May 24, 1894
GARDNER ET AL.
The opinion of the court was delivered by: Murphy, C. J.
This is an action to quiet the plaintiffs' title to certain real estate situated in Smith Valley, Lyon county, Nev., consisting of two acres, described in the complaint, upon which the plaintiffs have filed a declaration of homestead. In the complaint it is averred that the plaintiffs are husband and wife. That Ida L. Gardner purchased the land described in the complaint from W. H. Lee and William Sanders on the 14th day of February, 1891, paid the sum of $50, the price thereof, and took a deed therefor in her own name, and has been in the actual possession of the same since said date, and made improvements thereon to the value of $1,200 in buildings and fences; and it is alleged that the plaintiff Ida L. Gardner and her grantors have been in the continuous, open, peaceable, notorious possession of said land adverse to all the world, and claiming title thereto, for more than 15 years last past. The defendant, by his answer, denies that the plaintiff Ida L. Gardner or her grantors are now, or ever were, the owners of in the possession of, or entitled to the possession of the land described in the complaint, except upon certain conditions, set forth in the answer, which conditions had not been complied with; denies the value of the improvements; and alleges that he is now, and has been since the 6th day of September, 1883, the owner in the possession, and entitled to the possession, of the land in controversy, by virtue of a patent issued to him by the state of Nevada to the land on said last-mentioned date; and that, when the plaintiffs entered upon said land, they did so without the consent of the defendant, and with full knowledge of his ownership and possession of said land. We glean from the record the following facts: W. H. Lee and William Sanders, and their grantors, being the owners of and claiming a large tract of land adjoining the land of the defendant, inclosed the same, or a part thereof, with a stone fence. At the time of constructing this fence the lines of the legal subdivisions in accordance with the United States surveys were not known to the parties who caused the fence to be built. After the landowners in that section of country had familiarized themselves with the lines of the legal subdivisions, it was found that the grantors of Lee and Sanders had inclosed a small portion of this defendant's land,—that portion now in dispute. In 1890 this defendant entered into a verbal agreement with W. H. Lee for the firm of Lee & Sanders, in which Lee & Sanders agreed to furnish this defendant with an abstract of title, and give him a deed to a strip of land situated across the road from the defendant's house, and upon the furnishing of the abstract of title and the giving of the deed by Lee & Sanders to the piece agreed upon this defendant was to deed to Lee & Sanders the land within their in closure, and now in controversy. Lee & Sanders have not complied with their part of that agreement, and the defendant avers on information and belief that Lee & Sanders are not now, and never were, the owners of the land for which they had agreed to give this defendant a good and clear title.
The appellants contend that, notwithstanding the facts are as above stated, yet, by reason of the fact that Pierce, the defendant, while in conversation with a number of persons at Wellington's,—J. H. Gardner, one of the plaintiffs, being present,—stated "that he had traded the land described in the complaint to Lee and Sanders for another piece of their land, and that the land belonged to Lee and Sanders," coupled with the fact that the defendant stood by, saw the improvements being made, and never asserting ownership, or objecting to the expenditure of money on the improvements, he is now estopped from claiming the land, or any interest therein. The dwelling house of the plaintiffs is not upon the land in dispute; the barn, outhouses, and other improvements are, and are estimated to be of value of $400. The principle of the law is that he who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. This rule has its justification in the justness of preventing the accomplishment of fraud. It consists in holding for truth a representation acted upon, when the person who made it seeks to deny its truth, and deprive the party who has acted upon it of the benefit obtained. But, in order to justify the interposition of a court of equity to enforce an estoppel in pais, it is necessary to establish by very clear proof not only the fact of representations being made as alleged, but that they were false, and were made with the intent that they should be acted upon. 1 Story, Eq. Jur. 191, 192. And a party setting up and relying upon an estoppel is himself bound to show the exercise of due diligence and good faith in his endeavor to ascertain the truth of the statements made, and upon which he claims to have relied and acted; and what is reasonable diligence is a question of fact to be passed upon by the court or jury after taking into consideration all the circumstances of the case. In some cases he might rely upon the representations or acts of the party to be estopped, without any inquiry whatever; while in others it would be gross negligence, and a want of good faith, not to require of the party relying upon the estoppel to make use of the means he has at hand to ascertain if the statements he has heard, and upon which he is about to act, were true; and especially should this be the rule when the controversy relates to real estate. In the case under consideration there is nothing in the record showing or tending to show that Pierce made the statement or representation imputed to him with the intention to deceive or defraud the plaintiffs, or that they would act upon it. It does appear from the transcript that he was not aware that the plaintiffs were about to purchase the land until long after they had purchased, and commenced making improvements. It is also in evidence that the plaintiffs were negligent in not inquiring into the true title of their grantors. The plaintiff Ida L. Gardner admits that she knew nothing about the ownership of the property except what her husband told her. J.H. Gardner, her coplaintiff, testified that he had heard defendant, Pierce, say at a public meeting at Wellington's that he had traded the land to Lee & Sanders for a piece of their land; that Lee & Sanders now owned the land described in the complaint; that, he afterwards saw Pierce cleaning the land. But Pierce's testimony on this point, in substance, is that he agreed to trade the land to Lee & Sanders for another piece of land, provided they furnished him with a good title to the land that he was to receive in exchange; and that he is now ready to carry out his part of the agreement, but he is informed and believes that Lee & Sanders are not now, and never were, the owners of the land. The testimony being conflicting, we must presume that the trial court adopted the statements made by the defendant. Appellants contend that, Pierce having stood by and seen them making their improvements, and not notifying them of his title, he is now estopped to assert it; or, putting it in another form, they invoke the doctrine that a person remaining silent when he ought, in the exercise of good faith, to have spoken, will not be allowed to speak when he ought, in the exercise of good faith, to remain silent. The ground upon which the estoppel by silence proceeds is in all respects governed by the same principles as estoppel by declarations or statements, and is based on fraud, actual or constructive, on the part of the person sought to be estopped. The laws of this state import notice to all persons of the contents of duly recorded instruments. Upon this subject, Bigelow on Estoppel, at page 502, says: "In like manner it is settled law that standing by in silence will not bar a man from asserting a title of record in the public registry or other like office, so long as no act is done to mislead the other party. There is no duty to speak in such a case. *** It follows that it is not enough to raise an estoppel that there was an opportunity to speak, which was not embraced. There must have been an imperative duty to speak." Also pages 519 to and including 524, 541, 594. The facts in this case are altogether insufficient to create an estoppel against the defendant. The judgment and order appealed from are affirmed.
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