Weeden has conveyed the same land by warranty deeds to two persons, and the question is, who is to hold it. It is not the case of a grantor having title and conveying land to one, and afterwards fraudulently conveying it to another, who buys itbona fide, and without any notice of the former deed. Such a case is governed by principles of law already well settled. In this case, the grantor, having no title, conveys the land to one, and afterwards, having acquired title, conveys it to another, both bona fide and for consideration, and no charge is made as to the honesty of the grantor. It was a mistake of boundaries. And there is no question as to the remedy of the grantees against the grantor on his warranties. But it is contended that if a person sells land with warranty, *Page 607 to which he at the time has no title, if he afterwards acquire title it enures to his grantee by virtue of the warranty, and that not only the grantor and his heirs, but all subsequent grantees of his are estopped from claiming it, independent of all questions of registry or notice.
Is this an equitable application of the doctrine of estoppel? Estoppels, by matter of record or judgments, are founded on public policy, that there may be an end of strife. Other estoppels seem to be founded on one of the two following considerations: First, that when a person has made a declaration on the faith of which another has expended his money or labor, or acted to his damage, the person who has made the declaration shall not be permitted to deny the truth of it. Secondly, to prevent litigation and circuity of action, that if he has conveyed with full warranty land he does not own, he or his heirs shall not be permitted to claim the land by an after-acquired title, because his grantee could immediately sue on his warranty for damages (or on the old warrantia chartae for equal land), and so a second lawsuit is saved, by allowing the estoppel in the first. In order, however, to have this effect, the grantee must be entitled to recover on the warranty, otherwise there would be no estoppel on this ground. Comstock v. Smith, 13 Pick. 119.
But both these grounds of estoppel may be united in the same case. So in deeds, where the deed is so drawn as to assert the title of the grantor to the land, he and his heirs may be estopped by this declaration, and this may be sufficient, even if the deed contain no covenants whatever.
It is not necessary for the purposes of this case to consider how far the ordinary warranties in quitclaim deeds are held to operate to estop the grantor. Comstock v. Smith, 13 Pick. 119; Trull v. Eastman, 3 Met. 121; Sweet v. Green, 1 Paige, 473.
Can the estoppel be maintained against the assigns of Weeden on either of these grounds in the present case, where the grantor has innocently conveyed the same land to two grantees equally innocent, and where the contest is between the two grantees? I think not. If the suit were between the grantor and his grantee the case would be very different.
If it is alleged that the first grantee has relied on the declaration *Page 608 in his deed and paid for the land, so equally has the second grantee. If it is alleged that by holding that the grantor and his assigns under the second deed are estopped from setting up any title against the first deed, a suit on the warranty is prevented, and so circuity of action avoided, — it is plain that this ground cannot be maintained, because another lawsuit is not prevented; it is merely left to the second grantee. The spirit of the rules does not seem to apply to such a case. Both of these parties have equally relied on the grantor's declaration: one of the two is to be left to the luxury of a lawsuit; now where is the equity of the case? Under our system of registry, which to some extent takes the place of the ancient ceremonies of delivery of seisin and open possession, the first grantee in this case could have ascertained by examination of the records whether Weeden or any of the mesne conveyancers had a good title to the land; and if he found no title there, or anything to put him on his guard, could have required Weeden, or the person of whom he was immediately purchasing, to satisfy or secure him.
The second grantee, going to the records would find that Weeden at a certain date had acquired the title and had not conveyed it away since that date. Is it reasonable to require him to examine further, so far as relates to his acquiring whatever title Weeden had at that date?
On the other ground he would be required to examine whether his grantor had not conveyed away the land before he bought it; and so on as to every preceding grantor indefinitely. And in case of a strip of land on the border of a lot (which is the present case) it might involve an examination of the title to all the surrounding land, and no one would be safe without it.
In importing the doctrine of estoppel from England, not only has the question of its adaptation to our situation and circumstances, in some of its applications, been singularly overlooked, but as far as warranties are concerned, many decisions here have carried it to an extent not authorized by the old English cases.
