where the courts have failed to recognize or felt unable to enforce equities analogous to those of the mortgage relation, the defect has been remedied by a statute. Especially the injustice to the buyer of permitting a forfeiture when most of the price has been paid has been guarded against in these statutes." But now stand practically upon the same basis as chattel mortgages. Equitably the conditional vendee is the owner, and the vendor holds the property merely as security for the purchase price, although the legal title does not pass to the vendee until payment"); Puffer v. Lucas, 112 N. C. 377, 17 S. E. 174, 19 L. R. A. 682 (in this case although there was an express provision for forfeiting payments made before default, the court held that a foreclosure sale should be ordered if the buyer did not complete payment within a reasonable time); McCormick Machinery Co. v. Koch, 8 Okla. 374, 58 Pac. 626 (this case was similar to Dederick v. Wolfe, supra, except that there was in this case an express power authorizing the sale and application of the proceeds). See also In re National Cash Register Co., 174 Fed. 579, 98 C. C. A. 425; Matteson v. Milling Co., 143 Cal. 436, 77 Pac. 144; RossMeehan Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Cutting v. Whittemore, 72 N. H. 107, 54 Atl. 1098; Shafer v. Russell, 28 Utah, 444, 79 Pac. 559. "Mass. Rev. Laws, c. 198, §§ 11-13 (the seller is required to give notice to the buyer before retaking possession, and the buyer is allowed for a limited period a right to redeem the goods if possession has been reclaimed). The statute in Me. Rev. St. c. 113, § 5, provides for redemption and for foreclosure "in the same manner as is provided for mortgages of personal property." This makes the seller's rights practically those of a chattel mortgagee. Westinghouse Elec. Co. v. Auburn & Turner R. R. Co., 106 Me. 349, 76 Atl. 897; Roach v. Curtis, 191 N. Y. 387, 84 N.E. 283 (applying the New York statute which requires the seller to hold the goods for thirty days after reclaiming possession, within which time the buyer may redeem; and requiring the buyer thereafter to sell the goods and apply the price. A failure on the part of a seller who has reclaimed possession to follow the provisions of the statute enables a buyer to recover all payments that he has made. See for collection and discussion of authorities in New York: Plumiera v. Baicka, 79 N. Y. Misc. 468, 140 N. Y. S. 171); Weil v. State, 46 Ohio St. 450, 21 N. E. 643; National Cash Register Co. v. Cervone, 76 Ohio St. 12, 80 N. E. 1033 (construing the Ohio statute which provides that the seller cannot retake possession without refunding what he has been paid, less a reasonable amount for the use of the goods); Cowan v. Singer Mfg. Co., 92 Tenn. 376, 21 S. W. 663 (construing a statute similar to the New York statute and allowing the buyer to recover instalments paid where the seller had reclaimed possession, but had not dealt with the goods as the statute required); Lieberman v. Puckett, 94 Tenn. 273, 29 S. W. 6 (denying the buyer the right to recover instalments where he had controverted the seller's claim to regain possession of the goods); Whitelaw Furniture Co. v. Boon, 102 Tenn. 719, 52 S. W. 155 (holding the burden on the seller, when sued after the recovery of possession for instalments previously paid, to prove strict compliance with the statute); French v. Osmer, 67 Vt. 427, 32 Atl. 254 (construing a statute which provides that no result can be regarded as satisfactory which does not fully protect the seller in his right to the full price, and to his remedy against the buyer both on the debt and against the goods as security, in order to realize that price, and which does not also protect the buyer against any forfeiture or penalty beyond the amount of the price. Such protection should be afforded the buyer in spite of any attempt made in the contract to surrender it. 18 § 739. Surrender of title by estoppel. Not only in the case where a seller has no title at the time of an attempted sale with warranty, and afterwards acquires title, is he estopped to assert his ownership. It is an old exercise of equity jurisdiction not only to deny relief to one who has by his acts or even by his silence encouraged another to purchase an estate, or to spend money on its improvement, knowing of an interest which he himself has in the property, and failing to disclose it, but even to compel a transfer of the title to the injured person. 19 A distinction is taken between after thirty days from the time of condition broken the seller may cause the goods to be taken and sold at public auction; and holding that this statute does not preclude an action against the purchaser's bailee for injuring the goods after thirty days from the time of condition broken). 