Bellows, J.
Tbe .testimony of tbe plaintiff, whether an agreement was made between him and Stephen Gale, was not properly a matter of opinion, but of fact, to which he might testify. The opinion of the witness, as to the effect of what was said and done, would be open to the objection taken by the defendant’s counsel; but whether an agreement was made, whether there was the consent of the two minds, is quite a different thing. Had he stated, in the first instance, that the parties made a line, set up boundaries, and agreed to it, there could have been no valid objection to it. In Eaton v. Rice, 8 N. H. 380, it was held that when the witness could not state the language used, he might be allowed to state that he understood the parties to agree to a line, — showing clearly that it is not to be regarded as the mere expression of an opinion. In the case before us, although the witness had previously stated what was said and done, it was properly within the discretion of the court to allow him to state in another form that they agreed to the line. Ordinarily, however, such a repetition would not be allowed, but in a case where the language was imperfectly remembered by the witness, it would come within the range of a sound judicial discretion, over which this court would exercise no control. 1 Gr. Ev., sec. 431; Furbash v. Goodwin, 25 N. H. 441.
The admission of the plaintiff’s testimony in respect to the iron hubs, as tending to show -where the line was, is [473] not open to the objections urged by the defendant’s counsel. The grounds of its admission were stated, and we can see no reason for supposing that the jury were misled by it.
The plaintiff was properly allowed to explain his statements that his land extended no further south than the dropping of the eaves of his building. These statements had not the character of a contract; and there is nothing that would estop the plaintiff from showing to what he referred, and in what sense he used the words.
The court, we think, was right in declining to instruct the jury that the plaintiff, upon his own testimony, was estopped from maintaining his action. To constitute an equitable estoppel by standing by and seeing valuable improvements made upon the land by another, without objection, it must appear that the owner was fully aware of his own title, or, in other words, that he wilfully concealed it, and that the occupant, being ignorant of such title, was misled by such silent acquiescence, and induced thereby to change his position. The general doctrine is well stated by Lord Denman, in Pickard v. Sears, 6 A. & E. 460, in these words: “When one, by his words or conduct, wil-fully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” The same language is used by Baron Parke, in Freeman v. Cooke, 2 W. H. & G. 653, and the definition is adopted by Perley, C. J., in Davis v. Handy, 37 N. H. 75, and is fully indorsed by Story in his Commentaries on Equity (page 386), where he says, “ To justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights, should be fully apprised of them, and should, by his conduct or gross negligence, encourage or influence the purchase; for, if he is wholly ignorant of his rights, or the purchaser knows them, or if his acts, or silence, or neg[474] ligence do not mislead, or in any way affect the transaction, there can be no just inference of actual or constructive fraud on his part.” In accordance with these views are Dunn v. Spurein, 7 Ves. 236; Rangeley v. Spring, 25 Me. 130; Morton, Admr., v. Hodgdon, 32 Me. 127; Gray v. Bartlett, 20 Pick. 193 ; 2 Smith L. C. (5th Am. Ed.) 619, 642646, 660-663; 4 Kent Com. (9th Ed.) 261.
If, then, the title of the plaintiff was equally open and apparent to both parties, and the defendant acted upon the judgment he had formed of the conflicting claims, and was not misled by the silence of the plaintiff, there could be no ground for contending that the plaintiff’s conduct was in the nature of an admission, upon which the defendant had acted. "Whether the defendant was so misled was a question for the jury ; and we think there was evidence upon which they might have found against the defendant on that point, — such as the fact that he claimed to the last a title to the land, independent of the estoppel; that he had entered upon the erection of his building in the plaintiff’s absence, and did not desist when informed of the plaintiff’s claim; together with the evidence tending to show that before commencing his work he was informed of the exchange between the plaintiff and Stephen Gale, the existence of the hubs, as marking the boundaries of the adjoining tract, and the probability that they might be found, and that, in fact, he was put upon inquiry as to the plaintiff’s title. Had the jury found that the defendant was not misled, but acted upon the judgment previously formed as to the boundaries, we see no reason why such finding should have been disturbed. Eorthereasons already assigned, we are of the opinion that there was no error in refusing to instruct the jury that unless notice was given before the brick work was finished, the plaintiff would be estopped.
