Pearce v. Nix , 34 Ala. 183 ( 1859 )

A. J. WALKER, C. J.

The question chiefly discussed in this case is as to the sufficiency of the testimony to establish the payment of the purchase-money of the land in controversy. The payment alleged in the bill is not denied by any of the defendants, except Nix, on the authority of a knowledge of the facts. As to Nix, there is a waiver of answer on oath. Because the defendants, besides Nix, do not deny the allegation from knowledge, and because an answer on oath by Nix is waived, it was not incumbent on the complainant to establish the fact alleged by two witnesses, or by one with corroborating circumstances. — Code, § 2877.

[2.] One witness, Kelly, proves positively the declaration of Nix, made before his transfer to Wall, that the purchase-money due on account of the purchase of complainant and Church was paid. This admission of Nix, made before his transfer to Wall, is evidence against the latter. — Gillespie v. Burleson, 28 Ala. 551; Jennings v. Blocker, 25 Ala. 415.

The declaration of Nix, proved by Kelly, is corroborated by other circumstances in this case. Those circumstances are — that Nix executed an instrument, acknowledging that there was, or would be, due to the complainant, on 1st January, 1845, two hundred and thirty dollars, to be paid on certain notes held by Nixon the complainant; that the sum therein mentioned corresponds very nearly with the amount which at that time (1 Jan., 1845) would be due to Nix on account of the purchase of the land; and that the correctness of the other debts of Nix against Pearce, ■which are set up as the debts intended to be paid with the two hundred and thirty dollars, is improbable. The reasons why the correctness of these last-named debts is not probable, are their antiquity, and the fact that Nix twice allowed accounts of Pearce, as credits on the purchase-money of the land, when, if those debts were correct, it would have been more appropriate and natural to have made the credits on them.

[3.] If it be conceded, that Pearce acknowledged himself the tenant of "Wall, he would not be estopped from asserting his right in equity to the land. He was in possession, holding and claiming title under his equitable right, at the time of the transaction which is supposed to evidence an acknowledgment of tenancy. He did not obtain possession by virtue of such an acknowledgment. The acknowledgment of tenancy, if made at all, was the result of an entire misapprehension and mistake of Pearce, as to the conclusiveness of Wall’s patent against his subsisting equity. Such an acknowledgment, made under such a misapprehension and mistake, by one in possession under his own equitable title, does not operate an estoppel. Jackson v. Spear, 7 Wend. 401; Washington v. Conrad, 2 Humphreys, 562; Jackson v. Leek, 12 Wend. 105; Rogers v. Pitcher, 12 Petersdorff’s Ab. 37; Smith v. Curtis & Cobb, 11 Verm. 323; 2 Smith’s L. C. 658, note to Hoe v. Oliver.

[4.] The complainant, seeking equity, must do what equity and justice require. He must pay to the defendant Wall the money expended by him in procuring the patent in Washington city, with interest; -and such paymeut must be a condition precedent- to his obtainment of any relief in this case.

The decree of the court below is reversed, and the eause remanded, that the chancellor may render a decree consistent with the foregoing opinion, and for further proceedings in pursuance of such decree.