18 The protection given by the Massachusetts statute to conditional buyers of household furniture cannot be waived in advance. Dessau v. Holmes, 187 Mass. 486, 73 N. E. 656, 105 Am. St. Rep. 417. And so in New York as to household furniture, Roach v. Curtis, 191 N. Y. 387, 84 N. E. 283. As to other goods sold conditionally the waiver has been held effectual. Adler v. Weis & Fisher Co., 119 N. Y. S. 634, 66 N. Y. Misc. 20, but quære whether this is correct. See Butler v. People's Furniture Co., 124 N. Y. S. 645; Montague v. Wanamaker, 67 N. Y. Misc. 650, 124 N. Y. S. 805. 19 In 1682, in Hibbs v. Norton, 1 Vern. 136, relief was given against the owner of land who answered an inquiry as to an annuity, supposed to be charged upon the land, that he be lieved it was so charged, and encouraged the applicant to proceed in his purchase of the annuity. The landowner was compelled to pay the annuity, though he had since discovered that he was entitled to the land free from any such charge. In 1699, in Draper v. Borlace, 2 Vern. 369, one who had encouraged another to lend money on mortgage, concealing a prior charge of his own, was postponed. These decisions are still followed. Sharpe v. Foy, 4 Ch. App. 35; Snodgrass v. Ricketts, 13 Cal. 359; Wright v. Stice, 173 Ill. 571, 51 N. E. 71; Rogers v. Portland &c. St. Ry., 100 Me. 86, 60 Atl. 713, 70 L. R. A. 574; Hilton v. Sloan, 37 Utah, 359, 108 Pac. 689. In Marshal v. Foltz, 221 Pa. 570, 575, 70 Atl. 857, the court quoted with approval the language of Mit cases where by reasonable diligence a purchaser might have guarded against loss, as where the title is fully recorded, 2o and cases where the facts relating to his title are peculiarly within the knowledge of the one against whom an estoppel is claimed. In the latter case mere silence is enough to work an estoppel, 21 while in the former case something in the way of encouragement beyond mere silence is requisite.22 These cases rest upon an actual estoppel since they go upon the ground that the owner's conduct amounts to a misrepresentation of an existing fact. Cases, however, are not wanting where a mere promissory es chell, C. J., in Logan v. Gardner, 136 Pa. 588, 20 Atl. 625: "The doctrine of estoppel in pais has been very much extended in modern times, particularly in Pennsylvania, where equitable principles are applied in actions at law. The cases are very numerous, but it is not necessary to refer to more than a few of them. In Woods v. Wilson, 37 Pa. 379, the subject was discussed by Chief Justice Thompson, and it was held that silence, in ignorance of one's own right or of another's expenditures will not estop, but that mere silence, with knowledge, is evidence from which a jury may find an estoppel. See also Hill v. Epley, 31 Pa. 331; and Miranville v. Silverthorn, 48 Pa. 147. These decisions rest on the ground that the circumstances were such as to raise a duty to speak, and that failure to do so is either a fraud or would work such an injury as would be equivalent to a fraud, if the party should not be estopped. On the other hand, it was held as early as Buchanan v. Moore, 13 S. & R. 304, 15 Am. Dec. 601, and Robinson v. Justice, 2 P. & W. 19, 21 Am. Dec. 407, that positive acts of encouragement or which help to mislead, will raise an estoppel, without any fraud and irrespective of the party's knowledge of his own rights. See also Chapman v. Chapman, 59 Pa. 214; Miller's Appeal, 84 Pa. 391, and Putnam v. Tyler, 117 Pa. 570, 12 Atl. 43. The distinction, therefore, between the cases where acts or declarations of encouragement are necessary to create an estoppel and those where mere silence or acquiescence will be sufficient, is one of principle, and each case as it arises must be assigned to one or the other class, according to its circumstances, the chief of which is knowledge or ignorance of the party's own rights and the other's actions. Encouragement is necessary where the party is ignorant; but knowledge creates the duty to speak, and, where that exists, silence is enough to estop." So in Rice v. Bunce, 49 Mo. 231, 8 Am. Rep. 129, it was held that a title could not be asserted by one who had encouraged another to expend money on land, though he was ignorant of his right at the time. 20 Shapley v. Rangeley, 1 Woodb. & Min. 217; Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345; Hill v. Meyers, 43 Pa. 170, 175. 21 Gray v. Bartlett, 20 Pick. 186, 32 Am. Dec. 208; Rice v. Bunce, 49 Mo. 231, 8 Am. Rep. 129; Hill v. Epley, 31 Pa. 331. 