his conveyance of the mortgaged premises to the mortgagee, the conveyance must be intended as a payment of the debt. Robertson v. Wheeler, 162 Ill. 566 (44 N. E. Rep. 870). Where an assignee of an undivided interest in a mortgage debt subsequently purchases the premises from the mortgagor and assumes the payment of the debt his interest in such debt becomes merged in the legal title, Ehrman v. Alabama Mineral Land Co., 109 Ala. 478 (20 So. Rep. 112); but where a mortgagee acquiring title to the mortgaged premises assumes and agrees to pay the mortgage debt, and from the transaction it is evident that the intention is to continue the lien of the mortgage, no merger ensues as between the parties, or against a bona fide purchaser of the notes secured by the mortgage, Mathews v. Jones, 47 Neb. 616 (66 N. W. Rep. 622).

ESTOPPEL.

EPITOME OF CASES.

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Sec. 294. Title by estoppel-After acquired title. Where the purpose of the grantor as expressed in his deed is to convey the land itself, and not merely his right, title, and interest therein, and the grant is followed by a covenant of general warranty "against the lawful claim or claims of all persons whomsoever," such grantor, his heirs, and assigns are estopped from asserting an after acquired title against the grantee, his heirs and assigns, although the deed does not, in so many words, purport to convey to the grantee an indefeasible estate in fee simple absolute." Armstrong v. Portsmouth Bldg. Co., 57 Kan. 62 (45 Pac. Rep. 67). Prospective heirs of land are not estopped by their deed of it with full covenants of warranty to assert, as against other grantees, title acquired by them by descent from their ancestor who had held adverse possession long enough to acquire title. Doolittle v. Robertson, 109 Ala. 412 (19 So. Rep. 851). A deed of a trustee executed with special warranty as such in which the cestui que trust joins simply to show that the trustee had

authority to convey, without making any warranty or affirming that she is seized of any particular estate therein, does not estop such cestui que trust from asserting an after acquired title in the property. Nye v. Lovitt, 92 Va. 710 (24 S. E. Rep. 345). It is well settled that a deed of conveyance containing covenants of warranty will, as a general rule, estop the grantor from asserting an after-acquired title, as against an imperfect title conveyed by him to his grantee. And such after-acquired title by the grantor inures to the benefit of the grantee, in perfecting the imperfect title conveyed. Johnson v. Bedwell, 15 Ind. App. 236 (43 N. E. Rep. 246). Title acquired by descent by a warranting grantor passes to his grantee. Johnson v. Brauch, 9 S. Dak. 116 (68 N. W. Rep. 173; 62 Am. St. Rep. 857).

Sec. 295. Recitals in deeds. One who makes solemn representations in an instrument in the nature of a release or deed, will be estopped to assert the contrary as against one who has relied upon such representations even though the latter might have ascertained their falsity. The measure of the operation of an estoppel is the extent of the representation made by one party and acted on by the other. The estoppel is commensurate with the thing represented and operates to put the party entitled to its benefit in the same position as if the thing represented were true. Anderson v. Phlegar, 93 Va. 415 (25 S. E. Rep. 107). Parties claiming under a deed are estopped to deny its recitals as to the relationship of the parties to it. Despain v. Wagner, 163 Ill. 598 (45 N. E. Rep. 129). One seeking to foreclose a mortgage executed to him by a corporation cannot deny its corporate existence. Gow v. Collins & Parker Lum. Co., 109 Mich. 45 (66 N. W. Rep. 676). A mortgagor is estopped from claiming that the mortgagee or his administrator has no beneficial interest in the mortgage. Stevens v. Shannahan, 160 Ill. 330 (43 N. E. Rep. 350). A recital in a deed that the land conveyed contains so many acres more or less," does not estop the vendee from setting up fraudulent representations of the vendor as to the quantity of the land conveyed in defense to a foreclosure of the consideration mortgage, and being allowed an abate

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ment therefor.

McMichael v. Webster, N. J. Eq.

(35 Atl. Rep. 663).

Sec. 296. Estoppel in pais-General principles. The essential elements of estoppel by conduct are inter alia that there must be a concealment of a material fact, and that the person from whom it is concealed must have been ignorant of the truth of the matter, and must have been induced to act because of such concealment. Shannon v. Timm, 22 Colo. 167 (43 Pac. Rep. 1021). Harding v. Montague, Tenn. (36 S. W. Rep. 958). One who relies upon the doctrine of estoppel with respect to the title to real property, must show that he was influenced by the conduct or declaration of another to his injury, and that he himself was not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties or both have the same means of ascertaining the truth, there can be no estoppel. Mountain Lake Park Ass'n v. Shartzer, 88 Md. 10 (34 Atl. Rep. 536). Citing, Brandt v. Iron Co., 93 U. S. 337; Alexander v. Walter, 8 Gill, 239 (50 Am. Dec. 688); Reynolds v. Insurance Co., 34 Md. 280 (6 Am. Rep. 337). An administrator is estopped to repudiate a sale of timber made by him without authority of court where it was made for a fair price which has been paid to him and appropriated to the benefit of the estate. Davis v. Davis v. Ford, 15 Wash. 107 (45 Pac. Rep. 739). A proposition made for the purpose of compromising litigation and not acted upon will not constitute an estoppel. Hewitt v. Mayor of Pulaski,

