
    Elijah Bocock and Wife et al. v. Henry S. Pavey et al.
    In the year 1856, A., and B., his wife, being seized in fee of lands in Ohio, executed a power of attorney in Virginia, acknowledged by A. but not by B., empowering 0. to sell said, lands. In 1818 0. duly executed a power of attorney to D. to sell these lands. In 1819 D., under this power of attorney from C., made a written contract of sale of the lands to E., and received his obligations, with security for the purchase money. A. accepted the contract and obligations, and, in 1820, received more than half the purchase money, and gave possession. F. having an equitable interest in the lands in 1822, instead of taking a decree for the lands, as he might have done, finding them sold at a high price, procured the court to enter a decree in his favor, for money against-A. and B., based upon the price and fact of a valid sale to E., and afterward told G., the trustee of E., to pay up the purchase money, and that his title, under the contract, would be good. In 1829 E. died, having made valuable improvements. In 1830, F., upon execution on his judgment, bought in the lahds, but did not give notice to, or require possession of G., who continued to hold the lands, and, in-1837, paid the residue of the purchase money, and in 1810, got a decree against A. and B. for the title. Held:
    1st. That the power of attorney from A. and B. was not obligatory upon B., not being acknowledged by her.
    2d. The contract made by D., was not, when made, obligatory upon A., C. having no power to delegate his authority; but the contract became obligatory upon A. by his acts under it.
    3d. That after the decree of 1810, F. held the title acquired at the sale on his judgment, in trust for G., or the heirs of E.; and that F. was, in equity, estopped from asserting said title against the title acquired by G. under the decree of 1810.
    In Chancery. Reserved in the District Court of Eayette county.
    Francis Dade, holding a land warrant for some four thousand acres of land, in consideration of his services as an officer in the Virginia line, in the revolutionary war, died intestate in Virginia, in 1802, leaving three minor children, Lawrence F. Dade, James Dade, and Mary J. Dade, his heirs at law, who became entitled to the lands.
    William Dade, their guardian, the same year entered into a written contract with William Barlow, to locate and survey, for the heirs, about two thousand acres of the lands in the Virginia military district in Ohio. By the terms of the contract, Barlow was to defray all incidental expenses in the location, survey, and entry of the lands, and to have one-third of the land as his compensation. Barlow proceeded under the contract, to locate the lands along Paint Creek, in Fayette and Highland counties, and procured the surveys and entries of the lands to be duly made, and fully performed the contract on his part. Mary J. Dade intermarried with Edwin Conway, and in 1811, James and Lawrence F. having sold, or contracted to sell, part of the lands to different purchasers, assigned all their remaining interest in the lands and warrant to their sister, Mary J., and her husband, Edwin Conway. A patent was duly issued upon such assignment, “ unto Edwin Conway and Mary J. Conway, his wife, formerly Mary J. Dade, in her own right, as heir of the said Francis Dade, and as assignees of Lawrence F. Dade and James Dade, co-heirs of the said Francis Dade, deceased,” of all the said lands.
    In 1818, William Barlow having deceased, without having received a conveyance from Conway and wife of the third of the lands, or any other compensation for his services rendered under the contract, his administrator, Samuel Shepard, who had married his daughter, with his wife and the other heirs of Barlow, filed their bill in chancery in the court of common pleas of Highland county, against said Edwin Conway and wife, and the other heirs of said Francis Dade, deceased, setting forth the contract and the performance thereof on the part of Barlow, in his life, and praying a specific performance, if practicable; but that if the same should be found impracticable by reason of the landshaving been sold, that a proper and just compensation should be decreed to be paid complainants, in money.
    Samuel Shepard acted also as attorney in the proceeding.
    It appears in the record of that case, that at the July term, 1822, on motion of counsel, the case was referred to a special master, to report in relation to what lands had then been sold, and the value of the lands, and what would be a proper money decree, in amount, if such a decree should be entered under the contract, in lieu of one-third of the lands.