England has no general record system. Fines and common recoveries were matters of record, and so were presumed of public notoriety; and if the conusor in the fine, or the tenant to the precipe in the recovery had a freehold, he might pass a fee. And a feoffment was presumed to be of public notoriety, and of such *Page 609 effect that if the feoffor had any title whatever, or possession, tortious or otherwise, he could pass a fee, though he had none himself. Every purchaser under such a system must examine the evidence of title in the possession of the vendor, or must trust to his covenants for title.
So far as the vendor and his heirs are held to be estopped by the warranty, it is perfectly just. But when it is attempted to apply it to the assigns of the grantor who have purchasedbona fide without notice, its justice may well be questioned. And many of the decisions seem to be based on a complete misunderstanding of the law as laid down by Lord Coke, and of the distinction made in the old law between a rebutter and an estoppel. Lord Coke, in the passage so often cited (265 a, *457, 2 Thomas's Coke, 537), says: "If there be a warranty annexed to the release then the son shall be barred. For albeit the release cannot bar the right for the cause aforesaid, yet the warranty may rebut and bar him and his heirs of a future right which was not in him at that time; and the reason (whichin all cases is to be sought out) wherefore a warranty, being a covenant real, should bar a future right, is for avoiding a circuity of action (which is not favored in law); as he that made the warranty should recover the land against the terre tenant, and he by force of the warranty to have as much in value against the same person." And see 2 Preston on Abstracts, 212.
Now this is the old law, founded on reason, and of course none the worse for being old. But the true estoppel bound not only the parties, but "privies in blood, as the heir; privies in estate, as the feoffee, lessee, c.; privies in law, as the lord by escheat; tenant by the curtesy, tenant in dower, the incumbent of a benefice, and others that come in by act in law or in the post, shall be barred and take advantage of estoppels; and a rebutter is a kind of estoppel." Coke, 352 a, *431; 3 Thomas's Coke, 467. But this estoppel applied in the old law only to fines, common recoveries, judgments, and feoffments, which, as we have said, were of presumed notoriety; and to leases, but not to any conveyances which originated under the statute of uses, such as grant, lease and release, bargain and sale, c. In leases, by which title such an extent of land is held in England, there is a privity both of contract and of estate. So also there might have been in other conveyances under the old system of subinfeudation *Page 610 in England. But there is certainly no privity of estate between this plaintiff and this defendant. They do indeed claim under the same grantor by deed poll, and some of the authorities do speak of a privity of estate between a grantor and his grantee, although where the whole estate passes from the grantor by his deed, and there is no subinfeudation, rent, or other reservation, it does not seem to be very applicable. Coke, *271 a, *506; 2 Thomas's Coke, 597; Gardner v. Greene, 5 R.I. 104; Thomas v. Kelly, 3 Jones, 375; Sparrow v. Kingman, 2 N.Y. 242. InTaylor v. Needham, 2 Taunt. 279, it is laid down that he who takes an estate under a deed is privy in estate, but this was a case of a lease. In ascertaining the weight of authority upon the point now before us, we must of course leave out of consideration, 1st. All the English cases they having no record system; 2d. All the American cases upon leases; 3d. All American cases which concerned only the grantor and heirs; and 4th. All American cases where, although assigns were held bound, the question of the effect of registry laws was not raised. It is believed that a large part of the English cases so often cited, where assigns are held estopped, were cases of the classes we have referred to, namely, feoffment, fine, and common recovery, which being matters of record or presumed public notoriety were, from public policy, held to be known to all persons; or secondly, and much the largest portion, cases of leases in which there is a privity of contract and a privity of estate also. Of the cases most frequently cited, Rawlyn's case, 4 Coke, 52, was a case of a lease; Doe ex dem. Christmas v. Oliver, 5 M. R. 202, was a case of a fine; Trevivian v. Lawrence, 1 Salk. 276; S.C. 6 Mod. 256, was on a judgment, and the passages relating to a lease so often quoted from it were extra-judicial; Webb v.Austin, 7 M. G. 701; S.C. 8 Scott N.R. 419, was on a lease; Weale v. Lower, Pollexfen, 54, was on a fine of a contingent estate. The contingency happened. Held, the heir was bound. See also this case stated in 8 Scott N.R. 419, 446.Taylor v. Needham, 2 Taunt. 278, was on a lease; Sturgeon v. Wingfield, 15 M. W. 224, was on a lease. These cases show the origin of the doctrine, and they also show its proper application. And Chief Justice Marshall, in Blight's Lessee etal. v. Rochester, 7 Wheat, 535, observes that the doctrine of estoppel originated from the old English and *Page 611 feudal notions as to the relations of landlord and tenant, and the contract between them. This would be true of the doctrine of estoppel properly so called, but would not apply to rebutter by warranty. Many of the old authorities attribute a peculiar virtue to the indentation of the deed, holding that while a deed poll or lease poll did not estop, a lease or deed indented did. Co. Inst. 47 b, *415; 2 Thomas's Coke, 486; 2 Preston on Abstracts, 210, 212; Webb v. Austin, 8 Scott N.R. 419.
