By the• Court,
Nelson,- Ch. J.
The first rule laid down by Lord Coke in respect to estoppels is, that they must be reciprocal : that is, bind both parties; and this is the reason,. he observes, that regularly, a stranger shall neither take advantage of nor be bound by an estoppel: privies in blood, as the heir; privies in estate, as feoffee, lessee, &c.; and privies in law,' as the lord by escheat, tenant by the curtesy, in
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dower, &c. shall be bound, and take advantage of estoppels, 2 Co. Litt. 476. It was resolved in
Ford v.
Grey, 1 Salk. 285, that a recital of a lease in a deed of release is good evidence of such lease against the releasor and those that claim under him ; but as to others it is riot, without proving there was such a deed and that it was lost or destroyed. 6 Mod. 44. 1 Saund. Pl. & Ev. 42, 43. 1 Gilb. Ev. 101. Now in this case the plaintiff Chloe is a
stranger to the deeds, the recitals in which are relied on to conclude the defendant. Assuming that he would be bound by the recital in the deed from Uriah Nash to Crosby, his grantor, as a privy in estate, yet it could only be in a case where the interest of Uriah Nash or those representing him were concerned. The recital would protect them from any liability on the covenants in the deed for an alleged breach by reason of an eviction under the claim of dower, the conveyance having been made subject to it. But the plaintiff Chloe is not a privy to the deed in any way; but a stranger, who had no interest or concern with it. Before an estoppel can be upheld here, the doctrine must be extended so as to operate not only upon
those who come in under the grantors, making the admissions in his deed ; but also
in favor of those under whom the grantor himself claims : in other words, the effect of the recital must be held to travel upwards, in favor of those through whom the title was derived, as well as downward to whom it had been conveyed or descended : for in this case the most that can be "said for the plaintiff is, that she sets up her right to dower from one under whom the grantor of the defendant holds. The above view is as applicable to the recital in the deed to the defendant as in that to his grantor, and goes to deny the conclusive effect of either, upon the ground of a technical estoppel. The court, therefore, erred in refusing to admit the evidence disproving the claim of the plaintiff, which seems, from the course of the trial, was conceded to have been
prima facie made out.
According to the fourth resolution in Ford v. Grey, the principle of which has been repeatedly recognized, 1 Phil. Ev. 356, 1 Stark. Ev. 358, 4 Binney, 231, 2 Lev. 108, 4 Peters, 84, the recital as between these parties, one of them
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being a stranger to the deed, would not be admissible evidence even of the facts therein admitted. The only way in which it might be available to the plaintiffs is, in case of proof of the loss of the primary evidence ; the recital, it seems, may then be used as secondary proof. 1 Salk. 286. 1 Saund. Pl. & Ev. 43. 1 Phil. Ev 356. Co. Litt, 684. 1 Stark. Ev. 319, n. Gilb. Ev. 101. In this case, there can be no doubt that, after a proper foundation laid, the recitals in the deed would afford evidence to prove a material fact, namely, that the defendant is in possession under a title derived from Samuel Nash; for then he would be estopped from denying the seizin of the husband.
Bowne v.
Potter, 17 Wendell, 164, and cases there cited. The recitals do not go fully that length, but they afford some evidence of the fact.
This view was not taken at the circuit by the judge, nor was the admission of the recitals urged by the counsel with reference to it. The authorities referred to in Bowne v. Potter show the proof necessary in this aspect of the case.
But slight evidence of seizin of the husband was given, and apparently no effort was made to prove that the defendant held under a title derived from him, that was subject to a right of dower; on the contrary, as I understand the facts, the defendant proposed to show affirmatively himself, that he derived a title mediately from the husband, by a conveyance in which the plaintiff joined, and which she duly acknowledged.
New trial granted ; costs to abide the event.