topped to attach the judgment in any manner. Banks v. Hitchcock, 20 Neb. 315 (30 N. W. 56).

101. (1898.) A defendant to an action in which an accounting is prayed, who consents to an order of reference and proceeds according to the analogies of a suit in equity, cannot on appeal be heard to say that the action was essentially of a legal character, and should have been so treated. Morris v. Haas, 54 Neb. 579 (74 N. W. 828).

102. (1898.) A subscriber to corporate stock who has paid off a deficiency judgment against the corporation is not estopped from maintaining a suit for contribution against his co-subscribers by the fact that he participated in a distribution made of the assets of the corporation by the stockholders, the debt discharged by him not being provided for in such distribution. Bennison v. McConnell, 56 Neb. 46 (76 N. W. 412).

103. (1901.) When defendants in a suit to foreclose a mortgage avail themselves of the statutory stay of judgment they are estopped from attacking such judgment in any manner. Gilbert v. Provident Life & Trust Co., 1 Unof. 282 (95 N. W. 488).

104. (1907.) Heirs at law of an entryman of a timber claim, the patent to which was not issued until after the death of the entryman, are not estopped from asserting claim to the same by reason of permitting a probate court to adjudge title to the land to vest in devisees. Walker v. Ehresman, 79 Neb. 775 (113 N. W. 218).

104a. (1907.) When the owner of property sold at judicial safe moves the court to deny confirmation because of inadequacy of price, and offers in event of re-sale to increase the bid thereat, he, by so doing, admits the jurisdiction of the court and confesses the justice of the decree of sale, and is estopped afterwards to dispute either. Prudential Real Estate Co. v. Hall, 79 Neb. 808 (116 N. W. 40).

104b. (1908.) When, in an action to set aside a conveyance of land as having been fraudulently procured, the plaintiff obtains a decree in his favor by means of a compromise and settlement, in which he agrees to pay and discharge a mortgage upon the premises executed by his fraudulent grantee, he is not entitled to object, in a subsequent action to foreclose that mortgage, that the same is for a sum in excess of the just indebtedness of the mortgagor to the mortgagee, or that prior to the settlement the

mortgagee might have obtained a partial satisfaction from a source other than the land. Hannan v. Rihner, 80 Neb. 521 (114 N. W. 605).

Acceptance of benefits.

105. (1874.) One cannot be permitted to receive the purchase price for land and afterwards recover the land. Wamsley v. Crook, 3 Neb. 344.

106. (1877.) The receipt of purchas. money with the knowledge that the purchaser is paying it upon an understanding that he is purchasing a good title, touches the conscience and binds the rights of the parties as effectually in a void as in a voidable proceeding; and the same principle ap plies when a party retains the benefits de rived from an agency, and has ratified the acts of the agent. McMurtry v. Brown, 6 Neb. 368.

107. (1887.) A plan for the division of a tract of land among tenants in common thereof, is binding upon such tenants as have ratified it by accepting a conveyance of the portions assigned to them. Killinger v. Hartman, 21 Neb. 297 (31 N. W. 918).

108. (1897.) A payee suing on a note taken by his agent for the purchase price of a harvesting machine, is estopped to assert that a warranty made by the agent, as an inducement to procure the note, was unauthorized. Osborn Co. v. Jordan, 52 Neb. 465 (72 N. W. 479).

109. (1897.) A landowner by electing to pursue his remedy for the value of property appropriated by a city for a street, is estopped to call in question the title of the city to the land taken, in a subsequent action to restrain the city from collecting an assessment on his property for grading and improving the street. Hawver v. City of Omaha, 52 Neb. 734 (73 N. W. 217).

110. (1901.) A party who has received the benefits of an executed contract entered into with the county at a meeting of the county board is estopped from denying the legality of the session at which such contract was entered into. Green v. Lancaster County, 61 Neb. 473 (85 N. W. 439).

111. (1902.) One who, on a settlement with his principal of transactions by him as agent, writes a receipt in full of all demands and attaches it to a draft for the amount the other party has offered to pay for such a receipt, cannot, after taking the money, in the absence of fraud or mistake, renew a claim previously in dispute between the parties.

Connor v. Etheridge, 3 Unof. 555 (92 N. W. 135).

112. . (1903.) One purchasing property and retaining title to it under a decree of foreclosure, will not be permitted to challenge the validity of such decree. City of Lincoln v. Lincoln Street R. Co., 67 Neb. 469 (93 N. W. 766).

113. (1906.) Where heirs accept a cash payment from the widow of a deceased in an endeavor to settle absolute title in the widow and mother to the homestead, they are, after ten years, estopped from asserting title to the homestead as against the widow's grantee. Staats v. Wilson, 76 Neb. 204 (107 N. W. 230).

114. (1907.) A person claiming title derived under a decree of court will not be heard to dispute the authority of the attorney to enter into the stipulation upon which the decree was based. Peterson v. Ramsey, 78 Neb. 235 (110 N. W. 728).

115. (1907.) A landlord is estopped to deny the authority of his attorney to compromise and settle a claim for rent, where he accepts and retains the amount received in settlement. Fenimore v. White, 78 Neb. 520 (111 N. W. 204).

