Robbins v. Moore , 129 Ill. 30 ( 1889 )

Per Curiam :

The original bill of Robbins was filed April 17, 1866, to foreclose the mortgage from Thomas J. Bunn and. wife to Lewis Bunn, on the south half of the south-east quarter and the south half of the south-west quarter of section 27, town 19 north, range 3 east. Thomas J. Bunn and wife, the-mortgagors, Clifton H. Moore, and, subsequently, David Davis, were alone made parties defendant. Mitchell, who had purchased, at the land sale, the south half of the south-east quarter, and also the south-east quarter of the south-west quarter,, was not made á party thereto. Moore was then claiming the-south-west quarter of the south-west quarter of said section by virtue of his entry thereof, and Davis the south-east quarter of of said south-west quarter under his purchase of the title of' Mitchell therein, both claiming adversely to the Bunn title, under which Robbins claimed.

On March 7,1874, a patent was issued by the United States, to Bunn for all of said land,—that is, for one hundred and. sixty acres,—described as the south-half of the south-east quarter and the south half of the south-west quarter of said section 27, and he having, by deed of himself and wife, on the-8th day of April, 1868, conveyed all of said land to Robbins, on the 16th day of May, 1874, again conveyed the same to said Robbins, thereby vesting in him (Robbins) the legal title, as shown by the record, to all of said land, except the southwest quarter of the south-west quarter of section 27, which had also and previously been patented to Moore. Mitchell died December 25, 1874.

On April 30,1878, Robbins conveyed the tract described as the south half of the south-east quarter of section 27, to Hudson Burr, in trust, to secure a loan of $500 from Gilbert and Gay to Robbins. At that time the public records showed a complete title in Robbins to this eighty-acre tract, and he was in the actual possession of the same, claiming title thereto. However, on the 3d of March, 1879, substantially a year after the execution of the trust deed to secure the indebtedness from Robbins to Gilbert and Gay, the widow and heirs of Mitchell conveyed said eighty-acre tract to Clifton H. Moore and Vespasian Warner, who, on September 11, 1879, obtained leave of court to intervene and file a cross-bill in said cause. On the next day, September 12, 1879, Robbins dismissed his bill as to said tract in the south half of the south-east quarter of section 27, being the tract now in controversy, and by his amended bill thereafter sought to foreclose said mortgage as to the other eighty-acre tract, being the south half of the south-west quarter of said section.

The cross-bill of Moore and Warner was subsequently filed, October 1,1879, making Burr, Gilbert and Gay and Davis, as well as Robbins and Bunn, parties defendant, and sought to set aside the patent to Bunn, his deed to Robbins, and his deed of trust to Burr, to secure Gilbert and Gay, as being in fraud of the rights of the cross-complainants. It will be observed, that at the time of filing this cross-bill the tract now in controversy (that is, the south half of the south-east quarter of section 27,) was not involved in the litigation, Robbins having, by the amendment of September 12, 1879, dismissed his bill so far as it related to that tract. It is also to be observed, that up to the time of filing said cross-bill, neither Mitchell, nor any -one claiming title to that tract of land through or under him, had been made a party to the proceeding, nor had there been an assertion of any claim or interest under his entry. On the hearing, Bobbins dismissed his original bill, and the cause proceeded to hearing on the cross-bills of Davis, and of Moore and Warner. Decree was rendered, by consent, in favor of Davis, and as he has no interest, and claims none, in the south half of the south-east quarter of section 27, the only land left in dispute, his cross-bill need not be further noticed. The -case then stood, at the hearing, as if the cross-bill of Moore and Warner was an original bill, seeking to avoid the Bunn patent, and conveyances thereunder, as clouds upon the title of Moore and Warner to the south half of the south-east quarter of section 27, and to compel the conveyance of the legal title from Bobbins to them.

The rights of Gilbert and Gay were acquired without notice, either actual or constructive, of an infirmity in Bobbins’ title. As before said, the public records showed that Bobbins had the absolute title to the land included in the trust deed to Burr. No legal proceedings had been'instituted to set the same aside, nor had it in any way, so far as it affected this tract of land, been called in question in said foreclosure proceeding at the time they made the loan to Bobbins on the security of his apparent title. As has been seen, the cross-bill of Moore and Warner was not filed until long after the loan and trust deed were made. It is to be remembered, that until after the making of a trust deed to secure the loan to Bobbins, by Gilbert and Gay, neither Mitchell, nor any one claiming title to the lands now in controversy, (i. e., the south half of the south-east quarter of section 27,) had been made party to the litigation, nor had, in any of the pleadings or proceedings in said cause, any claim of Mitchell adverse to the Bobbins title been asserted.

