8 Ind. 475 | Ind. | 1857
Ejectment for a tract of land in Floyd ■county. The cause was submitted to the Court on an agreed state of facts. Finding and judgment for the plaintiff. Fean and others appeal.
A bill of exceptions taken upon the motion for a new trial being overruled, sets out the agreed state of facts which was passed upon as evidence.
The question raised involves the inquiry of the operation of covenants of title by way of estoppel. In order to a proper understanding of the shade in which the question is presented, it will be necessary to state
The deed is duly sealed, acknowledged, &c. The agreement proceeds:
“ Floor took possession of said lands, and afterwards conveyed all his title thereto to George Sease in fee, who also took possession, and afterwards, and before the commencement of this suit, died intestate, and the lessors of the plaintiffs are his heirs. On the 3d of September, 3882, Bezin Haines died intestate, leaving Margaret B. Haines, his only child and heir. He died insolvent, and his daughter and heir took nothing from him by descent or distribution; and he was not at any time during his life seized of any estate in said lands. Before the date of said deed of Bezin Haines to Floor, Benjamin Haines*477 was seized of said lands in fee simple, and lie continued so seized of the same until he died intestate on the 1st of September, 1835. Said Benjamin Haines left Rebecca Haines, wife of Bean, and three other children, and said Margaret, his granddaughter, his'heirs, each inheriting one undivided fifth part of the lands described in the deed — the granddaughter as representing her father, Rezin Haines, son of the said Benjamin. The defendants, Dean and others, have all the title to the undivided four-fifths which descended to the children, and also that which descended to the granddaughter unless she and the defendants as her assignees are bound and estopped by the deed of her father Rezin.”
„ This was all the evidence. And the only question is, Do the covenants of warranty in Rezin Haines’s deed, estop his said daughter and her assignees in such manner as to enable the lessors of the plaintiff to maintain this action?
Though the deed is not literally copied, every material part is set out. Two other persons join with Haines in the deed; but as the record does not disclose their title or connection with the case, it was deemed unnecessary to quote the deed with their names.
There is some obscurity in the statement as to possession. Perhaps it can be reconciled by inference, viz., that as Benjamin died seized, the possession of Floor, and of his grantee, Sease, and then of the defendants Dean and others, followed each other in that succession. Had the dates been supplied it would have removed the obscurity.
Sense’s heirs contend that Margaret, and those claiming under her are bound and estopped by the covenant of warranty of her father.
Dean and others contend that the inheritance being cast directly from the grandfather, and she receiving no assets from' her father’s estate, Margaret could not be sued upon the covenants in the deed, nor is she estopped by them. That it being expressly admitted in the record that Rezin Haines had no title, then it follows
We are referred to Wheelock v. ITenshaw, 19 Pick. 341, as a case in point conclusive against the operation of the deed by way of estoppel. The facts in that case were these. By deed with covenants of seizin and general warranty, Thayer conveyed to ITenshaw the right to draw from a mill-pond the surplus water over six feet. Concurrently therewith ITenshaw executed a mortgage to Thayer with like covenants, which came to the hands of the plaintiff by assignment. At the date of this deed, Thayer owing to the prior rights of others, could not raise his dam over six feet. Consequently there was no surplus water, and nothing conveyed by the deed or reconveyed by the mortgage. It was held that as ITenshaw received no title by the deed to the surplus -water, nothing passed by the mortgage ; that this was available as a defense, and that it was'estoppel against estoppel.
But this case has no analogy to that at bar. Here is no conflict of estoppels.
The first inquiry is, What covenants does the deed of jRezin ITaines contain? and the second, What is the effect of these covenants ?
1. Haines covenants that the premises are free from all right of dower, and all other incumbrances whatever ; that they shall forever thereafter be and remain, &c.; and that he and his heirs, &c., shall warrant and defend against all persons lawfully claiming or to claim the same. These are in substance the express covenants.
It will be perceived that the deed is not a_mere quitclaim ; so that the doctrine governing that class of eases does not apply. Nor does it contain full covenants; for example there is no express covenant of seizin or right to sell and convey. And it is admitted in the agreed state of facts that the grantor, Rezin Haines, never was seized.
2. What, then, is the legal effect of this deed on Margaret and her assigns ?
An estoppel is defined to be, where a man is concluded by his own act or acceptance to say the truth. Notwithstanding this unpromising definition of estoppel it is in the highest degree reasonable and just. Ii is wise to provide some means by which a man may be concluded, not from asserting the truth, but from asserting that to be false which he had caused to be credited as truth. 2 Smith, supra. Estoppels are said to be odious. But the truth is, says Smith, that the courts have, for some time, been favorable to the doctrine of estoppel — hostile to its technicality. 2 Lead. Cas. 460. It is only when used to entrap by formal statements and admissions, looked upon as unimportant when made, and by which no one was ever deceived or induced to alter his position, that estoppels are still, as formerly, odious. Id.
