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Opinion of the court.

ton's grantee another lot in consequence of the declaration contained in his deed to Hart. This may be ground for an equitable estoppel, not a legal one, and therefore not available in an action of ejectment where the title is in issue. If one person is induced to do an act prejudicial to himself in consequence of the acts or declarations of another, on which he had a right to rely, equity will enjoin the latter from asserting his legal rights against the tenor of such acts or declarations. But, then, the person charged has an opportunity of explaining, and equity will decree according to the justice of the entire case.* Had the government, after granting another lot to Egerton's grantee, in pursuance of the act of Congress, filed a bill against Egerton to prevent him from asserting title to the lot in question, perhaps it would have been a good defence for him to have shown that the discrepancy in his deed was a mere mistake, and that the agents of the government had no right to rely on it, because their own records would have shown that the patent was in fact given for the northeast quarter. But however this may be, the only estoppel arising out of the transaction referred to, which the government could set up, was an equitable and not a legal one.

Even if it were otherwise, and if the government could, in any aspect of the case, claim the benefit of the legal estoppel, it would be prevented from doing so by its own patent granted to Everton. That would present the case of estoppel against estoppel, which Lord Coke says setteth the matter at large.† No one can set up an estoppel against his own grant. Whoever else, therefore, might set up the estoppel against Egerton's title to the lot in question, the government could not do so. Its own patent would stand in the way. And whatever the government could not do, its subsequent grantees could not do.

It is suggested that Egerton's grantee, who procured the act of Congress and a patent for another lot, represented Egerton, and by his acts bound Egerton in the same manner

* 2 Smith's Leading Cases, 702, 748, ed. 1866.
† Coke Littleton, 352 b; 2 Smith's Leading Cases, 658 [584].

Opinion of the court.

as himself. But this may well be questioned. He could bind himself by his own acts; but he could only bind Egerton to the extent of Egerton's deed, and the effect of that has been fully considered. Egerton never asked the government for another patent, nor did be authorize bis grantee to do so. The transaction which took place between that grantee and the government was, as to Egerton and his grantees of the lot in question, res inter alios acta.

The conclusion to which we have come on this part of the case is, that there was no estoppel shown by the evidence which would prevent the defendants from showing the truth of the case, as to which quarter-section was actually granted to Giles Egerton by his patent of January 10th, 1818.

This is, therefore, the next question to be cousidered. Had the patent itself been exhibited on the trial, it would have ended all controversy on the subject. But it was not exhibited, and it did not appear what had become of it. An exemplified copy, however, of the record of it, as it remains in the archives of the General Land Office, was produced. This showed that the patent was for the northeast quarter of section 18, being. the lot in controversy. It was also shown from the same records, that this lot had been duly entered in favor of Egerton, under his military land warrant, on the day of the date of the patent. It was further shown, that the southeast quarter of section 18 had three days before been patented to another person, Durney. This cumulative evidence seems irrefragable to the effect that the patent was in fact given for the lot in controversy.

Against this evidence, we have only, first, the description in the deed from Egerton to Hart, where the word “southeast” is used instead of “northeast;" secondly, the memorandum in the margin of the record, and thirdly, the recital in the act of Congress. As to the first, it is a kind of vari. ance which so frequently occurs by mistake of the scrivener (as every surveyor and land lawyer knows), that it is scarcely worthy of a moment's consideration, when opposed to the record of the patent. As to the second—the memorandum made in the margin of the record-it is not known when it

Syllabus.

was made, except that it must have been after the 19th of May, 1826, the date of the letter referred to in the memorandum itself, which was eight years after the date of the patent; nor is it known who made it, nor on what evidence it was made. Such a memorandum, being no part of the record itself, cannot be received to contradict the record. It would be a very dangerous precedent to allow it to have that effect. It is not the record of any act of the department, nor of any document entitled to registry in its archives. It is nothing but a memorandum of a third person, and hearsay evidence at best.

As to the recital of the statute, whilst the recitals of public acts are regarded as evidence of the facts recited, it is otherwise, as we have seen, in reference to private acts. They are not evidence except against the parties who procure them.* The statute in question is a mere private act, and cannot be received as evidence, except as against the person who procured it, who was not Egerton, but his remote assignee under the Hart deed. It can only be used as evi. dence against the person on whom it acts as an estoppel.

We conclude, therefore, that the charge of the court below was erroneous, and that the judgment must be reverSED, with directions to award a

VENIRE DE NOVO.

