Terrell v. Grimmell

20 Iowa 393

Opinion

Dillon, J.

1. estopdemgtjjn sale-In holding that the receipt of the money from the clerk by the plaintiff, amounted to an estoppel in puis, preventing him from further litigating the validity of the sheriff’s title, and showing the alleged fraudulent character of the adverse title claimed by and under the children of Q-rimmell, the District Court erred. To establish an estoppel in pais, it should appear, first, that the plaintiff’s act, in receiving the money from the clerk, is inconsistent with the idea of the superiority of his title over that of Phillips; second, that Phillips was induced to change his condition, or do an act upon the faith of the plaintiff’s act; and third, that he will be injured if the plaintiff is now allowed to establish the validity of his (the plaintiff’s) title, or to contest the title of the intervenor. See, in. this State, Lucas v. Hart, 5 Iowa, 415; and in other States the authorities cited by the appellant’s counsel.

No such case is made. The act of the plaintiff in accepting the money deposited for him, did not mislead Phillips to his injury. Phillips acted first, and acted voluntarily. The plaintiff did nothing to induce Phillips to make the redemption. Phillips did not change his condition in consequence of the act of the plaintiff in receiving the money from the clerk. Phillips had the right to redeem, and he simply, on his own motion, and for the better preservation of his rights in case he should finally succeed in the pending law suit, exercised this right by paying, without consulting the plaintiff, the money to the clerk. It was not even paid to the plaintiff. Phillips had an object in view. That object was to redeem the land. He was not injured by the acceptance of the money by the plaintiff. This acceptance rendered the redemption, which Phillips sought to make, only the more perfect and effectual. Receiving the money from the clerk might well estop plaintiff to deny Phillips’ right to make the redemption from the tax sale, and might also estop him to set up the tax sale against Phillips.

But it would hardly do to give it any greater operation, and to hold that its effect was to admit that Phillips had a fee simple title (for such a title is not essential in order to enable a party to redeem from a tax sale), and that such title was superior to that of the plaintiff derived under the independent transaction of the sheriff’s sale.

Reversed.