Marsh v. Smith. cepting from the same 150 arpens, reserved by the said MeCall to be taken from the west end. The third tract, comprehending the extent of said McCall's claim in the parcel of land specified as forming the eastern boundary of the first tract, not interfering with the 150 arpens reserved. The second tract intending to comprise all that tract heretofore purchased by the said McCall, of David and John Hayse, and which lies on the east side of the first tract, and adjoining the second tract, referring for a more particular description to the plat of said island, made by Thomas Orme in 1810. The 150 arpens reserved by Mc Call were afterwards purchased by Stone and Marsh. This conveyance does not appear to us to embrace the fraction on the north end of the island, of 85 acres now in controversy. According to Orme's survey, that tract was entirely separated from the two others, which together were confirmed to Fontennette and DeVince by the act of Congress, on the recommen lation of the commissioners. It is true, the vendor says, that he sel's all that tract purchased by him of David and John Hayse; but he adds, and which lies on the east side of the first tract, thereby qualifying the expression so as not to embrace all purchased by him on the north end of the island, which embraces the locus in quo. We are confirmed in this construction of the deed by the fact, that McCall had already, in 1814, sold to J. Baker, under whom the defendant holds, the same land extending fourteen arpens in front, from the land of Elizabeth Hayse to the sea marsh, which description embraces equally the locus in quo. This sale purports to be of fourteen arpens, which Fontennette had sold to McCall by a separate deed, and is apparently grounded upon a distinct grant to Fontennette. No such grant is shown in the record; and it is evident, that the ten arpens front, bounded by Elizabeth Hayse, and confirmed to Lightner, cover the same land except the land now in controversy. But although Fontennette had no such title to the fourteen arpens, the same having been probably annulled by the Baron Carondelet in 1796, as appears by his official decree in the record; yet if he had any right or title to any part of the tract thus sold, there is no doubt it passed to McCall, his vendee. Now we have seen, that jointly with De Vince he had a grant in the small fractional tract, on the VOL. V. 66 Marsh v. Smith. north of the island, extending from Lightner's tract of ten arpens to the sea marsh, and it is precisely that land which he sold to Baker. The latter, therefore, acquired from McCall by that sale, all the title of his vendor, to wit, one undivided half as joint owner with De Vince. It results from this view of the case, which we have adopted after minute and patient examination, that the question of title between the parties depends on the fact, whether Fontennette, the vendor of McCall, had a separate and distinct title to the tract purchased afterwards by Joshua Baker. We have said, that the original grant to Fontennette was probably annulled by Carondelet. It is not necessary to decide positively that such was the case; for no title is exhibited to Fontennette except the one jointly with De Vince, which is the only title out of the domain which has been recognized by the land department, and indeed no other evidence of a primitive title is shown. We are, therefore, authorized to say, that none ever existed in that part of the island, except that of Lovelace, which Carondelet declares to remain in force, and which was confirmed by the Commissioners, and covers all the pretended grant of Fontennette, except four arpens front; and those four arpens are the land now in controversy. It would seem, therefore, according to the written titles, that one-half of the tract belonged to the plaintiff previously to the purchase by the defendant of the heirs of Baker, and he would be entitled to recover, were it not for the peculiar circumstances under which the defendant made his purchase. But it is contended, that Marsh is estopped from setting up any title adverse to that acquired by Smith, because he advised Smith to make the purchase, while he was owner of the same title under which he now sues, the existence of which he concealed from Smith. The evidence in support of this allegation is, that before Smith came to the country, Marsh had been requested to purchase a tract for him. That his brother arrived in 1829, and introduced himself to Marsh, and inquired of him whether he had made a purchase for his brother, the defendant. He answered, that he had not bought, but had a tract in view, and requested defendant's brother to go and look at it. The latter replied, that he was no judge of land, and it would be Marsh v. Smith. of no use. Marsh stated, that the land was good sugar land, and that he hoped the defendant would buy it, as it was near his plantation. The defendant afterwards came on and made the purchase. Another witness, who is unimpeached, testifies, that Smith came to the State in 1829, and was as he understood from the plaintiff, his particular friend. That he afterwards purchased the tract of land in question of the heirs of Joshua Baker, and was particularly advised to do so by the plaintiff. This was stated by the plaintiff to the witness both before, and after the purchase. It cannot be supposed, that the plaintiff was ignorant of his own title, and if this case presented only a conflict of boundaries, it might be supposed that the plaintiff was under a mistake as to the boundary of his own land. But such is not the case. The small tract of land in dispute, lies in the corner of the small island, and is the only spot in dispute-all the rest of the island being covered by undisputed titles. It is, however, contended by the counsel of the plaintiff, that his client only recommended to Smith to purchase Baker's tract of ten arpens front, by forty deep, and not a front of fourteen arpens. But we think the advice of Marsh must be taken, according to the evidence, to refer to the title of Baker such as it appeared on the public records, and that is, a sale from Jesse McCall in 1814, of fourteen arpens front, bounded on the south by land of Elizabeth Hayse, and north by the sea marsh. The record does not show that Baker had a tract of ten arpens, independently of that purchased of McCall. The principle invoked by the defendant's counsel is one well settled, that if a man stands by, and is silent while his own property is sold, and suffers another to become the purchaser, he is estopped from disputing a title thus acquired. The rule of law is well expressed by Lord Denman in the case of Pickard v. Sears, (6 Adol. & Ellis, 469,) to wit, that where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as 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." There are cases, says Judge Story, in his Treatise on Equity, in which a man may innocently be silent; "but in other cases Marsh v. Smith, &c. a man is bound to speak out; and his very silence becomes as expressive as if he had openly consented to what was said or done and had become a party to the transaction. Thus, if a man, having a title to an estate, which is offered for sale and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that the title is good, the former so standing by, and being silent will be bound by the sale; and neither he, nor his privies will be at liberty to dispute the validity of the purchase." 1 Story on Equity, 375, § 385. 3 Robinson, 332. 1 John. Ch. Rep. 354. We cannot but conclude that the present case comes within the principle thus laid down, and especially the great principle of equity, that where one of two innocent persons must suffer, he shall suffer, who by his own acts occasioned the confidence and the loss; even supposing that Marsh was not fully apprised of his own title at the time he advised the purchase by Smith, it was a gross negligence on his part, which evidently misled the defendant. Judgment affirmed. IN the cases of James D. Denegre v. J. F. McCarthy, from the Parish Court of New Orleans; and of Edward C. Mielke v. Theophilus Freeman, and The Merchants Insurance Company of New Orleans v. Theophilus Freeman, from the Commercial Court of New Orleans, the judgments of the lower courts were affirmed ou appeal in New Orleans, with damages, during the period embraced by this volume. INDEX. ACT, AUTHENTIC. 1. One, not a party to a notarial act, may prove its falsehood by competent 2. An authentic act passed between the parties to a marriage, will not be con- See NOTARY, 1. ACTION. See PLEADING. ACT, SOUS SEIGN PRIVÉ. An act, not authentic for want of form, will be obligatory as one sous seign ADMINISTRATOR. See SUCCESSIONS. ADMISSIONS. See EVIDENCE, XIV. PLEADING, VII. ADVOCATE. See ATTORNEY AT LAW. AGENCY. 1. One who pays a draft which has been fraudulently raised to a larger |