Bobbins became the assignee of the note given by Thomas W. Bunn to Lewis Bunn, in the spring of 1862, and when Lewis Bunn conveyed the land to him, April 8, 1868, there was a merger of the two interests, and there was thereafter no mortgage to be foreclosed. By the mortgagor’s deed of his equity of redemption to the holder of the mortgage debt, the relation of mortgagee and mortgagor was terminated, and the bill to foreclose was thereafter properly dismissed. Bobbins was already the absolute owner of all the title the mortgagee or mortgagor had, and as there were no intervening rights to be cut off, a foreclosure could give him no additional title. The attempt of Bobbins to foreclose this mortgage could not operate as notice to Gilbert and Gay, of an adverse claim of another who was not a party, and who was in no way connected with Bobbins’ title. It is true that Bobbins, in his bill, asked to have Moore’s title to the south-west quarter of the south-west quarter of section 27 set aside; but no mention is made of any adverse claim to the tract of land upon which Gilbert and Gay took their security. The object of that bill was, as we have seen, to foreclose the Bunn mortgage, which, at the time of the loan by Gilbert and Gay, had become merged in the legal title in the holder of the mortgage, and not a hill to remove as a cloud an adverse legal or equitable title to the land in question. It can not be seriously contended that the issue of the patent to Moore for a different forty was notice to Gilbert and Gay of the rights of Mitchell to the eighty-acre tract in litigation. Gilbert and Gay having acquired the deed of trust securing their loan, without notice of any adverse claim to them, occupied the position of bona fide purchasers. 2 Pomeroy’s Eq. 767.

The law is well settled that a bona fide purchaser of the legal estate will be protected against the prior equitable title of another of which he had no notice. (2 Pomeroy’s Eq. 740.) This court has frequently announced this rule, and applied it. In Spicer v. Robinson, 73 Ill. 519, it was held that where a conveyance was made to defraud the grantor’s creditors, an innocent purchaser for value, without notice of the fraud, would be protected. In McNab v. Young, 81 Ill. 11, it was held, that where the legal title to land is vested in a party, and there is nothing appearing from which a purchaser may know there was fraud in the acquisition of such title, or any invalidity in the deeds constituting the chain of title, he will be protected in his purchase. (See, also, Gaxagan v. Bryant, 83 Ill. 376; Dickerson v. Evans, 84 id. 455.) So a purchaser of land who has no notice of any irregularity in the proceedings by which his vendor acquired title, will be protected. (Jenkins v. Pierce, 98 Ill. 646; McHany v. Schenk, 88 id. 357.) So a purchaser of land who has no notice that his grantor’s deed is but a mortgage, will be protected. (Jenkins v. Rosenberg, 105 id. 157.) So, although the grantee in a deed may hold the legal title in trust for another, a third person may acquire the title from the trustee, if he has no notice of the trust, and acts in good faith. Emmons v. Moore, 85 Ill. 304; 2 Pomeroy’s Eq. 770. See, also, Peck v. Arehart, 95 Ill. 158; McDaid v. Call, 111 id. 298; Bradley v. Loose, 99 id. 234.

A purchaser is presumed to have notice of any defect of title apparent on the face of his title papers, or by the record, and will be required to take notice of the title or claim of persons in possession, but is not required to look for latent defects in the chain of conveyances, when regular on their face, and apparently conveying the legal title. (Dickerson v. Evans, 84 Ill. 455; Moore v. Hunter, 1 Gilm. 3Í7.) We are of opinion, therefore, that as at the time Gilbert and Gay took their deed of trust the record showed a perfect title in Bobbins, and there was nothing to indicate any adverse equitable interest in Mitchell or his heirs, and Bobbins being in the actual possession of the land, and Gilbert and Gay having no notice, either actual or constructive, of any claim adverse to the title of Bobbins, should, in equity, be protected to the extent of their mortgage interest, independently of whether the paramount

i ._____ title to this eighty-acre tract of land should he held to be in Bobbins or not. It is shown that Mitchell knew of the purchase of Bobbins from Bunn, and that the record showed Bobbins to be the owner of the land; yet, as has been seen, he at no time sought to intervene in the pending proceeding, or asserted any right adverse to the Bobbins title. He thus permitted, with full notice thereof, Bobbins to be clothed with the apparent legal title, and to continue for many years in the undisturbed possession of the land, without taking any steps to protect those who might deal with Bobbins upon the faith of such legal title and possession. Under these facts, when taken in connection with the affirmative facts hereinafter set forth, he and those claiming under him, should he estopped, in equity, from asserting their title, either legal or equitable, as against Gilbert and Gay, who, as we have seen, loaned their money upon the faith of such title, in good faith, and without notice of any adverse claim.

