title in himself to the land which the plaintiff seeks to charge with the lien of her judgments against Hawthorne. But little discussion of these alleged errors is required. As to the first, it is enough to say that the testimony strongly preponderates in support of the finding that Whorton paid a sufficient consideration for the land, and took the conveyance thereof without any intent whatever to hinder, delay, or defraud the creditors of Hawthorne. This abundantly appears from the foregoing statement of the facts of the case. The title was unassailable when he acquired it, and nothing afterwards transpired to render it less so. A finding against its validity could not be upheld without doing violence to the evidence. As to the alleged estoppel: even though the proofs would sustain the proposed finding of fact as to the statements of Whorton which the court refused to find, still such refusal is not a material error, for the reason that, had the fact been found as requested, the estoppel claimed would not result therefrom. If the bringing of this action on the faith of what Whorton said about the title can operate as an estoppel against him under any circumstances (a proposition not here decided), it certainly cannot so operate until it shall be made to appear affirmatively that this action was brought on the faith of Whorton's alleged representations that Hawthorne owned the land in question. The court was not asked to find the existence of this essential element of an effectual estoppel in pais, and there is no sufficient evidence to support such a finding had one been asked. If the fact existed, it was susceptible of direct proof, and cannot properly be found upon doubtful or uncertain inference. Had it been found, or had the court been asked to find upon sufficient proof, that this action was brought in reliance upon a statement by Whorton that Hawthorne was the absolute owner of the twenty acres of land, we should have [203] the question whether the mere bringing of the action is sufficient to estop Whorton to claim for himself ownership of the land. Some of the members of this court incline to the opinion that this question is resolved in the negative by the judgment in Warder v. Baker, 54 Wis. 49. For reasons above stated we do not reach that question in the present case, and hence do not determine whether the rule of Warder v. Baker is or is not applicable. By the Court.— The judgment of the circuit court is affirmed.