    During the pendency of the suit so instituted in Highland county, by Shepard and others, Samuel Gregory, under whom the present complainants claim, entered into a written contract on the 27th of February, 1819, for the purchase of 105J acres in lot four, and 61-f- acres in lot five, and adjoining the 105 J, being part of the lands so located in Fayette county, with Samuel Winston, acting as attorney of Conway and wife, under the following authority: Conway and wife, on the 23d day of August, 1816, had executed a written power of attorney to Charles Thornton, to sell, but defective as to the wife, in that the same was not acknowledged by her, (she then residing in Virginia), either according to the statute of Virginia or Ohio. And on the 25th of June, 1818, Thornton executed a written power of attorney to Samuel Winston, assuming to authorize him to sell. Samuel Gregory bound himself to pay for the lands $316.50 Dec. ¿5, 1819, and $153.75 Dee. 25, 1820, and executed his two obligations therefor, with his father William Gregory as surety, payable to Thornton, as agent of Conway; entered into possession, built a cabin, and proceeded to clear and improve the lands; and on the 19th of February, paid to Conway and wife $251 of the purchase money; and was still residing upon the lands in 1822, at the time of the reference to the master, and the making his report, and the decree thereon.
    Under these circumstances, the master reported the land so then held (in 1822) by Samuel Gregory, under his contract of purchase, with other tracts of land sold by the heirs of Erancis Dade, as sold by “ Samuel "Winston, as the agent of Edwin and Mary Conway.” The master, after reporting all the several parcels of land sold by the heirs of Dade, and by Conway and wife, in pursuance of the order of reference, stated an account between the parties in the premises, and reported the sum of $811 as a just money compensation, at the commencement of the suit, due from the heirs of Dade to the said Shepard, under said contract with Barlow. And Shepard, at the November term, 1822, obtained a confirmation of the master’s report, and a decree thereon, in favor of himself and the other complainants in that suit, for the full sum so reported, being $1,012.73.
    The master having reported 198 acres of the land as unsold, Shepard, immediately after obtaining the decree, caused execution to be issued and levied on the 198 acres, and subjected the same to sale in part satisfaction of the decree; but did not assert any right to levy upon any of the land reported as sold to Gregory, and others, until October, 1829.
    Samuel Gregory continued to reside upon the land and occupy the same until some time in 1824, when he became insane, and unable to conduct his business; and his brother took him and his family under his care, and removed them to his own house; and perhaps continued a supervision over the land for the benefit of Samuel’s family for one or two years.
    In 1826, Jesse Pavey, the father-in-law of Samuel Gregory, called upon him while at his brother’s, and persuaded Samuel to assign and deliver to him his contract' for the land, to hold, and thereby control the land, for the benefit of the family, then consisting of Samuel and his wife, and two children, Lavina and Samuel Wesley, the younger about one, and the elder about two years of age. Jesse Pavey also received personal property of Gregory about the same time, to the amount of probably one hundred dollars and upward; but whether to a greater amount than the expenses by him incurred for the family, does not very clearly appear in proof. Samuel Gregory continued insane until his death, in 1829. Jesse Pavey continued in possession of the land contract, and received the rents •and profits of the place, estimated at about twenty-four dollars yearly, until about the time of his death, in 1845.
    On the 26th day of October, 1829, Shepard caused execution to be issued upon the decree so obtained in Highland county, and, on the 26th of the same month, to be levied upon all of the 167J acres so reported sold to Gregory. The land was appi’aised at $322.87J-, and bought in by Shepard, upon the decree, at $215.26.
