Crane v. Esmond

Rosenberry, C. J. The findings of fact made by the trial court in this case so far as they relate to contested matters are really conclusions of law. However, the court filed an opinion in which is stated the factual basis of its decision. That part which is material is as follows: “The father is dead, his lips are sealed, there is no one to speak for him with reference to what took place in 1917 when the deed was executed and delivered to Ray Esmond to the west 52 acres, but actions sometimes are more convincing and more persuasive of what actually occurred than words. From the action of the parties after 1917 the court is firmly persuaded that there was an understanding between the father and the son that the deed of 1913 was to be canceled and the deed of 1917 substituted in lieu thereof. Part of the consideration which was given in 1913, namely, a note for $4,700 given by Ray to his father, was canceled. Can the defendant after waiting for a period of fifteen years during which time his father was alive and during which time he could have made known his claim to the east 52 acres, after the lips of his father are sealed in death be permitted to lay claim to the east 52 acres when the land during that period had been occupied or rented by his father, the taxes on which had been paid by his father, and all the rights and privileges of ownership been exercised by his father and known at all times to the defendant to have been so exercised ?” A careful study of the evidence leads to the conclusion that there is no evidence of any agreement made between the father and the son with respect to the reconveyance of the 104-acre tract. The only testimony offered which in any way tends to support such a conclusion is that given by one — 576 — of the plaintiffs, Inez Crane, to the effect that the defendant, in the summer of 1932, fifteen years after the occurrence, told her that his father became very excited over the matter and that he went home and got the deed and gave it to his father, who threw it in the stove; and the further fact that the father executed and delivered to the defendant a deed for the west 52 acres. It is not clear from the findings of fact or conclusions of law upon what basis the trial court placed its decision. It is a fair inference from the part already set out in the quotation that it was on the ground of estoppel. We turn now to an examination of the principles underlying the doctrine of estoppel as affecting the title to land. It has been stated by eminent authority and approved by the supreme court of Alabama in Jacksonville Pub. Serv. Corp. v. Calhoun Water Co. 219 Ala. 616, 123 South. 79, 64 A. L. R. 1550, citing 2 Pomeroy, Eq. Jur. (4th ed.) § 807, that in order to affect the title to land by way of equitable estoppel— “the following grounds must appear: ‘ (1) There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or at least expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. ( 5 ) The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it.- (6) He must in fact act upon it in such a manner as to change his position for the worse/ ” — 577 — In addition to these specific grounds, consideration is given to the further proposition that— “where it is sought to estop the owner of land to assert his legal title, ‘it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is opposed to the letter of the statute of frauds,- and it would greatly tend to the insecurity of titles if they were allowed to be affected by parol evidence of light or doubtful character.’ 2 Pomeroy, Eq. Jur. (4th ed.) § 807.” Jacksonville Pub. Serv. Corp. v. Calhoun Water Co., supra. Discussing this matter in Davis v. Davis, 26 Cal. 23, 43, 85 Am. Dec. 157, at p. 168, the supreme court of California said: “We may say in respect to parol evidence of the declarations and admissions of persons made long anterior to the trial, upon which an estoppel in pais may be sought to be founded, that it cannot be too carefully scrütinized by courts and juries. In all cases it is the most dangerous species of evidence that can be admitted in a court of justice, and the most liable to abuse. In most cases it is impossible, however honest the witness may be, for him to give the exact words in which the declaration or admission was made. Sometimes even the transposition of the words of a party may give a meaning entirely different from that which was intended to be conveyed. The slightest mistake or failure of recollection may totally alter the effect of the declaration or admission. And more than this, it is most unsatisfactory evidence on account of the facility with which it may be fabricated, and the impossibility, generally, of contradicting it when false.” This court said in Gove v. White, 20 Wis. *425, at p. 434: “Courts will not construe ignorance or misapprehension of the true nature or existence of a right into a forfeiture of the power to enforce it. It must appear that the party to be estopped was acquainted with his title and wilfully concealed or misstated it, or that he was guilty of such gross negligence — 578 — and indifference to the rights of others