ced M. Co., 14 Cal. 297; Davenport v. Turpin, 43 Cal. 602; Brant v. Virginia Coal Co., 93 U. S. 336; 2 Pomeroy's Eq. Jur., sec. 807; Trenton Banking Co. v. Duncan, 86 N. Y. 221.)

Fox & Ross, and S. F. Leib, for Respondents.

The defendant Patrick Brooks is estopped to assert his title. (Cornish v. Abington, 4 H. & W. 549; Stevens v. Dennett, 51 N. H. 330; 2 Pomeroy's Eq. Jur., sec. 805; Anderson v. Anderson, 69 Ill. 452.)

The COURT. This cause was heard before Department Two of this court, and an opinion rendered January 27, 1886. A hearing by the court in Bank was granted, which has been had. For the reasons given in the opinion in Department, the judgment and order are reversed, and cause remanded for a new trial.

Ross, J., dissenting. I dissent. I dissent. The land in controversy is a part of the rancho Buri Buri, the legal title to which was, prior to the year 1865, held by divers persons as tenants in common. Among them was one Patrick Brooks, who then was and since has been in the actual and exclusive possession of a small portion of the rancho, and who then held in fee an undivided interest therein, sufficient to secure to him on partition the portion so possessed. At the same time, Patrick and one Fay (who was not one of the tenants in common) were together in possession of another and distinct portion of the rancho, such portion being the tract of land in controversy in the present suit. In that state of affairs, and on the 26th of August, 1865, Patrick acquired by purchase, and a deed of conveyance, the interest of Fay, and thereupon took the exclusive possession of the portion last mentioned. Thereafter, and in the same year, 1865, Patrick delivered possession of the last-mentioned tract to his brother John Brooks, and subsequently, to wit, October 17, 1865, purchased an undivided one hundred and twentieth

interest in said rancho, and caused the conveyance thereof to be made to John, and to be placed upon the records of the county. His purpose in so doing was to secure in severalty, on a partition of the rancho, each of said tracts, the tract upon which he resided in his own name, and the other in the name of his brother John.

It is not important to inquire in this case into the morale of that proceeding. In point of fact, the ranch was partitioned in, and by a final decree of partition made and entered by, the Twelfth District Court on the twenty-ninth day of May, 1868, in an action brought for the purpose, and to which both Patrick and John were parties, by which decree the tract of land upon which Patrick resided was set apart to him in severalty, and the tract in controversy here in severalty to John Brooks.

From the year 1872 to the year 1875 John Brooks dealt with the plaintiffs to the present action, who were merchants, and during that time became indebted to them for goods sold and delivered in the sum of $707. The findings are to the effect that during the time of such dealings John Brooks resided upon the tract of land in question with his family, and cultivated the same, and exercised exclusive control thereof, and appeared and acted in relation thereto as the owner, and stated to the plaintiffs at the time he first asked for and received credit for them that he was the owner of said premises; that plaintiffs believed said statements, and relied upon them, and knew that he, John, was so in exclusive possession, exercising control thereof as owner, and was entirely ignorant of the fact that Patrick had or claimed to have an interest therein, and solely by reason of such statements, and apparent ownership and belief, gave John said credit; that as a matter of fact John Brooks then was, and ever since has been, insolvent, of which fact Patrick was at all times aware.

On the second day of January, 1875, John Brooks

executed to the plaintiffs his promissory note for the amount of his indebtedness to them, and three days afterwards, to wit, January 5, 1875, he executed to his brother Patrick a deed conveying to him the legal title to the land in dispute. Subsequently the plaintiffs commenced suit upon the promissory note, recovered judgment thereon, upon which execution was issued, and under it all of the right, title, and interest of John Brooks in the land was sold by the sheriff to the plaintiffs, who in due time received a sheriff's deed therefor, and thereafter commenced the present action to compel the conveyance of the legal title to them.