■ The legal effect of the covenants in the deed before us is to be considered.
The admitted fact that Kezin Haines was never seized of any estate in the lands he undertook to convey, and in this connection, the absence of any express covenant of seizin, would be material if the deed conveyed only the “ right,- title, and interest,” of the grantor. For in that case the warranty would be only co-extensive with the grant. And having no title at the date of the conveyance, his warranty was inoperative. Such warranty would not work an estoppel or rebutter in ease, of any after-acquired title. Jackson v. Hubble, 1 Cow. 613.—
This position is further illustrated by the case of Trull v. Eastman, 3 Met. 121. There, the deed was a grant of all the estate or interest which the grantor had, or which might come to him by will or heirship, so that neither he nor his heirs, &c., should afterwards claim, &c. It was held that the 'interest conveyed was an expectancy; it was a conveyance of a future interest to be acquired; and the warranty being co-extensive with the grant, estopped the grantor after the estate accrued, from demanding it.
That, it will be seen, was only a conveyance of his interest, present and future. Much more will the general conveyance and corresponding warranty estop Haines, and all claiming through him, or by any right derived from him, from claiming the land conveyed to Floor.
Had the Haines deed purported to convey only the interest which the gi’antor had at the date of the grant, it would have fallen within the rule in Blanchard v. Brooks, supra, and the warranty would not have worked an estoppel as to any after-acquired title.
But there is another question affecting the right of the lessors of the plaintiff to recover in this form of action. Rawle ón Covenants says, “ There are two principles on which most of the cases of this class can be
It is elsewhere shown by Rawle, that to give to an estoppel the operation of actually passing an estate, one of several things is essential. Either that the mode of assurance was a feoffment, a fine, a common recovery, or a lease. These' modes of assurance were the only ones by which an after-acquired title passed, by operation of law, under the doctrine of estoppel. But it seems a grant or a release had not that effect. Our modern conveyances, passing only the estate of the party, have no greater efficacy, by way of estoppel, than the common-law grant or release. Rawle, -405. — 2 Smith’s Lead. Cas. 557, top paging.
It is well settled, says Smith, that although a conveyance must fail of effect at law, unless the estate to be conveyed is vested at the time the deed is executed, it will yet be enforced in equity as an executory agreement to convey, whenever the intention of the parties is apparent, and sustained by a sufficient consideration. Thus, the conveyance of a mere possibility of intei’est in rent, a covenant to stand seized of land in which the grantor has a contingent or executory use, or an agreement by expectant heirs to divide the estate of an ancestor, and, on equally strong reason, an absolute deed, will be sustained in chancery and made effectual by decree, as soon as the interest intended to be conveyed, has vested in the grantor. And the annotator cites numerous au
There was, therefore, two effects attached to an estoppel, according to the assurance used. The one estopped or (rebutted the party from alleging any thing contrary to (his deed. The other, if the assurance employed was a fine, feoffment, or lease, actually conveyed the estate.
Some American cases give both effects to the covenant of warranty in modern conveyances — holding that to give full effect to the estoppel, it must operate to pass the title. Jackson v. Bull, 1 Johns. Cas. 81; Jackson v. Murray, 12 Johns. 201; and many others. But they have all been overruled or doubted, and the distinction above indicated is clearly settled.
I am, therefore, of opinion that the estoppel in this case' does not operate to pass' the title, but merely by way of rebutter. Admitting that Haines and his heirs are estopped, by his deed to Floor, from asserting title,— so that if they brought ejectment, that deed could be set up in defense by way of estoppel, — that will not aid the lessors of the plaintiff here. Eor that deed will not enable Floor, or his assigns, to maintain ejectment against the heirs of Haines. The doctrine so clearly deducible from the modern authorities comes in to defeat such action also. The deed to Floor, while it estops the grantor and his heirs, is not efficient to pass the legal title. It gives the grantee the right to apply to a court of equity for a legal title, but does not of itself pass that title.
Hence, the remedy of Floor and his assigns, under the old system, which prevailed when the cause was tried below, was not at law but in equity. They had only an equitable title. The lessor of the plaintiff must have a legal title. Jared v. Goodtitle, 1 Blackf. 29. Consequently, Sease’s heirs cannot maintain this action.
I am, therefore, of opinion that the judgment below should be reversed.
The majority of the Court hold otherwise. They hold that the doctrine in Case v. Wildridge, 4 Ind. R. 51,
The judgment is affirmed with costs.
Judge Stuart examines the subject, of the operation of covenants for title by way of estoppel, as involved in this case, fully and with much learning; but as his opinion is a dissenting,one — the majority of the Court differing with him — his holdings are not embraced in the syllabus.