    It is in proof, however, that previous to the levy, and previous to Gregory’s removal from the land, Shepard frequently had been at his house, and had read his contract, and spoke favorably of it to Gregory; that after removal, he had assured the wife of Gregory and Jesse Pavey, the holder of the contract, upon their inquiry as to his claim against the land, that he “ was going to have nothing to do with the sold lands;” and assured them that upon paying up for the land, Gregory’s title would be good; and that in 1824 or 1825, he, Shepard, had received money from Gregory’s wife, and, at her request, therewith paid the taxes for her upon the land. Again, the proof shows that Shepard, in a conversation had with the widow of Gregory, shortly after he bid in the land at sheriff sale, spoke of having some understanding with Jesse Pavey in relation to the land, and assured the widow that he would make a conveyance of the same to the children of Samuel Gregory.
    On the 23d of October, 1830, Shepard received the sheriff’s deed for the land; and on the 30th of November, 1831, executed a deed of conveyance in fee simple to John Boots, of the 61f acres in lot five, and 45 acres in lot four, part of the 105J acres upon which Gregory had resided and made his improvements. The deed contains a recital of the consideration of $118, and a special provision, “that if the said land or any part thereof should be lost by the interference of any other claims, then the said Shepard is to repay the purchase money for the part so lost, with legal interest thereon, from the 21st day of October, 1830, until paid, and no more.”
    On the 29th day of June, 1837, John Boots executed a deed of conveyance of the 45 acres in fee simple to Philip Barger, for the recited consideration of fifty dollars ; and on the same day executed a deed of conveyance in fee simple of the 61f acres to Hiram Rees; and on the 9th of June, 1847, Reese assumed to convey the same by deed in fee simple to John Howe, one of the defendants, for the consideration of $617.50, as exjDressed by the deed. Philip Barger, on the 26th of October, 1844, for the consideration of seventy-four dollars, as expressed in the deed, executed a deed of conveyance in fee simple to the defendant Henry S. Pavey, of the 45 acres. This deed contains a special provision, that “ if the land or any part of it should be lost in consequence of any interfering claim, the said Henry S. Pavey, or any person claiming title under him, shall have recourse upon those under whom said Philip Barger claims.”
    July 12,1837, Jesse Pavey paid the balance of the purchase money due upon the obligations of Gregory to Winston, to whom they had been sold and assigned by Conway; or at least paid him such a sum as was acceptable to Winston in satisfaction of the same.
    June 16,1838, Jesse Pavey filed his petition in the court of common pleas of Eayette county, against Conway and wife, for a deed of conveyance in accordance with their contract with Gregory, so held and paid off by him; and on the 15th of August, 1840, obtained a decree against them to convey unto him said 1671 acres of land in fee simple within thirty days; and that in default of such conveyance, the decree should operate as a conveyance. Jesse Pavey continued, as he had been since receiving the land of Gregory, in the undisturbed possession of the 105|-acreSj in lot 4, and continued to leave Shepard and those claiming under him, after his sheriff’s sale, in the undisturbed possession of the 61f acres in lot 5.
    On the 18th of March, 1845, and shortly previous to his death, Jesse Pavey executed a deed in fee simple of 45 acres of the 105| acres in lot 4, to Ellen and Susan Maria, minor children of his son Jesse; and about the same time, requested a scrivener, the witness, to-come to his, Pavey’s house, to write for him a deéd of the residue of the 105J acres to Bocock and wife, and Samuel W. Gregory, the complainants. It is in proof that the complainants were, at that time, in possession of.the 60 J acres so proposed to be conveyed to them; and there is no proof that their possession was not by the permission, if not at the instance, of Jesse Pavey, who had previously held the possession.
    Such was the state of the title, and such the state of facts preceding the death of Jesse Pavey the elder.
    Afterward, and while the complainants were remaining in possession, Henry S. Pavey, by deed of conveyance in fee simple, executed to him on the 17th day of October, 1845, by the heirs of Samuel Shepard, then deceased, obtained their title in the remainder of the 105J acres not conveyed by their father in his lifetime. The consideration stated in the deed is $200, and the conveyance includes, in its description, the 60J acres then held by complainants. After obtaining the deed of conveyance from the heirs of Shepard, Henry S. Pavey commenced an action of ejectment against complainants for the recovery of the 60J acres, and obtained judgment in the case. And the complainants thereupon, on the 26th of March, 1850, commenced this suit by filing in the court of common pleas of Payette county their bill in chancery.
    
