Keating v. Orne , 1875 Pa. LEXIS 24 ( 1875 )

Mr. Justice Mercur

delivered the opinion of the court,

Both the assignments of error raise the question of the sufficiency of the evidence to constitute an estoppel.

The first assignment rests on the testimony of Barney Yensel, from whom the defendants in error acquired title. David Yensel claimed the land in controversy, and desired to sell it to Barney. “The latter testified “ the report was, Keating claimed the upper part of it, and I would not buy until I saw Keating. I saw him, and asked him if he claimed any of the land. He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it.” Barney also testified, that from what Keating told him, he thought the title was all right, and some six months or a year thereafter, he purchased the land of David, paying him part of the purchase-money down, and had since paid the residue. He further testified, “ Í do not know whether Keating kn.ew where the lines were, nor amount he claimed, at the time he talked with me.”

It does not appear that Barney informed Keating that he had any intention of buying the land, nor that he had any object in making the inquiry.

It will be observed, the declarations of Keating consist of two parts, the one a statement of existing facts, the other, an intention in regard to his future action. The only existing facts, in regard to title, which he asserted, were, he thought he did claim part of the land, but it did not amount to much — whether much in quantity or much in value, he did not-specifically state.

The land in dispute is a narrow strip lapping over on the west end of a larger tract owned by Keating. In the absence of any evidence that he knew where the lines on the ground were, and being ignorant of the object of the inquiry, we do not think that Barney should have been misled by this statement. It certainly was no denial of ownership, but an assertion of claim. It is true of an uncertain and vague claim, but this very answer may have been caused by his ignorance of the lines, and by an impression that Barney was intermeddling with that which was none of his business. Barney assumed from this conversation that Keating had no claim to the land, although the latter expressly stated he thought he had to a part of it. It is in conflict with every element of an estoppel to hold him to an inference directly contrary to the fact which he stated. An estoppel is invoked to hold one to the facts as he alleged them to be, although false in fact, and not for the purpose of proving the facts different from the statement. This averment of claim was sufficient to' have led Barney to make further inquiry. If he omitted to do so, he took the risk of that claim. Nor did Keating’s declaration, that he did not calculate to make David trouble, better Barney’s condition. The naked declaration of an intention existing in the mind, made to one who gave no reason for his inquiry, will not prevent the assertion of a legal right, contrary to such expressed intention. A vested title in land cannot be so easily swept away. This testimony lacks the ingredients necessary to constitute an estoppel. It cannot be infei’red that Keating intended to induce Barney to buy of David, for he had no knowledge that he contemplated any such action. It cannot be said that the declarations were positive acts of encouragement to purchase, when no thought of purchase was intimated by either party to the conversation. Hence there was neither the fraud, nor encouragement, nor silence necessary to constitute an estoppel. Whether an estoppel results from established 'facts, is a question for the determination of the court: Lewis v. Carstairs, 5 W. & S. 205. This assignment is sustained.

The second assignment is the affirmance of the ninth point submitted by the defendant in error. This point is very general in its terms. It fails to indicate what acts or declarations would constitute encouragement to purchase, or what are necessary to create a duty to assert a title. The affirmance of the point virtually left to the jury to determine the law, as well as the facts. They should have been instructed as to what facts or circumstances were sufficient to create that duty. We therefore think the learned judge erred in his answer.

Judgment reversed, and a venire facias de novo awarded.