
    Whitaker against Williams.
    An assignment under the statute of 1828 against fraudulent conveyances, if not executed iii the manner therein prescribed, is utterly void as against creditors of the assignor ; but the want of any of the requisites prescribed by that act, would not invalidate it, nor prclude a couit of equity from reforming it, as against the assignor himself.
    Though where the owner of property stands by, and knowingly suffers a stranger to sell it, in his own name and as his own property, without objection ; and another person is thereby deluded into the purchase of it; the owner, by a just and salutary principle, is estopped to claim title afterwards to such property ; yet to render that principle applicable, the person to be estopped must have had knowledye of his rights; and it is an emential part of the principle itself that his conduct must have superinduwd the action of the purchaser
    Therefore, where A made an assignment of property for the benefit of his creditors under the statute of 1828, which was defective in an escential requisite; and the assignee, by order of the court of probate, and with the assent and approbation of A, sold, at public suction, such property to B; hut the assent and approbation of A were given under an erroneous view of his rights, the facts were equally well known to him and to B, and B was not thereby misled, or induced to act difihrently from what he otherwise would have done; C having afterwards attached the property as still the property of A, it was held, (list under these circumstances, and as the title claimed by B, was derived, not from A, bat from the assignee alone, the conduct of A regarding the sale to B, did not, by estoppel in pais, validate such sale, or vest a title in B; consequendy, C's attachment would hold the property. [Two judges dissenting.]
    This was scire-facias in a process of foreign attachment, demanding of the present defendant the amount of a judgment of the county court, rendered in that process, in the plaintiff's favour against George W. Clark. The defendant pleaded, that he was not the debtor of Clark; on which issue was joined. On this issue, the cause was tried, at Norwich, March term, 1849.
    
      New-London,
    
    July, 1849.
    The indebtedness which the plaintiff claimed as due from the defendant to Clark, consisted of a judgment of the superior court, rendered at its term in March, 1848, in a suit brought in the name of Clark against the defendant, for mutilating the model of a propeller ; the sums for which such judgment was rendered, being 75 dollars, damages, and 40 dollars, 38 cents, costs. The circumstances under which that suit was instituted and prosecuted, are correctly stated in a bill in chancery, brought by Edwin Gavit and others, against Horace Whitaker, (the present plaintiff,) Jedediah Williams, (the present defendant,) and said G. W. Clark, and determined, in this court, on a writ of error, July term, 1847. See Whitaker & al. v. Gavit & al. 18 Conn. R. 522, 3. The present scire-facias is the one mentioned in that case, (p. 523.) as then pending. It was agreed, that after the service of this scire-facias, the defendant had, pursuant to the statute, (p. 117, 18. § 234.) given notice to Gavit and others of the pendency of such suit against him, and requiring them, as they were the persons who claimed to be the owners and entitled to the benefit of said judgment, to defend him in this suit; and Gavit and others having given security, as by law required, had assumed upon themselves the defence of this cause.
    Upon the facts stated in the bill of Gavit & al. v. Whitaker & al., which were so found to be true, the court decided, that the plaintiff was not entitled to recover in this suit; and he thereupon moved for a new trial.
    
      E. Perkins, in support of the motion,
    contended, 1. That Gavit and others, the real defendants, had no legal title to the debt sought to be recovered by this scire-facias; the legal title being in G. W. Clark, in whose name the judgment was recovered.
    2. That they had no equitable title. Whitaker & al. v. Gavit & al. in err. 18 Conn. R. 522. The judgment in that case is between the same parties as in this, on the same facts and concerning the same subject matter, and by a court having conclusive jurisdiction over both the subject matter and the parties. That judgment is an estoppel to any further litigation between these parties on the subject matter involved therein. The record of the bill and decree of the superior court, in that case, constitutes the special finding of the facts in this. All that the bill alleged, in that case, was, that the plaintiffs had an equitable title to this judgment. The only question decided, was, that they had no such title as against this plaintiff.
    3. That there was no error in the former judgment between these parties. The real defendants pretend no title, except one derived from G. M. Eaton, the trustee, substituted, by the court of probate, for E. Chappell, who had declined. But no title was conveyed to the trustee, and the court of probate had no jurisdiction over the matter, because there was no assignment of the property in question, in writing. Stat. 363. § 66. The assignment being by parol and in trust for creditors, is, under our statute, as against the creditors of the assignor, to “ be deemed and adjudged fraudulent and utterly void.” The plaintiff was a creditor of Clark, at the time of the assignment. Clark’s assent to and approbation of the sale, by Eaton, as such trustee, and the purchase by Gavit and others, whatever may be the effect thereof, as against Clark and Eaton, cannot affect the creditors of Clark. His assent to and approbation of the acts of Eaton, under this fraudulent conveyance, are but a persistence in the original fraud.
    
