I 136 )
Banda a.JaWm
ia effect was one made to Messrs. Hunt and Orchard. AlthoughMessrs. Hunt; and Orchard did not at once act and proceed to buythe one-third share from the plaintiffs’ step-brothers and sister, itwas upon the result of Mr. Ondaatje’s investigation that they acted.Moreover, it appears that the objection to sell the one-third shareat first was on the part of Punchi Appuhamy alone, and that thenegotiations were never completely dropped, the first plaintiff himselfendeavouring to persuade Punchi Appuhamy to give his consent..
Hut a more serious difficulty arises from the fact that theplaintiffs were minors at that time of the representation. The firstplaintiff was born on September 15, 1886, and the second plaintiffon January 1, .1889, so that in May, 1907, when Mr. Ondaatjequestioned them, the first plaintiff was just under twenty-one yearsof age, and the second plaintiff was about nineteen years of age.It should be remembered, however, that estoppel is not a matter-of contract, but is based on a principle of equity. In the Citizens’Bank of ' Louisiana v. First National Bank of New Orleans,x LordSelboume said:“ Nothing can be more certain than this, that the
■doctrine of equitable, estoppel by representation is a wholly differentthing from contract or promise or equitable assignment or anything■of that sort. ” It is generally immaterial whether the person whois guilty of misrepresentation is ignorant of the true facts, so long asthe other party is, in fact, misled. But where such person makes therepresentation or stands by knowingly, there arises the additional■element of fraud, and in such a case infancy does not relieve himfrom the consequences. This equitable doctrine was stated inSavage v. Foster 2 thus:“ When anything in order to a purchase is
publicly transacted, and a third person knowing thereof and of hisown right to the lands intended to be purchased doth not give thepurchaser notice of such right, he shall never afterwards be admitted'to set. up such right to avoid the purchase; for it was aU apparentfraud in him not to give notice of his title to the intended purchaser,and in such case infancy or coverture shall be no excuse. Neitheris it necessary that such infant or femme covert should be active inpromoting the purchase, if it appears that they yvere so privy to itthat it could not be done without their knowledge. ’’ That is a case■of standing-by, and the statement of the law may require somemodification as to the circumstances which create a duty to givenotice, but it remains an authority for the proposition that when therule applies infancy is no excuse. See also Mills v. Fox.3 That is■the case of proposals for a settlement upon the marriage of a female'infant, a ward of Court, made to Court by her mother and guardian,and it was held that as both the marriage and the settlement weresanctioned by the Court upon the faith of a representation made oniher behalf that she was entitled in tail to certain property, she was *
* It. R. 6 H. L. 352.2 (1723) 9 Mod. Rep. 35.
• (1887) L. R. 37 Ch. D. 153.
V 187 )
bound in equity to make good such representation, notwithstandingher infancy at the time it was made. Stirling J., who decided thecase, quoted with approval a passage from Lord Cranworth’s judg-ment in Gordon v. Money,1 which is in these terms: “ Nay, more, Ithink the principle has been carried and may be carried muchfurther, because I think it is not necessary that the party makingthe representation should know that it was false; no fraud needhave been intended at the time. ” And he proceeded to state thatthe lady was not at liberty to deny the truth of the representationmade pn her behalf, and that her position in that respect was notaffected by the circumstance that she was an infant at the time.
In the present case it is not necessary to go the length to whichthe doctrine was carried in the above cases, for it may be reasonablyconcluded from all the circumstances disclosed in this case that therepresentation made by the plaintiffs was due, not to ignorance oftheir legal right' by inheritance from their mother Betuhamy, butto some family arrangement, by which the second bed children wereallowed to possess the whole of Hetuhamy’s one-third share. TheDistrict Judge gave somewhat different reasons for holding that theplaintiffs were estopped from making their present claim, but, onthe ground which I have stated, I think his conclusion is right.
I would dismiss the appeal, with costs.
Dh Sahvayoj.
Banda v.PcUtison
Loos A.J.—I agree.
Appeal dismissed.