Clark v. Parsons , 69 N.H. 147 ( 1897 )

The plaintiff has not acquired title to the premises by adverse possession as against the defendant, nor did the statute of limitations begin to run against an action for possession until the death of the life tenant, Joseph, in 1891. Foster v. Marshall, 22 N.H. 491; Bodwell v. Nutter, 63 N.H. 446, 448; Mixter v. Woodcock, 154 Mass. 535.

But it is urged that Isaac or his sons might, at any time after the deed to Berry by Joseph and James, December 14, 1865, have maintained an action to establish their title to the remainder according to the doctrine of Walker v. Walker, 63 N.H. 321. That case only gives the remainder-man the right to establish his title when it is questioned. It is a right of which he may avail himself, or not, as he may elect. If he does avail himself of it and the controversy is decided in his favor, it gives him no right to the possession or to a writ of possession during the existence of the life estate. Until the termination of the life estate no right of entry or right of possession exists in favor of the reversioner. Until the right of entry and the right of possession to the property accrue, the statute of limitations does not begin to run against an action for the possession.

It is claimed that when the life estate and the estate of one tenant in common of the remainder were granted to Berry, a merger of the life estate in the ice was effected by the coincidence of the two estates in one person, and that the life estate in the entire property was thereby extinguished. It is a sufficient answer to say that the life estate in the undivided half of the remainder belonging to Isaac could not merge in the undivided half of the remainder belonging to Berry; neither could the conveyance of the life estate to Berry, construed as a surrender, enure to the benefit of Isaac or those who claim under him. "Merger is coextensive with the interest merged, as in the case of Joint tenants and tenants in common; and it is only to the extent of the part in which the owner has two several estates. An estate may merge for one part of the land and continue in the remaining part of it." 4 Kent *100, *101; Clark v. Clark,56 N.H. 105, 113; McLaughlin v. McLaughlin, 80 Md. 115.

Another question which arises is whether the defendant is estopped by his silence to assert his title to the land in question. The general principle of estoppel in pais is, that where one by his words, conduct, or silence "causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things, as existing at the same time." Pickard v. Sears, 6 A. E. 469; Corbett v. Norcross, 35 N.H. 99; Richardson v. Chickering,41 N.H. 380; Horn v. Cole, 51 N.H. 287; Stevens v. Dennett, 51 N.H. 324; Allen v. Shaw, 61 N.H. 95. It is essential to the application of this principle that the party setting up the estoppel be ignorant of the truth of the matter in regard to which he claims he has been misled, and induced to act to his injury by the conduct or silence of the party to be estopped. If he was fully acquainted with the facts of the case, there would be no estoppel. In respect to the title to real estate, if the party claiming the estoppel is acquainted with the true state of the title, or has an equal means with the other party of ascertaining it, as in the case of a duly recorded deed, there will be no estoppel, at least from mere silence. Odlin v. Gore, 41 N.H. 465, 477; Wood v. Griffin, 46 N.H. 230, 237; Allen v. Shaw, supra; Jones v. Aqueduct, 62 N.H. 488; Brant v. Iron Co., 93 U.S. 326,337.

The plaintiff claims that the defendant is estopped to assert title to the premises, because after he acquired the title he remained silent while the plaintiff made some permanent improvements. The situation of the title was shown by the records, and the information in regard to it was equally open to both parties. Although the plaintiff and those under whom he claims had no actual knowledge of the defect in their title, they had by the records constructive notice of it. Their failure to examine the records was not caused by anything said or done by the defendant. They might and should have informed themselves as to the title of the premises before purchasing or making permanent improvements. Their failure to do so was their own fault, and they cannot resort to an estoppel based upon the defendant's silence to avoid the consequences of their own negligence.

It is not found, nor does it appear, that the plaintiff will be injured by the defendant's assertion of his title. Upon partition of the entire common property, it may be that the defendant's share can be assigned to him without affecting the plaintiff's title to his improvements. Holbrook v. Bowman, 62 N.H. 313, 320, 321. Whether the plaintiff can or cannot avail himself of the betterment law, is a question not considered.

Judgment for the defendant.

All concurred.