Allen v. Shaw , 61 N.H. 95 ( 1881 )

The material question is, Have the plaintiffs a title sufficient to support their bill? Their title is under an attachment in a suit against Abbott to secure a lien for materials furnished in the erection of an addition to the store on the premises in dispute. Abbott's title was a bond for a deed of one half of the premises, on condition that he paid two notes given for the purchase-money. There is no allegation that any part of the notes has been paid. The only interest which Abbott had when the attachment was made was the right to receive a conveyance on complying with the conditions of the bond, viz., payment of the notes. Abbott was in possession under his bond, and the materials were furnished on a contract with him

The statute gives a lien upon the building and upon any right of the owner to the land on which the building stands. Gen. Laws, c. 139, s. 11. The plaintiffs brought their suit against Abbott, and they could get by their attachment nothing more than Abbott's interest. That interest was a right to a conveyance upon conditions which have never been performed. The cases of Calef v. Brinley and Stevens v. Kennard, 58 N.H. 90, are not in point. There the title to the lumber passed, it having been delivered with the intention that it should pass. Here the title did not pass. There was a change of possession, but not of title. But the plaintiffs contend that the defendants are estopped by their silence to deny that Abbott had a title, or that they acquired a title by their levy. The allegation on this point in the original bill is, that at the request of Abbott, and with the knowledge and consent of Shaw Dalton, the plaintiffs provided labor and materials for the addition. There is no charge that the plaintiffs delivered the materials to Abbott because of the defendants' silence, or that it was their duty to speak, or that they knew that the plaintiffs were acting or proposing to act otherwise than they would have acted had they known the facts. To create an estoppel by silence, there must be not only the opportunity, but the apparent duty, to speak. The party keeping silent must know that some one is relying thereon, and is either acting or about to act as he would not if the truth were known to him. Viele v. Judson, 82 N.Y. 32; Taylor v. Ely, 25 Conn. 250; Marshall v. Pierce, 12 N.H. 127; Batchelder v. Sanborn, 24 N.H. 474; Odlin v. Gove, 41 N.H. 465; Norris v. Morrison, 45 N.H. 499; George v. Cutting,46 N.H. 130; Stevens v. Dennett, 51 N.H. 324; Big. Estop. 497-503. The demurrer to the original bill is sustained.

In the amendment the charge is, that the defendants, Shaw Dalton, held Abbott out as sole owner of the premises; that each of the plaintiffs, with the knowledge and consent of Shaw Dalton, without objection on their part, or an assertion of ownership, believing that Abbott was the owner and had the right to contract for the materials and subject the premises to the lien, furnished the materials and performed the labor because of the conduct and representations of Shaw Dalton. Assuming the facts to be as stated, here was not only silence when there was a duty to speak, but words and acts when there should have been silence. As an owner of real estate may lose his title by silently witnessing a conveyance of it by one having no title (Thompson v. Sanborn, 11 N.H. 201, Corbett v. Norcross,35 N.H. 99, Richardson v. Chickering, 41 N.H. 380, 385), so, by an equivalent estoppel, he may subject his property to a lien.

The demurrer to the amended bill is overruled.

DOE, C. J., did not sit: the others concurred.