
    
      Peter Cox v. Henry Buck.
    
    Parties to a suit are bound by admissions against their interest, respecting the subject of the action; and such admissions may be proved by the acts and conduct of the parties, as well as by their express declarations.
    Admissions, prima fade, conclusive against the party who makes them, may be explained or qualified; but if evidence for this purpose is introduced, the whole is submitted to the jury, and the liability of the party decided by their verdict as a question of evidence.
    A party who has expressly, or by his conduct, waived his claim or title to property, shall be estopped from asserting it against a party who has acted on the faith of such admission.
    Evidence of positive fraud,is not required to charge a party with his admissions.
    
      New trial ordered, where the Court confirmed the instructions of the Circuit Judge, in his statement of the law which should guide the jury in rendering their verdict; but was equally divided on the question, whether the evidence was sufficient to sustain the verdict.
    
      Before Withers, J. at Horry, Fall Term, 1848.
    The action was trover for two negroes, Jim and Joe. The plaintiff claimed title to the negroes, by virtue of a limitation in his father’s will, wherein he had bequeathed his negroes to his sons, Peter and Harmon, to be equally divided between them, at a time appointed, with the following limitation: “ and if either of my two sons should die without lawful issue, that my other sbn shall have his part of my property.” His Honor ruled this limitation to be valid in favor of the survivor, and i< appeared that Harmon had died without issue, leaving the plaintiff him surviving. Jim and Joe, the negroes in dispute, had been allotted to Harmon in his lifetime, and had, before his death, been sold by the sheriff, by virtue of executions against him, to wit: in October, 1843. The defence before the jury was, that admitting plaintiff’s estate, under the will, he was estopped by his demeanor, at the sale above referred to, from denying the title of the plaintiff — and effectually so, at all events, as to Jim.
    It appeared in evidence, for the defendant, that when the sheriff sold the negroes, under executions against Harmon Cox, the plaintiff was present, and no one heard him make any objection. , Both the boy? were sold on Monday] Buck, the defendant, bought Joe for $472. Jim was knocked down on the same day, to one Kennedy, who failed to comply, and he was, therefore, resold on the next day, (Tuesday,) when Cox, the 'plaintiff, became the purchaser, and transferred his bid of $450 to Buck, the defendant. “ Immediately after the sale (said Mr. Delettre) Cox, the plaintiff, went to Buck to get him to take the bid. Buck refused. He then came to me as Buck’s agent, and I went to Buck on the subject, who , told me to do as I pleased. I then went to Cox, and asked him if he would relinquish all claim, (we were talking about J Jim.) He said he would relinquish all claim on the boy or boys, for they were sold to pay his brother’s just debts, and he should never do any thing mean. Cox seemed anxious to get the bid off his hands: followed me over the street; I asked him what made him bid up so ; he said he wanted the boy to bring his value. I referred to Jim when I asked him whether he would relinquish, and whether he used the term boy or boys, I am not confident, but he did use the term they, when he said they were sold for his brother’s just debts.— Cox seemed agitated. I had heard of the will, (of old Cox,) and I had heard Buck allude to it before that time.”
    On the Monday of the sale, and before it, a witness stated that the plaintiff said to him that his brother was in debt, and his property would have to be sold to pay. He wanted it to fetch its value.
    Another witness said that on the same day, before the sale, Harmon and the plaintiff came to him, and desired him to pay into the sheriff’s office $900, and take Jim and Joe.— “ Peter (the plaintiff) said he wanted them to bring all they could, and wanted me to buy them. I told them I could not bid, for I had not the money, and that was the only reason I had for declining. I thought $900 full as much as they were worth. I would not have given any thing for the life estate of Harmon — and did not know there was such a will as that now produced.” (It appeared that Harmon died in January, 1847, and was reputed to be about 50 years old.)
    Another witness said that on the day of sale, the plaintiff was anxious the negroes should bring the utmost, and said he did not care about the negroes being sold if they would bring their value. He bid off, on the second'day, one of them upon fair competition. This witness thought the negroes sold for somewhat less than was usual, but not on account of any question about title.
    Another witness said, “ in the spring of 1847, owing some ferriage to Harmon’s estate, I asked the plaintiff if he would administer on his brother’s estate. He said Parson Belin had undertaken to settle his brother’s debts. I asked him if he was going to let Belin keep a portion of the negroes left, to ■satisfy himself for the money he had paid out for Harmon. He said no, he would have to sell them to close his mortgage ■on them; he was bound with his brother to Belin. I asked if he was going to sue Buck; he said no, the negroes went to pay his brother’s debts, and he would have nothing to do with them. He told me to pay the ferriage to. the widow.”
