Fickett v. Dyer , 19 Me. 58 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

From the facts in the case, it is quite ap* parent, that the husband of the demandant was never seized of the premises, in which she claims dower. It was part of the estate, of which Moses Plummer died seized. By his last will and testament, he had authorized his estate to be sold by his executor. And the authority thus given was duly exercised. We are satisfied, that the residue of the estate, devised or be* queatbed to the husband of the demandant, was such portion of the proceeds of the sales made by the executor, as might not be wanted for the payment of the debts and legacies, if he thought proper to sell under the power. That power was plainly given, and was exercised, with the assent of the party interested in the residuum, although the validity of the power Was not made to depend upon such assent.

It is however urged, that Samuel Wells, under whom the tenant claims, having taken a deed from the husband, he and all who derived ride from him are estopped to deny the seigin of the husband. And the doctrine is well established that a party, holding from the husband, is estopped to deny a seizin thus derived. The cases of Kimball v. Kimball, 2 Greenl. 226, and of Nason v. Allen, 6 Greenl. 243, with the authorities there cited, upon which they are supported, turn upon this principle. In Hains v. Gardner & al. 1 Fairf. 383, the tenants were held estopped for the same reason, namely, that they held under the husband. They had also, through mesne conveyances the deed of another party; and it was a question much discussed, whether that party or the husband was in fact seized. The court however held the tenants estopped, because they or those under whom they claimed, had taken a deed of general warranty from the husband to whom the greater part of the consideration was paid. And it was regarded as a fact, having an important bearing upon the decision, that they accepted from the husband a deed containing a covenant of seizin.

The case before us differs essentially and materially from those cited. The tenant does not hold under the husband. He derived seizin and title from the executor of Plummer under his will. The husband did not claim to be seized. His deed contains no covenant of seizin. He passed only his right, title, and interest, whatever it might be. He recognizes the previous conveyance made by the executor under the will, as one of the considerations of his deed. His general covenant of warranty neither establishes nor admits his seizin. That would be sustained and made good by the previous valid title, which the grantee had received from the executor. It was manifestly taken as a matter of precaution by the purchaser, and ought not, in our judgment, upon the facts in the case, to prejudice bim, or those claiming under him.

Nonsuit confirmed.