Summary
Action to recover the possession of land; brought to the Superior Court. The following facts were found by the court:—
Nathan Comstock, grandfather of the plaintiff, died in 1884, seized of a farm in the town of Montville, upon which he had resided, containing about seventy-five acres. The demanded premises are a part of that farm. By his will he devised this land as follows:—
“ I give unto my son, Asa Comstock, * * all my real estate not otherwise disposed of in this will, * * together with the stock and farming tools, after the decease of his mother; and should he not have heirs of his body,then- said real estate after his decease to go to my heirs-at-law.” A further provision of the will made it the duty of Asa Comstock to support his brother David, which support was made a condition of the devise.
Asa Comstock, after the death of his mother, and after issue born, being advised that he took the land under the will in fee simple, sold and conveyed in fee simple by warranty deeds, dated August 3d, 1847, and April 4th, 1848, about thirty acres of the farm to William Bolles, and, in 1849, by a like deed, the residue to Jesse Comstock. Bolles and Jesse Comstock were "bond fide purchasers, and paid full value for the lands. By warranty deeds, dated December 7th, 1849, and December 29th, 1865, Bolles conveyed to the defendant the land described in the complaint, being about thirteen acres.
The whole amount received by Asa Comstock for the farm was $3,700 — its full value at that time. On the 12th of March, 1849, Asa bought another farm in Montville of Peter R. Strickland, paying therefor $2,200 out of 'the money he had received from the sale of the land devised to him. The Strickland farm was, however, worth no more fhan from $1,800 to $2,000, at that time. Asa died intestate on the 13th of February, 1876. The plaintiff is his only child and heir.
The railroad now known as the New London Northern Railroad was laid out and built in the years 1848-1850 across that part of the Nathan Comstock farm which was sold to Bolles. The' depot and all the railroad buildings are placed upon it, besides other buildings and improvements of great valué. The defendant enclosed his land in severalty soon after he bought it, and has ever since been in the exclusive possession, claiming it as his own and keeping all' others out. He laid out about two acres of it for a family cemetery, and has erected thereon- a monument at an expense of $1,500, and there are now eight persons of the defendant’s'kindred buried in the cemetery lot.
In 1854 the Supreme Court held that Asa Comstock took only ah estate for life in the land. Comstock v. Comstock, 23 Conn. R., 349. After this decision application was made to the General Assembly at its session in May, 1855, by Asa Comstock and others who had taken titles under him, for the passing of an act validating the conveyances made by him and confirming the title in his grantees; and at that session the following resolution was passed, — the preamble stating the facts and among other things that the petitioners were.the only persons then interested in the lands:—
“Resolved, ordered and decreed by this Assembly, That upon the said Asa Comstock giving a bond to the judge of the court of probate for the district of Montville and his successors in office, secured by mortgage or other security satisfactory to said court, conditioned to provide for the maintenance, care and support of his brother, David Com-stock, in a manner equal in all respects to the requirements of said will; and, further, to hold the money or the property received as the consideration of the conveyances by him made as aforesaid, namely, the said amount of thirty-seven hundred dollars, in trust for parties who might otherwise be entitled to receive the land under said will; then the said deeds so as aforesaid given to the said Gideon Palmer and William Bolles, the deed to Henry McNeil, Mary Ann McNeil, and Frances A. McNeil, and the deed to Jesse Comstock, be confirmed and established, and the titles which the same purport to convey to the parties respectively be confirmed and established in the parties aforesaid respectively, their heirs and assigns forever, as a good and indefeasible title in fee simple as against the heirs of the body of the said Asa Comstock, and any and all persons now in existence, or who may hereafter come into existence, who in any event might be interested in or have any estate, right, title or interest in or to the lands so conveyed to the parties aforesaid respectively.”
