The opinion of the Court was delivered by
Shepley J.The demandant claims dower as the widow" of Eli Hamlin deceased, and her rights are to be considered in the most favorable light in which they could be regarded by a jury. The declaration claims the dower in lands conveyed by Asa Clapp to the tenant; and the demand of dower describes the land as thus conveyed. The testimony was received from Witnesses introduced by the demandant. Elisha Hight states that the tenant “ said he would give Maria a deed, but it would not be safe for her, as she owed Mitchell and might lose it. He said the farm was paid for, and he was ready to give a deed at any time, but it was not safe to put the deed On record.” William Ross heard the tenant say “that' Eli owned the farm, where he lived, but had no deed of it, because he was owing Mr. Mitchell.” From the testimony of Mr. Mitchell, and from that of Jacob Mills, jr. the administrator on the estate of the husband, it appears, that the tenant consented, that the administrator should sell the farm to pay the tenant about four hundred and fifty dollars, which the administrator stated was due. The administrator further states, that the tenant stated to him, that “ Eli was to build one of the two houses on State street to be valued at two thousand five hundred dollars; was to do what he could on it, and what he could not do, the defendant was to do and charge Eli for it.” And from other testimony it appears, that Mr. Clapp was to convey the lands in Scarborough, of which this farm was a part, and pay six hundred dollars for the two houses on State street. From this and the other testimony the only conclusions, to which a jury could properly come, are, that the tenant bargained with Mr. Clapp to build two houses on State street and to receive payment for them in part by the lands in Scar*145borough; and that he agreed with Eli, that he should build one of the houses to be valued at $2500, and that the value of his interest in that house should be applied to pay for a part of those lands tobe conveyed to him by the tenant; that in fulfilment of this agreement a part of the lands had been designated for him; that he had entered into the occupation of that part; had continued to improve it for nine or ten months, and had built a house upon it, having paid for it in full. There is no testimony to prove, that there was any written contract for a conveyance. And a jury would not be authorised to find, that a conveyance had been made, for the testimony rebuts any such presumption, and shews that none had been made. The tenant, had, in conversations with the demandant, admitted her rights, and had, as Ross states, agreed to give her the house on Gray street and two hundred dollars for her farm in Scarborough.” It will be perceived that this agreement must have been made under a misapprehension of their legal rights, as the widow could neither discharge the tenánt from any liability to account for the amount received in payment for the farm, nor convey it to him.
The inquiry arises, whether under these circumstances the demandant is entitled to dower in that farm. The legal seizin is according to the title, unless the owner has been disseized. Eli was in possession under a verbal contract to receive a title from the tenant and of course in submission to that title. And a jury would not be authorized to find, that the husband was seized of any legal estate in the premises. And if the tenant should be considered as holding the estate in trust for the benefit of Eli, the demandant would not be entitled to dower. For the widow of the cestui que trust is not dowable of an estate in which the husband had an equitable, but not a legal title. D’Arcy v. Blake, 2 Sch. & Lef. 387; Ray v. Pung, 5 B. & A. 561.
It is contended that the tenant, having admitted the title of the demandant and offered to purchase under it, is estopped to deny it. And it is true, as contended, that the books speak of estoppels by matter in yais; the cases put, however, do not *146apply to mere declarations touching an estate, but to acts, such as an acceptance of an estate, or of a rent, or a holding under a demise. Co. Litt. 252, a; Binney v. Chapman, 5 Pick. 124. The tenant does not hold under any title derived from the husband of the demandant, and is not therefore precluded from denying his seizin. It has been held, “that where an estoppel works on the lands, it runs with the land into whose hands soever the land comes.” Trevinian v. Lawrence, 1 Salk. 276. And if the verbal agreements of a party respecting the title to real estate might operate as an estoppel the effect would be to create an interest in the estate without any written evidence of it contrary to the statute of frauds. In the case of Whitney v. Holmes, 15 Mass. R. 152, it was decided that a written agreement to settle a disputed line agreeably to a survey to be made, could not affect the title either as a conveyance or by way of estoppel, “ for no estate,” says the C. J. “ can pass according to our statutes but by deed, or it must have amounted to an estoppel, which has not been insisted upon ; no man being barred of his right by way of estoppel but by record or deed.” The demandant fails in the proof of a seizin in the husband, and the nonsuit is confirmed.