i THE LAWOFESTOPTEL BY HENRY M. HERMAN, Attorney and Counsellor-at-law. " Ita lex scripta est." We must be content with the law as it stands, without enquiring into its reasons." ALBANY: "W. C. LITTLE & CO., Laav Booksellers and Publishers, 525 broadway. 1871. Entered according to Act of Congress, in the year one thousand eight hundred and seventy-one, by HENRY M. HERMAN, In the ofBce of the Librarian of Congress at Washington, D. C T TraS WORK IS RESPECTFULLY DEDIOATBD BY THE AUTHOK, TO THE Hon. JOHN F. DILLON, UNITED STATES CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT. 767750 CONTENTS. PART I. CHAPTER I. Page. Derivation of term Estoppel — "What an Estoppel is — Rea- sons for Estoppels — General Doctrine of Estoppels — How they are used — Pleading an Estoppel . . 7—16 CHAPTER II. Estoppel by Record , . . . . . 16-32 Records — What a Record is — Judgments — Res Adjudi- cata — Doctrine of — Reasons of the Doctrine — Gen- eral Principles of Res Adjudicata — What is a Judg- ment — Kinds of Judgments — Effect of Judgments — Limitations to the Conclusive Effect of Judgments . 33-59 CHAPTER III. Personal Judgments — Judgments of Court of Exclusive and Concurrent Jurisdiction — Parties, who are — Privies, who are — Judgments, when Estoppels — Privies, kinds of — How Parties and Privies are bound 60-109 CHAPTER IV. Judgments in Personam — Ejectment — What is meant by an Estoppel being Mutual — Cause of Action cannot be divided — Strangers not bound by nor can they take ad- vantage of Estoppels — Estoppels must be certain . 60-108 CHAPTER V. Judgments in Rem — Distinction between Judgments in Rem and Personam — Conclusiveness — Judgments in Prize and Admiralty Courts — Proceedings in Attachment and Garnishment — Effect of Judgments in — Decrees and proceedings in Probate, Ecclesiastical and other simi- lar Courts — Judgments in Criminal Courts — Sentence of Visitors — Court-Martials — Awards . . . 109—143 Vlll CONTENTS. CHAPTER VI. Page. Judgments of Inferior Courts and Courts of Limited Juris- diction — Wliat are Courts of Limited Jurisdiction — Effect of their Judgments — Must show Jurisdiction — Decrees in Chancery — Effect of — Rules applicable to Inferior Courts — Necessity of Courts having Jurisdic- tion 144-199 CHAPTER VII. Foreign Judgments — In Admiralty — In Rem — In Per- sonam — Their effect as Estoppels — Judgments of other States — Effect of — When not Estoppels — What may be Pleaded to them 192-228 PART, II. CHAPTER VIII. Estoppel by matter in Writing — By Deed — Parites and Privies, who are — How Bound — Femes Covert — In- fants — Strangers not bound — No Estoppel when Truth appears — None where an interest passes — Ex- ample of Estoppels by Deed — Who may take advant- age of Estoppels by Deed 229-250 CHAPTER IX. Recitals — Their Conclusiveness — In Deeds — Bonds — Consideration — General Recitals — When no Estop- pel — Miscellaneous Recitals ..... 