able to reconcile the State law, in all its parts, with the act of Congress. But in that hope I have been disappointed. I am of opinion that the State revenue act establishes a rule of taxation which operates in certain cases to subject National bank shares to greater burdens than the same act imposes upon other moneyed capital in the hands of individual citizens of Indiana.

A very brief reference to the provisions of the State law will establish this proposition.

That law provides for the taxation of National bank shares in the hands of the respective owners, according to their fair cash or selling value. It excludes from the valuation of such shares any estimate whatever of the shareholder's debts. No allowance or deduction on that account is permitted. Although his debts may exceed the value of his National bank stock he must pay taxes on the cash value of that stock, without reference to the amount of such indebtedness.

Turning now to the general provisions of the State law regulating the assessment and valuation of the personal property of individual citizens (other than bank shares), I find that each taxpayer is required to list, among other things, his "credits." 1 Rev. Stat. Ind., 1876, pp. 76, 81, §§ 15, 48. Under that head is included "money at interest, within or without the State." To that effect is the recent decision of the Supreme Court of this State in Matter v. Campbell, 71 Ind. 512. He is not taxed for the full or fair value of such credits, but only upon the balance which may remain after deducting the amount of his bona fide indebtedness, including his proportionate liability as surety for others- arising from the inability or insolvency of the principal debtor, and for which he believes himself to be legally and equitably bound - but excluding all acknowledgments of indebtedness, not founded on actual consideration, or made for the purpose of being deducted. 1 R. S. Ind., p. 86, §§ 53, 54; Matter v. Campbell, 71 Ind. 512. Plainly therefore moneyed capital represented by loans or invested in "credits," is not taxed as money capital represented by National bank stock is taxed, viz., according to its fair value, without reference to the indebtedness of the taxpayer. Only so much of a taxpayer's credits is taxed as exceeds the amount of his bona fide indebtedness. A single illustration will show the operation of the State law in some cases of common occurrence. Suppose that A., having $10,000 in money, owing debts to the amount of $6,000 and having no credits, should invest that money in National bank shares. By the State law, as we have seen, he is required to pay taxes upon the amount so invested, without deduction in any form of his indebtedness of $6,000. But if he should loan the $10,000 and take a note therefor, or if he should buy promissory notes with that money, thereby becoming the owner of credits, he will not be required to pay taxes upon the money value of his credits, but only upon $4,000, the difference between his credits and his indebtedness.

It is thus seen that under the operation of the rule prescribed by the State law, moneyed capital not invested in National bank shares will in such cases as the one supposed be burdened with less taxation than the same amount of capital invested in such shares would be. Congress in granting authority to the State to tax National bank shares certainly did not intend to expose moneyed capital so invested to greater burdens than were imposed upon other moneyed capital in the hands of individual citizens. On the contrary, its purpose was, for all purposes of local taxation, to place moneyed capital represented by National bank shares upon the same footing with the most favored moneyed capital in the hands of individual citizens of any State exercising the power granted by Congress. Here the State law, by way of diminished taxation, accords to moneyed capital invested in credits, held by its

citizens, privileges of a substantial character which it denies to capital invested in National bank shares.

The State law in effect holds out an inducement to invest in credits rather than in National bank shares. It seems to me that that law enforces, in certain cases, a rule of taxation inconsistent with the principle of equality which underlies the legislation of Congress, and conformity to which is essential to the validity of State taxation of National bank shares.

There are other grounds upon which the learned counsel of complainant assail the State law.

It is contended that the shareholders are subjected to double taxation, as to the real estate of the bank, because in addition to the taxation of shares at their cash value, the bank was required to pay and did pay taxes for the same year upon the real estate used in its business. It is quite sufficient to say that the bank is not entitled to relief upon this ground, since it satisfactorily appears that excluding the real estate of the bank, the shares are not assessed beyond their fair cash or selling value.

The objection that the State law makes a discrimination in favor of individuals and corporations (other than National banks) owning United States bonds and securities, is not, I think, well taken. If I do not misapprehend this objection, it rests upon the ground that the State does not impose taxes upon securities which the law exempts from taxation. In determining whether the State has made an improper discrimination against moneyed capital invested in National bank shares, we must look to what it has done in reference to those kinds of moneyed capital over which it has complete control for all purposes of taxation.

