Golbsborough, J.,
delivered the opinion of this court.
This is an action of ejectment, brought by the appellant against the appellee, in the circuit court for Anne Arundel county.
The appellant declared for a tract of land called “Holly Hill Farm,” lying in Anne Arundel county, and also in another count for an undivided moiety of the same land. He set out his pretensions in his nar., by metes and bounds.
The appellee came into court and prayed to be made defendant, and was required to enter into the consent rule, and confess lease, entry and actual ouster, which he did accordingly; and declining to take defence on warrant pleaded not guilty.
At the trial of the cause, and after the plaintiff had offered evidence to establish the lessor’s title to the land in controversy, the defendant submitted the evidence contained in the first exception, to which the plaintiff objected, but the court overruled the objection and permitted the evidence .to go to the jury, with the proviso mentioned in this exception.
The defendant then, under the ruling of the court, offered further evidence tending to prove that the lessor of the plaintiff, at the time of the sale as aforesaid, knew that she was entitled to an undivided interest in the land in controversy, and with such knowledge did assent to, and acquiesce in, ■the sale. The plaintiff excepted.
[228]*228After the evidence had been given as detailed in the first exception, and the court had ruled as stated therein; the defendant, under this ruling, submitted the evidence contained in the second exception, and the plaintiff also offered his evidence mentioned m the same exception. The defendant then submitted nine prayers, all of which were rejected by the court except the 6th, 8th and 9th, and the plaintiff offered the prayer mentioned in the second exception, which was rejected. To which ruling of the court in granting the defendant’s 6th, 8th and 9lh prayers, and the rejection of the plaintiff’s prayer, the plaintiff excepted. The verdict and judgment being for the defendant; the plaintiff appealed.
In the able argument of the counsel of the appellee, they submitted four points for our consideration:
1st. “That the evidence i;i the first bill of exceptions, to the admissibility of which the plaintiff excepted, was properly admitted, upon the ground, that if believed by the jury, it estopped the plaintiff’s lessor from setting up title, as a claim, under such circumstances, would be a fraud upon innocent purchasers.”
2nd. “That the evidence shows that the plaintiff’s lessor elected to take under the will of Benjamin Harrison, and that having so elected, she is, estopped from claiming, as heir at law of her father, a moiety of the lands described in the nar.”
3rd. “The plaintiff’s lessor being tenant in common with the defendant, and those under whom he claims, it was necessary to prove actual ouster to entitle her to bring ejectment.”
4th. “That unless the land sought to be recovered is included within the abuttals designated in the nar., the plaintiff was not entitled to recover.”
As to the third and fourth points, corresponding with the eighth and ninth prayers granted; we regard the actual ouster a:s conceded by the whole current of the appellee’s testimony. He shows that he has been, and now is, in adverse possession of the whole 135J acres. That he has made valuable improvements thereon, and litigates the appellant’s pretensions upon grounds wholly foreign to the idea of the continuance of a [229]*229tenancy in common. Yet if there was any apparent force in tlie appellee’s third point, wo regard it as answered by applying the rule laid down in Dorsey on Ejectment, page 16, and sustained b'y Adams cn Ejectment, 263, Edition of 1846, that “'the defendant ought to have applied to the court upon affidavit, for a special rule to confess lease, entry, and not ouster; and if a tenant in common, &c., acknowledges the ouster, he will be precluded from denying, or in other words, of showing, that the plaintiff has not been injured.” And the appellee not having taken defence on warrant, thereby concedes the general identity of the premises in controversy, and cannot controvert, under his general issue, the location of the appellant’s pretensions as set out in his nar. These prayers should, therefore, have been rejected.
The sixth prayer of the appellee should have been rejected also; we do not consider the question of election, as involved in this case. The conduct cf tile plaintiff’s lessor indicates neither an intention to defeat any provision in her father’s will, nor, by taking under it, does she manifest the purpose of making her election; wc cannot better express our view on this point than by adopting the language contained in the following quotation from White & Tudor’s Leading Cases in Equity, 65 Law Library, 275.