      The bill is properly framed to present all the foregoing facts to the consideration of the court. Henry S. Pavey, who is a son and heir of Jesse Pavey, deceased, and his other children and heirs, as well as Ellen and Susan Maria, his grantees of the 45 acres, and John Howe, are all made parties defendant.
    The bill charges that Jesse Pavey received from the estate of Gregory means to pay off the contract for Gregory, and also that the defendants purchased, with full notice of the rights of the complainants, and also charges the defendants with confederation and fraud. The complainants pray a perpetual injunction against the proceedings of Henry S. Pavey to recover said land, and that the legal title of the 167-j- acres so purchased by Samuel Gregory, be decreed to them, and that they be fully put in possession thereof.
    The defendants answer, denying the material facts set forth in the bill constituting the right of complainants to the relief prayed for. The answers are not sworn to, hut are traversed by replication.
    
      Rush § Wilcox, for complainants.
    
      J. H. Thompson, for defendants.
   Sutliff, J.

The proof is sufficient to show notice of whatever equities the complainants have in the 105J as between themselves and Henry S. Pavey, and perhaps as between themselves and the grantees of the 45 acres. There does not, however, appear to have been any notice, actual or constructive, to John Howe of their equities in the 61f acres in lot 5.

It becomes, therefore, necessary to first determine what equitable interest, if any, Samuel Gregory held under his contract in the lands in question.

The patent, it will be observed, conveyed the title of these lands by its terms, in effect only one-third to Edwin Conway, and two-thirds to his wife, Mary J. The power of attorney executed by them to Charles Thornton, not having been acknowledged by her in accordance with either the statute of Virginia or of Ohio, was, as to her, utterly nugatory. The power of attorney can only be regarded as one executed by himself alone. But the contract was not entered into by Thornton; he constituted Winston his attorney to sell, and it was Winston who made and executed the contract with Gregory for the sale of the 167J acres of land. By force of the maxim that an attorney can not make an attorney, the contract so executed by Winston, was, when made, not obligatory upon Conway. But the proof shows that Conway recognized the agency of Winston, and ratified the contract by receiving the obligations executed by Samuel and William Gregory under it for the purchase money, and by recognizing Samuel’s possession of the land, and suffering him to make valuable improvements, and pay taxes upon it. Conway indeed received $251 of the purchase money upon the contract, and finally sold the obligations for the balance, and thus received the entire purchase money under the contract. The proof does not show whether or not the purchase money was shared by the wife in proportion to her interest in the land; nor whether she afterward executed another instrument .of writing, obligatory upon herself in relation to the sale of said land, from which the court, in 1840, decreed the validity of the sale of the land to Gregory, and his equity therein in favor of his trustee Jesse Pavey, as well against her as against her husband, Edwin Conway. But we have no doubt, after those acts of ratification of the contract of sale by Winston, as his agent, the contract became obligatory upon Conway, and gave as perfect an equity to Samuel Gregory in the land as if the contract had been executed by Thornton, his attorney in fact.

By means of the contract^ and the acts performed under it, and especially by force of the decree entered upon it in favor of Pavey, the assignee and trustee of Gregory, the equity arising under this defective contract would be established, but for the previous sale of the same land to Shejjard, upon the judgment in his favor against Conway and wife, so rendered in Highland county.

What right, then, did Shepard acquire against the otherwise subsisting equity of Samuel Gregory, by his purchase of those lands at sheriff’s sale?

