
    John Vellum, Resp’t, v. Charles Demerle, Impl’d, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Mortgage—Estoppel.
    Where a husband who has quitclaimed to his wife property previously conveyed to them both, procures a loan thereon by representations that the wife is the owner and the wife gives a mortgage thereon, the husband is estopped, upon her death, from claiming that the land was held by himself and wife as tenants by the entirety, and that the mortgage is not a lien.
    2. Same.
    Such estoppel may be availed of by the assignee of the mortgage, where it was understood at the time of giving the mortgage that the mortgagee intended to assign it.
    Appeal from judgment in favor of plaintiff in an action to foreclose a mortgage.
    
      Elihu R. Sherman, for app’lt; William W. Hammond, for resp’t.
   Lewis, J.

This is an action to foreclose a mortgage upon real estate. The premises mortgaged were conveyed to the defendant, Charles Demerle, and Mary E. Demerle in 1874. They were at the time of the conveyance to them husband and wife, but no mention of that fact was made in the deed to them. On the 4th day of June, 1879, Mr. Demerle executed and delivered to Jacob Wolfe a quitclaim deed of the premises in question, and on the same day Wolfe and his wife conveyed the premises by a quitclaim deed to Mary E. Demerle. These deeds were duly recorded. The record title to the mortgaged premises remained in Mrs. Demerle until the time of her death, which occurred on the 6th day of March, 1890. Mrs. Demerle left her surviving her husband, Charles Demerle, and several children of the marriage.

On the 15th day of August, 1889, the defendant, Charles Dernerle, requested Mr. James Read to sell him a threshing machine, at the price of $950, on credit; and, to induce Mr. Read to sell him the machine on credit, Demerle stated and represented to Mr. Read that his (Demerle’s) wife was the owner of the premises mentioned; that he had quitclaimed his interest in the land to his wife, and that she owned the farm; and he promised and agreed that, if Read would sell him the machine on credit, Mrs. Demerle would give her note for the purchase price, and would secure its payment by mortgage upon the farm. Read replied to Demerle that he was not in financial condition to hold the note and mortgage himself, but that he would look around for a day or two, .and if he could find some one to take the securities, he would sell Mr. Demerle the machine. Mr. Read found that the plaintiff would take the securities, and, believing Demerle’s representations to be true, and relying upon them, sold and delivered the machine to Mr. Demerle, and Mrs. Demerle gave Mr. Read the note and mortgage in question in payment of the machine, and on the 25th day of ¡November following Read assigned and transferred the note and mortgage to the plaintiff. The note falling due, and not being paid in full, this action was instituted to foreclose the mortgage. Demerle interposed an answer, That, at the time of the execution by Mary B. Demerle of the mortgage described in the complaint herein, this defendant and said Mary E. Demerle owned the premises described in said mortgage as tenants by the entirety; that by the death of said Mary E. Demerle, wife of this defendant, on or about the 4th day of March, 1890, this defendant became the owner in fee of said premises, and this defendant is now the owner in fee of said premises; that this defendant did not join in the execution of said mortgage, and that said mortgage is not a lien upon said premises.” The action came on for trial at a term of the Erie county court, and judgment was directed for the plaintiff for the foreclosure of the mortgage and the sale of the premises, and an appeal was taken therefrom to this court

It is the contention of the defendant, Charles Demerle, that, as he and his wife held the title to the premises as tenants by the entirety, he could not, while his wife was living, convey his interest in the property, and that the deed to Wolfe did not convey any interest in the land thus held by himself and wife, and that upon the death of his wife he became seized of the entire estate, free from the lien and incumbrance of the mortgage. Whether this contention be sound or not it is not necessary to consider here, for this judgment, in our opinion, should be affirmed upon the ground that the defendant is • estopped from questioning the lien of the mortgage. After making the representations he ■ did to Read, and thereby inducing him to part with his property, he should be held to be estopped from questioning the validity of the mortgage. It would be a miscarriage, certainly, of justice if he could be allowed, after inducing Read to part with his property upon such representations, to set up the invalidity of his wife’s title. The owner of the legal title who acquiesces in the sale of the land by another, and advises and encourages the sale, will be estopped from setting up his title against the purchaser. Storrs v. Barker, 6 Johns. Ch., 166; Wood v. Seely, 32 N. Y., 105. A party who stands by in silence, and permits another to act upon an erroneous state of facts, will not be permitted thereafter to set up the truth to the injury of such person. Erie Co. Savgs. Bank v. Roop, 48 N. Y., 292; Lee v. Porter, 5 Johns. Ch., 268. All the knowledge Read had concerning Mrs. Demerle’s title, so far as the' record before us shows, was derived from his conversation with. Demerle, heretofore stated. He .did not know whether Demerle and" his wife held the title to the farm as tenants in common, "joint tenants, or as tenants by the entirety. Notwithstanding Mr. and Mrs. Demerle sustained the relation of husband and wife to each other, they could have held the title either as joint tenants, tenants in common, or tenants by the entirety, depending upon the form of the conveyance under which they got the title. Demerle said to Mr. Read that he had conveyed to his wife, and that she owned the farm. Read was justified in assuming that their title was such that Demerle could convey, as he represented he had, to Ins wife. Ignorance of the law will not prevent the application of the rule of equitable estoppel. Tilton v. Nelson, 27 Barb., 595.

It is suggested by the appellant that the representations were made to Mr. Read, and not to the plaintiff, and that the plaintiff, who afterwards took an assignment of the mortgage, cannot avail himself of the doctrine of estoppel. Read, as we have seen, stated to the defendant that he was not able to hold the securities and give the credit, but if he could find some one who would, he would make the trade, and that he did find one who would take the securities, and he thereafter assigned them to the plaintiff. The plaintiff, we think, took the securities with all the equities that Read had in them.

While the complaint, as is contended by the appellant, fails to state the facts out of which the estoppel arises, it does not appear that the plaintiff was aware of the facts at the time the complaint was drawn. The facts are stated in the defendant’s answer. The plaintiff was at liberty to meet these allegations in the defendant’s answer by proving the facts out of which the estoppel arose, and if necessary the complaint can be amended to meet the facts. But we do .not deem it necessary. Plaintiff was entitled to the relief demanded in his complaint on the evidence presented, and. the judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  