Hains v. Gardner , 10 Me. 383 ( 1833 )

At the subsequent June term in this County, the opinion of the Court was delivered by

PAinas J.

The plaintiff demands dower in certain real estate which formerly belonged to her husband, and her right is not contested except so far as relates to a lot of nine acres, called the quarry lot. Her claim to dower in this tract is resisted on the ground that the husband was not seised thereof, during coverture. But the plaintiff contends that the tenants are es-topped to deny her husband’s seizin, inasmuch as they hold under a conveyance from him, containing all the usual covenants of seizin and warranty.

This Court has repeatedly recognized the principle, that a person holding under a conveyance in fee from the husband of the demandant in dower, is estopped from controverting the seizin of the husband. If, therefore, the tenant in this case holds under a deed from the plaintiff’s husband, executed subsequent to the marriage, all the facts in the agreed statement, tending to shew that the husband was not seised during coverture, are inadmissible as evidence, and can have no effect upon our decision.

The defendant’s title is either from John Mains, by deed of release and quit-claim of the 7th of December, 1827, or from Jonathan Mains, the plaintiff’s husband, by deed of warranty of the same date, or from both. The whole consideration paid for both deeds was twenty-four hundred dollars, seventeen hundred of which was paid to Jonathan as the consideration for his deed of warranty. This deed the tenants accepted and caused to be recorded. They have treated it as a valid conveyance, and it is not consistent with legal principles, or the whole tenor of their conduct in relation to this estate, for them now to repudiate it as inoperative.

The agreed statement does not shew who had the possession of the granted premises at the time of the conveyance, but it does shew who was understood to have the fee, the foundation and basis of the title. Jonathan must have understood it to have been in him, for he so covenanted. Thing and Hawkes must have so understood it, for they not only relied upon his covenants of seizin and warranty, but paid him largely therefor, while they took from John Hains, under whom they would now pretend solely to claim, a mere release. Why they thus did it is not for us to inquire. What facts existed to render it expedient for them to take a release only from John, and a deed of warranty from Jonathan, the case does not disclose. They elected so to do, and it is not sufficient for them now, in order to avoid an incident which the law attaches to the land, to disclaim all title under the conveyance. They are the tenants in possession. The widow finds them holding under a deed from her husband executed during coverture, in which deed the husband claimed to be seised by covenanting that he was so, and there is nothing in the case tending to shew that he was not, at the time of the conveyance, in actual possession.

We cannot consider this case as bearing any resemblance to Fox v. Widgery. In that case the instrument relied upon as an estoppel was a naked release, given without consideration, treated as of little or no value, and under which no relations of subordination could arise between the parties. In the case at bar, we find no evidence, of any omission or refusal on the part of the tenants or their grantors to hold under their deed from Jonathan, until the present claim of the demandant, and we think they cannot now be permitted to avoid the plaintiff’s demand by repudiating an estate or a title which they have accepted, and through the public records have held forth to the world as valid. Co. Litt. 352, a.

The cases of Kimball, v. Kimball, 2 Greenl. 226; Nason v. Allen, 6 Greenl. 243, and Bancroft v. White, 1 Caines’, 185, fully sustain this opinion. 4 Bent’s Comm. 38. Those who take an estate under a defective conveyance are estopped from denying its validity. Ripple v. Ripple, 1 Rawle, 386.

From such of the facts in the agreed statement as are admissible evidence in the case, we think the plaintiff is legally entitled to dower in the nine acres. But we have no evidence that there is any mine or quarry on the premises, although it is assumed as a fact in the argument, and the case is wholly destitute of proof that the mine or quarry, if any there be, was opened or wrought during the coverture. If such was the fact, it is incumbent on the plaintiff to shew it.