The opinion of the Court was delivered by
Tenney J.Both parties claim under Benjamin Thompson, sen. The demandant by virtue of a levy of an execution issued upon a judgment, in a suit,, the basis of which was a bond to the Judge of Probate, executed by Benjamin Thompson, sen. and another as the sureties of one Ricker, the guardian of the demandant, dated Oct. 2, 1820; and the defendant by deeds dated June 15, and Nov. 14, 1820, both of the same land, excepting that the one of Nov. 14, embraced two acres more than the other, and both containing covenants of seizin and warranty. It is contended by the demandant, that the latter deed is an estoppel upon the defendant to say that ho was seized previously to the date thereof, and that the demandant is allowed as a creditor at that time to impeach the same deed as fraudulent against him, being a creditor by virtue of a bond.
It is well settled that a party shall not be allowed to deny a fact, clearly stated in his deed — and also that he shall not be permitted to prove he had no title to land by virtue of a deed, uuder which he holds, when it contains a covenant or recital inconsistent, with the proof offered. In cases of dower, the latter principle has been applied: the tenant has been estopped to deny the seizin of the demandant’s husband, when he has taken a deed from him containing a covenant of seizin, and when it appears he has relied upon that title. But in *240a claim for dower, it is not required to show a perfect title in the husband, seizin only being necessary. The same principle has extended to other cases. One has not been allowed to set up a title, derived from another previous to his own agreement to purchase of that other’s grantee, if the conveyance should be made to such grantee. Sales v. Smith, 12 Wendell, 57.
But denying and repudiating a title under which one holds, or refusing to be bound by a contract to hold under another made solemnly and with full understanding of all the circumstances, where rights have been acquired by others, by reason of such contract, is different from his supporting that title, and complying with his contract by other means, not inconsistent therewith. One may fortify an existing title, without putting it in jeopardy, if he do not prejudice the interests of others; and doing so, cannot originate rights in strangers, where there was nothing before on which they could rest. Claiming under one conveyance, and denying effect to another, where he has entered and enjoyed under the latter, is widely distinguished, from his claiming under two conveyances from the same grantor. In 4 Peters, 83, the Court say, “ It is laid down, that recitals of one deed in another bind parties. Technically, it operates as an estoppel, binding parties and privies, &c. It does not bind strangers, or those claiming by a title paramount to the deed; it does not bind persons, claiming by an adverse title, or persons claiming from the parties by title anterior to the reciting deed.” “ The grantee may be permitted to show that the grantor was not seized as is every day allowed in actions of covenant.” Small v. Procter, 15 Mass. R. 495. “ It is generally competent for the vendee to deny and disprove the seizin of the vendor.” Ham v. Ham, 2 Shep. 351. Covenants of seizin in this respect differ from covenants of warranty, the former do not prevent the grantor from setting up an after acquired paramount title in himself. Allen v. Sayward, 5 Greenl. 227. Otherwise in covenants of warranty, 12 Johns. 201; 13 Johns. 316. One is not estopped by accepting a deed of his own land, for this does not deny *241his former title, bu¿ may be done to silence adverse claims and to purchase his own quiet; “ and every estoppel ought to be a precise affirmation of that which maketh the estoppel.” Co. Litt. 52 a. “ One is not estopped when the thing is consistent with the record.” Com. Dig. (E. 3.) “If any interest pass, there shall be no estoppel.” Com. Dig. (a. 1,) (B.) (E. 2,) (E. 4,) (E. 8;) Co. Litt. 352 a., 45 a. It is a general rule, that when there is any thing for the warranty to operate upon, the doctrine of estoppel will not apply. Jackson & al. v. Hoffman, 9 Cowen, 271.