Strong language is used in some of the American cases as to the assigns as well as heirs of the grantor being estopped by a warranty. Douglas v. Scott, 5 Ohio, 194; Patterson v.Pease, Ibid. 190; Bank of Utica v. Mersereau, 3 Barb. Ch. 528. But it is to be observed that for this doctrine the Supreme Court of Ohio, in Douglas v. Scott, 5 Ohio, supra, chiefly refer to and quote the English case of Trevivian v. Lawrence, 1 Salk. 276, which was estoppel on a judgment, but where, as we have said, the court in their opinion extra-judicially give the instance of a lease as an illustration. This was good authority as far as concerned a true estoppel, but did not touch the question of warranty. Judge Story, in Carver v. Jackson, 4 Pet. 1, uses strong language as to an estoppel binding assigns, but that was a case of a recital in a deed; and he there quotes the same case of Trevivian v. Lawrence. This case in 4 Peters is one pretty generally cited as authority in cases where an estoppel is claimed by warranty. And when we examine the American cases we shall find that the largest number of them were decided on this assumed general doctrine, and that the question of its consistency with our registry laws was not even suggested. In a few cases the point was made and decided in favor of the estoppel; yet it does not appear to have been fully argued or to have received the consideration due to its importance. White v.Potter, 24 Pick. 324; Jarvis v. Aikens, 25 Vt. 635. In the latter case the court quote chiefly the case of Trevivian v.Lawrence, which, as we have said, was on a lease. On the other hand, in several American cases the point was made and decided according to the opinion I have felt compelled to adopt. Bivins v. Van Zandt, 15 Geo. 521; Way v. Arnold, 18 Geo. 181;Faircloth v. Jordan, 18 Geo. 350; Linsey v. Ranney, 22 Geo. 627; Gordon v. Beacham, 24 Geo. 150; Great Falls Co. v. Worster, 15 N.H. 452; and see Grosvenor v. Mowry,33 Ill. 331. *Page 612
So far, therefore, as the weight of authority is concerned, I cannot consider the matter as so settled as to prevent a court from deciding the question upon its own opinion of its merits. The doctrine of estoppel is itself founded in justice, but the contradictory decisions, conceits, and quibbles, as to indenture, mutuality, c., connected with it, constitute a just reproach on the law as a science. And this seems to be a case where we might be justified in throwing aside these contradictory and inconsistent decisions, and going back to the first principles upon which the doctrine itself was founded, as set forth by Lord Coke in the passage we have quoted.
There is another view which seems to me to present the equity of the defendant's case in a strong light.
Suppose Weeden, having title, had conveyed to the plaintiff by deed not recorded, and subsequently had conveyed to the defendant by deed recorded, for good consideration and without notice. No one would dispute but that, under our recording laws, the defendant's title would be good against the plaintiff. And can it make the plaintiff's case any stronger if Weeden had no title when he conveyed to him? In the present case, Weeden did attempt to convey to the plaintiff, but he had nothing to convey, and the recording therefore could have no effect, because the same records would give the defendant notice that Weeden did not own the land. And it seems to me that, under our record system, the defendant is entitled to be looked upon in the same light as a bona fide purchaser without notice.
