III. Equitable estoppel or estoppel in pais; waiver. 1. By laches, silence, or acquiescence. party to speak. Knoedler v. Glaenzer, 20§ 77. By failure to object at first opL.R.A. 733, 55 Fed. 895, 5 C. C. A. 305.

c. Whoever conceals facts, required by good faith and fair dealing to be disclosed, acts inequitably, and will not be permitted to assert those facts to the injury of one misled by such conduct. Chemical Nat. Bank v. Kellogg, 2 L.R.A. (N.S.) 299, 183 N. Y. 92, 75 N. E. 1103.

d. The court of chancery will refuse its aid to one who remains silent when duty, candor, and fair dealing require him to speak out. Industrial Sav. & L. Co. v. Plummer, L.R.A.1915C, 613, 84 N. J. Eq.

184, 92 Atl. 583.

e. A person cannot be permitted to be silent when his silence operates virtually as a fraud. Wilson Lumber & Mill. Co. v. Atkinson, 49 L.R.A. (N.S.) 733, 162 N. C. 298, 78 S. E. 212.

f. Consent being active, while not objecting is merely passive, the adage "Silence gives consent" only applies in law where there is some duty or obligation to speak. State v. Richardson, 35 L.R.A. 238, 47 S. C. 166, 25 S. E. 220.

g. He who by his acts or statements, or by his silence when he ought to speak out, intentionally or negligently induces another to so act that he will sustain injury by the former's denial of his acts, statements, or silence, or of their natural effect, is estopped to repudiate them. McDonald v. Kansas City Bolt & Nut Co. 8 L.R.A. (N.S.) 1110, 149 Fed. 360, 79 C. C. A. 298.

portunity on trial.

Failure to object to jurisdiction of equity, see EQUITY, § 53.

To

To

absence of, or defect in, verification of information, see INDICTMENT, ETC., § 9. sufficiency of complaint or warrant, see INDICTMENT, ETC., § 17 a.

To disqualification of judge, see JUDGES, § 24 a.

a. A party feeling aggrieved by any incident in the progress of a trial must make his objection known at the earliest opportunity, and silence when there is an opportunity to speak, operates as a waiver of objections to which, if seasonably made and presented, irregularities and abuses might be regarded as prejudicial. Cleveland, C. C. & St. L. R. Co. v. Hadley, 16 L.R.A. (N.S.) 527, 170 Ind. 204, 82 N. E. 1025.

b. A corporation is estopped from complaining that judgment went against it in a wrong name, by going to trial on the merits without objecting to the misnomer or disclosing its true name. University of Louisville v. Hammock, 14 L.R.A. (N.S.) 784, 127 Ky. 564, 106 S. W. 219.

c. One who fails to object to a witness's answer to a question because not responsive thereto, and permits it to be recorded, cannot, upon a second trial, object on that ground to the reading of it to the jury after the witness is dead. Sherman Gas & E. Co. v. Belden, 27 L.R.A. (N.S.) 237, 103 Tex. 59, 123 S. W. 119.

a. One entitled to administration, who

h. One invoking estoppel on ground of another's silence must show that it was $ 78. As to right to administer estate. the duty of the other to speak, that he has not only been induced to act by reason of such silence, but that the other had reasonable cause to believe that he would so act. Newhall v. Hatch, 55 L.R.A. 673, 134 Cal.

269, 66 Pac. 266.

i. Where a person wronged is silent under a duty to speak, or by an act or declaration recognizes the wrong as an existing and valid transaction, and in some degree, at least, gives it effect so as to benefit himself or so as to affect the rights or relations created by it between the wrongdoer and a third person, he acquiesces in and assents to it and inequitably estopped from impeaching it. Rothschild v. Title Guarantee & T. Co. 41 L.R.A. (N.S.) 740, 204 N. Y. 458, 97 N. E. 879.

stands by with knowledge of the applica-
tion of another for appointment and the
fact that he is administering upon the es-
tate, is estopped to assert his prior right
and claim the appointment made to be in-
valid. Manning v. Leighton, 24 L.R.A. 684,
65 Vt. 84, 26 Atl. 258.