It remains to consider the errors assigned by Bobbins. The defense set up hy him was the Statute of Limitations : First, of twenty years; and second, seven years; that Mitchell, in his lifetime, quitclaimed, for a valuable consideration, the land to Thomas J. Bunn, and that the grantees of Mitchell are, by the acts of Mitchell inducing Bobbins to purchase of Bunn, estopped from asserting title deraigned from said Mitchell. First—In respect of the defense of twenty years’ limitation, it is sufficient to say, that the proof fails to show possession of the land hy Bobbins for the necessary period. He took possession in 1856 or 1857, by breaking about thirty acres of the eighty-acre tract in question, and sowed it in wheat. The land was not fenced. There was, however, a shanty on the same or the other eighty-acre tract before mentioned,—which, is not definitely shown. After this wheat crop was harvested no other acts of possession are shown until 1871, (a period of fifteen years,) when one Haynie again broke the land. It is not shown that either Bunn or Bobbins was in possession during the period named, and if they had not abandoned it, their possession was not of that open, notorious and exclusive character which the law requires in such cases, and so we hold that the defense of twenty years’ adverse possession was not maintained.

Second—The defense of seven years’ possession and payment of taxes, under claim and color of title, can not be maintained. Bobbins first acquired color of title by the deed of Bunn and wife to himself, April 8, 1868. Prior to that time he held simply the note and mortgage given by Thomas J. to Lewis Bunn, assigned to himself, which was, as it purported to be, simply the evidence of, and security for, the payment of money. It did not purport to convey title. It is true Bobbins paid taxes for seven successive years,—from 1863 to 1869, inclusive; but for five of these years he had no color of title, so that the payment of taxes, prior to his deed in 1868, was unavailing to create a bar. Nor, as we have seen, does it appear that he was in possession of the land during any of said years.

Third—The two other defenses may be considered together, and present questions of no inconsiderable difficulty. Both present questions of fact, which necessarily involve a somewhat extended consideration of the evidence.

Bobbins testifies that he was not satisfied to purchase of Bunn until he had first seen Mitchell; that he saw Mitchell, and inquired of him if he (Mitchell) had any claim upon the land; that Mitchell replied that he had had a suit with Bunn about it, and that Bunn had beat him out of it, and that he had told Bunn if he would pay up the costs in the suit, he (Mitchell) would make him (Bunn) a quitclaim deed to the land at any time; that he did not consider he had any further claim to the land, and for him (Bobbins) to go on and buy the land of Bunn; that he would make Bunn a quitclaim deed to the land any time he called on him for it. He testifies that on the same or the next day he met Bunn at Wismer’s office, in Bloomington; that Wismer advised that the mortgage from Thomas J. to Lewis Bunn on this land for $1000 had better be assigned to the witness, and then foreclosed, and the title got in that way. He further testified: “I told him (Wismer) what Mitchell had said, and he thought that Bunn had better get a quitclaim deed from Mitchell. Mr. Bunn had to come to Bloomington for the note and mortgage, or send for it, and the next day Bunn and I met at Wisme^’s office. He (Bunn) had the note and mortgage, and had got the quitclaim deed from Mitchell, and had all the papers there. The quitclaim'was signed by John T. Mitchell and his wife. It was for all the land he claimed any interest in. I examined and read the deed myself. The deed was made to Thomas J. Bunn. After looking over the papers, Mr. Wismer concluded that this deed wasn’t necessary. We could go on and foreclose under the mortgage. My best recollection is, Bunn said to Wismer, "‘What do we want with the deed?’ Wismer said it wasn’t necessary, and Mr. Bunn tore it up and threw it into the stove. Wismer said, ‘You may as well destroy it. It don’t cut any figure as long as Mitchell had acknowledged he had been beaten in the suit, and had no further claim on it.’ This all occurred before I paid him the money. T. J. Bunn did not make me any deed at that time. In my conversation with Mitchell, I told him I didn’t feel satisfied to pay any money until I had seen him and had a talk with him. He (Mitchell) then said, that so far as he was concerned he didn’t consider he had any claim on the land, but he had told Bunn, if he would pay the costs in the suit he would make him a quitclaim deed at any time, and if I made a trade with Bunn it would be all right—that the land belonged to Bunn.” On cross-examination, he testified that he took the deed mentioned, in his hands, and read it, but could not recollect before whom it was acknowledged, and that Wismer, Bunn and himself were then present; that it was a day or two after he had a talk with Mitchell that he concluded the purchase; that Bunn destroyed the deed, and repeated substantially the testimony upon the examination in chief.

