111. Equitable estoppel or estoppel in pais; waiver. e. By request; admissions; assent; license. c. No one can maintain an action for a of the placing of the whole property in the wrong, where he has consented to the act hands of a receiver after he has been adwhich occasions his loss. Griffin v. Fair-judged his portion of the rents which came mont Coal Co. 2 L.R.A. (N.S.) 1115, 59 W. to the receiver's hands, and, by consent Va. 480, 53 S. E. 24. d. Disability to question a wrongful transaction usually attaches to a party who consented thereto or participated therein. Elyton Land Co. v. Birmingham Warehouse & Elevator Co. 12 L.R.A. 307, 92 Ala. 407, 9 So. 129. e. Parties consenting to try their case on a theory of what the law applicable thereto is cannot complain of the result, if correct according to the theory so adopted. Burkee v. Matson, 34 L.R.A. (N.S.) 924, 114 Minn. 233, 130 N. W. 1025. f. A judgment will not be declared void on the complaint of a litigant consenting to the inadvertent error complained of. State ex rel. Walter v. Superior Ct. 17 L.R.A. (N.S.) 257, 49 Wash. 1, 94 Pac. 665. order, agreed to pay his share of the expenses of the receivership. Ft. Jefferson Improv. Co. v. Dupoyster, 2 L.R.A. (N.S.) 263, 112 Ky. 792, 66 S. W. 1048. 1. A lien creditor of a judgment debtor, who was not a party to the proceedings in which the judgment was rendered, is not, by consenting to the appointment of a receiver in aid of execution, estopped to object to the possession and control of the property by the receiver. First Nat. Bank v. Cook, 2 L.R.A.(N.S.) 1012, 12 Wyo. 492, 76 Pac. 674. m. One who, through mistake, permits the erection of a building partly on his land, is not thereby estopped from asserting his rights when he learns for the first time of the encroachment. Davis v. Owen, 13 L.R.A. g. If a man, either by words or conduct, (N.S.) 728, 107 Va. 283, 58 S. E. 581. has intimated that he assents to an act n. After the maintenance of a railroad which has been done, and that he will not switch in a public street for twenty years offer opposition to it, although it could not under the express consent of the abutting have been lawfully done without his consent, owners, neither those who gave the consent, and he thereby induces others to do that | nor their successors in title, are entitled to from which they otherwise might have ab- injunctive relief against the alleged nuistained, he cannot question the legality of sance. Wolfard v. Fisher, 7 L.R.A. (N.S.) the act he has so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct. Hess v. Hodges, L.R.A. 1918D, 858, 201 Ala. 309, 78 So. 85. h. One is not estopped from claiming damages from persons who invade his premises and drive away a tenant, by the fact that he consented to their request to see the tenant and invited them into the house, where he tried to dissuade them from their purpose, and did not consent thereto. Sandlin v. Coyle, L.R.A.1918D, 389, 143 La. 121, 78 So. 261. 991, 48 Or. 479, 84 Pac. 850. (Annotated) o. A convict who assents to a void provision in his sentence, that it shall not be executed during good behavior, cannot take advantage of its invalidity when the sentence is sought to be enforced against him, nor of the fact that the original term of sentence has elapsed. Fuller v. State, 39 L.R.A.(N.S.) 242, 100 Miss. 811, 57 So. 6, 806. p. Devisees and legatees of a deceased partner in a banking business who consent to the continuance of the business by the surviving partner are estopped to raise the issue that deposits subsequently received and paid out on firm liabilities existing at the death of the partner should not be treated as a partnership liability. Maynard v. May. nard, L.R.A.1918A, 81, 147 Ga. 178, 93 S. E. 289. i. A landlord who assents by parol to the assignment of the lease, and accepts rent from the assignees, knowing that they are laiming under the lease, estops himself from claiming that the lease provided that consent to its assignment must be in writing, where no forfeiture is provided for assign- q. Consent of owners abutting upon a ment without written consent. Field v. park dedicated under restrictions against Copping, 36 L.R.A. (N.S.) 488, 65 Wash. the