I come now to inquire as to what extent relief can be given to complainant by reason of the ruling that the State law establishes a principle which in its operation may injuriously affect the rights secured by the act of Congress to shareholders in National banks. I say may injuriously affect, because if the complainant's shareholders, at the time of the assessment in question, had no indebtedness to others to be deducted from the value of their assessed moneyed capital, in whatever shape that capital was, it is clear that neither they nor the bank as their representative could properly invoke the judgment of the court as to the constitutionality of the State law, or obtain any injunction for the protection of shareholders who were not in fact injured by the assessment. In such a case the question would be wholly abstract, and the court would not consume time in its consideration. The bank, I have already said, had a right to institute this suit for its protection, and for that purpose to ascertain what shareholders had the right to dispute the validity of the assessment, and consequently to demand the full amount of their dividends, without deduction for taxes assessed upon their shares. But the bill does not allege that all the shareholders were in a condition to complain of the assessment. It alleges only that "sundry" or "many" of them had indebtedness which the State law did not permit to be taken into account in the assessment and valuation of their moneyed capital invested in National bank shares. The evidence shows only four stockholders to have been in that condition, viz., Samuel Bayard, Fred. A. Preston, John D. Preston, and David J. Mackey. This proof was no doubt made for the purpose of illustrating the practical operation of the State law.

In view of the rule established by the State law, I am of opinion that every shareholder of complainant, subject to taxation'in this State upon his credits, and who at the time of the assessment had debts which were not deducted from his credits, because he had none, and which were not deducted from the valuation of the bank shares because the State law would not permit that to be done, is entitled, through the

complainant, to an injunction against the collection of the taxes assessed upon his shares for the year 1879. The decree can go no further than that.

A few days since I addressed a letter to counsel authorizing a final decree to be entered perpetually enjoining the collection of all the taxes assessed upon the complainant's shares of stock for the year 1879. Further reflection satisfies me that such a decree would be erroneous, and that the decree should not be broader than just indicated. Since the case has evidently not been prepared or defended upon the theory that the proof should show the condition of each shareholder as to indebtedness at the time the assessment and valuation in question was made, the parties should have a fair opportunity to make such proof. The cause must therefore go to a master to ascertain and report the facts.

Counsel may prepare the proper order of reference indicating the opinion of the court as far as herein disclosed. There are many details connected with the convenience of counsel which should be considered in framing the order. I leave counsel to agree upon such details. If they cannot do so, I will receive from each side a draft of an order, and will adopt and have entered that one which meets my approval.

MEASURE OF DAMAGES UPON BREACH OF CONTRACT FOR SALE OF GOODS.

U. S. CIRCUIT COURT, W. D. PENNSYLVANIA, AUGUST 26, 1881.

MISSOURI FURNACE Co. v. COCHRAN.

A contract was made between plaintiff and C., by which C. agreed to deliver for use in plaintiff's furnace a specified quantity of coke at a price named, each working day during the year 1880. In February, 1880, coke being at a higher price in market than that agreed upon, C. refused to complete his agreement and plaintiff was compelled to purchase coke elsewhere. In an action for a breach of the contract, held, that plaintiff was entitled to recover as damages the difference between the agreed price and the market price of the article at the place of delivery at the several dates when the several deliveries should have been made under the contract - that is, upon each working day in 1880, after the time of the breach of the contract. [OTION for a new trial. The opinion states the

MOT

case.

Henry Hitchcock, George Shiras and S. Schoyer, Jr., for plaintiff.

C. E. Boyle and D. T. Watson, for defendant. ACHESON, D. J. This suit, brought February 26, 1880, was to recover damages for the breach by John M. Cochran of a contract for the sale and delivery by him to the plaintiff of 36,621 tons of standard Connellsville coke, at the price of $1.20 per ton (subject to an advance in case of a rise in wages), deliverable on cars at his works, at the rate of nine cars of thirteen tons each per day on each working day during the year 1880. After 3,765 tons were delivered, Cochran, on February 13, 1880, notified the plaintiff that he had rescinded the contract, and thereafter delivered no coke. After Cochran's refusal further to deliver coke, the plaintiff made a substantially similar contract with one Hutchinson for the delivery during the balance of the year of 29,587 tons of Connellsville coke at $4 per ton, which was the market rate for such a forward contract, and rather below the market price for present deliveries on February 27, 1880, the date of the Hutchinson contract. The plaintiff claimed to recover the difference between the price stipulated in the contract sued on, and the price which the plaintiff agreed to pay Hutchinson under the contract of February 27, 1880. But the court refused to adopt this

