This is an action of ejectment to recover an undivided one-twelfth part of the lands described in the complaint. The defense is adverse possession.
It appears by the stipulation of the parties that "The plaintiff showed title in herself as one of the heirs at law of Martha Bradstreet, deceased, to an undivided one-twelfth of the premises in question, except as such title may have been defeated by the adverse holding of the defendant herein and his predecessors, or parted with by force of an agreement between W. Youmans, attorney for the Bradstreet heirs and Alexander Couse, dated March 5, 1875."
It appears that on the 2d day of January, 1874, one Alexander Couse was in possession of the lands in question, and that on that day the plaintiff, with others known as the Bradstreet heirs, brought actions through W. Youmans, their attorney, against him in ejectment for the lands in question; that thereafter and on the 5th day of March, 1875, an agreement was entered into between the parties by which the actions were settled and discontinued, he agreeing to purchase the interests of the plaintiffs in the premises at a stipulated *Page 394 price, giving his note therefor, and they agreeing to deliver him a deed therefor within ten days. This agreement was subsequently modified so as to provide that the deed should be delivered upon the payment of the note. The note, although long past due, has never been paid. It further appears that, on the 7th day of February, 1882, Alexander Couse quit-claimed the lands in question to his son, the defendant in this action, who thereupon entered into possession and now claims to hold the same adversely to the plaintiff.
The question thus presented for review is as to whether he can avail himself of that defense.
I shall not question the doctrine that one holding adversely and defending upon that ground, may purchase of a third person an outstanding title to support his own, whether he doubts the validity of his previous title or not, and that such purchase will not affect his right to defend under his claim of adverse possession; but a very different question is presented by the facts under consideration.
As we have seen the plaintiff's record title is conceded. In 1874 she brought an action in ejectment to recover the possession of the premises or of her interest therein, and that action was settled and discontinued, the defendant therein agreeing to purchase her interest in the premises. By such settlement and agreement the defendant in that action not only admitted and recognized her title and right to recover, but also waived his right or claim of adverse possession, and his possession in the premises thereafter must be deemed to be under the contract of purchase. By such agreement the plaintiff was induced to discontinue her action and thus forego the establishing of her title by judicial decree. This action was brought eight years afterwards, and if the defendant is now permitted to avail himself of the defense of adverse possession he may now be able to prove and establish that which he could not have done eight years ago. He may thus be permitted to establish a defense in consequence of the agreement and a breach thereof which could not have been maintained had the settlement and agreement not been made. This should not be allowed under *Page 395 the well settled principles of estoppel. The agreement placed the plaintiff in a position where she could not maintain an action to oust the defendant's grantor until he had made a breach in his contract to purchase. The defendant gets no greater or better title than his father had, and if the defense was not available to the father it would not be to the son. There is no claim of fraud or deception in making the contract.
Sedgwick Wait in their treatise on "Trial of Title to Lands," at section 317, say: "When a person in possession of land covenants with another to pay him for the land he thereby acknowledges the title of the vendor and is estopped from setting up an outstanding title or title in himself, unless he can show that he was deceived or imposed upon in making the agreement."
In Jackson v. Ayers (14 Johnson, 224), where the defendant was in possession of land and had agreed with the plaintiff to purchase and pay him therefor, it was held in a subsequent action of ejectment that the defendant was estopped from setting up a title by adverse possession in himself.
In the case of Jackson v. Britton (4 Wendell, 507), it was held that whilst an offer to purchase land by a party having title does not impair or affect his right, it however, bars the defense of adverse possession.
In Corning v. Troy Iron and Nail Factory (34 Barbour, 485-489), HOGEBOOM, J., in delivering the opinion of the court, says: "Nor could they during the same period continue an adverse possession previously commenced. By taking a lease from the Defreests they acknowledged their title and right to convey. They held under their title and recognized it as the true title. They must be deemed to have waived any previous imperfect rights which they had already acquired under a prior incipient adverse possession. The doctrine of cumulative disabilities does not apply. The defendants are prevented from setting up during this period an adverse possession, not for the reason that they could not purchase an outstanding title for the purpose of perfecting their right or quieting their possession, but because by taking *Page 396 a lease from the Defreests they have placed the latter under a disability, in a position where they cannot take proceedings to oust the defendants, and, of course, where the Statute of Limitations should not be permitted to run against them. It would seem, therefore, entirely clear that, as this lease did not expire until 1852, the defendants cannot avail themselves of the defense of adverse possession."
In Jackson v. Cuerden (2 Johnson's Cases, 353), the defendant wrote a letter to one Mary Clark, the plaintiff's lessor, in which he offered to purchase of her lands of which he was then in possession. Subsequently, and in an action of ejectment, he offered to give evidence of more than twenty years adverse possession in himself. This was excluded by the trial judge. On review it was held that the letter of the defendant was sufficient prima facie for the plaintiff to recover; that whilst the defendant was not precluded from showing that he grounded his letter on a mistake, he was precluded from setting up adverse possession or the Statute of Limitations; that the acknowledgment in his letter takes away the statute. (See, also, Jackson v. Spear, 7 Wendell, 401; Fosgate v.Herkimer Manufacturing and Hydraulic Company, 12 Barb. 352-356; Tompkins v. Snow, 63 id. 525-533; Jackson v. Walker, 7 Cowen, 637-642; Sayles v.Smith, 12 Wendell, 57; Ingraham v. Baldwin, 9 N.Y. 45-47; Smith v.Babcock, 36 id. 167, 168; McMath v. Teel, 64 Georgia, 595; Garlington v.Copeland, 32 S.C. 57-67; 7 Am. Eng. Encyclopedia, 32, title "Estoppel.")
As we have seen the suits were settled and discontinued and this furnished a good consideration for the agreement which thenceforth became binding upon the parties. Their rights were fixed by it and the party in default cannot now go back and litigate questions that were disposed of in the settlement.
Again, it appears that an action was brought upon the note given by Alexander Couse and that he interposed the defense that it was given for the purchase-price of the lands in question and that the plaintiff had committed a breach of the contract in failing to deliver the deed in accordance with the *Page 397 terms of the contract. Upon this issue the plaintiff had judgment, thus forever disposing of the facts that the contract of purchase was made and that there was no breach thereof on the part of the plaintiff.
The judgment should be affirmed.
All concur with POTTER, J., except HAIGHT and PARKER, JJ, dissenting, and FOLLETT, Ch. J., not sitting.
Judgment reversed.