erection of buildings, to the erection of 359, 118 Pac. 329. (Annotated) one or more buildings upon such park, will j. A borrowing member of a loan associa- not estop them from bringing suit to ention is not estopped from demanding a dis- join the erection of other buildings. Chisolution of the contractual relations exist-cago v. Ward, 38 L.R.A. 849, 169 Ill. 392, ing between him and the association, which 48 N. E. 927. has suspended the payment of dues on its stock by its members for an unreasonable time, so as to work a material departure from its general plan of satisfying loans made to its members, by his having voted for an amendment to the by-laws of the association, conferring upon its directors power to suspend payment of dues. Burkheimer v. National Mut. Bldg. & L. Asso. 4 L.R.A. (N.S.) 1047, 59 W. Va. 209, 53 S. E. 372. k. A tenant in common of land which has been sold by his cotenant cannot complain r. The beneficiaries in a secret trust created by a testator are not estopped to assert the trust against the trustees and their donees by consenting to the postponement of the payment of specific legacies given them by the will to the payment of an amount which the trustees have agreed to pay the widow and next of kin for a release of their statutory rights to contest the validity of the trust, although they have knowledge of an attempt to donate the trust fund to strangers, where the circumstances indicate that they intended to consent to Estoppel of obligor on bonds secured by III. Equitable estoppel or estoppel in pais; waiver. e. By request; admissions; assent; license. the payment alone, and not to the settle- As precluding injunctive relief, see INJUNCment as such. Amherst College v. Ritch, TION, § 259. 37 L.R.A. 305, 151 N. Y. 282, 45 N. E. 876. s. The owner of property near a contemplated artificial lake to be constructed by a municipality for park purposes, who consents to the improvement and assists in financing the project, cannot, although the city has no power to construct the lake, treat it as a continuing nuisance because of the permanent flooding of property which he subsequently purchases, and have it abated in an action at law. Irvine v. Oelwein, L.R.A.1916E, 990, 170 Iowa, 653, 150 N. W. 674. t. Whether or not a bank has, by per- From municipality, see ante, § 8. 1. By laches, silence, or acquiescence. § 74. Generally. As applied to municipalities, county or town, Estoppel of state, see ante, § 16. quiescence of officers, see post, § 171. By acquiescence of members of voluntary Of consignee to assert common law liability Of sovereign to deny legality of incorpora- 14. As bar to relief in equity generally, see To deny authority of attorney to represent one in action, see JUDGMENT, § 290 b, c. Laches as bar to action, see LIMITATION OF ACTIONS, I. b. Of master to claim servant's earnings in outside employment, see MASTER AND SERVANT, § 23 b. Estoppel to question validity of contract with city, see MUNICIPAL CORPORATIONS, § 136 h. to validity of street improvement assessTo rescind sale, see SALE, § 168 a. ment, see PUBLIC IMPROVEMENTS, § 73. Acquiescence of taxpayers in performance of contracts in excess of debt limit, see SCHOOLS, § 24 a. By failure to advise one negotiating for claim of existence of set-off, see SET-OFF AND COUNTERCLAIM, § 30 c. To deny correctness of tax list, see TAXES, To require second payment of taxes paid to By acquiescence in payment under invalid See also ante, §§ 41 e, h, 43 l, n, 51 d, 59 d, 67 c; post, §§ 119 n, nl, 125 b, 154 j, 181 f. a. Whether laches will be imputed depends largely upon the facts and circumstances of each case. Williams v. Woodruff, 5 L.R.A. (N.S.) 986, 35 Colo. 28, 85 Pac. 90. al. The law sometimes distinguishes between silence and encouragement, in estoppel. Rogers v. Portland & B. Street R. Co. 70 L.R.A. 574, 100 Me. 86, 60 Atl. 713. b. A person will not always be estopped merely by a failure to disclose facts ascertainable by an examination of the public records. Rogers v. Portland & B. Street R. Co. 70 L.R.A. 574, 100 Me. 86, 60 Atl. 713. b1. The acquiescence which will bar a complainant from the exercise in his favor of equity's discretionary jurisdiction by injunction must be such