
    Edgar v. Richardson.
    A wife deserted her husband, and after being defeated by him in an effort to obtain a divorce, went to parts unknown, and remained away about three years. On her return to the neighborhood of her husband, she declared that during her absence she had obtained a divorce, but declined to tell where she had been. A few years after, her husband, with a view of marrying again, if she had obtained a divorce, sent a messenger to inquire of her as to the truth of the matter relating to the alleged divorce, to whom she stated that she went away to procure a divorce without interference from her husband, and that she did obtain a divorce, and hoped he would marry again. Soon after, he communicated this information to the defendant, a'nd they were married; and, about the same time, his first wife also married again, and lived with her second husband. A few years later, the first husband died, childless and intestate; thereupon, his first wife, claiming to be his heir, conveyed a tract of land, of which he died seized, to the plaintiff, who brought this action against the second wife to disposses her of the land; and, on the trial of the case, the first wife testified that she never procured a divorce. Held:
    
    1. That the admissions of the first wife, that she had obtained a divorce, though relating to a matter of record, were, as against a party claiming under her, admissible in<evidence.
    2. A finding upon such evidence — corroborated by her conduct — in accordance with the truth of such admissions, though contradicted by her unsupported testimony, would not be clearly against the evidence, and therefore could not be regarded by a reviewing court as erroneous.
    Error to the District Court of Wood county.
    The original action was brought in the Court of Common Pleas of Wood county, in 1866, by the plaintiff, William Edgar, to recover of the defendant, Fidelia Richardson, forty acres of land in her possession. The plaintiff averred, in his petition, that he was the ownei of the land and entitled to its possession. The defendant answered, averring that her name is Eidelia Edgar, and denied the averments of the petition. At the trial a jury was waived, and the case was tried to the court which found the issues for the defendant, and rendered judgment in her favor. The plaintiff moved for a new trial, on the ground that the judgment was against the law and the evidence; the motion was overruled; to which the plaintiff excepted, and brought all the evidence on the record. The case was taken by the plaintiff, on error, to the district court, which affirmed the judgment. To reverse these judgments, the present petition in error is prosecuted.
    The case, as disclosed by the bill of exceptions, is substantially, as follows: Both parties claim title under John Edgar who died childless and intestate. Ills title to the ■land was'such that, under the statute, it descended to the wife, relict of the intestate. In 1841, he was married to Sarah Ann Dubbs, who survived him and conveyed the land to the plaintiff; this constitutes the plaintiff’s title to the land.
    To defeat this title, the defendant relies on the following facts: After the marriage of Edgar and Sarah Ann, they lived together about fourteen years, when Edgar took up his residence on the land in question, in Wood county; but bis wife refused to live with him, and after about a year, applied in Lucas county for a divorce. Edgar opposed the divorce, and she was defeated. She then went away and remained for about three years, when she returned to her father’s house, in the neighborhood of her husband, in Wood county, and said to her relatives and acquaintances that during her absence she had obtained a divorce, but then, and ever afterward, refused to tell where she was during that time. Edgar continued to reside on his farm, and Sarah Ann, soon after her return, made Toledo her place of residence, where she stated and caused it to be believed that she had obtained a divorce from John Edgar. After waiting a few years, Edgar desired to marry if he could be made certain that a divorce between him and Sarah Ann had been obtained. Accordingly, Edgar sent the father of Sarah Ann to Toledo to ascertain from her the truth about her having obtained a divorce. She assured her father that she went away and did not let Edgar know where she was, so that she could obtain a divorce from him, and did obtain a divorce, and showed him some papers to confirm it; and, on being told that Edgar desired to marry again, she said that she wished he would marry again. Soon after this occurred, Edgar communicated what he had done and the information obtained to Fidelia Richardson; thereupon, on the 28th day of May, 1862, he and Fidelia were married, and lived together as husband and wife until his death in 1866. About the same time that Edgar married Fidelia, Sarah Ann married one McEessick, with whom she has ever since lived as her husband. The plaintiff excepted to the admission of the evidence. proving the statements of Sarah Ann about her having obtained a divorce from John Edgar.
    To rebut the evidence introduced by the defendant, of the admissions of Sarah Ann that she had procured a divorce from Edgar, the plaintiff gave in evidence the deposition of Sarah Ann McEessick that she married John Edgar in 1841, and never was divorced from him.
    