      Strong and Rockwell, contra,
    contended, 1. That the purchase of the claim against Williams for the mutilation of the model, was a valid purchase, so far as G. W. Clark was concerned, and binding on him. In the first place, the court find, that Clark, in his original assignment for the benefit of his creditors, designed and intended that this claim should be included and conveyed to the trustee. Secondly, it is expressly found, that the sale at auction by the trustee, was made, not only by order of the court of probate, but with the assent and approbation of Clark. Thirdly, Clark, under these circumstances, could not deny the right of the purchasers, or set up any claim in himself, or controvert the validity of the assignment; but would be forever estopped from so doing. Brown v. Wheeler, 17 Conn. R. 345. 353, 4. 
      Roe v. Jerome, 18 Conn. R. 138, 153. Bushnell v. Church, 15 Conn. R. 419. Pickard v. Sears, 8 Adol. & Ell. 469. (33 E. C. L. 115.) Gregg v. Wells, 10 Adol. & Ell. 90. (37 E. C. L. 54. 58 ) Welland Canal Company v. Hathaway, 8 Wend. 480. 483. Davison v. Franklin, 1 B. & Adol. 142. (20 E. C. L. 363.)
    2. That Whitaker, the present plaintiff, stands on no higher ground than Clark; and if the assignment is good against Clark, it is equally valid against Whitaker. He had knowledge of the whole transaction. And not only this, but it also appears, that there was an unlawful purpose-an “an unjust design”-on his part,  To allow him to succeed now, would operate as a gross fraud upon the purchasers of this claim, who, after purchasing it and prosecuting it at great expence, would be deprived of the benefit of it, by the man who had contested their claim,  and who, after it is established, seeks to appropriate the fruits of the judgment to an old debt of Clark to him.
    
      
       See 18 Conn. R. 523. where the statement is abridged from the record ; the purposes of that case not requiring a fuller statement. In the bill then before the court-the averments of which were found to be true-it was averred, that Whitaker prayed out his writ of scire-facias, with the unjust design thereby to deprive the purchasers of the claim of the benefit of the judgment, which they had recovered, in the name of Clark, against Williams,
      
    
    
      
       Here again allusion is made to a fact stated in the bill of Gavit & al. v. Whitaker & al., which does not appear in the concise statement in 18 Conn. R. 522, 3. viz. that Whitaker had united with and assisted Williams, in the suit brought by Gavit and others, in the name of Clark, against him, Williams.
    
   Storrs, J.

The question presented in this case, is, whether the plaintiff, as against Gavit and his associates, is equitably entitled to the money due on the judgment recovered in favour of Clark against the defendant.

This court decided, in Whitaker v. Gavit & al. 18 Conn. R. 522. that, as the claim for which that judgment was rendered, was not in any manner described in the assignment made by Clark to Chappel, then in question, (which is the same assignment mentioned in the record in evidence in this suit,) although it was intended and agreed by Clark, that it should be included therein and conveyed to the trustee, and was omitted so to be embraced, by mistake of the draftsman, such claim could not in equity, as to the creditors of Clark, of whom the defendant in that suit and the plaintiff in this was one, be deemed to be a conveyance to the trustee ; that the court of probate, therefore, had no jurisdiction over it; and that no equitable title to the claim passed thereby to the trustee, nor consequently, to Gavit and company, the plaintiffs in that suit, who had purchased it from him. We held, that as the statute of 1828 against fraudulent conveyances, expressly required that assignment, in order to be, valid against them, to be in writing and lodged for record in the probate office, the ordinary principles which are adopted in chancery, as to the correction and reformation of mistakes in instruments, did not apply to the case ; and on that ground, refused to reform that assignment according to the intention of Clark, or to enjoin the plaintiff in the present case from prosecuting this suit.

