Smith v. Penny

By the Court, Rhodes, J.: The point is presented by the plaintiff, that the Court erred in permitting Bundle & Woodward to intervene and appear in the action as defendants. The record does' not disclose'the mode in which they were brought into the action; and even if there had been any irregularities or errors in that respect, the plaintiff cannot now avail himself of them, as'the record fails to show that he took any objection to that course of proceeding, or the order or decision of the Court in the matter. After having gone to trial upon answers filed by the interveners, without any objection on [165]his part, it is too late to raise the objection for the first time in this Court.

The principal point on which the plaintiff relies, is that the Court erred in not holding that Samuel Gilmore, under whom the intervenors claim title, was estopped from setting up title to the premises, because at the timé when he, as the attorney in fact for Thomas Gilmore, executed the deed to the trustees—under whom the plaintiff claims title—he held the title which Thomas Gilmore held when he executed the 2)0wer of attorney. The answers of the intervenors consist of general denials and pleas of the Statute of Limitations. The intervenors had judgment, and the appeal is from the judgment alone. The findings are silent upon the issue of the Statute of Limitations; and in accordance with the rule so often announced in respect to implied findings, we are compelled to presume that upon that issue, the Court found for the intervenors.

The same rule obtains in respect to the matter of the estoppel. The fact that Samuel Gilmore held the deed of Thomas Gilmore, at the time when he, as the attorney in fact for Thomas Gilmore, executed to the trustees the deed, is not of itself sufficient to constitute an equitable estoppel as against Samuel Gilmore. In Biddle Boggs v. Merced Mining Company, 14 Cal. 367, it was held, that in order to apply the principle of equitable estoppel, with respect to the title of property, it must appear—“ First, that the party making the admission by his declaration or conduct was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such carelessness and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.”