Haun v. Martin

Mr. Chief Justice Bean delivered the opinion. 1. Upon the death of a timber culture claimant, before performance by him of the conditions precedent to obtaining title from the government, his heirs succeed to the claim, and may obtain a patent therefor in their own name by proof of full performance by them and their ancestor of the required con [307] ditions, but in such caso they take directly as donees of the government, and not by inheritance: Kelsay v. Eaton, 45 Or. 70 (76 Pac. 770, 106 Am. St. Rep. 662); Warner Valley Stock Co. v. Morrow, 48 Or. 258 (86 Pac. 369). Wien, therefore, Mrs. Martin died, her interest in her timber culture claim absolutely terminated and was at an end, and her rights passed by direct grant to her heirs as substituted beneficiaries of the government. She had, at the time of her death, no interest which could be devised or which would descend or pass to her heirs or personal representatives. 2. The proceedings of the county court in assuming jurisdiction over the claim and authorizing its sale were therefore absolutely void for want of jurisdiction of the subject-matter. The claim at that time belonged to the heirs in their own right, and such proceedings could have no more force and effect than if the county court had assumed to order the sale by the administrator of any other property belonging to them. The plaintiff clearly cannot successfully maintain title to the property based upon the proceedings of the county court. 3. It is argued, however, that the defendant is estopped by his conduct from asserting title to the property as against the plaintiff. The only' averments in the cross-bill upon which such a contention can be based are that the defendant was served with citation in the county court by publication and that he refused to pay the mortgage given by the administratrix to secure funds with which to commute the timber culture entry but consented and acquiesced in the proceedings of the administrator in reference thereto. This under the law is not a sufficient plea of an estoppel.. Where an estoppel is relied upon, the facts constituting it must be pleaded with particularity and precision, and it must be alleged that the party setting up the estoppel relied upon such facts believing them to be true, and will be prejudiced by allowing them to be disproved. Nothing can be supplied by inference or intendment: 8 Enc. Pl. & Pr. 10. 4. Where the owner of land which is offered for sale stands by, and with knowledge of his title, encourages the sale, or does [308] not forbid it, and thus another person, in ignorance of the true title, is induced to make the purchase under the supposition that the title offered is good, he is bound by the sale, and neither he nor his privies will be allowed to dispute the purchaser’s title: 1 Story, Equity (13 ed.), 185. But to justify the application of this principle it is indispensable that the party sought to be estopped should by his conduct or gross negligence encourage or influence the purchase, and that the other party, being at the time ignorant of the actual title, should have been misled by his acts and conduct and induced thereby to change his position: Page v. Smith, 13 Or. 410 (10 Pac. 833); Whiteaker v. Belt, 25 Or. 490 (36 Pac. 534); Odlin v. Gove, 41 N. H. 465 (77 Am. Dec. 773); Junction Railroad Co. v. Harpold, 19 Ind. 347. 5. Now, there is no allegation in the bill that the defendant was present at the administrator’s sale, or that he had actual knowledge thereof. Nor is it averred that he induced or encouraged it,’ or that plaintiff, in making the purchase, relied upon or was influenced in any way by the acts or conduct of the defendant, or that he was at the time ignorant of the true state of the title, and without such allegations the bill is fatally defective. The averment that the citation to show cause why the land should not be disposed of at administrator’s sale was served upon the defendant by publication is no averment that he had actual notice of the proceedings in the probate court. Such a service could not have legally been made unless he was a nonresident of the State, and as the defendant made no objection to the sale it may be, for aught that appears, that he was wholly ignorant of the matter. The citation as issued and served was a mere constructive notice, and could not of itself estop the defendant from asserting title to the property since the proceedings in the county court were void for want of jurisdiction of the subject-matter. We are of the opinion that the cross-bill does not state facts sufficient to entitle the plaintiff to relief in equity, and that the demurrer was properly sustained. Let the decree be affirmed. Arrirmed.