251-276 CHAPTER X. Of the Rule that Interest when it accrues feeds the Estop- pel — Title by Estoppel — Interest — When it passes by Deed no Estoppel — Manner in which an after ac- quired Title enures by way of Estoppel — When Estop- pels are odious — Reason for the principle of Estop- pel — Tax Deeds — No Estoppel — Quit-Claim Deed . 277-312 CHAPTER XI. Leases by Estoppel, how they operate — Lessee cannot deny Lessor's Title — How Parties and Privies are Bound — Dower, how Barred — AVidow, how Estopped to claim Dower — Privies, how Estopped — Parties who are Estopped in an action for Dower — Dower, when it is waived — Homestead right, when barred . . . 313-333 CONTENTS. IX PAUT III. CHAPTER XIII. Page. Estoppel in Pais — Equitable Estoppels — Principles of — What they arc Their effect — Admissions, when con- clusive AVho are bound by them — How strangers may take advantage of them — General principles in regard to How made eflectual — Orgin of Equita- ■ ble Estoppels 334-357 CHAPTER XIII. Estoppel in Pais — Between Landlord and Tenant — Why Tenant cannot dispute Landlord's Title — Rule of Con- clusiveness Foundation of the Rule — When a Ten- ant may deny Landlord's Title — Application of the Estoppel to Vendor and Vendee — Bailor and Bailee . 358-390 CHAPTER XIV. Estoppel applied to Mortgages — Technical Estoppel — Equit- able Estoppel — Mortgagor and Mortgagee — Effect of Warranty of Title in jNIortgages — Usury — Recitals in Mortgages — Homestead claim barred by . . 391-440 CHAPTER XV. Estoppel as affecting the title to land — Justice and Equity require them — General Principles — Acts on the faith of which others have acted — When they will be sup- pressed Miscellaneous cases of Equitable Estoppel — Origin of the principle — Distinction between Technical and Equitable Estoppel 409-440 CHAPTER XVI. Application of Equitable Estoppels to Instrument not under Seal Notes — Bills — Contracts — Debts — Prin- cipal and Surety — How they maybe Estopped — How a party may be Estopped from Pleading Usury — How a party may lose a defense to a note — Confirmation of a fraudulent act is an Estoppel .... 441-4G0 CHAPTER XVII. Election _ Confirmation — Equitable Estoppels as applied to the relation of Principal and Agent — Married Women Infants — Administrators — Executors — Guardians — Other parties — How they may be con- cluded Estoppel by Election, extent of — Parties — Estopped by Confirmation — Ratification, eftect as an CONTENTS. Page. Estoppel Impeachable transactions, how rendered valid — Principal and Surety — Partnership — "When an Infant will be Estopped 461-485 CHAPTER XVIII. Estoppel as applicable to boundaries — "Who Estopped by a boundary line — Parties when concluded by mistakes — Principles of Estoppel in its effect on boundaries — In- stance when an Estoppel was not held applicable — Dedication, what it is — What may be dedicated — How Estoppels apply to them — What constitutes a Dedication — Adverse possession when an Estoppel — Awards — Oral partition ...... 