Of course the burden of proof is on the party alleging and relying on estoppel to establish all the facts necessary to constitute it. 21 C.J. 1250. This is true in the ordinary case. The principles of estoppel are salutary, yet they are, in this case, confronted with the equally wholesome penalty doctrine, designed broadly to discourage forgeries and similar offenses, as well as to protect the title holders to the effect that the innocent purchaser takes nothing by a forged deed. In this clash between the application of beneficial doctrines, we should apply severer tests to a claimed estoppel than ordinarily, lest the retarding effect of the penalty doctrine be unduly diminished. In other words, the ordinary burden of proof, under the circumstances here present, is elevated into a heavier burden, and he who asserts estoppel to destroy the penalty doctrine must be charged with a greater degree of diligence in examination of the record of title he contemplates acquiring than in the ordinary case where no adverse public policy doctrine stands in the way.
So viewing the matter, I find that the case for laches and estoppel urged by the defendants is not strong enough to render inoperative the penalty doctrine and turn the plaintiff out of court, and, in practical effect, transfer the title to the defendants, a result which the penalty doctrine repels.
Furthermore, the vital circumstance that the material alterations in the deeds had been made before delivery was unknown to plaintiffs during the period of time when, according to defendants' theory, plaintiffs were under a duty to speak more effectively than by the recorded conveyances from Mosley to his wife and from her back to him. Whatever attacks the Mosleys contemplated making upon the conveyances alleged to have been made by them to Asbury might have failed and still the vital one of material alteration before delivery of the deed they executed with Asbury as the intended grantee have left the title in the Mosleys. Even though the views of the dissenting Justices may be persuasive that *Page 262 the Mosleys were under a duty to more emphatically assert their claim of alteration of the deed, they may not be properly charged with laches in publishing to the world that the alteration was made before delivery, because this they did not know until after this law suit was commenced.
I accept it as apparent that the Mosleys claimed attempt to give notice of the alterations in the deed to Asbury, by the interchange of the recorded deeds aforesaid, was not for the purpose of giving notice of the vital circumstance that the alterations were made before delivery, because of this circumstance they were not aware. Yet it may be that the inquiry which should have been stimulated by the record of this interchange of deeds between the Mosleys would have led inquiring minds to knowledge of the fact of the alterations, and also to the circumstance of alteration before delivery. It is not known just what started the inquiry by the defendants, but it is apparent that they found out more than the plaintiffs knew, namely, that the alterations were made before delivery, because it was through the defendants that the plaintiff learned at the trial of this law suit of the chronological relation of alterations and delivery.
What they learned when they learned it, they might have learned in time to have forestalled their purchase had they timely taken notice of the records.
I concur in the decision of Mr. Justice BRICE.