Sparrow v. KingmanSparrow v. Kingman
- Reporters:
- Before:
- Bronson
The cases of Sherwood vs. Vandenburgh, (2 Hill 303,) Bowne vs. Potter, (17 Wend 164,) and other similar cases in the Supreme Court, considered, and in this respect overruled.
Error from the Supreme Court. Elizabeth Kingman brought ejectment in the Common Pleas of Erie County, against Erastus Sparrow to recover an undivided sixth part of certain premises as the widow of George G. Kingman, deceased. After issue joined, the cause was removed by certiorari into the Supreme Court, and was tried at the Erie Circuit, before Dayton, Circuit Judge, in January, 1846. On the trial, the marriage of the plaintiff, and the death of her husband, were admitted.
The plaintiff proved that her husband, George G. Kingman, and Philo Durfee, were in possession of the premises from 1837 to 1840 inclusive, claiming as owners, and built certain mills thereon called the “Erie Mills;” that in February, 1841, Kingman gave a quit claim deed of his interest in the premises to S. J. Holley, and that in August, 1841, Durfee also gave a quit claim deed of his interest in the premises, (declared in the deed to be an undivided half) to the defendant. That in April, 1842, the defendant and Holley united in a quit claim deed of the premises to Ira B. Carey, and that the defendant, at the commencement of the suit, was in possession under a lease from Carey. The defendant offered to shew that Kingman never had any estate in the premises of which his wife was dowable, but that his estate was a leasehold estate merely; also that he never had any title whatever to the premises. The evidence so offered was objected to by the plaintiff, and excluded by the Circuit Judge on the ground, that as Kingman, when in possession, had, by his deed to Holley, assumed to convey a fee, and as the defend-
H. S. Dodge, for plaintiff in error.
I. The Circuit Judge erred in excluding the evidence offered to show that Kingman never had any estate in the premises.
1. The acceptance by Holley of Kingman‘s quit-claim deed-poll to him, did not estop him, or those claiming under him, from showing that Kingman had no title. An estoppel by acceptance of possession is only in pais, and therefore only applies to a lessee or other grantee, who is under obligation to restore the possession. (Co. Littleton, 352, a; Watkins vs. Holman, 16 Peters, 25; Small vs. Proctor, 15 Mass. R. 499; Osterhout vs. Shoemaker, 3 Hill, 518.)
2. There can be no estoppel for want of mutuality; Kingman himself would not have been estopped by his quit-claim deed from showing that no title passed by it. (Jackson vs. Hubbell, 1 Cowen. 616; Jackson vs. Bradford, 4 Wend., 622; Jackson vs. Waldron, 13 Wend., 178.)
3. His widow would not be estopped, even if he had covenanted, and therefore she cannot estop the grantee. (2 Smith‘s Leading Cases, p. 438; Jewell vs. Harrington, 19 Wend., 471; Gaunt vs. Wainman, 3 Bing., N. C. 69.)
II. The Circuit Judge erred in excluding the evidence offered to shew that Kingman had an estate for years, or some other estate not of inheritance.
1. The cases relied upon on the other side, were cases where the offers were to shew no title in the husband, not to
2. There is no estoppel where an interest passes; in other words, it may always be shewn that a less estate passed than the estate mentioned in the deed, although it be an indenture. (Treport‘s Case, 6 Rep. 146; 2 William‘s Saunder‘s 418 note 1; 2 Smith‘s Leading Cases 438, 457).
III. But the foundation of the argument to prove an estoppel, i. e. in the words of the Circuit Judge, that “by the deed to Holley, Kingman assumed to convey a fee,” wholly fails in the present case.
1. The deed is a mere quit claim and release, and therefore only purports to convey the right that the grantor had, and for that reason never could operate as an estoppel. (Right vs. Bucknell, 2 B. and Ald. 278.) At most, the deed merely affirms that Kingman was entitled to a fee, or some other estate, and there could be no estoppel from such an uncertain recital if it had been made expressly. (Right vs. Bucknell, ubi supra.)
2. If there ever were any doubt of this point, there can be none since the provisions of the Revised Statutes. (
3. The deed, therefore, from Kingman to Holley, was intended and assumed to pass whatever estate and interest Kingman had without defining it, and must be read as if it had expressly so stated its object.
N. Hill, Jr., for defendant in error.
I. The actual possession and use of the premises by the plaintiff‘s husband, claiming to be owner, and building the “Erie Mill‘s” thereon, proved such an estate in the husband as entitles her to dower. (Bowne vs. Potter, 17 Wend. 164; Carpenter vs. Weeks, 2 Hill, 341; Sherwood vs. Vandenburgh, do. 303; Jackson vs. Walter, 5 Cow. 301.)