      Tyler § Meehan, for plaintiff in error:
    There is no proof in this case showing that Sarah Ann was divorced in fact at the time of her husband’s death. But it is said that because Sarah Ann neglected to disclose her whereabouts during her absence, that she must be presumed to have obtained a divorce.
    To that we say that Sarah Ann swears positively that she was never divorced from John Edgar (Record, 12). Neither did defendant in error ask her vdiere she was during her three years’ absence on cross-examination. She may have reasons best known to herself for not making this matter known to husband and friends.
    
      But we claim that even if Sarah Ann had obtained a divorce during her absence, it being admitted that her husband had no notice, it would be utterly void; for it is well settled that where one of the parties to a marriage goes into another state or county for the mere temporary purpose of obtaining a divorce, and obtains it, the other party having no notice of the proceedings, and not having appeared therein, the divorce so obtained is void and of no effect. And if a party who thus obtains a divorce enters into a formal marriage with another person, the marriage is alike void. McGifferty v. McGifferty, 17 How. (N. Y.) 18; s. c. 31; Barb. 69; Hoffman v. Hoffman, 55 Barb. 269; s. c. affirmed, 46 N. Y. (Sick.) 30; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; 25 Mich. 24; Cox v. Cox, 19 Ohio St. 502.
    Neither will the record of such divorce work an estoppel ; as where the defendant was a non-resident and the recital was that he had notice of the pendency of the suit. Downer v. Shaw, 22 N. H. 277; Shulton v. Tiffin, 6 How. 163; Watson v. New England Bank, 4 Met. 346; Wescott v. Brown, 13 Ind. 83; Harshey v. Blackman, 20 Iowa, 161. So, notwithstanding such divorce (if ever obtained, which we deny), Sarah Ann remained the “wife relict” of John Edgar, and as such the lands descended to her on his death.
    It will also be noticed that at the time Sarah Ann is said to have made the representations relied on as constituting an estoppel in pais, she had no estate or interest in the lands in controversy, except an inchoate right of dower in case her husband conveyed the same without her joining in the deed.
    This being the ease, the only question presented is: Will acts or conduct amounting to an estoppel in pais by a party having but a contingent interest in lands at the time of the acts or representations relied on as the predicate of the estoppel, furnish a court of equity sufficient ground on the happening of the contingency to turn the estate from vesting in the party guilty of the false representations, and give it to the party claiming to be deceived.
    At common law where a person having no title conveyed by feoffment, fine, recovery, or lease, by indenture, and afterward acquired title, it was held that the after-acquired title would feed the estoppel created by the conveyance, and convert the same to an interest in the grantee, so as to conclude the grantor and all persons claiming under him. If one having no title to land conveys the same with warranty by deed, which is duly recorded, and afterward acquires a title and conveys it to a stranger, the second grantee is estopped to aver that the grantor was not seized at the time of his conveyance to the first grantee. White v. Pattern, 24 Pick. 323; McCluskey v. McEvey, 9 R. I. 528; 11 Am. R. 295, and cases there cited; Douglas v. Scott, 5 Ohio, 195.
    But while this is true as regards deeds with full covenants of warranty, mere grants, releases, or quitclaims never possess the high function of transferring an after-acquired title or interest, the warranty to feed the estoppel being wanting. Lessee of Kinsman v. Loomis § Wood, 11 Ohio, 475; Comstock v. Smith, 13 Pick. 116; Blanchard v. Brooks, 12 Pick. 67; Biglow on Estoppel, 346.
    So, then, if a party be not estopped from claiming an after-acquired title even as against his quitclaim deed and payment of purchase-money, how can it be said that he is estopped from claiming such after-acquired title or interest by acts or conduct amounting to an estoppel in pais only? It was held, in the case of Gonzales v. Hukill, 49 Ala. 260 (20 Am. R. 283), where a husband and wife conveyed land as the husband’s, neither having any title or interest in the land at the time of the conveyance, “ that the wife was not estopped from setting up against the grantee a title to such land thereafter acquired by her.” We claim that in order to make an estoppel in pais effectual, the party sought to be estopped must be the owner of the property at the time the estoppel is said to have arisen, and that the very acts or conduct out of which the estoppel is to arise must be in reference to the identical property or thing claimed.
    Por in order to constitute an estoppel by conduct the.following elements must be present:
    1. The action of the party alleging the estoppel must have been influenced by the acts or conduct upon which the estoppel is sought to be based.
    2. It must have been made with the intention that the other party should act upon it.
    3. The other party must have been induced to act upon it.
    4. The act out of which the estoppel is to arise must have been performed by the party against whom it is to be set up, with full knowledge of his rights. Biglow on Estoppel, 480.
    But in this case it will be noticed that every element necessary to constitute an estoppel in pais is wanting. Sarah Ann was not the owner of the property claimed at the time she is said to have made the false representations. She never by word or act influenced the conduct of Pidelia as to the property claimed, nor was Pidelia in the neighborhood at the time she is said to have reported that she was divorced. So, in order to maintain the position contended for on behalf of defendant in error, this court must hold that the representations made by Sarah Ann had the effect of divorcing her from her husband. Nothing short of this can prevent the estate from vesting in her on the death of her husband as his “ wife relict.”
    Sarah Ann being a feme covert at the time, even if she was the owner of the lands in controversy as her separate estate, she could not be deprived of the same by conduct amounting to an estoppel in pais; for she would not be es-topped by her deed if it was not executed in conformity with the statute, and what she can not do directly, she can not do indirectly. Todd v. Pittsburg, Fort Wayne and Chicago R. R. Co., 19 Ohio St. 514; Miller v. Hine, 13 Ohio St. 565; Glidden v. Strupler, 2 Smith (Penn.), 400 ; Stevens v. Parish, 29 Ind. 260; Lowell v. Daniels, 2 Gray.
    
