In Banc. Attached to the answer is a copy of report of the board of commissioners; accompanying the latter is a copy of a brief written agreement entered into by the widow and three children. Defendants contend that this latter document is protected by the parol evidence rule and that hence all recitals in the two orders in excess of the agreements set forth in this memorandum must be ignored. Whether this document constitutes the final repository or integration of the agreement of the parties is a matter which the trial judge will determine when evidence of the surrounding circumstances puts him in the position of the parties when they executed this document. Be this at it may, the nunc pro tunc order of September 18th, after mentioning this written document, recites: "It was further agreed in open court that the widow, Elizabeth Schamberger, should take the land hereafter described in full of all her rights in, and claims against the estate as an heir, widow, creditor, and every other capacity, and that the legal title to all of said land in fee simple should be awarded to the said Elizabeth Schamberger. * *"
Since the demurrer admits the truthfulness of the foregoing, we cannot ignore it. It is argued that the widow made a poor bargain for herself if she agreed to take nothing more than a life estate in the three properties. However, we understand from the facts pleaded that practically all of deceased's property *Page 452 was vacant. Elizabeth was deceased's second wife and was not the mother of the defendants.
The question now presents itself, Did the County Court have jurisdiction to make the nunc pro tunc order of September 18th, and the order of September 9th, if the latter is construed as one which takes title out of one individual and vests it in another? Section 936, Or. L., provides:
"The county court has the exclusive jurisdiction in the first instance, pertaining to a court of probate; that is, — * * 4. To direct the payment of debts and legacies, and the distribution of the estate of intestates; 5. To order the sale and disposal of the real and personal property of deceased persons; * * 8. To direct the admeasurement of dower."
In "Courts and Their Jurisdiction," by John D. Works, we find a discussion of what constitutes probate matters. From Section 67 we quote the following:
"As jurisdiction is sometimes given of `all probate matters' without defining such jurisdiction, the question has been presented in some cases as to what is included in the term probate matters.
"A court of probate has been defined as `a court exercising jurisdiction over the estates of deceased persons, possessing, as to personal assets, nearly all the powers formerly exercised by the courts of Chancery and the ecclesiastical courts of England.' And it is said that `such courts collect the assets, allow claims, direct payments and distributions of the property to legatees or others entitled, and generally, do everything essential to a final settlement of the affairs of the deceased, and the claims of creditors against the estate.' But this does not extend to controversies between the estate and third parties not claiming under such estate or as creditors of it; or to cases where the question whether the party is a *Page 453 creditor or not, depends upon the determination of some matter not within the jurisdiction of the probate court. Questions of title to real estate, for example, arising, not under a claim to receive it in the distribution of the estate, but adversely to such estate, do not fall within the jurisdiction of a probate court, nor can it determine the rights of strangers to property in the course of administration. But when it becomes necessary to pass upon a question of title in order to ascertain and determine who are entitled as distributees of the estate, a probate court has jurisdiction to pass upon the question. So, where the determination of the question of title is necessary for other purposes in the administration of the estate: and a probate court having power to determine who are the proper distributees of an estate has power to inquire into the legitimacy of children claiming to be entitled to distribution; and to determine every disputed question of fact necessary to ascertain the amount due to each distributee; and may, for the purposes of distribution, construe a will. Such jurisdiction extends to the distribution of the estate, or a part of it, to persons claiming under the heirs, as this is a part of the settlement of the estate. And the court has jurisdiction to determine whether such assignment was made or not as between the claimant and the heir."
We do not believe that the foregoing language of Section 936 is sufficient to authorize a probate court to take title out of one group of individuals and vest it in some third individual under the circumstances we are dealing with.
