dead, she might, notwithstanding her long cohabitation with the second husband, have been able to compel a restitution of conjugal rights.

The case of Joseph v. Joseph, 34 L. J., P. M. & A. 96, may throw some light on this proposition.

The legal rights towards the plaintiff, her legal husband, being, as I think, such as I have stated and considered them to be, then by reason of his absence, and by reason of her second marriage, and by the long possession of the land jointly by her with the second husband-these facts do, in my opinion, enable the second husband to hold the land adversely to the first husband, so that he, or those representing him, cannot be ejected by the first husband.

That right was not to the sole possession, but jointly or equally to the enjoyment of that possession with the wife. The first husband must be entitled to recover the possession which his wife had. The first and second husbands will thus be, or in effect be, tenants in common of the land.

The mortgage which the second husband and wife gave of the land, conveying it as the freehold of the wife, does not operate by estoppel, as the first husband is a stranger to it, and therefore the whole of the circumstances may be considered.

As there was a special argument upon the question of estoppel, I have to say that I do not think that it can be applied in this case against the first husband.

At one time I thought it might be, and the reason of it was this: The plaintiff left the country voluntarily, and for about five years was sailing on the lakes; and while he was on the adjoining shore of the United States, he was not very far from home, and could readily have returned to it. For the remaining twenty-five years he was in California. He was not a literate man, but he never sent any message by letter or otherwise to his wife or to his relatives. They did not know where he was, nor whether he was living or not. He could have found them or communicated with them at

any time. They could not find him or communicate with him. They had reason to believe, and they did believe, he was dead; and he must have known they believed so, or he must have known that his conduct would naturally lead them to think so; and he must also have known that they would be likely to act towards him and his property as if he were dead.

If, then, they treated him as dead under these circumstances, and dealt towards him and his property as if he were dead, and his heiress at law sold his land as her own to a bona fide purchaser for value, the question was whether he should be allowed to dispute the validity of that sale, which was based upon a state of facts which his own conduct had brought about, induced and created. The rule of law is, "that where one by his words or conduct wilfully causes another to believe 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." Pickard v. Sears, 6 A. & E. 469, 474.

There the mortgagee of chattels permitted the mortgagor to deal with them as his own, and he also carried on negotiations about these goods with an execution creditor of the mortgagor, who had seized them as the property of the mortgagor, without even telling such creditor of his claim as mortgagee, and he allowed the goods to be sold by the Sheriff as the goods of the mortgagor without forbidding it; and it was decided that he was concluded by his conduct from setting up his title to the goods to the prejudice of the purchaser at the Sheriff's sale. The word wilfully in the above passage is explained in Freeman v. Cooke, 2 Ex. 654, 663.

The rule also is, "that if a man so conduct himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists, and acts on that

inference, he shall afterwards be estopped from denying it." Per Bramwell, B., in Cornish v. Abington, 4 H. & N. 549, 556.

The rule also is, "that an estoppel by negligence must be the neglect of some duty cast upon the party who is guilty of it, and the neglect must be in the transaction itself, and be the proximate cause of leading the party into the mistake." Swan v. North British Australasian Co. (Limited), 2 H. & C. 175, 181.

Here the plaintiff made no representation of any kind. His conduct was of no positive act; it was that of neglect only, and there was no duty upon him to look after his property or to find out what others were doing with it; and as he did not know what they were doing with it or had done with it, he had nothing to counteract or to forbid.

If a person builds on the land of another supposing it to be his own, and the owner, perceiving his mistake, abstains from setting him right, and leaves him to go on in his error, the owner cannot afterwards assert his title to the land on which the money was expended by the other on the supposition that the land was the property of the one who laid out the money.

It was the owner's duty actively to interfere and to assert his adverse title; and it would be dishonest of the owner, after remaining passive, to profit by the mistake which he could have prevented. But if one build on land knowing it not to be his, equity will not prevent the legal owner from claiming the land with all the expenditure made upon it. Ramsden v. Dyson, L. R., 1 H. L. 129; per Lord Chancellor, pp. 140, 141; per Lord Westbury, p. 168.

If the plaintiff had been informed of the second marriage, and of the second husband living on the land, or that his daughter was about to sell the land as her own as the heiress at law of it in the belief that the plaintiff was dead, and he could reasonably by some act or means have asserted his rights in due time, and he did not interfere, his case would

be very similar to the one just referred to, and it seemed to me at one time it might be assumed against him on the evidence that the plaintiff was negligently, wantonly and wilfully keeping himself in a state of ignorance of a condition of things which he must have known would be very likely to take place after his long absence, and when he knew that all those who were interested in him must have believed, and had every reason from his own conduct to believe, he was dead, and that as against him it might be assumed he was wilfully abstaining from putting forward his claims, knowing, as it might be assumed, that others were dealing with his land, and knowing also, as it might be assumed, that they had the right to do so. But I am not prepared to say he was bound to tell where he was, or that he was still living, or that he was bound to look after his rights or property, or to inform himself whether others were dealing with them or not at any further risk than that of losing them by the law of limitations.

If he had by any act or device led it to be believed he was dead, and had resorted to such act or device with the intention of having it so believed, and he kept away or concealed himself for that purpose, and it was accordingly believed he was dead, then I think the sale by his daughter would in this case have been a valid act, whether he had previous knowledge of such sale or not, and whether he could have prevented it or not, so long as he did not in fact prevent it, when he could have prevented it.

cases.

There have no doubt been many cases of such concealment or misrepresentation, and some of them are very singular Trew v. The Railway Passenger Assurance Co., 6 Jur. N. S. 759; 5 H. & N. 211; 6 H. & N. 839; the opinion of Pollock, C. B., at p. 760 of 6 Jur. N. S., as to what he supposed was the case; Joseph v. Joseph, 34 L. J., P. M. & A. 96; Hoig v. Gordon, 17 Grant, 599; and the very extraordinary case mentioned as a fact, and which I presume to be so, in Vol. IX. of Household Words, p. 327,

and Vol. I. of Cassell's Mag., p. 236, and also shortly referred to in Timb's Curiosities of London. Other cases might also be referred to.

While I am not able to attach any legal duty upon the plaintiff to conclude him by estoppel, I am of opinion he is barred by length of time so far as Davidson's interest is concerned; and I should not have regretted it if he had been barred altogether, because he has caused, whether intentionally or not, by his conduct, which seems to be as inexplicable as it is inexcusable, a degree of distress to his wife, and an amount of injury to the children she has had by the second marriage, which can never be remedied, and he has also done as much as in him lay to bring a heavy pecuniary loss upon those who have lent money upon or have bought the land in good faith, and who no doubt thought that it was not possible a man could act as the plaintiff has done, or that he could, if he did so act, recover the land from an innocent purchaser.

ARMOUR, J.-The defendant's counsel in the argument put this question as I understood him: "Is the possession by the wife of the husband's lands in law, under every state of circumstances, the possession of the husband?" and he admitted that if this question must be answered in the affirmative, there was an end of the defence to this suit.

I am of opinion that it must be so answered; but it is not necessary to answer in the affirmative a question quite so wide as that put by the learned counsel in order to determine this suit in the plaintiff's favour. It is sufficient if the following question is answered in the affirmative, and I think it must be so answered: "Was the possession by the wife of the land in question, in law, under the state of circumstances in this case, the possession of her husband?"

It seems to me that the doctrine that the possession by the wife of the husband's lands is to be deemed the possession of the husband, depends rather upon the principle that