116.

a

(1877.) If a company, incorporated with the exclusive privilege to establish and keep a ferry and wagon bridge across river, within a certain district, stand by and silently see and permit other parties to construct and complete another wagon bridge across the same river, within the same district or acquiesce and consent to the erection thereof-it will, by reason of such silence or assent, be estopped from controverting, by injunction or otherwise, the right of the other parties to use and repair such bridge. Fremont Bridge Co. v. Dodge County, 6 Neb. 18.

117. (1884.) In an action of ejectment, where an equitable defense is pleaded, and under the allegations of the answer it is shown that the defendant bought the land in question in good faith for a valuable consideration, taking immediate possession thereof, and with the knowledge of the plaintiff made valuable and lasting improvements thereon, the plaintiff taking no steps to notify defendants of his claim, held, that he was estopped to set up his rights as against them. Gillespie v. Sawyer, 15 Neb. 536 (19 N. W. 449).

118. (1887.) If a party knowingly, though it be done passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his own claim, he will not afterwards be permitted to exercise his legal rights against such person. State, ex rel. Miller, v. Graham, 21 Neb. 329 (32 N. W. 142).

119. (1888.) A party who knowingly permits another to purchase land and expend money thereon, under the supposition that he is the owner, and without such party making known his own claim, will not be permitted afterwards to exercise his legal rights against the purchaser. Forbes v. McCoy, 24 Neb. 702 (40 N. W. 132).

120. (1893.) The owners of a tract of land, having platted it as an addition to an adjacent town, so as to show what appeared to be the prolongation of its streets, though not so designated, and having for the period of eight years acquiesced in the grading and public use of such apparent streets, the erection of sidewalks thereon, and the construction of costly improvements upon adjacent private property in such manner that if the existence of such streets is denied these improvements will be rendered comparatively. useless; and having represented to one party, who, on the faith thereof, purchased a portion of said addition adjoining said apparent streets, that such portion would abut upon the same as streets, are estopped to deny the existence of the streets through such addition of which they have thus superinduced such belief, and the reliance thereon of the parties who have acted upon the faith of such appearances, acts, and representations. Likes v. Kellogg, 37 Neb. 259 (55 N. W. 878).

121. (1894.) Where stock in a corporation had been exchanged for land and the person receiving the stock learned that the representations inducing him to make the exchange were false, and thereafter, without notifying th other party of any intention to rescind, knowingly permitted such other party to make valuable improvements upon the land, and in the meantime acted as a director of the corporation and took part in its affairs, these acts constituted an election to abide by the contract and deprived him of the right to seek rescission in equity. Foley v. Holtry, 41 Neb. 563 (59 N. W. 781). [Overruled. 43 Neb. 133.]

122. (1903.) One who has not been guilty of laches will not be estopped to object to

the payment of a special assessment which is void for want of jurisdiction in the taxing authorities to make the assessment. Morse v. City of Omaha, 67 Neb. 426 (93 N. W. 734).

123. (1903.) Where one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his own claim, he will not afterwards be permitted to exercise his legal right against such person. A wilful design to mislead and deceive is not necessary in such a case. Lydick v. Gill, 68 Neb. 273 (94 N. W. 109).

Silence.

124. (1904.) A purchaser at a judicial sale of lands offered subject to apparent liens, who makes no attempt to have the priority, validity or amount of the latter otherwise adjudicated until after confirmation and conveyance, is estopped to impeach them. Omaha Loan & Trust Co. v. City of Omaha, 71 Neb. 781 (99 N. W. 650).

125. (1906.) Where one purchases land at a tax sale and there is an apparent prior lien thereon that is not questioned by such purchaser, he is estopped thereafter from questioning such prior lien. State v. Several Parcels of Land, 75 Neb. 497 (106 N. W. 601.)

126. (1907.) In order to constitute an equitable estoppel by silence or acquiescence, it must be made to appear that the facts upon which it is sought to make the estoppel operate were known to the parties against whom the estoppel is urged. City of Lincoln v. McLaughlin, 79 Neb. 74 (112 N. W. 363).

Laches.

Ger

127. (1898.) Estoppel by laches in delaying the commencement of an action is not available as a defense unless pleaded. nan Nat. Bank v. First Nat. Bank, 55 Neb. 86 (75 N. W. 531).

127a. (1907.) The courts, in a proper case, will apply the doctrine of laches to a case in which the state is a party plaintiff. The state, like individuals, may be estopped by its acts or laches, and should not be allowed to oust a corporation of its rights and franchises where, for a long series of years, it has stood silent and seen the corporation expend large sums in the acquisition of property and improvements made thereon under a claimed right so to do under its charter.

State, ex rel. Caldwell, v. Lincoln Street R. Co., 80 Neb. 333 (114 N. W. 422). Negligence.

128. (1904.) One who signs a release of a claim for damages for personal injuries without reading it, he having the capacity and opportunity to so do, is estopped by his own negligence from claiming that the release is not legal and binding because of fraudulent representation and deceit in obtaining his signature. Osborne v. Missouri Pacific R. Co., 71 Neb. 180 (98 N. W. 685).

