Thomas v. Romano , 82 Miss. 256 ( 1903 )

Price, J.,

delivered the opinion of the court.

Mary Thomas and her two minor children owned and were tenants in common of certain lots of land in the city of Vicksburg, and were nonresidents, living in Delta, Louisiana. In March, 1896, the sheriff and tax collector of Warren county sold the land for the unpaid taxes of 1895, when S. R. Hughes became the purchaser. Hughes had his deed recorded, and on the 27th day of June, 1898, the land not having been redeemed, he filed his bill in the chancery court against Mary Thomas and her two children, Mamie and Nona McNamara, for confirmation of his tax title, and had a decree confirming the same. At the September term of the chancery court, 1899, this matter for the confirmation was reopened and Mrs. Thomas and her two minor children, who had only been served by publication, each filed a demurrer to Hughes’ bill. The demurrer was sustained, with a decree following dismissing the bill, and Hughes appealed to this court (29 South., 74), and the case was affirmed, and Hughes’ tax title declared void. In the meantime, and prior to the dismissal of Hughes’ bill, Mrs. Thomas came over to Vicksburg, and there ascertained that Hughes had been paying taxes on her land for about three years. She was later informed, and on tbe same day, by Hennessey Brothers, real estate agents, that Hughes owned her land. She was at once taken by Mr. Hennessey to the law office of Shelton & Brunini, Hughes’ attorneys, who told her that Hughes’ tax title had been confirmed, and that her one-third interest in the property was lost. Hpon being so advised, she verbally agreed that Hennessey procure a purchaser for the land, in order that she might get the two children’s interest, as she was badly in need of it for their support. She was later advised by Mr. Brunini that it would require a bill in the chancery court before the minors’ interest could be disposed of. The firm of Shelton & Brunini, on the 2d day of November, 1898, for Mrs. Thomas, as guardian for her two minor children, filed a bill in the chancery court to have the land sold. Mr. Hennessey procured a proposed purchaser in the person of Mrs. Christina Romano, the appellee here. Shelton & Brunini and Hennessey explained to Mrs. Romano the tax title and the chancery proceedings necessary for a sale, and that Mr. Hughes was threatening about this time to take possession of this land under his tax title, which at that time was believed by all parties concerned to be good. Romano entered into an agreement that she would pay for the property, at commissioner’s sale, $1,000. It was represented to Mrs. Thomas that it would take $303.21 to satisfy Hughes and procure a conveyance of her interest in the property, and that this' should be done at once, and at the confirmation of the commissioner’s sale, Mrs. Romano would pay into court for said minors $666.66. Mrs. Thomas could not read or write, and was a very ignorant woman, and seems to have understood very little of the transactions. Mrs. Romano paid Hughes the $303.21, or to his attorneys, Shelton & Brunini, and Hughes conveyed the land to Mrs. Romano/ The matter ran along for some time, when there appears to have been some dispute about the rents and possession of the property. At this juncture in the history of the transaction, Mrs. Romano filed her bill in the chancery court to estop Mrs. Thomas from asserting her title to the one-third interest in the land,, and upon the final hearing the chancellor decreed that a special commissioner convey Mrs. Thomas’ interest in the land to Mrs. Romano, and from that decree this appeal is taken.

We have only stated such facts as we think necessary to the understanding of the proposition seriously involved here. The bill in this case was filed and proceeded with upon the ground of estoppel upon the part of Mrs. Thomas to assert title to a one-third interest in the land, and the case was, in its last analysis, fought out on that basis. In the absence of fraud, misrepresentation, culpable silence, or their equivalents — and there is no fraud alleged, ho misrepresentation proven, no culpable silence shown — the weight of authority'is that one cannot be divested of the legal title to real estate by estoppel. Mrs. Thomas never had any negotiations with Mr. Hughes, and had no settlement of any doubtful claim, because it is admitted that all parties thought Hughes held a good title to Mrs. Thomas’ one-third interest. Hughes’ tax title was on record, void on its face; but Mrs. Thomas made no representation concerning her title, and in fact knew really nothing about its real condition. Her information was obtained from Hughes’ attorneys and Hennessey, the real estate agent. She never saw Mrs. Romano before the sale by Hughes conveying the land to Mrs. Romano. There is no contention that she authorized any one to make any representation, or that any one undertook to make any representations to Mrs. Romano for her. Conduct relied on to sustain equitable estoppel must have been made with full knowledge of the facts by the. party to be estopped, unless he asserts as true a fact which he does not know to be true, and his adversary relies upon such statement, to his injury. Silence, in the absence of knowledge of one’s rights will not work an estoppel. In vol. 11, Am. & Eng. Enc. Law (2d ed.), p. 434, it is laid down as a general rule “that it is essential to the application of equitable estoppel that the party claiming to have been influenced to his injury by the conduct or declaration of another was himself not only destitute of the knowledge of the state of facts, but was also destitute of any convenient and available means of' acquiring such knowledge; and when the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.” Estoppel sprung from a determination to prevent fraud resulting in injustice. Kelly v. Wagner, 61 Miss., 302; Staton v. Bryant, 55 Miss., 269, and Murphy v. Jackson, 69 Miss., 403; 13 South., 728. Mrs. Thomas, however, is liable to Mrs. Romano for such amounts only as she was legally liable to Hughes for — that is, the taxes, damages, interest, and costs — and her interest in the land stands charged with the amount, and Mrs. Romano cannot look to Mrs. Thomas for a restoration of the status quo.

The decree will be reversed, and the case remanded for an accounting to be taken in keeping with this opinion.

Reversed and remanded.