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Bellows, J.
Tbe .testimony of tbe plaintiff, whether an agreement was made between him and Stephen Gale, was not properly a matter of opinion, but of fact, to which he might testify. The opinion of the witness, as to the effect of what was said and done, would be open to the objection taken by the defendant’s counsel; but whether an agreement was made, whether there was the consent of the two minds, is quite a different thing. Had he stated, in the first instance, that the parties made a line, set up boundaries, and agreed to it, there could have been no valid objection to it. In Eaton v. Rice, 8 N. H. 380, it was held that when the witness could not state the language used, he might be allowed to state that he understood the parties to agree to a line, — showing clearly that it is not to be regarded as the mere expression of an opinion. In the case before us, although the witness had previously stated what was said and done, it was properly within the discretion of the court to allow him to state in another form that they agreed to the line. Ordinarily, however, such a repetition would not be allowed, but in a case where the language was imperfectly remembered by the witness, it would come within the range of a sound judicial discretion, over which this court would exercise no control. 1 Gr. Ev., sec. 431; Furbash v. Goodwin, 25 N. H. 441.
The admission of the plaintiff’s testimony in respect to the iron hubs, as tending to show -where the line was, is [473] not open to the objections urged by the defendant’s counsel. The grounds of its admission were stated, and we can see no reason for supposing that the jury were misled by it.
The plaintiff was properly allowed to explain his statements that his land extended no further south than the dropping of the eaves of his building. These statements had not the character of a contract; and there is nothing that would estop the plaintiff from showing to what he referred, and in what sense he used the words.
The court, we think, was right in declining to instruct the jury that the plaintiff, upon his own testimony, was estopped from maintaining his action. To constitute an equitable estoppel by standing by and seeing valuable improvements made upon the land by another, without objection, it must appear that the owner was fully aware of his own title, or, in other words, that he wilfully concealed it, and that the occupant, being ignorant of such title, was misled by such silent acquiescence, and induced thereby to change his position. The general doctrine is well stated by Lord Denman, in Pickard v. Sears, 6 A. & E. 460, in these words: “When one, by his words or conduct, wil-fully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” The same language is used by Baron Parke, in Freeman v. Cooke, 2 W. H. & G. 653, and the definition is adopted by Perley, C. J., in Davis v. Handy, 37 N. H. 75, and is fully indorsed by Story in his Commentaries on Equity (page 386), where he says, “ To justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights, should be fully apprised of them, and should, by his conduct or gross negligence, encourage or influence the purchase; for, if he is wholly ignorant of his rights, or the purchaser knows them, or if his acts, or silence, or neg[474] ligence do not mislead, or in any way affect the transaction, there can be no just inference of actual or constructive fraud on his part.” In accordance with these views are Dunn v. Spurein, 7 Ves. 236; Rangeley v. Spring, 25 Me. 130; Morton, Admr., v. Hodgdon, 32 Me. 127; Gray v. Bartlett, 20 Pick. 193 ; 2 Smith L. C. (5th Am. Ed.) 619, 642646, 660-663; 4 Kent Com. (9th Ed.) 261.
