Stimpson v. President of Thomaston Bank , 28 Me. 259 ( 1848 )

Tenney J.

— The plaintiff claims dower in a tract of land, described in her writ. Her right to be endowed in the premises, depends upon certain deeds, referred to in the case, and facts agreed by the parties, so far as the deeds and facts are competent evidence. The marriage, the death of the husband and demand that dower be assigned, are admitted as alleged in the writ. It is conceded by the tenants, that the husband of the plaintiff was seized during the coverture of a portion of the premises ; and by the plaintiff, that dower has been assigned to her therein ; but the seizin of the husband in the residue, is denied by the tenants.

To show that the husband of the plaintiff was seized of the whole tract, she introduced the joint deed of the husband and one Elizabeth Sawyer to the tenants, covering all the land in which dower is claimed, containing the usual covenants of seizin, that the premises were free of incumbrances, that they had good right to sell and convey the same, and that they would warrant and defend the same, against the lawful claims and demands of all persons. At the time of this conveyance, the husband occupied the premises, residing on a part not embraced in that portion, wherein the tenants have assigned dower, the said Elizabeth, the other grantor, at the same time living with him, and having her home in his family. The tenants introduced deeds, showing that the husband had title to the portion in which dower had been assigned, and that the other grantor had title to the residue of the premises. It is .admitted by the plaintiff, that the records of this county exhibit no evidence of any title of the husband to the portion last referred to. All this evidence offered by the tenants is objected to by the plaintiff, as being incompetent. The deed to the tenants from the husband and Elizabeth Sawyer was the only ■evidence of the title of the former; and hence it is contended ¡by the plaintiff, that the grantees therein are estopped to deny the affirmations contained in the deed under which alone they ■claim.

The tenants insist that the common law doctrine of estop;pel is not applicable, because the plaintiff is a stranger to that ■deed, and is not bound by any thing therein contained, so that ■she would be precluded from showing, that her husband was seized of a greater portion of that land described, than a moiety ; and that estoppels cannot be admitted unless they are mutual. “ Every estoppel ought to be reciprocal, that is, to ■'bind both parties; and this is the reason, that regularly a : stranger shall neither take advantage nor be bound by the estoppel.” Co. Litt. 352, a. And in accordance with the ¡principle contended for, would, seems to be the decision in the -case, Gaunt v. Wainman, 3 Bingham’s N. C. 69, where the ■plaintiff therein claimed dower in land conveyed to the defendant by her husband as- freehold, in which she was dowable, ■if it were freehold ; the defendant proved, that the premises •were leasehold, in which estate she was not entitled to dower. .It was objected that the tenant was estopped to offer this proof against the deed under which he claimed title; the verdict was entered against him with leave to move to set it aside. The Court say, “ I think this is a case, in which the defendant is not precluded from showing the real nature of the estate. According to Co. Litt. 352, a, “ Every estoppel ought to be reciprocal, that is, to bind both parties; and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel. It would be hard, if it were otherwise, and therefore the rule must be made absolute.” In Osterhout v. Shoemaker, in New York, 3 Hill, 518, the ground that the acceptance of a deed of real estate is a necessary estoppel, against denying the title of the grantor, at common law, is not defended, but the principle was, that if possession was obtained from the grantor under the deed, he might enforce the estoppel. And it was intimated in the same case, that the grantee of the husband is estopped from denying the widow’s title to dower, because the rule was so settled in that State, rather than by any sound principle. But in this State, the husband’s grantee has been estopped by the affirmation iu the deed under which he held, by the uniform current of decisions; the purchaser buying the property subject to dower, is to be regarded as taking his title in effect of the wife as well as the husband, and therefore, she is not a stranger, so far as to be precluded from enforcing the estoppel. In New York, and in other States, the doctrine, which has governed the Court, in this State, has been admitted to be true, and cases decided accordingly. Iu Bancroft v. White, 1 Caines, 185, it was held, that a person holding under conveyances in fee, deduced from the husband of the demandant in dower, is estopped from controverting the seizin of the husband. The same principle is recognized in Hitchcock v. Hutchinson, 6 Johns. R. 290, and affirmed iu Collins v. Torrey, 7 Johns. R. 278; in which the Court say, “ the tenant derives his title from and holds under the title of the husband of the demandant, as it existed during the coverture, and he therefore is not permitted to deny the seizin of the husband. Hitchcock v. Carpenter, 9 Johns. R. 344. This Court hold the same doctrine, in Kim-ball v. Kimball, 2 Greenl. 226. In Hains v. Gardner & al. 1 Fairf. 383, it is said, “ 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.” In the case of Nason v. Allen, 6 Greenl. 243, and in Smith v. Ingalls, 1 Shepl. 284, the husband was not in fact seized of an estate which would have entitled the widow to dower, but as ' the tenant in each case held under the husband alone, the Court applied the doctrine of estoppel to him.