    The jury were charged that sound morality and sound law did not differ in the present case — that both required an honest fidelity to the undisguised truth, in whatever was said or done by the plaintiff, at the sale by the sheriff, calculated to influence? the belief and conduct of the bidders in the. matter of investing their money at that sale.
    That there was something to separate the case of the purchase of Jim, from that of Joe — for, as to the former, there seemed to be an express relinquishment by the plaintiff, of any claim he had or might have upon him; and as the plaintiff’s counsel seemed to abandon the present claim of his client upon Jim, provided the Court thought there were considerations enough to support the relinquishment, they were told that there might be found in the evidence, quite considerations enough, if the case were to stand on the ground of contract.
    That they would probably look at the case, as it concerned Joe, in a different aspect, since there did not appear, as in the other case, any express stipulation in relation to him; and he was bought on Monday, by the defendant, directly from the sheriff. The question, therefore, was whether the defendant had, by word or deed, negatively or positively pursued such a line of conduct, as was calculated and designed, to lead Buck and other, bidders to the conclusion, that he waived all claim to Joe, under his father’s will, though his interest in him. was contingent at the time — whether he encouraged, in any form, Buck to purchase at a full price, what he knew Buck supposed to be the absolute interest in Joe. In reference to a suggestion in argument, by plaintiff’s counsel, to the effect that the law, quoted on the other' side, applied to cases of active fraud: whereas, in the matter of Joe, the plaintiff was wholly passive, and was not, therefore, any how responsible ; and in order, further, to explain what was meant by such a line of negative conduct, so to speak, as might mislead, his Honor gave the following illustration: Suppose, on Monday, Buck, while bidding by the side of plaintiff, had said, “ now I am going to give a full price for Joe, and it is on the faith, that you are not to set up your claim to him, founded on the will of your father,” and the plaintiff had said nothing in reply, and Buck proceeded to buy at a full price. He conceived the plaintiff would occupy exactly the position he would do, provided he had, in express terms, as in the case' of Jim, waived and relinquished all claim. That the true enquiry for them was, whether his line of conduct, his behavior on the occasion,-all that he said and did, amounted to the case supposed; and in reference to a position of plaintiff’s counsel, that his client had not been guilty of fraud and corruption, the last foregoing remark was also made, with the addition, that plaintiff need not, to estop him, be guilty of corruption, for he might have been swayed by a generous impulse, in behalf of his brother, as he assumed to be to some of the witnesses. The true enquiry i was, had he misled ?
    The jury were advised, that if the plaintiff, though present, did or said nothing to effect that end — if he were quiescent, then Buck bought, as is usual at sheriff’s sales, to wit: at his own risk.
    Finally, they were advised to look through the whole transaction, to construe it fairly, and to enforce fidelity on all parties by their verdict.
    The jury rendered a verdict for the defendant.
    The defendant appealed and moved for a new trial, on the following grounds, viz:
    3.Because there was no evidence to fix the acquiescence, consent or arrangement of the plaintiff, in the sale of the negro Joe, or of any act on his part, to induce the defendant to buy him at sheriff’s sale, with the belief, on his part, of a release of any claim.
    2. Because the defendant had notice of the will of Joseph Cox, and of the plaintiff’s contingent interest therein, and •the plaintiff was not bound to communicate his title to him, and is not estopped from setting up his title in this action, on account of not giving notice of it.
    3. Because his Honor erred in instructing the jury that, under the circumstances of this case, it was not necessary that they should find that the plaintiff acted with corrupt or fraudulent motives, in order to find for the defendant, whereas it is insisted that the plaintiff cannot be estopped from recovering, except on proof of positive fraud, at the said sale.
    4. Because his Honor erred in instructing the jury that if defendant, knowing of the title of the plaintiff, had said to him, at the sale, that he was bidding the fee simple price for the negroes, supposing he would purchase the title in fee simple, and plaintiff had said nothing, he would have been barred from recovery in this case.
    5. Because his Honor ought to have instructed the jury that it was not enough that the plaintiff should refrain from withholding notice of his title merely, that would preclude his recovery, but that it was necessary that defendant should prove some positive act which amounted to a relinquishment of his contingent interest in the negro, at the sale.
    6. Because the verdict of the jury, as it respects the negro Joe, was unsupported by evidence of any act which would, in law, preclude the plaintiff’s recovery for him.
    
      .Hctrllee, for the motion.
   FrosíT, J.

delivered the opinion of the Court.

