Oliver v. Beard ( 1897 )

Ellison, J.

This action is to recover $120 cash rent of eighty acres of land, which defendant occupied as a tenant. It was removed by certiorari to the circuit court. In the latter court plaintiff took out an attachment in aid. Defendant prevailed in the trial court, both on the plea in abatement and the merits.

Statement Plaintiff claims that he was the owner of the land and that defendant was his subtenant, he, plaintiff, having rented the land to one Ousler and the latter renting to defendant. Defendant’s claim • is in substance that while plaintiff may in fact be the owner of the land, yet he, by his conduct, led defendant to believe that Ousler was the owner and that he, plaintiff, had no interest in it.

The evidence in defendant’s behalf tended to show, and in view of the verdict of the jury we must assume did show, that plaintiff sold the land to Ousler and put him in possession, though it does not appear that he made him a deed, and it may be stated that he did not; that Ousler rented the land to defendant, that after agreeing on terms they met at plaintiff’s house to have him draw up a written contract of renting; that plaintiff declined to draw up the' contract on the ground that he did not know how to do so, or was not qualified, and that they would have to get someone else; that the terms were talked over in plaintiff’s presence, and that he never said or intimated that he was the owner or that Ousler had no right to rent it. The terms of the contract were the nest day reduced to writing by another party and signed by Ousler and defendant; that defendant took possession, raised a crop and cleared up three acres and one half of new ground as agreed in his contract; that plaintiff lived within a quarter of a mile of the land and never objected to the renting or defendant’s occupancy, and never claimed any interest therein, though he saw him almost daily until the crop was matured. There was other evidence having a strong tendency to show that plaintiff had made a yerbal sale of the land and had put Ousler in possession and had received some money on the contract.

The terms of the contract reduced to writing between defendant and Ousler were that defendant was to render to Ousler one half of the crop raised on the old ground and was to clear three acres and a half of new ground and render one half of the fodder in the shock to Ousler.

E dorian ¿lord" ience?nant*S1" . The trial court was of the opinion that the evidence in behalf of defendant tended to prove an estoppel against plaintiff, and gave instructions for defendant on that theory. This is the principal complaint here. Plaintiff’s contention is that the facts to which we have alluded had no tendency to prove an estoppel. He has cited a great number of authorities on the general subject, but as in our opinion the court’s action was so clearly right we will not go into an examination of them since it could serve no useful purpose. There is a familiar and often quoted rule of estoppel by silence which is applicable to this case. It is frequently stated in this way: That he who does not speak when he should, will not be permitted to speak when he would. In this case' there was ample proof of plaintiff’s silence, when in good faith he should have spoken out and made the claim which he now seeks to set up. We have nothing to do with the propriety of the verdict, and have only to examine the action of the court on the instructions and believe that action, as before stated, to be correct.

The judgment is affirmed.

All concur.