as proves his assent to the acts of the defendant, and to the injuries to himself which have flowed, or can reasonably be anticipated to flow, from III. Equitable estoppel or estoppel in pais; waiver. f. By laches, silence, or acquiescence. those acts. Rigney v. Tacoma Light & Water Co. 26 L.R.A. 425, 9 Wash. 576, 38 Pac. 147. c. After long acquiescence in the exercise of jurisdiction by a municipality, the validity of the proceedings by which the jurisdiction was originally acquired cannot be called collaterally in question at the suit of a private party. Chicago & N. W. R. Co. v. West Chicago Park, 25 L.R.A. 300, 151 Ill. 204, 37 N. E. 1079. larity in the conduct of a receiver's sale, should not afterwards be heard to question its validity on the ground of such irregularity where he cannot show affirmatively that he has been injured thereby. Re Great Western Beet Sugar Co. 43 L.R.A.(N.S.) 671, 22 Idaho, 328, 125 Pac. 799. gl. One having a valid claim against another for services is estopped to assert it against the latter's estate, by remaining silent, though present, when the latter is negotiating for the services of another, to be against which she states that there are no claims. Pond v. Pond, 8 L.R.A. (N.S.) 212, 79 Vt. 352, 65 Atl. 97. cl. A corporation is estopped to deny acts of an officer done and performed by permis-compensated by her entire estate after death, sion of its board of directors, evidenced by its knowledge of his acts, acquiescence therein, and silence. Union Bank & T. Co. v. Long Pole Lumber Co. 41 L.R.A. (N.S.) 663, 70 W. Va. 558, 74 S. E. 674. d. Interested parties who acquiesce in a sale by a trustee appointed under a will upon petition of the widow of testator are estopped to question the validity of the sale because they were not made parties to the proceedings for appointment of the trustee. Haggin v. Straus, 50 L.R.A. (N.S.) 642, 148 Ky. 140, 146 S. W. 391. h. The failure of a plaintiff in a libel suit to carry on the schedules filed in his bankruptcy proceedings his claim for damages arising out of libel will not estop him from pursuing his action for libel, where the position of the defendant has been changed in no way by his failure to do so. Irion v. Knapp, 43 L.R.A. (N.S.) 940, 132 La. 60, 60 So. 719. h1. A party to a contract to compound a d1. If a party having a right stands by felony cannot estop himself from maintainand sees another dealing with the propertying an action to set aside the instrument in a manner inconsistent with such right, and makes no objection while the act is in progress, he cannot afterwards complain. Reichert v. St. Louis & S. F. R. Co. 5 L.R.A. 183, 51 Ark. 491, 11 S. W. 696. e. Where one knowingly suffers another, in his presence, to purchase property, to which he has a claim or title, which he wilfully conceals, he will be deemed, under such circumstances, to have waived his claim, and will not afterwards be permitted to assert it against the purchaser. Lindsay v. Cooper, 16 L.R.A. 813, 94 Ala. 170, 11 So. 325. el. A party who sees his obligation transferred to a bona fide purchaser for a valuable consideration, without giving notice of any defense or set-off which he may claim against it, is estopped from setting up any against such purchaser. Vallancey v. Hunt, 34 L.R.A. (N.S.) 473, 20 N. D. 579, 129 N. W. 455. f. The owner of a piano who leases it to a retail dealer in musical instruments is not estopped to claim it from one who first hired and then purchased it from the retail dealer, who held it only under a lease providing that it should be kept in the purchaser's house, although the lessor failed to notify such purchaser of his claim to the instrument for nearly two years, during which time the latter bought and paid for it believing it to belong to the retail dealer. Oliver Ditson Co. v. Bates, 57 L.R.A. 289, 181 Mass. 455, 63 N. E. 908. f1. Mere failure of a conditional vendor to assert title at a bankruptcy sale of the vendee's property will not estop it from claiming the property from a purchaser at the sale. Myrick v. Liquid Carbonic Co. 38 L.R.A. (N.S.) 554, 137 Ga. 154, 73 S. E. 7. g. One who has acquiesced in an irregu for illegality of consideration, by conduct in depriving