Thomas J. Bunn, a banker of Bloomington, testified: “I sold Bobbins the land I pre-empted in DeWitt county. I think it was about 1855 or 1856. Won’t be positive about the time. My recollection was, the sale was for about $800. He paid me the money. We consulted with Mr. Wismer, I think, about the title. My recollection is, that Wismer advised Bobbins to have a quitclaim deed from Mitchell. Mr. Mitchell was in the office, and the matter was talked over. The substance of the conversation was, he had no objection to giving the quitclaim deed, or was willing to give it. My recollection is, that Mitchell made the proposition that I pay the costs in the contest between him and me about this land, and that my father paid the costs. The settlement with Mitchell in regard to the matter was made with my father. My recollection is, that Mr. Mitchell made the quitclaim deed either to Bobbins or to my father, don’t remember which—think it was Bobbins. Don’t think I ever had a deed myself—think it was among the papers when Bobbins and I finally closed the trade. My recollection is that I saw it. I have no recollection of examining the deed at all. Do not know what became of it.” On cross-examination he testified: “Mitchell was in Wismer’s office at the time the trade was being closed, and was talking about the quitclaim deed. Do not remember whether he was talking with me, or father, or Bobbins,—perhaps to all of us. My recollection is, that the deed was made at the time the trade was closed, but perhaps not at the first conversation. Don’t think I ever read the deed myself. It was in Wismer’s hands, with other papers, when the trade was closed. All I know about it was what Mitchell said. I saw the deed, but did not read it. Saw the outside—perhaps the inside. My recollection is, the trade was closed when Mitchell was in the office. The papers were all made out conveying the property, and left in Wismer’s hands. I think the sale, in the first place, was of the note and mortgage. Don’t remember whether I made him a deed for the land then, or not. I turned over to Bobbins the note and mortgage, and the deed, if there was one made by me. Have seen none of the papers since. I have no knowledge of any of them being destroyed in my presence. If I made a deed to Bobbins at the time' of the trade, I have made him two. Can’t tell when the last one was made,—may be six or seven years agd. Don’t recollect that Wismer ever advised that any of the papers be destroyed. At that time I had made no deed to the land. Don’t think I ever paid Mitchell any money—think the matter was settled between him and father. My recollection is, we were all day making the trade, and Mitchell was in and out several times. The talk about the deed was before the trade was closed. My recollection is, that the trade with Bobbins was a sale of the land to him by turning over the note and mortgage to him, and that whatever was necessary to be done to make the transfer of my interest in it, or my father’s interest, was done, and that was why I thought some deed was made by me or my father at the time. I had no patent at that time, and other parties were claiming the land. It may be possible that the only transfer made at the time was the note and the mortgage. We • intended to convey to Bobbins all the interest we had. Am not sure there were any other papers transferred besides the note and mortgage.” On re-direct examination he said: “Mitchell knew Bobbins was buying the land. We were talking about it in his presence. Wismer was satisfied to advise Bobbins to buy the land if Mitchell gave a quitclaim deed, and Mitchell was willing to give a deed. He didn’t care about fighting the matter further. Mitchell made the statement as I stated in my evidence, and Wismer advised Bobbins, after Mitchell made the quitclaim deed, that there were no objections to it, and for him to close the trade. The conversation I heard between Mitchell and whoever he was talking to, was in Wismer’s office, in the presence of Bobbins and myself, and I think father was present. The result of the conversation was. that Mitchell made and delivered (I saw the paper then) his. deed releasing his interest to Bobbins. This was before the trade was concluded.” He further testified: “I did not see Mitchell or his wife execute any papers, but did see, in Wismer’s hands, a paper purporting to be a deed from Mitchell and his wife, and which Wismer said was a satisfactory release of his interest. I don’t recollect whether I saw the inside of it or not. Don’t remember whether I had it in my hands, or not.”