486-508 CHAPTER XIX. Estoppels as applied to corporations — What is a corpora- tion — How Estoppels apply in their favor — Against them — Against individuals — Banks — Railroads — Municipal corporation — Bonds — Contracts — Stock- holders — Officers — When corporations are bound by the acts of their officers — When individuals cannot deny their existence — Who can take advantage of a forfeit- ure — Ratification by a corporation of its agents, acts creates an Estoppel — Estoppels applicable to foreign corporations — Insurance companies when estopped by the acts of their agents — by other acts. . . . 486—508 CHAPTER XX. How an Estoppel is to be made available — Plea of Res Ad- judicata — Pleading an Estoppel — Its effect in evi- dence — Rules regarding them — What may be pleaded to a foreign judgment or judgment of another State — When it may be waived — Estoppels by Deed, how made efiectual — Equitable Estoppels . . . 541_565 IIDEI TO CASES CITED. Page. Abbott V. Lindenhower 312 V. Mills 495, 496 Abe 11 V. Von Gelder 367 Ableman v. Booth 167 Accidental Ins. Co. v. Mackenzie 370 Ackla V. Ackla 346, 401 Ackley v. Dysert 429 V. Neufville 435 Adams v. Barnes 42, 393 ,555. 558 V. Bougbton 546 V. Bradley 475 V. Filer 54 V. Moore 556 V. Preston 46 V. Rockwell 487, 491 Adelphi Loan Ass. v. Fairhurst 477 Addis V. Campbell 468 Addison v. Crow 248, 262 Adlum V. Yard 466, 482 Alger V. Life Ins. Co. 511 Alderson v. Miller 314, 320, 368 A.ldrich v. Jackson 448 Allen V. Allen 260, 428 V, Curtis 539 V. Diindas 136 V. Gove 562 V. Irwin 42 V. Jacques 380, 383 V. Lyons 134 V. Magruder 178, 272 V. McPherson 136 V. Roosevelt 176 V. Say ward 302, 304 V. Spurr 564 Alexander v. Taylor 30, 49 All Saints Church v. Lovett 536 Alston V. Munford 56 Althousc V. Radde 482 Alton V. Gilmanton 354 Alviso V. United States 488 American L. Ins. Co. v . Bayard 467 Page. Amherst Bank v. Root 523 Aniounct v. Annis 288, 392 Anderson v. Anderson 215 v. Crow 307 V. Jackson 29 Andrew v. Davidson 54 V. Lyon 566 Androscoggin Co. v. Bragg 438 Angel V. Hollister 89 Ankenny v. Pierce 867 Annett v. Terry 52 Archer v. English 356 Amroyd v. "Williams 197 Armstrong v. Carson 554 v. Fahnstock 273 Arnold v. Arnold ' 107 V. Greene 92 Ashby V. Pidduck 474 Ashton V. McDougall 483 V. Poynter 172 Aslin V. Parker 62 Aspen V. Nixon 206 Attorney Gen. v. Merrimac 496 Atkins V. Smith 188 Atkinson v. Allen 216 v. Bell 497 Atlantic Ins. Co. v. Goodall 517 Atwood V. Mansfield 870 Aurick v. Oyler 60 Aurora The 135 Austin V. Bailey 507 V. Thompson 439 Averill V. Wilson 301, 387 Avery v. Fitch 75, 76 Awder v, Noakes 327 B. Babbett v. Doe Babcock v. Camj) Bachelder v. Sanborn 134 27. 