July 25, 1907. The opinion of the Court was delivered by This is an action to recover possession of a horse.
The complaint alleges that on the 15th of April, 1907, R.J. Cunningham executed and delivered to the plaintiff a mortgage on the horse in dispute, to secure payment of a note given that day in the sum of $88.00, and payable on the first of October thereafter; that the mortgage was duly indexed and entered of record; that the mortgage has not been satisfied; that the defendant thereafter took possession of the horse and wrongfully refused to deliver him to the plaintiff.
The defendant denied the allegations of the complaint, except the execution and record of the note and mortgage, and set up the following defense: That subsequent to the execution of the plaintiff's mortgage, the mortgagor, Cunningham, sold and traded the horse in question to one W. B. Dixon, who retained possession thereof as his own property *Page 424 for one or two years; that thereafter Dixon traded the horse to one Daniel Hall or Leland Hall, who had possession thereof for one or two years; that thereafter the said Daniel Hall, or Leland Hall, traded the said horse to one Rogers, who held said horse for a considerable time, exercising all rights over the same; and that thereafter the said Rogers, for value received, sold or traded the said horse to the defendant. It is further alleged that the plaintiff, Grafton, lived in the same community with Dixon, Hall and Rogers, and frequently saw the horse in possession of the said parties, and that he permitted the parties to hold themselves out to the world as the owners of the horse, without objection on his part and without asserting any right of ownership thereto, before the same was sold to the defendant. By reason of these facts, the defendant alleged that the plaintiff was estopped from asserting any title to the said horse.
It was further alleged that the defendant purchased said horse from Rogers, who was in possession thereof, and paid the full value of the same, without any notice of plaintiff's claim.
The jury rendered a verdict in favor of the plaintiff for the horse, or, in case a delivery could not be had, then for $135.00, the value thereof.
The defendant appealed upon exceptions which will be set out in the report of the case.
Briefly stated, the question presented by the exceptions is whether there was error on the part of his Honor, the presiding Judge, in ruling that the mere fact the plaintiff saw other persons in possession of the horse, and heard that they were trading it, did not impose upon him the duty of giving any further notice than that furnished by the record, unless he was present when the transactions were taking place with regard to the horse.
Section 3007 of the Code of Laws is as follows: "No voluntary postponement by the mortgagee to seize the personal property covered by any chattel mortgage, or bill of sale used as a chattel mortgage, after condition broken and *Page 425 no acceptance of a part of the debt secured by the mortgage, or such bill of sale after condition broken, shall be construed to operate as discharging the mortgage, or bill of sale, or as reverting the title of the chattel or chattels in the mortgagor; but indulgence may be granted by such mortgagee to such mortgagor after condition broken, as on other securities, without prejudice or danger to any rights or remedies of the mortgagee in the premises, to collect or to seize the chattels at any time at his option."
This section is remedial in its nature and must be liberally construed, and its provisions are sufficiently comprehensive, to be applicable to the present case.
But, apart from the statute, the ruling was free from error.
The general doctrine is thus clearly stated in 11 Enc. of Law, 427-9: "As a general rule, an estoppel may arise from silence as well as words; but this is only where there is a duty to speak, and the party upon whom the duty rests has an opportunity to speak, and, knowing the circumstances requiring him to speak, keeps silent; or, in other words, where his silence amounts to a fraud, actual or constructive. This doctrine proceeds upon the ground that he who has been silent as to his alleged rights when he ought, in good faith, to have spoken, shall not be heard to speak when he ought to be silent. It is not necessary that the duty to speak in such case should arise out of any agreement, or rest upon any legal obligation in the ordinary sense; it arises whenever the principles of natural justice require the disclosure. It may be stated as a general rule, that if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he consents to its being committed, he cannot afterwards be heard to complain of the act. This, it has been said, is the proper sense of the term `acquiescence,' which in that sense may be defined as *Page 426 `quiescence' under such circumstances as that assent may be reasonably inferred from and is no more than an instance of the law of estoppel by words or conduct.
"Thus, it has been held that if the owner of the goods stands by and voluntarily allows another to treat them as his own, by which means a third person is induced to purchase them bona fide, the former cannot recover them from the purchaser."
After the plaintiff placed his mortgage on record, he did not owe any further duty to persons having dealings concerning the horse, other than not to mislead them by his conduct. He did not owe them the duty of giving them that information which the record of the mortgage disclosed, and the testimony does not show that he failed, in any other duty.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.