Moore, C. J
The only assignment of error on behalf of the appellant, Page, the plaintiff below, which presents a question of importance, is that complaining of the charge given by the court to the jury. It may be generally said, in answer to the assignments which complain of the ruling of the court on appellant’s exceptions to the testimony to which he objected, that as appellees relied, as a defense, upon an estoppel in pais to conclude appellant’s recovery of the land for which he sues, they were entitled to show all the facts and circumstances of the dealing of appellant, and those under whom he claimed, with the land, from which the purchaser at the administration sale coaild probably have been induced to suppose that appellant had no title to the land, or admitted the legality and validity of its sale by administrator of Chase, the grantee. However slight and unimportant these circumstances were taken, either singly or in connection, it cannot be said they were altogether immaterial for the purpose for which they were offered, and might, indeed, if the other ingredients of such a defense were established, become of the utmost importance.
The first clause of the charge upon the subject of estoppel is certainly quite vague and indefinite, and it is difficult, if not impossible, to say precisely what is the legal principle intended to be announced by it. But the most favorable view, which it has occurred to us can be taken of it in favor of the judgment, is to regard it as a qualification on the remainder of the charge, in respect to the effect against his title of appellant’s standing by at the administrator’s sale. The entire charge upon this subject must be construed, if this is its proper construction, to the effect, that if appellant, for ten years after arriving at full age, [70]*70had failed to assert his right to the land, and was present at the sale, and knowing what was being done, and also that the sale was intended to embrace his half of the land, and he failed to make known his claim to it, he was thereby estopped from its recovery. Do these few naked facts, enumerated in this charge-, operate as an estoppel, and preclude the owner from an assertion of his title from the purchaser ? What are these facts? 1st, the failure to assert his title for a considerable period of time, although there is no adverse possession of the land; 2d, that he is silent, although present, and knows that the entire property is being sold by a part owner. We must not infer, however, that he is necessarily acquainted with the fact of his having a title or interest in the land, unless this is a conclusive presumption of law; for the charge asked by appellant, that his ignorance in this particular would relieve him from the effect of the estoppel, was refused by the court. bTor is any account taken of the administration by appellant’s brother upon the estate of his mother, or his participation in the first appraisement of the land as the property of William Chase’s estate, unless the evidence on these points is considered merely in support of the first clause of the charge.
During our late session at Austin, this doctrine of estoppels in pais was, in the cases of Burleson v. Burleson, [28 Tex., 383;] and Scoby v. Sweatt, [28 Tex., 713,] fully considered and somewhat elaborately discussed. In the first of these cases it was held, that the tacit presence of the owner, and his knowledge of the sale, will not estop him, if the purchaser is otherwise informed as to the true state of the title. And in the second, it was decided, that the acts from which the estoppel is claimed to spring, must have, in .some way, induced or influenced the purchaser; that the basis upon which such estoppel rests is actual or constructive fraud on the part of the owner, or such facts as would be tantamount to a fraud, if he were permitted to recover the property. The facts from which the estoppel is now claimed are alto-[71]*71getter different from those there presented to the court; hut the ingredients constituting a valid estoppel in pais, as defined in the instruction given the jury in this case, certainly fall far short of what was thought hy this court to be its essential elements in these cases.
There seems no reason to suppose that the appellant was any better informed as to the character and legal effect of the grant under which the administrator claimed and sold the entire league of land than the purchaser. If one is presumed to know its legal effect, so is the other. The title showed the date of the grant. Knowing it to be community property, he was put upon inquiry as to the parties interested in it. If he were informed of appellants interest, to have made it known to him at the sale, would have furnished him with no additional information. If he did not know of it, appellant’s presence at sale could not have induced the impression of a waiver or abandonment of his title, and could in no way have induced the purchase.
There are some cases, it is true, in which it has been held, that if the owner be present, and sees another purchasing with the erroneous belief that he is getting a good title, and he fails to make known his claim, he will be estopped from afterwards demanding the property. But upon a reference to the cases, it will generally be found that the facts show some additional sanction or encouragement of the purchase beyond the mere presence of the owner. (Rugelez v. Spring, 21 Me., 130; same case, 28 Me., 128; Hatch v. Kimball, 16 Me., 166.)
The true rule seems to be, and with it goes the later and better considered cases, that the mere presence of the owner, if he have concealed no fact of which he was informed, and the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale.
