§ 280) subsequently acquired by the grantor to the one entitled to the estoppel,389 and not merely to bind the title in the hands of the owner so that he cannot set it up. Some cases hold that the latter is the rule. But the weight of authority is that in estoppel the title inures to the benefit of the grantee or a person who has acquired rights in the land in reliance upon the facts which constitute the estoppel.390 And in some states it is provided by statute that the title shall so inure.391 The estoppel of a tenant to deny his landlord's title has been discussed in a former chapter.392

Estoppel hi Pals.

When one claims title by an estoppel in pais, he must show that representations have been made to him for the purpose of influencing his conduct, that he has relied on those representations, and that he would be injured by permitting the other party to deny the truth of those representations.393 A case of title by estoppel in pais may be illustrated by the instance of the owner of land inducing another to make improvements on the land under a mistaken belief of ownership. In a proper case the owner of the land might be held estopped to set up his title to the injury of the one who had been induced by him to make the improvements.394 As to whether infants and married women may be bound by estoppel in pais, the cases are conflicting. Some hold that they may be so bound if the one claiming title by estoppel can show fraudulent acts on the part of the infant or married woman without setting up any contract entered into by such person, because infants and married women would have no power to contract in relation to their lands, but could be bound by their fraudulent acts.395 An estoppel in pais may arise either by positive acts or by the omission to do acts,-such as to give notice to one's title to land when required to do so. For instance, if one stands by and sees his land sold by another person without notifying the purchaser of his rights therein, he will be estopped from setting up his title against such purchaser.396 If, however, the owner has his title on record, the record is notice to such purchaser, and no estoppel can arise.397 The cases are con flicting as to whether fraud is a necessary element of estoppel in pais.398 But there is substantial agreement that the effect must be the same as if a fraudulent intent existed.399

389 The one claiming by estoppel cannot recover for the breach of a covenant in the deed to the former owner. Noke v. Awder, Cro. Eliz. 436. And see Andrew v. Pearce, 1 Bos. & P. (N. R.) 158.

390 Doe v. Oliver, 10 Barn. & C. 181; Baxter v. Bradbury, 20 Me. 260; Somes v. Skinner, 3 Pick. (Mass.) 52; Walton v. Follansbee, 131 111. 147, 23 N. E. 332; Clark v. Baker, 14 Cal. 612; Ivy v. Yancey, 129 Mo. 501, 31 S. W. 937; Bush v. Marshall, 6 How. 284. And see Reese v. Smith, 12 Mo. 344. But the title does not inure to the grantee without his consent, so as to defeat his right to maintain an action on the covenants of the deed. Blanchard v. Ellis, 1 Gray (Mass.) 195.

391 Stim. Am. St. Law, § 1454 B.

392 Ante, p. 143.

393 Malloney v. Horan, 49 N. Y. Ill; Brown v. Bo wen, 80 N. Y. 519; Anderson v. Coburn, 27 Wis. 566; Little v. Giles, 25 Neb. 313, 41 N. W. 186; Hill v. Epley, 31 Pa. St. 334; Stuart v. Lowry, 42 Minn. 473, 44 N. W. 532; Parker v. Barker, 2 Mete. (Mass.) 423; Huntley v. Hole, 58 Conn. 445. 20 Atl. 469.

394 Niven v. Belknap, 2 Johns. (N. Y.) 573; Wendell v. Van Rensselaer, 1 Johns. Ch. (N. Y.) 344; Des Moines & Ft D. R Co. v. Lynd (Iowa) 62 N. W.

306; Phillips v. Clark, 4 Mete. (Ky.) 348; Muse v. Hotel Co., G8 Fed. 637; Union Pac. Ry. Co. v. U. S., 15 C. C. A. 123, 67 Fed. 975; Wehrmann v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129. Where lots are sold as abutting on a street, the vendor is estopped to deny the dedication of the street by him. Mclemore v. Mcxeley, 56 Mo. App. 556.

395 For cases holding infants and married women estopped, see Blakeslcc v. Sineepaugh, 71 Hun, 412, 24 N. Y. Supp. 947; Knight v. Thayer, 125 Mass. 25; Howell v. Hale, 5 Lea (Tenn.) 405; Appeal of Grim, 105 Pa. St. 375; Guertin v. Mombleau, 144 111. 32, 33 N. E. 49; Sandwich Manuf'g Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379; Berry v. Seawall, 13 C. C. A. 101, 65 Fed. 742 (a parol partition). For cases holding Infants and married women not estopped, see Innis v. Templeton, 95 Pa. St. 262; Spencer v. Carr, 45 N. Y. 406; Mcbeth v. Trabue, 69 Mo. 642; Hilburn v. Harris (Tex. Civ. App.) 29 S. W. 923. A married woman is not estopped by an invalid power of attorney. Brown v. Rouse, 104 Cal. 672, 38 Pac. 507.

396 Cochran v. Harrow, 22 111. 345; Dickerson v. Colgrove, 100 U. S. 578; Wendell v. Van Rensselaer, 1 Johns. Ch. (N. Y.) 344; Bates v. Swiger (W. Va.) 21 S. E. 874; Mask v. Allen (Miss.) 17 South. 82; Swift v. Stovall (Ala.) 4.7 South. 186. But see Irwin v. Patchen, 164 Pa. St 51, 30 Atl. 436.

397 Lathrop v. Bank, 31 N. J. Eq. 273; Vlele v. Judson, 82 N. Y. 32; Porter v. Wheeler (Ala.) 17 South. 221. But see Neal v. Gregory, 19 Fla. 356. The record of the forged deed raises no estoppel against the owner of the land. Meley v. Collins, 41 Cal. 663.

398 That fraud is a necessary element of estoppel, see Henshaw v. Blssell,

399 Maple v. Kussart, 53 Pa. St. 348; Mcneil v. Jordan, 28 Kan. 7.

§ 280)


Same - Division Lines.

A large number of cases on estoppel in pais have arisen in connection with division lines and fences, and the holdings of the court are by no means uniform. If the parties, in locating the line, merely agree to put a fence or building on a certain line without any reference to where the actual boundary is, or if the fence or building was located otherwise than on the true line through mistake, no estoppel arises, and either party may claim to the true liae when it is discovered.400 On the other hand, if the true line is unknown through loss of monuments, and the parties agree upon a division line, either themselves or through arbitrators, the parties are estopped to claim that such line is not the true line.401