Kelly v. Wagner

Chalmers, J., delivered the opinion of the court. In 1872 Wagner sold to Kelly an unimproved lot in the town of Water "Valley, making him an unencumbered deed therefor, and taking a note for eight hundred and fifty dollars for the purchase-money, secured by a trust deed on the property. The note fell due twelve months afterward, when Kelly sought Wagner, and, representing his entire inability to pay the note, begged Wagner to rescind the trade and take back the lot. He stated that the deed which had been given him was lost, and that it had never been recorded. This was untrue in fact, though probably believed to be true at the time by Kelly. The deed was subsequently found, and, in fact, had been probably recorded soon after it was executed. Wagner consented with some hesitation to take back the land, but believing that the loss of the deed without having been recorded obviated the necessity of a re-conveyance, failed to obtain one. Kelly shortly afterward removed to the country and Wagner took such possession of the lot as its unimproved character admitted of. He paid taxes on it, spoke of it to all as his property, and tried to sell it to other persons. Nine years after the verbal cancellation of the sale, during which time Kelly set up, so far as known, no claim of any sort to the land, Wagner sold it to Bryant & Shackelford, making a warranty deed to them. They have now erected a costly brick house upon it, which, together with the lot itself, they have reason to fear Kelly will claim, basing his claim upon the legal title residing in him by virtue of his deed from [303] Wagner in 1872. This bill in equity has therefore been brought by Wagner and by Bryant & Shackelford to estop him from setting up any rights under that deed. It cannot be maintained, in so far as it seeks upon equitable grounds, to divest Kelly of his legal title. According to what is perhaps the weight of authority, the owner of the legal title to land cannot be divested of it upon the ground of equitable estoppel by parol except where it is shown that there has been some element of fraud or intentional wrong in the acts or declarations by which it is sought to estop him, though the authorities on this question are not uniform. There was, we think, no intention to deceive, in Kelly’s untrue statement as to the loss and the non-record of the deed. 2 Pomeroy Eq. Jur., §§ 806, 807, 808, and cases cited. Without deciding, however, that there can be no estoppel ál to the title to land when there has been no fraud or deceit, we think that Wagner cannot claim to have been misled as to the title by the misstatement of facts by Kelly in this case. The fact as to whether the deed had been lost or not, or had been recorded or not, did not in any manner affect the title to the lot, and it was Wagner’s own folly to have so thought. The conduct and declarations of Kelly can be invoked, however, as estopping him from claiming the benefit of the lapse of time which has since ensued, and from claiming the benefit of any acts done by Wagner in consequence and upon the faith of those declarations and that conduct. Wagner took possession of the land and paid taxes on it, as Kelly knew, upon the faith of the verbal rescission of the sale, and, relying upon Kelly’s concurrence in that rescission, failed to assert his own rights under the trust deed until that instrument and the debt secured by it have become barred by the Statute of Limitations. Kelly, therefore, is estopped from setting up that statute either as to the amount due on the note or as to the taxes paid with interest. Barnett v. Nichols, 56 Miss. 622. He is estopped also to recover the lot with its present greatly enhanced value without paying for the building erected upon it. It was erected in good faith and in consequence of his own misleading conduct. Before its erection Bryant & Shackelford, who had no suspicion of [304] his claim, informed him of their purchase, pointed out the lot to him, and attempted to procure the erection of the building by him, he being a brick mason by trade. He took the matter under consideration but finally declined on the ground that he was too busy in his crop. He said nothing whatever of his own claim to the land and now seeks to excuse himself for not doing so by saying that he thought his own lot was an adjoining one. We think his own attitude is not such as to commend his mistake to favor. He should, under the circumstances of his long abandonment of the property, and his knowledge of Wagner’s reliance upon the verbal rescission, have been vigilant to know his own and to prevent others from being injured in consequence of his conduct. jDecree reversed and cause remanded with directions to render deface in accordance with this opinion. Costs in this court to be divided.