      This doctrine is equally well settled by the English courts, that a married woman can not divest herself of her estate except in the mode pointed out by the statute. Jackson v. Hobhouse, 2 Merivale, 282; Nicoll v. Jones, 36 L. J. Eq. 554.
    Her deed or contract not in conformity with the statute is utterly void, and as such can not operate to estop her, and there can be nothing in such case upon which an estoppel in pais can operate to give efficiency to a deed or other contract not binding under the statute. Biglow on Estoppel, 485.
    If the married woman had no title when she conveyed, but afterward acquired the title, and is neither by common law nor statute estopped by covenants or recitals, upon the principle of estoppel by deed, how shall she be bound upon the principle of estoppel in pais ?
    
    We further claim, that even if the descent had been cast on Sarah Ann, and that her acts and conduct amounted to an estoppel in pais, that it would not have the effect of divesting her of the legal title; because that would be permitting an estoppel resting in parol to transfer the title contrary to the statute of frauds.
    It was held, in the case of Hayes v. Livingstone, 34 Mich. 384, Cooley, C. J., that, “ under the statute of frauds, it is not permissible that an estoppel in pais should work a transfer of the legal title to land.” See also Parker v. Barker, 2 Metc. 423 ; Swick v. Sears, 1 Hill, 19; Davis v. Davis, 26 Cal. 23. This question is distinctly met in Doe v. Walters, 16 Ala. 714, and Mills, v. Graves, 38 Ill. 455-466; in the former case, it was said by Dargan, C. J., delivering the opinion of the court, that, “the title to land can pass only by deed, and an estoppel at law which works a divesture of title can be created, in my opinion, only by as high evidence.” And in the latter case, Walker, C. J., says: “Had the acts which Avere proved constituted an estoppel, it would have been simply an equitable right incapable of assertion in a court of law.” Blake v. Fash, 43 Mich. 302; Ryder v. Flanders, 30 Mich. 334, 336.
    
      
      James JR. Tyler, also for plaintiff in error :
    We claim the law of the case to be this :—
    
      First,. — The best evidence of a divorce having been decreed at any tii^e prior to the decease of John Edgar, between said John Edgar and Sarah Ann, is the reeord of an action for divorce, showing a decree dissolving the marriage contract. And, that secondary evidence of the divorce is inadmissible unless the defendant first shows that said reeord once existed and is now lost or destroyed.
    
