Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. At such sale the boat was struck off at $2,000, but there was no delivery of the boat, and no money paid. BREACH OF CONTRACT TO Plaintiffs showed that at the time of PURCHASE. N. Y. SUPREME COURT. GENERAL John Gray et al., respts., v. The Central Railroad Co. of New Jersey, applt. Decided May 21, 1877. Where, in an action for damages for breach of Appeal from order denying motion for a new trial upon the judge's min utes. defendants' refusal the boat was worth $16,000 and that from that time to the following Spring, when it was sold for $8,000, it had depreciated considerably in value. The Court submitted to the jury the question whether defendants were justified in their refusal to take the boat, also the meaning of the abbreviation "etc." J. E. Parsons, for applt. Edward N. Dickinson, for respts. Held, That the auction sale was upon the plaintiffs' own showing no sale at all, and should not have been allowed to go to the jury on the question of damages. That aside from the auction sale there was not evidence to uphold the verdict for damages. If plaintiffs' estimate of the value of the ship, which was the only one in evidence, was correct in the absence of a valid sale at public auction, plaintiffs would, upon establishPlaintiffs and defendants entered ing a breach of contract, be entitled into an agreement whereby the de- only to nominal damages. That by fendants agreed to buy, and plaintiffs the terms of the agreement, the deagreed to sell a certain steamboat for fendants were under no obligation to $15,000, provided on a trial trip de- buy, or the plaintiffs to sell, unless fendants were satisfied "with the defendants were satisfied with the soundness of her machinery, boilers, boat upon the trial trip. By the etc." Upon a trial, defendants ex- terms of the contract they were the pressed themselves as unsatisfied, and ones to decide, and the question ought refused to take the boat. This ac- not to be left to a jury to decide tion was brought to recover damages whether they ought to have been safor failure to complete the contract. tisfied. The construction of the abUpon refusal of defendants to com- breviation "etc." was a question of plete the purchase, plaintiffs gave law for the Court, and not for the notice to defendants that they would jury to construe. This abbreviation sell the boat at auction, and hold is not restrictive, and here means them responsible for any deficiency. " other material parts of the boat." Order denying motion for new trial reversed, and the motion granted, with costs to abide the event.. Opinion by Davis, P. J.; Daniels, J., concurring. BRADY, J. (dissenting).-The result arrived at may be correct on the whole case, but I do not agree to the proposition that the defendants had the right to declare arbitrarily that they were not satisfied with the soundness of the machinery, etc. Under such a contract as herein shown, if they should have been satisfied, they must be deemed to have unnecessarily refused to complete the agreement. ASSIGNMENT FOR BENEFIT OF CREDITORS. CONVERSION. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Charles Bostwick, assignee, applt., v. George N. Burnett, respt. Decided July, 1877. An assignee for the benefit of creditors, claiming title under an assignment giving preferences, cannot maintain an action for conversion of the property. Action to recover the value of two cows alleged to have been converted by defendant. Defendant, a constable, had seized the cows under an execution against Jeremiah Woolven, the owner. Plaintiff claimed title under an assignment by Woolven for the benefit of his creditors. The assignment made by Jeremiah Woolven to the plaintiff was one by which the assignee gave preferences to certain of his creditors in the order of payment out of the assigned property. It was a general assignment of all the property of the assignee, it was made in view of insolvency, as declared therein. Anthony & Losey, for applt. G. & G. H. Williams, for respt. Held, Such an assignment is declared to be void by the Bankrupt Act of the United States. The object of that act was to provide for a ratable, just, and equal distribution of the debtor's estate among all his creditors. No preferences are permitted by it. The instrument under which the plaintiff claims title being void by the provision of the Bankrupt Act, the plaintiff cannot sustain his claim to the title of the property in question by or under it. Judgment affirmed with costs. WILLS. ESTOPPEL. U. S. SUPREME COURT. Brant, applt., v. The Virginia Coal and Iron Co. et al. (October, 1876.) A devise of property "to have and hold during her life, and to do with it as she sees proper before her death," passes only a life estate, with such power as a life tenant may have, and the devisee can convey no greater interest. For the application of the doctrine of equitable estoppel there must generally be some intended deception in the conduct or declaration of the party to be estopped, or such gross negligence on his part as to amount to a constructive fraud, by which another has been misled to his injury. With respect to the title to real property, where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Appeal from the Circuit Court of the United States for the District of West Virginia. In April, 1831, Robert Sinclair, of Hampshire County, Va., died, leaving a widow and eight surviving children. He was, at the time of his death, possessed of some personal property, and the real property in controversy, consisting of one hundred and ten acres. By his last will and testament he made the following devise: "I give and bequeath to my beloved wife, Nancy Sinclair, all my estate, both real and personal; that is to say, all my lands, cattle, horses, sheep, farming utensils, household and kitchen furniture, with everything that I possess, to have and to hold during her life, and to do with as she sees proper before her death." The will was duly probated in the proper county. idiot, or an insane person; and such purchase is recited in the assignment, as is also the previous conveyance of a life-interest to the company. In July, 1857, these parties instituted suit for the foreclosure of the mortgage and sale of the property. The bill described the property as a tract of valuable coal land which the company had purchased of the widow, and prayed for the sale of the estate purchased. Copies of the deed of the widow and of the mortgage of the company were annexed to the bill. In due course of proceedings a decree was obtained directing a sale by commissioners appointed for that purpose of the property, describing it as "the lands in the bill and proceedings mentioned," if certain payments were not made, within a certain designated period. The payments not being made the commissioners in Decem to one Patrick Hammill, who thus succeeded to all the rights of the Union Potomac Company. In July, 1839, the widow, for the consideration of $1,100 executed a deed to the Union Potomac Company, a corporation created under the laws of Virginia, of the