#### *Stuart v. Luddington.

March, 1823.

[10 Am. Dec. 550.]

Estoppel* — Mistake—Case at Bar. — Where a dispute exists about the boundaries of land, and one of the parties yields his opinion, and acknowledges the right of his adversary, this acknowledgment shall not bind him, if at a future day he finds that he was mistaken, unless the acknowledgment was iounded on some consideration. No concealment or misrepresentation can have the effect of barring the rights of a party, unless another person is thereby induced to part with his money, or unless the concealment &c.. be so gross as to amount to fraud.

This was an appeal from the Staunton chancery court.

The following is the case presented by the record:

In the year 1784, Patrick Lockhart obtained patents for two tracts of laud, one of 400 acres, and the other of 449 acres. The first was granted to him as assignee of John Tillery, in whose name the survey was made; and the second, in his own right. These two tracts did not actually join each other, (as the appellee contended,) but left a slip of land between them, containing 45 acres, which was vacant. The appellee, Luddington, became entitled to this vacant land, before the year 1793, by regular entry founded cm treasury warrants. Lockhart having contracted to sell a part of his 449 acre tract to Reider, a survey was made by the county surveyor, in company with Lockhart and Luddington, when Lockhart acknowledged, after some dispute, that his patents did not cover the said land which had been taken up by Luddington as vacant land; and the surveyor gave it as his opinion, that Lockhart’s patent did not give any title to the said land. The lines were run according to this idea, and Lockhart assented. Lock-hart made a deed to Reider, without interfering with the said land. In consequence of this, Luddington went on to perfect his title to the said land; and having surveyed it, sold it to a certain Eli Perkins, before a patent was issued for it, and made *liimself responsible for the title. Perkins was put into the peaceful and undisputed possession of the said laud. A patent was afterwards issued to Perkins, as the assignee of Luddington. Perkins afterwards sold the land to Correll, and Correll sold it to Nicely.

Some years after the deed to Reider. Lockhart sold the 400 acre tract to Stuart. Stuart conceiving that his deed covered the said land, instituted an action of ejectment against the said Nicely, then the tenant in possession. 'Phis suit was decided in favor of the said Stuart, who turned out the said Nicely by a writ oí possession.

Luddington filed a bill against Stuart, Nicely and the heirs of Lockhart, praying that an issue might be directed, to ascertain what is tlie real boundary of the patent for 400 acres; and that on the trial, the verdict and judgment in ejectment, might not be read in evidence, on account of some alleged irregularities at the trial; that Nicely might be re-instated in the land from which he had been ejected, and be paid the intermediate rents and profits; and that he might be forever quieted in his possession against the claim of the said Stuart and of the said Lockhart’s heirs.

Stuart answered the bill, relying on the judgment in the ejectment, and denied that he had any knowledge of the plaintiff having ever made a survey of the 449 acre tract, in company with George Reider. fl e declared his disbelief of the assertion, that Lockhart had yielded liis right to the plaintiff, &c.

A deposition in the cause, confirms the statement of the bill, concerning Lockhart’s *162declaration at the survey, that his patent: did not cover the land in dispute, and therefore he gave it up.

The chancellor decreed in favor of Luddington, on the ground of Lockhart’s relinquishment of his claim to the land in dispute; in consequence of which, Luddington had proceeded to perfect his title, and improve the land. But as it was doubtful whether Stuart, -who purchased from *Lockhart, had notice of the said relinquishment before his purchase, he directed an issue to try whether he had such notice; whether on the day of the purchase, Luddington, or any person claiming under him, was in actual possession of the said land; and whether, on that day, or at any time previous, Stuart had notice that the plaintiff or any one deriving title under him, claimed the land m controversy, under the entry set forth in the bill.

The jury rendered a verdict, that on the day of the deed from Lockhart to Stuart, the latter had notice of the agreement set forth in the bill, respecting the relinquishment of Lockhart’s claim to the land in controversy, that on the same day, the purchaser from Luddington of the land in question,' was in actual possession of the said land; and that on the same day, the said Stuart had notice that the plaintiff Luddington claimed the land in controversy, under the entry set forth in the bill.

The chancellor made a final decree, that the land should.be restored to the defendant Nicely, who claims under the plaintiff, to have his title quieted, against the claim of the defendant Stuart, and the heir of Lockhart; that the defendant Stuart, should render an account of rents, and profits, since he obtained possession of the land under the judgment, in ejectment, &c.

From this decree, the defendant Stuart appealed.

Wickham, for the appellant.

Leigh, for the appellee.

*

Estoppel. — See monographic *note*on "Estoppel” appended to Bower v. McCormick. 33 Gratt. 310.