Lewis Bunn testified, in substance, that Mitchell spoke to-him about being tired of fighting about the land, and that so-far as he was concerned, he was willing to make a quitclaim, deed and quit fighting. “We were manufacturing plows, and he was doing business for us. He said he had some $200 or $300 costs to pay in the land litigation. I settled some bills of costs. Can’t tell whether there came a bill for his costs. * * * There was a conversation between us, (Mitchell and I,) that he must not be offended with me on account of any complication between him and my son. He said he was tired of fighting the land; that he was willing to make a quitclaim deed to any person they wished it to be made to.. That was the.purport of it.”

On the other hand, Elizabeth Mitchell, widow of John T. Mitchell, testified, that her husband told her that he had entered the land known as the Bunn pre-emption. “Soon after-wards another man built a shanty on it. Forget his name. There was trouble about it. Moore had litigation and Mitchell had litigation, but he dropped it to se§ how Moore would come out; then he would know what to do with his. Heard my husband say, not more than two weeks before he died, that he expected to get the land. Never said anything to me about having made a deed to this land, or that he did not own it. I never joined with him in making a deed to this land. We made no deed.” On cross-examination she testified: “I have an interest in this suit, in getting it for my children. Don't know whether it will come to me or my children. Husband entered a great deal of land. Sold some. Don’t remember every deed I have signed. When I signed deeds I knew what I signed. Can’t tell how many I have signed. Can’t guess. Can’t give a list of lands for which I have made deeds.”

William T. Mitchell testified that he heard his brother, John T. Mitchell, often speak of this land, and claimed to own it. He said he expected to gain the land.

John B. Basbach testified that he had heard Mitchell talk about the land; that he said he would wait and see how Moore came out with his claim before he would push his (Mitchell’s) claim. The last time he heard him speak about it was in the summer prior to his death.

John H. Mitchell, a son of said John T„, testified that his father always claimed to own the land. He spoke of it a month before he died, and said he expected to get the land,— that Moore had advised him to wait and see if he gained bis case.

Clifton H. Moore testified, that about the time Bobbins was buying the Bunn note, Mitchell came to him and said that Bunn, or Bunn and Bobbins, wanted him to release or quitclaim to them, and wanted to know what effect that would have upon his getting his money back from the government— the money he had advanced for the entry of the land; that the witness told him if he conveyed to any one else he could not get his money; that Mitchell assured the witness he would not convey the land without consulting him, and that he always claimed the land.

We have thus given the evidence substantially at length, as it is found in this record. We can not say that it is sufficient to justify this court in finding differently from the court below, upon the question of the execution and delivery of the deed from Mitchell. It will be observed that Bobbins says the deed was, to Thomas J. Bunn. Thomas J. Bunn, while having no recollection of having examined the deed, thinks it was made to Bobbins or to Lewis Bunn. Lewis Bunn does not speak of having seen the deed at all. Neither of the Bunns corroborates Bobbins as to Wismer’s advice to get the deed or to destroy the same. If Mitchell had, in fact, made such a deed, it is strange that any lawyer should advise its destruction, and that Mitchell should have claimed the land up to the time of his death. It is not shown or pretended that there was any reason for the destruction of the deed, or that there were liens against the property of Mitchell which would make it desirable to avoid acquiring title through him. Again, Bobbins testifies that the deed was signed by Mrs. Mitchell, while she positively denies having executed any such deed. It is clear, however, from the testimony of Bobbins, the two Bunns, and Moore, that the subject matter of the release or conveyance of Mitchell’s claim was considered and talked over between Mitchell, Bobbins and the Bunns, at about the time of the purchase by Bobbins.