real property thus devised to her, describing it as the tract or parcel on which she then re-ber, 1858, sold the mortgaged premises sided, and the same which was conveyed to her "by the last will and testament of her late husband." As security for the payment of the consideration, she took at the time from the company its bond and a mortgage upon the property. The mortgage described the property as the tract of land which had on that day been conveyed by her to the Union Potomac Company. In 1854, this bond and mortgage were assigned to the complainant and Hector Sinclair, the latter a son of the widow, in consideration of $100 cash, and the yearly payment of the like sum during her life. Previous to this time Brant and Hector Sinclair had purchased the interest of all the other heirs, except Jane Sinclair, who was at the time, and still is an The defendant corporation, the Virginia Coal and Iron Company, derive their title and interest in the premises by sundry mesne conveyances from Hammill, and in 1867 went into their possession. Since then it has cut down a large amount of valuable timber, and has engaged in mining and extracting coal from the land and disposing of it. Brant, having acquired the interest of Hector Sinclair, brought the present suit to restrain the company from mining and extracting coal from the land, and to compel an accounting for the timber cut and the coal taken and converted to its use. The Court below dismissed the bill, whereupon Brant brought the case taking a mortgage upon the life es here. Held, That the interest conveyed by the devise to the widow was only a life estate. The language used admits of no other conclusion; and the accompanying words, "to do with as she sees proper before her death," only conferred power to deal with the property in such manner as she might choose, consistently with that estate, and, perhaps, without liability for waste committed. These words, used in connection with a conveyance of a leasehold estate, would never be understood as conferring a power to sell the property so as to pass a greater estate. Whatever power of disposal the words confer is limited by the estate with which they are connected. See Bradley v. Westcott, 13 Vesey; Smith v. Bell, 6 Pet.; Boyd v. Strahan, 36 Ill., 355. Numerous other cases to the same import might be cited. They all show that where a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are other words indicating that a larger power was intended. It was claimed that complainant is estopped from denying the validity of appellee's title by his declaration of record in the foreclosure proceedings, his non assertion at time of the title he now claims, and by various acts in connection with such proceedings and subsequent thereto. Held, That this position has less plausibility than the one already considered. There was nothing in the fact that the complainant and Hector Sinclair owned seven-eighths of the reversion, which prevented them from tate, or purchasing one already executed. There was no misrepresentation of the character of the title which they sought to subject to sale by the foreclosure suit. The bill of complaint in the suit referred to the deed from the widow to the Union. Potomac Company, and to the mortgage executed to secure the consideration; and copies were annexed. The deed described the property sold as the tract conveyed to the widow by the last will and testament of her late husband. The mortgage described the property as the tract of land conveyed on the same day to the mortgagor. The decree ordering the sale described the property as "the lands in the bill and proceedings mentioned." The purchaser was bound to take notice of the title. He was directed to its source by the pleadings in the case. The doctrine of caveat emptor applies to all judicial sales of this character; the purchaser takes only the title which the mortgagor possessed. And here, as a matter of fact, he knew that he was obtaining only a life estate by hist purchase. He so stated at the sale, and frequently afterwards. There is no evidence that either the complainant or Hector Sinclair ever made any representations to the defendant corporation to induce it to buy the property from the purchaser at the sale, or that they made any representations to any one respecting the title, inconsistent with the fact; but, on the contrary, it is abundantly established by the evidence in the record, that from the time they took from the widow the assignment of the bond and mortgage of the Union Potomac Company in 1854, they suffer from the negligence of another, always claimed to own seven-eighths he through whose agency the negliof the reversion. The assignment gence was occasioned, will be held to itself recited that the widow had owned, and had sold to that company, a life interest in the property, and that they had acquired the interest of the heirs. It is difficult to see where the doctrine of equitable estoppel comes in here. For the application of that doctrine there must generally be some intended deception in the conduct or declarations of the party to the estopped, or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury. See 1 Story's Eq., 391; Hill v. Eppley, 31 Pa. St., 334; Henshaw v. Bissell, 18 Wall., 271; Biddle Boggs v. Merced Mining Co., 14 Cal., 368; Davis v. Davis, 26 Id., 23; Commonwealth v. Moltz, 10 Barr., 531; Copeland v. Copeland, 28 Me., 539; Delaplaine v. Hitchcock, 6 Hill, 616; Havis v. Marchant, 1 Curt. C. C., 136; Zutchmann v. Robert, 109 Mass., 53. And it would seem that to the enforcement of an estoppel of this character with respect to the title of property, such as will prevent a party from asserting his legal rights, and the effect of which will be to transfer the enjoyment of the property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established. There are undoubtedly cases where a party may be concluded from asserting his original rights to property in consequence of his acts or conduct, in which the presence of fraud, actual or constructive, is wanting; as, where one of two innocent parties must bear the loss; and where one has received the fruits of a transaction, he is not permitted to deny its validity whilst retaining its benefits. But such cases are generally referable to other principles than that of equitable estoppel, although the same result is produced; thus the first case here mentioned is the affixing of liability upon the party who from negligence indirectly occasioned the injury, and the second is the application of the doctrine of ratification or election. Be this as it may, the general ground of the application of the principle of equitable estoppel is as we have stated. It is also essential for its application with respect to the title of real property, that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Crest v. Jack, 3 Watts, 240; Knouff v. Thompson, 4 Harris, 361. Tested by these views, the defence of estoppel set up in this case entirely fails. Decree reversed, and cause remanded for further proceedings. Opinion by Field, J.; Swayne and Davis, JJ., dissented. |