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. Carpentor, 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, 6id. 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 *Page 260 good reason for allowing them to defeat the widow's claim to dower, by setting up an outstanding title, which may never be asserted; and the current of adjudication in this State has not carried the estoppel beyond cases of that description. There is, I admit, no principle upon which the estoppel can be carried another step, and applied to a case where the husband's grantee has been obliged to purchase in a good outstanding title for the purpose of protecting his possession; and if the case of Bowne v. Potter, (17 Wend. 164,) must be considered as going that length, I agree that it cannot be supported. But there is no such question in this case.
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 308-9; 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 *Page 261 need improvement. I claim no such prerogative. I am of opinion that the judgment of the Supreme Court should be affirmed.
GARDINER, J., having been engaged professionally in the cause, gave no opinion.
Judgment reversed, and venire de novo awarded.