
    C. M. Henderson & Company, appellants, v. C. F. Keutzer et al., appellees.
    Filed October 20, 1898.
    No. 8341.
    Estoppel: Pmsadiito. The facts from which an estoppel in pain ¡vi-es, to.be available as such, must be pleaded, a.t least where there is an opportunity to so plead.
    Appeal from the district court of Adams county. Heard below before Beall, J.
    
      Affirmed.
    
    
      Gavanagh & Thomas, M. A. Ilartigan, and Harwood, Ames é Pettis, for appellants.
    
      Gaffs & Stevens, contra.
    
   Ibvine, C.

This was a creditor’s bill whereby C. M. Henderson & Co. undertook to subject to the payment of a judgment against C. F. Keutzer and Henry Trier certain land the title to which was in Elizabeth Trier, the wife of Henry. There was a decree for the defendants and plaintiffs appeal.

The essential facts are that Keutzer, June 9, 1890, was indebted to the plaintiffs in the sum of $871.52, and being pressed for payment, sought an extension, offering two notes signed by himself and Henry Trier, due, respectively, July 9 and August 9.' After investigation the plaintiffs granted the extension and accepted the notes. Before tlhe first note matured Keutzer, who was engaged in a mercantile business, failed, and his stock was seized by mortgagees. The title to the land'in controversy liad for years been in Henry Trier, the surety on the notes. June 24 he conveyed it to a third person, and by means of several mesne conveyances it became vested, in July, in Elizabeth Trier. It is conceded that there was sufficient evidence to sustain the finding that the land was bought with money of Elizabeth and that the conveyances were not, in the usual sense, voluntary or fraudulent, but were made in execution of tbe resulting trust. The appellants assert that the uncontradicted proof shows that Mrs. Trier had for years known that the title was in her husband and had.suffered it to so remain; that the appellants, before accepting him as surety, made investigation, and finding the title in him accepted the notes, relying on his apparent ownership; that by so doing they lost the opportunity of proceeding against Keutzer until after other creditors had absorbed his assets. A reversal is sought on the sole ground that Mrs. Trier is by the foregoing facts estopped from asserting her right against the claim of plaintiffs.

An estoppel in pais is not available unless the facts from which the estopped arises are pleaded, at least where there is an opportunity to so plead. (Norwegian Plow Co. v. Haines, 21 Neb. 689; Schribar v. Platt, 19 Neb. 625; Nebraska Mortgage Loan Co. v. Van Kloster, 42 Neb. 746; Erickson v. First Nat. Bank, 44 Neb. 622; Scroggin v. Johnson, 45 Neb. 714.) The petition, after pleading the debt and its circumstances, the recovery of judgment and the transfers which it' seeks to avoid, charges that the transfers were made without consideration and in pursuance of a conspiracy to defraud creditors of Keutzer and Trier. It also alleges that “at the time said notes and evidences of indebtedness were made and delivered they were accepted by plaintiffs solely and wholly upon the statements that defendant Trier was worth to exceed the sum of $5,000, which plaintiffs allege to be the fact at that time.” This, it will be observed, is only an averment that plaintiffs relied on a true statement by some one not named as to Trier’s wealth. The petition was clearly framed upon the theory that the land was Trier’s and that the conveyances were fraudulent or voluntary, not on the theory now presented. Mrs. Trier’s answer pleads her title and right in detail. To this it might properly have been replied that she was estopped to set up her right,, and thereby the petition, might be sustained; but the pleader, while evidently attempting to do so, failed. To demonstrate this it is necessary to quote the whole of the reply. It is as follows:

“Gomes now the plaintiff in the above entitled action, and for their reply to the separate answer of Henry Trier and Elizabeth Trier replying say:
“1. They deny each and every allegation in said answer contained inconsistent with the petition heretofore' filed in said action.
“2. Further replying to the several matter's the defendants set out in their answer, these plaintiffs allege that the said defendants Elizabeth Trier and Henry Trier are estopped, denied, and in law forbidden to now offer as a defense the facts set out in the said answer, for the following reasons: For that for all of the several years, from the time of the purchase of the said land up until the time of the said attempted conveyance, the title of the same was in the defendant Henry Trier, with the full knowledge and consent of Elizabeth Trier, his wife, now defendant in the said answer, and with the knowledge that the said Henry Trier was receiving and had received, was directing and had directed, upon the strength of such credit so secured, by reason of his holding the title to the lands and the reason of the value of the said lands.
“3. The plaintiff herein again alleges each and every fact as fully as if the same were herein set out at large, contained in their petition, and ag-ain asks for judgment as in said petition prayed.”

The attempt to plead the estoppel is in the second paragraph. After the averment that the title was for several yeans in Trier with the knowledge and consent of his wife this paragraph becomes unintelligible. Whatever the pleader, may have intended to charge he certainly did not charge that Henry’s title to the land was used as a basis for obtaining credit, or that plaintiffs had relied thereon in extending credit, or that plaintiffs had altered their position to their disadvantage. The matter now relied on was, therefore, not in issue, nor was it pleaded and admitted.

Affirmed.  