Finn v. Sleight , 8 Barb. 401 ( 1850 )

By the Court, Willard, J.

The plaintiff in the first instance gave the requisite proof to entitle her to recover. She proved her marriage to William Finn, his seisin, during the coverture, under a deed to him of the premises, in fee simple, with full covenants of warranty and seisin, the death of the husband, and that the defendant was in possession claiming under a title derived from the husband in fee simple with full covenants of warranty and seisin. It was proved, however, that though the husband had a deed in fee of the premises, yet in truth his grantor was possessed only of a term for 999 years, subject to an annual rent, and that both he and the persons claiming under him had repeatedly recognized that lease. The important question in the case is whether the defendant, holding under a title derived from the husband, can be permitted to show that the latter was not seised of such estate as entitled the plaintiff to dower. The supreme court, in granting the last new trial, in truth decided that the defendant was estopped from controverting the seisin of the husband, and consequently that the plaintiff was entitled to recover. This was the settled doctrine of this court for above forty years. (Hitchcock v. Harrington, 6 John. 290. Collins v. Torry, 7 Id. 278. Hitchcock v. Carpenter, 9 Id. 344. Davis v Darrow, 12 Wend. 65. Bonner v. Potter, 17 Id. 164. Sherwood v. Vandenburgh, 2 Hill, 303.) In some of the above cases the grantee of the husband held under a warranty deed, and in others under a quit-claim only; but in all the latter was held to be estopped from proving, as against the widow, that the husband was not seised of such estate as entitled her to be endowed.

This doctrine has recently been discussed in the court of appeals, in the case of Sparrow v. Kingman, (1 Comst. 242,) and the former cases on this subject overruled. In that case the grantee of the husband claimed under a quit-claim deed, and the decision of the supreme court, in refusing evidence that he wras seised of a less estate was reversed, on the ground that the doctrine of estoppel on which all the prior cases rested, was inapplicable to such a case. Mr. Justice Wright and Ch. Justice Jewett reviewed all the preceding cases in this court, and showed that they are based upon an untenable foundation. Mr. Justice Bronson dissented, not upon the ground that the earlier cases were not a departure from correct principles—for he thought they were—but upon the principle of stare decisis. This doctrine had been questioned in our courts before. In Sherwood v. Vanderburgh, (2 Hill, 303, 308,) Mr. Justice Cowen, while following the earlier cases, expressed an opinion that the doctrine was a fit subject for the court of errors, where he intimated it should be reversed. He concedes that there is no difference in principle, between a tenant holding under a quit-claim and under a warranty deed. In Osterhout v. Shoemaker, (3 Hill, 518,) Mr. Justice Bronson remarked, that the cases which hold that in dower the grantee of the husband is estopped to deny the grantor’s title were to be followed because the rule had been so settled, and not because it rested on any sound principle.

Although in the case of Sparrow v. Kingman the grantee of the husband claimed under a quit-claim, deed, yet all the reasoning of the court is as applicable to a grantee under a full covenant warranty deed, as it is t.o a grantee under a quit-claim. If there is no estoppel in the one case, there can not be in the other. The wife is a stranger to the deed ; and as every estoppel must be reciprocal, (Co. Lit. 352 a,) it follows that the husband’s grantee is not estopped, in an action brought by the wife, from showing the truth with respect to the quantity of interest which the husband had in the estate of which she claims dower. This precise question has been decided by the English court of common pleas in the same way. (Gaunt v, Wainman, 3 Bing. N. C. 69.) In that case the defendant claimed under a conveyance from the husband’s assignees of a freehold estate, and the defendant was held not to be estopped from showing that the premises were merely leasehold. In Hill v. Hill, (4 Barb. S. C. Rep. 429.) Mr. Justice Parker speaks of Sparrow v. Kingman, as overruling the doctrine which held the grantee of the husband estopped, in an action of dower, from showing that the husband was not seised of an estate in fee. And the whole subject of estoppel was ably discussed by Mr. Justice Paige in Averill v. Wilson, (4 Barb. S. C. Rep. 180,) in accordance with the doctrine of Sparrow v. Kingman, (supra.)

As this was a verdict subject to the opinion of the court, with leave to turn it into a bill of exceptions, judgment must be given for the defendant, on the ground that the plaintiff’s husband was not shown to have been seised, during the coverture, of an estate of which she was dowable.

Judgment for the defendant.