Morris v. McMahan

Smith, P. J. — statement. This is-an action of replevin, commenced before a justice of the peace, to recover the possession of specific personal property. Plaintiff and defendant each claim under a mortgage executed to them respectively by W. H. McMahan, the father of defendant. The plaintiff’s -mortgage was executed prior to that of the defendant but was not placed on the record until after that of the latter. Both mortgages were given to secure bona fide indebtedness. At the trial the plaintiff testified that at the time the plaintiff’s mortgage was executed he said to defendant: “Will, you pay for writing this up; I’ll have to pay for having it recorded,” and that to this the defendant replied: “H — 1, Prank, you know nobody ain’t going to give, anybody else a mortgage on this property and there is no use in recording it;” he, defendant, “just remarked that there was no use in having it recorded,” and “that the old man wouldn’t give [497] anybody else a deed of trust on it.” The defendant complains of the action of the court in admitting the foregoing testimony over his objections. The assurance of the defendant, to which plaintiff testified, related to the future conduct of the former’s father. CgagesTe”toppei: representation as to the future: The law is quite well settled that a representation, promise or assurance to form the ground of an action or defense, where one has been induced to act by reason thereof, should be of . . . some fact then existing, or which . had previously existed, and not merely a promise as to future conduct or intentions. Many of the authorities in'support of this statement will be found cited in Bullock v. Wooldridge, 42 Mo. App. 356. In Herman on Estoppel, section 778, it is stated: “If the representation relate to something to be afterward brought into existence it will amount only to a declaration of intention, or of opinion, liable to modification or abandonment upon a change of circumstances of which neither party can have any certain knowledge. The only case in which representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right and is made to influence others, and by which they have been induced to act.” In Cooley on Torts, section 474, it is stated: “Actual or positive fraud consists in deception practiced in order to induce another to part with property or surrender some legal right and which accomplishes the thing designed. The deception must relate to facts then existing or which had previously existed and which are material to the dealings between the parties on which the deception' was employed.” If the defendant’s father, after the" said assurance had been giveh, executed a second mortgage to the defendant, this did not form the ground of an action or [498] defense, even though the plaintiff was thereby induced not to record his first mortgage, since such assurance was not as to an existing fact but a mere promise as to future conduct and intentions. Defendant’s misrepresentation being no more than a mere promise as to the future conduct of his father, were not such as would justify the plaintiff in neglecting to record his mortgage. There is no pretense that the defendant’s mortgage is fraudulent and void, but it is insisted though it was recorded before that of the plaintiff that the lien thereof was postponed to that of the latter, because had it not been for the misrepresentation of the defendant it would have been first recorded; or, in other words, that the defendant, in the face of the assurance given by him and on which the plaintiff was induced to rely, ought to be estopped as against the latter to claim priority under his mortgage. The ground upon which an estoppel in pais proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. Herman on Estoppel, sec. 944. But the difficulty here is that though there was misrepresentation the same did not, for the reasons already stated, constitute a fraud. Statements looking to the future and not coming to a contract are not within the cognizance of the law. Even equity will not relieve in such cases. Bigelow on Fraud, 476. It follows from what has been said that the plaintiff’s said testimony did not tend to establish fraud and therefore there was no ground upon which to base an estoppel. But even if the evidence had been admissible to establish an estoppel in pais it could not have been admitted. [499] estoppel:juris [498] The defense of estoppel in pais is peculiar to equity jurisdiction. Under our statute, section 6124, Revised [499] Statutes, justices of the peace have no authority to exercise equitable jurisdiction. Sandige v. Hill, 70 Mo. App. 71; Phillips v. Burrows, 64 Mo. App. 351; Iron Co. v. McDonald, 61 Mo. App. 559. It seems to us clear that the plaintiff’s testimony was inadmissible and should have been excluded. Elfr°ctk,ns.in' The plaintiff’s instructions proceed upon the theory that if the defendant represented to plaintiff that it would be unnecessary for him to record his mortgage and that he so stated to plaintiff for the purpose of defrauding, and with the intent to deceive him, and that plaintiff relied on such representation and was induced thereby not to record his mortgage, that the issues should be found for the plaintiff. In view of what has been said in respect to the plaintiff’s testimony relating to defendant’s representations, these instructions were improper. There was no evidence showing, or tending to show, that the defendant made any representations to plaintiff touching the latter’s mortgage, that would authorize the giving of these instructions. The representations were merely promissory and related to no existing or pre-existing fact and for that reason, as has already been stated, formed no ground of an action or defense at láw. The plaintiff’s instructions in the abstract were correct but in the concrete incorrect. That of the defendant to the effect: “Although the defendant suggested to plaintiff that it was not necessary to record plaintiff’s mortgage, and stated to plaintiff that he, plaintiff, knew that the mortgagor would not give another mortgage on the property mortgaged to plaintiff, and that the plaintiff being influenced thereby, acted upon said suggestion and withheld his mortgage from record, such facts do not estop the defendant [500] from claiming and holding the property under his subsequently executed, but previously recorded mortgage,” should have been given without qualification. It results that the judgment must be reversed and cause remanded. All concur.