The complainant, appellant, filed this bill invoking the application of the doctrine of equitable estoppel to preclude appellee from asserting against appellant appellee's superior legal title to 40 acres of land, acquired in 1906, which, with other real estate, appellant had subsequently bought at a foreclosure sale of a mortgage executed by appellee's grantor, his father, to other persons. The appellee's deed to this 40 acres was seasonably filed for record and recorded in 1906. The foreclosure sale was effected in 1916 of a mortgage executed by appellee's grantor in 1909 to secure indebtednesses maturing in 1910-11. The appellee's deed having been seasonably, effectually recorded, thereby giving constructive notice of the existence of his claim of right and title to the forty acres in question (Code, § 3373), no concluding equitable estoppel could arise from his mere failure to avow, or his silence with respect to, his claim of title at the foreclosure sale had under a mortgage executed by his grantor subsequent to the registration of appellee's deed. Only some positive act or statement inconsistent with the right or title the deed disclosed, done or made before or at the time of (not after) the sale, or silence when conscience and the occasion, before or at the time of (not after) the sale, required him to avow his claim of title or right, and known to and acted upon by the purchaser (appellant) before he became the highest bidder at the foreclosure sale, could have operated to erect an equitable estoppel against appellee's superior title under his deed. The evidence has been carefully examined with respect to appellant's contention that appellee should be concluded by the character of estoppel mentioned. It appears from the evidence beyond any fair doubt that appellant's contention that appellee's disavowal of any interest in the land was, if made subsequent to the foreclosure sale, though previous to appellant's payment of the bid price, which, by his successful bid, he had become bound to pay, the sale being otherwise valid, of whatever title the mortgage conveyed.
According to the decree, the appellant's objection to the admission in evidence of the witness Clark's recital of what appellee told him the day before the foreclosure sale was sustained, not overruled.
The decree is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 126