21 N.J.L. 395 | N.J. | 1848
The lessors of the plaintiff are the heirs at law of Jeremiah Richman, who on the death of his father Henry Rich-man the second, in 1825, became seised in fee simple of a tract of 165 acres, of which the premises in question are a part. These lands, by the will of Henry Richman the first, made in 1779, were devised to his son Henry the 2nd, in tail, and on his death descended to his eldest son Jeremiah, in fee simple under our statute. Henry the 2nd died in 1825, leaving four children, of whom Jeremiah was the eldest, who on the death of his father, filed his petition to the Orphans’ Court of the county of Salem, alleging a joint interest in himself, his brother and two sisters, in these lands, as heirs at law of Henry Richman, their father, representing himself and them to be tenants in common under the will of their grandfather, and asking that the same might be divided among them agreeably to that will. Upon this petition commissioners were appointed, who made partition accordingly, and the lands were allotted among them, each taking possession of his and her allotment. The defendant came into possession of one of these shares, containing 43 acres by pur
The question for the decision of this court is, whether the lessors of the plaintiff are estopped by the record of the proceedings in the Orphans’ Court? or whether such proceedings and subsequent acquiescence of Jeremiah constitute an estoppel in pais, or an equitable estoppel ? -
And 1st, are the lessors estopped by the record ? I think not. The Orphans’ Court had no jurisdiction in the case — their authority to make partition under the act of 1820, Rev. Laws 780, § 12, extended only to cases where all the parties had an interest in the lands to be divided, either as tenants in common or joint tenants, and in that case their power was limited only to the severance of the possession, and they could not convey or award a title. Here there was no such common interest or joint possession, the whole title and possession was in Jeremiah, the eldest son, and his request or petition to the Orphans’ Court could not confer a jurisdiction where the law had conferred none. The partition as an act of the court was a mere nullity. The proceedings therefore in that court do not amount to an estoppel by record. A record to be conclusive and operate as an estoppel, must show upon its face that the matter in issue in the case where it is set up as an estoppel, was involved in the proceedings which constitute such record. The question, in issue in this case is title to the lands in question. That question was in no wise involved before the Orphans’ Court: the legal title of no party was affected by the partition.
It remains to inquire whether the admissions, express or implied, made by the ancestor of these lessors on his application for such partition, or his subsequent acquiescence in such partition for 19 years, and his standing by and seeing improvements made upon the different allotments without objection, will bar their action or constitute an estoppel in pais. It is manifest that the whole proceedings in the Orphans’ Court was founded in a mistake on the part of Jeremiah Richman, and his counsel and the court. In his petition, whilst he alleges that he and his brother and sisters have a joint interest in the lands, he pro
The case of Den v. Longstreet, 3 Har. 405, is in my opinion a much stronger case than the present, yet the majority of the court refused to declare, where there had been a parol par
I think that judgment in this case ought to be rendered for the plaintiff.
Carpenter, J. The devise to Henry Richman is beyond all controversy a devise in fee tail. It is plainly within the rule in Shelley’s case, which rule has been recognized as well settled in this State in regard to wills prior to the act of 1820, by which it was abolished. 1 South. 303; 1 Pen. P. 291; 3 Green, Ch. R. 495, 498. Henry Richman, the devisee, therefore became seised of an estate in fee tail, which on his death descended to his eldest son Jeremiah Richman, in whom by the operation of the statute of 1784, (Pat. 54, 78) it became a fee simple. The instant the first descent was cast, that instant the first estate was enlarged to a fee simple. When therefore Henry Richman, the devisee, died about the year 1825, leaving four children, his estate in the premises devised did not, as seems to have been then supposed, descend to or vest in those children, excepting his eldest son Jeremiah, who took it by descent and became the owner in fee simple. Den v. Fogg, 2 Pen. 819; Den v. Fox, 5 Halst. 40; Den v. Spachins, 1 Har. R. 172. Under a mistaken notion, suits were commenced in the name of all the children of Henry Richman (2nd) against those who held under the alienee of their father; but they relinquished by a release to the eldest son in whom the title was vested. It is somewhat remarkable that this eldest son even then does not seem to have discovered the error, for he applied to the Orphans’ Court, representing himself, his brother and two sisters as tenants in common and owners under the will of his grandfather, and asked for the appointment of commissioners to divide the property between them. The property held under this devise was in consequence divided; the shares were taken possession of by those to whom they were respectively allotted, fenced and improved, and are still held by them with the exception of one share conveyed to the defendant.
The common law writ of partition is still in force in this state. Although now seldom, if ever, resorted to, yet it may bo used and still stands upon the same principles, and is regulated by the same practice as in the English law. The statutes of 31 Hen. 8 c. 1; 32 Hen. 8 c. 32, and 8 & 9 W. 3 c. 31, the latter regulating the practice upon writs of partition have been in substance re-enacted in this state. Act of 1797, Rev. L. 299; Rev. Stat. 109. There may be some ground for the position that partition by writ is a technical estoppel as between parties and privies. On this process the demandant must prove his title as he has declared upon it, unless admitted upon the pleadings; and the declaration must set out the title, and shew upon what right he demands partition. It is necessary to set out even the title of defendants, though in regard to tenants in common, it is said, the demandant may not be conusant of the tenant’s title which is several, and his title therefore in such case need not be specifically set forth. Yates v. Windham, Cro. Eliz. 64; Moor v. Onslow, Cro. Eliz. 759; Halton v. Earl of Thanet, 2 W. B. 1134; Agar v. Fairfax, 17 Ves. 552; 4 Bac. 510, “ Joint-tenants ” (/.) Indeed the necessity of proving title and the consequent technical difficulties had almost caused the disuse of this common law process in England before its abolition by statute; the concurrent jurisdiction assumed in the Court of Chancery being preferred in consequence of its freedom from technical restraint. Possibly then a judgment on partition by writ, may conclude parties in regard to title, to the extent to which in that action, title becomes the subject of inquiry and decision, though it is unnecessary for us to settle this question in the present case. See Co. Lit. 352 a; Ib. 172 6; Hargrave's note to the passage last referred to, and mss. annotation cited; Ewing, C. J. 1 Green, 277, 278; Allnatt on Partition, 147, (Law Lib.)