And which party ought equitably to be favored, — he who carelessly took a deed when his grantor had no title or possession, and without requiring of his grantor any evidence of his title, or he who bought of the grantor when the grantor was in possession and had a title which the records showed he had not conveyed away? Vigilantibus et non dormientibus jurasubveniunt.
And this seems to have been the view which the supreme courts of Illinois and New Hampshire had in their minds. In Grosvenor v. Mowry, 33 Ill. 331, the court say: "The subsequent title acquired by the grantor will enure by estoppel to the benefit of the grantee, and this for the purpose of avoiding circuity of action; and a subsequent purchaser from the mortgagor, under his after-acquired title, is also estopped, if he had notice." And the *Page 613 Supreme Court of New Hampshire, in Great Falls Co. v.Worster, 15 N.H. 412, say the estoppel is good "not only against the grantor and his heirs, but against purchasers under him, with notice." Both implying that without notice there would be no estoppel.
But there is another point, and an important one, in the present case. So far as relates to the covenants in Weeden's deed, those of seisin and right to convey are, of course, personal, and were broken as soon as made.
And as to the covenant of warranty, it is settled that, in order to run with the land, there must be an estate to support it; and where no estate passes, it does not run with the land, but is a mere personal covenant, on which only the first grantee could sue. Slater v. Rawson, 1 Met. 450; Platt on Cov. (s.p.) 525; Noke v. Auder, Cro. Eliz. 373; Comyn's Digest, Covenant, B, 3; Wheelock v. Thayer, 16 Pick. 68. So if evicted.Randolph's Adm'x v. Kinney, 3 Randolph, 396. It has been held, however, that possession gives a sufficient estate to carry the covenant. Fowler v. Policy, 2 Barb. 300; S.C. 6 Barb. 166. But, in the present case, the plaintiff has never had any possession for these covenants to run with, the defendant and his predecessors in title having always been in possession.
The first grantee, therefore, under whom the plaintiff claims, who took no estate, could very properly have his remedy on his covenants, but that remedy would not pass to his assignees, and quaere whether they would have a right to sue in his name.
It is claimed here that the defendant is estopped from setting up his title against the plaintiff. Now it will be found that most of the American cases (at least where any reason at all is given), as we think, misunderstanding Coke, rest the decisions in cases of estoppel by warranty, on the ground of its preventing circuity of action. Coke, 265 a, * 467; 2 Thomas's Coke, 537;Averill v. Wilson, 4 Barb. 184; Fairbanks v. Williamson, 7 Greenl. 96; Buckingham's Lessee v. Hanna, 2 Ohio, 551;Jackson v. Waldron, 13 Wend. 178; Grosvenor v. Mowry,33 Ill. 331. The doctrine, if rested on this ground, evidently cannot apply to the present case. Could either the plaintiff or defendant maintain any action on these covenants against each other? If not, then there is no circuity of action in the present case. And so far as *Page 614 concerns Weeden, the grantor of both, it is only a question whether the plaintiff or defendant shall have a suit against him.
A large number of the American cases attribute to the warranty the effect of actually passing the estate. On this ground, if the grantee recovered damages, and the grantor afterwards purchased the land, the grantee would get both land and damages; Bank of Utica v. Mersereau, 3 Barb. Ch. 571; and the grantor, after suit commenced, and the land had fallen in value, might purchase.
Some of the inconsistencies and absurdities of the doctrine as often applied are well exposed in Buckingham v. Hanna, 2 Ohio, 551, 557, and by Senator Tracy in his opinion in Jackson v. Waldron, 13 Wend. 178; and in Wark v. Willard, 13 N.H. 389, although the court did apply the doctrine in that case, they go on to say: "The doctrine of estoppel is based entirely on equitable considerations, and was adopted with a view to the promotion of the ends of justice. If the reason for the application of the principle should plainly fail in a particular case; if plain injustice would be the result of its application, I am not prepared to say the court would in any such case feel obliged to apply the rule in manifest violation of the purposes of its adoption. In the adoption and application of the doctrine of estoppel, it is manifest that courts have looked beyond the mere forms of conveyance, sought for substantial justice and the means of its promotion, and in a large class of cases found those means in the very convenient principle of estoppel. I am not aware that the principle of estoppel has ever been applied in a case in which the estoppel has been set up in virtue of a conveyance with warranty of him who afterwards received only a trust estate in the land attempted to be conveyed by him. In such case there would be clearly wanting the great principle of equity, which so manifestly lies at the foundation of the doctrine of estoppel; and I think the court would struggle hard against the application of the principle in a case in which such clear injustice would be the result."
