
    Center v. Weed.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1892.)
    1. Estoppel in Pais—Fraudulent Procurement of Deed.
    Plaintiff and defendant, with their two sisters, were the sole heirs of their father and mother. They inherited from their father three parcels of land. The mother . died in possession of a homestead and certain furniture, but she had conveyed the-.' same to defendant by a deed, which the latter withheld from record. By fraudulently representing that the same had never been conveyed, defendant induced-plaintiff to become a party to two deeds, by one of which one "of the sisters quit-claimed to the other three all her interest in two of the parcels of their father’s., land and in the homestead, in consideration of the other deed, whereby the gran- " tees in the first quitclaimed to her all their interest in the remaining parcel of the father’s land. Field, that defendant was estopped from asserting, as against plaintiff, title under the deed from his mother, and plaintiff would be adjudged to be the-owner of one-third of the homestead and of one-fourth of the personalty.
    2. Same—Equity Jurisdiction.
    As the legal title to the premises was in defendant, and ejectment would not lie, and as plaintiff’s remedy was not confined to an action for damages, an action to-enforce her rights was properly brought in equity.
    3. Same—Objections Waived—Pleading.
    A defense that an action is one of which equity has no jurisdiction is waived un-“ less pleaded.
    
      4. Same—Possession of Plaintiff—Quieting Title.
    Code Civil Proc. § 1638, prescribing three years’ actual possession in plaintiff before an action can be maintained to determine conflicting claims to real estate, does, not govern such action, being applicable solely to actions founded on an alleged, legal title.
    Appeal from judgment on report of referee.
    
      Action by Ella Weed Center against James I. Weed. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before Dwight, P. J., and Lewis and Macomber, JJ.
    
      J. B. Teller, for appellant. O. M. Elliott, for respondent.
   Dwight, P. J.

The parties to the action were brother and sister, and, with two other sisters, were the only heirs at law and next of kin of their father and mother, both of whom had died intestate within a year before this action was commenced.. The father died seised of three parcels of real estate in the village of Weedsport, and the mother had been, and it was supposed by the sisters that she was at the time of her death, the owner in fee of the homestead house and lot in the same village, and the household furniture therein, of which she died in possession. In fact, however, she had, shortly after the death of her husband, conveyed the homestead and furniture to the defendant—subject to her own use during her life—by a deed which he had withheld from record, and the existence of which he had concealed from his sisters, although he had been in the possession of the property conveyed from the time of his mother’s death. The defendant, moreover, for the purpose of inducing the plaintiff to become a party to the two deeds hereafter mentioned, fraudulently represented to her that his mother had never parted with her title to any of the property in question, but that his sisters and himself had inherited it from her, and, in effect, that, if the proposed deeds were executed, the plaintiff would become the owner of one-tliird of the homestead property as well as of certain property left by her father. By such concealment and fraudulent representation the defendant induced the plaintiff to become a party to two deeds, by one of which Mrs. Putnam, one of the heirs, quitclaimed to the other three all her interest in two parcels of the real estate of their father, and in the homestead real estate, in consideration of the other deed by which the three grantees in the first quitclaimed to her all their interest in the remaining parcel of the father’s real estate, consisting of eight acres of land, with farm buddings. The deeds were prepared for execution, with the knowledge and assistance of the defendant, on the 3d day of April, and were executed, acknowledged, and delivered on the 5th day of the same month; but intermediate their preparation and their execution the defendant caused his deed of the homestead to be recorded. These facts were found by the referee with great particularity of detail, and upon proofs which support the findings; and he found, as conclusions of law therefrom, that the defendant is estopped from denying, as against the plaintiff, the truth of the representations above mentioned, and is bound to make them good; that he is es-topped from asserting, as against the plaintiff, any title in himself, under the deed from his mother, to the one-third interest in the homestead and the one-fourth interest in the personal property which he represented would be hers in case she entered into the proposed arrangement with Mrs. Putnam; that the plaintiff is entitled, legally and equitably, to an undivided one-third interest in the homestead property, and to an undivided one-fourth part of the personal property in those premises; that she is entitled to a decree adjudging her seised in fee of an undivided one-third part of the homestead premises, and the owner of an undivided one-fourth interest in the personal property thereon; and that the decree should direct the defendant forthwith to convey to her, by good and sufficient deed, such interest in the homestead premises; and judgment was directed and entered accordingly.

We have no doubt that the case was properly one of equitable cognizance. The plaintiff could not have maintained ejectment for an undivided share of the premises in question, because the legal title to the whole was in the defendant. Nor was she, on the facts of this case, confined to her action for damages by the fraud of the defendant. The mere finding that the defendant was not insolvent at the time of the commencement of the action gives no assuranee of his ability to respond in damages for the wrong done to the plaintiff, and the whole case tends to show that the only effectual remedy for her was to be found in a resort to the land itself under the protection of a Us pendens. Besides, equity acquired jurisdiction of the case by virtue of the allegation of the complaint that the deed to the defendant from his mother was without consideration, and was obtained by fraud and deceit; and, albeit that issue was finally decided adversely to the plaintiff, equity, having thus acquired jurisdiction of the action, will retain it until the whole subject is disposed of. Hollister v. Stewart, (N. Y. App.) 19 N. E. Rep. 782; Ostrander v. Weber, (N. Y. App.) 21 N. E. Rep. 112; Valentine v. Richardt, 126 N. Y. 272, 27 N. E. Rep. 255. Moreover, the defendant waived the defense that the plaintiff had her remedy at law by not pleading it. See the cases last cited, and Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541.