standard of damages, and instructed the jury that the plaintiff was "entitled to recover, upon the coke which John M. Cochran contracted to deliver and refused to deliver to the plaintiff, the sum of the difference between the contract price - that is, the price Cochran was to receive-and the market price of standard Connellsville coke, at the place of delivery. at the several dates when the several deliveries should have been made under the contract." Under this instruction there was a verdict for the plaintiff for $22,171.49. As the plaintiff had in its hands $1,521.10 coming to the defendant for coke delivered, the damages as found by the jury amounted to the sum of $23,692.50. The plaintiff moved the court for a new trial; and in support of the motion an earnest and certainly very able argument has been made by plaintiff's counsel. But we are not convinced that the instruction complained of was erroneous.

Undoubtedly it is well settled as a general rule that when contracts for the sale of chattels are broken by the vendor failing to deliver, the measure of damages is the difference between the contract price and the market value of the article at the time it should be delivered. Sedgwick on the Measure of Damages (7th ed.), 552. In Shepherd v. Hampton, 3 Wheat. 200, this rule was distinctly sanctioned. Chief Justice Marshall there says: "The unanimous opinion of the court is that the price of the article at the time it was to be delivered is the measure of damages." Id. 204. Nor does the case of Hopkins v. Lee, 6 Wheat. 118, promulgate a different doctrine; for clearly, "the time of the breach" there spoken of is the time when delivery should have been made under the contract.

It is said in Sedgwick on the Measure of Damages (7th ed.), 558, note b: "Where delivery is required to be made by installments, the measure of damages will be estimated by the value at the time each delivery should have been made." In accordance with this principle the damages were assessed in Brown v. Muller, L. R., 7 Ex. 319, and Roper v. Johnson, L. R., 8 C. P. 167, which were suits by vendee against vendor for damages for failure to deliver iron in the one case, and coal in the other, deliverable in monthly install ments. In one of these cases suit was brought after the contract period had expired; in the other case before its expiration; but in both cases the vendor had given notice to the plaintiff that he did not intend to fulfill his contract. To the argument there urged on behalf of the vendor that upon receiving such notice it is the duty of the vendee to go into the market and provide himself with a new forward contract, Kelly, C. B., in Brown v. Muller, said: "He is not bound to enter into such a contract, which might be to his advantage or detriment, according as the market might fall or rise. If it fell, the defendant might fairly say that the plaintiff had no right to enter into a speculative contract, and insist that he was not called upon to pay a greater difference than would have existed had the plaintiff held his hand."

Where the breach is on the part of the vendee, it seems to be settled law that he cannot have the damages assessed as of the date of his notice that he will not accept the goods. Sedgwick on Measure of Damages, 601. The date at which the contract is considered to have been broken by the buyer is that at which the goods were to have been delivered, not that at which he may give notice that he intends to break the contract. Benjamin on Sales, § 759. And indeed it is a most rational doctrine that a party, whether vendor or vendee, may stand upon his contract and disregard a notice from the other party of any intended repudiation of it. If this were not so, the party desiring to be off from a contract might choose his own time to discharge himself from further liability.

The law as to the effect of such notice is clearly and most satisfactorily stated by Cockburn, C. J., in Frost

v. Knight, L. R., 7 Ex. 112: "The promisee, if he pleases, may treat the notice of intention as inoperative, and wait the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstances which would justify him to decline to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the nonperformance of the contract at the appointed time, subject however to abatement in respect to any circumstances which may have afforded him the means of mitigating his loss."

