It is conceded that the provision contained in the will of James Spickerman, in favor of his widow, cannot be considered as made in lieu of dower, so as to put her to her election. She asserted that position in her proceeding for admeasurement, and the plaintiff conceded it by bringing this action. Moreover the course of adjudication favors the view thus taken by the parties. (Lewis v. Smith, 5 Seld., 502, and cases referred to in the opinions.) It is material, however, to observe that at the time of the sale of the premises, out of which dower is sought, the defendant, the widow of Spickerman, was entitled to the possession of the premises, so devised, subject to the power of the executors to sell them; and that, upon the sale, she became immediately entitled to the interest on the whole purchase price, during a period of more than thirteen years, if she should live so long, and to the interest of one-third of that money, during her life. The natural supposition of every person not a well informed lawyer, would be that such arrangements would be inconsistent with a right in the party who was thus to have the use and enjoyment of the money to be paid on the purchase, to one-third of the premises under her title as doweress from the moment of the execution of the conveyance.
According to the averments of the complaint, the negotiations between the executors and Shoemaker was for the purchase of an estate which should be free from all hostile claims, and especially from any claim of dower on the part of the defendant, as the widow of Spickerman; and the deed which was eventually executed, recited in terms that such was the character of the purchase. The further averments are that the defendant, then Mrs. Spickerman, fully understood and well knew that the executors were selling the premises to Shoemaker as free and clear from all claims and incumbrances (except a mortgage which the purchaser assumed), and free and discharged from all claims of dower therein; that she heard the representations made by the executors to Shoemaker to that effect, and knew that the latter was purchasing for the full value of the property as an unincumbered estate, which was free from any right of dower; that she concealed *Page 116 her interest with a fraudulent intent, and with a view to defraud Shoemaker, and encouraged him to purchase for the full value of the property, he being entirely ignorant of the existence of any such right of dower; and that he, accordingly, completed the purchase and paid such full value. These averments being admitted by the demurrer, the principle of equity is exceedingly well settled that she is estopped from asserting the right which she claimed in instituting the proceedings for admeasurement. The following cases, among others, illustrate and apply the principle. (Wendell v. Van Rensselaer, 1 Johns. Ch., 344;Storrs v. Barker, 6 id., 166; Town v. Needham, 3 Paige, 545; Dougrey v. Topping, 4 id., 94.)
The defendant's counsel maintained that the estoppel was personal, and that Shoemaker alone could avail himself of it. I am of opinion, on the contrary, that the plaintiff or the owner of the land under Shoemaker's title, holding under mean conveyances from him, is equally entitled to avail himself of the equitable bar. In some of the cases referred to, relief was given to the grantee of the party defrauded. Such was the case ofTown v. Needham. In Jones v. Powell, where a right of dower was relieved against, on the ground that a collateral compensation had been made by the testamentary trustees of the husband, the party to whom the relief was adjudged was a grantee of the immediate purchaser. Estoppels by record and by deed, as is well known, ran in favor of, and against the privies in estate of the immediate parties to the estoppel, as well as for and against the parties personally; and I see no reason why estoppelsen pais should not be within the rule, as they clearly are within its principle. Cases of dedication often rest upon the principle of estoppels en pais; it being considered fraudulent on the part of one dedicating his land to public uses to retract, to the prejudice of parties who have purchased on the faith of such dedication. It has frequently been held that the estoppel attaches itself to the land, and can be asserted on behalf of the grantee of the immediate purchaser. (Hills v. Miller, *Page 117 3 Paige, 256; Trustees of Watertown v. Cowen, 4 id., 514;Child v. Chappell, 5 Seld., 246.)
It is further urged that the plaintiff could not bring his action in anticipation of the ejectment which the defendant was expected to commence against him. It is very true that equitable defenses may now be made in actions of ejectment; and it may be that if such a suit had been actually commenced, the plaintiff would have been compelled to await the trial of that case. But, in the absence of such an action, he was not obliged to remain passive until the defendant should move. The allegations upon which his equity is based, rest upon the oral testimony of witness who may die, or whose testimony it may hereafter be impracticable to procure. In such cases, the party expecting to be challenged may take the initiative by bringing an action in the nature of a bill quia timet. (Scott v. Onderdonk,14 N Y, 9.)
The point raised in the defendant's brief, that the equity relied upon could be availed of on appeal from the order of the surrogate confirming the admeasurement of dower, is not well taken. Such a defense could not be received in that proceeding. (2 R.S., §§ 17, 18; Hyde v. Hyde, 4 Wend., 630.)
It remains only to allude briefly to certain objections of form. It is said, in effect, that the complaint is multifarious in embracing allegations respecting the mortgage which Shoemaker was to assume, and which he or his grantee have paid off. It was signed and acknowledged by the defendant while the wife of Spickerman. The intention of these averments was to entitle the plaintiff to partial relief, if he should be unsuccessful in establishing the estoppel. This was not incongruous with the principal subject of the suit. The defendant was threatening to prosecute to recover one-third of the estate for her dower. It is possible that the defendant could have relief in the ejectment suit to the extent of the mortgage. But the judgment appealed from proceeds upon the general ground of the estoppel. This renders the other allegations practically immaterial. The plaintiff, as has been shown, had a right to bring his suit in respect to that ground of relief; and I think he could, with propriety, connect the *Page 118 other allegations with that claim, and the court, having jurisdiction of the whole case, could do justice between the parties.
It was not necessary to make the grantors of the plaintiff parties. They had no direct interest in the controversy, nor any claim to relief. The same may be said of the executors of Spickerman.
The point that Abel Seely, the husband, was improperly made a defendant, is not taken in the demurrer. The allegation of the want of facts sufficient to establish a cause of action, applies equally to both defendants; and there is no intimation that if the wife was liable to the plaintiff's equity, the husband was not a proper party defendant. Besides, the allegation in the complaint is that both defendants were threatening to sue the plaintiff in ejectment. If this were really so, it was not improper that both should be enjoined. The husband had joined with his wife in the admeasurement proceeding, which was sufficient evidence of confederacy.
The judgment appealed from should be affirmed with costs; in which all the judges concurred.
Judgment affirmed. *Page 119