Favill v. Roberts

By the Court —

Miller, P. J.

This action was brought for the purpose of procuring title to a farm of land described in the plaintiff’s complaint, which the plaintiff had purchased of the executor of John Roberts, deceased, and which said executor had conveyed to the plaintiff under, and by virtue of an order of the Supreme Court, made upon the application of the executor for that purpose. The consideration money was paid and secured, by the plaintiff, according to the contract, and improvements had been made by him, when it was discovered that the Supreme Court had no authority to grant the order made for the conveyance of the property, and that the plaintiff’s title was invalid. The plaintiff seeks in this action, to enforce a remedy against the heirs-at-law, and to compel a conveyance, upon the ground, that the executor acted by and with their consent and approbation, and that they encouraged the sale, and gave their assent to the contract entered into, and insists that they are thereby estopped from denying the authority of the executor to make the sale and conveyance to the plaintiff. Only two of the defendants, Gilbert L. Roberts and Cyrus Roberts, contest the plaintiff’s right to a conveyance, and to maintain the action.

I entertain no doubt that the plaintiff’s complaint sets forth a good cause of action ; and if it appeal’s satisfactorily, that the defendants sanctioned the sale of the premises, and by their actions and conduct induced the plaintiff to make the purchase, that the plaintiff has a remedy to compel them to convey their interest in the premises to him. They had a reversionary interest in the property, and having sanctioned a disposition of it, by which they are to be benefited, it is eminently just, that the equitable power of the court should be invoked, to compel them to stand by, and enforce, what they have assented to. A judgment of this character is not making a contract for the parties, which they never entered into, but simply compelling them to carry into effect, what they have virtually agreed should be done. Nor does it, in my opinion, in any way prevent the enforcement of the plaintiff’s right, because the complaint alleges that the defendants “ are estopped from denying the authority” of the executor to make the sale and conveyance to the plaintiff. The defendants having refused to unite in a conveyance to the plaintiff, and claiming that the plaintiff has no title to the premises, under the conveyance made to him, he has a right to bring an action to compel a conveyance of any interest which the defendants may claim in the premises. The cause of action of the plaintiff is complete, provided the findings of the court are sufficient to establish a case in accordance with the views expressed.

It is insisted by the defendant’s counsel, that the several findings of fact by the court, upon which the conclusion is based, that the defendants are bound by the agreement entered into by the executor of the testator, for the sale of the land, are unsupported by the evidence.

After a careful examination of the evidence, I think that there is sufficient testimony to uphold the findings, to which exceptions are taken. There is strong evidence to sustain the conclusion, that after the order of sale was obtained, the defendant consented to, and requested Lewis Roberts to act under the order in selling the premises. Each of the defendants was present at different times after the order of sale was granted, while the negotiations were in progress; advised and consulted with the executor as to the price, the terms of sale, and all the matters connected with it. They both knew all about the sale; referred to Lewis as the only person authorized to transact the business, and interposed no objection to the conveyance being executed. In fact, they participated with Lewis in making the bargain, and in consummating the contract. The price was discussed, and named by both the defendants, and other matters connected with the sale talked over. It was understood that the price could not, or would not be fixed without the assent and approbation of tire defendants.

The evidence also establishes that after the sale on one occasion, Cyrus said it was right. At another time he stated that he had advised the sale; that Favili had bought it, and they would make a deed. He also told Lewis Sproul that he thought the sale well enough. He stated to Sunderliu, who held a note against him, on which he made a payment, that they had sold the place and he would pay the balance next spring. He also made declarations to other persons, to the effect that the place had been sold with his approbation and consent.

There is abundant testimony of Gilbert’s declarations after the sale, signifying his assent to what had been done. Two witnesses swear that when Favili presented the deed to Gilbert, he said he supposed that the title was good, and if not, it might be made good. To another witness he admitted that he had told Lewis if he could get $10,000 to let the farm go.

These acts and declarations of the parties prior to the sale, during the negotiations and after the sale had been consummated, tend to establish that the defendants consented to and requested Lewis to act under the order in selling the premises. They also show that the court properly found that the agreement for the sale was made at the request of the defendants. It is true that the testimony of the plaintiff is contradicted in some material parts by the evidence of the defendants; but it is not enough that there was a conflict, to hold that the findings are unsupported by evidence. The circumstances surrounding the case and the testimony to which I have referred, all uphold the conclusions of the court in the particulars stated. The other findings to which exceptions, were taken are also sufficiently sustained by the testimony, and do not require any extended discussion. It is apparent, I think, that these defendants not only consented to the sale, but aided in bringing it about; and unless a rigid rule of law interposes, it would be unjust to deprive the plaintiff of the benefit to be derived from the sale.

• The facts found by the court being abundantly supported by testimony, it follows that the conclusion that the defendants were in equity bound by the agreement for the sale of the land and are estopped from questioning the authority of Lewis to make and enter into said agreement, was correct and proper. .

It is contended that the principle of estoppel does not apply to a case like the one now presented for our consideration, and that the decision of the court was therefore erroneous. We have been referred to some cases to support the position that an estoppel in pais is only a rule of evidence, and not a mode of enforcing contracts, and that it must relate to some matter of fact, and an admission as to the law, or as to the legal effect of a contract, never estops a party. (Crawford v. Lockwood, 9 How., 550, 551; Brewster v. Striker, 2 Coms., 19.) It is not necessary in this case to apply the doctrine of estoppel otherwise than as a rule of evidence affecting the question which arises as to the authority of Lewis Roberts to act as the agent of the defendants in making and executing the agreement in question. If they assented to the action of the executor in making the contract, then upon the application of the rule of evidence, which is well established, they are now estopped from denying the authority thus conferred.

It is manifest that these defendants desired a sale of the farm in question for the price agreed upon and paid and secured by the plaintiff. They believed that a valid sale could be made by the order of the court, and consented to the M’der being obtained or after it was obtained to the conveyanee made in pursuance thereof. The sale was for the benefit of all the defendants by their consent, and the conveyance was made with their knowledge and acquiescence. They had a right to confer authority upon Lewis Roberts by paroi, and such an agency was sufficient to authorize a contract to sell. (McWhorter v. McMahan, 10 Paige, 386; Champlin v. Parish, 11 Paige, 405; Newton v. Bronson, 3 Kern., 587.) In this case the agency was sanctioned by the defendants, by standing by and allowing the plaintiff to pay the money to the executor upon the sale and receive a deed for the premises without objection or any pretence that it was wrong or claiming any interest in the premises; in fact, by allowing the plaintiff to make improvements upon the premises without protest or setting up any claim of title to the property.,

It matters not, in my opinion, that the executor acted without authority in making the sale, and it does not modify or destroy the effect of the consent conferred or invest the defendants with the authority to repudiate the act because the order was invalid and the sale conferred no title. It may be also remarked that in a case of this character, it is peculiarly appropriate to invoke that principle of equity which is well settled in the courts, that a person looking on and suffering another to purchase and expend money on land, without disclosing or making known his claim to the land, will not be permitted afterward to assert his legal title against such innocent purchaser. (Wendell v. Van Rensselaer, 1 John. Ch. R., 354.) Under the facts presented, the defendants should not be allowed to repudiate the act of their agent, and are estopped from questioning his authority.

I have examined the objections taken as to the evidence, and am of the opinion that the court committed no error in the admission of testimony or in refusing to strike out evidence taken without objection.

As there was no error upon the trial, the judgment must be affirmed with costs.

Judgment affirmed.