      Second. — We claim that the weight of evidence as given shows that no divorce was ever granted, and, that the said Sarah Ann is the widow relict of said John Edgar, deceased; and that Fidelia Richardson never was his lawful wife.
    
      Third. — It may be said that Sarah Ann is now estopped by her declaration as to the divorce. To this we may assume that there is no proof whatever that Fidelia acted upon or acquired any rights in consequence of, or did anything upon the faith of said representations.
    
      Fourth. — Again, we claim that positive acts of encouragement, which might 'operate to estop one sui juris will not affect one under legal disability (as is a married woman). We refer the court to the case of Glidden v. Strupler, 52 Penn. 400.
    
      James Murray, also for plaintiff' in error.
    
      F. ¿f1 JD. K. Hollenbeck, for defendant in error:
    We hold, upon two grounds, that the plaintiff must fail to recover.
    1. That Sarah Ann, the grantor of plaintiff, is estopped from denying her acts, declarations, or admissions, which were designed to influence the conduct of the defendant, and did influence it, and when such denial will operate to the injury of the latter.
    We do not claim that a divorce can be worked out by estoppel, but we do claim that a married woman is estopped by her acts, declarations, or admissions, in so far as they affect property rights or interests, the sanie as though she were a male person or a feme sole.
    
    2. That a divorce in fact is proved by the best evidence which, was possible for the defense to adduce.
    I. A party is estopped from denying his or her own acts, declarations, or admissions, which were designed to influence the conduct of another, and did influence it, when such denial will operate to the injury of the latter. Pickard v. Lears, 6 Ad. & E. 469; Hutton v. Rosseter, 31 Eng. L. & E. 231; Kinney v. Farnsworth, 17 Conn. 355; Pierson v. Wheeler, 17 Conn. 345; Roe v. Jerome, 18 Conn. 138; Middletown Bank v. Jerome, 18 Conn. 443; Martin v. Angell, 7 Barb. 407; Whitacre v. Culver, 8 Minn. 133; Douglas v. Scott, 5 Ohio, 194-197; Bocock v. Pavey, 8 Ohio St. 281.
    The particular intention or design with which the declarations are made or acts done, is not material, so that the natural consequence of the words or conduct influences another to change his or her condition. Broom’s Legal Maxims, 219, and authorities cited; 1 Green. Eq. § 207, and authorities cited; Hicks v. Cram, 17 Vt. 449; Rangely v. Spring, 8 Shep. 130; Otis v. Sill, 8 Barb. 102; Hall v. Fisher, 9 Barb. 17; Edmondson v. Montague, 14 Ala. 370 ; Lawrence v. Brown, 1 Selden, 394; Carpenter v. Stilwell, 12 Barb. 128; McClellan v. Kennedy, 8 Md. 230; Morris Canal Co. v. Lewis, 1 Beasley (N. J.), 323; Mitchell v. Reed, 9 Cal. 204; Preston v. Mason, 25 Conn. 118; Thompson v. Thompson, 9 Ind. 323; Quirk v. Thomas, 6 Mich. 76; Manufacturer’s Bank v. Hazard, 30 N. Y. 226.
    A party is estopped from introducing evidence of facts inconsistent with an admission which he has made, where the opposite party has acted upon such admission, and would be injured by a disproval of its truth. Hawley v. Griswold, 42 Barb. 18.
    II. Sarah Ann Edgar and John Edgar were divorced from each, other.
    In this, as in every other, the best evidence of which the case is susceptible, must be adduced if practicable. And in this, as in every other, the rule is applicable, that, where the best evidence can not be obtained, secondary evidence will be let in. We can not adduce the record evidence of the divorce for the reason that Sarah Ann will not disclose where she was during her three years’ absence, and it was during that time, as she says, the divorce was obtained. That, we hold, is sufficient ground to let in secondary evidence.
    What then is the evidence ? Briefly this : She made an effort in the Lucas Common Pleas to obtain a divorce, but being opposed by her husband, John Edgar, she failed. She then left Toledo, and went to parts unknown to her father and friends, and remained concealed from them during at least three years. To the day of the trial of the cause, she did not disclose, even to her father, where she was during those years. When chided by her father for not informing him of her whereabouts during that time, she answered that she did not let them know where she was, as John (her husband) kept bothering her to come and live with him, and also that she might obtain a divorce from her husband, and not be again defeated by his opposition. She then declared to her father that she had obtained a divorce while absent, and exhibited a paper, which, she stated, contained the evidence of the fact. She also declared to Frank Dubbs and Wm. C. Lathrop, of Jackson township, that she was divorced, and to the latter, that she was going to marry again. She informed her friends at Toledo that she was divorced, and, in accordance with her statement to Lathrop, she did marry McKessick, years before the death of Edgar, and has lived and cohabited with him from thence hitherto.
    There can be no doubt that, generally, declarations and conduct like these, on the part of one in interest, would legally establish the fact sought. Can there be any reason why they should not in this case? Gaines v. Relf and others, 12 Howard (U. S.), 472; Carroll v. Carroll, 20 Texas, 721.
    
