CASES IN EQUITY

IN THE

SUPREME COURT

OF

NORTH CAROLINA

SAUNDERSON v. BALLANCE.

[2 JONES'S EQUITY, 322.]

PARTY CANNOT DISPUTE VALIDITY OF PURCHASE where, having the title to land which is offered for sale, and knowing his title, he stands by an:1 encourages or does not forbid the sale, and thereby induces another to purchase under the supposition that he is getting a good title. Such purchaser is entitled to equitable relief in perfecting his title.

CAUSE in equity from Hyde county. Thomas Ballance, for the purpose of securing his creditors, made a trust deed of his land to one David Carter, who, by virtue of authority contained therein, on the fifteenth of June, 1853, by public sale sold the land in question to the plaintiff. Upon payment of the purchase money, plaintiff took a deed in fee without warranty from the trustee, he, the trustee, believing that the title to the land was good. Thomas Ballance became possessed of the land in controversy through a deed from his father, Caleb Ballance, sen., which deed, for want of words of inheritance, conveyed only a life estate in the land. Ballance, however, at the time of making the deed of trust, claimed the land in fee. Upon the death of the grantor, Caleb Ballance, sen., the reversion of this land descended to Thomas Ballance and one Joshua Ballance. On June 8, 1853, a few days before the sale by the trustee, Joshua Ballance conveyed his half of the reversion in fee to Caleb Ballance, jun., the defendant. After the trustee's sale, by permission of plaintiff, Thomas Ballance remained in possession of the land until his death, in December, 1853, when Caleb Ballance, jun., took possession of and still holds the Plaintiff, in January, 1854, demanded possession of

same.

Caleb Ballance, jun., when he produced his deed from Joshua Ballance, and claimed one half of the land; said deed was not recorded until after the death of Thomas Ballance. The remaining facts appear in the opinion.

Shaw, for the plaintiff.

Rodman and Donnell, for the defendant.

By Court, BATTLE, J. The allegation of the bill, that at the the time when the plaintiff purchased the land in question, and just before he made the purchase, he inquired of the former owner, Thomas Ballance, in the presence and hearing of the defendant, whether the title was good, and received an answer that it was (the defendant not disclosing his title), whereby the plaintiff was induced to purchase the land at a full and fair price, is rendered probable by the testimony taken in the cause; but the proof is not so full and satisfactory as to justify us in declari. g the fact to be established. We might, therefore, in this state of the case, either direct a further inquiry to be made by the master, or order an issue to be tried by a jury, were we not satisfied that enough appears upon the pleadings to entitle the plaintiff to the relief which he seeks.

The defendant, in his answer, admits that, having ascertained that the deed under which his father claimed the land conveyed only an estate for life, and that his father owned one half only of the reversionary interest in fee, he purchased the other half from his uncle, Joshua Ballance, to whom it belonged; that this purchase was made a short time before the sale made by Carter, the trustee; that he was present at the sale and did not disclose his title, alleging as a reason for his silence that "he knew that before the sale the deed from Caleb Ballance, sen., to Thomas Ballance had been examined by the trustee; and the said trustee knew, or might have known, that said deed conveyed only a life estate; and because said trustee, in offering said land for sale, carefully and distinctly stated that it was only the estate of Thomas Ballance, whatever that might be, which was offered for sale; which the defendant thought was a sufficient caution for all purchasers to inquire for themselves." He stated, as a further reason, that though he thought it probable that the plaintiff " did not know the character of the deed from Caleb Ballance, sen., to Thomas Ballance, he might easily have known the same, as the said deed was duly registered in Hyde county, on the eleventh day of January, 1821, and the sale by said Carter had been advertised for several weeks before it took

place." The statement that Carter had examined the deed under which his grantor, Thomas Ballance, claimed, was expressly denied by him in his deposition taken for the defendant. On the contrary, he declared that he thought the title of his grantor was "undoubtedly good." The testimony of other witnesses shows clearly that inquiries were made of Thomas Ballance at the sale, whether his title to the land in question was good, and he answered, unhesitatingly, that it was. There can be no doubt, then, that the trustee thought he was selling an undisputed fee-simple title in the whole tract of land, and the bidders were laboring under the same impression.