129. (1904.) One who fails through culp able inertness to make inquiry when it is his duty to inquire, and by reason of such failure loses a valuable right, is not entitled to relief in equity on the ground of mistake. Farrell v. Bouck, 72 Neb. 875 (101 N. W. 1018).

C. Persons Affected and Matters Precluded. Persons to whom estoppel is available.

130. (1898.) In a suit against the maker on a note transferred by indorsement to plaintiffs, it was held that defendant was not estopped to deny that plaintiffs were partners. Hoyt v. Kountze, 54 Neb. 368 (74 N. W. 585).

131. (1899.) An estoppel in pais is not available to a stranger to the transaction. Oliver v. Lansing, 59, Neb. 219 (80 N. W. 829).

Persons estopped.

132.

(1890.) A husband and wife were in charge of a millinery store in the city of C. The plaintiffs sold goods on credit to the wife on the representations of the husband that she was the owner of the business. L., S. & Co. and R., T., W. & Co., not knowing of said representations, or that the wife claimed to own the business, sold on time goods to the husband, which went into the store. Afterwards, the husband absconded and the wife gave the plaintiffs a chattel mortgage on the stock to secure the balance of their claim, and the mortgagee took possession thereunder. L. S. & Co. and R., T, W. & Co. shortly afterwards attached the goods as the property of the husband. Held, In an action by the mortgagee against the sheriff for conver sion, that the representations of the husband made to the plaintiff do not estop the officer from showing that the husband was the owner of the property when the mort gage was given. Oberfelter v. Kavanaugh, 29 Neb. 427 (45 N. W. 471).

v.

136. (1894.) An estoppel, to be available as a cause of action or defense, must be specially pleaded. Nebraska Mortgage Loan Co. v. Van Kloster, 42 Neb. 746 (60 N. W. 1016); (1898) German Nat. Bank First Nat. Bank, 55 Neb. 86 (75 N. W. 531). 137. (1895.) The facts constituting an estoppel in pais must be pleaded. Erickson v. First Nat. Bank of Oakland, 44 Neb. 622 (62 N. W. 1078; 48 Am. St. Rep. 753; 28 L. R. A. 577; (1895) Scroggin v. Johnston, 45 Neb. 714 (64 N. W. 236).

138. (1896.) A party entitled to an estoppel need not in all cases formally plead the estoppel. If the facts constituting the estoppel are in any way sufficiently pleaded, he is entitled to the benefit of the law arising therefrom. City Nat. Bank of Hastings v. Thomas, 46 Neb. 861 (65 N. W. 895).

139. (1879.) If an estoppel be relied on as a defense to an action, in order to be availing it must be pleaded. Burlington & M. R. R. Co. v. Harris, 8 Neb. 140; (1894) Salladin v. Mitchell, 42 Neb. 859 (61 N. W. 127); (1898) Boales v. Ferguson, 55 Neb. 565 (76 N. W. 18); (1900) Burwell Irrigation Co. v. Lashmett, 59 Neb. 605 (81 N. W. 617); (1901) Union State Bank v. Hutton, 1 Unof. 795 (95 N. W. 1061); (1902 Carnahan v. Brewster, 2 Unof. 366 (96 N. W. 590).

140. (1898.) The facts from which an estoppel in pais arises, to be available as such, must be pleaded, at least where there is an opportunity to so plead. Henderson v. Keutzer, 56 Neb. 460 (76 N. W. 881).

Joinder with general denial.

141. (1894.) A plea of estoppel may be joined with a general denial when the averments by way of estoppel are not inconsistent with such denial. Blodgett v. McMurtry, 39 Neb. 210 (57 N. W. 985). Sufficiency of pleading.

142. (1887.) When a defendant in an action alleges by way of answer any matter in bar of the plaintiff's action, the plaintiff may, by way of reply, allege any fact or facts not inconsistent with the facts alleged in his petition, by reason of which the defendant may be estopped to avail himself of such defense. Paxton Cattle Co. v. First National Bank, 21 Neb. 621 (33 N. W. 271; 60 Am. Rep. 852).

143. (1901.) A party who pleads facts which would, if proved, preclude the assertion by his adversary of an equitable title to, or lien upon, the property in litigation, is not entitled, under such plea, to show that the party against whom the estoppel is alleged, is precluded from asserting the rights of an unsecured creditor. Plummer, Perry & Co. v. Rohman, 62 Neb. 145 (87 N. W. 11).

Burden of proof.

144. (1906.) Where a party pleads and relies on an estoppel, the burden of proof is upon him to establish the facts upon which the estoppel is based. Parkins v. Missouri P. R. Co., 76 Neb. 242 (107 N. W. 260).

Weight and sufficiency of evidence.

*145. (1896.) The evidence examined, and held to sustain the finding of the district court, that the appellants had by their conduct estopped themselves from claiming or asserting a mortgage lien upon certain chattel property. Brown v. Eno, 48 Neb. 538 (67 N. W. 434).

146. (1898.) In a suit by a bank upon a note, a wife held not estopped from interposing, as a defense, her coverture and her signing as surety. Westervelt v. Baker, 56 Neb. 63 (76 N. W. 440).