While the evidence supporting the contention of Bobbins is not so clear, consistent and convincing as to justify us in holding that Mitchell made and delivered the deed mentioned by Bobbins, yet it is sufficient, we think, to show that Mitchell did inform and assure Bobbins that he had given up his claim upon the land, and for Bobbins to go on and purchase the same of Bunn. The testimony of Bobbins to this fact is clear and explicit, and is fully corroborated by the testimony of the two Bunns, and to some extent, at least, by that of Moore, as well as by the circumstances of the case. The contest before the government -land office had been decided by the Secretary-of the Interior adversely to Mitchell, and he was unwilling to further litigate his claim. The testimony of the Bunns fully substantiates this fact. There can be no question, from the testimony of Bobbins and the two Bunns, that he was willing to convey his interest in the land, if he had any, if Bunn would pay the costs already made in the contest before the department, and Lewis Bunn testifies that he paid such costs, and there is no evidence contradicting him. His conference with Moore shows, as already stated, that his conveyance of his interest, whatever it might be, had been the subject matter of negotiation between himself and Bobbins or Bunns; and if he did not convey, as we must hold, it was because he feared that thereby his right to recover back the money advanced to the government upon his attempted entry of the land might be defeated. It is barely possible that this suggestion of Moore, that a conveyance by Mitchell would defeat this right of repayment by the government, may furnish a clew to the destruction of the deed by Mitchell, if one was made. It would be readily understood that a purchase by Bobbins, after complete and full disclaimer of any interest by Mitchell, would operate by way of estoppel upon him to assert his title against one who had been induced to purchase by reason thereof, and that therefore the deed would operate simply to the prejudice of Mitchell, without really being of substantial benefit to Bobbins. But, as we have said, while there is a strong probability that a paper purporting to be a deed was present at the time of the trade between Thomas J. Bunn and Bobbins, we can not, for that reason, as already stated, reverse the decree.

It is, however, said, that the element of fraud in the statements made by Mitchell to Bobbins, and by which he was induced to purchase, is wanting,—that they were made in good faith, with no improper motives, and that the doctrine of equitable estoppel does not therefore apply. In our judgment the testimony establishes the fact that Bobbins purchased relying upon the disclaimer by Mitchell of any interest in this land— of his willingness and desire to no farther contest the title of Bunn. It is shown, and not disputed, that Bobbins knew of the agreement by which Bunn was to pay the costs of litigation, and that Mitchell was to waive and release any interest in the land, and quitclaim at any time, or to. such person as the Bunns might desire, any interest he might have therein.

It is a misapprehension to suppose that the doctrine of equitable estoppel arises only when the representation has been fraudulently made. It is true, that if the element of fraud is wanting there can be no equitable estoppel; but it is well settled that a fraudulent result suffices for the application of the doctrine. In Davidson v. Young, 38 Ill. 145, Lawrence, J., quotes from 2 Story’s Eq. 1543, the rule, as follows: “The doctrine of estoppels in pais, or equitable estoppel, is based upon a fraudulent purpose and a fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel,—as, if both parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely upon Ms own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth.” In Flower v. Elwood, 66 Ill. 447, the rule is thus stated: “To conclude a party by an equitable estoppel or an estoppel in pais, there must be a fraudulent purpose of the party against whom it is applied, or his acts must produce a fraudulent result; and there must he a change of conduct induced by the acts of the party estopped, to the injury of another, in order to prevent him from showing the truth. If the element of fraud or injury is wanting, there is no estoppel.” To the same effect, see Chandler v. White, 84 Ill. 435, and Mayer v. Erhardt, 88 id. 452.

In Hill v. Blackwelder, 113 Ill. 283, this court said: “It is said that there can be no estoppel if the element of fraud is wanting, and that there was here no fraudulent intention on the part of Harris. No fraudulent intention is required. It is enough if there would he a fraudulent effect from the evidence attempted to be set up. To allow Harris to invalidate this redemption and execution sale, as he here seeks to do, would be to permit the perpetration of a gross fraud and injustice upon Dresser. To prevent this, arises the equitable estoppel.” In the same ease it was held, that where the foundation of the estoppel is in silence, and omission to give notice of existing rights, the party relying on the same must not have had the means of ascertaining the true state of the title by reference to the public record, but that such rule does not apply to a case where the land owner has actively encouraged and induced the injured party to act. In the latter case, the party making the declaration acted on will be estopped, although he may have been ignorant of his true rights. The other party may rely on his representations without further inquiry, and act upon the assumption that he is cognizant of his rights, and knows the condition of his own title. So the doctrine is, if the owner of land stands by and suffers credit to be given to another on the supposition that he owns the land, and aids in creating the belief that such other person does own the same, he can not be afterwards heard to assert his own title as against such creditor. Higgs v. French, 14 Ill. 344. See, also, Tucker v. Conwell, 67 id. 552; International Bank v. Bowen, 80 id. 541. So where a former owner of lots executed a deed in blank, when applied to for information as to the title by a party about to purchase the same disclaimed any title in himself, and stated that the person proposing to sell was the owner, and upon this assurance the purchase was made, it was held that these facts constituted a complete estoppel in equity against the original owner, and that he could not assert title as against the purchaser. Wade v. Bunn, 84 Ill. 117. See, also, Curyea v. Berry, 84 Ill. 600; Wilmington Star Mining Co. v. Allen, 95 id. 288.

