Simpson and Others v. Pearson, Administrator.

of her right of survivorship, became seized of the whole estate to her sole use. Davis v. Clark, 26 Ind. 424. It follows that Reuben Simpson at his death left no estate in the land subject to the payment of his debts, or that descended to his heirs. That such is the legal effect of the deed is not controverted by the appellee; but it is insisted that the appellants are concluded, or estopped, by the proceedings in the suit for partition in the Lawrence Circuit Court, from denying that Reuben Simpson died seized in fee of a moiety of the lands which were the subject of that suit, and that such moiety, upon his death, descended to his widow and heirs at law; and therefore, that the court did right in sustaining the demurrers.

The acts and admissions of a party may estop him from even speaking the truth, when in good conscience and honest dealing he ought not to be permitted to gainsay them. An estoppel may be by deed, by record, or by matter in pais. As to the latter, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, when such denial will operate to the injury of the latter. See Ridgway v. Morrison, 28 Ind. 201, and cases there cited. The principle underlying such estopples is, that it would be a fraud in a party to assert what his previous conduct and admissions have denied, when on the faith of that denial others have acted.

But one who insists upon the acts of another as working an estoppel must show that he acted upon the same, and was influenced thereby to do some act which would result in an injury if that other is permitted to gainsay or deny the truth of what he did. For it is a well settled rule in such cases, that no man can set up another's act or declaration as the ground of an estoppel, unless he has himself been misled or deceived by such act or declaration. Washb. Real Prop. b. 3, ch. 2, § 6, 9, a.

It follows from the very principle on which the whole

Simpson and Others v. Pearson, Administrator.

doctrine of estoppels rests, that they operate neither in favor of nor against strangers, but affect only the parties thereto and their privies, either in blood, in estate, or in law; and hence a stranger can neither take advantage of, nor be bound by, an estoppel. This principle applies equally to estopples by deed, by record, and in pais. It is a well settled rule, that judgments of courts are binding only on parties thereto and their privics. An estoppel must be mutual; and hence a stranger to the record cannot claim an estoppel thereby, as he is not himself estopped by it.

Mr. Washburn, speaking of estoppels by deed, says: "It should be remembered, that an estoppel by deed is always applied in some action or proceeding based on the deed, in which the fact in question is recited. In a collateral action there can be no estoppel, nor will estoppels by deed avail in favor of any but the parties and their privies." B. 3, ch. 2, § 6, 11.

Applying these rules to the case at bar, it seems evident that neither Martha C. Simpson nor the heirs at law are estopped by the proceedings in the partition suit from denying, in this case, that Reuben Simpson died seized in fee of a moiety of the land described in the petition for partition, or from asserting the truth in reference to the title thereto. The administrator stands in the relation of trustee to the creditors of the decedent; but neither the administrator nor the creditors of the decedent were parties to the suit for partition, nor do they, in any manner, occupy the relation of privies to the parties to that suit, and are not therefore in a position to claim that the parties thereto are estopped thereby from showing that the decedent left no interest or estate in the lands subject to the payment of his debts.

We think, therefore, that the court below erred in sustaining the demurrers.

The judgment is reversed, with costs, and the cause remanded, with directions to the Court of Common Pleas to

Green, Treasurer, &c., and Others v. Beeson and Others.

overrule the demurrers to the first paragraph of the answer of Martha C. Simpson and to the second paragraph of the answer of the other defendants, and for further proceedings, not inconsistent with this opinion.

J. & T. L. Collins, for appellants.

J. H. Stotsenburg and T. M. Brown, for appellee.

GREEN, Treasurer of Fayette County, and Others v. BEESON and Others.

TURNPIKE.-Act of 1865.-Length of Road.-A turnpike company organized under the act of March 6th, 1865, must make at least five miles of road; and this requirement is not fulfilled by supplying a deficiency by the acquisition, by purchase or otherwise, of a road already made.

SAME. County Commissioners.-The Board of County Commissioners cannot relieve the company from this requirement, and any attempt to do so is a nullity.