22 Patterson v. Esterling, 27 Ga. 205; Fisher v. Mossman, 11 Oh. St. 42, 47; Bigelow v. Topliff, 25 Vt. 273, 287, 60 Am. Dec. 264, and see extract from Marshal v. Foltz, 221 Pa. 570, 575, 70 Atl. 857, quoted supra, note. toppel has been held effective in producing a transfer of title. Thus where the owner of land promises to give it to another and the donee takes possession and makes improvements.23 And again in many jurisdictions an agreement between the parties in settlement of a boundary dispute is enforced on the theory of estoppel.24 In both these instances the reliance is wholly on a promise and not upon a misstatement of fact. § 740. Discharge of covenants restricting the use of real estate by promissory estoppel or laches. One in whose favor a covenant restricting the use of land has been made may lose his right not simply to complain of past breaches of the covenant, but also to enforce the covenant as to the future, by his conduct. In an Irish decision 25 the result of the English authorities was thus summarized: "The principle to be deduced from these authorities seems to me to be that in order to defeat the right of a person with whom a covenant has been entered into restricting the mode of user of lands sold or demised, it must be clearly established that there is a personal equity against him arising from his acts or conduct in sanctioning or knowingly permitting such a change in the character of the neighborhood as to render it unjust in him to seek to enforce his covenant by injunction; a change resulting from causes independent of him will not have such an operation." And this statement would probably be accepted in the United States.26 23 See supra, § 139. 24 See supra, § 490. 25 Craig v. Greer, [1899] L. R. 1 Ir. 258, 278. 26 In Star Brewery Co. v. Primas, 163 Ill. 652, 661, 45 N. E. 145, the court said: "It is contended by appellant, that appellee has acquiesced in the use of the premises by his grantees for saloon purposes, and is estopped by his acts from denying their right to so use such premises. Acquiescence cannot be inferred from delay in the taking of steps to prevent the violation of the covenant, because the facts do not show any very great delay. Where a party, seeking to enforce a covenant not to carry on a trade in a house, which had been violated by the use of the house for a beer shop, knew for a period of three years, that the house was used for a beer shop and had himself bought beer at the shop, it was held that he had acquiesced in such violation of the covenant, and had lost the right to enforce it by injunction or by suit for damages. (Sayers v. Collyer, L. R. 28 Ch. D. 103.) But, here, there was not only no delay, with knowledge of the violation, for any such period as three years, but proceedings were instituted to restrain § 741. Whether consent to breach of condition on one occasion excuses similar future breaches. An early decision 27 held that conditions in leases were indivisible so that when a license to alienate a term had once been given, a subsequent alienation was no ground for forfeiture though the lease contained a general condition not to alienate without license. The effect of the decision has been abrogated by statute in England, 28 and the doctrine has been judicially characterized as "extraordinary." 29 In the United States it has been not infrequently recognized, 30 but is generally regarded as a technical and undesirable rule pertaining to real property. Certainly there is no reason to suppose that it has any application to conditional contracts other than leases.31 On the other hand, it should be observed that if a promisor has by his conduct of whatever kind justified the promisee in believing that the promise will be kept in spite of failure of the promisee to fulfil a condition, and relying thereon the promisee fails to fulfil it, performance of the condition is excused. And continued acceptance of a series of defective perform such violation within a very short time "Dumpor's Case, 4 Coke, 119 b. 173. Dakin v. Williams, 17 Wend. 447; McKildoe v. Darracott, 13 Gratt. 278, 282; Lynde v. Hough, 27 Barb. 415, 422; Murray v. Harway, 56 N. Y. 337; Pennock v. Lyons, 118 Mass. 92; and The Sharon Iron Company v. The City of Erie, 41 Pa. St. 341. In Panoutsos v. Raymond Hadley Corp. [1917] 1 K. B. 767, 2 K. B. 473, assent to non-compliance with a provision for a "confirmed bankers credit" for several shipments under a contract was held not to preclude insisting thereon for future shipments, after reasonable notice. In Eddy v. Tennessee, etc., Fire Ins. Co., 21 Mo. 587, assent of an insurer to an assignment of the policy was held not to ex tinguish a condition that assignment should not be made without the consent of the insurer. In Gail v. Gail, 127 N. Y. App. Div. 892, 899, 112 N. Y. S. 96, the court said: “It is also urged that defendant by paying the monthly instalments, as he did, without requiring of plaintiff the transfer of her interest in the California real estate, as well as that in New York, operated as a waiver of his right afterwards to insist on such transfer as a condition of further payments. It may be that it was such waiver as to each payment actually made by him; but to hold that it also operated as a waiver of this right as to all future payments would result in manifest injustice to him, it appearing that he at all times insisted that he was entitled to a transfer of plaintiff's interest in all the real estate. A waiver as to future payments by defendants cannot be constructed from facts like these." See also In re Tyrer, 6 Comm. Cas. 143, 7 Comm. Cas. 166. |