(dissenting). As stated in the majority opinion, the evidence in the Curtis case was introduced and used by the parties on the trial of this case. In that case, Mrs. Ourtis claimed a one-third interest in a tract of land, as against Mrs. Armagast. In this case, plaintiff claims an*720other one third of the same land, against Mrs. Armagast. The plaintiff in each case claimed a share in the land as an heir of Margaret Andrews, deceased, the one being her daughter, and the other, the only child of a deceased daughter. The heirship of neither was questioned or denied; and, if entitled to inherit at all, each was entitled to a one-third part of the same property. Both traced their claims of title to the same source, were met by the same defense, and the issues were tried on the same evidence. In the former case, we sustained the claim of the heir, but in this we deny it, — a situation quite suggestive of a famous alleged precedent where counsel, defending his client’s claim of title to a tract of land, relied upon a decision by the same court in an altogether parallel controversy, but was overruled because, as the court said, “this is another 40 acres.” The only pretense of any difference between the lines of attack and defense in the two cases is made to hang on a claim of so-called “acquiescence” by the plaintiff in the conveyance from her mother to her brother, the father of defendant, and the conveyance by him to his daughter; and this, as I shall try to demonstrate, is a distinction or difference without real foundation in the record. Every essential fact in this case was treated and considered in the Gurtis case, and its legal force and effect settled and determined. That case was tried below and argued here with unusual thoroughness; it was held in this court for a very considerable period for careful consideration; it was again argued and again considered by the entire court on a petition for rehearing; and relying thereon, I should content myself with a simple registering of my dissent, without discussing the merits of the litigation, if the majority had adhered to the purpose, expressed in the preface of their opinion, to consider the difference of views arising in that case closed by the decision there rendered. So far from doing so, however, the opinion, as' written, reviews the *721family history anew, from the standpoint of the dissent in the Gwrtis case, and dwells with much detail upon the alleged extraordinary fidelity and devotion of James to his mother and sisters, and conveys the impression that his life was one continual round of sacrifice in their behalf, and that the conveyance to him of 1,000 acres of valuable land was but a natural and well earned return for his filial services. Such was the view very forcibly expressed in that dissent; and when it is brought forward into this case, and used to express the voice of the present majority, it has the savor of a confession and apology to the defendant, and to the shade of her departed ancestor. For one, I do not desire to assume that attitude. There was and is no occasion for a judicially constructed halo for James. That he was a kind and affectionate son and brother, I grant, and that he entertained any conscious intent to defraud these women, I do not for a moment believe; but the suggestion that his contributions to their support were “benefactions,” pure and simple, for which the moth- • er became under any moral obligation to impoverish herself, to endow him or his children with riches, is without a single substantial foundation in the record. The fact that the title to the land was first conveyed to James, some 60 years ago, and by him conveyed to his mother, is a circumstance on which it is sought to hang an inference that he once had, and perhaps always had, an equity of some kind in the property, in recognition of which the conveyance by his mother in her old age was made. There is nothing to show that he ever had' a dollar’s interest in the land, until this last conveyance was made. On the contrary, it affirmatively appears that, one of his creditors having sought to take advantage of his nominal title to the land, and subject it to the payment of his debt, he showed, to the satisfaction of the court, that he had taken the title solely in trust for his mother. Moreover, at the very *722time he was continuing his so-called benefactions to these members of his family, he received and enjoyed the use, rents, and profits of all the land; and it is reasonably clear that, had the son and mother sought to exact mutual accountings, the balance of credit would not have been found in favor of the former.
But I do not care to continue the subject any further, and now come to the so-called acquiescence, upon strength of Avhich this plaiDtiff is to be deprived of the right to inherit one third of 1,000 acres of land, in favor of her brother’s daughter, who has already admittedly received, in her own right, another one third thereof. The claim thus sustained finds three different expressions in the opinion. In the first place, speaking of the deed made by the aged mother to her son, it is said that the deed was made “with the full knowledge of the plaintiff, and with her apparent acquiescence.” Again, referring to the deed from James, while on his deathbed, to his daughter, it is said that this conveyance was made “with the knoxvledge of the mother, Margaret (mother of Mrs. Curtis), and of the plaintiff, and with the apparent acquiescence of each;” and finally, it is repeated that, when this suit was begun, “plaintiff had fully ratified and acquiesced in the conveyance, after the death of her mother, and that the same was in accord with hex-previous attitude from the beginning, and the conveyance had her full and free approval, as a fair transaction, continuously from the date thereof in 1896 until the beginning 6f the Curtis suit, in 1909.”
Now, an acquiescence which will serve to defeat the as-sex’tion of a property right by a person to whom it would otherwise belong, exists only where the person so barred or estopped has a right to object to the act or thing in which he is alleged to have acquiesced. The land was owned by plaintiff’s mother, and neither plaintiff nor Mrs. Gray (mother of Mrs. Curtis) had or could have had any interest *723in the property until the mother’s death, in 1903, when, as her heirs, they each succeeded to a one-third interest in her property and property rights. Until the mother’s death, she could sell or dispose of her property as she pleased; and, if her daughters respected that right, and offered no objection to its exercise, there is, I insist, neither principle nor precedent for holding them to have thereby lost their rights which vested in them as heirs, long after the conveyance which we. decided to be voidable because , of the constructive fraud of James. Now, what is an acquiescence, in the legal sense of the word, as here employed? The answer is well put in a leading English case, as follows:
“If a person having a right, and seeing another person about to commit or in the course of committing an act infringing on that right, stands by in such manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act.” De Bussche v. Alt, 8 Ch. D. 286, 314 (2 E. R. C. 289).
