68. Macomber v. Kinney, 114 Minn. 146, 128 N. W. 1001, 130 N. W. 851; Bliss v. Waterbury, 27 S. D. 429, 131 N. W. 731 (sem-ole); Pierce v. Texas Rice Development Co., 52 Tex. Civ. App. 205, 114 S. W. 857. So it is said that the person asserting the estoppel must have been without a convenient means of ascertaining the truth. Crary v. Dye, 208 U. S. 515, L. Ed.; Stonecipher v. Kear, 131 Ga. 688, 63 S. E. 215; State v. Mutual Life Ins. Co., - (Ind.) - , 93 N. E. 213.

69. Gluckauf v. Reed, 22 Cal. 468; Davidson v. Dwyer, 62 Iowa, 332, 17 N. W. 575; Donaldson v. Hibner, 55 Mo. 492.

70. Pickard v. Sears, 6 Adol. & E. 469 (A. D. 1837).

71. Evans v. Bicknell, 6 Ves. 174; Bigelow, Estoppel, 603.

Tics, and of postponing his claim to that of the purchaser.72

There has been considerable difference of opinion as to whether a misrepresentation, whether by conduct . or by express statement, must be fraudulent in order to give rise to an estoppel of this character. The decided weight of authority is to the effect that it need not be such;73 but apart from the question of the existence of such a requirement in other case-, it is by some authorities asserted that, in order that one may, by reason of misrepresentations, be estopped to assert his title to land, he must have been guilty of fraud, on the theory that the application of the doctrine of estoppel by representation in such a case involves in effect a transfer of land, and that is, by the Statute of Frauds, required to be in writing.74 Moreover, while, as a general rule, an estoppel by representation is as available at law as in equity, it is, by the decisions of some states, not available at law when the title to land is involved, on the ground that at law the Statute of Frauds must control, and that in equity only can the case be regarded as taken out of the statute by the fraud, actual or constructive, involved in the misrepresentation.75 The view is, however, taken in most jurisdictions,76 that such an estoppel may be asserted at law as well as in equity. So far as concerns the applicability of the Statute of Frauds in such a case, it may be remarked that though, in the ordinary case, the practical result of the estoppel is equivalent to that of a transfer of the land, it does not actually involve a transfer, and even were it a transfer, it would be a transfer by operation of law, and consequently net within the statute.

72. 2 Pomeroy, Eq. Jur. Sec.Sec. 686, 731; Ewart, Estoppel, 257.

73. Bigelow, Estoppel, 685 note. 2 Pomeroy, Eq. Jur. Sec.Sec. 805, 806, 11 Am. & Eng. Enc. Law (2d Ed.) 431; Ewart, Estoppel, 88 et seg. But fraud is necessary to the existence of a misrepresentation, on which to base the estoppel, in the case of a mere failure to assert one's rights. Ewart, Estoppel 92. Editorial note, 24 Harv. Law Rev. 494.

74. Trenton Banking Co. v. Duncan, 86 N. Y. 221; Huyck v. Bailey, 100 Mich. 223, 58 N. W. 1002; May v. Hanks. 62 N. C.

310; 2 Pomeroy, Eq. Jur. Sec. 307. Contra, Mcdowell v. Mcdowell, 141 Iowa, 286, 31 L. R. A. (N. S.) 3 76, 133 Am. St. Rep. 170, 119 N. W. 702.

75. Stodenmeyer v. Hart, 155 Ala. 243, 46 So. 488; Mattoon v. Elliott, 259 111. 72, 102 N. E. 251; Hayes v. Livington, 34 Mich. 384, 22 Am. Rep. 533; Johnson v. Hogan, 158 Mich. 635, 123 N. W 891; Petit v. Flint & P. M. R. Co., 119 Mich. 492, 75 Am. St. Rep. 417, 78 N. W. 554; Suttle v. Richmond, F. & P. R. Co., 76 Va. 284.