We do not think the force of the English cases referred to has been at all weakened by that of Dunkirk Colliery v. Lever, 41 L. T. Rep. (N. S.) 632, so much relied on by the plaintiff's counsel. Nor are the facts of that case similar to those of the case in hand. There the controlling fact was that at the time the vendee definitively refused to accept, there was no regular market for cannel coal, and the vendors resold as soon as they found a purchaser according to the ordinary course of their business, and without unreasonable delay. Therefore it was held that the plaintiffs were entitled to the full amount of the 'difference between the contract price and that which they obtained.

Our attention has been called to Masterton v. Brooklyn, 7 Hill, 61. Undoubtedly this is a leading case in this branch of the law, and especially upon the subject of the profits allowable as damages, and the principles upon which they are to be ascertained. The suit however was upon a contract to procure, manufacture, and deliver marble for a building, and involved an investigation into the constituent elements of the cost to which the contractor might have been subjected had the contract been carried out, such as the price of rough material in the quarry, expenses of dressing, etc. Upon the question as to the time at which the cost of labor and materials was to be estimated the court was divided, and I do not find that the views of the majority upon this precise point have been followed. The case however lacked the element of market value (id. 70); and as Judge Nelson cited with approbation Boorman v. Nash, 9 Barn. & C. 145, and Leigh v. Paterson, 8 Taunt. 540, it cannot be supposed that the court intended, in a case of a marketable article having a market value, to sanction the principle contended for here.

I see nothing in the present case to distinguish it from the ordinary case of a breach by the vendor of a forward contract to supply a manufacturer with an article necessary to his business. For such breach, what is the true measure of damages? Says Kelly, C. B., in Brown v. Muller: "The proper measure of damages is that sum which the purchaser requires to put himself in the same condition as if the contract had been performed." That result-which is compensation-is secured, it seems to me, by the rule given to the jury here, unless the case is exceptional. The vendee's real loss, whether delivery is to be made at one time or in installments, ordinarily is the difference between the contract price and the market value at the times the goods should be delivered. If, however, the article is of limited production, and cannot, for that or other reason, be obtained in the market, and the vendee suffers damage beyond that difference,

the measure of damages may be the actual loss he sustains. McHose v. Fulmer, 73 Penn. St. 367; Richardson v. Chynoweth, 26 Wis. 656; Sedgwick on Dam. 554. With this qualification to meet exceptional cases the rule that the damages are to be assessed with reference to the times the contract should be performed, furnishes, I think, a safe and just standard from which it would be hazardous to depart.

In this case I fail to perceive any thing to call for a departure from that standard. There was no evidence of any special damage to the plaintiff by the stoppage of its furnaces or otherwise. Furthermore, the contract with Hudson, February 27, 1880, was made at a time when the coke market was excited and in an extraordinary condition. Unexpectedly and suddenly coke had risen to the unprecedented price of $4 per ton; but this rate was of brief duration. The market declined about May 1, 1880, and by the middle of that month the price had fallen to $1.30 per ton. The good faith of the plaintiff in entering into the new contract cannot be questioned, but it proved a most unfortunate venture. By the last af May the plaintiff had in its hands more coke than was required in its business, and it procured at what precise loss does not clearly appear the cancellation of contracts with Hutchinson to the extent of 20,000 tons. As the plaintiff was not bound to enter into the new forward contract, it seems to me it did so at its own risk, and cannot fairly claim that the damages chargeable against the defendant shall be assessed on the basis of that contract. The motion for a new trial is denied.

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ESTOPPEL AS TO OWNERSHIP OF LAND.

NEW YORK COURT OF APPEALS, OCTOBER 4, 1881.

TRENTON BANKING Co. v. SHERMAN.

To autnorize the finding of an estoppel in pais against the legal owner of land, there must be shown either actual fraud or fault or negligence equivalent to fraud, on his part, in concealing his title, or that he was silent when the circumstances would compel an honest man to speak, or such actual intervention on his part as to render it just as between him and the party acting on his suggestion that he should bear the loss.

The record title to real estate was in A., B. and C. B., C. and another were members of a banking firm, which changed its members, but not its firm name, from time to time. In 1868 B. and the devisee of C. conveyed the real estate to A., who leased the same to the firm. During all the time the firm occupied the real estate as a place of business. In 1873 B. acquired title to another piece of real estate, which was occupied by the firm for its business. In 1874 he conveyed this to A., who leased it to the firm. None of the conveyances to A. were put on record until July 26, 1875, and the leases were not recorded. On July 27, 1875, the firm failed, largely insolvent. Plaintiff was a creditor and had done business with the firm under a belief that it owned the real estate. The conveyances to A. were in good faith for value, and there was nothing to show that A. kept them from the record in order to give false credit to the firm. Held, that plaintiff was not entitled to have the deeds to A. declared invalid as to a judgment against the firm for his debt.

