I had the land surveyed when I bought it in 1877; W. W. Sherrill showed me the corner at pine No. 2; Sherrill was then claiming the adjoining lands to this tract under James Harper, and was in possession (these lands are designated in the plat as James Harper's grant, thirty-eight acres, 1848; James C. Harper, fifty acres granted 1848, and David Greene, twenty-five acres, granted 1847); these are the lands that Clarke is claiming under Sherrill since that date."

The court was not bound to give the instruction embodied in this prayer, because if we concede that there was such a privity in estate between Sherrill and Clarke that the misleading representation of the former would operate in any case to estop the latter, it would be essential to first show that Boyden acted upon them and placed himself in such a position that he must suffer loss unless they are treated as true and binding on Clarke. 2 Herman on Estop., sec. 945; Sedgwick Waite, sec. 843; Bigelow on Estop., pp. 570, 638, 641; 2 Pom. Eq. Jur., sec. 812. But the plaintiff insists that as he bought immediately after Sherrill pointed out the corner to him, there was evidence tending to show that he was misled by the statement, and that it was error to refuse to submit that question to the jury, and he is entitled to have the benefit *Page 483 of the point under another exception and his second assignment of error.

But passing over this question, or conceding, for the sake of argument, that if a privity in estate was shown to exist between Sherrill and Clarke, such that the representation of the former, if acted on by Boyden, would estop the latter, it would have been the province of the jury to determine, whether the inference could be fairly drawn from the fact that Boyden purchased immediately after his interview with Sherrill, that he was induced by the statement of Sherrill to make the purchase, it would be manifestly immaterial whether Boyden bought because he was misled as to the location, or for some other reason, (667) if in contemplation of law Sherrill and Clarke did not sustain such relations to each other as that the conduct of the one would bind or restrict the rights of the other. The defendant holds under James Harper, who conveyed to him all his right, title and interest in the land. Harper's lien could not have been impaired by the mistake or wilful misrepresentation of his vendee so as to deprive him of his right to sell under a decree for specific performance all of the land covered by the description in his contract. Clarke was the assignee of the equitable interest of Sherrill, but had no notice of the representation made to Boyden. Although Clarke bought the equitable interest of Sherrill, he does not hold in subordination to him, but to Harper, and is no more bound or restricted than was Harper, the vendor of Sherrill, because from the very nature of the transaction, Harper's security would be impaired unless he could give the purchaser either from Sherrill or at judicial sale a good title, and thus induce him to pay the purchase-money for the whole tract. It would be giving very great latitude to the doctrine of estoppel in pais if the mistaken or fraudulent statements of a vendee, occupying land under a contract of sale, were allowed to have the effect of establishing title by estoppel, as against the original vendor and the assignee of the original vendee, after the vendor had performed his contract by conveying to the assignee, both grantor and grantee being ignorant of the fact that any misrepresentation had been made.

"Privies," says Lord Coke, "may be comprehended under two general heads, privies in deed and privies in law; but are generally said to be of four kinds, 1st, privies in estate, as donor and donee; 2d, privies in blood, as heir and ancestor; 3d, privies in representation; 4th, privies in tenure, as landlord and tenant. Coke on Lit., 271a." But while we are dealing here with a species of estoppel, which is the creature of the courts of Equity and operates between the immediate parties and their privies, whether by blood, by estate or by contract (2 Pom. (668) Eq. Jur., sec. 813) it nevertheless, in this particular instance, *Page 484 necessarily involves principles originating in the doctrine of tenures, because of the contention that there is a privity of estate. In law, the vendee is the mere tenant of the vendor, while in equity the vendee is the owner, and the vendor holds the legal estate to secure the payment of the purchase-money. The courts of Equity have never established the principle that the tenant could by his conduct in pais diminish his lord's estate by an estoppel operating on the superior, nor have they held that the vendee, because he is esteemed the owner in equity, could diminish the security of the vendor by his declarations, whether made ignorantly or fraudulently, or whatever might be the effect of such representation on others.

Assuming that Clarke now holds a deed from James Harper with full covenants of warranty and seizin, and that Boyden is declared to have title by estoppel on account of the conduct of Sherrill, Clarke, as an innocent purchaser, would be placed in a very strange and unfortunate position. It will be conceded that he could not recover for the loss of the strip of land from Harper or his heirs, because the misrepresentations of Sherrill, the tenant in law and vendee in equity of Harper, could not bind him. If he should sue Sherrill for damage, the all-sufficient answer to his demand would be that the assignment involved no warranty of title on the part of the latter. We cannot concede that such is the doctrine of equitable estoppel.

Where, however, a person invokes the aid of an equitable estoppel, on the ground that he has been misled, he must not only have acted in good faith, but it must appear that he has shown reasonable diligence in trying to ascertain the truth. 2 Pom. Eq. Jur., sec. 813; Thomas v.Mosher, 20 N.J. Eq., 257; Royce v. Watson, 73 N.Y. 597; (669) Wilcox v. Howell, 44 N.Y. 398; Moore v. Bowman, 47 N.H., 494.

If a prudent person, in the exercise of ordinary care and occupying his position, would, by prosecuting his inquiries further or extending his investigations, have ascertained the truth before acting, relief would be refused on the ground of negligence. Applying this principle to our case, we find that the plaintiff's deed described his land as beginning on a white pine stump, it being the stump of a white pine tree, which was the beginning corner of what is known as "the old Isaac Greene one hundred acre tract of land, said corner being about thirty feet above the turnpike road, leading from Blowing Rock to Lenoir, and some fifty or sixty yards north of E. C. Pruden's cottage residence at Blowing Rock, and said corner being some twenty or twenty-five steps northeast of a bluff of rocks situated about from five to eight steps north of said turnpike road, and then runs east 148 poles to a cucumber on Alexander Martin's old line, the cucumber now being down; then north *Page 485 107 poles to a red or Spanish oak on said line; then west 148 poles to a stake; then to the beginning, said tract of land being known as the old Isaac Greene place or tract."

It appears, from the testimony of Sherrill, that when the defendant Clarke proposed to buy, a survey was made preliminary to the purchase, and in order to locate the land which Sherrill had contracted to buy from Harper, Clarke caused a survey to be made of the calls of the old deed, under which Boyden claimed. But instead of accepting as true the statements of the proper location of the pine at the stump, as claimed by the plaintiff, Clark took the precaution to begin at the third corner, a red oak, which was still standing, and to reverse the calls and thereby fix the true location of the beginning corner. The plaintiff, John A. Boyden, who was present when the surveyors passed around to the last line, seems to have conceded that the line then run (and now found by the jury to be the true line) was properly located, claiming only that he held beyond it the land under fence and in his (670) possession up to the present time.

Guided by the principle we have stated, it is manifest that a court would not grant relief to the plaintiff, as against the defendant Clarke, when he might have ascertained the true location by running from a marked corner, as Clarke did. There was, therefore, no error in refusing to instruct the jury as to the estoppel in pais.

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