II. The Circuit Judge correctly ruled that the defendant
Wright, J. On the trial, at the Circuit, the marriage of the plaintiff below with George G. Kingman, and the death of the latter, were admitted; and when the plaintiff rested her cause, she had prima facie established a seizin in fee of her husband, in his lifetime, in the lands from which dower was demanded. For this purpose, it was sufficient to shew his actual possession of the premises, claiming as owner. This is presumptive evidence of seizin, and sufficient until the contrary appears. (2 Philips evidence 282; 2 John R. 123, 5 Cowen 301.) But she went further, shewing a quit claim or release of the premises from her husband to S. J. Holley, and from Holley and others by successive releases to the landlord of the defendant. To rebut the presumption of seizin, arising from this evidence, the defendant offered to shew affirmatively that Kingman never had any title to the premises, or that, at most, he had but a leasehold estate, of which his wife was not dowable. The Circuit Judge rejected this evidence, and decided that as Kingman, when in possession, had by his deed to Holley, assumed to convey a fee, and as the defendant held under that deed he was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable, and that upon the evidence given, the plaintiff was entitled to a verdict.
I am of opinion that it will be difficult to rest this decision upon sound principle, or to reconcile it with the doctrine of estoppels, as generally understood and expounded by the Courts; although I am aware that there are several cases in our own Courts, that hold that a grantee of the husband, is estopped from denying his seizin in an action of dower
If the grantee, in fee is estopped from denying the seizin of his grantor, a uniform and invariable application should be given to the rules. Indeed, the reason is not so strong for applying it in dower cases (in which only it has been fully applied) as in cases arising immediately between grantor and grantee, or those claiming under conveyances from the grantor. If the grantee, therefore, is invariably estopped, the grantor, also, is concluded; for it is a principle of the law of estoppels that they must be mutual. But, I am not aware that it has been latterly doubted, that a grantor who conveys, or releases, without interest in the lands conveyed or released, may not show that he had no title to pass by his conveyance; unless, in the conveyance itself, by way of recital or otherwise, he represents himself to be the owner of the premises, or having some particular interest therein, which it would be fraudulent to permit him to gainsay or deny. The recital, in a conveyance with certainty of a particular fact forming an inducement for the contract, will bind the grantor, but otherwise there is no estoppel. General words will not have this effect. When a grantor conveys, without title, but with covenant of warranty, he will be concluded, and an after acquired estate will pass to the grantee,
If the grantor, then, might shew that no title passed by his quit claim, and recover the land in opposition to it, why should the mouth of his grantee be closed from denying that he received an estate in fee from him, or that, indeed, any title passed by his conveyance? Apply the rule of mutuality, and it is impossible to assign a valid reason. Both parties must be bound, or intended to be, else neither is concluded. There can be no soundness in the principle of estopping a grantee from shewing that no interest passed to him by the deed of the grantor, while the latter is permitted to shew it. But, it may be further observed, that this was an action for dower brought by Kingman‘s widow, and had Kingman conveyed the premises to Holley, with covenant of warranty, and thereby, by the doctrine of equitable estoppel, concluded himself from denying that a title passed by his deed, the widow could not have been affected. His covenant could not have estopped her. She would have been neither a party nor privy, but a stranger to the conveyance, claiming by paramount title. She would not be concluded if the grantor was, and by the rule of mutuality, as against a stranger, the grantee should not be. In the case of Gaunt vs. Wainman, (3 Bing. N. C. 69,) the tenant was permitted to shew the land to be leasehold, although it was set forth as freehold in the deed to himself which was produced at the trial. Tindall, C. J. said, that “if an estoppel existed it must of necessity be mutual; but that it could not be contended that if a husband conveyed freehold as leasehold, his widow would be concluded from shewing the real nature of the estate;” and he therefore held that the same right existed in the tenant. In the case under consideration the defendant below proposed to
It is contended that the grantee is concluded by acceptance of the deed. But, waiving the doctrine of mutuality, this cannot be, unless there be an estate which has actually passed to the grantee by it, co-extensive with its description in the conveyance. The mere acceptance of a deed-poll, when no interest actually passes by it, surely cannot conclude the party accepting. Such a conclusion would be totally irreconcilable with every principle of the law of estoppel in pais. Lord Coke, in treating of estoppels in pais, includes that “by acceptance of an estate,” but he distinctly illustrates his meaning, by an example which he gives of a case put by Littleton, viz: of a common law assurance by feoffment without writing accompanying it. Such an assurance operated on the possession, and if correctly pursued always passed a freehold or fee simple to the feoffee. But in the case of a conveyance by grant, bargain and sale or release, in which it is never necessary that actual possession should accompany the deed, the very point is whether an estate existed in the grantor, and