That act, in terms, makes all assignments of property contemplated by it, if not executed in the manner therein prescribed, fraudulent and utterly void as against the creditors of the assignor. It does not, however, affect the validity of conveyances as between the parties to them, but leaves them, in this respect, as they were at the common law : and therefore, such conveyances, notwithstanding they should not be in writing, or want any of the other requisites prescribed by that act, would not be invalidated by it, as against the assignor. And if, as to him, it should become necessary to reform the instrument of conveyance in consequence of a mistake attending its execution, the ordinary principles on which such relief is granted, by courts of equity, would apply. But such relief would not be granted against his creditors, for the obvious reason, that as to them, the instrument is rendered fraudulent and void. They would claim against, and not under, the instrument.

If therefore the only title of Gavit and company to the claim in question, is derived from a sale thereof from the trustee of Clark under the assignment, although it might be good as to Clark, it would be void as to the plaintiff, who claims here as his creditor, by an attachment of it; because, as against him, the trustee acquired no title to the claim, by the assignment.

There was no evidence, on the trial of the cause, to prove, nor is it claimed by the counsel for the defendant, that, there was any direct transfer made, or attempted to be made, by Clark to Gavit and company, of the claim in question against the defendant. If, independent of the assignment, there had been such a transfer, it would have vested in Gavit and company a valid title to the claim, not only as against Clark, but also as to the plaintiff, although the transfer of it were not in writing, if the nature of the property was such that it could be conveyed without writing ; because, as it would not be a conveyance in trust, the statute of 1828 would not, neither would the common law, require a written conveyance. The evidence, however, shews only that Clark assented to and approved of the sale of the claim made by the trustee to Gavit and company, which was professedly made by the trustee only, under and by virtue of the power, authority and interest vested in him as such trustee, and by virtue of the orders of the court of probate, authorizing him thereto ; and that the suit was instituted, by Gavit and company, as the owners of the claim, against Williams, for the recovery of the claim, in the name of Clark, (in whose name only the suit could be brought,) with Clark’s knowledge and consent.

The defendant, however, claims, that, conceding that no title to the claim passed to Gavit and company, through the assignment, or by reason of any direct transfer of it to him by Clark, the assent and approbation of Clark to the sale of it by the trustee, to Gavit and company, and his consent to the suit brought to recover it, operated as an estoppel against Clark, and had the effect of precluding him from disputing the validity of the sale, or denying that the trustee had power to transfer it; and that the plaintiff, not having attached it until after such sale, is in no better condition than Clark to dispute the sale. It is insisted, that the case is within the principle on which a sale of property is held valid against the true owner, where he stands by and knowingly suffers a stranger to sell it, in his own name, as his own property, without objection; where the silence of the owner and concealment of his title are deemed equivalent to an assertion, that he has no claim to the property ; and it would be a fraud on the purchaser, to permit the owner to delude him into the purchase, and afterwards defeat the right which the purchaser supposed he had acquired under it. We have often had occasion to recognize and apply this principle as one of a most just and salutary character. Brown v. Wheeler, 17 Conn. R. 345. Kinney v. Farns-worth, Id. 355. Roe v. Jerome, 18 Conn. R. 138. Noyes v. Ward, 19 Conn. R. 250. Greenl. Ev. 267. and cases cited.

But we think that it is not applicable to the case now before us. The doctrine that one shall not be permitted to retract representations, in which is included conduct, by which he has induced another to adopt a particular course of action; supposes, and is to be understood with, the qualification, which is indeed a part of the principle itself, that the one by whom such representations were made, had a knowledge of his rights. In laying down this qualification, we speak of the principle generally, and would not be understood to say, that there may not be cases where there is such culpability on the part of the person making such representations, or such particular circumstances or consequences attending them, that he would not be permitted to set up the want of such knowledge. But the present case falls within no such exception.

