The opinion
By the Court, Johnson, J.
The exceptions to the judge’s charge to the jury are not well taken. If the disputed boundary line had been fixed and settled by agreement between the parties, as the jury by their verdict have found the fact to be, and the defendant went on with the knowledge of the plaintiff, afterwards, and made valuable and expensive improvements relying upon such settlement, without any objection or remonstrance, or notice of dissent from the plaintiff in regard to such line, thus established, he is clearly estopped from now claiming that such was not the true boundary line betiveen their respective lots. If he did not intend to be bound by the survey and the line made and marked in his presence by the surveyor called with his assent for that purpose, it was his clear duty to notify the defendant when he saw him erecting his wall, and making the addition to his house, in accordance with the line thus made. He is presumed to have known that the defendant was making the improvement in the faith that he acquiesced in the line fixed by the sur *228 veyor in his presence, and without any dissent from him at the time. To allow him now, after the improvements are completed, to raise the objection and dispossess the defendant on the ground that the line was not in fact the true line, would be allowing him to take advantage of his own culpable neglect, to the great injury of the defendant. By his silence he must be deemed to have consented to the improvement being made and placed as it was, and to have encouraged and sanctioned the expenditure necessary thereto. Knowing that the defendant claimed the land to the new line, he by his silence assented to the claim while the improvement was going-on, and until it was too late for him to raise the objection. It is just the case where the principle of equitable estoppel applies. (Wendell v. Van Rensselaer, 1 John. Ch. 343. Town v. Needham, 3 Paige, 545 . Thompson v. Blanchard, 4 Comst. 303. Baldwin v. Brown, 16 N. Y. Rep. 359 .) In the last case Selden, J. at page 364, says: “ There may be cases in which an express agreement recognizing an erroneous boundary will conclude a party; as where the other party acting upon the faith of such agreement has made expensive improvements, the benefit of which will be lost to him if the. line is disturbed.” Such cases, the learned judge proceeds to say, rest upon the principle of estoppel in pais. The cases upon this subject are very numerous in the books, but it is unnecessary to multiply citations, as the principle is very clearly established. The rule applies equally to transactions in regard to real and personal property. It does not at all touch the question of creating title to real estate by parol. It estops a party from asserting his title when it would be fraudulent, and operate injuriously to allow him to do so. The principle is that he who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to be silent. There can be no doubt, I think, that a defense of this kind may be set up in the action of ejectment.. \J
*229 [Monroe General'Term,
September 5, 1865
A mere equitable defense may be interposed in this action, since the code. (Crary v. Goodman, 2 N. Y. Rep. 266 .)
A new trial must therefore be denied.
Hew trial denied.
Johnson, E. Darwin Smith and James 0. Smith, Justices.J