      
      James B. Tyler and II. H. Dodge, in reply :
    As to secondary evidence of the divorce. It is admitted that this could not be introduced without accounting for the absence of the record.
    “ Even the admission of a fact by a party, unless solemnly made, and as a substitute for other proof, does not supersede direct proof of matter of record by which it is sought to affect him.” 1 Greenl. on Ev., § 86.
    The reason is, that the record, being produced, may be found irregular and void, and the party may be mistaken. 1 Greenl., § 86; Scott v. Clare, 3 Campb. 236; Jenner v. Joliffe, 6 Johns. 9; Welland Canal Co. v. Hathaway, 8 Wend. 480; 1 Leach Cr. C. 349; 2 Leach Cr. C. 625, 635.
    It is said by counsel for defendant, that, “ Sarah Ann McKessick will not disclose where she was during her three years’ absence, and it was during that time that the divorce was obtained.
    It is a sufficient answrnr to this to say that when Mrs. McKessick was on the stand, the defendant neither asked her where she was during that time, nor has he taken any means whatever to find out.
    It is proved that she was in Portage county a part of the time, and they have not even searched the records there.
   Day, J.

The errors assigned present two questions: 1. Did the court err in permitting the defendant to prove admissions of the grantor to the plaintiff, that she and her husband, John Edgar, were divorced; 2. If not, is the judgment unsustained by the law and the evidence.

The plaintiff sought to establish his title to the land in dispute through a deed to him from Sarah Ann Edgar; he was, therefore, in privity of estate with her; and, for that reason, her admissions before the conveyance, which would have been admissible against her had she been plaintiff- in the action, were admissible against him. 1 Greenl. Ev., § 189.

He could recover only upon the strength of her title, which depended solely upon her being the wife relict of John Edgar, deceased. To establish that fact, the plaintiff proved that Sarah Ann married Edgar in 184.1, and that he died in 1846 without issue. The plaintiff rested on the presumption that she continued to be the wife of Edgar until his death. To rebut this presumption, the defendant was permitted to prove, by said Sarah Ann’s admissions during the time she claimed to be Edgar’s wife, that she had procured a divorce.

This evidence was objected to, on the ground that a divorce is a matter of record an(j can not be proved by secondary evidence. This objection loses much of its force from the fact that the person who made the admissions, and whose interests were affected thereby, refused to disclose where the record could be obtained, thus putting it out of the powrer of the defendant to prove the alleged divorce by the record if it existed; therefore, the admissions of Sarah Ann, were, by reason of this concealment, the best evidence attainable by the defendant.

But admissions of a party relating to the contents of written instruments, in general, are not regarded as secondary evidence, and though they relate to a record, if the place where it can be obtained be coueealed by the party, they should form no exception to the rule.

