The opinion of the court was delivered by
Williams, Ch. J.The question in this case is, whether the defendant could compel the plaintiffs, in this suit, to contest the title of Cary Clark ? If the defendant had offered, in defence, a deed from Cary Clark to himself, it is not disputed that any title, derived under such deed, would have enured to the benefit of the plaintiff, and the defendant would have been estopped to set up any such title in him'self. The doctrine of estoppel, as established by modern authority, is, that when a party has solemly admitted a fact, by deed, under his hand and seal, he is estopped, not only from disputing the deed itself, but every fact which it recites.' And when a party has had no opportunity to plead such es-toppel, and has not waived it by omitting to plead it,- he may avail himself of it, in evidence. If defendant had pleaded this title in Cary Clark, the estoppel might have been replied. Twambly, to whom the defendant conveyed, by deed of warranty, and the plaintiff, who claims from Twambly, could not be compelled to investigate nor prove a fact, admitted by the defendant in his deed, in any suit where the question might come up directly, incidentally or collaterally. It must be taken as true, as against this defendant, that Thomas Clark, the elder, had deeded the land in question to the defendant, and that the undivided half did not descend to Cary Clark. The argument, therefore, that Cary Clark could justly enter the premises, and cut the timber sued for, or direct the defendant, as his agent, or, any other person, to enter and cut the timber, wholly fails, as the defendant is not at liberty to assume, as true, the facts which he offered to prove. As it respects Cary Clark, or any other person acting under him, his want of title, or the title of the plaintiff, must have'been *161shown by other evidence; But it is to be supposed that the admission of the defendant, in his deed to Twambly, is true, and that such evidence does exist. In a suit with this defendant, his admission is plenary evidence of the fact, and the plaintiff could not be compelled to resort to any other evidence. The dictum read from Cruise’s digest, as found in the report of Ischam v. Morrice, Cro. Car. 109, would not sustain the defence, if it was sound. But, upon referring. to the case, as reported by Croke, it is found not to sustain the position laid down by Cruise.
The judgment of the county court is affirmed.