[Piled November 17, 1891.]
On Rehearing.
Bean, J.On the former hearing of this case, the facts as found by the referee were not seriously controverted, and consequently were in the opinion assumed to be established by the evidence. It is now urged by respondents that the alleged settlement between Marshall and his sister, and the declaration of Marshall that the deed was sufficient to convey the legal title, are not proven by the testimony. Their claim is, that the agreement was one of further security and extension of time in which to pay the debt, and there was no intention to convey the legal title to defendant.
*276Where the title to land is involved, in order to enforce an estoppel against the legal title, as is attempted here, the case relied on to work the estoppel must be' clear, precise and unequivocal on the facts. (2 Herman on Estoppel, 871; Jackson v. R. R. Co. 4 Del. Ch. 180.) The reason is, that the estoppel is contrary to the statute of frauds, which requires a deed or writing to convey title; and as the estoppel is to have practically that effect, parol evidence in support of it ought not to be of a loose or doubtful character, otherwise the effect would be to defeat the object of that statute and unsettle titles.
As was said by ANDREWS, J., in Trenton Banking Co. v. Duncan, 86 N. Y. 230: “The authorities establish the doctrine, that the owner of land may by an act in pais preclude himself from asserting his legal title. But it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is opposed to the letter of the statute of frauds, and it would greatly tend to the insecurity of titles if they were allowed to be affected by evidence of light or doubtful character.” And, “moreover it may be added,” says Chancellor Bates, “that to warrant the interference of the court with the legal right or title of the party, the case relied on to work the estoppel must be clear beyond doubt, upon the facts.” (Jackson v. R. R. Co. supra.) Hence when an estoppel is urged which is to preclude the legal owner from asserting his title, the courts insist that the evidence must be clear, precise and decisive, so that the facts constituting the alleged estoppel may be clearly and satisfactorily established.
The claim of defendant is sought to be sustained, princi-pallly by the testimony of herself and her business manager, Sparks, given in response largely to leading and suggestive interrogatories. But assuming that the evidence for defendant proves that there was a settlement as claimed, and an understanding and agreement that the old deed executed as a mortgage ■ was paid and became functus officio, and that *277Marshall’s declaration, that such old deed was sufficient to convey the title, and her reliance upon it, induced and caused her to accept and retain such old deed as the evidence of her title, this evidence is directly contradicted by five other witnesses of equal credit, who are admitted to have been present at the time of the alleged settlement, and who are as equally certain that the. agreement was only to furnish more security and for an extension of time, and not intended to change the character of the transaction, or the relation of the parties. That defendant supposed plaintiffs had some interest in this property after Marshall’s death, is indicated by her reply to the letter of plaintiff, Wm. Marshall, asking for a renewal of the contracts of sale, in which, while she claims to be the owner of the property and refuses to renew the contracts, she says, “ when a sale is made I will endeavor to make a settlement satisfactory to them all.”
Excluding Hughes’ testimony, who was consulted professionally by Marshall after the date of the alleged settlement concerning the final disposition of his property, and to whom he stated with a sense of impending death that he owned the property in dispute, subject to the lien of his sister’s debts, which would be conclusive if admissible, the number of witnesses and the preponderance of the evidence are in favor of the theory of the plaintiffs. Bésides, that contention makes the transaction consistent and the evidence harmonious. There is no pretense of any unfair dealing or intended wrong. For their own purposes the transaction, which was a security for a debt, was put in the form of an absolute deed.
The defendant came from her home in The Dalles to Portland, where she learned her brother could live but a short time, confessedly to collect her money or obtain more security, and it was in futherance of this demand that an aqjustment of their affairs took place. According to all the testimony, she got more security; the $5,000 mortgage on the property of Mrs. Marshall, in addition to the security upon the land contained in the old deed. The old deed was *278sufficient for a mortgage, and if Marshall’s declarations applied to it in that sense, there was no necessity to renew it. His declarations were not only true, but were consistent with the transaction, viewed as a security. To hold otherwise, we are put in the dilemma of supposing Marshall declared the transaction to be something different from what as a real estate broker he knew was the fact.