In equity the person in favor of whom the owner is estopped to claim the land is entitled to a conveyance of the land by the owner, that is, the owner may be compelled to make good his representations;77 this, as before stated, being a recognized equitable doctrine before the legal development of the law of estoppel under that name.78 In determining, therefore, the rights of the person to assert the estoppel as against persons other than the person who was originally guilty of the misrepresentation, the former should, it seems, be regarded as standing in the position of any other person having an equity to a conveyance. Consequently, the estoppel should be enforceable as against any subsequent owner of the land, as would any other equity, until the land passes to a bona fide purchaser for value.79 This view has usually been applied,80 though

76. Kirk v. Hamilton, 102 U. S. 68, 26 L. Ed. 79; Davis v. Davis, 26 Cal. 23; Levy v. Cox, 22 Fla. 546, Bigelow v. Foss, 59 Me. 164; Macomber v. Kinney, 114 Minn, 146, 128 N. W. 1001, 130 N. W. 851; Brown v. Bowen, 30 N. Y. 519; Beaupland v. Mc-keen, 28 Pa. St. 124: Sha-beebe, 35 Vt. 204; Bigelow, Estoppel (6th Ed.) 781.

77. Citizens' Bank of Louisiana v. First Nat. Bank of New Orleans, L. R. 6 H. L. 360; Beatty v Sweeney, 26 Mich. 217; Favill v. Roberts, 50 N. Y. 222; Hubbard v. Slavens, 218 Mo. 598, 117 S W. 1104.

78. Ante, note 71.

79. See Ewart, Estoppel, 196. on which the view here presented is based.

80. Ions v. Harbison, 112 Cal. 260, 44 Pac. 572; Ramboz v. Stowell, 103 Cal. 588, 37 Pac. 519; Thornton v. Ferguson, 133 Ga. 825, 134 Am. St. Rep. 226, 67 S. E. 97; Rutz v. Kehn, 143 111. 558, 29 N. E. 553; Maxon v. Lane, 124 Ind. 592, 21 N. E. 683; Webb v. Hardaway, -Ky. L. Rep. - , 121 S. W. 669; Brian frequently the subject has been confused by undertaking to determine whether the subsequent owner of the land is a "privy" of the person originally estopped, a question which, by reason of the ambiguity of the terms "privy" and "privity" is difficult of solution.

An important application of the principle of estoppel by representation is seen in the decisions by which one who allows the record title of land belonging to him to stand in the name of another, who is in possession or apparent possession, is precluded from asserting his ownership as against creditors of the record owner who gave credit on the assumption .that the record showed the true state of the title.80a These decisions are, to a great extent, cases in which the record title being in the husband, the wife was held to be estopped to assert her beneficial interest as against the husband's creditors,80b but the same view has been applied when the relation of husband and wife was non existent.

Another important application,, and at times ex tension, of the doctrine of equitable estoppel, is to be found in the decisions, not inconsiderable in number, that if an individual, by reason of a mistaken assumption as to the extent or limits of a street, encroaches upon the street by the erection of buildings or the construction of other improvements, and the municipality makes no objection to such action on his part, the municipality may be estopped subsequently to assert the rights of the public as against such encroachment.81 v. Bonvillain, 52 La. Ann. 1794, 28 So. 261; Stinchfield v. Emerson, 52 Me. 465, 8.1 Am. Dec. 524; Southard v. Sutton, 68 Me. 575; Thistle v. Buford, 50 Mo. 278; Smith & Richer v. Hill Bros., 17 N. M. 415, 134 Pac. 243; Hodges v. Eddy, 41 Vt. 485, 98 Am. Dec. 612.

80a. The subject is excellently discussed in Glenn, Creditors

Rights and Remedies, Sec. 206 et seq; Editorial note, 28 Yale Law Journ. 685.

80b. The cases in this regard are collected in A. & E. Ann. Cas. 1914C, 1066, note to Goldberg v. Parker.

81. See 3 Dillon, Municipal Corporations (5th Ed.) Sec.Sec. 1191, 1194.

The chief difficulty in these cases appears to be in the fact that ordinarily the abutting owner is in a position to ascertain the existence and limits of the street, and is consequently hardly justified in asserting that he was misled by the failure of the municipality to object to the encroachments.82