W. T. YANCEY and wife, Laura C. Yancey, and Edward A. Morton and wife, Alice G. Morton
v.
Louise H. WATKINS, widow; Louise H. Watkins, Executrix of the Last Will and Testament of G. B. Watkins, Deceased; Louise H. Watkins, Trustee under the Last Will and Testament of G. B. Watkins, Deceased, for Charles Thomas Watkins, minor; Louise H. Watkins, Guardian of Charles Thomas Watkins, a minor, and Carolyn Louise Watkins Cheatham and husband, John Gordon Cheatham, Jr.
No. 689SC271.
Court of Appeals of North Carolina.
October 23, 1968.*626 Royster & Royster and Hicks & Taylor, by Edward F. Taylor, Oxford, for petitioner appellants.
Watkins & Edmundson, Oxford, for respondent appellees.
BRITT, Judge.
The first question presented by this appeal is whether the pleadings and evidence offered by the appellants, when taken in the light most favorable to them, are sufficient to sustain the doctrine of equitable estoppel and thus withstand a motion for nonsuit.
The essentials of an equitable estoppel (also known as estoppel in pais) are set forth in the case of Boddie v. Bond, 154 N.C. 359, 70 S.E. 824, as follows:
"1. Words or conduct by the party against whom the estoppel is alleged, *627 amounting to a misrepresentation or concealment of material facts.
"2. The party against whom the estoppel is alleged must have knowledge, either actual or implied, at the time the representations were made, that they were untrue.
"3. The truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time they were made and at the time they were acted on by him.
"4. The party estopped must intend or expect that his conduct or representations will be acted on by the party asserting the estoppel, or by the public generally.
"5. The representations or conduct must have been relied and acted on by the party claiming the benefit of the estoppel.
"6. The party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party be permitted to deny the truth thereof."
These criteria have been repeatedly cited, approved and applied. In re Will Of Covington, 252 N.C. 546, 114 S.E.2d 257; Hawkins v. M. & J. Finance Corp., 238 N. C. 174, 77 S.E.2d 669; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270; Sugg v. North Carolina Agricultural Credit Corporation, 196 N.C. 97, 144 S.E. 554.
Appellants failed to offer sufficient evidence to invoke the doctrine of equitable estoppel. In many respects they failed to meet the criteria set forth in Boddie v. Bond, supra. For example, they offered no proof showing knowledge of the true facts by appellees or their predecessor in title as required by criteria 2. Furthermore, assuming that R. C. Watkins and G. B. Watkins made representations to the effect that W. T. Yancey owned one-third interest in the property, Mr. Yancey, of all people, was in position to know if he had complied with his alleged agreement with R. C. Watkins and had obtained a deed for his interest in the property; thus criteria 3 is not met, as the truth respecting the representations was not unknown to W. T. Yancey.
The trial judge properly allowed the motion for judgment as of nonsuit.
Appellees contend that inasmuch as appellants did not plead equitable estoppel, they cannot properly rely on the doctrine. This contention is sound.
Where respondents in a proceeding for partition deny that petitioners own any interest in the land, the proceeding is converted into a civil action to try title. Skipper v. Yow, 249 N.C. 49, 105 S.E.2d 205.
In Alley v. Howell, 141 N.C. 113, 53 S.E. 821, the plaintiffs, in an action to try title, alleged that they were "owners and entitled to the possession." It was held that evidence of fraud in the treaty and undue influence were properly excluded, the court saying: "This has been the settled practice and rests upon the principle of fair play, that those matters only should be contested at the trial which come within the scope of the allegations. It is true, the averments here omitted were matters of equitable jurisdiction under the former system of pleading, but it is not on that ground that they are required to be pleaded, but because when the plaintiffs merely allege, as here, that they are `owners and entitled to the possession,' the defendant has notice only that his legal title is assailed." This was cited in Toler v. French, 213 N.C. 360, 196 S.E. 312, which case also held that an equitable defense must be pleaded in order to be proved.
In Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209, it is stated: "But matters in the nature of an estoppel in pais, whether relied upon affirmatively, or by way of defense, must be pleaded."
*628 It is fairly clear that a defendant must plead the doctrine of estoppel with particularity, except in cases of ejectment from possession or trespass, or where it is apparent from the face of the record. Upton & Co. v. Ferebee, 178 N.C. 194, 100 S.E. 310.
Appellants have filed a motion in this Court asking that they be allowed to file additional or amended pleadings as provided in Rule 20(c) in order to interpose a plea of estoppel in pais, if in the opinion of the Court such plea is necessary to the equitable determination of the rights of the parties.
Due to the insufficiency of appellants' evidence to support their plea of equitable estoppel, nothing would be gained by granting their motion to amend their pleadings; therefore, the motion is overruled.
The judgment of the Superior Court is
Affirmed.
BROCK and FRANK M. PARKER, JJ., concur.