§ 79. As to insurance.
Estoppel of insured or beneficiary generally,
see INSURANCE, XVIII.
Estoppel of insurance company generally,
see INSURANCE, XIX.

a. There is no acquiescence in, or ratification of, the surrender of a life insurance policy by a guardian in socage, made without the knowledge of the beneficiaries when they were minors, where they have not consciously or intentionally acquiesced in or ratified it, or taken the fruits of it, or done anything to mislead or prejudice the insurance company. Foley v. Mutual L. Ins. Co. 20 L.R.A. 620, 138 N. Y. 333, 34 N. E. 211.

j. No man is responsible for the truth or falsity of a current report or reputation concerning himself or his business, unless he has given rise thereto by his own conduct, or the existence thereof has been brought to his knowledge in such manner that in b. After an insurance organization has equity and good conscience he should meet been allowed to proceed in its business, with it with a denial. Anfenson v. Banks, L.R.A. full knowledge and acquiescence of the in1918D, 482, 180 Iowa, 1066, 163 N. W. 608. surance authorities of the state, for a sek. The neglect to reply to statements ries of years, during which many of its memmade in one's presence is not an admission bers have by age and disability become of their truth unless they are addressed to unable to procure any other insurance, a the party, or made under such circum-rival organization which has all the time stances as to require a reply. Horan v. had knowledge of the facts and failed to Byrnes, 62 L.R.A. ‍602, 72 N. H. 93, 54 Atl. take action is estopped from contesting the legality of such business. Grand Lodge A.

945.

3822

III. Equitable estoppel or estoppel in pais; waiver. f. By laches, silence, or acquiescence. O. U. W. v. Graham, 31 L.R.A. 133, 96 Iowa, | perpetrator of the fraud, or by other con592, 65 N. W. 837.

§ 80. As to forgery of signature. See also post, § 152 k.

a. One having notice of facts sufficient to put him on inquiry as to the forged indorsement by his attorney of a draft in his favor, at a time when the bank has assets of the attorney in its possession sufficient to protect itself, and who attempts to collect the money from the attorney, and fails to notify the bank until after it has parted with the assets, is estopped to look to the bank for reimbursement. Brown v. Peo

ple's Nat. Bank, 40 L.R.A. (N.S.) 657, 170 Mich. 416, 136 N. W. 506. (Annotated) b. One may by conduct, statements, or silence estop himself from claiming that his signature is a forgery; but before he can be estopped by mere silence, facts must be alleged and proven showing a duty and op: portunity to speak, that he knew or had reason to believe that the holder of the forged instrument would rely on his silence, and that the holder in fact did rely on his silence, and was in fact injured thereby Shinew v. First Nat. Bank, 36 L.R.A. (N.S.)

1006, 84 Ohio St. 297, 95 N. E. 881.

c. The receipting of subsequent bills without mention of previous checks does not estop the payee, who took the checks as payment, from setting up the forgery of indorsements thereon and collecting them, if it was not done with the intent to mislead, or with any expectation or reason to believe that the drawer would in consequence thereof do or omit to do anything with reference to the checks. Shepard & M. Lumber Co. v. Eldridge, 41 L.R.A. 617, 171 Mass. 516, 51 N. E. 9.

§ 81. Of legatee.

See also post, § 83 h; TRUSTS, § 35 a.

a. Silence of a legatee who had said she was to be paid $10,000, on the reply of the testatrix that $3,000 of it had been paid, is not an admission of such payment. Jaques v. Swasey, 12 L.R.A. 566, 153 Mass. 596, 27 N. E. 771.

duct operating by way of waiver or estoppel,
be prevented from successfully asserting a
right to a distributive share of the estate
Sammons
of the original wrongdoer.
Pike, 23 L.R.A. (N.S.) 1254, 108 Minn. 291,

120 N. W. 540.

V.

b. A defendant in a divorce proceeding, who accepts the amount awarded her, and, after a delay of six and one-half years, institutes a suit for divorce in another state, in which she is defeated, is estopped, after a considerable further delay until plaintiff has contracted another marriage, from attacking the divorce decree for fraud. Bidwell v. Bidwell, 2 L.R.A. (N.S.) 324, 139 N. C. 402, 52 S. E. 55.

c. Estoppel of a wife to contest the validity of a divorce decree absolutely void for lack of jurisdiction, which will prevent persons claiming under her from securing her distributive share of her husband's estate, is not shown by evidence that she left her husband, for cause, and did not seek to have the decree set aside during the sixteen years that elapsed before her death, and testimony of a single person that she once wrote a letter, which was not produced, claiming to have been divorced and still to own property as a feme sole, where it was not shown that she ever signed any deed as a single woman and it appears that she never married again, that she notified persons buying land of the husband that she was still his wife, and that until his death she claimed that she was his wife and insisted that the divorce was a fraud. Sammons v. Pike, 23 L.R.A. (N.S.) 1254, 108 Minn. 291, 120 N.