“The principle of election by implication, in equity, depends upon the circumstance, that the same instrument which transfers or conveys certain property of the testator’s to one legatee or devisee, transfers and conveys certain other property to another legatee or devisee, and that the former beneficiary, availing himself of the instrument in one particular, must not defeat its operation in another. But if the latter devise or bequest be invalid — if the instrument in respect to it be legally inoperative and void — the former beneficiary’s retaining his own property, does not defeat the operation of the instrument. If it be a will, it does not defeat the intention of the testator legally declared. Retaining the subject of the transfer does not disappoint the instrument, if the law has already avoided and nullified the transfer. This occurs in the case of a devise of land by a feme covert, or [230]*230an infant, or under a will not executed, so as to pass lands. There is in such cases, no election from implied intention.” This court decided in the former case of Tongue vs. Nutwell, 13 Md. Rep., 415, that the provisions in the' will, in relation to the property now in controversy, was void by opera* tion of law.
But it is confidently maintained by the appellee, that the lessor of the plaintiff is estopped by the knowledge of her title; and that her conduct in reference to the lands in controversy, created an estoppel in pais. We have look* ed through the record in vain for the evidence to sustain this point. The appellee, and those under whom he claims, clearly come under the operation of the principle of caveat émptor. The same means and opportunity of tracing title were equally open to both appellant and appellee. The will of Harrison was on record, and therefore, within the reach of any one who might be interested in the inspection of it. It is apparent to us that the lessor of the plaintiff, resting as she did, from the death of her father, at which time her title, as heir at law accrued, until 1855, when she first received an intimation of her right, acted in total ignorance of that right, and no legal inference of knowledge can be drawn from either her acts or declarations.
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Golbsborough, J.,
delivered the opinion of this court.
This is an action of ejectment, brought by the appellant against the appellee, in the circuit court for Anne Arundel county.
The appellant declared for a tract of land called “Holly Hill Farm,” lying in Anne Arundel county, and also in another count for an undivided moiety of the same land. He set out his pretensions in his nar., by metes and bounds.
The appellee came into court and prayed to be made defendant, and was required to enter into the consent rule, and confess lease, entry and actual ouster, which he did accordingly; and declining to take defence on warrant pleaded not guilty.
At the trial of the cause, and after the plaintiff had offered evidence to establish the lessor’s title to the land in controversy, the defendant submitted the evidence contained in the first exception, to which the plaintiff objected, but the court overruled the objection and permitted the evidence .to go to the jury, with the proviso mentioned in this exception.
The defendant then, under the ruling of the court, offered further evidence tending to prove that the lessor of the plaintiff, at the time of the sale as aforesaid, knew that she was entitled to an undivided interest in the land in controversy, and with such knowledge did assent to, and acquiesce in, ■the sale. The plaintiff excepted.
[228]*228After the evidence had been given as detailed in the first exception, and the court had ruled as stated therein; the defendant, under this ruling, submitted the evidence contained in the second exception, and the plaintiff also offered his evidence mentioned m the same exception. The defendant then submitted nine prayers, all of which were rejected by the court except the 6th, 8th and 9th, and the plaintiff offered the prayer mentioned in the second exception, which was rejected. To which ruling of the court in granting the defendant’s 6th, 8th and 9lh prayers, and the rejection of the plaintiff’s prayer, the plaintiff excepted. The verdict and judgment being for the defendant; the plaintiff appealed.
In the able argument of the counsel of the appellee, they submitted four points for our consideration:
1st. “That the evidence i;i the first bill of exceptions, to the admissibility of which the plaintiff excepted, was properly admitted, upon the ground, that if believed by the jury, it estopped the plaintiff’s lessor from setting up title, as a claim, under such circumstances, would be a fraud upon innocent purchasers.”
2nd. “That the evidence shows that the plaintiff’s lessor elected to take under the will of Benjamin Harrison, and that having so elected, she is, estopped from claiming, as heir at law of her father, a moiety of the lands described in the nar.”
3rd. “The plaintiff’s lessor being tenant in common with the defendant, and those under whom he claims, it was necessary to prove actual ouster to entitle her to bring ejectment.”
4th. “That unless the land sought to be recovered is included within the abuttals designated in the nar., the plaintiff was not entitled to recover.”