It was intimated in the case of Springstein vs. Schermerhorn, (12 John R. 363) that Coke Litt. 47, b. was an authority to shew that a grantee generally, under any form of conveyance, was concluded from denying the title of his grantor. But the doctrine is far from being sustained by the authority. It is this, “that if a man takes a lease for years by indenture
Chief Justice Nelson, in the case of the Welland Canal Company vs. Hathaway, (8 Wend. 483,) defined the doctrine of an estoppel in pais as follows: “As a general rule, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.” He adds that the party will be concluded “when in good conscience and honest dealing he ought not to be permitted to gainsay” his acts or admissions. Bronson, J., in Dezell vs. Odell, (3 Hill 225) adopts this definition with approbation, and adds, “A party is only concluded against shewing the truth, or asserting his legal right, when that would have the effect of doing a wrong through his means to some third person.” Under such circumstances, Justice Cowen remarks, in the latter case, “for the prevention of fraud, the law holds the act or admission to be conclusive.” It must, however, have been acted upon by the other party. The party who accepts the deed in fee of a grantor having no title or a less estate than he conveys, performs no act expressly designed to influence and influencing the conduct of the latter to his injury; nor does he make any admission which, “in good conscience and honest dealing, he ought not to be permitted to gainsay.” The fraud, if any there be, is on the part of the grantor, and the injury will fall solely upon the grantee, unless he be permitted to shew the truth. There is no relation existing between the grantee in fee and his grantor, as will raise even an implied obligation on the part of the former against a denial of the title and estate
I am of the opinion that the judgment of the Supreme Court should be reversed, and am content to place my vote for reversal on the distinct ground, that in an action for dower the grantee in fee of the husband is not concluded from affirmatively controverting the seizin of the latter. This is the law of England and of Massachusetts, and if an opposite rule has heretofore prevailed in this State, it is not too late to correct the error. Where property has been acquired, or rights matured, and exist, under an erroneous decision of the Courts, insomuch that irreparable mischief and injury must necessarily result from its overthrow, the maxim of stare decisis should prevail. But this is not one of those errors, from the correction of which injurious consequences may follow.
Jewett, Ch. J. The question to be decided in this case is, whether it was competent for the defendant to show, that Kingman never had any estate of inheritance in the premises. The Judge decided that as Kingman, when in possession had by his deed to Holley, assumed to convey in fee, and as the defendant held under that deed, he was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable.
It cannot be denied, but that the decision of the Judge on the trial is in conformity with the principles settled by a series of cases determined by the Supreme Court, from Bancroft vs. White, (1 Caines 185) to Sherwood vs. Vandenburgh. (2 Hill 303.) In the latter case, however, the late Mr. Justice Cowen put his opinion upon the ground of the authorities,
As defined in the books, “an estoppel is when a man is concluded by his own act or acceptance, to say the truth,” of which there are three kinds. By matter of record, by deed, and by matter of pais. The estoppel which the plaintiff claims in this case arises by matter in pais, if at all; that species arises, by livery, by entry, by acceptance of rent, by partition, and by acceptance of an estate. (Co. Litt. 666, 667.)
The principle in respect to that, which arises by an acceptance of an estate, is, that a man shall not be permitted, during his possession of premises, to dispute the title of the landlord under whom he entered, and applies only in cases where the party accepting the estate is under some obligation, express or implied, that he will at some time or in some event surrender the possession. “The grantee in fee, is under no such obligation. He does not receive the possession under any contract express or implied that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and does him no wrong when he treats him as an utter stranger to the title.”
The deed from Kingman to Holley was a mere quit claim, deed-poll, of one part, signed by Kingman only. Therefore, no one at common law, would be bound by it, but he, and it would not work an estoppel against the grantee, and I think not as against the grantor. (Co. Litt. 47, 61, Shep. Touch. 1 Am. Ed. 53, Right vs. Bucknell, 2 Barn and Adol. 278.) At the common law, all the parts of a deed indented in judgment of law made but one deed, and every part was of as
The argument on the side of the plaintiff is that Kingman assumed to convey a fee; and that as the defendant held under that deed, he was bound by that assumption. This, I think is founded upon a mistake of fact as well as of law. I have already remarked that the deed is merely a quit claim deed-poll; and therefore, upon its face and by its terms, it only purports to convey whatever interest in the premises the grantor then had. It does not affirm that he had any. How then can the grantor be supposed conclusively to admit that he had? If the admission should be co-extensive with the grant, it would be but conditional; that is, that if the grantor had any right or interest, which passed by his deed it vested in Holley the grantee.