ACTION to charge certain real property belonging

to defendant with the payment of a judgment recovered by plaintiff against the firm of Duncan, Sherman & Co. The facts sufficiently appear in the opinion. From a judgment in favor of defendant plaintiff appealed.

D. D. Lord, for appellant.

Francis Lynde Stetson, for respondent.

ANDREWS, J. It is not claimed that the plaintiff's judgment attached as a lien upon any interest, legal or equitable, of the judgment debtors in the premises

sought to be charged in this action. They had no such interest, jointly or separately, either at the time of the recovery of the judgment or the accruing of the indebtedness upon which it was rendered. The title of record to the bank building and premises had been from June 28, 1853, in Alexander Duncan, Watts Sherman and William B. Duncan. The actual legal title was in Alexander Duncan under that conveyance and a deed of the undivided two-thirds part of the premises, executed to him May 28, 1868, by Sarah M. G. Sherman, widow and sole devisee of Watts Sherman, and William B. Duncan and wife, subject to a mortgage on the premises for $200,000, dated May 5, 1858, and recorded June 28, 1858. The record title of the Pine street lot was in William B. Duncan, under a deed dated January 31, 1873, and recorded the same day. The deed was made subject to a mortgage of $40,000, which the purchaser assumed as part of the consideration of $85,000 paid for the premises. The actual title to this lot was also in Alexander Duncan, under a deed from William B. Duncan and wife, executed May 25, 1874, expressing the consideration of $85,000 subject to the mortgage of $40,000 which the grantor had assumed in the conveyance to him. The firm of Duncan, Sherman & Co. was originally constituted in 1852, and was then composed of Alexander Duncan, Watts Sherman and William B. Duncan. The firm purchased the bank lot and erected thereon the bank building known as Duncan, Sherman & Co.'s banking-house, and occupied it for the purposes of its business as bankers. The membership of the firm was changed from time to time by the introduction of new partners and the death or withdrawal of others; but through all the successive changes, the firm name of Duncan, Sherman & Co. was continued, and the successive firms continued to occupy for their business the same banking-house. The original partnership expired by limitation July 1, 1862. Alexander Duncan then withdrew from the business. The fact was announced in a circular issued by the firm, accompanied by a printed statement signed by Alexander Duncan to the effect that he had withdrawn no part of the capital contributed by him to the firm, but had made it over to his two sons, William B. and David Duncan, absolutely, to promote their interest and that of the new firm. The new firm was composed of Watts Sherman, William B. Duncan and David Duncan. Upon the death of Watts Sherman in 1868, his son William Watts Sherman and Francis H. Green were admitted as partners with William B. Duncan and David Duncan, and after the death of David Duncan in 1872, the firm consisted of William B. Duncan, William Watts Sherman and Francis H. Green, and remained unchanged from that time until its failure, July 27, 1875. Subsequent to the conveyance of the banking-house and premises to Alexander Duncan in 1868, the firm occupied the same as tenants under a written lease executed by him, which however was a lease at will or from year to year, containing no term, but providing for the payment of an annual rent of $30,000, and containing a covenant by the lessees to pay taxes and repairs; and in like manner the firm occupied the Pine street lot after the conveyance to Alexander Duncan in 1874, and sublet such parts of both premises as were not required for use in the firm business. The deeds to Alexander Duncan were not recorded until July 26, 1875, nor were the leases to the firm put on record. The dealings between the plaintiff and Duncan, Sherman & Co. commenced in 1874, upon the appointment by the plaintiff of Duncan, Sherman & Co. as its collecting agents in the city of New York, and the indebtedness upon which the plaintiff's judgment was recovered accrued in July, 1875, shortly before the failure of the firm.