W. 540.

2. As to real property.

a. In general.

§ 83. Generally.
Estoppel of municipality by failure to as-
sert title, see ante, § 6.
Effect of estoppel generally upon title to, or
right in, land, see ante, § 46.
Waiver by, of breach of covenant or condi-
tion, see COVENANTS AND CONDITIONS,
§ 40.

b. A legatee is not estopped to question the legality of the incorporation of the estate by the trustees by receiving without objection a statement from them at a meet-Of ing called to ratify their acts, and by accepting her share of the stock and the dividends thereon for a few months, where none of the acts or circumstances were communicated to her, and she did not know them or understand her rights.

Garesche

v. Levering Invest. Co. 46 LR.A. 232, 146 Mo. 436, 48 S. W. 653.

§ 82. As to divorce decree. See also post, § 95 a.

a. Where a decree of divorce by a court within the jurisdiction of which the person seeking a divorce was a resident at the time involved, is voidable only because of fraud in connection with the service of the summons or in the conduct of the case, the victim of the fraud may, by unexplained delay, lasting until after the death of the

infant remaindermen who have failed to disaffirm, after majority, sale of land for debts made with their consent, see INFANTS, § 72 d.

Laches barring right to enjoin material departure from restrictive covenants, see INJUNCTION, § 31 f.

To

set up illegality of consideration for
deed, see JUDGMENT, § 61 d.

Laches as bar to action, see LIMITATION OF
ACTIONS, I. b, 2.

Holding another out as owner, see VENDOR
AND PURCHASER, § 73 k.
See also ante, §§ 22 i, 52 b; post, §§ 106 a,

116 d, 170 i.

a. Mere silence of one whose property rights sufficiently appear of record is no violation of duty. Davidson v. Jennings, 48 L.R.A. 340, 27 Colo. 187, 60 Pac. 354.

I. Equitable estoppel or estoppel in pais; waiver. 1. By laches, silence, or acquiescence. tion of a judgment against him, receiving the surplus, and demanding collateral which had been pledged for the payment of the debt. Fallon v. Worthington, 6 L.R.A. 708, 13 Colo. 559, 22 Pac. 960.

d. Where a man has no power to convey his homestead without joinder by his wife, failure promptly to move to set aside a deed made by him while she was insane, after k. A contract for the purchase of a lot her recovery, will not estop either from in a newly developed tract of land, condenying the validity of the conveyance. summated by the delivery of a deed to the Bushnell v. Loomis, 36 L.R.A. (N.S.) 1029, purchasers, who took subject to a mortgage 234 Mo. 371, 137 S. W. 257. and gave a second mortgage to secure an

e. To authorize a person to claim a for- unpaid portion of the purchase price, comfeiture of valuable property rights on ac-pleted after over three months of negotiacount of the violation of a condition upon tions with an agent of the vendor, during which they are granted, he must proceed to which time the purchasers had ample openforce it at once. He cannot remain pas-portunity to examine the property and sive for a long time after acts have trans-verify the representations of value which pired upon which others have relied in mat- had been given prior to the purchase, will ters of importance to them, and then insist upon the forfeiture in consequence thereof. Huston v. Bybee, 2 L.R.A. 568, 17 Or. 140,

III. Equitable estoppel or estoppel in pais; waiver. f. By laches, silence, or acquiescence. thereof by the holder of the legal title with- will not estop him, after the expiration of out making known his claim, is estopped ten years from the date of such constructhereafter to urge such claim as against tion, from asserting his property interest the purchaser. Pabst v. Ferch, L.R.A. in the highway and in the trees growing 1915E, 822, 126 Minn. 58, 147 N. W. 714. upon and in front of his premises. Dailey c. The silence of an administrator in v. State, 24 L.R.A. 724, 51 Ohio St. 348, 37 respect to any individual title or claim to N. E. 710. property sold by him in person as that of his intestate under order of the court estops him and those who claim under him from afterwards setting up a legal title which he had at the time of the sale. Lindsay v. Cooper, 16 L.R.A. 813, 94 Ala. 170, 11 So. 325.

c. One who proceeds, against the protest and objection of another, to erect an obstruction constituting a nuisance, cannot complain because the party protesting delayed ten days before bringing suit to restrain the nuisance, which had been completed in the meantime. Bischof v. Merchants' Nat. Bank, 5 L.R.A. (N.S.) 486, 75 Neb. 838, 106 N. W. 996.

