(dissenting).
A judgment of foreclosure entered below, based on fact and correct in law, should be sustained. Therefore, I respectfully dissent.
We see another erosion of the doctrine of stare decisis in the case before us. Northwest Realty has been the law of this state since 1963. There is no reason to depart from it. Basically, that rule is: An attorney may negotiate for and advise settlement of a controversy, but the decision is ultimately the client’s. For recent cases, in accord with our precedent, see Dillon v. City of Davenport, 366 N.W.2d 918 (Iowa 1985); Aetna Life & Cas. v. Anderson, 310 N.W.2d 91 (Minn.1981); and Smith v. Ganz, 219 Neb. 432, 363 N.W.2d 526 (1985). The majority opinion obtains a result by not accepting the findings of fact and conclusions of law and by disregarding the testimony at trial.
In this case, the trial court entered a specific finding that Sullivans did not part with any value or incur any obligations in reliance upon the settlement offer. The trial court concluded that Sullivans did not meet the requirements of SDCL 59-6-3. Said statute provides: “A principal is bound by acts of his agent under ostensible authority, to those persons only who have in good faith, and without negligence, incurred a liability or parted with value upon the faith thereof.”
This entire case may be said to rest upon the old Hobelsberger precedent. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W. 2d 455 (1970). Were the findings of fact clearly erroneous? Do you see that in the majority opinion? No. Again, I express that the majority opinion obtained a result by passing over a basic rule of appellate review in this Court. Narrowing this analysis, I point out: Sullivans maintain that the trial court’s finding is clearly erroneous because they parted with consideration by incurring obligations in reliance upon the settlement offer. Sullivans claim these obligations were (1) payment of the 1985 real estate taxes, (2) time expended in obtaining a release of the FmHA mortgage, (3) removal of a grain bin from the *704property, and (4) time expended to obtain a grain bin lien release from the Agricultural Soil Conservation Service.
Let us scope these, mentally, to see if what Sullivans say is true. One, Sullivans admitted at trial that they were ultimately liable to pay the 1985 real estate taxes. Two, Sullivans (by the record) did not obtain the release of the FmHA mortgage until about three months after FLB refused to honor the settlement negotiated by its attorney. Three, Sullivans failed to obtain any bin lien release until eighteen days after the FLB refused to honor the settlement agreement. Four, no evidence appears in .the record to establish that the Sullivans ever removed the grain bin. The last argument is particularly hollow since the Sullivans had to remove the grain bin, in any event, because the FLB had no ownership interest in the bin.
Primary thrust of appellants’ position is simply this: Appellee should be equitably estopped from being entitled to a judgment against the defendants, or from foreclosing its mortgages upon the mortgaged property, because of a settlement of the controversy. To prevail in their appeal, the Sulli-vans must establish equitable estoppel. This record does not establish equitable estoppel. Sullivans, as I have pointed out in the four matters above, failed to suffer prejudice or injury. I quote from Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780-81 (1965), wherein this Court, in a landmark case, expressed:
In order to constitute an equitable es-toppel, or estoppel in pais, false representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; that representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury.
In addition, the Cromwell Court held: “There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.” Cromwell, 81 S.D. at 329, 134 N.W.2d at 781. Note that the degree of proof is “clear and convincing evidence.” The majority opinion skirts all precedent in this Court to achieve a result by disregarding the rule in Hobelsberger, Cromwell, and Northwest Realty. Therefore, I cannot join the majority opinion and I also express that my academic sentiments are with Justice Morgan, who has likewise dissented in this case.