Fraud — Mistake.—A clear mistake or ignorance of his rights, on the part of a person, repels the imputation of fraud, and gives an adverse party no equity against Mm. M'Clung v. Hughes, 5 Rand. 473.

To create a duty to speak, it must be known by the one keeping silence that some one is relying on that silence, and is acting or about to act as he would not, had the truth been told. As so holding, the principal case is cited in Pocahontas L. & W. Co. v. Browning (W. Va.). 14 S. E. Rep. 268. See the principal case also cited in Dickenson v. Davis, 2 Leigh 409.

See further, monographic *note*on "Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5.

JUDGE GREEN.

March 26.

For the purpose of this cause, it must be taken for granted after the verdict and judgment at law, (which are not impeached upon any ground, which would justify the interference of a court of equity, by awarding a new trial,) that the legal title to the land in controversy, is in *the appellant; and so the case was considered by the chancellor. The only question in the cause therefore is, whether the alleged abandonment by Lockhart, of his claim to the land as stated in the bill, ought in equity” to preclude him or his assignee with notice, from asserting the legal title. Luddington, in 1791, upon the mistaken supposition, (as it has turned out,) that there was a slip of vacant land, between two patents held by Lockhart, and which mutually called for the lines of each other, as a common boundary, located the land so supposed to be vacant. But, before Luddington had taken any other step towards procuring a grant for the land, Lockhart proceeded to survey one of his patents, with a view to a sale thereof, to Reider. Upon that survey, which Luddington attended, it was found that there was a marked corner and line, corresponding with the calls of the patent, but which did not coincide with the marked corner and lines of the other patent; and it was the land between these lines, which Luddington had located as vacant. Lockhart stated, that the survey ought to be extended, so as to connect with the other patent, and Luddington stated, that he was willing to give up his claim to the land in question, if Lock-hart’s patent covered it, as he did not wish to go to’ any further expense about it, if it was previously appropriated. The surveyor gave it as his opinion, that the survey ought not to be extended, and Lockhart abandoned all claim to the land in question, and completed his survey, according to the marked lines, and sold by that survey to Reider. This transaction had nothing of the character of a contract, between Lock-hart and Luddington, so as to be a fit case for a decree, for a specific execution. There was no consideration passing between the parties. There was no promise to convey, and if there had been such a promise, it would not have been binding, as it would have been made without consideration, and upon an erroneous opinion of Lockhart, in relation to his rights. There was no compromise of conflicting claims. Luddington did not *even suggest, that he was willing to abandon his claim, if Lockhart claimed title to the land; but only in the event, that Lock-hart’s patent really covered the land; so that if the surveyor had been of the opinion, that the survey ought to be extended to the marked line of the other patent, it would still have remained discretionary with Luddington, to waive his claim or not, according to his pleasure. Upon the ground of contract, then, the appellee can assert no" right to the land in question.

The rights of a party may be bound by, or he may be held responsible for, the consequences of his concealment or misrepresentation, or gross negligence in relation to them, (according to the circumstances of the case,) in favour of any person, who may be thereby induced to part with his money. But, no concealment or misrepresentative can have that effect, unless it be collusive or fraudulent, or the negligence be so gross as to amount to the proof of fraud, (a)

In the case at bar, both parties had precisely the same information as to Lock-hart’s title. On his part, there was no concealment or misrepresentation. He had no intent to deceive or injure Luddington; he cannot be charged with any fraud. His abandonment of his title, as it is called, probably had no influence upon Luddington’s after-proceedings, in perfecting his title; for, he had previously located the land as vacant, upon his own judgment as to the validity of Lockhart’s title, and would probably have proceeded to procure his patent. If Lockhart had never abandoned his title, the case seems to be at most one of mutual error, and in which both parties *163are innocent; and in such case, the equity being equal, the law should prevail.

There is no charge in the bill, that any permanent improvements on the land had been made by Luddington, *or those claiming under him, for which, compensation could be asked; and, therefore, on that subject no decree can be made.

I think the decree should be reversed, and the bill be dismissed with costs.

The other judges, (with the exception of judge Cabell, who was absent,) concurred, and the decree was accordingly reversed, and the bill dismissed with costs.

(a)

 Passley v. Freeman, 3 T. R. 51; Haycroft v Creasy, 2 East 92; Ibbertson v. Rhodes, 2 Vern. 554; 1 Fonb. Eq. 163, note (n); Evans v. Bricknell, 6 Ves. 183; Holmes v.-, 2 Ves. 279; Dance v. Spurrier, 7 Ves. 231.