Pursuant to this resolution Asa Comstock gave his bond, 'with a mortgage to secure it, to the judge of probate for the district of Montville for the proper support of his brother, David Comstock, and for the holding of the $3,700 received as the price of the lands devised to and sold by Mm in trust for tbe parties who would have been entitled to receive the- lands under the will;
The plaintiff was born in Montville, in the year 1835, while his father lived on the Comstock farm, and has always lived in that town, except that he went on a whaling voyage some time in the year 1853, and returned in 1856. He knew of the sale of the Comstock farm and the purchase of the Strickland farm by his father. He moved with his father’s family from the Comstock farm to the Strickland farm, being then fourteen or fifteen years of age. When ire left home, in 1853, for the whaling voyage, the suit of Jesse Comstock against Asa Comstock had been commenced. It was decided, and the action of the General Assembly was had while he was absent; and no guardian had been appointed by the court of- probate for him. Soon after his return he made inquiry about the suit and learned how it had been decided. He also learned of the action of the General Assembly and of the doings of the court of probate. At about that time he procured and read a copy of the resolution of the General Assembly, and also of his grandfather’s will. During all "the time from 1856 to this date the plaintiff has been fully cognizant of the building of the railroad, the depot and other buildings, of the occupancy by the defendant of the demanded premises, and of the laying out of the cemetery and the erection by him of the monument, and of all the changes and improvements that have been made on the Comstock farm. He has never objected, nor has he made any claim to the defendant, 'or to any of the persons interested, that he had, or claimed to have, any right or estate in the farm, until a few days before the commencement of the present action.
Upon these facts the case was reserved for the advice of this court.
First. This is not a confirming act within the power of the legislature, but an attempt to take one person’s property and give it to another. The distinction is clear. If a grantor has power to convey lands, and executes and delivers a deed purporting to convey them, but by mistake some formality is omitted, so that the deed does not comply with the law, the legislature may properly say that the deed shall be valid. Such acts are sustained as merely carrying out the intention of the grantor, and making him do what he had agreed to do. Thejr are like the powers of a court of equity to correct a mistake in a deed, or otherwise to prevent fraud. So, in relation to acts confirming marriages, or contracts supposed to be valid but void for usury, where the parties had-the power to contract and intended to perform a valid and proper act, and supposed that they were acting legally and effectually, but by mistake did not. All the cases in Connecticut are of this description. Goshen v. Stonington, 4 Conn., 221; Mather v. Chapman, 6 id., 54; Beach v. Walker, id., 190; Booth v. Booth, 7 id., 350; City of Bridgeport v. Housatonic R. R. Co., 15 id., 475; Plumb v. Sawyer, 21 id., 351; Savings Bank v. Allen, 28 id., 97; Welch v. Wadsworth, 30 id., 149; Ecclesiastical Society v. Suffield, 42 id., 570 ; Simpson v. Hall, 47 id., 417 ; Norris v. Sullivan, id., 474. In Forster v. Forster, 129 Mass., 559, this subject is fully discussed, and the various classes of cases where confirming laws are held valid are stated, much to the same effect. So in Cooley on Constitutional Law, pp. 373 to 379, where the subject is fully considered, and the same principles are laid down, and the precise distinction which we claim is clearly made, namely, that while an invalid deed may be confirmed as between the parties to it, yet where the infirmity is in the want of power in the grantor, to convey, the legislature can not heal it. The decisions in the courts of our sister states are all to the same effect. Shonk v. Brown, 61 Penn. St., 327; Alter’s Appeal, 67 id., 341; Richards v. Rote, 68 id., 248 ; Maxwell v. Goetschius, 40 N. Jer. Law, 383; McDaniel v. Correll, 19 Ills., 226; Nelson v. Rountree, 23 Wis., 367; Pryor v. Downey, 50 Cal., 388; Powers v. Bergen, 6 N. York, 358; Sedgw. on Stat. & Const. Law, 143, note.