In the case at bar, the jury have found by their verdict, the question being submitted to them without objection, that the deed of June 15, was executed and delivered at the time it was dated' — that passed all the grantor’s title, and none was remaining in him, when he executed the probate bond, which is the origin and basis of the demandant’s claim. The defendant does not repudiate his deed of Nov. 14, but holds two acres by that alone, on which all the covenants therein must operate. Receiving this deed, interfered with no existing rights, is not and could not be a cause of complaint with any one; so far from it the demandant resorts to it as the foundation of his title to the land therein described. It gave no rights inconsistent with those established by the deed of June 15, so far as it embraced the same land, nor did it take away any; so far, it in no respect changed the relation of the parties. A stranger to the first deed, having on no principle, any authority to contest its validity, until after the title had wholly passed from the grantor, seeks to avail himself of a doctrine, which being denied him, takes away no interest, which in any manner had previously attached.
It is not perceived that the demandant is in any better situation than he would have been, if he had taken Benjamin Thompson, senior’s, deed under his own seal after the conveyance of June 15, and before that of Nov. 14, having notice of the first, deed. Such a deed as is supposed, to the demandant, would confer no rights till after the second deed to the defendant, and then the former could succeed to none, which his *242supposed grantor would not have possessed, so far as they relate to the seizin previous to Nov. 14. If the defendant is estopped to deny the seizin of his grantor previous to the deed of Nov. 14, in consequence of taking it, that estoppel could not operate to the advantage of the demandant any more than it would to that of the one whose interest he claims. Could the grantor say, after the 14th of November, that the defendant was precluded from saying the seizin was in himself after June 15th? If he should claim the benefit of this principle, would it not be an answer to him, that his deed of June 15th was an equal estoppel, to shut his mouth ? “ Estoppel against estoppel doth put the matter at large.” Co. Litt. 252 b. One, cannot maintain an action on a covenant of seizin by showing the seizin in himself; “the covenant of seizin extends only to guaranty the bargainee against any title existing in a third person, and which might defeat the estate granted.” Fitch v. Baldwin, 17 Johns. 161. One cannot allege seizin in himself after he has, by his own deed, parted with it. “ It would be contrary to. the established principles, that a grantor cannot by' his own actions or declarations defeat a deed, which he has before made to one, who is claiming and holding under him.” Barrett v. Thorndike, 1 Greenl. 79. “It would seem to be unjust, and contrary to the intent of the grantee, to affect his rights by his acceptance of a deed beyond the rights and interests which should actually pass by it.” Flagg v. Mann, 14 Pick. 482.
The error of the presiding Judge, complained of, was. in submitting to the jury the question in his instructions, whether the reason for taking the conveyance of Nov. 14, was for the purpose of carrying into effect the agreement as to the two additional acres, and whether that was honestly and fairly done without any fraudulent intent. They have answered in the affirmative by their general verdict, and we do not find, that the doctrine of estoppel has been applied in any case analogous to the present; and as the question of intention in executing a deed or release, has been considered by the Courts to be one for the jury, and not for them, where it would seem to be for *243the determination of the latter, with as much propriety as the one arising in this case, we do not feel authorized or required to extend the principle to suits not clearly within its legitimate operation. Fox & al. v. Widgery, 4 Greenl. 214.
On another ground, we think this verdict can be well sustained. The demandant’s title rests upon the assumption, that the deed to the defendant, of Nov. 14, was fraudulent as against him, and therefore void. If not fraudulent against him, he cannot contest its operation to convey the land to the defendant. Can he say that the deed which is void against him, admits him by its recitals and covenants to hold land in opposition to what is the truth ? Shall he say, the covenants of seizin allow him to come in, and when in, to deny the whole effect of that same covenant of seizin ? Is it for him, in this manner, to silence the voice, which honestly and fairly proclaims the title in the defendant? If he attempts to hold, solely, by showing a deed to be fraudulent, does not the very doctrine, which he invokes in his support, dislodge him from such a position ? Shall he say, a deed void entirely as against him, contains in it, that without which he has no pretence of title ? He cannot be permitted to defeat the deed for one purpose, and set it up for another. Crosby v. Chase, 5 Shep. 369. In any view, which we are able to take of the case, we see nothing which leads us to doubt that the verdict was properly returned for the defendant.
Judgment on the verdict.