In the case of a contingent estate attempted to be conveyed by deed with warranty, the grantee would have to look back upon the records no farther than the instrument creating the estate. *Page 615
The advantages of our registration system have been so frittered away by our doctrines relating to gaining easements by adverse use, all of which is judicial legislation and of a very dangerous sort, that it seems desirable not to encroach upon it any farther.
APPENDIX II.
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Decision of a Judge of the Supreme Court, on an appeal to the School Commissioner.
APPEAL OF JOHN T. COTTRELL others.
An appeal lies to the Commissioner of Public Schools from the location of a school-house by a school committee, and the commissioner may confirm or reverse the same, or make a new location. Until his decision is confirmed by a judge of the Supreme Court, the commissioner may rehear the case. After such confirmation it is final in that case; and another location can only be made on entirely new proceedings. On a hearing before the judge, the judge will decide only points of law, all matters of fact being stated by the commissioner.
POTTER, J.
In this case the school committee of South Kingstown passed a vote fixing the location of the school-house in District No. 19, in that town, and on the 13th of November, 1872, John T. Cottrell and others appealed to the Commissioner of Public Schools, who, after a hearing, reversed the decision of the committee, and on the 24th of November, fixed the location on the Smith lot, so called, and subsequently on a request made by a district meeting, reviewed his decision and fixed the location upon the Pond lot. March 6, A.D. 1873, George T. Armstrong made a request to the commissioner that this decision should, as provided by the statute, be laid before one of the judges of the Supreme Court for his decision. H.T. Braman, Esq., attorney for Mr. Armstrong, makes this objection to the decision of the commissioner in the case, that it is not a case where the law gives any right of appeal; and that therefore the decision of the school committee was final and conclusive; and *Page 616 for this point he relies on the case of John H. Gardiner, A.D. 1858, reported in 4 R.I. 602.
The provision of the original act of 1847 was, that "any person conceiving himself aggrieved," c., might appeal. In 1857, Rev. Stat. chap. 68, § 1, it was provided as follows: "Any person aggrieved in consequence of any decision or doings of any school committee, district meeting, trustees, or in any other matter arising under this title, may appeal to the commissioner of public schools, who is hereby authorized and required to examine and decide the same without cost to the parties." In 1862, this was amended by chap. 412 of the Statutes, so as to read, "Any person may appeal," c. And by the new Digest, which took effect on the 2d day of December, 1872, the provision of the act of 1857 is restored. Gen. St. chap. 55, § 1.
The appeal was taken, and the first decision made while the act of 1862 was in force, but I do not consider the difference in the language of the acts material to the case.
The language in 1849 is, "Any person conceiving himself aggrieved;" in 1857 and 1872, Any person aggrieved;" and in 1862, "Any person may appeal," c.
It was always held that "no appeal would be entertained unless made by the party aggrieved," and was so stated in the notes to the first edition of the school laws published by our first commissioner, Hon. Henry Barnard, and which notes were several times reprinted with the laws by the express authority of the legislature.
The grounds of the argument, against the right of appeal in this case, could not of course be more ably stated than they are in the decision to which the counsel refers us.
And they are, 1st. That a grievance implies a wrong growing out of some infraction of law, — a litigated question of right: the present case involves no question of right, and therefore the appellant is not a party aggrieved; 2d. That the discretion is with the school committee: they have the power to decide it, and no wrong is done to any one, and no one has a right to complain or correct them; 3d. That a contrary construction would throw every discretionary power into the hands of the commissioner and the Supreme Court, which latter might be utterly unfit to exercise it. *Page 617
1st. Is the appellant a party aggrieved? He is a property holder in the district. The owners of that property have or may have children entitled to the privileges of the school. The distance of the location from his dwelling may seriously affect not only the convenience of sending to school, but the value of his property hereafter. If the money was a gift from some one to found a school, he might dictate the site and the conditions of his bounty, and no one could legally complain.
