700

HURT

FEDERAL BBPORTER.

v.

RIFFLE

and others.May, 1882.)

(Oirc'Uit Court, D. Indiana.

ESTOPPEL IN PAIS-REPRESENTATIONS.

A party is not estopped from asserting a right belonging to Ilim against another party unless he has made a representation or concealment in a matter of fact important to the of the other party upon which the other party was authorized to rely, and in fact did actually rely, to his prejudice. A mere expression of opinion, upon facts equally known or open to both, is not a representation upon which a party has a right to rely within the meaning of the doctrine of estoppel.

*Reported by Charles H. l\IcCare., A8Ilt. Dlst. Atty.

BURT V. RIFFLE. :

.79.1

upon which there is a mortgage, which we propose to sell at Monticello on May 7th. We do not want, if it can be avoided, j;obother the propert)' whi()h you and Mr. Hurt bought, and thought it would be proper for us to sugbuy the gest to you and Mr. Hurt that you attend the sale at Monticello acres of land at a sma1l bid, and then pay us the balance of the jUdgment and we will assign it to you. The land, we understand, is valualJle,-sumcient to fUlly save you harmless against any loss.. The course indicated will pay onr debt, give you the land, and fully protect your title against all other claims; otherwise we are compelled to sell the property of yourself and Mr. Hurt on May 8th. Will you do us the favor to show this letter to Mr. Hurt, as what we suggest is intended for him too. We trust that. you may see this mode to be the one for you to adopt and act accordingly, as it will be a matter of regret to us that we should be compelled to take your property that you have once paid for. Let us hear from you and Hurt before sale, if possible. HEROD & WINTER." .. Yours, respectfully,
.. WAYNETOWN, L'iDIANA, May S, 1879. . "Herod &·Winter: In answer to your letter of the fourteenth of last

lI).onth, Ido not think I will be at the sale of Riflle's land on the 7th. We are not able to make a purchase, and, anothllr thing, I do not w.ish any more encumbered property, and the way the thing now stands I believe it will be cheaper to me to let my property sell than to try and save it. I bought it in good faith, taking Hiflle's word that there was nothing against it. We have alreaqy settled off two judgments, and Lhere is this jUdgment, and that is not all; so I ·see Qut little chance for us. There are other unsatisfied claims. You w\ll pleaseexcuse me for not writing sooner. I wrote to Rime and have been waiting for an answer. I wished to hear from him before I wrote to you. .. Yours, truly, ABSOLOM HURT,"

Mr. Herod, of the firm of Herod & Winter, appeared at the sale ·of the White county land and bid it in for the execution plaiqtiffsfor appeared and bid in .for his clients $15, and on the day the land conveyed to Hurt, for $900, and his firm receipted the execution for that amount as attorneys for the judgment plaintiffs. After the sale, but before the marshal had made a wdtten memorandum or return of it, and while Herod and the marshal were still at the place of sale, Hurt made his appearance for the :6rst time, and told Herod that during the year for redemption he woqld make up his mind as to what he would do. Neither at this time nor prior thereto had Herod or his partner, or either of the execution plainof the Westfall mortgage, or that Hurt had tiffs, actual paid part of the debt due from Riffie and Westfall to Reed. On the day of the last sale, and before it occurred, Herod examined the judgment records, and found two unsatisfied judgntents against Riilie, which were junior, however,to the judgment of Ackerland and Wyler.· But he neglected to examine the records ·of the l'ecorder'g

702

FEDERAL REPORTER.