SAME.-Injunction.-If such a route is designated in its organization that less than five miles of road is to be made, the company has no power to do anything; and the collection of taxes for the construction of the road may be enjoined. SAME-Estoppel.-A signer of the petition to the County Commissioners for the organization of such a pretended corporation, who has not become a member of it, is not estopped from denying the legality of the organization in a suit to enjoin the collection of such taxes.

APPEAL from the Wayne Common Pleas.

This was a suit by the appellees against the appellants to enjoin the collection of taxes assessed against the plaintiffs for the construction of a turnpike under the act of March 6th, 1865.

The substantial averments of the complaint are set forth in the opinion.

The defendants answered in three paragraphs:

First, the general denial.

Second, that the Bentonville and Lockwood Turnpike

Green, Treasurer, &c., and Others v. Beeson and Others.

Company is a body corporate, organized under the act of March 6th, 1865, and amendatory acts, by virtue of the power and authority granted by the Boards of Commissioners of Wayne and Fayette counties, to construct a road five miles in length; that the one mile of said road mentioned in the complaint as belonging to the Milton and Rushville Turnpike Company was released by the latter company and abandoned by its stockholders to the former company, and, by such release and abandonment and the permission and order of the Boards of Commissioners of Wayne and Fayette counties, became a part of the road of said Bentonville and Lockwood Turnpike Company; that this company proceeded to the construction of its road, for which said taxes were assessed, and had nearly completed it at the commencement of this suit.

Third, that certain of the plaintiffs were signers of the petition for permission to organize the company, and are therefore estopped from denying the legality of its organ

ization.

A demurrer to the second and third paragraphs of the answer was sustained, and the defendants excepted.

The issue made by the general denial was tried by the court, and the injunction made perpetual except as to the plaintiff's John Ingles and Christian Pike, as to whom it was dissolved.

A motion for a new trial was made by the defendants, and also by the plaintiff's John Ingles and Christian Pike, and overruled; and bills of exceptions were filed.

FRAZER, J.-The question first to be disposed of in this case is as to the sufficiency of the complaint. The substantial allegations of it were as follows:

That the plaintiffs respectively own lands within threefourths of a mile on either side of a turnpike, located partly in Fayette and partly in Wayne county, which is being constructed by a pretended corporation attempted to be organized under the act of March 6th, 1865, for the con

Green, Treasurer, &c., and Others v. Beeson and Others.

struction of gravel and turnpike roads; that the turnpike to be constructed by the supposed corporation is only four miles long, and within its necessary length of five miles embraces one mile of turnpike already constructed and belonging to another corporation; that taxes were levied upon the said lands of the plaintiffs for the construction of said four miles of road. The relief sought was an injunction. to restrain the collection of such taxes.

Such a lapping of one turnpike upon another, to obtain the distance of five miles, was an attempt to evade rather than satisfy the eighth section of the act requiring that no road made in pursuance thereof shall be less than five miles. in length. Acts 1865, p. 92. If it might be done for a distance of one mile, it might be for any distance. It is altogether and expressly forbidden by the letter and spirit of the statute.

But it is urged, that the boards of commissioners having permitted the organization of the turnpike company, the matter is not longer open to inquiry. This position is untenable. The commissioners were in the exercise of a special statutory power; they must execute that power as it is given; they cannot exercise it in disregard of the statute which confers it, and especially where that statute expressly forbids them to do so; and any attempt of the kind is merely a nullity, binding nobody. A judicial proceeding where parties have a right and opportunity to be heard is very different; and in such a case a judgment which the tribunal has jurisdiction to render will bind, though it be erroneous. But in the case before us, as stated in the complaint, the commissioners had no jurisdiction to authorize the corporation. The proceeding before them was ex parte; nobody was required to be notified. It would be monstrous if action had under such circumstances should be held to conclude further inquiry.

But it will be observed that the statute under which the commissioners acted expressly authorizes them to determine only one question, to wit: whether the proposed work