The above cases are similar in principle to the one now before us, and illustrate the rule sought to be applied. Many •others determined by this court may be found equally applicable, and announcing the same doctrine, and we have not thought it necessary to cite the text writers or adjudications of other courts, which will, however, be found to be in harmony with the doctrine announced in the eases cited.

It is, however, claimed, that Bobbins did not rely upon or act on the declarations and assurance of Mitchell that he had abandoned his claim to the land and had no further interest, or claim in or upon the same, and giving him to understand that a purchase from Bunn would convey a good title. It is evident that Bobbins did rely on such statements of Mitchell, Bobbins testifies that he was unwilling to buy of Bunn without first seeing him, and finding whether the contest as to Bunn’s title was at an end. In this he is corroborated by both theBunns. They had told him of Mitchell’s arrangement in respect of the quitclaim deed from Mitchell, or his willingness to make the same, and the agreement of Bunns to pay the costs of the previous litigation, and of the fact of the payment. Yet, before any money is paid by Bobbins,—before the trade is consummated,—we find Mitchell present in Wismer’s office, in connection with the purchase of the land by Bobbins from Bunn. We find him inquiring of his attorney as to the effect upon his rights to recover back his money from the government if he should make a deed as requested by Bobbins or the Bunns. The fact that Bobbins took the advice of an attorney does not show or tend to show that Bobbins did not rely upon the statements of Mitchell. On the contrary, it clearly appears, both from the testimony of Bobbins and Thomas J. Bunn, not only that Bobbins relied upon the representation and statements of Mitchell, but also that the advice of the attorney was. predicated thereon. It is shown, and not controverted, that the advice of the lawyer consulted was based upon Mitchell’s disclaimer of any intention to further urge or prosecute his claim to the land, or to further contest Bunn’s title. It seems, from the testimony, that the whole matter was gone over, and the contract considered in the presence of Mitchell, who, recognizing the agreement with Bunn, disclaimed any title or interest to any of the land involved in the previous litigation.

We are of opinion that the case falls clearly within the rule, and that Mitchell, if living, and those claiming by, through or under him, are estopped from asserting contrary to the representations thus made by Mitchell, upon the faith of which Robbins parted with his money and acquired the title then in the Bunns.

No question is made as to the power of a court of equity to-establish a title to real estate by estoppel against the former owner, who, by his acts and representations, has induced another to purchase from one holding under a void deed or patent, or if it should be, the jurisdiction is fully sustained by authorities. Wade v. Bunn, 84 Ill. 117.

It is insisted that, since Mitchell’s death, Robbins is not a competent witness in respect of the representations and assurances of Mitchell, before referred to. The second section of the act relating to evidence is relied upon as establishing his incompetency. That section provides, that no party to a civil action, suit or proceeding shall be allowed to testify in his own behalf when the adverse party sues or defends as the heir, devisee or legatee, etc., of any deceased person, unless called by such adverse party. It is enough to say, that it does not appear, from the record, that the complainants in the cross-bill sue in any representative capacity. Moore and Warner, complainants therein, are not the heirs of Mitchell, but are purchasers from such heirs, asserting title in their own right. The first section of the same act makes all persons competent witnesses in civil proceedings, and to render Robbins incompetent, it must appear that he falls within some of the exceptions provided in the statute. We are of opinion that the objection to his competency was not well taken.

At the time of the purchase by Moore and Warner, and the conveyance by the heirs of Mitchell to them, Robbins was in the actual possession of the tract of land in litigation. Such possession was notice to Moore and Warner of his legal and equitable title.

It follows, from what has been said, that we are of opinion that the circuit court erred in decreeing that Robbins convey his title to Moore and Warner, and also in decreeing that Gilbert and Gay likewise convey, and holding that the complainants in the cross-bill were entitled to the relief granted, and the decree must therefore he reversed, which is done, and the cause remanded to the circuit court, with directions to dismiss the cross-bill of said cross-complainants, Moore and Warner.

Decree reversed.

Mr. Chief Justice Craig, dissenting.