Can the plaintiff, who purchased under these circumstances, have in this court the relief which he seeks? This question we will now proceed to answer. Mr. Justice Story, in his Commentaries on Equity Jurisprudence, vol. 1, sec. 385, says: "In many instances a man may innocently be silent; for, as has been often observed, aliud est tacere, aliud celare. But in other cases a man is bound to speak out; and his very silence becomes as expressive as if he had openly consented to what is said or done, and had become a party to the transaction. Thus if a man having a title to an estate which is offered for sale, and knowing his title stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that his title is good, the former so standing by, and being silent, will be bound by the sale; and neither he nor his privies will be at liberty to dispute the validity of the purchase." Among the cases upon which this doctrine was established is an early one, Raw and Pole v. Pole, 2 Vern. 239, decided in 1691, reported shortly after. "Leonard Pole, the defendant's elder brother, upon his marriage with the plaintiff, Elizabeth Pole, settled the lands in question upon her for her jointure. The defendant was privy to the treaty of the marriage, and engrossed the jointure deed, and concealed the entail. Leonard Pole being dead, without issue, and having devised the land to the plaintiff Raw, the defendant, having the deed of entail in his custody, made by his grandfather, brought his ejectment and recovered. The plaintiffs brought their bill for relief, and the defendant, by answer, confessed he was privy to the marriage treaty, and engrossed the plaintiff Elizabeth's jointure deed, and that he had then the deed of entail in his hands; but did not mention his title, nor discover the ancient deed of entail, because he apprehended his brother would dock the entail." The court gave the plaintiff Elizabeth

relief, and as to her enjoined the ejectment, but refused relief to the plaintiff Raw, because he was a mere volunteer. This case must be regarded as a strong one. It does not appear that the defendant procured, or had any agency in bringing about, the marriage between his brother and the plaintiff Elizabeth. He was only privy to it; that is, knew of it and assisted in preparing the jointure deed. His title was a remote one, depending upon the death of his brother without issue, and without having barred the estate tail; and he concealed the deed of entail, not with a view to defraud his brother's wife, but to prevent his docking the entail.

But notwithstanding all these circumstances the court thought that a high moral principle of honesty and fair dealing required it to interpose for the purpose of preventing the defendant from taking advantage of the probable effect of his silence. On the section next succeeding to that which we have already cited, Mr. Justice Story says that "in order, however, to justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights should be fully apprised of them, and should by his conduct, or gross negligence, encourage or influence the purchaser; for if he is wholly ignorant of his rights, or the purchaser knows them, or if his acts, or silence, or negligence, do not mislead, or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part." Under these exceptions to the general rule, the case of Tilghman v. West, 8 Ired. Eq. 183, was decided in favor of the defendant; but it is too obvious to require comment that they do not apply to the present case. The defendant knew his rights and intentionally concealed them, and the plaintiff was no doubt influenced thereby to make the purchase. The plaintiff is therefore clearly entitled to the aid of this court in making his title good. But in order to have it, he must pay to the defendant the twenty-five dollars which he paid to Joshua Ballance, with interest. He may have a decree that upon doing this the defendant shall surrender to him the possession of the land in dispute, and execute a deed for all the right, title, and interest therein which he acquired by his purchase from Joshua Ballance,

Decree accordingly.

OWNER OF LAND IS ESTOPPED FROM SETTING UP TITLE AGAINST INNOCENT PURCHASER, where he stands by and sees another sell it without making known his claim: Godefroy v. Caldwell, 53 Am. Dec. 300, and prior cases in

this series in note thereto 362; Danley v. Rector, 52 Id. 242; Titus v. Morse, 63 Id. 665, and note 670.

THE PRINCIPAL CASE IS CITED AND APPROVED as to the principles of law therein enunciated in Holt v. Bason's Adm'r, 72 N. C. 311; and Sherrill v. Sherrill, 73 Id. 13; Hull v. Carter, 86 Id. 520.

PATTON V. THOMPSON.

[2 JONES'S EQUITY, 411.]

GUARDIAN OF IDIOT OR LUNATIC CANNOT EXCEED ANNUAL INCOME OF HIS WARD'S ESTATE, in expenditures for and on account of his ward, without the permission of the court.

CAUSE in equity from Alamance county. The facts sufficiently appear from the opinion.

Winston, sen., for the plaintiff.

Graham, for the defendant.

By Court, PEARSON, J. There is a general view of this case which disposes of it without the necessity of entering into the many details presented by the exceptions. The guardian of an idiot, or lunatic, cannot sell his land without an order of the court. It follows that he cannot, without the permission of the court, exceed the annual income of the estate in expenditures for and on account of his ward; because, if he can do so, he has it in his power, by exceeding the income year after year, to produce an accumulation of arrears in his favor, so as, in a few years, to make it necessary to sell the land. This is a principle of common law, which is assumed and acted upon as fully in the statutory provisions concerning idiots and lunatics as in those concerning infants: Rev. Code, tit. Idiots and Lunatics; and it is sanctioned and carried very far in its application in the Matter of Latham, 4 Ired. Eq. 231, where the court say: "All the lunatic's estate has been converted into money, and only nine hundred and forty-two dollars is now within the reach of this court. We think that this fund must be retained by the committee, not to pay his balance on the debts of any of the creditors, but for the purpose of maintaining the lunatic and his wife and infant children. That the court must reserve a sufficient maintenance for the lunatic before making an order for the payment of debts, or allowing to the committee sums already applied by him to that purpose, is clear, from the nature of the jurisdiction in lunacy as well as from the decisions. In Ex parte Hastings, 14 Ves. 182, Lord Eldon said he could not pay