Roberts v. Trammel , 15 Ind. App. 445 ( 1895 )

Ross, C. J.

Appellant brought this, action to recover the possession of two horses.

The only ruling assigned as error in this court is, that the court erred in overruling the demurrer to the second paragraph of the answer.

The facts set forth in this answer were pleaded by way of estoppel in pais.

There can be no estoppel in pais where everything is equally known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights sprung, or where the party seeking to conclude him was not influenced by the acts or admissions set up. Fletcher v. Holmes, 25 Ind. 458; Greensburgh, etc., Turnp. Co. v. Sidener, 40 Ind. 424.

In other words, to constitute an estoppel in pais, there must be:

1. A representation or a concealment of material facts.

2. The representations must have been made with full knowledge of the facts.

3. The party to whom the representations' were made, or from whom material facts were withheld, must have been ignorant of the truth of the matter.

4. The party making the representations, or withholding the facts, must have done so with the intention that the other party should act otherwise than he would did he know the truth.

5. The other party must have been induced thereby to act. Bigelow Estoppel, 480; McGirr v. Sell, 60 Ind. 249; Long v. Anderson, 62 Ind. 537; Hosford v. Johnson, 74 Ind. 479.

We deem it unnecessary to decide how far the rule of estoppel in pais applies to married women under section 6962, R. S. 1894 (section 5117, R. S. 1881), for the reason that the facts alleged in the answer before us are insufficient to constitute an estoppel in pais against any one, whether sui juris or not.

It is a rule of equity well founded, that a person is not permitted to keep silent when he should speak, and thereby mislead another to his injury. Gregg v. Von Phul, 1 Wall. 274.

As said by the court in Gregg v. Wells, 10 Ad. & El. 90: “A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving.”

Conceding, without deciding, that a married woman may create an estoppel against herself by mere silence at a time when she might speak, and thus prevent her from afterwards speaking and asserting the claim which she might have asserted when she was silent, it' can prevail against her only when she withheld the truth for the purpose of misleading, and some one was induced thereby to act to their injury. The facts alleged in the ánswer wholly fail to show that she was present, and by her silence permitted her husband to mortgage her personal property to pay his debt. If we were to hold the answer in this case to be sufficient, it would be equivalent to holding that it was her duty to have sought out the appellee Trammel, and informed him of her title, thus shifting the burden of making inquiries as to the ownership of the property from the former to the latter, to see to it that her title was made known.

There can be no estoppel where there is no fraud, and there is no fraud, except false representations have been made, either by the party sought to be estopped, or by another with his knowledge or consent.

“Knowledge is essential on the part of the person sought to be estopped. Where a party is ignorant of his right, and is free from actual fraud or culpable negligence, silence will not estop him, although he may have knowledge of what another is about to do.” Anderson v. Hubble, 93 Ind. 570, and cases cited.

The appellee Trammel was not injured by the appellant’s silence. The cancellation of his judgment against appellant’s husband, if procured by the fraud of the latter, may be revived. Again, it is not shown that appellant’s husband was solvent at the time the judgment was cancelled, although it is alleged that he is now insolvent, and that the debt will be lost unless the property in controversy can be sold to satisfy it.

The payment of the costs by appellee Trammel is no new or additional consideration, for he waá primarily liable for them. Having lost nothing by the silence of appellant, appellee is not in a position to complain.

Judgment reversed, with instructions to sustain appellant’s demurrer to the second paragraph of the appellee’s answer.

Filed April 10, 1895.