105, 179 423 Xll Index to Cases Cited. Page. 1 Page. Bacon v. Robertson 539 Barnes v. Keen 148 Badger v. Titcomb 104 V. McKay 420, 424 Bagott V. Boulger 175 Barney v. Keith 323 V. Williams 23 69, 104 V. Patterson 203 Bailey v. Bailey 178, 466 Barr v. Gratz's heirs 278 V. Foster 49 V. Jackson 137, 139 V. Krebbins 324 Barrett v. Copeland 356 V. Wells 317 V. Hall 351 Baker v. Cave 148 Barrows v. Kinclied 61 V. Lorillard 245, 246, 499 Bartlett v. Boyd 238 V. Mellish 372 V. Holbrook 460 V. Pratt 379 Barton v. Morris 286 V. Taylor 555 Bass V. Arper 60 V. Town send 500 V. Clive 477 V. Whiting 506 Bassford v. Pearson 236 Baldwin v. Brown 486, 489, 492 Bateman v. Mayor, &c. 611 Ball's Lessee v. Ball 161 Bates V. Dele van 161 V. Lively 366 V. Norcross 135, 331 Ball V. Murray 276 V. Quattleborn 73 V. Westwood 366 V. Relyea 29 Ballston Spa Bank y. Marine Bank 515 V. Stanton 58 Bancroft v. White 829 V. Thompson 107 Bank of Austrailasia v. Nias 214 V. Williams 175 of Beloit v. Beal 176, 471 Batty V. Lloyd 482 Columbia v. Patterson 523 Baugh V. Baugh 217 Columbus V. Hart 462 Bavington v. Penn. R. R. 538 Commerce v. Union Bank 451 Baxter v. Bodkin 237 Elizabeth v. Chetwood 636 V. Bradbury 286, 293, 299, 313 Gallison v. Trimble 539 V. Un. E. Ins. Co . 118 Georgia v. Williams 536 V. State 469 Ireland v. Beresford 453 Bayler v. Comproeth S05 Montgomery v. Walker 452 Baylis v. Strickland 169 St. Mary's v. St. John 's 535 Beal's Admrs v. Shool' s Exs. 174 V. Dand ridge 523 V. Hall 296 V. Bank of Georgia 451 V. Park Ins. Co. 472, 517 V. Lee 479 480 Bean v. Parker 53 Utica V. Leavitt 276 Bean v. Welsh 281, 286 ,289 Wooster v. Stevens 276, 521 Beanpland v. McKeen, 320, 419, 420 Bandit v. Bandit 550 428 Bannon v. Bannon 375 Beardsley v. Foot 425 Barber v. Edson 344 Beckett v. Bradley 269, 548 v. Harris 406 507 Bedford v. Kelly 324 V. Lamb 204 V. M'Elherron 502 Baring v. Claggett 196 Beebe v. Elliott 48 Barker v. Bell 411 Beers v. Pinney 47 V. Harris 395 Belden v. Seymour 269 V. Stetson 149 Belfast, The 120 Barkhurst v. Telverton 42 Bellis V. Stone 564 Barnes v. Badger 355 Bellinger v. Carrigne 81 V. Burbridge 481 V. Bunal 80, 200 Index to Cases Cited. xiu Page. Belliiigham v. Alsop 327 Bell V. Banks 276 V. Twilight 203 308 V. Walker 68 Belknap v. Nevins 417 Beloit V. Morgan 179 Bellows V. Forsyth 165 Beltzhoover v. Commonwealth 462 Beman v. Durck 451 Bcmis V. Call 480 Bendernagle v. Cocks 75 Benedict v. CaflFee 448 Bennett v. Conant 407 Bennett v. Francis 356 V. Holmes 89, 107 V. Walker 296 Benton v. Burgot 214 Bergen v. Williams 50, 554 Berrisford v. Milward 417 Berry v. Barnes 41 Bettison v. Budd 366, 374 Betts V. Starr 44, 96 B. & G. T. Co. V. McCarty 532 Biddle v. Wilkins 542, 552 Bigelow V. Topliflf 228, 433 V. Winsor 162 Big Mt. Imp. Co. Appeal 411 Billings V. State 234, 273 Birkhead v. Brown 84 Birney v. Chapman 370 "Sisseil V. Briggs 203, 205, 211, 222 V. City of Jefferson 625 V. Edwards 219 V. S. &N. R. R. 512 Bixby V. Whitney 173 Black V. Black 160 V. Tucker 293, 660 Blackburn