the accuser of remedies against accused, or by laches in failing promptly to take steps for relief. Colby v. Title Ins. & T. Co. 35 L.R.A. (N.S.) 813, 160 Cal. 632, 117 Pac. 913. i. The doctrine of estoppel in pais cannot be applied in favor of the inhabitants of a town against one controlling a ditch which furnishes the public water supply, unless by his action or silence he has concurred in allowing the public and individuals to so use and enjoy the water that to thereafter deprive them of it would work an injustice or fraud upon them, and invade the right founded on the presumption he has allowed to be raised. Hailey v. Riley, 17 L.R.A. (N.S.) 86, 14 Idaho, 481, 95 Pac. 686. j. That a charitable corporation has permitted a judgment to go against it for the negligence of its agent and its property to be sold under an execution does not prevent it from maintaining an action to recover possession of the property. Fordyce v. Woman's Christian Nat. Library Asso. 7 L.R.A. (N.S.) 485, 79 Ark. 550, 96 S. W. 155. k. The indorser of a promissory note cannot, after paying it, make the contention that the presentment to the maker was not suflicient to charge him with liability. Rogers v. Detroit Sav. Bank, 18 L.R.A. (N.S.) 530, 146 Mich. 639, 110 N. W. 74. re 1. A subscriber to a fund for a charitable object who permits work to progress in carrying on the enterprise for a length of time without objection cannot secure lease from his subscription because the plans have been changed. Young Men's Christian Asso. v. Olds Co. L.R.A.1917 F, 1132, 84 Wash. 630, 147 Pac. 406. m. Failure of a property owner for eight III. Equitable estoppel or estoppel in país; waiver. f. By laches, silence, or acquiescence. years to attack an alleged municipal cor- s. The voluntary dismissal of an injuneporation organization in which his property tion suit by a plaintiff in accordance with was included, will not estop him from main- an award by arbitrators does not estop him taining the action if the municipality was from insisting that such award does not organized merely to effect the organization constitute such a judicial determination of of a school district, and no attempt was the suit as creates a liability on his inmade to use the franchise until the levy of junction bond. Columbus, H. Valley & T. a tax upon his property shortly before he R. Co. v. Burke, 32 L.R.A. 329, 54 Ohio St. made his attack. Waldrop v. Kansas City 98, 43 N. E. 282. S. R. Co. L.R.A.1918B, 1081, 131 Ark. 453, 199 S. W. 369. t. Mere acquiescence for a time, by a gas company, in the placing of governors on its gas meters, will not prevent it from obtaining an injunction against such unlawful acts, when the evil or trespass is increasing. Consolidated Gas Co. v. Blondell, 46 L.R.A. 187, 89 Md. 732, 43 Atl. 817. n. A written statement by an owner of a trademark that he supposed the mark might be used on other classes of goods without violating any law does not amount to an acquiescence in such use of the mark which will amount to an estoppel to object thereto. u. The acceptance, without objection, by Aunt Jemima Mills Co. v. Rigney & Co. a subscriber to bank stock, of a condition L.R.A.1918C, 1039, 247 Fed. 407, 159 C. C. in the certificate that it will not be transA. 461. (Annotated) ferred on the books until he has paid all o. One who, having learned that his name of his debt to the bank, estops him from was printed on a circular as being interested objecting to such condition after a subsein a bank, has directed that it be removed quent loan to him from the bank; and therefrom, is not bound to exercise diligence the bank has an equitable lien on the stock to discover whether or not general repute for the amount due from him. Jennings v. connects him with the bank, and, if so, to Bank of California, 5 L.R.A. 233, 79 Cal. publish a denial. Anfenson v. Banks, L.R.A.323, 21 Pac. 852. 