In Denny v. Mattoon, 2 Allen, 383, the court says: — “ To-say that a man’s property may be taken from him by force of an act of legislation which attempts to confirm and give validity to proceedings which have previously been adjudged void for want of authority and jurisdiction, is only to affirm that he may be deprived of his estate without due process of law.” . It does not legalize the transaction that provision was made that security should be given for the benefit of the remainder-men. If the legislature had no power to pass such an act at all, such a clause would not heal it. My land cannot be taken by a legislative act because provision is made that I shall have payment for it, except where it is taken for a public use. It may be claimed that the legislature has power to order a sale of lands held by tenant for life and remainder-men as a change of investment, and that what it can authorize it can confirm; but this is not so in that sense. The legislature can, under certain circumstances, authorize a sale of property held in common, but if one tenant in common should sell the whole fee, can' the legislature, by enacting that that deed should pass the title of the other tenant on tendering to him half the avails, •deprive him of his property ? No one would claim it. The precise difference is, that in one case a person is deprived of his property by due process of law, and in the other without it. In one case there is a power to give the deed, in the other the deed is void because there was no power to give it, and it is the mere arbitrary act of the legislature which divests the estate from one and vests it in the other. It is clear that this act cannot be sustained merely as a confirming act.-
Second. But the defendant claims that this act is valid under the power which the legislature has to authorize a re-investment of the property of lunatics, minors, and others incompetent to act for themselves.
1. It is true that the legislature, under certain circumstances, has the power to authorize a sale, of the lands of minors, just as it has to sell the estates of remainder-men or of tenants in. common, but this is not an act to authorize a sale. That is precisely the objection to the act, that it does not authorize a sale, nor does it confirm a sale already made or intended to be made, for the deed given by Asa Comstock was not intended and did not purport to sell or convey any property of this plaintiff. Neither the grantor nor the grantee supposed that any interest in the land belonging to the plaintiff was conveyed. As to him that deed was as void as .a deed given by any person who had no interest in the land whatever would have been. If it had any effect whatever, it was as an original conveyance of the title, like a decree of court conveying the title out of Nathan Comstock into Jedediah Gay. And this is what the act purports to do. If it had stopped with saying that the deeds be “ confirmed and established,” it would have had no effect; the deeds, as deeds, were good enough; they did not need to be confirmed. The trouble was that the grantor not only did not have what he was trying to convey, but did not know that his son had it. Neither party had any idea that the son’s interest was to be conveyed or that he had any. There was no earthly power, unless it might be the legislature, that could make a deed of one man’s interest convey the interest of another, so they got the legislature to add this clause, that the title to this land be established in the grantees forever as against all persons who had any interest in the land. If, therefore, this act is effectual at all, it is as an original conveyance of title made by the parens patrice. It hardly needs citations or authority to show that this can not be done ; nor will it be claimed; the only hope of the defendant is in finding some ground for the exercise of this power by the legislature in the facts which are set up in the petition.
2. But these facts do not help them on this point. Even if we admit that the legislature might in some way have acted as the guardian of this minor, yet it did not purport to so act, nor is that the ground on which the act is based. If the act had said in substance, whereas this minor has a remainder in certain real estate, and it is necessary and beneficial for him that it be sold, and Jedediah Gay will give two thousand dollars for it, and it is therefore decreed that the title be taken from said minor and vested in said Gay upon his properly paying over the money; if that had been the act, it would at least have had the advantage of being based on a certain well-known power, and it might have been said that the legislature had jurisdiction of the subject-matter. But this act is not based on any' such power. The reason for passing it is stated to be, not the benefit of the minors, but the injury to the grantees. The preamble states that it was supposed that Asa owned the fee, and, relying on that, the grantees expended money in improvements on the land, and that they were in danger of loss unless the legislature interposed for their relief. It is placed entirely on the ground of this mistake. It will not do to say that if the legislature had no power to interfere for this reason, yet there were other reasons why it should interfere. If the application had been based on other grounds, there is no knowing what the legislature would have done. If the act is not valid as it stands, it does not help it to say now that, if other facts had been stated and proved, then the legislature might have had power to bring about a similar result. The question is, whether the act as it was passed, on the grounds therein stated, was valid. The legislature had no more power by resolution to divest a minor of his land than it has to divest an adult who is a tenant in common or a remainder-man. In either case it can either authorize a court to order a sale under certain circumstances, or it can, under similar circumstances, authorize some person to sell for the owners, and give a conveyance, without the intervention of a court. It has as much power in one case as in the other, but no one would claim that in the case of adult remainder-men, or tenants in common, it could by resolution divest them of their estates because some grantee, by mistake, had supposed that he had bought the fee, and would sustain injury if it were not done ; and no one would claim that such an act would be valid because under other circumstances, and in a proper manner, the legislature might have authorized a sale. A minor can no more be deprived of his property without due process of law than an adult. The principles stated and authorities cited under our first head apply equally to this claim.
