Logan v. Gardner

Opinion, Mjb. Justice Mitchell: The defence was a deed from plaintiff and her husband, to which the reply was, first, a denial of the making of any deed; and, secondly, infancy at the date of the alleged execution. To this second point, the defence rejoined acts of ratification by estoppel. The cardinal facts, therefore, upon which the jury had to pass, were the execution of the alleged lost deed, the infancy of plaintiff at that time, and the acts of estoppel. As a married woman, the plaintiff could only pass her title in the statutory mode. A disability imposed by law cannot be set aside or evaded indirectly by acts of the party : Glidden v. Strupler, 52 Pa. 400; Grim’s App., 105 Pa. 375; Stivers v. Tucker, 126 Pa. 74. The learned judge, therefore, correctly instructed the jury that if defendant had not proved the making and acknowledgment of the deed as required by the statute, they need not go further, but should return a verdict for plaintiff. The appellant’s third and fourth specifications of error complain that too strict a measure of proof was required as to the contents of the lost deed, and that proof of the certificate of acknowledgment alone was sufficient until the certificate was called in question. But the present contention would be more tenable if appellant had asked the court to say specifically that proof of the certificate was sufficient prima facie proof of the execution of the deed and of its contents, so far as they were recited therein. If the deed had been produced, it would have been necessary to show that it contained all the requisites for the conveyance of plaintiff’s title; and a party claiming under a lost deed must be held to proof of the same requisites: Krise v. [599] Neason, 66 Pa. 253. The general effect of the charge on this point was correct, and we do not think the jury could have been misled in any way by it. The third and fourth assignments of error are not sustained. The disabilities of coverture and infancy are separate and independent, and the mere fact that they both occur in connection with the same act, does not give either of them any greater force than it would have had separately. If a deed duly acknowledged had been produced, it would have made an end of the question of coverture in the case, and proof of the deed to the satisfaction of the jury would be equivalent to its production. The statute makes no distinction between femes-covert of full age and those under age; its requirements are the same for all. If, therefore, the jury were satisfied that a deed had been made by plaintiff, the objection of coverture was avoided, and defendant had only to meet that of infancy. The effect to be given to an infant’s deed was long the subject of controversy, but the decided weight of authority now is that it is voidable only; that the title passes by it, and remains in the grantee until some clear act of disaffirmance is done by the grantor after coming of age. The different views are discussed by Strong, J., in Irvine v. Irvine, 9 Wall. 617, 627, and the authorities are well collected in 10 Am. & E. Encyc. of Law, tit., “ Infants,” p. 649, etc. The law makes no distinction between the deeds of infants on account of sex; nor, as already said, is the disability of coverture made any greater or any different by the additional disability of infancy. They remain separate and distinct. The dictum of Chief Justice Gibson, in Schrader v. Decker, 9 Pa. 14, that the deed, “ being executed while the wife was an infant, is absolutely void,” must therefore be referred to the unsettled position of the law at that time. The modern authorities are clearly the other way. The cases also show that the infant may affirm his deed by much less formal acts than would be sufficient to avoid it, and clearly by any act which amounts to an estoppel: Irvine v. Irvine, supra; Wheaton v. East, 5 Yerg. 41; Bostwick v. Atkin, 3 N. Y. 53; Davis v. Dudley, 70 Me. 236; Wallace v. Lewis, 4 Harr. (Del.) 75; Tunison v. Chamblin, 88 Ill. 378, 386 ; Singer Co. v. Lamb, 81 Mo. 221. The iknowledgment and certificate, even if in the strict statu ' form, [600] would not estop a feme-covert from showing her infancy at the time: Williams v. Baker, 71 Pa. 476. But, when it is said in that case, that she could not ratify a deed after coming of age, except by a re-acknowledgment in the mode prescribed by the statute, this must be understood as limited to ratification during coverture. As soon as she becomes discovert, and of full age, she stands in the same position in regard to acts of estoppel in pais as other persons sui juris. In the present case, the plaintiff, in 1879, being then of full age, left her husband on account of his treatment, for which she subsequently obtained a divorce. The judge charged the jury, and we must assume rightly, upon the evidence, as that point is not now before us, that from 1879 to 1882 plaintiff was under no legal disability, and her acts and conduct, with regard to their effect upon her title, were those of an unmarried person, and of course of a person of full age. But, in answering the defendant’s points, the jury were told that, before they could find an estoppel, they must be satisfied that the plaintiff, with knowledge of her rights, and of the improvements and expenditures being made on the premises, acquiesced in and encouraged such improvements. This presents the only substantial question in the case. The doctrine of estoppel in pais has been very much ex-' panded in modern times, particularly in Pennsylvania, where equitable principles are applied in actions at law. The cases are very numerous, but it is not necessary to refer to more than a few of them. In Woods v. Wilson, 37 Pa. 379, the subject was discussed by Chief Justice Thompson, and it was held that silence, in ignorance of one’s own right or of another’s expenditures, will not estop, but that mere silence, with knowledge, is evidence from which a jury may find an estoppel. See, also, Hill v. Epley, 31 Pa. 331, and Miranville v. Silverthorn, 48 Pa. 147. These decisions rest on the ground that the circumstances were such as to raise a duty to speak, and that failure to do so is either a fraud, or would work such an injury as would be equivalent to a fraud, if the party should not be es-topped. On the other hand, it was held as early as Buchanan v. Moore, 13 S. & R. 304, and Robinson v. Justice, 2 P. & W. 19, that positive acts of encouragement, or which help to mislead, will raise an estoppel, without any fraud and irrespective of the party’s knowledge of his own rights. And, as was [601] pointed out by Chief Justice Gibson, this result rests on a different principle; that, of two innocent parties, the one who occasioned the loss must bear it. See, also, Chapman v. Chapman, 59 Pa. 214; Miller’s App., 84 Pa. 391; and Putnam v. Tyler, 117 Pa. 570, 586. The distinction, therefore, between the cases where acts or declarations of encouragement are necessary to create an estoppel, and those where mere silence or acquiescence will be sufficient, is one of principle, and each case as it arises must be assigned to one or the other class, according to its circumstances, the chief of which is knowledge or ignorance of the party’s own rights and the other’s action. Encouragement is necessary where the party is ignorant; but knowledge creates the duty to speak, and, where that exists, silence is enough to estop. The present case belongs in the class of Woods v. Wilson, where silence, with knowledge of expenditures being made by the part3r in-possession, may be sufficient to create an estoppel. The learned judge put it into the other class, by charging the jury that there would be no estoppel unless the plaintiff encouraged the improvements. Into this he was no doubt led by plaintiff’s sixth point, that a married woman cannot be estopped by improvements made by the vendee, even with her knowledge and encouragement. This was properly affirmed as to knowledge and encouragement during coverture; but the same phrase, thus unfortunately suggested, was no doubt inadvertently carried into the answers to points relating to estoppel by conduct after the disabilities of coverture had ceased. This tended to mislead the jury into supposing that something more than mere silence, something active or positive on the part of plaintiff, was necessary to estop her, and, in so doing, it put a heavier requirement on defendants than the case justified. For this slip, in an otherwise clear and accurate charge, we are obliged to reverse the judgment. Judgment reversed, and venire de novo awarded.