It ¿ppears from the report, that the second and fourth grounds of appeal are taken under a misapprehension of the Judge’s instructions to the jury. It is clear the plaintiff is concluded by his sale of Jim to the defendant. The contro-1 versy respects Joe, and the exceptions relate to the statement of the law, respecting the plaintiff’s rights to recover him. — • The fourth ground, in effect, affirms that, even if the plaintiff, by his representations, acts or conduct, did mislead the defendant respecting the title to the slave, and did encourage the defendant to purchase, by inducing the belief that he would acquire an absolute property, yet the plaintiff cannot be estopped from recovering, unless there be proof of positive fraud. The fifth ground seems to take issue on the whole instruction of the Circuit Judge, where it affirms that the defendant should “ prove some positive act of the plaintiff, which amounted to a relinquishment of his contingent interest in the negro, at the sale.”

The principle on which the plaintiff is held bound by his acts, conduct or representations, in reference'to the subject of the safe, is not derived from the equity doctrine which has been relied on in the argument, though it does receive support and illustration from that quarter. It is of common law origin, and results from the rule that parties to a suit are bound by admissions, against their interest, respecting the subject of the action. Such admissions, frima facie, conclusive against the party who makes them, may be explained or qualified; but if evidence for this purpose is introduced, the whole is submitted to the jury, and the liability of the parly decided, by their verdict, as a question of evidence.

Such admissions may be proved by the acts and conduct of the parties, as well as by their express declarations. If the plaintiff had, in this case, declared to the defendant, that Joe was the absolute property of Harmon Cox; or that he would not assert his contingent title, thereby admitting the validity of the defendant’s title, in case he purchased, it would be conceded the plaintiff could not recover. But a party may, as effectually, make an admission by his acts and conduct, as by his expressions ; and as he may be charged with his express declarations by any who heard them, so he may be charged with admissions, inferred from acts and conduct, by any who witnessed or observed them. A tenant by his entry, is estopped to deny the title of his landlord; one Avho takes possession of the effects of a deceased person, shall not be allowed to deny he is executor. A person shall be charged as partner who permits his name to be used in the firm; and a man shall be liable for the contracts of a woman whom he holds out to the community as his wife.

Many cases, at common law, can be cited to shew that a party who has, expressly or by his conduct, waived his claim or title to property, shall be estopped from asserting it against a party who has acted on the faith of such admission. A constable came to levy on one Benedict’s property, and Stephens pointed out lumber, one-fifth of which, he said, belonged to Benedict; whereupon the constable levied and sold, and Baird purchased. It was held Baird might recover the one-fifth, in trover against Stephens, though, in fact, the whole lumber belonged to Stephens. When the assignee of chose in action purchases it, after a promise made in his ' hearing, before the assignment, by the debtor to the assignor, that he would pay it, the debtor shall be estopped to set up any defence against the assignee. A surveyor running land, an^ ^ounc^n§ it on one °f the lines of a tract of his own, admits that the land was vacant up to his line, at the time of the survey ; and having made a survey of the adjoining land for the plaintiff, he shall not afterwards be permitted to extend his lines so as to include a part of the tract, surveyed i'or the plaintiff, though the plaintiff had not obtained a grant. In Heaine v. Rogers; Bailey, J. delivering the opinion of the Court, says, “ there is no doubt the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence, against him“ but he is not estopped or concluded by them, unless another person has been induced by them, to alter his condition ; and in such case the party is estopped from disputing their truth with respect to that person, (and those claiming under him,) and that transaction.” In Pickard v. Spear, the law was declared in nearly the same terms by Denman, C. J.

BeOtc! 274.

Weaver v. s^&^Raw eig’304. aw'

Tennant v. TeiT239 Bay’ 9 Barn. & Cress. 577.

1 469 E

The cases which have been adduced, and many analagous cases which might be cited, did not proceed on the ground of fraud, except perhaps the case from Bay; and in none was evidence of positive fraud, required to charge a party with his admissions. By positive fraud, must be understood a wilful and corrupt purpose, and intention to deceive and injure. Fraud, in that degree, can seldom be proved ; and if relief were confined to such cases, it would be too limited for any practical good. The law enjoins candor and sincerity in dealing. In giving practical effect to this injunction, the common law, as all human law, must be imperfect, for the sphere of morality is more extensive than the limits of civil jurisdiction. But to every extent, compatible with the interests and convenience of society, it enforces the duty of good faith. The law arrests not only bare-faced fraud, pursuing its object without disguise, but detects its agency in the effect, though the transaction wears an honest aspect. When wrong and injustice would be the result, without curious enquiry into the motives or direct imputation of an evil purpose, the transaction is treated as if it were fraudulent. The mischief is prevented or repaired without enquiring whether it was designed.

The Court thus confirms the instruction of the Circuit Judge, in his statement of the law, which should ‘guide the jury in rendering their verdict. But it is equally divided on the question, whether the evidence is sufficient to sustain the verdict. In this state of the case, it has been decided to order a new trial.

The motion is granted.

Richardson, J. — Evans, J. — and O’Neall, J. concurred.

Motion granted.  