3. There is nothing in the case showing that the legislature had any power to order or confirm a sale of the property of this minor. Under our form of government no person holds his estate subject to an absolute power in the legislature to order a sale of it for any reason it sees fit. No doubt there is a power in that body, under certain circumstances and for certain reasons, to order the sale of property of any one who is not competent to do it for himself, if it becomes necessary for his interests that it should be done; but it is only on that ground and for that reason. Such an exercise of power is an extreme one, and has been often and strongly contested in the courts, and within this limitation it has been sustained; but the courts have always strictly confined the exercise of such power to cases where the interests of the minor required it. In Rice v. Parkman, 16 Mass., 326, which is the leading case on the subject, the court say (p. 330) : “No one imagines that under this general authority the legislature could deprive a citizen of his estate, or impair any valuable contract in which he may be interested. But there seems to be no reason to doubt that upon his application or on the application of those who properly represent him, if disabled from acting himself, a beneficial change of his estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that authority.” So in Cochran v. Van Surlay, 20 Wend., 365, the leading case in New York, the court say (p. 373) : . “ But even that power cannot constitutionally be so far extended as to transfer the beneficial use of the property to another person, except in those cases where it can legally be presumed the owner of the property would himself have given the use of the property to the other.” See also Leggett v. Hunter, 19 N. York, 461; Cooley on Const. Lim., 103; Sedgw. on Stat. & Const. Law, 140, note.
4. Perhaps the most serious objection to the validity of this act is that it was passed, not only without any notice to the plaintiff, or any appearance of any one for him, but also while he was thousands of miles away on a whaling voyage, where there was no possibility of his knowing anything about the proceedings. No principle can' be more firmly established than the one that “ due process of law ” requires notice of any proceedings to deprive one of his property. Even in cases of taking property under the right of eminent domain for the most necessary public purposes, it is indispensable that the owners of the property to be taken should have notice to appear and defend their rights. Authorities are unnecessary on this point, but we will cite a few. Smith v. Rice, 11 Mass., 507; Cook v. Darling, 18 Pick., 393; Fisher v. McGirr, 1 Gray, 1; Salem v. Eastern R. R. Co., 98 Mass., 431; Hess v. Cole, 3 Zabr., 116; Youngs v. Overseers, 2 Green, 518; Turnpike Co. v. Hall, 2 Harr., 337; Camden v. Hatton, 10 Vroom, 122. The onty plausible claim that can be made is, that the plaintiff’s father was his guardian, and that he appeared and protected the interests of this minor. No doubt he did appear, and urged the passage of the act; but it was not in the interest of the plaintiff, but in his own. All his interests were in favor of the passage of .the act, and it is a mockery of justice to say that this plaintiff’s interests were properly represented by the very person whose interest and purpose it was to have them destroyed for his benefit. In Rice v. Parkman, 16 Mass., 332, the court says, in relation to the claim that the infants had not been notified, — “ The father acted as guardian, and he had no interest adverse to that of his children ; ” which is equivalent to saying that if his interests had been adverse to his children his being made- a party would have been insufficient.