Here the whole money, as well what comes from state and town treasuries to pay the teacher, as this money to build the house, is derived from taxation, of which the appellant, it is presumed, pays his fair proportion. Some hundreds of years ago, perhaps, a deprivation of school privileges might not be considered a grievance; hardly so now; the appellant pays his proportion of the whole expenditure, and has a very material interest in the proper application of it.
2d. Does the fact that the school committee exercise a discretion in the choice of a site, prevent an appeal?
To apply such a doctrine to the school law would almost nullify the provision for appeal. There is hardly an exercise of power by the school committee or trustees which does not imply the exercise of discretion. The mere giving an order for payment of wages may perhaps be an exception; but the examining, and in some towns employing teachers, annulling of certificates, forming and changing school districts, supervision of taxes and building of houses, and the general regulation of the schools, all imply discretion. So with trustees; and so in many cases with the powers vested in school districts. If because they have the power to decide in the first place, and because they exercise a discretion in doing it, there can be no appeal, there would be hardly a case left for the exercise of such a right; and yet the language of the provision is very broad, and it would be difficult without a great deal of verbiage to make it more comprehensive.
If there was any doubt as to the meaning of the law, there is another principle of decision, which might be resorted to for aid. Where a law admits of different constructions, it is well settled that the usage under it and the practical construction of it for a series of years, is entitled to great weight, and sometimes may be decisive. *Page 618
In the present case the practice was uniform. The two first commissioners under the law were constantly engaged in examining appeals of this very sort, sometimes confirming and sometimes altering, or wholly reversing, decisions of committees as to sites of school-houses. The redistricting which the law rendered necessary in most of the towns led to frequent dissension, and the practice was continued under their successors and does not seem to have ever been questioned until 1858.
It would no doubt make the office of commissioner easier and more pleasant, to take away this power. The decision of such cases leads frequently to enmities, or charges of being subject to improper influence. School committees, however honest, may be subject to local influences; and the very knowledge that their determination was likely to be reviewed by a disinterested person might, in many cases, prevent an improper decision, and a commissioner would seldom reverse a decision of a committee unless he was satisfied that the public good or justice to individuals required it. And for the purpose of securing uniformity in the administration of the law, this provision is very important.
3d. The third objection is that the allowance of appeals would refer everything to the discretion of the commissioner and judge, the latter probably not much acquainted with the subject, and unfitted for the exercise of this power.
It was deemed essential to the success of a comparatively new system to prevent litigation if possible. A quarrel or a lawsuit in a school district is generally not long confined to the original parties. It spreads among all the families, it goes into the selection of teachers, and injures the discipline of the schools; and if the difficulty once takes the shape of a lawsuit, and the parties have expended money as well as temper upon it, it is still more difficult to settle.
Hence the provision for a cheap and speedy decision avoiding the delay and expense of a lawsuit, and as the commissioner would probably very often not be a lawyer, it was provided that he might resort to a judge for an opinion upon points of law.
The practical construction of the law from the beginning has been that the judge has nothing to do with deciding the facts in the case. See School Law, edition of 1857. Remarks, p. 55, and see also decision of Chief Justice Ames, in case of Emor *Page 619 Smith, 4 R.I. 590, 592, 594. The judge would not reverse the decision of a commissioner unless there appeared to be a legal objection to its validity.
Being therefore of opinion that the commissioner had jurisdiction on appeal, I see no reason for reversing his decision; but as until confirmed the commissioner might rehear if he deems it expedient, and after confirmation the decision would be final, and could not be reheard by him, and the location could not be changed without beginning proceedings again before the committee, I postpone a formal confirmation.
Being informed by the commissioner that there is no application for a rehearing, and that he sees no reason for revising his last decision, I hereby confirm the same.
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