It is contended, further, that the principle of estoppel does not apply, where any interest passes from the grantor to the grantee, but only where the grantor had nothing in the land. The cases referred to in support of this proposition are those, where a less estate was conveyed, than that, which might be inferred from the terms in the deed ; “ and one shall not plead my deed to a double purpose, as an estoppel, and passing - an interest to him also.” 5 Dane’s Ab. p. 383, art. 1, sect. 22. Though a lessee is estopped from showing that his lessor had no title to the premises demised, yet he may show, that he was entitled to a particular estate, which has expired. Neave v. Moss, 1 Bing. 380; Walton v. Waterhouse, 2 Wms. Saunders, 418 and notes. But it is believed, that this principle is not applicable to a deed purporting to be a conveyance in fee of two parcels of land, to one of which only the grantor had title or seizin. The deed in the case of Nason v. Allen, before cited, contained the description of a parcel of land to which the grantor had no seizin, and also of another parcel, where the right of dower was not resisted, and the grantee was held estopped to deny the seizin of the husband. And there cannot be a distinction between such a case, where two parcels of land are described, the grantor having title to one only, and the case, where the two parcels are embraced in one description. And in this respect, it is not material, whether the deed be from the demandant’s husband alone, or that of him and another jointly.

But it is insisted, for the tenants, that the deed under which they claim, and which is relied upon as conclusive evidence of seizin, in the grantors, by the plaintiff, does not estop the tenants from showing what portion of the land belonged to one grantor, and what portion to the other; that they have not admitted, by receiving that deed to them and claiming under it, that both the grantors were seized of the entire land described therein; that proof of the fact, that each was seized of a certain portion in severalty, which together made the whole, and not of the residue, is no contradiction of the terms of the deed, but is an explanation consistent therewith.

The common law doctrine touching estoppel, requires, that it must be certain to every intent, and not taken by argument or inference, and should be a precise affirmation of that, which maketh the estoppel. Co. Litt. 352, (a). If the affirmation be wanting in these particulars, the truth cannot be excluded. In the case at bar, the tenants, therefore, are not precluded from denying any affirmation not stated in the deed with certainty, directness and precision. But on the contrary they are not allowed to contradict the facts affirmed, or to weaken the force of them, by other evidence, if they are stated with certainty, directness and precision. The language of the covenant of seizin in the deed is, “ We do covenant with the said President, Directors and Company, their heirs and assigns, that we are lawfully seized in fee of the aforegranted premises.” The deed is joint, and the grantors profess to convey the whole land, and not each a distinct parcel. The covenant of seizin is also joint. Stimpson covenants, that he and Elizabeth Sawyer are both seized of the whole land ; and Elizabeth Sawyer does the same. An individual taking upon himself an obligation, or entering into a promise, covenants or promises in writing accordingly, is bound by such undertaking, and he cannot successfully resist his liability by the introduction of other proof, if inconsistent with the certain, direct and precise terms of the contract. If the covenants or provisions in the same terms, are intended to be made by two jointly, the only modification of the writing required, would be the use of the names of the two or the plural, instead’of the one or the singular. One would be as certain, direct and precise as the other; nothing could depend, upon argument. or inference in the construction of one more than the other. If two persons give a joint bill of sale of two distinct chattels, receive the consideration therefor and make delivery of the same, both vendors are equally bound to make good the damage, if the title to either should fail, though one might have been the exclusive owner of one, and the other of the other chattel before the sale, and it is not perceived that a covenant would not be held to be equally broad. If the tenants, at the time they took the deed, knowing the state of the title as it really was, and fearing that some defect existed in that portion which was claimed by Stimpson, and had required that the deed of the entire tract with all the covenants should be executed by both, it is not doubted, that the covenants would extend to the whole tract, and their supposed purpose be effected. If the conveyance had been simultaneously made by the several deeds of the grantors, each of a moiety in common and undivided, of the whole, the description and covenants being the same, no want of certainty, directness and precision would be manifest; the terms of conveyance, and the covenants would each 'have applied to the whole parcel, in common and undivided. Hamblin v. Bank of Cumberland, 19 Maine R. 66. And the force and effect of such a conveyance as has been supposed, would not be weakened, if the conveyance was by the joint deed of the two.

There is nothing in the facts agreed, tending to prove that if the two grantors were each seized of the whole premises, they were not seized of them in moieties, and therefore nothing to show, that the demandant’s husband was not seized of a moiety, instead of a less undivided share.

The tenants are supposed to have known the state of the title, and possession of the whole parcel as it was, or certainly as the public records disclosed it, at the time of the conveyance. They chose to take the joint deed of the two several owners, both of whom were in possession, so far that the title and seizin of each portion was in harmony; they received possession under the deed to them, and were seized according to the terms of the conveyance, and the covenant of seizin. They had the benefit of covenants of the two, for the whole, instead of each, for a separate portion. Under the decision in the case of Osterhaut v. Shoemaker, before cited, where it was held, that had possession gone with the deed, it might have been an estoppel, the ground taken by the plaintiff is sustained, though the correctness of the rule so broadly applied, as it has been in New York, is denied.

According to the agreement of the parties, there must be judgment for the plaintiff, for dower in an undivided moiety of the premises.