The competency of such admissions as primary evidence, it is true, has often been denied, but the weight of authority, both in England and America, favors such admissibility. In Earle v. Picken, 5 C. & P. 542, it-was said by Mr. Justice Parke: “ What a party says is evidence against himself, as an admission, whether it relate to the contents of a written paper, or to any thing else.” In Smith v. Palmer, 6 Cush, 513, it was observed by the judge delivering the opinion of the court, that “ a party’s own statements and admissions are, in all cases, admissible in evidence against him, though such statements and admissions may involve what must necessarily be contained in some writing, deed, or record.” Accordingly, it was held in that case, that admissions of a party relating to a matter of record, were admissible. In Slatterie v. Pooley, 6 M. & W. *664, which is the leading case on the subject, Parke, B., said: “ There have been many reported decisions, that whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions might involve what must necessarily be contained in some deed or writing; for instance, a statement by a party, or one under whom he claims, that an estate had been conveyed to, or from such person, or that such person filled the character of assignee, which only could be by deed, or the like.” This extract from Baron Parke, not only maintains the principle in question, but it shows that it equally applies to the admissions of persons in privity with the party.

In Regina v. Basingstoke, 14 A. & E. 611, it was held by the Queen’s Bench, that the same principle applies to the acts of a party which amount to an admission of matters relating to written instruments; and, in delivering his opinion, Patterson J., said: “■ Slatterie v. Pooley” establishes that, if a party by words admits the contents of a written document, such an admission is legal evidence against him; not as secondary evidence of the contents of the written instrument, but as original evidence. Such an admission is like an estoppel, and as is well put in a note to the case of the Duchess of Kingston, in Smith’s Leading Cases, it is used, ‘ not to supply the absence of the ordinary instruments of evidence, but to supersede the necessity of any evidence by showring that .the fact is already admitted.’” Upon this principle, it is, that the admissions of a party, or of those under whom he claims, are admitted, in connection with other evidence, to raise an estoppel; “ and so, too, has it been held, that an admission -which is of the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, were it not for the admission, must have been proved by certain steps- appropriated by law to that purpose.” 2 Whar. Ev., § 1086.

It is claimed in the ease before us, that the admissions of the person under .whom the plaintiff claims, in connection with other evidence, worked an estoppel, and was con-

elusive of the fact that she had obtained a divorce, and so was not the wife relict of John Edgar, deceased, and, if they do not rise to so high a degree, that they are admissible as evidence, to be considered in determining whether she had in fact-obtained a divorce. But the question we are now considering, is not the weight and value of the testimony ; it relates solely to its admissibility. Upon that point, the principle of the case of Slatterie v. Pooley, has been followed in Wolverton v. The State, 16 Ohio, 173; Loomis Adm’r. v. Wadhams, 8 Gray, 557; Taylor v. Peck, 21 Grat. 11; Howard v. Smith., 3 Scott’s N. E. 574; Murray v. Gregory, 5 Weis. & Hurl. 468; Pritchard v. Bagshawe, 11 Com. B. 459.

Having shown that admissions of a party, relating to matters contained in written instruments or records, are not excepted from the general rule allowing such 'admissions to be given in evidence, the point under consideration falls within the principles announced by Mr Justice Catron, in delivering the opinion of the court, in the case of Myra Clark Gaines v. Relf, 12 How. (U. S.) 472, 530, as follows:

“ If Zulime was now before the court, claiming her marital interest in Clark’s estate, her declarations made during the alleged coverture tending to show that she was not the wife of Clark, but of Desgrange, would be admissible against her; and if'so, they are also admissible against any one who asserts the same title derived from her, after the declarations were made. Such a case is an established exception to the rule of evidence, excluding declarations of third persons not parties to the record. A declaration emanating from the claimant of any estate, which afterward comes to the parties on the record, by descent or purchase, affecting adversely the estate acquired, may be given in evidence against the party to the record who claims the estate.”

. There was, then, no error in admitting the evidence of the admissions of Sarah Ann, the grantor of the plaintiff, made during her alleged coverture, tending to show that she was not the wife relict of John Edgar, deceased.

The remaining question alises upon the overruling of the motion for a new trial. The ground of the motion was, that the judgment was against the law and the evidence.

