McJovern v. Knox.

him to whom the legal title is conveyed.

Lounsbury v. Purdy,

16 Barb. 376; and 1 Leading Cases in Eq. 276, where the authorities are collected. The foundation of a resulting trust is the payment, or the securing to be paid, by the cestui que trust, out of his own means, the consideration of the conveyance, or some part thereof, at its completion.

In the present case, the proof is clear that $2,000, part of the consideration of the conveyance of the Laurel street property to her husband, has been paid by Mrs. McGovern, out of her separate moneys. It is also clearly shown that the property was originally intended for her, to be paid for from the proceeds of her inheritance. But not being able to raise the cash payment of $2,000 at the completion of the conveyance, and being under the disability of coverture disqualifying her from binding herself by any form of commercial obligation, the payment was secured, and made a charge upon her separate estate by mortgage, which was the highest and only security binding the same, that she could give, her husband's note being made its basis. To the extent of this $2,000 charged upon her separate property, the original credit was given to her; whence an equitable estate pro tanto at least became vested in her by resulting trust.

Unless she is estopped to assert this estate, the judgment of the superior court must be reversed, thus rendering it unnecessary to consider the question or determine the extent of her interest, resulting from the mortgage of her equitable estate in the purchased premises to secure the deferred installments.

II. Is Mrs. McGovern estopped to assert her estate in this action? It is the dictate of natural justice that he who, having a right or interest, by his conduct, influences another to act on the faith of its non-existence, or that it will not be asserted, shall not be allowed to afterward maintain it to his prejudice. Out of this just principle has grown the equitable doctrine of estoppel in pais, so well stated and strongly approved by Fonblanque in his treatise on Equity, vol. 1, ch. 3, § 4; by Chancellor Kent, in Wendell v. Van Rensselaer, 1 Johns. Ch. 344; by Lord Macclesfield, in the leading case of Savage v. Forster, 9 Mod. 35; and by the other authorities cited in support of the judgment below.

The doctrine has been characterized as one of harshness. But it has its foundation in the solicitude of the law to prevent fraud from consummating its ends, and to promote good faith in the conduct of

McGovern v. Knox.

men; its apparent harshness arising from its injudicious application.

Probably no inflexible rule can be laid down defining the several conditions of its application in all cases. One condition, however, is fundamental and essential in every case, which is, that the particular right or interest invoking the protection of the doctrine must have been influenced by the conduct, the encouragement, concealment or denial of him who, or with whom one in privity, is sought to be estopped. Only parties and privies are affected by it, or can invoke its interposition.

The non-observance of this fundamental condition doubtless determined the judgment below. The origin of the controversy was a loan of money by Pearson C. Brown to Matthew McGovern. The defendant in error, now asking the application of the doctrine, is the assignee of Brown, standing in privity with him. Her equity is not superior to his. If he could not, neither can she be aided by estoppel.

The original loan by Brown to Matthew McGovern was not made on the faith of title in him; but on the credit of William Knox, his personal indorser. Brown, therefore, did not act, and hence acquired no right, on the faith that Mrs. McGovern had no estate, or that it would not be asserted. In fact, it does not appear that she had any knowledge of the loan; that any act or utterance of her's influenced Brown in making it; or that he was aware of her existence. As to him, then, and hence as to the defendant in error, who is in privity with him, no single condition of estoppel is shown by the record.

It is insisted, however, and the judgment below seems to have resulted from the misapprehension that a case of estoppel is raised in favor of the defendant in error, by the evidence of representations and information, on the faith of which William Knox became indorser. In our opinion, this evidence is incompetent. William Knox is not before the court. His right is not involved. He is not asserting it. The defendant in error is not in privity with, but claims adversely to him. Her title is derived through Brown, not William Knox.

The judgment of the superior court, at general and special term, will be reversed, and the cause remanded for further proceedings. Reversed and remanded.

CASES

IN THE

SUPREME COURT

OF

MISSOURI.

BOWLES, appellant, v. LEWIS.

(48 Mo. 82.)

Military authorities—effect of seizure and sale of private property.