v. Crawford 63 V. Sholes 355 Blackham's Case 133 Blackwell v. Brooks 297 Blackwood v. Jones 424 Blair v. Smith 301, 492 Blake v. Forstcr 372 V. Sanderson 322 V. Tucker 265, 286, 305 Blakely v. Ferguson 364 Blakenny v. Ferguson 364, 378 Blanchard v. Brookis 294, 300, 307, 380 Page. Blanchard v. Ellis 241, 299, 300 V. Tyler 324 Bland v. Bamficld ^^ 200 Blanton v. Whittaker**^ 367 Blasdamc v. Babcock 48'- Bleecker v. Bond 350 Blight V. McEvoy 160 V. Rochester 249, 362, 366, 369 378, 383, 386, 388 Blodget V. Jordan 219 Blount V. Darrach 134, 150 Bocock V. Pavey 12, 343, 348 Boehm v. Ins. Co. 517 Boggs V. Merced Co. 423, 427, 439 V. Olcott 533, 536 Bogy V. Shoab 281 Boileau v. Rutlin 190, 347 Belles V. Beach 270 V. Bowen 62 Boiling V. Mayor Bolster v. Cushman 329 Bolton V. Gladstone 199 Bonesteed v. Tod 189 Booney V. Bowers 27, 157 Bone V. Muller 116 Booth V. Clive 356 Borden v. Fitch 151 Boston V. Burney 367 B. & W. R. R. V. Sparhawk 215 Boston V. Worthington 55 Boswell V. Dickinson 115 Blonchard v. Dias 70 Bontwell O'Keefe 457 Bott V. Brunell 230 Bowen v. Cooper 500 Bowman v. Taylor 252, 279, 292, 460 Boyd V. Bolton 397 V. Cumming 445 V. Graves 492 Boj'den v. Moore 355 Boyer v. Smith 376 Boynton v. Willard 108 Braddick v. Thompson 172 Bradford v. Williams 457 Bradley v. Chamberlain 54 V. Richardson 197. 198, 200, 470 Bradstreet v. Neptune Ins. Co. 114 BradwcU v. Spencer 50 Brady v . ]\1 ay or of N . T . 523 Brace v. Duchess of Marlborough 344 XIV Index to Cases Cited. Page. Bragg V. Massie 485 Braintree v. Battles 502 Brandon v. Brandon 378 Brazier v. Bryant 172 Breck v. Cole 246 Breeding v. Staufer 308 Brereton v. Evans 326 Breese v. Telegraph Co. 460 Brewer v. B. &. W. R. R 428 439 489 380 V. Sparrow 462 Brewster v. Baker 421 V. Striker 8 245 Bridge v. J'rost 149 Bridge Co. v. Bragg 487 Bridges v. McKenna 481 Brierly v. Russell 481 Brlggs V. Seymour 262, 396 V. Wells 105 Brinegar v. Chaffin 13, 234 273 IJrinckerhoff V. Lansing 404, 429 Bringloe v. Goodson 10 Brinsmaid v. Mayor 558 Brockway v. Kinney 72 Bronson v. LaCrosse R. R. 408, 456 Brooker v. "Walker 378 Brooks V. Harris 276 V. Martin 446 V. Record 408 Brookman v. Metcalf 453 Brounker v. Atkins 41 Brower v. Peabody 436 Brown v. Armstead 482 V. Bowen 422, 423, 425, 522 V. Brown 664 V. Chaney 47 V. Coon 238, 242 V. Dysinger 366 V. Foster 150 V. Gleed 275 ■ V. Jackson 306, 307, 308 V. Keller 359, 559 V. King 7S , 80 V. Kings Co. Ins. Co. 518 V. Lanman 139 V. McCormick 285 V. McCune 479 V. Potter 333 V. Roberts 306 Brown v. Sprague V. "WTieeler V. "Wilder V. "Wright Brubaker v. Keeson Bruce v. United States Bruen v. Hone Brulow V. Shannon Brundred v. "Walker Bnipper v. Larker Bruster v. Hamilton Bryant v. Pye Bryer v. Rich Budd V. Gray Buchanan V. Rucker Buckner v. Colcote Buckingham v. McLaine Buckland v. Johnson Buckley's Appeal V. Stewart V. "Wells Buckmaster r. Meiklejohn Buckly V. Fishing Co. Bufferlow