d. Merely taking the acknowledgments of a conveyance by the grantor of his remaining property in which a wife taken § 87. Annexation of land to city. after the former conveyance is required to a. Where city authorities have, by ordijoin does not require the holder of an un-nance, extended the city limits so as to recorded deed of real estate to disclose his include an addition or tract of land, and deed, so as to estop him from asserting his the inhabitants thereof and all parties aftitle in case the wife joins in the deed with- fected thereby have acquiesced in the action out knowing of the former conveyance. of the city authorities, and have transacted Beechley v. Beechley, 9 L.R.A. (N.S.) 955, their business upon the theory that such ter134 Iowa, 75, 108 N. W. 762. ritory was included within the city limits, § 85. by judicial sale. a public-service corporation will not be allowed to question the validity of such action of the city council, in a collateral attack, after the lapse of five years. Hatch v. Consumers' Co. 40 L.R.A.(N.S.) 263, 17 Idaho, 204, 104 Pac. 670, affirmed in 224 U. S. 148, 56 L. ed. 703, 32 Sup. Ct. Rep. 465.

a. One who knows that land in which he has an undisclosed equity is advertised for sale under a decree entered in a suit to which he is a party, whether brought with or without his authority or knowledge, cannot, where he does nothing to secure an adjudication of such equity, assert any claim to the land as against the purchaser b. Acquiescence for nearly three years after confirmation of the sale and accept- in the annexation of one's land to a city ance of the benefit. Marshall v. McDer-will prevent his questioning the validity of mitt, L.R.A.1917C, 883, 79 W. Va. 245, 90 the annexation, at least when the attack S. E. 830. is based on mere irregularities and informalities not affecting_jurisdiction. Kuhn v. Port Townsend, 29 L.R.A. 445, 12 Wash. 605, 41 Pac. 923.

b. A party to a suit to enforce liens upon land, who suffers confirmation of a sale to be made under a decree therein without presenting for adjudication by proper procedure a title or equity claimed by him in such land, and who accepts the benefit of the proceeds paid by the purchaser, is estopped to set up any claim as against the purchaser. Marshall v. McDermitt, L.R.A.1917C, 883, 79 W. Va. 245, 90 S. E. 830. (Annotated) § 86. As to streets and obstructions

therein.

Estoppel of municipal or highway authori

ties, see ante, §§ 4-6.

§ 88. Estoppel of mortgagee.
See MORTGAGE, § 39.
§ 89. Of tenant.

a. A tenant was not estopped from setting up, against a corporation, a verbal lease made by an agent and officer of the corporation, since deceased, by the facts cuted to the tenant from the corporation that a prior written lease had been exeby such agent, and had been deposited among the muniments of the company, and that the other officers of the corporation knew only of such written lease, and had, until after suit brought against it on the verbal lease, dealt with the tenant according to the written lease, without objection from him. South Baltimore Co. v. Muhlbach, 1 L.R.A. 507, 69 Md. 395, 16 Atl. 117.

a. After twelve years' acquiescence, in common with the city and the general public, in the control of a street by park commissioners, a railroad company will not, in a proceeding by them to prevent its placing tracks in the street, be heard to question their authority on the ground that the con- b. The lessee under a lease containing sent of the city and abutting owners to a recital that there are "six salt wells" on their control was not technically regular. the premises is estopped, after he has acChicago & N. W. R. Co. v. West Chicago cepted and acted thereon for more than Park, 25 L.R.A. 300, 151 l. 204, 37 N. E. two years, with ample opportunity of knowing the contents of the lease and the charb. The simple fact that an abutting land-acter and quality of the property leased, owner did not, at the time a telegraph line to claim that there are only five wells inwas built in the highway, although aware stead of six. Clifton v. Montague, 33 L.R.A. of the purpose to build, object and prevent 449, 40 W. Va. 207, 21 S. E. 858. its construction by injunction proceedings, c. A lessee is not estopped to set up the

1079.

370.

