The case presented by the bill of exceptions does not require us to determine either of the questions, learnedly argued at the bar : whether the doctrine of courts of equity, that a person witnessing or present at the execution of a conveyance of property by another is estopped afterwards to set up title in himself, can be applied to the title to real estate in an action at law; and whether the conduct of the demandant would have been sufficient to constitute such an estoppel, if the tenant had taken a conveyance upon the faith of it, and with no knowledge of the actual state of the title.
The tenant’s testimony was contradicted by the demandant’s ; ' and the jury have found that the tenant, at the time of the deed to him, had actual notice of a valid subsisting deed previously executed by his grantor to the plaintiff. Under such circumstances, the authorities are uniform that it could not be ruled as matter of law that the demandant, by the mere fact of having knowingly witnessed the deed to the tenant, was estopped to assert a title under the earlier deed to herself. Gray v. Bartlett, 20 Pick. 186. Parker v. Barker, 2 Met. 423. Page v. Wight, 14 Allen, 182. Carroll v. Manchester Lawrence Railroad, 111 Mass. 1. Odlin v. Gove, 41 N. H. 465. Hill v. Epley, 31 Penn. St. 331. Henshaw v. Bissell, 18 Wall. 255, 271. Ramsden v. Dyson, L. R. 1 H. L. 129. 1 Story Eq. Jur. §§ 385, 386.
Exceptions overruled.