office, where he would have found the Westfall mortgage unsatisfied. It was not until four or five weeks after the sale that Hurt employed the <lounsel who brought this suit. Mr. Herod testified before the master that he bid in the property at both sales, for the execution plaintiffs, on the faith of Hurt's letter to his firm. The master found, on these facts, that Hurt was estopped from a.sserting against Ackerland and Wyler any right he had acquired under the Westfall mortgage by paying part of the debt due to Reed; and to this finding Hurt excepted. It is. urged for Ackerland and Wyler that Hurt's letter prevented their counsel from examining the records of the recorder's office, where they would have found the Westfall mortgage; that the fair inference to be drawn from that letter was that Hurt had no lien on the property superior to that of the execution plaintiffs; and that the execution would not have been receipted for $900-the amount of the bid-if Hurt had asserted his right under the mortgage, or had mentioned the fact that there was such a mortgage before the execution was receipted. Herod & Winter were informed by Hurt's letter that he had paid off two judgments which were liens on the land, that in addition to the judgment which they represented there were still other unsatisfied claims against the land. Other unsatisfied claims might have been mortgages as well as judgments, and yet the sale was made without any examination of the mortgage records. Hurt was authorized to assume that Herod & Winter had actual knowledge of all recorded liens against the property, which was soon to be sold under their direction, by the marshal, to satisfy the judgment in favor of Ackerland and Wyler. Hurt sustained no Buch relation to the execution plaintiffs, or to their counsel, as compelled him to take any notice whatever of their letter to Gilkey and himself, and there was nothing in his letter in reply which justified Herod & Winter in assuming, without examination, that the lands levied upon were free of mortgage liens. Hurt may have thought, and he no doubt did think, that he was dealing with men who were more than hiB equals in legal knowledge, and who were more anxious about the interests of their clients than his welfare. When Hurt replied to Herod & Winter's letter he had not employed counsel, and it is not probable that he then understood his rights under the Westfall mortgage. The facts of the case do not justify the belief that he intended or expected his letter and conduct to deceive or mislead Herod & Winter. Hurt is not estopped from asserting his riuhts under the Westfall mortgage, unless he made 8.

RUCKMAN V. STEPHENS.

793

representation or concealment in a matter of fact important to the interests vf .\ckul'lllllll and Wyler, upon which .Herod & Winter were anth:wized to rely, and upon which they did actually rely, to the prejudice of their clients. No mere opinion that Hurt expressed could be relied on, and the recorded mortgage was a fact equally open to all. Finding, as they should have done, this mortgage unsatisfied, and prior to the judgment of Ackerland and Wyler, Herod & Winterwould, on inquiry, have learned that Hurt had paid part of the debt due from Riffle and Westfall to Reed. It was unsafe and unreasonable, and therefore unauthorized, for the counsel to bid off the property described in the mortgage for their clients, relying upon anything that Hurt said or did, or failed to say or do. And admittinf.{ that Mr. Herod made the bid and receipted the execution in the manner and for the reasons stated, it does not appear that Hurt's conduct induced Herod & Winter to alter their position to the injury of their clients. It is not shown that there was other property subject to the execution, or that the judgment was replevied. Hefner v. Vandolah, 57 Ill. 520; Rice v. Dewey, 54 Barb. 455 ; Bayles v. Perry, 51 Mo. 449; Palmer v. Williams, 24 Mich. 328; Freeman v. Oooke, 2Ex. 654; 11 Allen, 349. Exceptions8ustained.

RUCKMAN,

by her next friend,

'D. STEPHENS

and others.

(Circuit Court, D. New Jersey.

September 7, 1881.)

FORECJ.OSl)RE-SUIT BY MARRIED WOMAN-HuSBAND AS DEFENDANT.

Where a suit to foreclose a mortgage is brought by a married woman, who
is named therein as payee, and the mortgage is in possession of her husband,

who is a non-resident and outside the jurisdiction of the court, he should be a party to the suit, and should be allowed to come in and defend; but,owing to his laches and delay, only on terms, on payment of the costs already accrued in

On Bill to ForecloSi;l, etc. R. Allen, Jr., for petitioners. Jacob Weart, for complainant. NIXON, D. J. The bill of complaint was filed in this case by Margaret Ruckman, of the city and state of New York, by her next friend, Samuel M. Hopping, against Edmund Stephens and others, residents Of New Jersey,' for the foreclosure of a mortgage which the said Ste.