Plaintiff filed this action against the defendants, Edna A. Munger and Charles P. Munger, her husband, to foreclose a realty mortgage. In her amended complaint, on which the case was tried, she alleged that the mortgage had been placed on the property by other parties who later conveyed it to Edna A. Munger and that the latter had thereafter dealt with it as her separate property, and in so doing, in the year 1935, at her request a written extension of the mortgage to January 28, 1937, had been executed between the plaintiff and herself. There were further allegations as to various payments of insurance, interest and taxes, and the prayer was for relief that Edna A. Munger be required to pay the note which the mortgage secured, and for the foreclosure *Page 282 of the mortgage against the latter alone. No relief whatever was asked for as against Charles P. Munger, and there was not even a suggestion in the pleading that the property was the community property of the two defendants, or that in dealing with it Edna A. Munger had acted as agent of the community, or that Charles P. Munger had anything to do with any of the transactions between plaintiff and Edna A. Munger concerning it.
The answer of the defendants set up that the realty in question was community in its nature; alleged that the only extension of the mortgage made expired on the 28th of January, 1931; denied the written extension of 1935 pleaded by plaintiff, and set up the statute of limitations as a defense. Nowhere in the answer was there any suggestion that defendant, Edna A. Munger, had been authorized to make, or had made, any extension of the mortgage as agent of the community, or that Charles P. Munger had made any representations of any nature whatever to plaintiff in regard to the mortgage, except that he had refused to sign any extension thereof. On these pleadings the case went to trial.
From the statements made by the court and by counsel at the trial it is evident that the only issues considered by any of them as being litigated were (a) was the mortgaged property the separate property of Edna A. Munger, as insisted by plaintiff, or the community property of Edna A. Munger and Charles P. Munger, as contended by defendants; and (b) if it were separate property, did Edna A. Munger make an extension of the mortgage.
All of the evidence in the record was directed to those propositions, and to those alone. There was never a suggestion in the testimony of any of the witnesses that Edna A. Munger was authorized to act as *Page 283 agent of the community in her transactions with plaintiff; that she claimed to represent, or that plaintiff believed that she did represent, the community as its agent, or that her husband, Charles P. Munger, ever did anything which would suggest to plaintiff that she was authorized to act as agent of the community. The trial court, in rendering its judgment, held that the evidence showed the realty was the separate property of Edna A. Munger, and that she individually had agreed to an extension of the mortgage, but it never suggested that she at any time acted or represented herself as being the agent of the community, or that Charles P. Munger, her husband, had ever made any representations of any nature whatever in regard to the character of the property, or Edna A. Munger's interest therein or her right to deal with it. The judgment of the court was rendered in favor of plaintiff solely on the theory that the realty was the separate property of Edna A. Munger.
On appeal it was not suggested by either party that the question of agency or estoppel was in any way involved in the action, either by the assignments of error or the briefs.
The majority of this court has come to the conclusion that there is no evidence in the record which will sustain the finding of the trial court that the realty in question was the sole and separate property of Edna A. Munger, but, on the contrary, holds the evidence is conclusive to the effect that it is the community property of Edna A. Munger and Charles P. Munger, and always was. With this conclusion I agree most emphatically. It would seem that this would require a reversal of the judgment, for the issue upon which the trial was had and the judgment was based by the lower court was found to have been erroneously decided. *Page 284
But, says the majority opinion, notwithstanding all of this, we are satisfied that the judgment should be affirmed on the ground of estoppel. The question naturally arises as to who is estopped, and what are they estopped from doing. In view of the fact that the majority has held the property is community in its nature, it would seem the person estopped is Charles P. Munger, and that the estoppel must be either (a) from contending that the property was not the separate property of Edna A. Munger but was, in fact, community in its nature, or else (b) from contending that Edna A. Munger was not authorized to act as the agent of the community in her transactions regarding the mortgage, or from both contentions.
We have held that the essential elements of estoppel are that the party estopped, with full knowledge of the facts, must have asserted a particular right inconsistent with one which he later sets up to the prejudice of another who has relied on his first conduct. Peterson v. Hudson Ins. Co., 41 Ariz. 31,15 P.2d 249; Insurance Co. of North America v. Williams,42 Ariz. 331, 26 P.2d 117; City of Glendale v. Coquat,46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837.
Let us consider the two possible estoppels above referred to. Does it appear by either the pleadings or the evidence, or by the theory upon which the case was tried in the lower court that Charles P. Munger ever represented to the plaintiff that his wife, Edna A. Munger, was the sole owner of the property, or that she was the agent of the community, authorized to deal with the property on behalf of the community, and did plaintiff, relyingon such representations, or any of them, act thereon to her prejudice? The most meticulously careful reading of the pleadings will fail to show any suggestion that Charles P. Munger ever made any representations of any nature whatever to *Page 285 plaintiff in regard to the property or the mortgage thereon, or that he ever had anything whatever to do with the plaintiff. All of her transactions regarding the mortgage were with Edna A. Munger alone, and Charles P. Munger was never even present at any of them. And if no representations were made, certainly plaintiff could not have relied on something which did not exist, to her prejudice. Nor does she anywhere, at any time, claim she did so rely. How, then, can it be said that Charles P. Munger was estopped?
It seems to me that the majority of the court has set up a theory of the case not even suggested, let alone stated, in the pleadings, and utterly repudiated by both parties in their evidence, and never considered by the trial court as being among the issues litigated in that court, and not suggested by either plaintiff or defendants even in their presentation of their appeal in this court, and merely because, in the opinion of the majority, it is inequitable to allow the defendants to retain the property in question without paying the mortgage, has affirmed a decision that cannot, so far as I am able to see, be sustained upon any theory of law or fact, and which, in effect, utterly repudiates a principle that has been sustained by this court, inTevis v. Ryan, 13 Ariz. 120, 108 P. 461, and the many cases following, and which has been upheld by practically every appellate court in the Union for years.
The majority opinion attempts to determine the case upon a theory, both of law and fact, which was not raised by the pleadings nor the evidence, was not presented in the trial court, and which the parties themselves have never litigated nor attempted to litigate. "Equity is not the length of the chancellor's foot," and since the only principle upon which the decision of the majority can stand is a repudiation of this ancient maxim, it is against my protest. *Page 286