The sheriff’s deed of Oct. 23d, 1830, to Shepard, doubtless conveyed to him in fact the fee of the lands. His purchase was, however, made with full knowledge of; all the equities of Gregory’s heirs and trustee, existing under his contract of 1819, both against Conway and wife, and against Shepard himself. Shepard had read Gregory’s contract, and had seen that it purported to be a valid contract of sale of said land, and that Gregory had paid therefor, ten years previous, $251, a sum at that time much larger than the price at which he had then purchased in the same land with all the improvements, and that Conway and wife had also received the obligation of Gregory with personal security, and which had been sold, and probably fully realized by them, for the additional sum of $229.25; making the sum of $470.25, probably actually received by Conway and wife, as of 1819, for the lands so then bid in by him, Shepard, with all the improvements made thereon, at the price of $215.26. Shepard knew, too, at the time of bidding in the land, the fact that he had himself insisted upon the validity of the sale by Conway and wife to Gregory, at the time of obtaining the decree in Highland county, and that he obtained a confirmation of the report of the sale of these lands to Gregory, and obtained a money decree against Conway and wife and the other heirs of Francis Dade, based upon and correspondent to the high price at which these lands had been so purchased by Gregory. Shepard also knew of his afterward counseling Gregory and his wife and trustee, to make full payment of the purchase money, and to continue to pay the taxes, assuring them that the title would be perfect under the contract upon such payment. Under this state of facts, as shown by the proof, we have no doubt that the title so acquired by Shepard, would, as between him and the heirs of Gregory, be held by him in trust for them under their contract; and that if, after the decree of the title from Conway and wife to the trustee Pavey, a petition had been filed for that purpose upon the foregoing state of facts, a court of chancery would have decreed a surrender of the title so held by Shepard to the heirs of Gregory.

To the foregoing view of the rights of Shepard, it might be urged that after his purchase at sheriff sale, in 1830, he was at least to be regarded as having thereby acquired all the rights of Conway and wife, and to have thereby become entitled to receive the residue of the purchase money under the Gregory contract still remaining unpaid, and which Pavey, the trustee, paid in 1837.

To this claim there are two answers. In the first place, apart from the slight proof of a mutual agreement between Shepard and Pavey, that Pavey should hold, by a perfect title, as trustee, the 105J acres in lot 4, and that he, Shepard, should have perfect title, under his sheriff' deed, to the 61§ acres in lot 5, there is no proof of notice to Pavey or the heirs of Gregory, that Shepard had bought the lands, or made any claim to them. And, in the second place, the purchase money, under the Gregory contract, was not paid by Pavey to Conway and wife, but to Samuel Winston, to whom they had sold the obligations given for the purchase money.

There is still another view to be taken of the relation of Shepard, under his purchase at the sheriff sale, to the claim of Gregory’s heirs under the deex’ee of 1840, of the title of Conway and wife to the trustee Pavey. Although Shepard had, in fact, by his bidding in the land upon his decx’ee, obtained the legal title to the 167J acx’es of land, he was, by his own acts and representations in relation to the title derived from the decree of 1840, upon Gregory’s contract, estopped from setting up a title under his decree inconsistent with the recitals contained in that record as expressed by the report of the sale of the same lands to Gregory, upon which he had obtained his decree, and inconsistent with his conduct and representations mentioned, made to Gregory and his representatives.

The rule of law applicable to such cases is thus laid down by Lord Denman, in the case of Pickard v. Sears, 6 Ad. & Ell. 475: “Where one, by his words or conduct, willfully causes another to believe in 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.” And in delivering the judgment of the court in the case of Freeman v. Cook, 2 Exch. 654, Park, B., said that the rule laid down in the case of Pickard v. Sears, was “ to be considered as established, but that the term ‘willfully’ must be understood, if not that the party represents that to be the truth which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man’s real meaning may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth.”

It is remarked by the commentator in Smith’s Leading Cases, vol. 2, p. 545, upon this subject, as follows: “ In the class of cases just noticed, the estoppel must obviously be limited within such bounds as are sufficient to put the party who has dealt on the faith of appearances that turn out to be incorrect, in the same position with reference to the author of such appearances as if they were true.” And again, the same author adds: “ The truth is, that the courts have been for some time favorable to the utility of the doctrine of estoppel, hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding, in cases where mischief or injustice would be caused by treating their effect as revocable. At the same time, they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived, or induced to alter his position. Such estoppels are still, as formerly, considered odious.”