The case is clearly not within the statutory rule which prescribes three years’ actual possession in the plaintiff before an action can be maintained to determine' conflicting claims to real estate. Code Civil Proc. § 1638. It is apparent from the terms of that statute that the action there given is one which is based upon the legal title held or claimed by the plaintiff, and that it has no reference to án action for similar relief which proceeds upon equitable grounds; and, so far from possession in the plaintiff being required in the latter class of actions, relief may, in a proper case, be obtained to set aside a deed, or remove a cloud upon title, and to recover possession, in a single action, (Lattin v. McCarty, 41 N. Y. 107; Phillips v. Gorham, 17 N. Y. 270; Bockes v. Lansing, 74 N. Y. 437, 443;) the proper cases for the exercise of such jurisdiction being those in which special circumstances of an equitable character exist, outside the legal title and right to possession, (Moores v. Townshend, 102 N. Y. 387, 393, 7 N. E. Rep. 401.) We can have no doubt that an equitable estoppel, especially when it is created by intentional and fraudulent representation, may become the basis for affirmative equitable relief. The principle is fully recognized, though not actually applied, in the case of Banking Co. v. Duncan, 86 N. Y. 221, where, as we gather from the opinion of the court by Andrews, J., at pages 228-230, the plaintiff would have been held entitled to affirmative relief against the defendant, if there had been a finding of fraudulent representation or concealment on the part of the latter, in respect to the title to property which had been conveyed to him by a deed not recorded, or proof that his withholding his deed from record was with a fraudulent intent. The cases of Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Hungerford v. Earle, 2 Vern. 261; and Storrs v. Barker, 6 Johns. Ch. 166,—were cited as authority for such holding, and in those cases the principle of estoppel was distinctly applied in favor of the plaintiff in the action. In the opinion referred to the court says: “To authorize the finding of an estoppel in pais against the legal owner of land, there must be shown, we think, either actual fraud, or fault or negligence equivalent to fraud, on his part, in concealing his title.” There can be no question but that the present case comes fully up to the requirements of the rule thus stated. Here the defendant not merely concealed the fact that he held a deed of the homestead property, but affirmatively represented that his mother had never parted with her title to it, and that it belonged, by inheritance, to the four children; and this he did for the purpose of inducing the plaintiff to consent to a division of his father’s estate, by which he would himself be the gainer to the extent of one-third of the interest of his sister Mrs. Putnam in that portion of the property quitclaimed by her; and it was by means of these representations that he induced the plaintiff to part with her interest in the eight acres conveyed to Mrs. Putnam. There can be no doubt of the application here of the principle of estoppel. The only question is of the extent to which that principle shall apply in favor of the plaintiff. In Grissler v. Powers, 81 N. Y. 57, the court, in an opinion by Andrews, J., says: “The general rule as to estoppel, where it arises upon a false representation acted upon, is that it operates to the benefit of the party entitled to it, to the same extent as if the representation had been true;” and, further: “The estoppel created by a false representation, acted upon, is commensurate with the thing represented, and operates to put the party entitled to the benefit of the estoppel in the same position as if the thing represented was true.” Mr. Pomeroy, in his treatise on Equitable Jurisprudence, says that the party against whom such an estoppel is established “may be compelled, at the suit of an innocent purchaser, to make good and specifically perform his representations. Fraud, actual or constructive, is the essential and central element,” (2 Pom. Eq. Jur. § 821;) and further: “The general rule is that if a person interested in an estate knowingly misleads another into dealing with the estate as if he were not interested, he will be postponed to the party misled, and compelled to make his representations specifically good,” (Id. § 807.) It is contended on the part of the appellant here that the principle of estoppel, if it has any operation in this case, can only operate to require the defendant to make good his representations to the extent of the interest in the homestead property which the plaintiff would have taken under the deed of Mrs. Putnam had the latter been, as the defendant represented, the owner of one-fourth of that property; and the interest thus acquired would have been only one-third of one-fourth, or one-twelfth, of the property in question. But this view of the case we regard as too restricted. The representations of the defendant were not confined to a statement of what the plaintiff would receive under the deed from Mrs. Putnam, but extended to an assurance that, by entering into the general scheme for a division of the inheritance, and parting with her interest in the eight acres, the plaintiff would become the owner of one-third of the homestead real estate and one-fourth of the household furniture; and such would have been the case but for the deed which he held and fraudulently concealed. It was in reliance upon this representation of the status of the title, and in the expectation of this result, that the plaintiff consented to the scheme proposed, and parted with her property. Under the doctrine of the authorities-cited, we think the conclusion of law of the referee was correct, that the defendant was bound to make good to the plaintiff the representation in respect to the title to the property of his mother. Hone of the exceptions to the reception and exclusion of evidence on the trial seem to have been well taken. The judgment appealed from should be affirmed. Judgment affirmed, with, costs. All concur.  