1918D, 482, 180 Iowa, 1066, 163 N. W. 608. p. A farmer living several miles from the town in which a bank is located cannot be held to be a partner in such business by estoppel from the fact that in a pamphlet issued by the bank his name was placed on the front page as a partner, if he never invested a dollar in the bank, loaned it any money or credit, and never authorized the use of his name, or saw the pamphlet, but directed his name to be removed therefrom as soon as he was told that it was printed thereon, and seldom visited the town where the bank was located or the bank, and never participated in its management, although he made no public announcement of his nonconnection with the bank, and deposits were made on the belief that he was a partner. Anfenson v. Banks, L.R.A.1918D, 482, 180 Iowa, 1066, 163 N. W. 608. q. Owners of land in a levee district who have for a long time acquiesced in its organization and received its benefits are not, merely by silent acquiescence or the taking of a minor part in securing an amendment to the statute under which it is organized so as to authorize increased taxation, or by paying a small tax under the amendment, estopped from questioning the constitutionality of the amendment. Fulton County v. Johnson, L.R.A.1918E, 202, 178 Ky. 287, 199 S. W. 8. r. The unlawful use for many years of the name of a foreign firm by one who had the right to designate himself as its successor merely, even if it is not objected to by the firm, which is not apparently aware of the extent of such use, will not give the user a right, based on his own wrong, to prevent the firm or its successor from again using its own name, upon establishing a similar business again in the same city. Knoedler v. Glaenzer, 20 L.R.A. 733, 55 Fed. 895, 5 C. C. A. 305. v. The fact that a farmer having movables which are, by the homestead provisions of the Constitution, exempt from seizure under any process whatever, is unable to give bond for an injunction to stay a seizure and sale of the same under execution, does not estop him from thereafter attacking the sale where the property has been adjudicated to the plaintiff in execution and is still in his possession, especially, where he, through his attorney, and the sheriff were notified in advance of the sale that the property was claimed as exempt from seizure. Jackson v. Hodges, L.R.A.1917F, 732, 141 La. 993, 76 So. 174. (Annotated) w. The acceptance of the decree in a divorce suit by a defendant over whom no jurisdiction was obtained, and his remarrying, do not estop him from disputing the validity of a subsequent ex parte proceeding in the divorce suit, by which the judgment is opened and a decree for alimony entered against him. Hekking v. Pfaff, 43 L.R.A. 618, 91 Fed. 60, 33 C. C. A. 328. x. While a condition may be waived by a party who has the right to avail himself of it, mere indulgence or silent acquiescence in the failure to perform is never construed into a waiver unless some element of estoppel can be invoked. Royal v. AultmanTaylor Co. 2 L.R.A. 526, 116 Ind. 424, 19 N, E. 202. y. A failure to set up fraud promptly when discovered may be treated as a waiver thereof. Clement v. New York L. Ins. Co. 42 L.R.A. 247, 101 Tenn. 22, 46 S. W. 561. 8 75. Knowledge of facts as element in. See also ante, § 74 cl, r; post, §§ 76 j, 79 a, b, 80 b, c, 81 b, 94 a, 96 g, 98, 116 d, 119 g, 183 f; INJUNCTION, 210 a. a. There can be no acquiescence and no laches where there is no knowledge. Wil III. Equitable estoppel or estoppel in pais; waiver. f. By laches, silence, or acquiescence. liams v. Woodruff, 5 L.R.A. (N.S.) 986, 35 | the erasure of the name of a cosurety canColo. 28, 85 Pac. 90. not arise to prevent denial of liability as surety on account of such erasure, where the sureties had no knowledge of the erasing. State v. McGonigle, 8 L.R.A. 735, 101 Mo. 353, 13 S. W. 758. b. One who does no act and merely remains silent cannot be charged with fraud or be estopped unless he knew the truth, when his nonaction or remaining silent is said to have induced another to act to his own injury. Reid v. Benge, 57 L.R.A. 253, 112 Ky. 810, 66 S. W. 997. j. Mere failure by persons who had contributed towards the expenses of prospecting for mines in consideration of a share c. Acquiescence to have the effect of an in the enterprise, to take steps to reach an admission must exhibit some act of the interest which their representative had acmind, and amount to voluntary demeanor or quired as a result of his trip in an enterconduct of the party. And, whether it is prise with strangers, until it had proved to acquiescence in the conduct or in the lan- be very profitable, will not bar a recovery guage of others, it must plainly appear that if they had no knowledge of the particular such conduct was fully known, or the lan- facts on which their rights depended. Lind guage fully understood by the party, before v. Webber, 50 L.R.A. (N.S.) 1046, 36 Nev. any inference can be drawn from his passive-623, 134 Pac. 461. ness or silence. McCord v. Seattle Electric k. One of two cotenants to whom propCo. 