It is well settled in this State that in the absence of fraud, a judgment takes effect only on the actual interest in land which the judgment debtor has at the

time of the recovery of the judgment, and consequently that the title of a grantee of the judgment debtor by deed executed before the entry of the judgment, although unrecorded, takes precedence of the judgment. The fact that the grantee has not recorded his deed creates no equity in favor of the judgment creditor. The latter is not a purchaser within the recording acts, and purchasers alone are protected by these acts against unrecorded conveyances. The general principle above adverted to is not assailed by the plaintiff, but its demand to have the real estate conveyed to Alexander Duncan subjected to the lien of its judgment against Duncan, Sherman & Co. is asserted upon the alleged ground that the defendant withheld his deeds from record, and knowingly permitted the firm to appear to be the owners of the property conveyed, whereby the plaintiff was deceived into giving the credit to the firm which resulted in the debt for which the judgment was rendered.

In considering this claim it is to be observed that the plaintiff does not here question the bona fides of the conveyances to Alexander Duncan, or deny that they were founded upon a valuable and adequate consideration. It is true that the complaint alleges that the consideration was inadequate, but the allegation is sustained neither by the proof nor the finding. The consideration for the conveyance of the Nassau street property was $500,000, and was paid by the purchaser assuming the mortgage for $200,000, canceling a special loan of $200,000 made by him to the firm in 1862, soon after he retired from the firm, and paying the balance of $100,000. The consideration of the conveyance of the Pine street lot, beyond the mortgage of $40,000, was also paid at the time. The complaint also alleges that the defendant withheld the deeds from record for the purpose of avoiding a disclosure of the fact that the property was not part of the assets of Duncan, Sherman & Co., or of any individual member of the firm, but the court refused to find this fact as alleged, but found simply that the deeds were not recorded until the date before stated.

The complaint also alleges that after the deeds were executed, Duncan, Sherman & Co. held out to the public that the firm, or some of its members, were owners of the property, and that this was done with the knowledge of the defendant and with his concurrence; but this allegation is not supported by any finding. The court however found that when the plaintiff became a creditor of the firm, it was generally supposed that the bank building belonged to the firm, and that the plaintiff so believed, and continued its dealings under this belief until Duncan, Sherman & Co.'s failure.

It is undoubtedly true that a party who has a title to any property, real or personal, may by his conduct in inducing others to deal with it, without informing them of his claim, debar himself from asserting that title to the injury of such others. This principle was asserted by Chancellor Kent in the leading case in this State of Wendell v. Van Rensselaer, 1 Johns. Ch. 344. "There is," says the chancellor, "no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel." The case in which this language was used was one where the defendant claimed under a secret deed, intentionally concealed for many years, the grantor in the mean time remaining in possession; dealing with the land as owner, and with the knowledge of the defendant; making sales in fee of

The

different parcels to third persons who entered into possession and made extensive improvements, the defendant standing by aud giving no notice of his claims. "After this," says the chancellor, "he cannot be permitted to start up with a secret deed and take land from bona fide purchasers from the testator." case there was between the owner of the legal title under a secret deed and purchasers and grantees of the former owner. In this case the plaintiffs are creditors, but we see no reason why the same principle should not protect creditors who have given credit upon the faith of the apparent ownership of property in possession of the debtor against a secret, unrecorded conveyance, fraudulently concealed by the grantee; as when his knowledge that the debtor is holding himself out as owner, and is gaining credit upon this ground, he keeps silence, giving no sign.

Hungerford v. Earle, 2 Vern. 261, was the case of bond creditors to the father for money lent twelve years after a voluntary settlement on trustees for her sons, who did not enter and take possession according to the deed, but permitted the settler to live in the house, etc., and it was said that a deed not at first fraudulent may afterward become so by being concealed and not produced, "by which means creditors are drawn in to lend their money."

The case of Storrs v. Barker, 6 Johns. Ch. 166, presents another application of the principle of estoppel as against the owner of the legal title, and decides in accordance with previous decisions that if the true owner stands by and advises and encourages a purchase from another, although in ignorance of his own title, he cannot afterward assert it to the injury of the purchaser.