[72]*72In the ease of Boggs v. Murced, 14 Cal., 367, Chief Justice Field says: “ It is undoubtedly true, that a party will, in many instances, be concluded by his declarations or conduct, which have influenced the conduct of another to his injury. The party is said, in such cases, to be estopped from denying the truth of his admissions. But to the application of this principle, with respect to the title of real property, it must appear, first, that the party making the admission, by his declaration or conduct, was apprized of the true state of Ms own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, further, that he relied directly on such admission, and will be injured by allowing its truth to be disproved.”
And in Hill v. Epley, 31 Pa., 334, it is said: “It is only when silence becomes a fraud that it postpones.” And again: “ The primary ground of this doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.” (Dezell v. Odell, 3 Hill, 222; Otis v. Sill, 8 Barb., 102; Lawrence v. Brown, 1 Seld., 394; Morris v. Moore, 11 Humph., 433; Brewer v. Brewer, 19 Ala., 481; Clabaugh v. Byerly, 7 Gill., 384.)
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Moore, C. J
The only assignment of error on behalf of the appellant, Page, the plaintiff below, which presents a question of importance, is that complaining of the charge given by the court to the jury. It may be generally said, in answer to the assignments which complain of the ruling of the court on appellant’s exceptions to the testimony to which he objected, that as appellees relied, as a defense, upon an estoppel in pais to conclude appellant’s recovery of the land for which he sues, they were entitled to show all the facts and circumstances of the dealing of appellant, and those under whom he claimed, with the land, from which the purchaser at the administration sale coaild probably have been induced to suppose that appellant had no title to the land, or admitted the legality and validity of its sale by administrator of Chase, the grantee. However slight and unimportant these circumstances were taken, either singly or in connection, it cannot be said they were altogether immaterial for the purpose for which they were offered, and might, indeed, if the other ingredients of such a defense were established, become of the utmost importance.
The first clause of the charge upon the subject of estoppel is certainly quite vague and indefinite, and it is difficult, if not impossible, to say precisely what is the legal principle intended to be announced by it. But the most favorable view, which it has occurred to us can be taken of it in favor of the judgment, is to regard it as a qualification on the remainder of the charge, in respect to the effect against his title of appellant’s standing by at the administrator’s sale. The entire charge upon this subject must be construed, if this is its proper construction, to the effect, that if appellant, for ten years after arriving at full age, [70]*70had failed to assert his right to the land, and was present at the sale, and knowing what was being done, and also that the sale was intended to embrace his half of the land, and he failed to make known his claim to it, he was thereby estopped from its recovery. Do these few naked facts, enumerated in this charge-, operate as an estoppel, and preclude the owner from an assertion of his title from the purchaser ? What are these facts? 1st, the failure to assert his title for a considerable period of time, although there is no adverse possession of the land; 2d, that he is silent, although present, and knows that the entire property is being sold by a part owner. We must not infer, however, that he is necessarily acquainted with the fact of his having a title or interest in the land, unless this is a conclusive presumption of law; for the charge asked by appellant, that his ignorance in this particular would relieve him from the effect of the estoppel, was refused by the court. bTor is any account taken of the administration by appellant’s brother upon the estate of his mother, or his participation in the first appraisement of the land as the property of William Chase’s estate, unless the evidence on these points is considered merely in support of the first clause of the charge.
During our late session at Austin, this doctrine of estoppels in pais was, in the cases of Burleson v. Burleson, [28 Tex., 383;] and Scoby v. Sweatt, [28 Tex., 713,] fully considered and somewhat elaborately discussed. In the first of these cases it was held, that the tacit presence of the owner, and his knowledge of the sale, will not estop him, if the purchaser is otherwise informed as to the true state of the title. And in the second, it was decided, that the acts from which the estoppel is claimed to spring, must have, in .some way, induced or influenced the purchaser; that the basis upon which such estoppel rests is actual or constructive fraud on the part of the owner, or such facts as would be tantamount to a fraud, if he were permitted to recover the property. The facts from which the estoppel is now claimed are alto-[71]*71getter different from those there presented to the court; hut the ingredients constituting a valid estoppel in pais, as defined in the instruction given the jury in this case, certainly fall far short of what was thought hy this court to be its essential elements in these cases.