If, then, the title of the plaintiff was equally open and apparent to both parties, and the defendant acted upon the judgment he had formed of the conflicting claims, and was not misled by the silence of the plaintiff, there could be no ground for contending that the plaintiff’s conduct was in the nature of an admission, upon which the defendant had acted. "Whether the defendant was so misled was a question for the jury ; and we think there was evidence upon which they might have found against the defendant on that point, — such as the fact that he claimed to the last a title to the land, independent of the estoppel; that he had entered upon the erection of his building in the plaintiff’s absence, and did not desist when informed of the plaintiff’s claim; together with the evidence tending to show that before commencing his work he was informed of the exchange between the plaintiff and Stephen Gale, the existence of the hubs, as marking the boundaries of the adjoining tract, and the probability that they might be found, and that, in fact, he was put upon inquiry as to the plaintiff’s title. Had the jury found that the defendant was not misled, but acted upon the judgment previously formed as to the boundaries, we see no reason why such finding should have been disturbed. Eorthereasons already assigned, we are of the opinion that there was no error in refusing to instruct the jury that unless notice was given before the brick work was finished, the plaintiff would be estopped.
The question whether notice was seasonably given to the defendant, was properly left to the jury. Involving, as [475] It does, an inquiry into tbe diligence, good faith, and fair dealing of the plaintiff, and whether there was such gross negligence on his part as to afford a just inference of fraud, it is quite obvious that no rules fixing the time can be laid down to suit the great variety of circumstances likely to exist. In deciding such a question, an inquiry must be had as to the knowledge possessed by the owner, of his own title, and at what time he had obtained so much as to require him to act — when he was made fully aware of the encroachment of the other party — the nature and progress of the erection — the knowledge already possessed by the occupant — and the condition of the owner in respect to the convenience of giving notice. Nor the determination of these questions the jury is the appropriáte tribunal, as in other cases involving inquiries as to good faith, reasonable time, care, due diligence, probable cause, fraud, and the like. It is true that there are cases where the courts have laid hold of some prominent and decisive incident, and have determined by positive rules what shall be deemed reasonable time, — as in the case of the dishonor of a note or bill of exchange, where the parties live in the same town, or notice may be given through the post-office. But no such controlling incidents exist in cases of this sort, nor are we aware of any attempt to establish any rule defining what shall be a reasonable time in such cases. In the case before us, the work was already begun before the plaintiff returned; the land in controversy was but a few inches in width, and might or might not require some time to enable the plaintiff' to satisfy his own mind as to the exact line; and there was some evidence tending to show that the plaintiff was not well for a time when he first came home, and also that the notice was given within two or three weeks after his return. And this illustrates the difficulty of laying down any rule as to the time of giving notice, except that it shall be done in a reasonable time under all the circumstances.
[476] The doctrine of equitable estoppel is derived from courts of equity, and is based upon a high moral principle which denounces as a fraud the denial of a state of things which a party had before wilfully affirmed, with a view to induce another to change his position, and in consequence of which he did so change it. But as the application of the doctrine is highly penal in its character, it is indispensable that the fraudulent representation or concealment should be clearly established, and that actual bad faith, or that gross negligence which implies it, should be clearly shown ; otherwise there would be great danger that estoppels of this character would justly be regarded as “ odious.’’ In Moore v. Morgan, Cowp. 478, the question of negligence and good faith, in a person employed to obtain an insurance upon property, was submitted to a jury. So whether, in a sale of a ship at sea, possession was seasonably taken on her arrival. Joy v. Sears, 9 Pick. 4. So whether the abandonment of a vessel to the underwriters was made in a reasonable time. Reynolds v. Ocean Insurance Company, 20 Pick. 19. So whether a traveller was exercising ordinary care and prudence. Carleton v. Bath, 22 N. H. 559. In 3 Stark. Ev. 423, it is laid down that “ reasonable time is always a question of fact, in the absence of any rule or principle of law applicable to the circumstances.” See also the same work, pages 406-418, and note on page 414; 1 Gr. Ev., sec. 490, and full note, and authorities collected; Pray v. Burbank, 11 N. H. 290; Wendell v. Moulton, 26 N. H. 61. The instructions to the jury, taken together, were, that if Gove was erecting his building on the plaintiff’s land, without fault on his part, and the plaintiff stood by without objection, he would be estopped. And what would be fault on his part is stated in another part of the charge, viz., a failure, being put upon inquiry, to make such inquiries and examinations, and use such precautions, as a man of ordinary care and prudence would make and use under similar circumstances, by reason of which failure [477] be did not ascertain the true line, when the means of doing so were reasonably within his reach. This raises the question whether, under the circumstances, and with the information obtained, and reasonably open to the defendant, including that which resulted from the silence of the plaintiff, he used reasonable diligence to ascertain the boundaries. If his vigilance was properly lessened by the conduct of the plaintiff', that was to be considered in determining whether he was or was not negligent. But if, under all the circumstances, including the plaintiff’s silence, he unreasonably failed to use means of ascertaining the boundaries which were within his reach, he has no cause to complain; because, in cases of this sort, he is to be charged with such knowledge as reasonable diligence would have given him. In accordance with these views, it has been repeatedly held that a first mortgagee would not be postponed to the second by reason of his silence at the execution of the second mortgage, when the first had been duly recorded. Carter v. Champion, 8 Cow. 558; Bigelow v. Topliff, 25 Vt. 273; Brincherhoff v. Lansing, 4 Johns. Ch. 65; Clabaugh v. Byerly, 7 Gill 354.
This point has been argued by the defendant’s counsel with much force and ingenuity, but we are unable to assent to his conclusions, or give countenance to the idea that although the defendant was put upon inquiry, and the means of knowledge were at his command, he might still forbear to make investigations, but go on with his erections, taking the risk that the plaintiff might or might not interfere. This we could not regard as good faith on the part of the defendant, nor can it be deemed that, under such circumstances, he was misled by the silence of the plaintiff. This would be well illustrated by a case that might arise on the entire removal or destruction of the erections in question, subsequent to this trial, as the fact is now suggested to be. Should the defendant undertake to rebuild upon the same ground, could it be justly said [478] that he was misled by the silence of the plaintiff during such subsequent erection ; and especially that it must be so taken as matter of law ? And yet it might be said that the defendant did not know that the land was not his, and that would perhaps be true; but the jury might, and probably would find that he was not misled by the plaintiff’s silence, but acted upon his own judgment as to his title.
The verdict in this case is for all the land described in the plaintiff’s writ, when the defendant has disclaimed a part, and the issue tried is only as to the residue. It is clearly a mistake, but not such as to affect the judgment,— the part for which judgment should be rendered being clearly shown in the issue, and it being manifest that the jury have found the issue for the plaintiff. That they have found something more than was submitted to them, or than was proved, will not necessarily vitiate the verdict. . It is clearly a case where the finding of the issue may be concluded out of the verdict, and that, as it is well settled, is sufficient, although the verdict is informal. Pettes v. Bing-ham, 10 N. H. 514; Allen v. Aldrich, 29 N. H. 75; Hodges v. Raymond, 9 Mass. 316; Commonwealth v. Fishblatt, 4 Met. 354; Hawkes v. Crofton, 2 Burr. 698; Porter v. Rummery, 10 Mass. 64; and so is Parker v. Brown, 15 N. H. 176, which fully recognizes the power to amend the verdict, as in this case; but the court decline to apply it there, for the reason that there was no description of the part to which the verdict should have been confined. So, if the jury find the issue, and something more, the latter may be rejected as surplusage. Patterson v. United States, 2 Wheat. 221. So, if a verdict is too large, the excess maybe remitted, if it can be ascertained by computation. Sanborn v. Emerson, 12 N. H. 58; Pierce v. Wood, 23 N. H. 519; Willard v. Stevens, 24 N. H. 271. So where betterments were erroneously awarded, it was held that they might be remitted. Wendell v. Moulton, 26 N. H. 41.
The result is, that on remitting, in the judgment in this [479] case, tbe part disclaimed, and all of tbe residue but the fourteen inches shown in the evidence, there must be
Judgment on the verdict.