This, it is said in Leeds v. Amherst, 2 Phillips 117 (2 Eng. Ch. 886), is the proper sense of the term “acquiescence.” Such, also, is the effect given to the rule by the courts of this country. It is said to be in the nature of an estoppel.
“It is a release or abandonment of one’s rights; if, having rights, he stands by and sees another dealing with his property in a manner inconsistent with such rights, and makes no objection while the act is in progress.” Board v. Plotner, 149 Ind. 116.
“It exists where a person knows he is entitled to impeach a transaction or enforce a right, neglects to do so for such length of time that, tinder the circumstances of the case, the other party may fairly infer that he has *724waived or abandoned his right.” Connell v. Clifford, 39 Colo. 121 (88 Pac. 850).
“It is only when silence or acquiescence becomes the basis or authority on which another parts with something valuable or incurs a liability that the doctrine applies.” Austin v. Jones, 148 Ala. 659.
See also Scott v. Jackson, 89 Cal. 258; Norfolk & W. R. Co. v. Perdue, 40 W. Va. 442; Rinake v. Victor Mfg. Co., 58 S. C. 360; Hall v. Otterson, 52 N. J. Eq. 522, 532; 1 Am. & Eng. Encyc. Law (2d Ed.) 570; Woodruff v. North Bloomington G. M. Co., 18 Fed. 753, 790.
In other words, if a person has no right to object to the act of another at the time it is done, then, clearly, he cannot be held barred or estopped by acquiescence when he attempts to enforce a subsequently acquired right; nor will such bar or estoppel arise in any court, unless the party asking its protection has, in reliance upon his silence, materially changed his position, or incurred expense or liability with which he would not otherwise be chargeable. See cases already cited.
Now in the present case, as I have before said, "when James procured the conveyance from his mother, neither the plaintiff nor Mrs. Gray had any interest whatever in the land. So, also, when he conveyed to his daughter, the mother was still living, and neither plaintiff nor Mrs. Gray had acquired any right to object; and their failure to object was, clearly, no acquiescence. Passing from this to the other argument indulged in by the majority: that, while Mrs. Andrews was a competent witness in the Curtis case, she is not such in her own, and therefore there is a material difference in the competent showing in support of her own claims. But her incompetency, if any, extended no further than to the personal transactions between herself and her mother, and an examination of the record shows that scarcely the smallest fraction of her evidence of that character *725has any material bearing in support of her claim in this suit. It furthermore appears that, on the trial of the Curtis case, defendant did object to the testimony of Mrs. Andrews concerning'the circumstances of the conveyance to James, because of her like interest with Mrs. Curtis; and, on repetition of that objection in this court, we expressly held that, eliminating her testimony from the record, we still were forced to the same conclusion that the burden was upon the defendant to affirmatively establish the good faith of the transaction, and that this had not been done. It is too evident for serious argument that, in all essential respects, there is absolutely no difference in the cases; and yet, while saying that the controversy, so far as it relates to the constructive fraud of James, which was held to vitiate the deed, was closed by the decision in the first case, we impliedly undermine its authority and deny its conclusions, by saying that there is much to be said in favor of the conclusion that the transaction between mother and son “was, in fact, free from fraud, and assented to by the mother freely and intelligently.” If a case once “closed” by final decision is still to be regarded as sufficiently open to have its vitals extracted and its value as a precedent destroyed by raising a doubt as to the sufficiency of the evidence on which it was based, then the sooner we abandon the publication of our reports, the better. Not that a case once decided becomes an immutable precedent, or immune to criticism; but it is to the interest both of the public and of the legal profession that a decision once made shall stand until the time comes when the court is ready to announce a change of view; and then it should be squarely overruled.
In closing, I wish to add, without reference merely to its effect upon this case, that the effect given by the majority to Code Section 4604 goes beyond any of the numerous holdings which this court has announced upon the com*726peten cy of witnesses. The constructive fraud which was held sufficient to set aside the deed from the mother to James was based upon the relations existing between them, and them alone; and the transaction found to be fraudulent was a transaction between them only. The plaintiff was in no wise incompetent to testify as to these things, in either the Curtis case or in this case. She could not, of course, over the defendant’s objection, testify to the communications between herself and her mother; but this part of her story is very fragmentary and inconsequential, and its exclusion does not affect the sufficiency of the evidence as a whole. The opinion says, however, that:
“In the Curtis case, Jessie Andrews was the principal witness, and was the only witness to the most important facts. The alleged dominance of the son, James, over the mother, and the fiduciary relation, were proved by her testimony alone. This consisted largely of personal transactions and communications between her and each of the deceased parties to the conveyance in question. * *. * Under the inhibition of Section 4604, such evidence is not admissible in this case.”
Surely, this is too broadly stated, and is a ruling to which I am sure we shall not long adhere. I take issue both with the statement of the record and of the law applicable thereto.
Finally, it may fairly be said that the opinion, though expressed with all the persuasiveness and force which are characteristic of its writer, is singularly unconvincing tó anyone who takes the trouble to test the accuracy of its statements and soundness of its conclusions by a careful examination of the entire case. When all is said, it is an attempt to distinguish the undistinguishable, and to escape the inescapable, and to prove that two absolutely parallel lines will diverge, if they are only sufficiently prolonged. To the paucity of the material which the record *727affords, and not at all to any lack of skill in their handling, is the failure to accomplish that triumph in the field of law and logic to be attributed.
Under our former holding, the trial court could not have done otherwise than it did in this case; and in my judgment, it would have been subject to just censure, had it ignored the precedent we established for it. The decree ought to be affirmed.