v. Newsom BufEn V. Ramsdell Bull V. Allen Bumstead v. Bumstead Bunnell v. Pinto Bunnelson v. Bunnelson Burchard v. Hubbard Burgess v. Pire Burghett v. Turner Burhans v. Van Zandt 503, Burkhalter v. Edwards Burk V. Brewer V. Burk Burk's Estate Burnham v. "Webster Burnet v. Fulton V. Henderson V. Scribner Burrall v. Degroot Burrill v. "West Burritt v. Reisch Burton v. Black V. Reed V. "Wilkinson Burrows v. Alter V. Smith Busche V. Globe Ins. Co. 51 665 647 441 439 272 165 90 293, 296 393 342 50 639 80 205 442 406 646 269 173 408 647 611 660 86 474 157 73 414 299 523 309 504, 506 561 411 173 466 198 388 272 380 448 30 470 421 299, 300 58, 650 466, 467 534 617 Index to Cases Cited. XV Bush V. Cooper V. Marshall V. Sheldon Butler V. Hildreth V. Mayor, &c. V. Seward Buttershall v. Davis Butts V. Francis Buxton V. Duren Bylcr V. Commonwealth Byum V. Cook c. Cahill V. Kalamazoo Ins. Co. Caldenwood v. iJrooks V. Pyser Califfv. Hilhouse Calkins v. AUerton V. State Callender v. Parrisville V. Woodruff Calvert v. Bovil Cambridge v. Littlefield Campbell v. Butts V. Hale V. Knight V. McCahn V. Phelps Camp V. Byrne V. Camp V. Moseby Camwell v. Sevvell Canal Bank v. Albany Bank Trustee v. Harrison Canan v. Greenwood Candler v. Lundsford Cane v. Ingulles Cannan v. Farmer V. G. Turnpike Co. V. Hartley Carhee v. Hopkins V. Willis Carlislie v. Foster Carmichael v. Buck Carney v. Emmons Carpenter v. BuUen v. King Page. Page. 292, 392 Carpenter v. Pier 46, 48 278 v. Stillwell 423, 433 142 v. Thompson 241 467 V. Thurston ■"* " 425 172 Carr v. Armory College 91, 163-,. 294 v. Wallace 417 537 Carroll v. Charter Oak Ins. Co. 516 230 Carter v. Carter 234 448 v. Champlin 428, 433 308 V. Hammett 822 312 V. James 547 V. Longworth 404 V. Smith 176 Carver v. Astor 10, 248, 251 , 279, 324 V. Jackson 39, 253 Gary v. Cincinnati R. R. 513 620 V. Clark 345 63 V. Miner 163 368 V. AVTieeler 896 439 V. Whiting 389 48 V. Wilcox 600 458, 469 Case V. Benedict 385 512 V. Clark 224 238 V. Farrar 843 200 Y. Reeves 30, 49 443, 446 V. Sandford 520 104 Cassells v. Vernam 132, 134 58 Casey v. Inloe 424, 434 234 easier v. Shipman 96 181 Castle v. Noyes 49, 84 109 Caston v. Caston 461 531 Cecil V. Early 273 379 Chaffee v. Catt. Ins. Co. 564 484 Chalfant v. Williams 563 108, 114 Chamberlain v. Gaillard 82, 104 451 V. Gay lord 87 497 V. Godfrey 54 143 V. Townsend 448, 454 488 Chambers v. Peak 366, 374 258 Champlainv. Valentine 261 236, 477 ChapeU v. Bull 304 34 Chapin v. Curtis 39 381 Chapman v. Schroeder 332 250 V. Smith 27, 104 286, 287 Charles R. Bridge Co. v. W. B. Co. 512 178 Chase v. Hathaway 147 434 v. Walker 67 55 Chattel v. Pound 370 234, 268 Cbautauqua Bank v. Risley 248 475 Chauvin v. Wagner 238, 302 XVI Index to Cases Cited. Judson Cheeney v. Arnold Cheever v. "Wilson Cheltenham R. R. Co V. De Medina Chemung C. Bank v. Cherrj^ v. Speight Chew V. Barnett V. Moftat V. Morton Chicago V. Robbins Child V. Chappell V. Eureka P. "Works V. McChesney Chirac v. Reinecker Chonqueyev. Barad Christian v. Pence Christmas v. Russell Christy v. Dyer Church, The v. Barker Church V. Church V. Leavenworth Chynouth v. Tenney Cincinnati City v. Morgan Daniel Page. 417 207 538 538 150 217 304 240 491 57 368 54 237 116 310 67 210. 