5. Nor is there any weight in the fact that the legislature directed that the father should give a bond to the judge of probate to hold the avails of the sale for the benefit of those entitled to the remainder. As before shown, this provision was of no avail unless the legislature had the power to pass the act for the reasons therein stated. If it did not have the power, no provision as to what should be done with the avails would heal or supply that want. The legislature has no power to take' my property and give it to another because it directs that I shall have what it pleases to call its value. We have then the case of an act depriving the plaintiff of his property and vesting it in the defendant, simply on the ground that the father of the plaintiff supposed he owned the’fee, and sold it to another, and this mistake, if not rectified, would injure the grantee. The authorities are clear, if any were needed, that no legislature has, or can have, such power. Powers v. Bergen, 6 N. York, 367 ; Wilkinson v. Leland, 2 Peters, 657; Berlin v. New Britain, 9 Conn., 181.
Third. It may be claimed that the plaintiff is estopped from setting up any claim to this land. If so it can only be on one of two grounds. (1.) That he has not objected to the expenditures on the premises in question by the defendant, and made no claim to the property. The answer to this is that the defendant had full right to occupy and use the land while the plaintiff’s father lived, and the plaintiff had no power or right to prevent him from doing what he pleased. The fact of the legislative act was as well known to one as to the other,- and there was no law or reason which required the plaintiff, before he had any right to the possession of the property, to give any notice to the defendant. An estoppel arises only in cases where the plaintiff has some rights which are affected by the acts of the defendant, and if he allows them to be done, he cannot assert his rights to the injury of the defendant. No such case appears here. Giddings v. Emerson, 24 Conn., 546; Taylor v. Ely, 25 id., 260; Steele v. Smelting Co., 106 U. S. R., 456. (2.) It may be claimed that because the plaintiff sold the Strickland farm, and as administrator of his father received the bank books of the judge of probate, he is estopped from setting up his legal and equitable rights to the land in question. But this is absurd. What else could he do? Was he to let the farm lie desolate, and the money remain in the hands of the judge of probate, in order to sustain his claim ? (3.) Nor is he estopped by his father’s covenants on the ground that he inherited estate from him. What assets he received came directly from his grandfather, not from his father. Perry v. Kline, 12 Cush., 118, 127.
1. The legislature has power to authorize the sale of the real estate of minors, idiots and other persons under disabilities. Its power is unlimited except so far as it is restricted by the constitution of the United States, of the state, or the principles of the social compact. Mather v. Chapman, 6 Conn., 54; Leggett v. Hunter, 19 N. York, 463. The constitution of this state is a limitation of powers already existing in the legislature. With few limitations it left the legislative department as it. found it. Pratt v. Allen, 13 Conn., 119, 125. “ It is a limitation, not a grant of power, and, except as limited by express provisions, the legislature is unrestricted in power, and as. omnipotent, in a legal sense, as the British Parliament.” It has even judicial power as well as legislative. Wheeler's Appeal from Probate, 45 Conn., 315. Every presumption is to be made in favor of the validity of 'acts of the legislature. Davison v. Johonnot, 7 Met., 392. The authority to order the sale of the land of persons disabled to act for themselves must, for the good of society, exist somewhere, and is vested in the legislature as parens patrice. Rice v. Parkman, 16 Mass., 326; Humphrey v. Whitney, 3 Pick., 158; Davison v. Johonnot, 7 Met., 388; Sohier v. Mass. Gen. Hospital, 3 Cush., 483; Clarke v. Hayes, 9 Gray, 426; Sohier v. Trinity Church, 109 Mass., 1; Old South Society v. Crocker, 119 id., 26 ; Blagge v. Miles, 1 Story, 426 ; Clarke v. Van Surlay, 15 Wend., 436; Cochran v. Van Surlay, 20 id., 365; Bambaugh v. Bambaugh, 11 Serg. & R., 191; Estep v. Hutchman, 14 id., 435 ; Powers v. Bergen, 6 N. York, 358 ; Leggett v. Hunter, 19 id., 463 ; Kibby v. Chitwood's Admr., 4 