(dissenting). The trial judge’s findings are stated as mere conclusions of ultimate facts of ownership and the law consequent thereon. From a written opinion filed it appears that the trial judge was “firmly persuaded” that it was understood at the time the mortgage was paid by the son that “the deed of 1913 (of the 104 acres) was to be canceled and the deed of 1917 (of the east 52 acres) substituted in lieu thereof,” and considered that by the agreement thus reached and by assenting without objection to the claim of ownership for fifteen years, the son was estopped from asserting claim under the 1913 deed.
*581It is claimed that the finding of the trial judge that agreement as stated was made is not supported by the evidence, and in the opinion of the court filed that view is strenuously upheld. The evidence is correctly stated in that opinion. We refer to that opinion for a detailed statement of it. But the evidence was mostly from the mouth of the defendant. I consider that the trial judge was not obliged to accept the defendant’s testimony at one hundred per cent, of its face value. He might properly discount that testimony to any degree reasonable under the circumstances. He might reasonably discredit the son’s statement respecting the consideration for the cancellation of the $4,700 note which was a part of the consideration for the 1913 deed. He might reasonably discredit the son’s statement as to the time when the note was canceled. He might properly consider, that the surrender of the note was the consideration for the agreement that he found was made. It does not clearly appear that the trial judge took the view that the note was canceled at the precise time the agreement found was reached. He merely states that the note was canceled. He does not state when it was canceled. If it was canceled as claimed by the son, the fact that the son did not pay the note is still in the picture. He did not make the payment he agreed to make as consideration for the 1913 deed. This is a circumstance that well may have been considered by the parties when the agreement was made and have constituted a partial consideration or inducement to the son’s agreement to release all rights under that deed. That agreement, if made, cannot be voided as without consideration. The son may as fairly be held to his agreement to release his rights to the east 52 acres merely because his father wanted him to as he might be held to a deed of the east 52 acres had he executed one under the same circumstances, if an estoppel exists to bar him from asserting rights under- the 1913 deed. Both the *582agreement and estoppel were found by the trial judge and his findings cannot be disturbed unless it can be said that under any reasonable view of the evidence they are against the clear preponderance thereof. Of course, if the trial judge is bound to give the same credence to the testimony of the defendant that is given in the opinion of the court and to draw the same inferences of fact therefrom that are drawn in that opinion, the case should be reversed. But we are not the triers of the facts. The trial judge was, and his conclusions of fact should not be cast aside as unworthy of consideration. They are presumptively correct. And they must be upheld if they reasonably can be.
It is claimed that a finding of estoppel is not warranted in this case because to constitute an estoppel the party claiming it must have relied on the conduct claimed to have created it and taken action to his prejudice because of such reliance; and that because the plaintiffs herein took no action whatever and parted with nothing whatever in reliance upon the agreement found, no estoppel exists. But the parties to the agreement were the father and the son. If the son was estopped as against the father, he is estopped as against his devisees. The father, in the view of the trial court, acted in reliance on the agreement. He took possession of the east 52 acres and held it until his death. He devised the tract to the plaintiffs in reliance upon the agreement. ' And in reliance on that agreement and the son’s continued acquiescence therein he refrained from taking action to enforce his right as he might have done had he known that the son was repudiating it or intending to repudiate it. The agreement having been in effect to release or surrender rights under the 1913 deed, the father could by action have compelled the son to execute such instrument as was necessary to effectuate it, although the parties erroneously understood that the destruction of the 1913 deed and the execution and acceptance of the 1917 deed *583constituted legal compliance therewith. The father having thus, during his lifetime, in reliance upon the agreement and the son’s continued acquiescence therein, refrained to his prejudice from taking action which he might have taken had he known that the son was repudiating or intending to repudiate the agreement, the son was estopped from claiming adversely to his father, and is now estopped from claiming adversely to his devisees.
The situation is thus the same in effect as was that involved in the case recently decided, Moran v. Burmeister, 211 Wis. 669, 247 N. W. 873, wherein a judgment was affirmed that enjoined defendants from interfering with the plaintiff’s rights under an instrument and accompanying transactions which the plaintiff claimed created but which were insufficient to create an easement, on the ground that the facts created an equitable estoppel against the defendants that precluded them from asserting claims adverse to the claims of the plaintiff. The reason for that decision and the citation of authorities given in the opinion in that case afford ample support for affirmance of the judgment appealed from herein.
