The opinion of the court was delivered, by
Woodward, C. J.— The answer of the court to the defendant’s 1st point is not assigned for error, and therefore the inconsistency betwixt it and the ruling of this court reported in 1 Grant’s Cases 410, is of no present consequence.
But in what was said upon the 3d point of the defendant, we think there was error. It is an ingenious use of the law of estoppel, to apply it in support of a parol purchase of land, against an assertion of the legal title, and against, also, the plain terms of a salutary statute, but it was strongly intimated, if not expressly decided, in Washabaugh v. Entriken, 12 Casey 517, that it could not be so applied. In a general sense, every owner of one title is estopped when an adverse title is successfully asserted, but to constitute what is technically known as an estoppel in pais, there must be an assertion of right or fact by one party, an acting upon it in good faith by the other, and a detriment to result to the latter by correcting or altering the assertion. Equitable estoppel has its root in the principle, which casts a loss from a voluntary though innocent act upon the author of it, and hence if one knowingly, though he does it passively by looking on, suffers another to purchase and spend money on land, under an erroneous belief in his title, without making known his claim, he shall not afterwards be permitted to exercise his legal rights against such person. If there be any touch of fraud in the encouragement of such expenditure, the equitableness of the estoppel becomes very obvious; but even without fraudulent intent, a party may so speak and act, as to silence his future assertion of the truth, to the prejudice of him whom he has innocently misled.
Our books are full of these principles, but how can they be adapted to the circumstances of this case ? Miranville contracted by parol with Paul to build him a barn, and agreed to give him *150five acres of unimproved land and $10 for building it. After it was erected and finished, except the eave-troughs, Paul contracted by parol with Silverthorn to add the eave-troughs and take the land, and Miranville said in the presence of the parties, that he cared not who finished the barn — that he was ready to do his part, and- that he did not care to whom he made the deed, Paul or Silverthorn.
Here were two parol contracts about the land, one between Miranville and Paul, and one between Paul and Silverthorn in Miranville’s presence, or with his knowledge and consent. The state of the record compels us to presume that neither of these contracts was so far performed as to take it out of the Statute of Frauds and Perjuries. This-was the conclusion of law as announced by the court below, and is not complained of here. The contracts, then, whether taken singly or together, were void at law — they were contrary to the statute in such case made and provided. But Miranville is estopped from saying so because he stood by and allowed Silverthorn to contract with Paul without objection.; this is the argument.
Silverthorn could purchase of Paul, no more than Paul had to sell. What was it ? A chance of receiving from Miranville a deed for- the five acres of land,, and; in default of a conveyance, a legal right to recover for the building of the barn, when it should be finished. This is what Silverthorn acquired, and it is the whole of it, for it was all Paul had to grant.
Miranville is estopped from denying to Silverthorn all that was due to Paul, for he was assenting to the transfer; but if Paul could not compel Miranville to convey the land, Silverthorn is no less powerless, for he stands in Paul’s shoes. Is Miranville estopped from asserting his legal title because he contracted with Paul by parol? To answer affirmatively is to make an equitable estoppel repeal a statute. Is he estopped from asserting his title because he assented to Paul’s transfer to Silverthorn ? Clearly not, because a statute is not to be repealed by an equitable estoppel. Miranville stands here with his written title, and pleads the statute against a party who would take away his land by the testimony of witnesses, who swear to their understandings of conversations. Has he not a right to the protection of the statute ? If he have not, I do not see how it can be set up against any parol contract. In every instance it may be said that the owner of the legal title has estopped himself from asserting the statute by what he has said and done, and that were to blot the statute out of existence. Be it that it is contrary to equity and good conscience to assert the statute, still it is a statute, and is repealable only by the power that made it. The courts have no dispensing power. Their office is jus dicere, not *151jus dare. The inequity is punishable by damages, and is not to be redressed by judicial legislation.
Nor is the equity increased a whit by the circumstance of two contracts about the same matter. Two void contracts are no better than one. Silverthorn stands no better than Paul would stand. The doctrine of estoppel is no more applicable to one than to the other. Miranville misled Silverthorn no more than he did Paul. He got a barn built on a promise which the law would not compel him • to perform. They trusted his verbal promise, and he refuses to perform it. The legal consequence is an action for damages — not the repeal of a statute. The equitable right .which Silverthorn purchased of Paul, is to be enforced in an action for damages, if, indeed, it have not been lost by too long delay to assert it, and in that mode Miranville can be made to pay for his barn without being stripped of his title.
The judgment is reversed, and a venire faeias de novo is awarded.
Thompson, J.,did not sit, having been of counsel for one of the parties in a former suit about the same premises.