Tenn. (36 S. W. Rep. 878). It is held that an equitable estoppel should not work any further than is reasonable and fairly within the intendment of the parties. A person is estopped only so far as his words or conduct have influenced another. Geiler v. Littlefield, 148 N. Y. 603 (43 ̧ N. E. Rep. 66). There can be no estoppel in pais created in favor of a person by the acts of another when no acts are done or expense incurred by such person in consequence of the acts or declarations of such other. Edwards v. Upham, 93 Wis. 455 (67 N. W. Rep. 728). Acts committed by one when in ignorance of his rights cannot create an estoppel against him

in reference thereto. Weaver v. Peasley, 163 Ill. 251 (45 N. E. Rep. 119; 54 Am. St. Rep. 469). The doctrine of equitable estoppel is equally available in an action at law as in equity. Tracy v. Roberts, 88 Me. 310 (34 Atl. Rep. 68; 51 Am. St. Rep. 394).

Sec. 297. Estoppel in pais-Accepting benefits. It is a general rule that where benefits are awarded to the owner of land in proceedings to condemn, an acceptance of the sum awarded will preclude the owner from prosecuting an appeal. Holland v. Spell, 144 Ind. 561 (42 N. E. Rep. 1014); Allen v. Colo. Cent. R. Co., 22 Colo. 238 (43 Pac. Rep. 1015). A remainderman may be estopped from assailing a conveyance of the fee by the life tenant by receiving the proceeds of such sale and acquiescing in the possession of the grantee. Town of Ansonia v. Cooper, 66 Conn. 184 (33 Atl. Rep. 905). Where with full knowledge of all the facts, and in the absence of fraud or mistake of fact, one receives the benefit of the purchase money arising from a judicial sale which is either void or voidable, he is estopped to recover the property without reimbursing the purchaser. Irons v. Harbison, 112 Cal. 260 (44 Pac. Rep. 572). The grantees by warranty deed of purchasers of land at a foreclosure sale, who, after the mortgagor has obtained a decree setting aside the foreclosure decree, have received the money due under the mortgage, paid into court by the mortgagor, are estopped from maintaining an action on the covenants of warranty. Smithson Land Co. v. Brautigam, 14 Wash. St. 89 (43 Pac. Rep. 1096).

Sec. 298. Silence when one should speak. In order that an estoppel may arise out of a party's silence there must be a duty to speak. One who makes no objection to the construction upon the land of another of what subsequently becomes a nuisance is not estopped to maintain proceedings for its abatement after it has become actually injurious to him. Matthews v. Stillwater Gas & Elec. L. Co., 63 Minn. 493 (65 N. W. Rep. 947). One who hears of the declarations of another, not made to him, nor intended to be communicated to him, can not set up such declarations to estop the person making such declarations, as to any right the latter may have

concerning the matter in dispute. McLaren v. Jones, 89 Tex. 131 (33 S. W. Rep. 849). Citing, Bank v. Todd, 47 Conn. 217; Morgan v. Spangler, 14 Ohio St. 102; Maguire v. Selden, 103 N. Y. 642 (8 N. E. Rep. 517); Durant v. Pratt, 55 Vt. 270. Where, upon the death of a lessor, one having a right to receive the rents upon her repudiating a deed made by her to the lessor, fails to do so and remains silent, after notice being given to her, the rent being paid to the lessor's heirs, she will be estopped to maintain an action against the lessee to repay such rents to her. Reckelshaus v. Borcherling, 54 N. J. Eq. 344 (34 Atl. Rep. 977). One whose interest in a mortgage does not appear of record may, by his silence when he should have spoken, during the pendency of certain proceedings which resulted in a receiver's sale of the premises and purchase thereat by another in good faith who believed that such sale extinguished the lien of the mortgage, estop himself from subsequently maintaining an action to foreclose the mortgage as the equitable owner thereof as against subsequent, good faith purchasers and incumbrancers. Brown v. Union Depot St. Ry. Co., 65 Minn. 508 (68 N. W. Rep. 107).

A

Sec. 299. Estoppel in pais-Particular cases. landowner is not estopped to enjoin the laying of a pipe line in the highway abutting his property, by the fact that he has acquiesced in the laying of other portions of the same pipe line upon other highways and upon which his land abutted. Consumers' Gas Trust Co. v. Huntsinger, 14 Ind. App. 156 (42 N. E. Rep. 640). Where one purporting to act as the agent of a mortgagee having a mortgage upon two lots executes, of record, in the name of mortgagee, a release of said mortgage as to one of the lots, and subsequently a third person acquires a lien on such lot, the original mortgagee remaining silent with full knowledge of all the facts is estopped to question the authority of the person making the release. Gore v. Royse, 56 Kan. 771 (44 Pac. Rep. 1053). Where a vendor in an executory contract for the sale of land the purchase price of which has not been paid becomes administrator of his vendee and at his sale as such sells the land as though the decedent had an absolute title, he is estopped, as against