Cochran v. Harrow

Breese, J. Do the facts in this case sufficiently show an equitable estoppel ? An equitable estoppel is said to be where one knowingly, though he does it passively, by looking on, suffers another to purchase land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel. The proof in this case is full to the point that the appellant, when' spoken to by the agent of the appellee, about the title to the property in dispute, stated it was good in Hart, and when the trade was concluded at the Tremont House, on the evening of 23rd February, and fifteen hundred dollars of the purchase money paid by appellee in the presence of the appellant, and when, at the time, appellee declared he would buy no property with “ a cut-throat mortgage ” upon it, the appellant cannot now be permitted to set tip such mortgage to defeat the appellee. He concealed his interest when he should have disclosed it. Good faith required him, when called upon by appellee’s agent about the title, and when consulted on the subject, to mention his unrecorded trust deed. His not doing so, was a fraud upon the appellee. As he chose to preserve silence when duty required him to speak, he shall not be heard, when justice requires him to be silent. The decree is affirmed. Decree affirmed.