As there is no imputation in the evidence of any wilful intention to deceive, it is more consistent to construe his declaration with that view which would not mislead but harmonize with honesty and fair dealing and which was in accordance with the purpose of her visit, to obtain further security.
A good deal of stress was laid upon the fact that at the time of or after the settlement, the defendant gave Marshall av contract for the sale of the land for two years. In other words, authorized him to sell it and retain as his compensation all above the debt and interest. As the transaction stood, there was no other way for him to act as a real estate broker of the land. To conserve their own purposes, the property always stood as to the outside world as the property of the defendant. Either before or after the settlement, if he wished to sell it, he would need a contract of sale from her to exhibit to intending purchasers as his right to do so. This was the only way he could deal with purchasers upon the record. Hence it was perfectly consistent with the transaction as a security and a legal necessity, as the record stood, for him to take a contract of sale from her, not as evidence of title between them but with the world with whom he proposed to deal. This view is further aided by the fact that the sum mentioned in the contracts as the amount to he paid her only covered the debt and interest.
Much was claimed for the fact that after the settlement defendant delivered her notes to Marshall. This is denied by plaintiffs, and diligent search among Marshall’s papers fails to discover the notes. But if true, it is at most only a circumstance in her favor, tending to support her theory, *279and is not sufficient to overcome the positive testimony of the witnesses for plaintiffs and the other facts in this case. The evidence does not disclose that anything was said about these notes at the time of or during the negotiations of the parties, as would most probably have been the case if the settlement had been intended to be final. It was not until after the matter had been fully consummated, and the necessary papers had been executed and delivered, that Marshall went in his buggy to the dock, asked for and received the notes from defendant, as she was about to take the transfer boat for home. What his motives were in desiring the notes, are only a matter of inference from the other facts in the case. He knew he could live but a short time, and perhaps in thinking the matter over it occurred to him that it might complicate the settlement of his affairs after death if defendant were permitted to hold a deed to the property and his overdue notes for $5,000 more than her debt, as would have been the case if she had retained the old notes and the additional note for $5,000. Besides, he may have supposed with reason that because the debt evidenced by these notes had been readjusted, $5,000 thereof being secured by the notes and mortgage of Mrs. Marshall, and the remainder apportioned between the two pieces of property, and the time for the payment thereof extended, he was entitled to the possession of the old notes, which were overdue and no longer represented either the amount or date of payment of his debt. She had a deed to his property, and the contracts of sale which he had from her clearly showed the amount of his debt chargeable against this property and the rate of interest thereon. The only way he could divest her of her title or lien, was by the payment of his debt and interest, so that she was perfectly secure without the notes, which, if she had retained, no longer correctly evidenced his debt as readjusted; that plaintiffs recognized the defendant as the owner of the property and allowed her to go into possession after Marshall’s1 death, is we think satisfactorily explained by the evidence.
*280They consulted John Marshall, a brother of deceased, in whom they had confidence, concerning a sale of this property which they desired to effect, and were informed by him that defendant had a deed to the property, and they owned no interest therein. While they did not so understand the matter, they acted upon this information, supposing it to be correct, and that they were mistaken as to their rights until they were otherwise advised by counsel. In such a case, when a transaction, viewed in all its parts, can be made consistent, and the opposite view asserts a negligence which would operate as a constructive fraud, when the occasion and the parties as disclosed by the - evidence indicate an active desire to do right, it seems to us, in view of the facts, that courts look with jealousy upon contracts between mortgagor and mortgagee for the surrender of the equity of redemption; and as the rule requires clear and precise proof, when the title to land is to be effected by parol, the facts in this case are too uncertain to warrant us in precluding the plaintiffs from asserting their title when they offer and are willing to do full equity by the payment of the debt and interest in full.
It follows that the decree heretofore entered in this court must go for naught, and a decree be entered here allowing plaintiff sixty days in which to redeem, and upon failure to do so, the land be sold as on execution to satisfy the decree and costs.