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Opinion of the Court.
think father was present. The result of the conversation was that Mitchell made and delivered (I saw the paper then) his deed releasing his interest to Robbins. This was before the trade was concluded.” He further testified: "I did not see Mitchell or his wife execute any papers, but did see, in Wismer's hands, a paper purporting to be a deed from Mitchell and his wife, and which Wismer said was a satisfactory release of his interest. I don't recollect whether I saw the inside of it or not. Don't remember whether I had it in my hands or not."
Lewis Bunn testified, in substance, that Mitchell spoke to him about being tired of fighting about the land, and that so far as he was concerned, he was willing to make a quitclaim deed and quit fighting. "We were manufacturing plows, and he was doing business for us. He said he had some $200 or $300 costs to pay in the land litigation. I settled some bills of costs. Can't tell whether there came a bill for his costs.
* There was a conversation between us, (Mitchell and I,) that he must not be offended with me on account of
any complication between him and my son. He said he was tired of fighting the land; that he was willing to make a quitclaim deed to any person they wished it to be made to. That was the purport of it.”
On the other hand, Elizabeth Mitchell, widow of John T. Mitchell, testified, that her husband told her that he had entered the land known as the Bunn pre-emption. “Soon afterwards another man built a shanty on it. Forget his name. There was trouble about it. Moore had litigation and Mitchell had litigation, but he dropped it to see how Moore would come out; then he would know what to do with his. Heard my husband say, not more than two weeks before he died, that he expected to get the land. Never said anything to me about liaving made a deed to this land, or that he did not own it. I never joined with him in making a deed to this land. We made no deed.” On cross-examination she testified: "I have
Opinion of the Court.
an interest in this suit, in getting it for my children. Don't know whether it will come to me or my children. Husband entered a great deal of land. Sold some. Don't remember every deed I have signed. When I signed deeds I knew what I signed. Can't tell how many I have signed. Can't guess. Can't give a list of lands for which I have made deeds.”
William T. Mitchell testified that he heard his brother, John T. Mitchell, often speak of this land, and claimed to own it. He said he expected to gain the land.
John E. Rasbach testified that he had heard Mitchell talk about the land; that he said he would wait and see how Moore came out with his claim before he would push his (Mitchell's) claim. The last time he heard him speak about it was in the summer prior to his death.
John H. Mitchell, a son of said John T., testified that his father always claimed to own the land. He spoke of it a month before he died, and said he expected to get the land, that Moore had advised him to wait and see if he gained his case.
Clifton H. Moore testified, that about the time Robbins was buying the Bunn note, Mitchell came to him and said that Bunn, or Bunn and Robbins, wanted him to release or quitclaim to them, and wanted to know what effect that would have upon his getting his money back from the governmentthe money he had advanced for the entry of the land; that the witness told him if he conveyed to any one else he could not get his money; that Mitchell assured the witness he would not convey the land without consulting him, and that he always claimed the land.
We have thus given the evidence substantially at length, as it is found in this record. We can not say that it is sufficient to justify this court in finding differently from the court below, upon the question of the execution and delivery of the deed from Mitchell. It will be observed that Robbins says the deed was to Thomas J. Bunn. Thomas J. Bunn, while having no
Opinion of the Court.
recollection of having examined the deed, thinks it was made to Robbins or to Lewis Bunn. Lewis Bunn does not speak of having seen the deed at all. Neither of the Bunns corroborates Robbins as to Wismer's advice to get the deed or to destroy the same. If Mitchell had, in fact, made such a deed, it is strange that any lawyer should advise its destruction, and that Mitchell should have claimed the land up to the time of his death. It is not shown or pretended that there was any reason for the destruction of the deed, or that there were liens against the property of Mitchell which would make it desirable to avoid acquiring title through him. Again, Robbins testifies that the deed was signed by Mrs. Mitchell, while she positively denies having executed any such deed. It is clear, however, from the testimony of Robbins, the two Bunns, and Moore, that the subject matter of the release or conveyance of Mitchell's claim was considered and talked over between Mitchell, Robbins and the Bunns, at about the time of the purchase by Robbins.