The plaintiff made a prima facie case, entitling him to recover. If, therefore, the judgment in favor of the defendant can be sustained at all, it must be upon the ground that the evidence was such as to warrant the court in holding, either that Sarah Ann was in law estopped from denying her declarations, that she was divorced from her husband, John Edgar, or that she had in fact obtained such divorce.

The court made no special finding of facts from the evidence ;' therefore, in looking to the evidence, we must, as a reviewing court, assume, in support of the judgment, the facts tó be what the evidence would finally warrant the court to find as the facts of the case.

It is clear that Sarah Ann undertook, and intended to induce the belief, in whatever neighborhood she resided, that, during her absence of three years in parts unknown, she had obtained a divorce. It is also quite clear, that, after waiting in doubt about the matter for five years, John Edgar, desiring to marry again, if he might lawfully do so, sent her father to learn from her what he might rely upon as the truth about her having obtained a divorce ; that she sent back to him assurances of having obtained a divorce ; and that she intended to induce him to believe it, knowing that he might, in reliance on such belief, materially change his condition. The evidence further leaves the strong impression that both Edgar and Eidelia Richardson believed, and upon the faith of Sarah Ann’s declarations consummated their marriage.

It is true that Sarah Ann had no direct communication with Eidelia; but she undoubtedly intended that her assurances of a divorce sent to Edgar should be communicated, as they in fact were, to the woman he desired to marry. The very object of such assurances was to induce his majh riage; and, from the nature of the transaction, it must have been equally her intention that another should be influenced thereby.

Though Sarah Ann did not directly bring about the marriage of Edgar and Fidelia, the court was warranted in finding, from the evidence, that she induced them to believe that, as against any marital right of her’s, they might lawfully marry.

Having acted upon her assurances, and in accordance with her expressed wishes, a strong case was made, which, but for reasons not affecting the substantial justice of the case, called for the application, as against lier, of the principles of the law which would estop her from denying the truth of her declarations.

But, conceding that the declarations of Sarah Ann do not strictly rise to the degree of an estoppel, or can not be regarded as conclusive, still the question remains, whether the court was clearly unwarranted in finding, from the evidence, that Sarah Ann had been divorced. This question is left to be determined solely upon her own acts and declarations during the alleged coverture, and her testimony in the case. But the point for our determination, as a reviewing court, azising upon this state of the ease is, not whether such divorce had in fact been obtained, but whether a finding by the court below that it had, would be clearly unwarranted by the evidence.

In support of a finding that the divorce had been obtained, there are the declarations of Sarah Ann, strenuously persisted izz during a series of years, that it had been obtained. These declarations are corroborated by undisputed facts. She tided to get a divorce with the knowledge of Edgar; after she was defeated by him, she went to parts unknown, avowedly for the purpose of getting a divorce; she was absent during a period sufficiently long to get it; she exhibited to her father papers to show that she had; she induced her husband to marry again; she married again herself. If not divorced, she knowingly was instrumental in bringing herself and her husband into a state of bigamy, and two other persons into that of adultery. Surely, since she concealed the place where the divorce was obtained, a stronger case to establish a divorce, as against her, could not be made. But now, to establish her heirship to the property of the decedent, she has, in a distant state, given her deposition that she never obtained a divorce. In the light of the evidence in the case, her testimony in a matter affecting her own interest can not be regarded as conclusive.

Her declarations may not rise to the degree of an estoppel against her to deny the truth of her declarations. Nor was the court below estopped from regarding her declarations, supported, by the corresponding acts of her life for many years, as more convincing than her testimony now given to win the estate left by the husband she deserted, and, if her declarations be not true, had fraudulently led into the belief that, as against any marital claim of her’s, he might safely die intestate. We can not say that manifestly the court would not be warranted in finding in accordance with her declarations, corroborated by the acts of her life'. Clearly such a finding would be supported by evidence— evidence, too, the truth of which Sarah Ann can not deny without impeaching her own credibility, and can deny only for the purpose of obtaining what, injustice, should be denied to her.

Since, then, the court of common pleas would not be clearly unwarranted in finding, from the evidence, a state of fact that would in law sustain its judgment in favor of the defendant, the judgment of the district court affirming that of the common pleas must be affirmed.

Judgment affirmed.  