The principle which constitutes such representations an estoppel in pais, also requires that the action of the other party took place on the strength of them, and was super-induced by them ; because otherwise, he could not be misled or injured in consequence of them.

If, in the present case, Clark, being aware that Eaton had acquired no right or title to the claim in question, by the assignment or otherwise, by his declarations, or by his assent to a sale of it to Gavit and company, induced the latter to believe that the title to the claim was in Eaton, and to purchase it of him under that belief, we should have no doubt that it would not be competent for Clark, or the plaintiff, claiming by any subsequent title under him, to deny the validity of such sale ; but the evidence shows no such state of facts. From the bill and decree, which constituted the only evidence on the trial, the allegations in which bill are found true in the decree, it appears, that the trustee of Clark claimed no power, authority or interest in or respecting said claim, excepting such as was vested, or supposed to be vested, in him, by the assignment executed by Clark, and the circumstances attending it, and the orders of the court of probate exercising its jurisdiction over that assignment and the property conveyed by it, under the statute which has been adverted to ; that it was by virtue of such authority and interest alone, that said trustee intended or professed to sell said claim to Gavit and company ; that the latter, when such sale was made, had knowledge of the provisions of the assignment, and of all the proceedings under it in the court of probate, and also knew that the sale was made, and intended to be made, solely by virtue of the authority and interest derived by the trustee from them ; that, in their purchase, they looked to no other source of title ; and that, so far from believing that the title to said claim was in Clark, at the time of such sale, they believed that his title to it was divested by the assignment, and vested in the trustee; and that the latter only had authority to dispose of it. The only title of Gavit and company alleged in that bill, was one derived, not directly from Clark, but from Eaton, as his trustee under the assignment ; and the ground set up in the bill for establishing that title, was, that it was the intention to have the claim embraced in the assignment, and its omission by mistake, on which it was claimed that the instrument should be reformed according to such intention. The correction of that mistake would, of course, have been made, on the ground that the title in equity was in the trustee, and not in Clark. It did not occur to the counsel for the plaintiffs in that case, to set up a title directly from Clark, or that his conduct operated as an estoppel against him, or the plaintiff in this case, by which either of them was precluded from asserting that the title to the claim was in Clark, when it was sold by the trustee. Indeed, it is alleged in that bill, after stating the sale by the trustee, by virtue of the authority and interest vested in him, by the assignment and the orders of the court of probate, and the purchase by the defendants, that the plaintiffs in that case, (Gavit and company,) "thus became the purchasers of said claim, and in equity entitled to have and receive the damages for which said Williams was liable to said Clark" thereon-unless, from the manner in which it is also, in connexion with that statement, alleged, that the sale was with the assent and approbation of Clark, the construction of the whole averment should be, that such assent and approbation constitute in part the title which they claimed. We do not, however, think, from the manner in which the allegation of such assent and approbation was introduced, that it was designed, or should be construed to mean, that the title of those plaintiffs was founded upon it, or strengthened by it. Such a construction would be opposed to the general frame and character of the bill, and would place the title of the plaintiffs therein to the claim on a very different ground from the one intended to be set up in it: and indeed, if it is to be considered as a bill seeking relief on the ground of declarations or conduct on the part of Clark, which created an estoppel against the assertion of his title, it would plainly be insufficient. For, although it alleges such assent and approbation by him, it omits to state, either that the title to the claim, at the time of the sale, was in Clark; or that he knew or supposed that it was in himself; or that the plaintiffs were induced to believe, by his said conduct, that the trustee had a title to said claim, or was authorized by Clark, otherwise than through the assignment, to dispose of it; or indeed, that they did so believe. If, on that bill, the court in its finding had negatived the allegations as to the intention with which the assignment was executed, and the mistake of the draftsman in omitting to insert the claim in it, and had found the other allegations to be true, including the assent and approbation of Clark to the sale, as stated in the bill, it would hardly be claimed, that any ground for relief would be furnished by such a finding. Nor would relief have been granted on that bill, if the court had found the further facts, that Clark, when said sale took place, knew that the title to the claim was in him, and by his said conduct induced the purchasers to believe that it was in the trustee; for the obvious reason that those material facts were not alleged in the bill. For the same reason, the decree is not evidence of those facts. The existence of them, consequently, is not proved.