T. B. Monr., 91; Wilkinson v. Leland, 2 Pet., 653 ; DeMill v. Lockwood, 3 Blatchf., 56; Stanley v. Colt, 5 Wall., 168; Hoyt v. Sprague, 103 U. S. R., 634; Linsley v. Hubbard, 44 Conn., 109. The legislature has power to order' a sale of the vested estates of minors in land, the only effect of the action being to transmute real into personal estate for purposes beneficial to all interested therein. Rice v. Parkman, Leggett v. Hunter, Clarke v. Van Surlay, Kibby v. Chitwood, and DeMill v. Lockwood, cited above. It has also delegated to the probate courts the power to order the sale of the land of minors and incompetent persons. Gen. Stats., p. 56, §§ 18-25 ; p. 347, § 5. So also to order a sale of the lands of persons unascertained. Sohier v. Mass. Gen. Hospital, Powers v. Bergen, Blagge v. Miles, and Clarke v. Hayes, cited above. So also of the lands of persons non compos. Davison v. Johonnot, 7 Met., 392. So also to order a sale, free from the trust, of lands devoted by will or deed to religious or charitable uses. Stanley v. Colt, Humphrey v. Whitney, Sohier v. Trinity Church, and Old South Church v. Crocker, cited above.
2. This court has carried the doctrine further than to the cases of persons under disability, and in Linsley v. Hubbard, 44 Conn., 109, has held that the legislature may authorize a sale of the fee, on motion of the life tenant, against the wishes of contingent remainder-men who are sui juris. The power of the legislature thus exercised is analogous to that exercised in some of the following cases, and certainly no greater or more objectionable than that exercised in the same : — In authorizing the sale of land of, tenants in common against the will of some of them. Richardson v. Monson, 23 Conn., 94. In passing' an act divorcing a womap for a cause not sufficient for obtaining a divorce by the general law, although thereby the title of the husband and his _ execution creditor was affected. Starr v. Pease, 8 Conn., 541. In passing an act validating irregular marriages, though thereby impairing vested property rights. Goshen v. Stonington, 4 Conn., 209. In changing estates in joint tenancy to tenancy in common, though' material vested interests might be thereby affected. Holbrook v. Finney, 4 Mass., 568; Annable v. Patch, 3 Pick., 363; Davison v. Johonnot, supra. In enacting laws to render valid the doings of public officers, and to confirm acts of towns and other corporations, invalid for some informality, although by such enactments individuals may be deprived of rights previously vested. Walter v. Bacon, 8 Mass., 468; Patterson v. Philbrook, 9 id., 151; Locke v. Dane, id., 360; Davison v. Johonnot, supra.
3. If, as above shown, the legislature has power to order the sale of a vested interest in land, much more can it order the sale of a mere possibility, as in the case at bar. During the life of Asa Comstock, the first donee in tail, his two sons, the issue of the donee in tail, had no strict legal rights. The legislature might have enacted that the estate tail should become a fee in Asa, the first donee, and utterly prevented the plaintiff’s right from coming into being. The fact that the plaintiff had no estate during his father’s life is illustrated by the case of his brother Joseph, who, at the time of the legislative action, stood on a par with the plaintiff as to any interest in the estate tail. He, however, died before his father, the first donee, and it will not be contended that his heirs took any estate at the death of the first donee. If, by chance, the plaintiff had died before his father, his rights never would have vested, but the estate tail would have expired. By the same power by which the legislature of this state has enacted that estates tail shall become .fees simple in the issue of the first donee in tail, it might have enacted, as the legislature of New York has done, that every fee tail shall be a fee simple in the tenant in tail, that is, in this case, in Asa. And this can be done as well by a special as by a general law. This doctrine is fully enunciated by Ikgersoll, J., holding the U. S. Circuit Court, in the case of DeMill v. Lockwood, 3 Blatchf., 56— a case which depended upon the validity of the action of the Connecticut legislature. It follows that, in the case at bar, the legislature, in providing for the safe keeping of the proceeds of the sale for the benefit of the plaintiff, gave him more protection than he had any right to demand.