And now, by
And again, by
Now Kingman himself would not have been estopped by his deed to Holley from showing that no title passed by it, on the ground that it contains no covenant of warranty; an after acquired estate by a grantor passes to his previous grantee by the rule of estoppel, only when there are such covenants of warranty, and then to avoid circuity of action. (Jackson vs. Hubbell, 1 Cowen 616; Jackson vs. Bradford, 4 Wend. 622; Jackson vs. Waldron, 13 Wend. 178.)
The plaintiff could not claim any thing by the rule of estoppel, in respect to the deed executed by her husband to Holley. She is a stranger to it; her right to dower rests upon the title or estate which her husband acquired prior to his deed to Holley, and is derivable under his grantor. This would be a sufficient reason why she could not estop the grantee of her hus-
The plaintiff is not entitled to dower in any other lands than in which her husband, during the marriage, was seized of an estate of inheritance; and I think it clear that when she claims dower, the defendant is at liberty to show in his defence that her husband was not, during the marriage, seized of such an estate. (Gaunt vs. Wainman, 3 Bing. N. C. 69.)
I am therefore of opinion that the judgment should be reversed, and that a venire de novo should be awarded by the Supreme Court, with costs, to abide the event.
Ruggles, Jones, Johnson and Gray, Js., concurred in the result of the preceding opinions.
Bronson, J., dissenting. As to one-half of the Erie Mills, the defendant derived his title and possession from George G. Kingman, the plaintiff‘s husband; and still holds under that title. So long as he thus holds, he is estopped from denying the seizin of the husband, in an action brought by the widow to recover her dower. (Hitchcock v. Harrington, 6 John. 290; Collins v. Torry, 7 John. 278; Hitchcock v. Carpenter, 9 John. 344; Davis v. Darrow, 12 Wend. 65; Bowne v. Potter, 17 Wend. 164; Sherwood v. Vandenburgh, 2 Hill 303.) Questionable as I think this doctrine was at the first, (2 Hill 308, 3 Hill 518, 519,) it has prevailed too long in this State to be now overturned by a judicial decision. If there is any good reason for changing the rule, the change should be made by the Legislature, and not by the Courts.
In Maine and New Jersey the rule is the same as it is with us. (Kimball v. Kimball, 2 Greenl. 226; Nason v. Allen, 6 id. 243; Hains v. Gardner, 1 Fairf. 383; Hamblin v. Bank of Cumberland, 19 Maine, (1 Appleton) 66; English v. Wright, Coxe (N. J.) Rep. 437.) In Massachusetts it is the other way. (Small v. Procter, 15 Mass. 495.)
So long as those claiming under the husband have not been disturbed in the enjoyment of the property, there is no very
This writ of error has, I presume, been brought in consequence of the opinion which had been expressed by Mr. Justice Cowen and myself, and which opinion I still entertain, that originally the doctrine of estoppel was improperly applied to this class of cases. (Sherwood vs. Vandenburgh, 2 Hill 303-9; Osterhout v. Shoemaker, 3 id. 518-19.) But it will be seen that neither of us felt at liberty to depart from the rule as it had been settled, nor do I feel so now. After an erroneous decision touching rights of property has been followed thirty or forty years, or even a much less time, the Courts cannot retrace their steps without committing a new error nearly as great as the one at the first.
The defendant‘s counsel places great reliance upon a remark of Mr. Justice Cowen, to the effect, that although the point was too firmly established to be revised by the Supreme Court, it might still be a fit question for review in the Court of Errors. There was, I think, a good deal of irony in that remark. Surely the learned Judge did not intend to be understood that what was settled law in one Court, was not also good law in all the other Courts of the State; that a Justice of the Supreme Court, when sitting in his own Court, was bound to decide one way, and when sitting in the Court of Errors, was at liberty to decide the other way. The thing is preposterous. The remark in question was made concerning a Court which not only corrected erroneous decisions, but sometimes took the liberty of reforming the law itself, where it was supposed to
Gardiner, J., having been engaged professionally in the cause, gave no opinion.
Judgment reversed, and venire de novo awarded.