Blodgett v. Perry

Sherwood, J. Ejectment for certain land in Johnson county. Both parties claim title under Amos M. Perry, the former owner. Action brought January 22, 1885. I. The agreed statement of facts shows that the Union Bank of Missouri was the creditor of Amos M. Perry, and the purchaser of his interest at execution sale ; that the Union National Bank of St. Louis is the •successor of the former bank as to all rights and interests, etc. The plaintiff claims under a quit-claim deed made by the latter bank to him, October 22, 1884, and filed for record November 1, next thereafter. The sheriff’s deed to the Union Bank is dated October 20, 1866, and filed for record October 22, 1870. To this deed, objection is made that it shows that the special execution therein mentioned was issued September 5, 1865, delivered,to the sheriff on the fifteenth of that month; but that no sale thereunder occurred till .April 17, 1866, long after the return day of the writ, and that, therefore, the sale was void. To this objection, it ,may be replied that under the law as it then stood and now is, executions might have issued, and may issue, returnable at the option of the plaintiff, either to the first or the second term after such issuance. R. S. 1879, sec. — 272 — 2338. And in the absence of aught to tlie contrary, it will be presumed that the cleric who issued, and the sheriff who sold under the execution obeyed the dictates of duty and complied with the law. The indulgence of such presumption is of common occurrence, and of daily recognition in the courts. Long v. Joplin M. & S. Co., 68 Mo. 422, and cas. cit.; Addis v. Graham, 88 Mo. 197; Hammond v. Gordon, 93 Mo. 223. IT. Now as to the plea of estoppel in pais or equitable estoppel as set forth in the answer : The gist of the plea is that plaintiff was the attorney for the Union Bank in the attachment suit instituted by the bank against Amos M. Perry in 1870 ; that defendant claims under one Shumate, and has acquired all of Shumate’s rights in the premises by proper conveyances ; that Shumate, under the sale made by virtue of the attachment proceedings aforesaid, bought the premises in controversy, relying upon the acts of the banlc in attaching and selling under execution said property, as that of Amos M. Perry, as a declaration and admission of the bank that it was not, and Amos M. Perry was, the owner of said real estate, purchased the same, and paid therefor ; and this defendant, as his assignee, has received a deed from the sheriff for said land; and that plaintiff had acquired his deed with notice, etc. This plea is plainly bad on its face. It does not contain within its allegations a single element of estoppel. It is not alleged that Shumate was misled by any act of the Union Bank or of plaintiff, or that he was in ignorance of the true state of the title, or that the former deed to the" Union Bank was not put to record, or that the act of the Union Bank induced Shumate to buy the land which otherwise he would not have bought. An eminent text-writer, treating of the subject of equitable estoppel, says: “The cases when carefully analyzed show that all of the following elements must — 273 — actually or presumably be present in order to an estoppel by conduct: 1. There must have been a false representation or a concealment of material facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that the other party should act upon it. 5. The other party must have been induced to act upon it.” Bigelow on Est. [3 Ed.] 484. In Dezell v. Odell, 3 Hill, 215, Cowen, J., says: “We then have a very clear case of an admission by the defendant intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of' retraction. This I understand to be the very definition of an estoppel in pais.” Nor will, mere silence,or some act done, where the means of knowledge are equally open to both parties, estop the party doing the act or remaining silent. Thus in Brinckerhoff v. Lansing, 4 Johns. Ch. 64, Lansing was a mortgagee, whose mortgage was duly recorded, and he witnessed a lease made by his mortgagor of a part of the mortgaged premises, and it was ruled by Chancellor Kent that no estoppel arose, by reason of the fact of the registry of the mortgage, the lessee being charged with constructive notice of it. Similar rulings -have been made elsewhere. Odlin v. Gove, 41 N. H. 465; Carter v. Champion, 8 Conn. 554; Bigelow v. Topliff, 25 Vt. 273. The same doctrine has been recognized by this court. Bales v. Perry, 52 Mo. 449, and cas. cit.; Acton v. Dooley, 74 Mo. 74, and