But whatever may bo the effect of partition by writ, the principle of a technical estoppel can scarcely be applied to the proceeding by petition under our statute, which operates only on the possession. It is not inter partes, after due process and ap
But if no technical estoppel, it has been urged that there may be an equitable estoppel to the petitioner and those claiming under him. That Jeremiah Richman, under whom the lessors claim, applied to the Orphans’ Court for a division of the lands devised by his grandfather, and which then had descended to him as the heir in tail. That in this petition he represented to the court that this real estate was held by him, his brother and sisters as tenants in common, by virtue of a devise from their grandfather, and asked that it might therefore be divided among them agreeably to the will of the said testator. That it was divided according to his own request, and one share, the premises in controversy, upon the faith of their proceedings, purchased by the defendant. It is asked would it not be a legal fraud in Jeremiah Richman, and in those claiming under him, to disturb a title in the hands of a bona fide purchaser, founded on his own representations ?
A technical estoppel sometimes concludes the party without
The doctrine of equitable estoppel as will appear by the cases cited has been adopted and applied in courts of law in regard to personal property, in which cases usually no technical formalities intervene to prevent its application. But though a purchaser of real estate, who has been misled by the real owner, has been protected in a court of equity, it is by no means clear, that in such case, he can receive the same aid in a court of law. It has been frequently held that when the owner sanctions a purchase from a third person and suffers one to purchase and expend money under an erroneous opinion without making known his claim, that he shall not be permitted to exercise his legal right against such person. A Court of Chancery has barred him in such case from enforcing his claim and it has been the constant practice to resort to that court for redress ; a practice which would be unnecessary if the same aid could be given in a court of law. We have come to the conclusion that the redress of the defendant in the present instance, must be sought in that court, and that we can not now aid him, in a court of law.
When an act is done with the express or implied sanction of the owner of real estate, it shall not be treated as a tort nor made the foundation of a recovery in damages; such license will be a justification in trespass for any act done under it while unrevoked. But it seems now well settled upon principle that in order to confer any permanent right or interest on the land of another an instrument under seal is essential, and that a parol license to go and remain for a certain time on such person’s land, though for a valuable consideration, unless coupled with an, interest, is revocable at the will of the licenser. Wood v. Leadbitter, Supra; Cook v. Stearns, Supra; Prince v. Case, 10 Conn. 375; Miller v. The Auburn & Syracuse R. R. Co. 6 Hill 61; and 2 Am. Lead. Cases, 514, et seq. where the whole doctrine of licenses revocable and irrevocable, executory and executed, is ably treated in the learned annotation of Mr. Hare.
A license, express or implied, tacit or otherwise, may lead to the expenditure of money, either on the land of the third person or elsewhere, in a manner which will be rendered altogether fruitless by the withdrawal or revocation of the license, and this gives rise to a question very analogous to that before the court. Lord Mansfield is reported to have said, if a man lets another build on his land it shall be pronounced a gift, but the doctrine cannot be supported, and has never been sanctioned. In Watts v. Hawkins, 7 Taunt. 23, where the dictum is referred to, it was held that a building ensues the nature of the tenure of the land on which erected, and that there must be a conveyance to pass the property of the soil. It is true the license may be irrevo
But the present case is in ejectment, where the defence must be that the title has passed to the defendant, and the statute of frauds forbids that it should pass by parol. Title, legal title, as understood in a court of law, cannot pass merely because the defendant, in consequence of the mistaken act*of Jeremiah Rich-man, supposed he had procured such title. A conveyance is necessary in a court of law, and to hold that in such court the lessor of the plaintiff, by an equitable estoppel, is debarred from setting up his title, would iti effect nullify the statute. The remedy, if any, is in equity, where the practice is in such case to resort for redress. Smick v. Sears, 1 Hill 17; Delaplaine v. Hitchcock, 6 Ib. 14.
There is here no analogy to those cases where the defendant in ejectment entered into possession under an agreement to purchase, or being in possession, was permitted to hold under such agreement. In such case the possession must be surrendered before the title of the lessor of the plaintiff can be disputed. Such was the case of Tindall v. Den d. Conover, decided in the Court of Errors, October Term, 1846: So also Jackson v. Smith, 12 Wend. 57.
^Neither is the present case affected by those decisions which have been cited as to the effect of acquiescence in the location of boundary lines between adjoining tracts, which passes no title but simply fixes the location. See Kip v. Norton, 12 Wend. 130; Rockwell v. Adams, 6 Ib. 467.
We are all of the opinion that the Circuit Court must be advised to give judgment for the plaintiff
The Chief Justice concurred.
Cited in Phillipsburgh B’k v. Fulmer, 2 Vr. 55; Cobb v. Davenport, 3 Vr. 393; N. J. Midland R. W. Co. v. Vansyckle, 8 Vr. 501; Martin v. Righter, 2 Stock. 526-531; Bush v. Cushman, 12 C. E. Gr. 134.
See Van Riper v. Berdan, 2 Green, 132.