A. S. Walkeb, J.
The fourth and fifth assignments of error alone need to be particularly considered.
The first assignment relates to sustaining the exceptions of plaintiff to the pleas of estoppel from the lease, etc. As defendants had the benefit of the facts on the trial in support of other defenses, no injury resulted.
The second assignment questions the sufficiency of the petition. This is not well taken. The petition was good.
The third, sixth and eighth are too indefinite.
The seventh, to the overruling motion for new trial, has nothing additional to the assignment of errors. •
The fourth and fifth assignments complain of certain instructions which were given-and refused.
The fourth instruction given, ... so far as objectionable, is: “If you believe from the testimony that the plaintiff purchased the land in controversy from Collins by a verbal contract, paying part of the purchase money (either in property, money, or the indebtedness of Collins to him), and that Miller went into actual possession of the land with the knowledge and consent of Collins, and made valuable improvements thereon, then said purchase so made vested in Miller an equitable title to the land superior to the legal title which remained in Collins, or which defendants now hold.”
5. “If you believe from the evidence that the plaintiff was in the actual possession of the said land, then such possession was notice not only to the defendants but to all the world of his claim of title, and when Whitsett purchased of Collins he took whatever title he got by his deed with full notice of Miller’s claim of title to the land, and hence the defendants cannot claim to be innocent purchasers.”
7. “ In order for the acts of a party to operate as an estop- • pel, the acts must have been done with the intent to influence the other party in his conduct.” . . . The court [209]*209then charged that if Miller’s attornment was from mistake of his rights, or on Whitsett’s unperformed assurance that he would be repaid, he could assert his title, etc.
The ninth instruction informed the jury, “ if,' at the date of the deed from Whitsett to Mrs. Smith, this alleged tenancy (made January 2d, ending in November) had expired, and if Miller at that date was in possession of the land, holding the same adversely to her, and if she knew, or could have been informed by a reasonable inquiry, that Miller was in-possession of and setting upa claim of title to the land, then she is not an innocent purchaser, and cannot be protected as such.”
The. defendants asked the court to charge the jury, “ if they believe from the evidence that Mrs. E. H. Smith purchased said ¿and from Whitsett and gave a fair price therefor, in good faith, and that at the date of their purchase Miller held said premises as the tenant of said defendants or either of them, and that she had no knowledge that said Miller was at that date setting up any other claim to the premises in controversy, they will find for the defendants.” This was refused.
It may be remarked that, however perfect the equitable title of Miller may have been upon the facts as alleged, and as made by him in his testimony, still the very ground-works of his equity were attacked in the testimony for the defendants.
Collins denied the contract and denied the payment of anything on the contract; and there was at least a confused, condition of their money matters, shown by other testimony adduced, to have existed at or soon after the alleged parol purchase.
The defendant, Mrs. E. H. Smith, by plea, and by testimony to the support of the plea, set up affirmative equities in the land, to support the legal title which had been, conveyed to her before the suit was brought.
It was in evidence, that, in addition to the legal title, she had given therefor a valuable consideration, perfected-at the delivery of the deed to her.
[210]*210To attack her legal title by destroying her equity, it de- . volved upon Miller to show potice to her, or facts charging her with such notice of his claim. She had testified that she only knew Miller as her father’s and husband’s tenant. There was no evidence of actual knowledge brought home to her.
Thus the effect of Miller’s possession, and of its character, become of vital importance.
It may be that the judge below looked upon Whitsett’s act in taking the second lease from Miller as destructive of any idea of good faith in his daughter, for whom he acted in taking Miller’s obligation for rent; charging Mrs. Smith with knowledge of all the facts known to her agent. But even this agency -was a fact for the jury.
The closing paragraph of the fourth charge concluded the rights of Mrs. Smith by the notice of which her grantor was charged at his purchase. At least her claim is there limited to the bare legal title, as was Whitsett’s.
So of the fifth instruction, by which it is stated that Miller’s possession is conclusive, not only against Whitsett, but as against all his vendees. This could only be true as to the state of the title at the date of thafleed to"Whitsett; it could not be true as limiting the natural effect of Miller’s actions and relations to the property, which may have induced action on the part of others, based upon an altered state of the title evidenced by MilleBs acts.
The seventh instruction contains the proposition that to create an estoppel in pais the acts must have been done with the particular intent “ to influence the other party in his conduct.” To this should have been added the further extension of the right to result from the effect of the act as one that hie had reason to believe, as a man of ordinary prudence, would influence the conduct of others (Big. on Estoppel, 600), or “ if the act and circumstances were such as to justify defendant in acting upon it.” Mayer v. Ramsey, 46 Tex., 375.
The doctrine “ that the act of the party against whom the estoppel is claimed must be wilful has been overruled or [211]*211limited.” Big. on Estoppel, 398. It extends as well to acts of carelessness and negligence, inducing or resulting in changing the conduct of others, as acting upon a condition of facts presumed from such acts, and as to which it would be fraudulent should such presumptions be denied. Page v. Arnim, 29 Tex., 72. Or to any act inducing a change of condition which cannot be replaced without injury to the party acting. Beardsly v. Foote, 14 Ohio St., 416.
