It is not pretended in this case, and indeed cannot be, that a widow is dowable out of the lands in which her husband had at no period during the coverture, any other estate than a reversion or remainder in fee, expectant upon the determination of an estate for life, or what is the same thing for this purpose, expectant upon the determination of an estate during widowhood. 2 Co. Inst. 301. There could be no livery to such a remainder-man or reversioner at common law; the livery to the particular tenant enuring to his benefit, and he deemed to be "entitled," rather than "seised," in the strict sense of that term. The reason given by Lord Coke why the wife shall not be endowed of a reversion "albeit it is within the word tenements," is, "because there was no seisin in deed or law of the freehold." Co. Lit. 32 a. As our statute gives dower only in "lands, tenements, and hereditaments, whereof the husband, or any other to his use, wasseised of an estate of inheritance, at any time during the coverture," and the husband of the complainant parted with all his interest in the farm, out of which she here seeks dower, long previous to the expiry of the life estate of his mother, and whilst he had only a remainder in it, it is evident, that the very ground of the complainant's claim, the seisin of her husband, of which her estate can be but the continuance, totally fails her. 1 Cruise, Dig. tit. Dower, p. 190.
Indeed, the ground taken for the complainant is not so much under the facts stated in the answer, that her husband really was seised during the coverture of this farm, as that the defendant, in consequence of having set up in defence a conveyance of the farm by the husband to Nicholas C. Northup with warranty of seisin, is, notwithstanding the actual existence of the life estate before and at the time of the conveyance, estopped to deny the fact of the seisin of the husband. *Page 109
It is true that cases can be found from Maine, New York, and New Jersey, and following their lead, quite probably from other states, affirming, that the grantee of a fee-simple by deed-poll with covenants of warranty, who takes possession under his deed and is not actually evicted, cannot deny the seisin of his grantor against the claim of the grantor's widow for dower, but is estopped to deny it, as we understand the cases, by the acceptance of the deed with warranty and by receiving and holding possession under it. Even if this were good law, we do not see how it would help the case of the complainant; for it nowhere appears in the bill or answer, or in any exhibit appended to either, that the respondent claims title or holds possession, even mediately, under the deed executed to Northup; the bill merely stating him to be in possession, "claiming to own and enjoy this farm against the rights of your oratrix," and the answer setting up the conveyance, in connection with the outstanding life-estate, as disentitling the complainant to dower, without advancing any claim of title, under the deed, whatever. For aught that we know, the respondent claims this farm by title paramount to the husband of the complainant, or under mortgages in which she has joined as relessor of dower; for we cannot infer, as the complainant would have us, in a case tried upon bill and answer, that the respondent claims under a title to a third person merely because he holds it up as a shield for his defence, when there is no averment of the claim either in bill or answer, and when, according to the view advanced by the complainant, it is the respondent's claiming and having received possession under a deed which makes the title conveyed by it of too little proof to protect him.
But the cases themselves, upon which this motion of estoppel is pretended, savour, we think, far more strongly of gallantry, than of law. Of course, a deed poll can never operate by way of estoppel by deed, against the grantee, for the simple reason that his seal is not to it; Co. Lit. 47 b, 363 b; nor, in consequence, as such an estoppel against the grantor; since, to exist at all, an estoppel of this sort must be mutual and reciprocal. Co. Lit. 352 a; Gaunt v. Wainman, 3 Bingh. N.C. 69; S.C. 32 Eng. C.L.R. 42; Small v. Proctor, 15 Mass. 495, *Page 110 499; Moore v. Eastman, 5 N.H. 490; Lansing v. Montgomery, 2 Johns. R. 382; Osterhaut v. Shoemaker, 3 Hill, 519;Sparrow v. King, 1 Comst. (Appeals) R. 248; Gardner v.Sharp, 4 Wn. C.C.R. 609; Miles v. Miles, 8 Watts Serg. 135; Bolling v. Mayor, 3 Rand. (Va.) R. 563; Candler v.Lunsford, 4 Dev. Bat. (N.C.) R. 407. It is equally well settled, that an estoppel in pais is created by the acceptance of possession under a deed, only when the deed is accepted in one of those relations which imply an obligation to return the possession, and a sort of allegiance to him under whom, or in subjection to whose interests, it is held; such as, in the relation of landlord and tenant, trustee and cestui que trust, mortgagor and mortgagee. Per Baldwin, J., Williston v.Watson, 3 Pet. 47, 48; Blight's Lessee v. Rochester, 7 Wheat. 548; Watkins v. Holman, 16 Pet. 53, 54. Even in one of these relations, as of landlord and tenant, it exists only when possession has been received under the lease, and does not continue after the landlord's title has determined, or the tenant has been either actually or constructively evicted. Doe v.Barton, 11 Ad. El. 307; S.C. 39 Eng. C.L.R. 99; Doe v.Smith, 4 M. S. 347; Doe v. Edwards, 5 Barn. Ad. 1065;Doe v. Mills, 2 Ad. El, 17; Doe v. Birchmore, 9 Ib. 662. It is an extension of such an estoppel quite beyond its reason, to apply it to the ordinary relation of grantor and grantee, where the latter, claiming by virtue of his own purchased right and having paid his money for his title, is under no obligation whatever to his grantor, or to the widow claiming by virtue of his grantor's seisin, in regard to it. As said by Mr. Justice Wilde, (Small v. Proctor, 15 Mass. 499,) "The grantee may be permitted to show that his grantor was not seised, as is every day permitted in actions of covenant."
Indeed, it would seem little short of an absurdity to hold, that a party receiving possession under a deed is equitably estopped, as long as his possession continues, to deny the seisin of his grantor, because, along with the possession, he took covenants of warranty to guard him, as far as damages might, against the contemplated possibility that his grantor might not ultimately prove to be entitled to that which he affected to convey. And see Smith v. Strong, 14 Pick. 148; Barker v. *Page 111 Talman, 2 Metc. 32; Osterhaut v. Shoemaker, 3 Hill, 519;Sparrow v. Kingman, 1 Comst. (Appeals) R. 252-254; Kenada v. Gardner, 3 Barb. Sup. Ct. R. 589. The claim to dower, here pretended, finds as little support in the theory as in the pleadings of this case, and the bill must be dismissed with costs.