223, 224 242 51 377 101 416, 418 524 46, 62, V. TVliite 495, 496, 497, 498 Cist V. Zeigler 44, 96 City Council v. N. P. R. Co. 523 City of Leavenworth v. Rankin 526 City of Lowell v. Parker 50 Citizens' Ins. Co. v. Sortwell 515 Clabaugh v. Byerly 412, 417, 433 Clapmorgan v. Greene 261, 264 Claugle v. MeKenzie 374 Clare v. Earl of Bedford 417 Claremont Bank v. "Woods 452, 474 Clark v. Baker 232, 2G0, 281, 307 V. City of Zanesville 525 V. Aego 376 V. Farrington 529 V. Montgomery 52 V. Sammons 27 V. Slaughter 298 V. IJmon Ins. Co. 518 V. "Whithers 600 Clay V. Hart 461 Clegg V. Dearden 346 Clemens v. Clemens 95. 144, 164, 165, 166 V. Durgan 438 V. Murphy 542 Clement v. Logging 446 Page. Clemm v. Wilcox 367 Clendennin v. Purcell 249 Clinton v. Brown 458 Coakley v. Perry 249 Cobb v. Dow 467 V. Smith 499 Coburn v. Boston Paper Co. 520 V. Palmer 367 Cochran v. Arnold 533 V. Harrow 419 v. Libbby 338 Codner v. Town of Bradford 522 Coe v. Persons, &c. 289 Coggill V. Am. Ex. Bank 416, 447 Coil V. Tracy 44, 160 Colbert v. Daniel 420, 434 Colburn v. Pomeroy 54 V. "Wentworth 75 Colcord V. Swan 235, 236 Cole V. Carter 547 V. Raymond 298 V. Gibbons 468 Coleman v. Bean 273 v. McClure 338 Collett v. Morrison 518 Colley V. Norton 492 CoUingwood v. Irving 48 Collins V. Mitchell 273, 549 V. Tillyou 234, 579 Coombs V. Cooper 342 V. Turlton's Admin's 41 Commercial Bank v. Cunningham 453 Commonwealth v. Andre 295 V. Dieflenbach 55 V. Green 218 V. Moltz 339 V. Xancy 343 V. Pejebscut Prop 486 Commonwealth v. Roby 172 V. Sherman 478, 482 Comstock V. Crawford 135 V. Smith 285, 301,302 308 383 Concord Bank v. Bellin 238, 265, 429 Cong. Society v. Perry 539 Conkey v. Kingman 147 Conklin v. Barton 476 Connehan v. Ford 494, 497 Conner v. Martin 236 Congert v. Gertchon 237 417 Cook V. Babcock 489 Index to Cases Cited. XVI 1 Cook V Brogan V. Douglass V. Field V. Howard V. Loxley V. Viemont Coombs V. Cooper V. Turlton's Adrars. Coon V Smith Copeland v. Copeland Copeton V. Schmidt Cooper V. Galbraith V. Le Blanc V. Mccrer V. Shaver V. Shepherd V. Smith V. Underland Corbett V. Norcross Corcoran v. Brown Corkhill v. Lander 41 Cornell v. Dakin Corning v. Troy Cornish v. Abingdon V. "Woodman Cowles V. Hartz Cox V. Brain V. Burk V. Lacy ■ V. Thomas Cracraft v. Cohran Craig V. Carleton Crandallv. Gallup V. James Crane v. Morris Crary v. Hall Cravens v. Booth Crawford R. R. v. Lacey Creave v. Burst Crest V. Jack Crittenden v. Woodruff Cucka V. Pierce Crogan v. Livingston 482 Cromwell V. Bank of Pittsburg 432 Cook V. Douglass 405 Crosby v. Chase 266 Crousdon v. Leonard 114^ 118, 