While the evidence supporting the contention of Robbins is not so clear, consistent and convincing as to justify us in holding that Mitchell made and delivered the deed mentioned by Robbins, yet it is sufficient, we think, to show that Mitchell did inform and assure Robbins that he had given up his claim upon the land, and for Robbins to go on and purchase the same of Bunn. The testimony of Robbins to this fact is clear and explicit, and is fully corroborated by the testimony of the two Bunns, and to some extent, at least, by that of Moore, as well as by the circumstances of the case. The contest before the government land office had been decided by the Secretary of the Interior adversely to Mitchell, and he was unwilling to further litigate his claim. The testimony of the Bunns fully substantiates this fact. There can be no question, from the testimony of Robbins and the two Bunns, that he was willing to convey his interest in the land, if he had any, if Bunn would pay the costs already made in the contest before the depart
Opinion of the Court.
ment, and Lewis Bunn testifies that he paid such costs, and there is no evidence contradicting him. His conference with Moore shows, as already stated, that his conveyance of his interest, whatever it might be, had been the subject matter of negotiation between himself and Robbins or Bunns; and if he did not convey, as we must hold, it was because he feared that thereby his right to recover back the money advanced to the government upon his attempted entry of the land might be defeated. It is barely possible that this suggestion of Moore, that a conveyance by Mitchell would defeat this right of repayment by the government, may furnish a clew to the destruction of the deed by Mitchell, if one was made. It would be readily understood that a purchase by Robbins, after complete and full disclaimer of any interest by Mitchell, would operate by way of estoppel upon him to assert his title against one who had been induced to purchase by reason thereof, and that therefore the deed would operate simply to the prejudice of Mitchell, without really being of substantial benefit to Robbins. But, as we have said, while there is a strong probability that a paper purporting to be a deed was present at the time of the trade between Thomas J. Bunn and Robbins, we can not, for that reason, as already stated, reverse the decree.
It is, however, said, that the element of fraud in the state. ments made by Mitchell to Robbins, and by which he was induced to purchase, is wanting,—that they were made in good faith, with no improper motives, and that the doctrine of equitable estoppel does not therefore apply. In our judgment the testimony establishes the fact that Robbins purchased relying upon the disclaimer by Mitchell of any interest in this landof his willingness and desire to no farther contest the title of Bunn. It is shown, and not disputed, that Robbins knew of the agreement by which Bunn was to pay the costs of litigation, and that Mitchell was to waive and release any interest in the land, and quitclaim at any time, or to such person as the Bunns might desire, any interest he might have therein.
Opinion of the Court.
It is a misapprehension to suppose that the doctrine of equitable estoppel arises only when the representation has been fraudulently made. It is true, that if the element of fraud is wanting there can be no equitable estoppel; but it is well settled that a fraudulent result suffices for the application of the doctrine. In Davidson v. Young, 38 Ill. 145, LAWRENCE, J., quotes from 2 Story's Eq. 1543, the rule, as follows: "The doctrine of estoppels in pais, or equitable estoppel, is based upon a fraudulent purpose and a fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel,—as, if both parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely upon his own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth.” In Flower v. Elwood, 66 Ill. 447, the rule is thus stated: "To conclude a party by an equitable estoppel or an estoppel in pais, there must be a fraudulent purpose of the party against whom it is applied, or his acts must produce a fraudulent result; and there must be a change of conduct induced by the acts of the party estopped, to the injury of another, in order to prevent him from showing the truth. If the element of fraud or injury is wanting, there is no estoppel.” To the same effect, see Chandler v. White, S4 Ill. 435, and Mayer v. Erhardt, 88 id. 452.
In Hill v. Blackwelder, 113 Ill. 283, this court said: “It is said that there can be no estoppel if the element of fraud is wanting, and that there was here no fraudulent intention on the part of Harris. No fraudulent intention is required. It is enough if there would be a fraudulent effect from the evidence attempted to be set up. To allow Harris to invalidate this redemption and execution sale, as he here seeks to do, would be to permit the perpetration of a gross fraud and injustice upon Dresser. To prevent this, arises the equitable estoppel.” In the same case it was held, that where the foundation of the estoppel is in silence, and omission to give notice of existing