It is argued that the order can be upheld as a consent decree. Consent decrees are ineffective where the court lacked jurisdiction of the subject matter: Freeman on Judgments, § 1309. Since the court could not have entered this judgment pursuant to litigation, it could not enter it pursuant to consent. *Page 454
Plaintiffs also seek to uphold their title under the doctrine of estoppel in pais. The conduct which they rely upon is that the defendants permitted the foregoing orders to remain in the files of the County Court from which it appeared that they and the widow agreed that the latter should have title to this lot; that without protest and without asserting the title that was vested in themselves they permitted the widow to give to one of the plaintiffs, and another Rowan, a general warranty deed purporting to convey title in fee simple, for which the purchasers paid the full market value of the property. That subsequently Rowan's undivided one-half interest was purchased by the other plaintiff with the knowledge of the defendants, he paying the full market value of the interest he acquired. That plaintiffs made improvements in the nature of a party-wall, added another one-half lot to lot three (3), and that the defendants permitted the plaintiffs to pay taxes and discharge assessments levied upon the property under the belief that the plaintiffs were the owners of the property. The complaint alleges that the party-wall was constructed on the east line of the west one half of lot two; we understand from this statement that the wall was not built on lot three. The only events that occurred after Joseph and Marie reached their ages of majority, were the sale of a one-half interest by Rowan to the plaintiff T.G. Skyles; the purchase by plaintiffs of an adjoining one-half lot, the erection of a party-wall and the payment of taxes and assessments. The doctrine of estoppel in pais and the elements comprising it were discussed by this court at some length in the recent case ofBramwell v. Rowland (Or.), 261 P. 57. We find it unnecessary to add anything to the statement of the law therein set *Page 455 forth, except to determine its application to minors and to the facts of this case. In Pom. Eq. Juris. (4 ed.), Section 815, the application of estoppel in pais as applied to minors is set forth in these words:
"The disability of infancy seems to have limited the operation of the equitable estoppel more than that of coverture. Since an infant is not directly bound by his ordinary contracts, unless ratified after he becomes of age, so obligations in the nature of contract will not be indirectly enforced against him by means of an estoppel created by his conduct while still a minor. On the other hand, an equitable estoppel arising from his conduct may be interposed, with the same effect as though he were adult, to prevent him from affirmatively asserting a right of property or of contract in contravention of his conduct upon which the other party has relied and been induced to act."
31 C.J., page 1005, considers the same matter and expresses the rule substantially similar to Professor Pomeroy's exposition. We have read the cases cited in the footnotes and find that they support the text. In Spencer Bower on Estoppel by Representation, paragraph 222, the application of estoppel to minors is thus expressed:
"Infants have been protected against those whose business it is to prey upon them, and against themselves, by the common law from the earliest times, and now by the legislature, which has rendered all contracts made by an infant, with certain exceptions, not voidable merely, but void. Foreseeing that the efficacy of the statute would be entirely destroyed if a minor were to be allowed, by representations of majority, or otherwise, to estop himself from asserting the voidness of any such contract, the courts have always unflinchingly disallowed the estoppel and have given effect to the affirmative plea. Of course, as has been elsewhere indicated, an infant, to the extent and under the conditions there mentioned, can make himself *Page 456 liable by representation to an estoppel the allowance of which does not necessarily involve the validation or recognition of the void contract"; the reference is to paragraph 194:
"The position of an infant, as regards contracts made by him during his minority, is strongly entrenched behind both common law and statutory rules for his protection. It is a corollary from these rules that a representation made by an infant representor is not allowed to operate against him as an estoppel, where such estoppel, if allowed, would have the effect of depriving him of this protection against liability on his contracts, — which is the case in the vast majority of a minor's representations. It is otherwise, of course, where the infant's representation can be put as fraud. And where the representation was made on behalf of the infant by his guardian, or next friend, or other person legally competent to bind him by such representation, the infant on attaining his majority, or the person so making the representation on his behalf until that event, as the case may be, is liable to be estopped thereby."
In Bigelow on Estoppel (6 ed.), page 627, we find:
"The authorities, on the other hand, are not few or obscure which maintain the proposition that if an infant of years of discretion knowing that he has a right to an estate encourage a purchaser to buy it of another without asserting any claim to it, the purchaser will hold it against the infant. It appears to be the better doctrine with these authorities that both infants (of years of discretion) and married women may be estopped to set up a claim to their property against a purchaser. Both are liable when properly sued for their torts in an action which does not seek the enforcement of a contract or demand damages for repudiating, or for fraudulently inducing the plaintiff to make, a contract; and in an action for a fraudulent representation of title whereby the plaintiff has been induced to expend money for the purchase of property belonging in reality to the defendant the measure of *Page 457 damages must of course be the sum paid. Now, to prevent a circuity of action (which indeed is the ground of many estoppels, if not also of this very class of equitable estoppels) it is but right on analogy that the infant or feme should be rebutted when proceeding to regain possession. Certainly this would seem proper when the party so proceeding has no other property with which to answer the purchaser for the deceit. We do not say that the existence of an estoppel by conduct always depends upon the existence of a right of action for deceit; but we apprehend that while there may be an estoppel without this right of action in some cases, the estoppel always arises where the action of deceit would be maintainable."
These statements do not differ substantially so far as the facts before us are concerned.
We will now consider whether Joseph and Marie are estopped from asserting their title. In the first place it will be noticed that there is no allegation that the various assessments have been discharged. Next it is deserving of notice that it is ordinarily the duty of the life tenant to pay the taxes. The rule is thus set forth in Tiffany on Real Property (2 ed.), page 85:
"The life tenant is ordinarily under an obligation to pay the taxes as they accrue from year to year, to the extent, at least of the income which he receives from the property. * * Municipal assessments for improvements of a permanent or quasi-permanent character, are to be apportioned upon an equitable basis between the life tenant and remainderman, though if for improvements so temporary in character that they will probably not outlast the life tenant's life they must be borne by him alone."