This then is a case, where, whatever may have been the representations of Clark, they must be deemed to have been made by him under an erroneous view of his rights, or at least without any fraudulent or improper motive; and where, moreover, the facts, as they really existed, were known equally to him and to the purchasers of the claim in question ; and the latter have not been misled, or induced by those representations to act differently in any respect from what they otherwise would have done. Nor can it justly be claimed, that the plaintiff in this case has done anything which destroys or impairs his right to the money due on the claim in question, as a creditor of Clark. The circumstance that he united with and assisted the defendant, in defending the suit brought against the latter, in the name of Clark, has no such effect; nor does it appear, that the money received by the trustee on the sale of the claim, or any part thereof, has ever been paid by him to or received by the plaintiff', or any of the other creditors of Clark. This is a very important fact in the case. That it cannot be recovered of said trustee, by those creditors, or for their benefit, as trust funds; received under the assignment, results from our decision in the case of Whitaker v. Gavit and others. Under these circumstances, to hold that what was done by Clark, when the claim in question was attempted to be sold by the trustee, precludes the enquiry whether the former was the owner of it, would, in our judgment, be a misapplication of the principle on which estoppels in pais are deemed to be created by the representations or conduct of parties. No case has been found which carries the doctrine on that subject to such an extravagant length ; and to do so it this case, would give to the defendants an advantage from what was done by Clark, which, so far as it appears, they never expected, and which, on principles of justice, they are not entitled to.

A new trial is therefore advised.

In this opinion Church, Ch. J., and Hinman, J., concurred.

Ellsworth, J.

The result to which a majority of the court have come, in this case, seems to me, to be exceedingly unjust towards Gavit and others, the real defendants. I think a different view may consistently be taken, more satisfactory and more in accordance with principles and justice and equity. The defendants have confessedly bought the debt in question fairly, and have paid the price agreed ; and this has been done with the consent and active cooperation of Clark, who owned it. If, after this, Clark, or any one possessing his rights only, can wrest this debt from the purchasers, it must be for reasons which I cannot discover.

This being a writ of scire-facias, to obtain a debt due to G. W. Clark, by process of foreign attachment, it is obvious that the plaintiff cannot recover, unless he has acquired a good legal and equitable title to the debt. Gavit & al. claim, that they are purchasers of the debt, and can retain it against Clark and his representative, Whitaker. If they have the right, there is no doubt they can, in the name of the nominal defendant, prevent the recovery. The Hartford Bank v. Barber, 9 Conn. R. 407.

When this case was before us, on a former occasion, (18 Conn. R. 522.,) the court decided, that the assignment of Clark could not be amended or enlarged so as to include this claim : and as it was confessedly not in the writing, the court held, they could not place it there, nor treat the claim as if it were there. That case did not settle the question now raised for decision indeed, at the close of the opinion there given, it is said, that if Gavit & al, are entitled to the debt, they have relief in this action at law. In consequence of that remark, perhaps, the ease comes before us in the present shape.

It must be agreed, that at the time, when Eaton, the trustee, sold the property which he held as assignee, Clark could have sold the claim on Williams to the defendants; for as it was not in the assignment, (though he intended and believed it was,) he had the entire interest in and controul over it, as much as if he had made no assignment at all. He could sell this claim as well as any thing else he had not assigned, provided he did it bona fide and for a valuable consideration. After that, no creditor of his could take it from the purchaser, because no creditor could acquire a right which Clark did not possess himself. I know it was said in the argument, that a sale by Clark, if made cotemporane-ously with the general sale by Eaton, would be void against the creditors of Clark, because of the statute of 1828. But the objection is unintelligible and misapplied. Title to the claim does not come through Eaton, nor through the assignment; and therefore, that assignment has nothing to do with the claim, and cannot defeat a fair subsequent or cotempora-neous sale.

