Werkheiser v. Werkheiser ( 1832 )

The opinion of the court was delivered by

Ross, J.

The question for our decision is, whether the proceedings in the Orphan’s Court estopped the plaintiff from showing his title. The petition and facts set forth in it amounted to no more than an admission, which under some circumstances, might be of little or no weight; but which, if made under other circumstances, might be of great weight and importance. They, however, never could operate as an estoppel. If a man institute a suit, and has made an error in declaring, or in the parties to the action, he may discontinue it, and proceed in such other form as the nature of his case may require, without being estopped, even though the second suit be founded upon a cause of action different from the former, and denying the allegations in the first declaration. Such allegations would indeed, in most cases, operate very slightly, if at all, against • him. Nothing more was done in this case. The plaintiff committed an error in presenting the petition, and probably upon discovering his mistake, relinquished the proceedings under it, and adopted the action of ejectment. Estoppel is quaintly defined, stopping a man’s mouth from speaking the truth, 1 Inst. 227; and it is a principle only to be admitted in equity, when it consists with the honesty and justice of the case even in reference to records. Where the justice and equity of a case require the interference of chancery, that court does not reverse the judgment, but they decree and enforce what equity requires to be done between the parties. Even where a record is an estoppel to the party, it must be direct, and in point to the fact, which the party is estopped from proving contrary to the record. Co. Lit. 352. Hume v. Burton, Ridg. 25. 102. In this case, there was nothing, but a mere recital of what, at the time, the plaintiff supposed, was Charles Werkheiser’s title. Rehearsal is not estoppel. 10 Vin. 555. Pl. 7. If a man recite by indenture, that whereas he holds certain land of the lease of his father, and he releases to him in fee, yet he may afterwards say, that the lessee had not any estate, upon which the release might move, for that it is but a recital. 10 Vin. 455. Pl. 5. Many other similar cases may be found in the same book. Again, one shall not be estopped, but of that of which he may have a traverse. Morgan v. Vaughn, T. Raym. 457-8. I believe it will not be pretended, that this inquisition could be traversed. (See 8 Mod. 311, 312, 313. 1 Stra. 610. 3 Dan. 272.) So if one seized in fee takes a lease of the herbage of bis own land, he is not estopped from claiming the fee. 2 Leon. 159, Pleadall’s Case. If on avowry for distress for rent, the tenant pray in aid claiming a lease for ten years, whereas he had a lease for sixty, his executors shall not be estopped from claiming to the end of the term against the lessor, or grantor of the reversion. Jenk 275. Cases might be multiplied on this subject almost without number. I will, however, only add one or two decisions made by the courts of our own country. In the case of Owing v. Bartholmew, 9 Pick. Rep. 521, it was held, that where a tenant of land presented a petition to the legislature, admitting, that the land belonged to the Commonwealth, and praying that it might be granted to him, and that thereupon the land by authority from,the legislature was sold to another person, the tenant was not estopped from setting up his title, but the admission in his petition, and his declaration that the land did not belong to him, amounted to no more than strong evidence against him, ahd. that the burden of'the proof rested on him to show, that such representation was founded in an innocent mistake. By an act of assembly of this state, passed the 13 th of April, 1807, it is provided, that where two verdicts shall be given in any writ of. ejectment between the same parties in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought, &c. Under this act it has been held, that two verdicts are no bar to a new ejectment, if the court grant a new trial, Ives et al. v. Leet et al. 14 Serg. & Rawle, 301. (See 5 Serg. & Rawle, 410.) I have referred to this act of assembly, and the decision under it, for the purpose of showing the reluctance, with which courts adopt even the salutary provision of an act of assembly, when it operates as an abridgment of the common law, or when it is calculated to prevent an examination of the merits of the case. I also refer to the case of Martin v. Ives, 17 Serg. & Rawle, 365, where it was held, that estoppels whenever they produced neither hardship nor injustice, but promoted equity, should merit indulgence, if not favour. In the present case great injustice would probably be done, if the petition were suffered to operate as an estoppel and preclude the plaintiff from giving his title in evidence. I am clearly of opinion, that the admission of the evidence was correct and authorised by every principle of law and equity.

With respect to the other errors assigned, there certainly cannot be a legal doubt entertained of the correctness of the decision of the court below. The evidence offered by the defendant was properly rejected; because it was an attempt to make out a title by parol, without any evidence of part performance. It is true, that where a plaintiff claims under an equitable title, he shall do equity before he shall be permitted to recover. When the defendant has acted honestly and with good faith, he is entitled to he reimbursed the money laid out in perfecting the title, or in making improvements; but if he has been guilty of malafides, and has endeavoured to defraud the plaintiff, he is not entitled to the benefit of this wholesome principle; or if he be entitled to it, it is only to such balance as may appear to be due after deducting the rents, issues and profits during the time' of his enjoyment of the land. Of this he should render an account, and in some cases chancery would direct the master to ascertain the same. In this case, the defendant claimed the absolute fee simple, and would have fraudulently defeated the object of the trust, if it had been in his power to do so. He, therefore, cannot bring- himself within the principle referred to. Many importaat principles applicable to this case will be found laid down by Chancellor Kent in Vanhorne v. Fonda, 5 Johns. Chan. Rep. 388, a note of which case will be found in 11 Serg. & Rawle, 427.

Upon the whole, we are of opinion, that the errors assigned have not been made out, and direct the judgment to be affirmed.

Judgment affirmed.