Wortham v. Thompson

Plaintiff below, Geo. S. Thompson, relies solely for title as against Wortham upon facts which he insists amount to estoppel. We do not think there is any estoppel in the case. Where the purchaser has the same knowledge of the facts as the real owner, and the latter does not induce him to believe in a state of facts other than those known, it is difficult to see how there can be any fraud, actual or constructive. To constitute an estoppel in pais the purchaser must be influenced by the conduct or representations of the owner, which if untrue would be a fraud upon him. Negligence or acquiescence may amount to estoppel in certain cases, but we are not considering such a case and need not explain it. Where the purchaser is not deceived by any act or misrepresentation of the owner, but knows the facts and the condition of the rights of the owner as well as be does, there can be no estoppel. The purchaser acts at his peril. Burleson v. Burleson, 28 Tex. 383. The general rule as applicable to this case has been tersely stated as follows: "That when one by his words or conduct willfully 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 concluded from averring against the latter a different state of thing as existing at the same time." Love v. Barber, 17 Tex. 317.

There is no question but that plaintiff knew all the facts that were known to Wortham or that were inferentially represented by the latter to be true. Plaintiff was living with Johnson, and they both rode over to Wortham's house to see him about the proposed exchange of lands between him and Johnson; he heard the parol agreement and knew all about it; he knew that the land was the homestead of Wortham and wife; that it could not be conveyed without her consent; that the parol contract was not binding and could not be enforced as it then stood — that is, he would be presumed to know such legal effect; he knew all about the transaction at least as well or better than Wortham, because it is shown that the latter was illiterate, not able to read and write. In such case we can not see where the elements of estoppel are. Plaintiff knew all that was to be known at that time, and that was enough to cause him as a reasonably prudent man to see that legal transfers were made of the property so as to vest, in him a legal title. No one was legally bound by what had transpired in his presence, and when he acted upon it, as he says, he took the risks incident to the then condition of things. What defendant said to him by way of permission to purchase from Johnson was of no consequence, he himself being in full possession of all the facts which should have advised him that he could not then obtain a title from Johnson. He was not misled, and it would be no fraud upon him to adjudge the title in the parties now as it stood then. Watson v. Hewitt, 45 Tex. 472; Scoby v. Sweatt,28 Tex. 713.

The question as to whether he could recover the land if his vendor could recover is not before us. We doubt that the court below would have held under the circumstances of the agreement and subsequent facts that Johnson could have maintained the action. These questions were not decided and we will not anticipate them.

We are satisfied that plaintiff's title by estoppel failed, and that the judgment of the lower court should for that reason be reversed and the cause remanded.

Reversed and remanded.

Adopted June 9, 1891.

C.N. Allen and Hodges Nichols, for appellee, argued a motion for rehearing. It was transferred to Tyler Term and there overruled.