As to the third and fourth points, corresponding with the eighth and ninth prayers granted; we regard the actual ouster a:s conceded by the whole current of the appellee’s testimony. He shows that he has been, and now is, in adverse possession of the whole 135J acres. That he has made valuable improvements thereon, and litigates the appellant’s pretensions upon grounds wholly foreign to the idea of the continuance of a [229]*229tenancy in common. Yet if there was any apparent force in tlie appellee’s third point, wo regard it as answered by applying the rule laid down in Dorsey on Ejectment, page 16, and sustained b'y Adams cn Ejectment, 263, Edition of 1846, that “'the defendant ought to have applied to the court upon affidavit, for a special rule to confess lease, entry, and not ouster; and if a tenant in common, &c., acknowledges the ouster, he will be precluded from denying, or in other words, of showing, that the plaintiff has not been injured.” And the appellee not having taken defence on warrant, thereby concedes the general identity of the premises in controversy, and cannot controvert, under his general issue, the location of the appellant’s pretensions as set out in his nar. These prayers should, therefore, have been rejected.
The sixth prayer of the appellee should have been rejected also; we do not consider the question of election, as involved in this case. The conduct cf tile plaintiff’s lessor indicates neither an intention to defeat any provision in her father’s will, nor, by taking under it, does she manifest the purpose of making her election; wc cannot better express our view on this point than by adopting the language contained in the following quotation from White & Tudor’s Leading Cases in Equity, 65 Law Library, 275.
“The principle of election by implication, in equity, depends upon the circumstance, that the same instrument which transfers or conveys certain property of the testator’s to one legatee or devisee, transfers and conveys certain other property to another legatee or devisee, and that the former beneficiary, availing himself of the instrument in one particular, must not defeat its operation in another. But if the latter devise or bequest be invalid — if the instrument in respect to it be legally inoperative and void — the former beneficiary’s retaining his own property, does not defeat the operation of the instrument. If it be a will, it does not defeat the intention of the testator legally declared. Retaining the subject of the transfer does not disappoint the instrument, if the law has already avoided and nullified the transfer. This occurs in the case of a devise of land by a feme covert, or [230]*230an infant, or under a will not executed, so as to pass lands. There is in such cases, no election from implied intention.” This court decided in the former case of Tongue vs. Nutwell, 13 Md. Rep., 415, that the provisions in the' will, in relation to the property now in controversy, was void by opera* tion of law.
But it is confidently maintained by the appellee, that the lessor of the plaintiff is estopped by the knowledge of her title; and that her conduct in reference to the lands in controversy, created an estoppel in pais. We have look* ed through the record in vain for the evidence to sustain this point. The appellee, and those under whom he claims, clearly come under the operation of the principle of caveat émptor. The same means and opportunity of tracing title were equally open to both appellant and appellee. The will of Harrison was on record, and therefore, within the reach of any one who might be interested in the inspection of it. It is apparent to us that the lessor of the plaintiff, resting as she did, from the death of her father, at which time her title, as heir at law accrued, until 1855, when she first received an intimation of her right, acted in total ignorance of that right, and no legal inference of knowledge can be drawn from either her acts or declarations.
It is insisted that, “when one stands by and sees another laying out money and making large investments upon property, to which he or she has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title.” This language is quoted from Chief Justice Shaw, in the case of Gray vs. Bartlett, 20 Pick. Rep., 193, where he further says, “We think this is a very just and well settled principle when well understood and properly applied. The principle insisted on requires some qualification, and can only be held to apply against one who claims under some trust, lien or other right, not equally open and apparent to the parties, and in favor of one who would be deceived or misled by such want of notice. But where the act of one is an encroachment on the soil or rights of another, an acknowledged tort, equally well known or equally open to the notice of both parties, it gives no right [231]*231until it has continued for such length of time, without interruption, as to found the presumption of a grant, or give effect to the limitation of the right of action for the],disturbance, as determined by the common law or by statute.”
(Decided June 26th, 1861.)
We regard this a sound illustration of an estoppel in pais, and are sustained in the adoption of it by this court in the case of Casey’s lessee vs. Inloes, et al., 1 Gill, 502, where the case in 20 Pickering, is quoted with approbation.
Judgment reversed and procedendo aioarded.