Funk v. Newcomer

Le Grand, C. J., delivered the opinion of this court. The bill of the appellant was filed in this cause for the purpose of obtaining a partition of certain property, alleged to be held in common with the appellee, and, also, for an account of profits, expenditures, &c. The case, as made by the bill, may be thus stated: — A certain Andrew Newcomer, of Washington county, being indebted to various persons in the year 1822, made a deed of trust of his property to certain parties, which provided for the payment of his debts, and reserving to the grantor any residue which might remain, for life, and then to go in such direction as he might indicate by his last will, and in default of his making a will disposing of it, then to his heirs. The trustees under this deed, after executing the trust in part, sold the property to the appellant and appellee, they taking upon themselves the payment of the debts. The appellant claims that the trustees, under the deed of 1822, had the right and power, under its provisions, to make such a disposition of the property [315] mentioned in it as they did by the deed of 1825. He claims to have advanced most of the money for the payment of the debts. The wife of the appellant, and the appellee, are the only heirs at law of Andrew Newcomer. In opposition to the pretensions of the appellant, the appellee insists, it was never the design, by the deed of 1825, to convey an absolute title to the grantees in it, but merely to continue the trust created by the deed of 1822, and that when the-debts of Andrew Newcomer should be paid and discharged, whatever might remain should belong to him. The decision of the case must depend upon the language of the instruments themselves. The deed of 1825 is an absolute deed of bargain and sale to the appellant and appellee, “their heirs and assignsSo far as the face of the deed is concerned there can be no doubt of its true character; the real question involved in the case arises out of the deed of 1822, and that is, did it confer on the trustees named in it the power to convey, as they did, by the deed of 1825? This must be answered by the language of the deed. The parts of it which are material to the present inquiry may be thus given: after specifying certain debts due and owing by Andrew Newcomer, it conveys the property to the trustees, they “to hold, all and singular, the real estate above described, with its appurtenances, together with all the personal estate or property, as likewise above set forth, to them, the said Henry Newcomer, Henry Landis and John Witmer, and their heirs, and the survivor of them, and the heirs of such survivor, forever, in trust, nevertheless, that they, the said Henry Newcomer, Henry Landis and John Witmer, and the survivor or survivors of them, and the heirs of such survivor, may sell, convey and dispose of, all or any part or portion of the real estate, together with the personal property as in this deed of trust set out and described, either at public or private sale for cash or on credit, as they, the said Henry Ne/wcomer, Henry Landis and John Witmer, may judge most advantageous and expedient, and the proceeds of the sales to apply, first, to the discharge of all the several debts and sums of money due and owing by him, the said Andrew Newcomer,” &c. [316] This deed certainly authorises the sale, by the trustees, “of all or any part or portion of the real estate, together ivith the personalproperty.” And this being so, there can be no doubt the deed of 1825 was but a proper exercise of the power conferred by that of 1822, unless it was executed with a fraudulent design, or was the result of a fraud practiced by both, or one, of the grantees in it, on the grantors and on Andrew Newcomer. The deed of 1822 authorised a sale of “all or any part” of the property, and on such terms as the trustees deemed the most advantageous, “either for cash or on credit.” It must be recollected that the rights of none of the creditors of Andrew Newcomer are involved in this controversy. If he had any, at the time of the filing of the bill in this case, the deed of 1822, as to them, would be void under the decisions of this court. The controversy here is between the heir at la\y of Andrew Newcomer and John Funk, both being grantees in the deed of 1825, We are of opinion, that Ohristiap Newcomer is estopped from denying the title conveyed by the deed of 1825. In support of this opinion it is but necessary to state a few principles familiar to the profession. A party is estopped from denying a title which is recognized in a deed under which he claims; a grantor is estopped from denying the title of his grantee; a title acquired by the grantor, after he has conveyed, by warranty, land to which he had no title, enures to the grantee by estoppel. These principles dispose of the testimony of John Wilmer, one of the grantors in the deed of 1825, and of the objection of Christian Newcomer. But, it is said, and witnesses wéré examined to show, that the property conveyed was in value considerably beyond the debts of Andrew Newcomer, and that, therefore, to allow the grantees in the deed to take it on the .payment of the debts would be to work a fraud on Andrew Newcomer. To this it is replied, and by an abundance of testimony, given by many witnesses, that Andrew Newcomer recognized the title of Funk and his son Christian after the deed of 1825, stating to purchasers from them of some of the property that he was pnly a tenant at sufferance; that he had only a life estate in the property; that Funk and hi§ son had the fee in them. [317] This he stated to persons who applied to him to make purchase of some of the property. He congratulated himself on the fact that he was free from difficulty, because Funk and his son Christian had, for the property conveyed to them, agreed to pay his debts. Besides, it is proved, that Andrew Newcomer urged the making of the deed of 1825 to Funk and Christian Newcomer. These circumstances we consider as amounting to an estoppel in pais and binding on his heirs. Where a person having a title to real estate, acquiesces in the sale of it by a person pretending to have title, and having color of title, he shall be bound by such sale, provided no fraud was practiced upon him. Morris vs. Moore, 11 Humphreys, 433. “If a person maintain silence, when in conscience he ought to speak, equity will debar him from speaking when conscience requires him to be silent.” Hall vs. Fisher, 9 Barbour, 17. In the case of Morford vs. Bliss, 12 B. Monroe, 255, it was held, that where a mortgagee of certain premises requested the holder of a note of the mortgagor, in which the mortgagee was surety, to obtain judgment on the note, and levy on and sell the mortgaged premises, he being present at the sale, and did not object to the sale, that he was estopped to assert his title, under the mortgage, to the premises. Christian Newcomer having accepted the deed of 1825, (as we must suppose, as he has acted under it in executing deeds for parts of the land,) and, by its legal effect, acknowledged the interest of Funk, as tenant in common, cannot now claim the whole land by a title paramount to that under which John Funk claims. The doctrine of estoppel applies to such a case, as fully as if he liad, himself, sold the land to Funk, and was now seeking to divest, the title he had conveyed. If Funk, on the faith of this deed, has paid Andrew Newcomer’s debts, it would be a fraud to allow Christian Newcomer to take the land by the title under which he now claims. In reply to the objection urged at the bar, that Funk had purchased, after the deed of 1825, a portion of the property mentioned in it, it may be stated that this circumstance, in no way, impairs the title of Funk under the deed of 1825. He merely purchased out the interest of Christian Newcomer in [318] the particular property, and also the interest of Andrew Newcomer in the one-fourth of it, derived through Christian Newcomer, senior. Had the sale been made to a third party, the transaction would be seen to be free from all difficulty. So far as Christian Newcomer was concerned, the deed to Funk was but a severance of the tenancy in common. In thus - disposing of this case it may not be improper to observe, that there are some circumstances connected with it which are very well calculated to induce the opinion, that the deed of 1825 was intended as. a mere continuance of the trust created by that of 1822, and as the result of a family arrangement. But, inasmuch as the parol proof is excepted to and ruled out, and the parties having chosen to indicate their relations to each other by instruments of the greatest dignity and solemnity, and to do acts in conformity with their legal purport, they must abide the legal consequences flowing therefrom. At least, a majority of the court so think. Entertaining these views, we are of opinion the appellant is entitled to the relief asked, and, accordingly, reverse the decree and remand the cause for further proceedings, in accordance with this opinion. Decree reversed and cause remanded.