We have held to the same effect in regard to the payment of taxes of a life tenant in Abernethy v. Orton, 42 Or. 437 (71 P. 327, *Page 458 95 Am. St. Rep. 774). The party-wall not having been constructed upon lot three, but twenty-five feet away from it, should be eliminated from consideration. These defendants received nothing from the plaintiffs. While it is true the defendants allowed the two orders of the County Court to remain on file after they had reached their ages of majority, it is equally true they could not have expunged the orders from the files had they so desired. The orders themselves notified all that Joseph and Marie were minors. No act is charged against the minors that could be designated as fraudulent, or as having been committed with an intent to influence the plaintiffs. The minors do not ask that the plaintiffs be required to perform any affirmative act. The record does not disclose that the widow had applied for any support money: while she waived her administratrix fee, she had not completed the administration of the estate; hence we assume that another's services were required to complete the task she begun. Whether the minors were in fact benefited by her services is therefore doubtful. The events which occurred after the minors Joseph and Marie reached their majority are insufficient, in our opinion, to constitute the basis of an estoppel.
But with the other defendant, Marguerite Kincaid, the situation is different. She was of the age of majority at all the times when the above events were transpiring, and actively participated not only in her individual capacity, but also in her representative capacity as guardian ad litem for Joseph. Her activities were direct causes of the filing of the orders of September 9th and 18th in public offices.
One may lose the right to assert his title by allowing another to hold out himself as the owner, *Page 459 and thereby mislead an innocent third party into dealing with the latter and paying him the purchase price of the property under the honest belief that the buyer is dealing with the owner. In 10 R.C.L., page 780, this rule is stated thus:
"It has been held in many cases that if the owner of land knowingly stands by and permits his property to be mortgaged or sold by another to one who is to the owner's knowledge relying on the apparent ownership of the person executing the conveyance, such conduct, irrespective of who benefits by the transaction, will estop the owner from asserting his title against the mortgagee or grantee. In that class of cases it is considered that there is a legal obligation to speak, and that concealment is such a fraud as will forfeit the title."
In 21 C.J., page 1172, the editor states the same rule in these words:
"Where the true owner of property holds out another, or allows him to appear as the owner of or as having full power of disposition over the property, and innocent third persons are thus led into dealing with such apparent owner or person having such apparent power of disposition, they will be protected. However indisputable were the intentions of the owner not to surrender his ownership, when he has surrendered the possession and exhibited the person who has that possession to the world as one having the power to dispose of the property, he will not be heard against an honest buyer who had acted upon the confidence imprudently reposed by the owner. * * Nevertheless, the rule, although general in its terms, operates only to protect those who, in dealing with others, exercise ordinary caution and prudence, and as against those who have voluntarily conferred upon others the usual evidences or indicia of ownership of property, so that they have apparent authority to dispose of it." *Page 460
See to the same effect, Thompson on Real Property, Section 2505. The above rule was recognized by this court in Bush v.Roberts, 57 Or. 169 (110 P. 790), and in Grand PrizeHydraulic Mines v. Boswell, 83 Or. 1 (151 P. 368, 162 P. 1063).
This defendant, Marguerite Kincaid, occupies a somewhat different position from that of the ordinary individual who stands silently by and sees money expended upon his property by one who believes himself to have title, because she alleges she owns the remainder and does not deny that the plaintiffs have some estate. Rules of law analogous to those applicable to this phase of the case were discussed by this court at considerable length in the recent case of Calvary Baptist Church v.Saxton, 117 Or. 125 (242 P. 616); we deem it unnecessary to add anything to the discussion set forth therein. In other words, if the defendant was in fact aware of the foregoing nunc protunc order and the recitals contained within it, and was aware of the fact that the widow was proceeding to deal with this property as if she were the owner of the fee, and knew that the plaintiffs were dealing with her and expending their money under the honest belief that the recitals contained in the nunc protunc order were true and had no knowledge to the contrary, the doctrine of estoppel in pais would become applicable.
Counsel for defendants assert that the order of September 18th was never filed in the office of the county clerk as provided by Section 1062. If we give full effect to the matter set forth in the order, the defendant was fully acquainted with the contents of the order; hence, so far as she was concerned filing the order in the office of the county clerk, even if necessary, would have accomplished no useful purpose. *Page 461
It follows that the Circuit Court erred when it sustained the demurrer so far as the defendant Marguerite Kincaid was concerned, and also when it entered judgment in her favor. Its decree should, therefore, be reversed so far as the defendant is concerned; costs in favor of all defendants, except defendant Marguerite Kincaid. As to her, plaintiffs may have costs.
REVERSED IN PART. AFFIRMED IN PART. REHEARING DENIED.