Peery v. Hall

Sherwood, C. J. 1. ejectment: equitable estoppel. If the testimony of Hall is worthy of belief, a clear case of estoppel has arisen even in his-favor, and although Hall’s testimony conflicts with that of the plaintiffs in some respects, yet it finds corroboration in the testimony of the other-witnesses and some of the circumstances attending the-transaction, and the circuit court having all the witnesses before it, possessed superior facilities for placing a proper-estimate upon the force, effect and value of the testimony adduced than we possibly can. Two of the plaintiffs were present at the sale under the lien judgment and bid on the property which Hall bought in. After the sale, they, through Peery their co-plaintiff, surrendered possession of the premises to Hall, and an adjustment of the rents up to the 1st day of May, 1874, took place, and Hall was to collect the same and account to plaintiffs. Thereupon, Hall, thus placed in possession, made valuable improvements on [507] the premises, and to all intents was the apparent owner. These facts are undisputed, and, standing alone, are of themselves sufficient to raise an estoppel, regardless of any direct promise or representation to that effect. “ The term ‘ representation ’ is used for convenience. * * It is not necessary that there should be an express statement. It is enough that a representation is-implied, either from acts, silence or other conduct.” Bigelow on Estoppel, 437. But in this case, if the testimony on the part of defendants is to be taken as true, there were terms and expressions of active encouragement used on the-part of plaintiffs — terms wholly inconsistent with any subsequent claim of the property thus surrendered by them.* 2.-:-. But were we inclined to leave the question of estoppel as to Hall an open one, there can be no doubt when we come to the case of Rice but that he would be protected against any claim of the plaintiffs. When Rice-exchanged his home with Hall for the corner building, Hall was in full possession, having been given possession by plaintiffs themselves, and was acting as owner and making improvements, the plaintiffs living in the vicinity, perhaps in the same town, and making no objections, and one of them, Austin, actively aiding in the exchange, and Tindall and Peery, according to Hall,- consenting thereto. If' these facts do not operate an estoppel, it would be difficult' to imagine any that would so operate. The authorities-' cited by defendant fully support the position here taken,, and judgment affirmed. All concur. Footnotes [*] Another case.brought by the same plaintiffs against defendant-Hall alone was disposed of in the same way. Norton, J., delivering the opinion of the court, said : The case now before us was tried upon the same evidence introduced on the trial of the above case and involves-the same questions as to defendant Hall. It was expressly held in that case that his evidence was sufficient to raise an estoppel in defendant Hall’s favor, and this ruling necessarily leads to an affirmance of the-judgment in this case.