While the above seems entirely sufficient to cover the case, there are many decisions of this court that recognize the principle of deprivation of title to real estate by estoppel in pais. It is entirely correct to say, as appellant' contends, that title is not reconveyed and cannot be reconveyed merely by the tearing up of a deed which has operated to convey title. Appellant cites many cases to that effect. Wilke v. Wilke, 28 Wis. 296; Hilmert v. Christian, 29 Wis. 104; Bogie v. Bogie, 35 Wis. 659; Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2; Lampe v. Kennedy, 56 Wis. 249, 14 N. W. 43; Wheeler v. Single, 62 Wis. 380, 22 N. W. 569. In none of these cases, however, was the question of estoppel involved or considered. But it is just as true as stated in Knauf & *584Tesch Co. v. Elkhart Lake S. & G. Co. 153 Wis. 306, 141 N. W. 701:
“Many illustrations are found in our books of the application of the doctrine of estoppel in pais to change title to realty from one person to another to save the latter from the .consequences of the former’s fraudulent representations on the faith of which such other has acted.”
There is no distinction, in principle, between estoppel by representation and estoppel by conduct. Both are estoppel in pais. In McCord v. Hill, 117 Wis. 306, 94 N. W. 65; Williams v. J. L. Gates Land Co. 146 Wis. 55, 130 N. W. 880; Two Rivers Mfg. Co. v. Day, 102 Wis. 328, 78 N. W. 440, and Haag v. Gorman, 203 Wis. 346, 234 N. W. 337, estoppel by representation was held created. In Hovely v. Herrick, 152 Wis. 11, 139 N. W. 384; Hustis v. McWilliams, 175 Wis. 365, 185 N. W. 159, and Mariner v. Milwaukee, 146 Wis. 605, 131 N. W. 442, an estoppel was by conduct held created. In none of the three cases last cited was any representation involved. In the first a testator devised lands to his wife for life with remainder to his heirs. The widow for consideration executed warranty deeds purporting to convey the fee, on the assumption by herself and her grantees that the will devised the fee to her. An heir received and retained a share of the consideration and was held estopped thereby to claim the deeds from the widow were invalid. In the second the wife of John Hustis was the owner of a mill site. The husband and wife were living apart. After the wife’s death the husband conveyed the land. The wife’s heirs at the same time signed with the husband, their father, a lease of adjoining land conveying to the grantee the right to take sand and gravel from the leased land to keep the dam in repair. The whole consideration was paid to Hustis, and the heirs permitted him to regain it. The grantee bought on the assumption that Hustis *585owned the mill site. The heirs were held estopped from claiming title to the mill site. In the case last cited Mariner took a tax deed, knowing that the city of Milwaukee claimed title. The city withdrew the land from the tax roll. Mariner thus avoided payment of taxes. He was held estopped by his conduct from claiming title under his tax deed. The case of Chloupek v. Perotka, 89 Wis. 551, 62 N. W. 537, is also in point. A deed was executed reciting that it was made “to correct errors and omissions and mistakes” in a deed previously executed. The grantee thereafter claimed title under the previous deed to premises not included in the latter. The court held he was estopped from so asserting title, saying:
. “The grantee in a deed poll, by accepting it, becomes bound by its terms as completely and absolutely as the grantor, and it will operate as an estoppel against him by reason of its acceptance, as fully as against his grantor.”
Here, the second deed to the son was not strictly in the nature of a correction of the first, but it was intended by the parties, in the view of the trial court, as a substitute therefor.
When the doctrine of estoppel in pais applies it is not subordinate, but supreme, and stays the operation of other rules of law. Marling v. FitzGerald, 138 Wis. 93, 120 N. W. 388. The doctrine applies to this case and stays the operation of the rule of law contended for by appellant.
In my opinion the judgment of the municipal court should be affirmed.
I am authorized to state that Mr. Justice Fritz concurs in this opinion.