Mereness v. Delemos , 91 Conn. 651 ( 1917 )

"It has long been an accepted principle that equity will, under proper circumstances, give effect to a parol agreement relating to the sale of lands where the moving party induced by it has pursued its provisions and partly performed it. The soundness of the reasoning underlying this doctrine, and its wisdom, have both been questioned, but it has become too firmly rooted in our jurisprudence to be disregarded." Verzier v. Convard, 75 Conn. 1, 6, 52 A. 255.

A parol agreement by a grantee to pay taxes as a part of the consideration of the conveyance, is a good defense in an action by the grantee on the covenant against incumbrances. Brackett v. Evans, 55 Mass. (1 Cush.) 79; Preble v. Baldwin, 60 Mass. (6 Cush.) 549. The plaintiff in the present case represents the rights which Mrs. Edna A. Bibbins had against the defendants. As such assignee, his claim is subject to the same equities as it would have been had the suit for damages been brought in the name of Mrs. Bibbins. The question, therefore, is whether Mrs. Bibbins could have recovered for these taxes and assessments if she had paid them. They were adjusted and in fact paid by the defendants in the arrangement made with them by the husband of Mrs. Bibbins. These taxes and assessments entered into and were made a part of the consideration of the deed which was given by the defendants to Mrs. Bibbins. If the deed had been given to the husband by the defendants, it could not be seriously claimed that he would not be bound by the arrangement which he had made with them. But it appears that Mr. Bibbins, acting for his wife, directed that this conveyance be made to her, and it was so made. Thus it appears that Mrs. Bibbins was a grantee in name only. She was not a real party to the transaction. No part of the consideration came from her. The husband was the real party in interest. "This being so, equity would treat her as the trustee for her husband, holding the naked legal title, and would permit the covenantor to make any defense as against her that could be made against her husband." Reid v.Sycks, 27 Ohio St. 285, 289.

Acting upon this agreement thus made, the defendants were induced to part with their property by the deed which they gave to Mrs. Bibbins, and to pay the incumbrance upon the property conveyed to them by Bibbins. They may well invoke the doctrine of equitable estoppel. "The modern estoppel in pais is of equitable origin, though of equal application in courts of law. It is much more than a rule of evidence. It establishes rights: it determines remedies. An equitable estoppel does not so much shut out the truth as let in the truth, and the whole truth. Its office is not to support some strict rule of law, but to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties."Canfield v. Gregory, 66 Conn. 9, 17, 33 A. 536.

It is of importance to note that the trial court finds that Mrs. Bibbins was not personally a party to the negotiations leading up to the conveyance of this real estate, was not present when the deed from the defendants was made and delivered, and did not know of this transaction until later, when she ratified it. "The general rule as to the effect of a ratification by one of the unauthorized act of another respecting the property of the former, is well settled. The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification." Cook v. Tullis, 85 U.S. (18 Wall.) 332, 338, 21 L.Ed. 933, 936. In the present case we may lay aside any rights of the plaintiff as a third party. As we have seen he is simply the assignee of what right, title and interest belonged to Mrs. Bibbins when she made the assignment of this claim to him. His legal rights as assignee were the same and not more than those of Mrs. Bibbins. He took his claim subject to all of the legal and equitable defenses of the defendants.

There is error, the judgment is set aside, and the Court of Common Pleas is directed to render judgment for the defendants.

In this opinion the other judges concurred.