Beyond question John Brooks never was the real. owner of the land; but in cases of this sort the question is not who was the actual owner, but whether the circumstances are such as that in equity and good conscience the apparent owner should be deemed and held to be the real owner for the protection of one who has innocently dealt with him as such. The findings here show that Patrick knew that his brother John was insolvent, and knowing that fact, caused the legal title to the land to be conveyed to him and to be put upon the records of the county, put him in actual and exclusive possession, in a word, clothed him with every indicia of absolute, legal, and equitable ownership, and permitted the matter so to remain for a period of more than six years. He put it in the power of John to appear to the world as the true owner, and he had actual knowledge that John did assert himself to be the true owner in the partition suit, and that he was treated and recognized as such in and by the final decree in that action. Whether or not he had actual knowledge that John represented himself to the plaintiffs to be the real owner does not appear from the findings one way or the other; nor is it essential that it should under the facts of this case. (2 Pomeroy's Eq. Jur., sec. 811, and authorities there cited.) It does appear from the findings that John

did so represent himself, and that solely because of such representations plaintiffs extended to him the credit; and the records of the court as well as of the county sustained his pretensions. Having caused the the title to the property to be conveyed to John, and to be so recorded in the public record of deeds, and having installed him in the actual and exclusive possession of the land, and having actual knowledge that John afterwards in the partition suit asserted himself to be its legal and equitable owner, and that the court so adjudged him, and having voluntarily caused these appearances and pretensions to be maintained for a long series of years, can it, with any show of reason or justice, be held that Patrick did not expect John to be recognized and dealt with by third parties as the true owner?

Under such circumstances was it not both natural and probable that he would be so treated and dealt with? Undoubtedly so. And if so, ought the party whose conduct occasions the confidence and loss to be heard to say that he who appeared to be the owner was in fact not such. Was there not such fault and negligence on the part of Patrick Brooks in concealing his own title as amounted to constructive fraud? I think there was. "The authorities establish the doctrine," said the Court of Appeals of New York in Trenton Banking Company v. Duncan, 86 N. Y. 230, "that the owner of land may, by an act in pais, preclude himself from asserting his legal title. But it is obvious that the doctrine should be carefully and sparingly applied, and only on the disclosure of clear and satisfactory grounds of justice and equity. It is opposed to the letter of the statute of frauds, and it would greatly tend to the insecurity of titles if they were allowed to be affected by parol evidence of light and doubtful character. To authorize the finding of an estoppel in pais, against the legal owner of land, there must be shown, we think, either actual fraud, or fault or negligence equivalent to fraud on his part, in con

cealing his title; or that he was silent when the circumstances would impel an honest man to speak; or such actual intervention on his part as in Storrs v. Barker, 6 Johns. Ch. 166, S. C., 10 Am. Dec. 316, as to render it just that as between him and the party acting upon his suggestions, he should bear the loss. Moreover, the party setting up the estoppel must be free from the imputation of laches in acting upon the belief of ownership by one who has no right." To the same effect is Biddle Boggs v. Merced Mining Company, 14 Cal. 367; Stevens v. Dennett, 51 N. H. 330; Anderson v. Armstead, 69 Ill. 454; 2 Pomeroy's Eq. Jur., secs. 805 et seq., and cases there cited.

I am therefore of opinion that to the extent of protecting the plaintiffs, John Brooks should be deemed and held to be the legal and equitable owner of the property in question at the time of the accruing of the indebtedness from him to the plaintiffs, and the deed from John to Patrick Brooks being without consideration paid at the time of the judgment, levy, and execution sale of the plaintiffs. It results that Patrick Brooks may be compelled to convey to plaintiffs the legal title to the premises. But this should only be done upon such terms and conditions as are just. The proper protection of the plaintiffs does not demand the absolute and unconditional conveyance of the legal title from Patrick Brooks to them. The justice of the case only requires that the land in question shall make good to them the amount of the aforesaid indebtedness with interest. Upon the return of the cause to the court below these amounts can be ascertained, and the decree so modified as to require the defendant, Patrick Brooks, to convey the legal title to the property to the plaintiffs unless he shall, within a stated time thereafter, pay to the plaintiffs the amount so ascertained by the court. For these reasons, I think the cause should be remanded with directions to the court below to modify the decree