13 L.R.A. (N.S.) 349, 46 Wash. 145, 89 Pac. 491. d. A person will not usually be estopped by his acts unless he understands his rights, and actively participates or silently acquiesces in conditions that will operate to deprive him of those rights. Trimble v. King, 22 L.R.A. (N.S.) 880, 131 Ky. 1, 114 S. W. 317. e. Estoppel by silence or by positive assertion, to become the basis of a right of action or defense, must be relied and acted upon to his injury, in ignorance of the truth, by the party who seeks to assert the estoppel. Pond v. Pond, 8 L.R.A. (N.S.) 212, 79 Vt. 352, 65 Atl. 97. erty is conveyed subject to a mortgage which the grantees assume and agree to pay cannot object that his cotenant had no authority to obligate him to pay the mortgage, or to accept a deed containing an assumption of the mortgage debt, where he knew that the property had been deeded to himself and the cotenant, and that there was a mortgage on it, and paid interest on the mortgage for two years, and remained in possession of the premises for three years before raising any objection. McDonald v. Finseth, L.R.A.1916D, 149, 32 N. D. 400, 155 N. W. 863. 1. A railway company which by long-continued acquiescence leads the public to bef. If there has been an unreasonable de- lieve and act on the belief that a person lay in asserting claims, or if, knowing his assuming to exercise its franchises or any rights, a party does not seasonably avail portion thereof, with knowledge on the part himself of means at hand for their enforce-of the officers and agents of the company, ment, but suffers his adversary to incur expense or enter into obligations or other wise change his position or in any way, by inaction, lulls suspicion of his demands to the harm of the other or if there has been actual or passive acquiescence in the performance of the act complained of, equity will ordinarily on the ground of laches refuse relief. Stewart v. Finkelstone, 28 L.R.A. (N.S.) 634, 206 Mass. 28, 92 N. E. has its consent so to do, is liable to a third person acting upon such belief in whose favor a cause of action may arise for injury due to the negligence of the company or of the person apparently authorized to exercise the franchise. Midland Valley R. Co. v. Toomer, L.R.A.1917D, 344, Okla. 162 Pac. 1127. m. Payment of school taxes for a period of years in a district illegally organized, without knowledge of the organization, and under the belief that no change had been made in the district, does not estop the tax payer from attacking the illegal organizaL.R.A.1918B, 1081, 131 Ark. 453, 199 S. W. tion. Waldrop v. Kansas City S. R. Co. 369. § 76. Duty to speak or act as element in. See also ante, §§ 43 1, 74 o; post, §§ 96 a, 101 c, d. h. Estoppel, by a subscriber to the cost of a factory, to question the validity of an assignment of the contract for its construction, is not shown by the facts that a. One's mere silence will not create an he permitted the completion of the work estoppel unless he was under some obligawithout objection, and that a committee tion to speak. Chicora Fertilizer Co. v. of subscribers certified to the completion Dunan, 50 L.R.A. 401, 91 Md. 144, 46 Atl. of the work, where he had no knowledge 347; Newhall v. Hatch, 55 L.R.A. 673, 134 of the assignment, and the committee had Cal. 269, 66 Pac. 266; Anfenson v. Banks, no authority to consent to a substitution L.R.A.1918D, 482, 180 Iowa, 1066, 163 N. W. of contractors. Johnson v. Vickers, 21 608. L.R.A. (N.S.) 359, 139 Wis. 145, 120 N. W. b. There can be no estoppel, or even waiver, by silence, except under circumstances where it becomes the duty of the 837. i. An estoppel by failure to object to |