as, under the circumstances, to be equivalent to actual and premeditated fraud.” The court of appeals in Lyon v. Morgan, 143 N. Y. 505, 38 N. E. 960, said: "The doctrine of - estoppel, when invoked for the purpose of working a change in the title to land, is to be applied with great caution. It permits verbal statements or admissions to be substituted in place of the written evidence of transfer which the statute of frauds and the general rules of law require in such cases, and hence should not be applied unless the grounds upon which it rests are clearly and satisfactorily established, and not then except in support of a clear equity or to prevent fraud.” The following cases present examples of the application of these fundamental principles: Moran v. Burmeister, 211 Wis. 669, 247 N. W. 873; Knauf & Tench Co. v. Elkhart Lake S. & G. Co. 153 Wis. 306, 141 N. W. 701; Hovely v. Herrick, 152 Wis. 11, 139 N. W. 384; Hustis v. McWilliams, 175 Wis. 365, 185 N. W. 159; Mariner v. Milwaukee, 146 Wis. 605, 131 N. W. 442; Chloupek v. Perotka, 89 Wis. 551, 62 N. W. 537. It is quite apparent from a consideration of the evidence that in Í917 the father thought himself reinvested with the title to the 104 acres because he had received from Mitchell Leach a deed tO' the entire tract, for on that day he redeeded the west 52 acres to his son. Whatever there was of misunderstanding on the part of the father arose because the father misconceived the effect of the deed given to him by Mitchell Leach, not by reason of any misrepresentation made by the defendant. He did not know that the after-acquired title passed to the defendant by virtue of the covenants in the former deed. 2 Jones, Evidence, § 282 and cases cited. There is no evidence which tends to show that the defendant did anything to bring the situation about. He testified that he thought his father had double-crossed him. So that the — 579 — case is entirely lacking in any false representations made by the defendant or in the doing of any act or the pursuit of any course of conduct upon which the father relied to his detriment. If the evidence of the defendant be stricken from the case, then there is no evidence except a bare inference amounting to no more than a guess or suspicion that there was any understanding between the father and the defendant for a reconveyance of the premises. This is wholly insufficient under the well-established law of this state to create an equitable estoppel or to form a basis of a judgment for specific performance. In order to entitle a plaintiff to the benefit of those remedies the proof must be clear, satisfactory, and convincing, and not rest upon mere inference. The fact that the father had paid the taxes upon the premises is without significance for the reason that it appears that down to 1923 the entire 200 acres had been assessed to the father. This included the 96 acres deeded to the son as to which there is no question. Some argument is based upon consideration of the fact that the father, shortly after the making of the deed in 1917, went to live upon the east 52 acres. This was where he had formerly lived. He left the home of his son because he had trouble with the son’s wife or, as the testimony has it, was jealous of her, but the father and son continued to work and manage the property thereafter as they had theretofore. The son testified that he told his father that matters should continue as they had; he visited his father frequently in his home, and there is no evidence of any unfriendly relationship between the father and the defendant unless such can be inferred from the fact that the father had trouble with the son’s wife. There is not in the entire case a scintilla of evidence that the son had any knowledge or information or was aware of any situation which was not equally within the knowledge and information of the father and of which the — 580 — father was not equally well aware. All of the circumstances relied upon to create an estoppel in pais are equally consistent, if not more consistent, with the conclusion that the father, conceiving himself to be reinvested with the title by the Leach deed, took advantage of the situation to reimburse himself. The son testified that prior to the making of the 1917 deed he had contemplated going to Oregon. As an inducement for him to remain at home his father offered to surrender the $4,700 note. The son remained at home and the note was surrendered and canceled. This circumstance certainly cannot be relied upon to establish equities in favor of the father growing out of the execution of the deed in 1917. Estoppels cannot be based upon mere conjectures even if a proper foundation is laid for them in other respects. White v. Continental Nat. Bank, 64 N. Y. 316, 21 Am. Rep. 612. See, also, 21 Corp. Jur. ,p. 1253 and cases cited, note 95. It is considered within the doctrine of the cases cited that the plaintiffs wholly failed to establish either estoppel in pais or any other basis of equitable relief. ■ By the Court. — Judgment appealed from is reversed, and cause remanded with directions to dismiss the plaintiffs’ complaint upon the merits.