III. Equitable estoppel or estoppel in país; waiver. f. By laches, silence, or acquiescence. lessor's breach of a covenant in the lease, to | protest or objections to the improvement of place a building in a condition suitable for a stream by deepening and widening and conducting a specified business, by reason of straightening the same, and cutting away which such building is not only unsuitable, timber along the banks thereof, by a combut also unsafe and dangerous, by remain-pany that represents to him that it is acting in possession for some time and paying ing under a license and franchise from the rent, where he did not know of the defects state, is not estopped, by his inaction or in the building at the time of taking pos- quiescence, from thereafter maintaining an session, and remained in possession after action against the company for damages discovering them because of the lessor's caused in the overflowing of his land, and promise and attempts to repair, until the in- depositing logs and timber and débris therecreasing defects in the building rendered on, which is directly caused by the cutting the premises unsafe. Nelson v. Eichoff, away of the timber, and the weakening of L.R.A.1916F, 1063, Okla., 158 Pac. the banks, and the erection of splash dams above his land, whereby the volume of d. A tenant who, although in the actual water in the stream is greatly augmented possession and occupancy of land, stands and a flooding is caused. Mashburn v. St. by and participates in a sale of the land by Joe Improvement Co. 35 L.R.A. (N.S.) 824, the holder of the legal title, and fails to 19 Idaho, 30, 113 Pac. 92. (Annotated) give the purchaser notice of rights which § 91. As to operation of elevated railare not disclosed by the record, or are not road. apparent from an inspection of the premises, is estopped by his silence from subsequently insisting upon the right to remove fixtures placed by him upon the land under an agreement for removal, where such fixtures are in nature and character apparently permanent improvements and such as ordinarily may be found attached to and a part of real property. Pabst v. Ferch, L.R.A. 1915E, 822, 126 Minn. 58, 147 N. W. 714. § 90. As to water and water rights. By permitting improvements or expenditures, see post, § 98.

a. Delay for five years by the owner of property abutting on a street through which an elevated railroad has been erected, before bringing suit for the damage inflicted upon his property by such road, and his patronage of the road as a passenger, will not defeat his right to recover such damage. Abendroth v. Manhattan R. Co. 11 L.R.A. 634, 122 N. Y. 1, 25 N. E. 496. b. No estoppel against an injunction to restrain continuing trespasses by the operation of an elevated railroad in a street in front of plaintiff's premises arises out of his mere delay to bring suit for eleven years a. One engaged in running logs down a after the original trespass, and his occasionstream, who, instead of providing sorting al riding on the road as a passenger though booms and dams of his own, relies for many his only protest against the construction of years upon facilities provided by another, the road was by subscription to pay counsel will be estopped from maintaining an action to prevent it. Galway v. Metropolitan Elev. against the latter for an unlawful obstruc- R. Co. 13 L.R.A., 788, 128 N. Y. 132, 28 N. tion of the stream, because of obstruction E. 479. and delays in the delivery of his logs. Nester v. Diamond Match Co. 52 L.R.A. 950, 105 Fed. 567, 44 C. C. A. 606.

ac

b. Where the owner of land has quiesced for some years in sales and transfers of a ditch and water right, he thereby waives a condition in the agreement under which the ditch was constructed, that it should not be sold, but should revert to him. Huston v. Bybee, 2 L.R.A. 568, 17 Or. 140, 20 Pac. 51.

§ 92. As to railroad company.

See also post, §§ 96 i, k, 97 c; INJUNCTION, § 160 b.

a. One who has granted a right of way to a railroad company on condition that it complete its road within a specified time is not estopped from enforcing the condition by permitting the railroad company to enter and construct its grade, if that is done within the time specified. Oregon R. & Nav. Co. v. McDonald, 32 L.R.A. (N.S.) 117, 58 Or. 228, 112 Pac. 413.

c. A riparian owner is not estopped to use the water for irrigating purposes by failing to object to the diversion of water b. Permission given to a railroad comby a lower appropriator. Hargrave v. Cook, pany to use and occupy a right of way for 30 L.R.A. 390, 108 Cal. 72, 41 Pac. 18. ten years across a lot does not estop the d. Delay in seeking an injunction against diversion of water will not prevent relief from further injury. Rigney v. Tacoma Light & Water Co. 26 L.R.A. 425, 9 Wash. 576, 38 Pac. 147.

owner, at the end of the ten years, from denying the right of the railroad company to condemn the land for such right of way. Kyle v. Texas & N. O. R. Co. 4 L.R.A. 275, 3 Tex. App. Civ. Cas. (Willson) 518. e. The use, for about two years, of un- c. Although acquiescence of a landowner natural floods, created by a ponding dam in the construction of a railway on his land of an upper riparian owner does not estop would preclude him from thereafter maina riparian owner from objecting to the con-taining ejectment and from obtaining an intinued use of the stream in that manner. junction, it does not devest him of the title Monroe Mill Co. v. Menzel, 70 L.R.A. 272, to the property taken, and is not incon35 Wash. 487, 77 Pac. 813. sistent with an assumption on his part that

f. A riparian proprietor who makes no the company would pay him a reasonable L.R.A. Comb. Dig.-240.