The ninth instruction is upon a hypothetical state of facts. At least the facts which would authorize it do not appear in the statement of facts. It nowhere appears in evidence that at the date of Whitsett’s deed to defendant, Mrs. Smith, that Miller’s second lease had expired, or that he was at the time setting up a claim to the land.
While the instruction asked by the defendants and set out above is perhaps not entirely free from objection so as to render its rejection error in itself, still it was sufficient to call the attention of the court to the deficiency in the general charge as to the rights of Mrs. Smith under her plea of bona fide purchase.
The court in many ways had avoided the legal effect of the estoppel as pleaded; every part of the plaintiff’s case had been carefully protected. The defendant had a right to have her ease
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A. S. Walkeb, J.
The fourth and fifth assignments of error alone need to be particularly considered.
The first assignment relates to sustaining the exceptions of plaintiff to the pleas of estoppel from the lease, etc. As defendants had the benefit of the facts on the trial in support of other defenses, no injury resulted.
The second assignment questions the sufficiency of the petition. This is not well taken. The petition was good.
The third, sixth and eighth are too indefinite.
The seventh, to the overruling motion for new trial, has nothing additional to the assignment of errors. •
The fourth and fifth assignments complain of certain instructions which were given-and refused.
The fourth instruction given, ... so far as objectionable, is: “If you believe from the testimony that the plaintiff purchased the land in controversy from Collins by a verbal contract, paying part of the purchase money (either in property, money, or the indebtedness of Collins to him), and that Miller went into actual possession of the land with the knowledge and consent of Collins, and made valuable improvements thereon, then said purchase so made vested in Miller an equitable title to the land superior to the legal title which remained in Collins, or which defendants now hold.”
5. “If you believe from the evidence that the plaintiff was in the actual possession of the said land, then such possession was notice not only to the defendants but to all the world of his claim of title, and when Whitsett purchased of Collins he took whatever title he got by his deed with full notice of Miller’s claim of title to the land, and hence the defendants cannot claim to be innocent purchasers.”
7. “ In order for the acts of a party to operate as an estop- • pel, the acts must have been done with the intent to influence the other party in his conduct.” . . . The court [209]*209then charged that if Miller’s attornment was from mistake of his rights, or on Whitsett’s unperformed assurance that he would be repaid, he could assert his title, etc.
The ninth instruction informed the jury, “ if,' at the date of the deed from Whitsett to Mrs. Smith, this alleged tenancy (made January 2d, ending in November) had expired, and if Miller at that date was in possession of the land, holding the same adversely to her, and if she knew, or could have been informed by a reasonable inquiry, that Miller was in-possession of and setting upa claim of title to the land, then she is not an innocent purchaser, and cannot be protected as such.”
The. defendants asked the court to charge the jury, “ if they believe from the evidence that Mrs. E. H. Smith purchased said ¿and from Whitsett and gave a fair price therefor, in good faith, and that at the date of their purchase Miller held said premises as the tenant of said defendants or either of them, and that she had no knowledge that said Miller was at that date setting up any other claim to the premises in controversy, they will find for the defendants.” This was refused.
It may be remarked that, however perfect the equitable title of Miller may have been upon the facts as alleged, and as made by him in his testimony, still the very ground-works of his equity were attacked in the testimony for the defendants.
Collins denied the contract and denied the payment of anything on the contract; and there was at least a confused, condition of their money matters, shown by other testimony adduced, to have existed at or soon after the alleged parol purchase.
The defendant, Mrs. E. H. Smith, by plea, and by testimony to the support of the plea, set up affirmative equities in the land, to support the legal title which had been, conveyed to her before the suit was brought.
It was in evidence, that, in addition to the legal title, she had given therefor a valuable consideration, perfected-at the delivery of the deed to her.
[210]*210To attack her legal title by destroying her equity, it de- . volved upon Miller to show potice to her, or facts charging her with such notice of his claim. She had testified that she only knew Miller as her father’s and husband’s tenant. There was no evidence of actual knowledge brought home to her.
Thus the effect of Miller’s possession, and of its character, become of vital importance.
It may be that the judge below looked upon Whitsett’s act in taking the second lease from Miller as destructive of any idea of good faith in his daughter, for whom he acted in taking Miller’s obligation for rent; charging Mrs. Smith with knowledge of all the facts known to her agent. But even this agency -was a fact for the jury.
The closing paragraph of the fourth charge concluded the rights of Mrs. Smith by the notice of which her grantor was charged at his purchase. At least her claim is there limited to the bare legal title, as was Whitsett’s.
So of the fifth instruction, by which it is stated that Miller’s possession is conclusive, not only against Whitsett, but as against all his vendees. This could only be true as to the state of the title at the date of thafleed to"Whitsett; it could not be true as limiting the natural effect of Miller’s actions and relations to the property, which may have induced action on the part of others, based upon an altered state of the title evidenced by MilleBs acts.