cas. cit. Furthermore, there must be a certainty about the alleged estoppel; the misrepresentation must be plain, not doubtful or matter of mere inference or opinion; for the courts will not suffer a man to be deprived of his — 274 — property or security where he had no intention to part with it. It is much the same thing to say that the representation or conduct is such as would naturally lead to the action taken; that is, it should be such as to justify a prudent man to act upon it. Bigelow on Est. [3 Ed.] 490, 491. Tested by these authorities, and the rule they enunciate, the plea was wholly worthless. III. And the evidence to support the plea of estoppel is of a piece with it, since it is clear that Shumate was acting under and relying not on the act of the bank in having the sale made, but upon the advice of his counsel, F. M. Cockrell, that his purchase under the second execution would be good, as the sale made thereunder would bar and estop the bank from asserting title under any former deed to the latter. IV. Nor is it seen that the case of the defendant is strengthened by the fact that the plaintiff’s name is marked to the petition as counsel with Elliot and Land, since his uncontradicted testimony shows that he was not counsel for the bank, that Land was, and that plaintiff ’ s name was signed merely as an accommodation to Land. Something has been said about' plaintiff’s agreeing to the sale in question; but there is not a scintilla of evidence tending to show this to be true, granting it to be material. That he was present' at or near the sale is indeed testified to ; that he was seen to converse with Land is also testified to; but that he agreed to the sale, or the terms upon which Shumate bought, no one swears. V. Shumate died in 1875. Prior to his death, however, and prior to the execution sale to him, to-wit, December 19, 1870, Amos M. Perry had conveyed, by quit-claim to the defendant, the premises in dispute. No deed was ever made to Shumate for the premises. About nine months after the present action was begun, however, and some fifteen years after Shumate s death, the defendant instituted in the Johnson circuit court a — 275 — decidedly unique proceeding, a proceeding wherein the said defendant appears as plaintiff, and the former sheriff as defendant, and wherein it is gravely recited that ‘ ‘ due notice" of the motion was given to the defendant, i. e., to the former sheriff! Whereupon, after numerous recitals of facts, it was ordered by the court that said former sheriff execute a deed to the present defendant as assignee of Shumate. Of this proceeding, one without notice to plaintiff, a purely ex-part e proceeding, it is scarcely necessary to say more than that there yet remains in this country a certain instrument commonly called a constitution, which forbids a man to be passed upon either in person, or estate, without an opportunity to be heard. The deed, therefore, though made under the order of the court, passed no title to defendant as against plaintiff, and was as to him utterly worthless, saying nothing about the great laches exhibited, by defendant, and those under whom he claims, in coming forward and asserting any right which it may be supposed was acquired by Shumate at the sheriff’s sale; as to which point, see Hoge v. Hubb, 94 Mo. 489. YI. Furthermore, as no title to lands sold at sheriff’s sale passes except upon delivery of the deed ( Leach v. Koenig, 55 Mo. 451 ), Shumate had no such interest in the premises as could be the subject of administrator's sale, and consequently Crittenden and Cockrell took nothing by their purchase, and of course could transfer nothing to the defendant. And the deed of the former sheriff to the defendant was, as already seen, invalid as to the plaintiff. So that the defendant occupies the attitude of a stranger to the title attempting to invoke against the plaintiff an equitable estoppel; something which cannot be done. YII. Moreover, the plaintiff bought of the successor of the Union Bank the premises in question, about fourteen years after Shumate had bid in the land, — 276 — but had failed to take a deed. Prom the great lapse of time without a deed having been taken, plaintiff might well conclude that Shumate and those claiming under him had abandoned all claim to the premises in litigation. It follows from what has been said that a peremptory declaration of law in favor of plaintiff, as asked, should have been given. The judgment is reversed and judgment will be entered in this court for plaintiff. All concur, except Barclay, J., not sitting.