A United States provost marshal seized personal property of plaintiff and sold it at public auction. Subsequently plaintiff found a horse, part of the property sold, in the possession of defendant, and brought an action for its recovery. The court ruled that plaintiff must prosecute his remedy, if any, against the government, and that defendant was not liable in this action. Held error, and that, in order to protect his title under the sale, the defendant must show that the property was seized and sold in accordance with the usages of war.

ACTION to recover personal property. The opinion states the

case.

The appeal is by plaintiff.

Buckner & Gatewood, for appellant, cited Ex parte Milligan, 4 Wall. 1; Wilson v. Crocket, 43 Mo. 218.

Fagg & Dyer and Orrick & Emmons, for respondent, cited Wellman v. Wickerman, 44 Mo. 484.

Bowles v. Lewis.

BLISS, J. In the fall of 1864, the provost marshal of the district, embracing Montgomery county, seized upon the personal property of the plaintiff, sold the same at public auction, and paid over the proceeds of the sale to the provost marshal general of the State, who approved his proceedings. Subsequently the plaintiff found a horse, part of the property so sold, in the hands of defendant, and brings this action for its recovery. The record simply shows the fact of seizure and sale, and gives no reason whatever for the proceeding. The case was submitted to the court, and the defendant claimed that the action of the military authorities passed the title to the property without regard to the grounds of that action. This view was substantially sustained by the court in finding for the defendant, under the following declaration of law, given on its own motion: "If it has been shown to the satisfaction of the court, sitting as a jury, that the horse in controversy was seized and sold by authority of the United States government during the late civil war, and that the defendant holds under such sale, then the plaintiff must prosecute his remedy, if any he has, against the government, and the defendant is not liable in this action."

This declaration would be ambiguous but by reference to the evidence. It is true that if the property was sold by authority of the government, the title passed; but what did the court mean by the phrase "authority," etc.?

The act of a public officer is not necessarily that of the government he represents, and it is only so when he follows the law. The government can only act through the law. When obeying the law, its agents properly represent it, and in the seizure and sale of property the law transfers the title. But this could not be the sense in which the action of the government was spoken of, for it nowhere appears that the officers who seized this property had any lawful authority for their action, nor is there any attempt to set up such authority. Hence the declaration embodies the startling proposition that whenever, in a state of war, property is seized and sold by a military officer, whether or not the action is warranted by military law or usage, his act is that of the government whose commission he holds, and the double consequence follows that the citizen may be deprived of his property at the mere will of a military officer, and that the government is bound by the acts of such officer without reference to their legality.

In order to protect his title under the sale, the defendant must

Steines v. Franklin County.

show that the property was sold under some valid condemnation or judgment, or that its seizure and sale was authorized by the usages of war; otherwise the action of the provost marshal was a mere trespass. Wilson v. Crocket, 43 Mo. 218; Wellman v. Wickerman, 44 id. 485; Mitchell v. Harmony, 13 How. 128. To attempt to elab orate so plain a proposition might imply a doubt upon a principle so universally received in all countries where men are governed by law rather than the will of public functionaries. Courts will not permit it to be questioned.

The other judges concurring, the judgment will be reversed and the cause remanded.

STEINES et al., appellants, v. FRANKLIN COUNTY et al.

(48 Mo. 167.)

County bonds-bona fide holder

· power of legislature.

Where a statute authorizes the issue of county bonds after submitting certain questions to the people of the county to be voted upon, and the bonds are issued by the county, of its own motion, and without submitting the questions to the voters of the county, the bonds are void, even in the hands of bona fide holders; but the legislature has power to cure the defect by author. izing the county to take up the old bonds and issue, in lieu thereof, new bonds, which would be valid. (See note, p. 100.)

BILL in equity. The opinion states the case.

Crews, Letcher & Laurie, and Ewing & Holliday, for appellants.

Sharp & Broadhead, and James Tausig, for respondents.

WAGNER, J. This was a petition in the nature of a bill in equity, brought by the appellants, who are citizens and tax payers of Franklin county, asking for a decree declaring a contract and certain orders of their county court void, and requiring a cancellation and delivery of bonds issued under said contract, and for an injunction restraining their payment, sale or transfer, and restraining the