The seventh instruction contains the proposition that to create an estoppel in pais the acts must have been done with the particular intent “ to influence the other party in his conduct.” To this should have been added the further extension of the right to result from the effect of the act as one that hie had reason to believe, as a man of ordinary prudence, would influence the conduct of others (Big. on Estoppel, 600), or “ if the act and circumstances were such as to justify defendant in acting upon it.” Mayer v. Ramsey, 46 Tex., 375.
The doctrine “ that the act of the party against whom the estoppel is claimed must be wilful has been overruled or [211]*211limited.” Big. on Estoppel, 398. It extends as well to acts of carelessness and negligence, inducing or resulting in changing the conduct of others, as acting upon a condition of facts presumed from such acts, and as to which it would be fraudulent should such presumptions be denied. Page v. Arnim, 29 Tex., 72. Or to any act inducing a change of condition which cannot be replaced without injury to the party acting. Beardsly v. Foote, 14 Ohio St., 416.
The ninth instruction is upon a hypothetical state of facts. At least the facts which would authorize it do not appear in the statement of facts. It nowhere appears in evidence that at the date of Whitsett’s deed to defendant, Mrs. Smith, that Miller’s second lease had expired, or that he was at the time setting up a claim to the land.
While the instruction asked by the defendants and set out above is perhaps not entirely free from objection so as to render its rejection error in itself, still it was sufficient to call the attention of the court to the deficiency in the general charge as to the rights of Mrs. Smith under her plea of bona fide purchase.
The court in many ways had avoided the legal effect of the estoppel as pleaded; every part of the plaintiff’s case had been carefully protected. The defendant had a right to have her ease explained to the jury. She had a plea, and evidence under it sufficient to sustain it in absence of contradictory testimony. It was error not to give it to the jury.
Assuming the plaintiff’s testimony to be true, he had an equitable title to the land at the time of Whitsett’s purchase. His possession charged Whitsett with notice of his title, and Whitsett took only the bare legal title, subordinate to the equity in Miller.
The mistake in the law under which Miller appears to have acted, with knowledge of the facts, was accompanied with such assurances from Whitsett at the time of his “ settlement” in 1870, when the first lease was made, that it vitiated the contract, at least against Whitsett and his vendees with notice. Moreland v. Atchison, 19 Tex., 310; Mayer v. Ramsey, 46 Tex., 375.
[212]*212As a question of fact from the testimony, there is little ground for belief that Mrs. Smith acted upon Miller’s conduct, independent of and so as to avoid the taint of Whit-sett’s contract with Miller. The parol agreement for exchange was made before Miller’s second lease to J. L. Smith, so that could not have influenced the sale. The lease was taken by Whitsett, who wrote it for his daughter. The ordinary doctrine of agency would charge her with her agent’s knowledge in the transaction.
But as against Whitsett, Miller could disavow his tenancy. “ It is agreed in all the cases that if a tenant was induced to take the land by mistake, fraud, or misrepresentation on the part of the lessor, he may dispute his title.” Big. on Estoppel, 389, and cases cited.
It would be an oppressive application of the rules of law to give such effect to the acts of Miller in acknowledging his tenancy, paying money to Whitsett and promising to pay to Smith, as to operate as a conveyance of Miller’s equitable title to these lands to Mrs. Smith, without her payment of any consideration to Miller for. his property.
The instructions given as to Miller’s right to repudiate the tenancy were substantially correct in law.
The possession of Miller was notice to Whitsett and to all ■who, by their relations to Whitsett as principal and agent, community in interest, or common design against Miller, are chargeable with the effect of notice to him. The relations of Miller and Whitsett to the land; the representations and assurances made to Miller inducing the acknowledged tenancy ; the want of consideration to Miller; his ignorance of his title; Whitsett’s perfect knowledge of the transactions, all may be chargeable to the parties, if any, with whom and for whom he was acting. Wade on Notice, §§ 671, 681, 688.
• The intimate relationship by blood, action, interest and intent, shown by the testimony as possibly existing between the parties, will necessarily have an effect in determining the actual extent of notice to one of the parties as affecting the others.
[213]*213[Opinion delivered May 10, 1880.]
In claiming as a Iona fide purchaser under her plea, it devolved upon Mrs. Smith to exhibit a deed to herself and to prove payment of the consideration, without notice at .the time of the delivery of the deed and payment. Story’s Eq. Jur., 1502; Watkins v. Edwards, 23 Tex., 447; Huyler v. Dahoney, 48 Tex., 238; 47 Tex., 459; Mitford & Tyler’s Pl. & Pr. in Eq., pp. 362, 363. Her equity would be defeated by notice of Miller’s claim (if indeed his be the superior equity) at any time before November 10, 1871, the date of the deed to her for the land, and of her deed to her father for the land given in consideration. Her estate in the latter could not be divested by any parol agreement for the exchange of lands. The certificate of privy acknowlment to her deed only evidenced her parting with any consideration for the land, as payment to satisfy the requisites of the defense of bona fide purchaser.
For the error of the court in failing to instruct the jury as to the defense of defendant Smith in the .form or construction of the charges upon plaintiff’s case so as to communicate to the jury an additional weight to the evidence; and in the defective charge as to the estoppel pleaded, and to which there was some evidence, the judgment will be reversed.
Bevebsed and bemanded.