4. If it be objected that no guardian was appointed to represent the minor, and no notice of the application to the legislature given him, the answer is that to give him notice under the circumstances of the case was a physical impossibility, and further, that no notice was required. In Rice v. Parkman, 16 Mass., 326, it was held that no notice to the minor was requisite, that the father acted as guardian, and that he had no interest adverse to that of his children. The interests of Asa, the donee in tail, and of the plaintiff, his heir presumptive, were identical, to sell the land for the highest price. At that time, 1855, and until the statute of 1865, the father, as natural guardian, had custody both of the person and property of his minor children, and as much authority to represent them before the legislature in a case where their interests were not opposed, as a probate guardian would have had. Selden's Appeal from Probate, 31 Conn., 548.
5. If it be said that the act of the legislature was a ratification of a prior void sale, it is answered that the legislature had power to authorize the sale in advance, and, what it could order to be done, it could ratify when done. Wilkinson v. Leland, 2 Pet., 653; Sohier v. Mass. Gen. Hospital, 5 Cush., 483; Goshen v. Stonington, 4 Conn., 209; Mather v. Chapman, 6 id., 54; Beach v. Walker, id., 190; Starr v. Pease, 8 id., 541; Welch v. Wadsworth, 30 id., 149; Booth v. Woodbury, 32 id., 118; Wheeler's Appeal from Probate, 45 id., 306; cases cited in Davison v. Johonnot, 7 Met., 396.
6. The estate tail was barred by the conveyance with warranty by Asa, the first donee in tail. Bigelow on Estoppel, 326; 1 Swift Dig., 80. Asa, the first donee, aliened the estate tail, with warranty, and dying, left assets to his sole heir, the plaintiff. The plaintiff is therefore liable on his father’s covenant to the extent of the assets received from him. To prevent circuity of action, the plaintiff will therefore not be allowed to recover the estate tail from his father’s grantees. If it be said that the property the plaintiff received from his father is not assets, but the proceeds of the sale of the estate tail, we answer that the plaintiff did or did not receive it as the estate devised by his grandfather, merely transmuted in form. If he did, how can he ask the defendant for what he himself has ? If he did not, he received it as assets from his father’s estate, and is bound by the rule just stated. At any rate, if the plaintiff were allowed to recover, the land demanded would become assets in his hands, he taking it as heir by descent from his father, not by purchase. DeMill v. Lockwood, 3 Blatchf., 63; 1 Washb. R. Prop., 74, § 30.
7. The plaintiff is estopped, by his acquiescence for thirty years in the possession and improvements of the defendant and the other grantees of the land, from denying their title to the land. “ If the owner of an estate stand by and see, or in any way induce, another to expend money upon it in reliance upon a claim in derogation of the owner’s right, without which such expenditure would be useless, and, knowing what is going on is in prejudice of his rights, do not interpose to prevent the work, he will not be permitted to interrupt the enjoyment of such claim.” Bigelow on Estoppel, 504, and cases cited; Smith v. Smith, 30 Conn., 111; Parker v. Crittenden, 37 id., 152; Malley v. Thalheimer, 44 id., 41.
8. The plaintiff, by converting to his own use the proceeds of the sale, especially by conveying by warranty deed the land into which part of the proceeds of the sale were transmuted, has accepted and ratified the sale. Hoyt v. Sprague, 103 U. S. R., 636; 1 Parsons on Cont., 50, 51.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
