The question to be decided in this case is, whether it was competent for the defendant to show, that Kingman never had any estate of inheritance in the premises. The Judge decided that as Kingman, when in possession had by his deed to Holley, assumed to convey in fee, and as the defendant held under that deed, he was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable.
It cannot be denied, but that the decision of the Judge on the trial is in conformity with the principles settled by a series of cases determined by the Supreme Court, from Bancroft vs. White, (1 Caines 185) to Sherwood vs. Vandenburgh. (2 Hill 303.) In the latter case, however, the late Mr. Justice Cowen put his opinion upon the ground of the authorities; *Page 256 and not upon the ground, that the doctrine of estoppel had been in those cases correctly applied, and distinctly suggested that the question was a very fit one for review in the Court for the correction of errors. And Mr. Justice Bronson in Osterhout vs. Shoemaker, (3 Hill 513) remarked in reference to the cases which hold, that in dower the grantee of the husband is estopped to deny the grantor's title, that they were to be followed because the rule had been so settled, and not because it rested on any sound principle.
As defined in the books, "an estoppel is when a man is concluded by his own act or acceptance, to say the truth," of which there are three kinds. By matter of record, by deed, and by matter of pais. The estoppel which the plaintiff claims in this case arises by matter in pais, if at all; that species arises, by livery, by entry, by acceptance of rent, by partition, and byacceptance of an estate. (Co. Litt. 666, 667.)
The principle in respect to that, which arises by an acceptance of an estate, is, that a man shall not be permitted, during his possession of premises, to dispute the title of the landlord under whom he entered, and applies only in cases where the party accepting the estate is under some obligation, express or implied, that he will at some time or in some event surrender the possession. "The grantee in fee, is under no such obligation. He does not receive the possession under any contract express or implied that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and does him no wrong when he treats him as an utter stranger to the title."
The deed from Kingman to Holley was a mere quit claim, deed-poll, of one part, signed by Kingman only. Therefore, no one at common law, would be bound by it, but he, and it would not work an estoppel against the grantee, and I think not as against the grantor. (Co. Litt. 47, 61, Shep. Touch. 1 Am. Ed. 53,Right vs. Bucknell, 2 Barn and Adol. 278.) At the common law, all the parts of a deed indented in judgment of law made but one deed, and every part was of as *Page 257 great force as all the parts together, and were esteemed the mutual deeds of either party, and either party might be bound by either part of the same, and the words of the indenture were the words of either party. It was stronger than a deed-poll, for it worked an estoppel against either party to say or except any thing against any thing contained in it. (1 Sheph. Touch. 53Plow. 434.)
The argument on the side of the plaintiff is that Kingmanassumed to convey a fee; and that as the defendant held under that deed, he was bound by that assumption. This, I think is founded upon a mistake of fact as well as of law. I have already remarked that the deed is merely a quit claim deed-poll; and therefore, upon its face and by its terms, it only purports to convey whatever interest in the premises the grantor then had. It does not affirm that he had any. How then can the grantor be supposed conclusively to admit that he had? If the admission should be co-extensive with the grant, it would be but conditional; that is, that if the grantor had any right or interest, which passed by his deed it vested in Holley the grantee.
And now, by 1 R.S. 739, § 143, it is enacted that no greater estate or interest shall be construed to pass by any grant or conveyance, thereafter executed, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant should be conclusive as against the grantor and his heirs claiming from him by descent; and by § 145, it is declared that a conveyance made by a tenant for life or years, of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantor all the title, estate, or interest, which such tenant could lawfully convey.
And again, by 1 R.S. 748, § 1, it is declared that every grant or devise in real estate, or any interest therein, thereafter to be executed, shall pass all the estate, or interest of the grantor or testator; unless the intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant; and § 2 provides *Page 258 that in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of Courts of Justice, to carry into effect the intent of the parties, so far as it can be collected from the whole instrument, and is consistent with the rules of law. Now, I do not think that we are authorized to say that Kingman assumed by his deed to convey a fee; the clear intent, as well as expression of his deed, is to convey only what interest or estate he then had in the premises. But again. Co. Litt. 352 a, shows, that every estoppel must be reciprocal, that is to bind both parties, and that is the reason that, regularly, a stranger shall neither take advantage of, nor be bound by, the estoppel; but privies in blood, as the heir, and privies in estate, as the feoffee, lessee, c.; privies in law, as the lord by escheat, tenant by the courtesy, tenant in dower, the incumbent of a benifice, and others that come in under by act of law, or in the post, shall be bound by, and take advantage of estoppels; and Coke, in his twenty-first reading on fines, says "estoppel is reciprocal on both sides; for he that shall not be concluded by a record or other matter of estoppel, shall not conclude another by it." (Doe vs. Martin, 8. Barn.and Cress. 497.)
Now Kingman himself would not have been estopped by his deed to Holley from showing that no title passed by it, on the ground that it contains no covenant of warranty; an after acquired estate by a grantor passes to his previous grantee by the rule of estoppel, only when there are such covenants of warranty, and then to avoid circuity of action. (Jackson vs. Hubbell, 1Cowen 616; Jackson vs. Bradford, 4 Wend. 622; Jackson vs. Waldron, 13 Wend. 178.)
The plaintiff could not claim any thing by the rule of estoppel, in respect to the deed executed by her husband to Holley. She is a stranger to it; her right to dower rests upon the title or estate which her husband acquired prior to his deed to Holley, and is derivable under his grantor. This would be a sufficient reason why she could not estop the grantee of her husband. *Page 259 There would be no mutuality, as she would not be bound by it. (Jewell vs. Harrington, 19 Wend. 471.)
The plaintiff is not entitled to dower in any other lands than in which her husband, during the marriage, was seized of an estate of inheritance; and I think it clear that when she claims dower, the defendant is at liberty to show in his defence that her husband was not, during the marriage, seized of such an estate. (Gaunt vs. Wainman, 3 Bing. N.C. 69.)
I am therefore of opinion that the judgment should be reversed, and that a venire de novo should be awarded by the Supreme Court, with costs, to abide the event.
RUGGLES, JONES, JOHNSON and GRAY, Js., concurred in the result of the preceding opinions.