The single question is, did Gavit & al. acquire a right to the claim as against Clark, by what took place on that occasion ? The counsel for Whitaker gave up this point, as too plain for controversy, and only insisted, that the sale was void as to Clark’s creditors, by reason of the statute of 1828; which latter ground, I have shown, has no existence in the premises. The court, if I understand them aright, place their opinion upon the want of a sale by Clark ; and consider the former ground as untenable, and inappropriate. To the true point, then, let us turn our attention.

It is agreed, that the real defendants bought the claim at public action, and paid the money, which has gone towards the indebtedness of Clark ; that this was done with the consent and approbation of Clark; that afterwards, with his assent and understanding, in order that the claim, (which was then very imperfect,) might be brought to maturity, the defendants, in the name of Clark, brought a suit and recovered judgment, at an expense exceeding the amount of the damages recovered; of which Whitaker had notice. Here now, we have a sale actually made, by the desire and cooperation of the owner, and afterwards, the purchasers, relying on their title, bestowing their labour and money to make the purchased property of value. If this does not vest the original claim in the real defendants, and forever estop Clark, I have studied the principles of law and justice to no purpose. What if Clark did suppose the claim was in the assignment, while in fact it is not; he certainly meant to have it sold ; and it was sold and the money applied. The fact that Clark mistook the extent of the assignment, is nothing to the purpose. The defendants are not to be prejudiced by his misapprehension. They are innocent of any error, and have confided where they might with propriety place confidence, and where Clark cannot be permitted to question their act. Nor is the mistake of Clark of the least moment to him. He meant to have the claim sold and transferred: it was sold, and he had the benefit of it. Now, after this, to permit him to come in, and take this claim and the costs too, to which latter he never had the shadow of a right, is too flagrantly unjust to be tolerated in a court of justice, one moment.

The doctrine of estoppel in pais, growing out of the declarations and conduct of persons in peculiar circumstances, or rather, growing out of the application of principles of justice, and honour and sound morality, to the conduct of mankind, has recently been too fully discussed and recognized in the cases of Roe v. Jerome and Middletown Bank v. Jerome, in 18 Conn. R., and in East-Haddam Bank v. Shailor, of the present term,(ante, p. 18,)to be enlarged upon at this time. Those cases and the numerous ones referred to in them, fully sustain the principle so accurately laid down by Judge Story, in his Agency, S91. "It is clearly established," he remarks, "that if ihe true owner of property stands by, and knowingly suffers a stranger to sell the same, in his own name, as his own property, without objection, the sale will be valid against the true owner. For, under such circumstances, his silence and concealment of his title are treated as equivalent to an affirmation that he has no adverse title to the property; and it would be a gross fraud upon the purchaser, to allow the true owner thus to delude him into the purchase, and afterwards defeat the supposed rights acquired under it ;" or, in the emphatic words of Tindal, Ch. J., in Gosling v. Birnie, 7 Bing. 339. (20 E. C. L. 153.) The defendant is estopped, by his own admissions; for unless they amount to an estoppel, the word may as well be blotted from the law. In the strong language of Lord Denman, in Pickard v. Scars, 6 Ad. & El. 479., "the rule of law is clear, that when one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things as existing at the same time."

This subject was very clearly illustrated, by Mr. Justice Bayley, in delivering the opinion of the court in Keane Rogers, 9 B. & C. 577. 588. (17 E. C. L. 449,) It was an action of trover, brought by a person against whom a commission of bankruptcy had issued, against his assignees, to recover the value of goods, which, as assignees, they had sold ; and it appeared, that he had assisted the assignees, by giving directions as to the sale of the goods. He was estopped disputing the commission. See Clark v. Clark, 6 Esp. R. 61. Like v. Howe, 6 Esp. R. 20, Watson v. Wace, 5 B. & C. 153. (11 E. C. L. 153.) Welland Canal Co. v. Hathaway. 8 Wend. 483. Jennings v. Whitaker, 4 Munroe, 50. Grant v. Jackson, Peake's Gas. 203. Ash-more v. Hardy, 7 Car. & Pa. 501. (32 E. C. L. 601.) In these cases, the doctrine of estoppel is sanctioned and asserted, as I claim it to be ; and it is unhesitatingly applied to cases less marked than the present one.

I do not advise a new trial.

In this opinion WAITE, J., concurred.  