There seems no reason to suppose that the appellant was any better informed as to the character and legal effect of the grant under which the administrator claimed and sold the entire league of land than the purchaser. If one is presumed to know its legal effect, so is the other. The title showed the date of the grant. Knowing it to be community property, he was put upon inquiry as to the parties interested in it. If he were informed of appellants interest, to have made it known to him at the sale, would have furnished him with no additional information. If he did not know of it, appellant’s presence at sale could not have induced the impression of a waiver or abandonment of his title, and could in no way have induced the purchase.
There are some cases, it is true, in which it has been held, that if the owner be present, and sees another purchasing with the erroneous belief that he is getting a good title, and he fails to make known his claim, he will be estopped from afterwards demanding the property. But upon a reference to the cases, it will generally be found that the facts show some additional sanction or encouragement of the purchase beyond the mere presence of the owner. (Rugelez v. Spring, 21 Me., 130; same case, 28 Me., 128; Hatch v. Kimball, 16 Me., 166.)
The true rule seems to be, and with it goes the later and better considered cases, that the mere presence of the owner, if he have concealed no fact of which he was informed, and the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale.
[72]*72In the ease of Boggs v. Murced, 14 Cal., 367, Chief Justice Field says: “ It is undoubtedly true, that a party will, in many instances, be concluded by his declarations or conduct, which have influenced the conduct of another to his injury. The party is said, in such cases, to be estopped from denying the truth of his admissions. But to the application of this principle, with respect to the title of real property, it must appear, first, that the party making the admission, by his declaration or conduct, was apprized of the true state of Ms own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, further, that he relied directly on such admission, and will be injured by allowing its truth to be disproved.”
And in Hill v. Epley, 31 Pa., 334, it is said: “It is only when silence becomes a fraud that it postpones.” And again: “ The primary ground of this doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.” (Dezell v. Odell, 3 Hill, 222; Otis v. Sill, 8 Barb., 102; Lawrence v. Brown, 1 Seld., 394; Morris v. Moore, 11 Humph., 433; Brewer v. Brewer, 19 Ala., 481; Clabaugh v. Byerly, 7 Gill., 384.)
The only qualification which seems necessary to the doctrine laid down in these cases is, that a party may be estopped by acts and declarations which were designed to influence another who has acted upon them, although both parties were ignorant that what is thereby represented is not true; for if one of two innocent parties must suffer, he through whose agency the loss occurred should sustain it.
[73]*73It remains for us to consider the errors assigned by the intervenor. The application for a continuance was properly annulled. There was not such necessity shown for the presence of the absent counsel as to require a continuance. The other ground was obviated by the admission of the fact, which it was desired to prove, viz, that the county clerk of Brazoria county had no official seal in 1837.
The objection to the introduction of the release from the administration of Chase to McGreal, and the contract between McGreal and Arnim, was also properly overruled. But, in saying this, we are not to be understood as holding merely that the first was admissible as a recorded instrument, and the last as authenticated by the admissions of the parties to it, by whom it was offered; but, as there has been no argument to the points, we express no opinion as to the legal effect of the instruments, or as to the date at which the last must be held to take effect, in view of the manner in which it comes into court.
There was, however, manifest error in sustaining the objections made to the copy from the records of Gonzales county of the deed to Rainwater, under whom the intervenor claims. The alleged discrepancy in the name of the witness to the deed and that of the party by whom its execution was proved before the officer who probated it for record was immaterial. The certificate identified the party by whom the deed was proved as the same person who signed it as a witness, which would be sufficient to rebut the contrary presumption from the supposed difference in the initial letter of the middle name. It, is however, abundantly clear, that the alleged discrepancy is one of which the law takes no notice. (McKay v. Speak, 8 Tex., 376; McKissick v. Colquhoun, 18 Tex., 148; Gains v. Stiles, 14 Pet., 222.) As this copy of the deed should have been admitted in evidence, it is unnecessary for us to determine whether it was properly recorded in Lavaca county, and if the copy of that record should also have been received. [74]*74if or is it necessary that we shall notice the questions presented by the remaining assignments of errors, as it is altogether improbable that they will arise on another trial.
For the error in the charge against the plaintiff, and for that in excluding the copy of the deed offered in evidence by the intervener, the judgment as to both of them is reversed, and the cause
Remanded.