Under the reasonable application of the rule of estoppel as thus expressed, how stands this case ? In taking his decree, in 1822, Shepard had insisted upon the bona fide sale of these lands to Gregory, and, as stated, thereby obtained a money decree instead of a decree for the lands, which would doubtless have suffered Gregory to then have recovered back his $251, paid, and have prevented his expending thereafter, perhaps as large a sum in improvements. Again, after the decree was entered, if Shepard had not still continued to treat, by his acts and representations, the Gregory purchase as valid; if he had then treated these lands as unsold, and levied upon them, with other lands upon which he levied, for the satisfaction of his decree in 1822, the same result would have probably followed to Gregory; and he would even then have been able to recover back his $251, and have been prevented expending more in improving the land. But Shepard continued to treat the sale of these lands, by Conway and wife to Gregory, as valid; and even urged the payment of the residue of the purchase money, by assurances to the family and trustee, that the title would thereby be made perfect-under their contract. The trustee, subsequently to these representations and the conduct' of Shepard, proceeded, while in possession of the 105J acres at least, and without any notice from Shepard (except as stated), to pay off the residue of the purchase money for the land, and to obtain a decree of title under the contract, as Shepard had assured them they could do, on so paying the purchase money.

It seems to me, under these circumstances, if Shepard had attempted to recover the lands, against the decree title of Pavey under the Gregory contract, a reasonable application of the doctrine of estoppel would have prevented his asserting title under his sheriff’s deed.

But if it be insisted that J esse Pavey had notice of the fact of Shepard’s levy and purchase of the lands, before paying up the residue of the purchase money, it may be remarked, that the only proof of such notice is the statement of a witness who speaks of a mutual understanding, by which Pavey was to hold the 105|- acres, and Shepard the 61f- acres. And if it be objected to the reasonableness of such an arrangement, that Pavey suffered Shepard to receive a sheriff’s deed for all the land,' it maybe replied, that the approval of the sale and deed were made in Highland county. It may be further replied, that Shepard suffered Pavey to take a decree in Eayette county for all the land; so that the conduct of each party is equally opposed, in those acts, to the supposition of either intending to set up an adversary claim against that of the other.

The most favorable view, however,, which can be taken of the title acquired under Shepard’s sheriff" deed, is that upon which the parties, Shepard and Pavey, seem to have acted, in the occupancy of the land, to wit, that Shepard was to claim only the 61f acres in lot 5, and that Pavey was to hold the -105| acres in lot 4. And as Howe is a purchaser without notice, for a valuable consideration, we' are disposed to give effect to this view of the case by dismissing the petition as to him, but without costs.

It no where appears what amount Jesse Pavey paid, in satisfaction of the obligations held by Winston for the purchase money. It seems to be regarded as only between two and three hundred dollars. Nor is the value of the land by him conveyed to the children of his son Jesse, shown by the proof. But as there is no proof of his having acted in bad faith, and it is proved that, shortly previous to his death, Jesse Pavey, after conveying the 45 acres to his other grandchildren, contemplated conveying the residue of the land in lot 4 to the heirs of Samuel Gregory, as the amount of land, in his opinion, justly belonging to them, and supposing this to have been, in his estimation, from his knowledge of the amount he had paid "Winston, to be a just apportionment to them of their father’s interest in the land, we are disposed, as between his estate and complainants, to give effect to this expression of his opinion and intention.

The purchases of the Shepard title, by Henry S. Pavey, having been made — of the 45 acres while in possession of his father, Jesse Pavey, and of the 60J acres while in the actual possession of the complainants — he had constructive notice of all the claims and equities, to which we give effect, arising under the Gregory title. It is also proved that ITenry S. had actual notice of the rights of the heirs of Gregory, his brother-in-law, and of his father, Gregory’s trustee, in the lands in question. He could not, therefore, acquire any right in the premises by his purchase of the Shepard title.

A decree may, therefore, be entered in favor of complainants as to all the lands in lot 4, except the 45 acres conveyed by Jesse Pavey to Ellen and Susan Maria Pavey, and that Henry S. Pavey be perpetually enjoined from proceeding upon his judgment in ejectment against them, and that they recover of him their costs, to be paid in thirty days; and as to all other parties, the bill may stand dismissed without costs.

Bartley, O. J., and Swan, Brinkerhoee and Scott, JJ., concurred.  