Olcott 2. BYNUM ET AL.

Under the statutes of North Carolina regulating the conveyance of real

estate in that State, no copy of a registered copy of a deed can be read in evidence in place of the original, even if it be proved that the origi

nal is lost. A resulting trust of land does not arise in favor of one of two joint pur

chasers, unless his part is some definite portion of the whole, and what money he pays is paid for some aliquot part of the property, as.a fourth, third, or a moiety. Nor can it arise in any case for more than the

* 2 Phillipson Evidence, 106, 6th Am. ed.

Statement of the case.

money actually paid. Thus, if B. buy land worth $25,000, and with A.’s ‘money pay $5000 and give his own bond and mortgage for the bal

ance, no trust results for more than the $5000 at best. A resulting trust cannot be created by advances or funds furnished after

the time when the purchase is made. There not being in North Carolina any statutory provision relating to

express trusts, "manifested and proved," similar to the provision in the seventh section of the Statute of Frauds, such trusts in that State stand

as at common law. A deed of trust with power of sale (a deed, therefore, in the nature of a

mortgage), provided that money should be paid in three equalinstalments, and that in default of payment of any one“ that may grow due thereon," all the mortgaged premises might be sold and a deed of the premises made to the purchaser, and that it should be lawful for the trustee "out of the money arising from such sale to retain the principal and ir terest which shall then be due”... rendering the overplus to the mortgagor. Held (the property being incapable of advantageous sale in parts), that when one instalment fell due, the trustee had a right to sell, and though there was a surplus above what was necessary to pay the instalment due, yet that the trustee might reserve the whole and apply it to the residue

of the mortgage debt. A sale of a large and valuable property under a deed of trust in the nature

of a mortgage, held under the proofs to have been properly made in a body, and for cash alone, and on the premises themselves, though they were in a remote part of Virginia.

ERROR to the Circuit Court for the District of North CaroJina; the case being thus:

In the year 1854, the High Shoals Manufacturing Company owning 14,873 acres of land in the counties of Lincoln, Gaston, and Cleveland, in North Carolina, having upon it two water-powers, abounding in iron ore and other minerals, and having erected thereon two iron-works, forges, furnaces, machinery, and other fixtures for the manufacture of iron, sold the same, in a body, to one Groot, who paid $75,000 therefor; $25,000 in cash and a mortgage of $50,000 to two persons, Bynum and Grier, trustees for the High Shoals Company. This mortgage not being paid, Bynum and Grier, on the 1st of January, 1859, foreclosed it by a public sale of the property in a body; one llovey presenting himself as the purchaser. As a matter of fact, however, Ilovey was only “a man of straw," the real purchasers being one Olcott and a certain Stephenson. There had been an agreement previous

Statement of the case.

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to this sale that the purchase-money (which proved to be $48,500) should be paid : Money down,

$8,500 Balance, mortgage,

40,000

$48,500
And it was so paid.
The money down was paid by Olcott and Stephenson, and
thus made up cash, ·

$6,800
Certain dividends due Stephenson (equivalent to cash) as-
signed,

1,700

$8,500 A deed was accordingly made to Hovey January 1st, 1859, and on the same day Horey gave a deed of trust with power of sale, or deed in the nature of a mortgage, for the balance, which was to be paid : 1860, January 1, .

$13,333 33 1860, July 1,

13,333 33 1861, January 1, .

13,333 34 All with interest from January 1st, 1859.

The deed of trust which was accompanied by a penal bond, provided,

“That if default shall be made in the payment of the said sum of money, or the interest that may grow due thereon, or of any part thereof, that then, and upon failure of the grantor to pay the first or any subsequent instalment, as herein before specified, it shall be lawful for the trustee to enter upon all and singular the premises hereby granted, and to sell and dispose of the same, and all benefit and equity of redemption, &c., and to make and deliver to the purchaser or purchasers thereof a good and sufficient deed for the same, in fee simple, and out of the money arising from such sale to retain the principal and interest which eball then be due on the said bond or obligation, together with the costs and charges of advertising and sale of the same premises, rendering the overplus of the purchase-money, if any there shall be, unto the said Hovey, &c.; which sale so to be made shall forever be a perpetual bar, both in law and equity, against the said Hovey, bis heirs and assigns, and all other persons claining the premises, or any part thereof, by, from, or under him, them, or either of them.”

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