It is not necessary now to consider what are the limitations, if any, to this doctrine. But as a general rule it would seem to be just that if a person does an act at the suggestion and request of another, the other shall not be permitted to avoid the act when it turns out to the prejudice of an antecedent right or interest of his own, although the advice on which the other party acted was given innocently and in ignorance of his claim. The authorities establish the doctrine that the owner of land may by an act in país preclude himself from asserting his legal title. But it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds or justice and equity. It is opposed to the letter of the statute of frauds, and it would greatly tend to the insecurity of titles if they were allowed to be affected by parol evidence of light or doubtful character. To authorize the finding of an estoppel in pais against the legal owner of land there must be shown, we think, either actual fraud, or fault or negligence equivalent to fraud, on his part in concealing his title; or that he was silent when the circumstances would impel an honest man to speak, or such actual intervention on his part as in Storrs v. Barker, so as to render it just that as between him and the party acting upon his suggestion he should bear the loss. Moreover, the party setting up the estoppel must be free from the imputation of laches, in acting upon the belief of ownership by one who has no right.

In this case we are of opinion that the plaintiff must fail, for two reasons: First, for its laches in not examining the records, and in making no inquiry to ascertain in whom the actual title was vested; and second, because there is no finding of fraud on the part of the defendant, and no proof from which the inference necessarily and indubitably follows that his failure to record the deeds was with a fraudulent intent, and no clear evidence of knowledge of circumstances which called upon him to put the deed on record. The plaintiff, when the dealing with Duncan, Sherman & Co. commenced, did not examine the records, and made no inquiry of them or of the defendant, or of

any other person as to the ownership of the property. Its officers assumed without inquiry, from the possession by the firm, that the title was in Duncan, Sherman & Co. If the records had been consulted they would have disclosed the fact that only one of the parties had any record title to the land, and that his interest in the banking house was an undivided third, subject to a mortgage on the whole lot for two-fifths of its value, and that the Pine street lot was mortgaged for nearly half its value. The plaintiffs, in giving credit to Duncan, Sherman & Co., relied doubtless upon the general credit of the firm, to which the fact that they occupied an expensive building, generally supposed to belong to them, contributed. The records showed that it was largely incumbered, and even this fact they took no pains to ascertain. The plaintiffs we think cannot call upon the court to apply the highly penal doctrine of equitable estoppel in this case, when they omitted the most obvious and natural means of ascertaining the true state of the title. We have no right to assume that if the inquiries had been made the true facts would not have been disclosed.

In the next place there is no finding of any fraudulent intent on the part of the defendant, nor that he omitted to record the deeds to avoid disclosure or to maintain the credit of the firm; nor is there any proof that he knew that the firm was in failing circumstances, nor is there any proof that in fact its resources were not ample up to a short time before its failure. There may be grounds for suspicion of the bona fides of the defendant in omitting to record the deeds. The recording of deeds of valuable property is usual and generally an important precaution against supervening conveyances by the grantor. But the law does not impose upon grantees the recording of titles as a duty. We are not prepared to say, and we have no right to say, in the absence of any finding of fraud or proof of circumstances necessarily tending to the conclusion of fraud, that the omission by the defendant to record his deeds prevents him from asserting as against the plaintiff his legal title to the land.

Assuming as is claimed that Duncan, Sherman & Co. held themselves out as owners of the property, or were guilty of fraud (facts not found), the defendant cannot be charged with the consequences in the absence of knowledge on his part. The case is not then within the principle stated by Lord Cottenham in Nicholson v. Hoover, 4 My. & Cr. 186, that a party claiming a title in himself, but privy to the fact of another dealing with the property as his own, will not be permitted to assert his own title against a title created by such other person, although he derives no benefit from the transaction.

The judgment should be affirmed.

PERMISSIVE WASTE.

ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, JULY 5, 1881.

BARNES V. DOWLING. 44 L. T. Rep. (N. S.) 809.

An action for permissive waste will not lie against a tenant for life.

THEM

HE statement of claim alleged that in January, 1878, the plaintiff purchased of the Rev. E. A. Ommanney the reversion of certain copyhold property, including a certain dwelling-house situate at Dundry, in the county of Somerset, and at the date of the purchase the defendant was and is now in possession of the property as tenant for life; that the defendant neglected the property and caused it to waste and decay by not repairing the same, and it has become necessary for the protection of the property and the estate of the plaintiff therein as reversioner that the dwelling-house