majority">

The opinion of the Court was drawn up by

Whitman G. J.

This is a writ of entry, wherein the plaintiff seeks to recover of the defendant certain real estate in Saco, lie sets up a levy upon the estate, which is admitted to have been made in due form, in satisfaction of a judgment by him recovered against David Webster and Daniel Burnham; so that the plaintiff may be deemed to have a right to recover against, the defendant, provided either said Webster or said Burnham had such an estate in the premises levied upon as would pass by the levy. It appears that Webster had conveyed it to Burnham, and that the levy upon it was as his property. The plaintiff, to prove the title to have been in Webster, before his conveyance to Burnham, introduced a copy of a deed from the registry, which purported to have been made to Webster before he conveyed to Burnham, by Jonathan Ring and others, as the trustees of the Saco Bank; and also a copy from the registry of a deed of mortgage made by the defendant and his wife, in- her right, of the premises to said Bank, which, with the premises described therein, appeared to have been assigned to said trustees, for the purpose of effecting a close of the concerns of that institution. And it appeared, that the Bank had entered for condition broken; and that *136more than three years had elapsed thereafter before the making of the deed to Webster. Proof was introduced by the plaintiff tending to show, that Webster had loaned to the defendant a sum of money, being the amount necessary to pay the debt, to secure which, the said mortgage had been given, and which he paid to said trustees, and requested them to make the conveyance aforesaid to the said Webster ; that the conveyance so made, together with the original mortgage deed and notes described therein, were delivered to the defendant, the said Webster not being present at the time ; that the deed, so made by the trustees to said Webster, was, by the defendant, delivered to the said Webster, on receiving from him an agreement in writing, but not under seal, in which it was stipulated, on the part of said Webster, that, if the defendant should pay him $6017,60, with interest, within three years from the date thereof, he would convey, by a quitclaim deed, all his right to the premises to the defendant and his wife.

In the deed, made by the said trustees to Webster, is the following description and recital, viz.: — “In consideration of five thousand one hundred and ninety dollars arid ninety-five cents, paid by David Webster, &c. the receipt whereof we do hereby acknowledge, do hereby remise, release, bargain, sell and convey, and forever quitclaim unto the said David Webster, his heirs and assigns, all the right title and interest in and to the land and buildings in said Saco, described in a deed of mortgage, made by John Spring and Olive, his wife, to said corporation, dated January 4th, 1830, and recorded in the registry for York County, book 135, p. 28, reference being had to the said deed for a more particular description, entry having been made to foreclose, and the right of redemption having expired, and said Webster having, at said Spring’s request, paid the amount which would be due on said mortgage. This release is made to the said Webster at thé request of the said Spring and wife, and is intended to discharge all title acquired by said corporation, the mortgage having been assigned to us in trust.” There was much other evidence adduced at the trial, tending to prove, on the one hand, that the mortgage *137had been foreclosed, and, on the other, that it had not, which we deem it unnecessary to take into consideration.

We think it clearly deducible from the testimony, that the deed, from said trustees to Webster, was made at the request of the defendant; and that it passed through- his hands to Webster at the time he took from Webster the writing conditioned to reconvey, &c. Under such circumstances we think he must be estopped to aver against the plaintiff, however the understanding may have been between him and Webster, that the deed, so made and delivered by him to Webster, was inoperative, particularly, as the plaintiff does not appear to have any other knowledge of the transactions, between Spring and Webster, than such as he was enabled to obtain from the registry of deeds. We are not to presume that the defendant intended a fraud upon Webster and his assigns; and therefore must consider the plaintiff as having a perfect right to hold the estate against the defendant for the term of his life at least.

It is a principle in equity, if a man will stand by and see another make expensive erections on land claimed by him, and give no notice of his claim, he shall be enjoined from after-wards making claim to the same, to the injury of him who may have made such erections ; and so if a man will stand by and see another purchase real estate, believing that he is acquiring' a good title thereto, and gives no intimation that the land is his, he shall not afterwards be allowed to make claim .thereto. Wendell v. Van Rensselaer, 1 Johns. Ch. Ca. 344, and cases there cited; Storrs & al. v. Barker, 6 Johns. Ch. Ca. 166. And a similar principle- has been recognised at common law, Hatch v. Kimball, 16 Maine R. 146. In this case the defendant, not merely stood by, but he procured the conveyance to be made, and was the go-between of the parties in accomplishing it. It would be a reproach to the law, if, in such case, he could be allowed to question the rights of third persons from thence, innocently, deriving title. There are numerous cases in which, if a party has so conducted, as wittingly and willingly to lead another into the belief of a fact, whereby he would be injured, if the fact were not *138as so apprehended, the person inducing the belief will be estopped from denying it to the injury of such person.

The verdict, in this case, was taken subject to the opinion of the Court upon the correctness of the ruling, and instructions of the Judge, who presided at the trial. The Judge instructed the jury that they must be satisfied, that Mrs. Spring was apprised of, and assented to the arrangements or acts of the defendant, in order to render the conveyance to Webster effectual to pass the estate. This instruction, we cannot regard, as having been properly given. Her knowledge or verbal assent, could have had no effect upon the operation of the deed. Although the estate was held in her right, she could not have been bound by her verbal assent, or actual’ knowledge of the conveyance. This instruction, if regarded by the jury, and we cannot doubt that it was, must have tended to mislead them; for it is very clear, that there' was no evidence in the cause tending directly to prove that she knew any thing about it. ■

A new trial therefore ought to be granted as well on account of the misdirection of the Judge, as because the verdict is clearly against the weight of evidence and the manifest justice of the case.

Citation profile

How this case has been treated — in progress