197, 200, 203 Crout v. De Wolf 444, 450 Page. 281 405 124 114 866 80 842 41 489 427 63 224, 294 450 451 537 546 371 158 562 278, 284 412, 416, 485, 489, 491 274 316, 345, 600 337, 424 373 30 365 432 385 153, 273 75 109 " 556 27 251, 324 ' 481 480 245, 539 147 339, 422, 424 329 292 Crowell V. Bcebe V. McConkey Crowley v. Witter Croxall V. Sherered Crutzhiger v. Callin Cumberland R. R. v. McLanahan Cummings v. Colgrove Cunningham V. Harris Curling v. Eggleston Currier v. Earl Curtis V. Gibbs V. Groat V. Trepp Cuthbertson v. Irving Cutter V. Bowen V. Dickenson V. AVaddingham Cutts V. Salmon D. Page. 392 349 880 503 501-^ 418 104 75, 108 265 883 217 101 402 205, 313, 317 820, 323, 377 460 273 801 468 Daggett V. Wiley 491 Dakin v. Hudson 149 Dalgleish v. Hodgson 200 Dame v. Wingate 182 Dana v. Bryant 549 Danaher v. Prentiss 160 Danforth v. Adams 439 Dansen v. Johnson 437, 551 Darcy v. Ketchum 211, 214, 223 224, 227 Darlington's Appeal 423 Dart v. Dart 294, 307, 308 Dartriiouth College v. Woodward 509 David V. Sheppard 416 Davidson v. Shipman 82 Davis V. Bradley 434 V. Evans 393 V. Gray 460 V. Hardy 420 V. Willett 828 V. Scott 104 V. Talbot 165 V. Talbot 81,85 550 V. Trexel 479 V. Thomas 441 447 V. Tyler 259, 558 V. Wood 80 xvm Index to Cases Cited. Page. Page. Dawson v. Gent 380 Dixfiek V. Newton 423 Day V. Elmore 449, 450 Dixon V. Ramsey 206 V. Southwell 537 Doane v. Wilcutt 235, 302, 306, 307 Dearborn v. Taylor 333 Dobsen V. Pearce 216 Dean v. Connely 349 Dodd V . Acklow 881, 382 Deherry v. Adams 474 Dodge V. Burns 528 Decherd v. Blanton 234, 274 V. Story 484 Decosta v. Atkins 116 V. Wally 244 Decker v. Eisenhauer 439, 441, 444 Dodswell V. Buchanan 308 Deford v. Mercer 482 Doe V. Bai-ton 320 DeGraff v. Am. L. T. Co. 512 V. Baytup 371; 378 Delaney v. Fox 360, 373 d'Bullen V. Mills 860 V. Keen 480 V. Carew 53 Delaplaine v. Hitchcock 427 V. Clifton 507 Delaware Bank v. Jarvis 454 V. Creed 371 Dezell V. Odell, 341, 344, 306 V. Errington 240, 292 Demerest v. Lyford 91. 104 V. Fuller 371 Dempsey v. Tylee 234, 235, 236', 325 V. Howell 260 Dempster v. Parnell 148 V. Huddart 545 Den V. Ashmore 868 d'Johnston v. Baytup 360 V. Brewer 264, 279 y. Johnson 380 V. Carap 13 V. Lady S my the 360. 361 V. Cornell 251, 274, 296 V. Lloyd 305 V. Demerest 235, 297 V. Martyn 297 V. Doe 10, 12 V. McCuUough 490 V. Errington 279 V. Mills 871 V. Guslin 371 V. Mitchell 361 V. King 261, 264 V. Mizzen 860, 871 V. McShane 60 V. Oliver 278, 280, 284 V. White 116 V. Oliver & PoweU 360 Deneale v. Shimps' Ex'rs. 41 V. Payne 252 Denby v. Nicol 463 V. Poole 880 Denham v. Allen 309 V. Prosser 500 Denning v. Corwin 151 VK Reed 500 Dennison v. Ely 247 V. Seaton 320 Derby v. Jones 289 V. Skisson 371, 879 Despard v. Walbridge 366 V. Smythe 271 Dewey v. Bordwell 489 V. Statham 266 Deweys v. Field 342 V. Sutherland 271 Dewolfv. Hayden 288, 296 V. Thomas 278, 380 Dews V. Brandt 482 V. Vickers 507 Dewsbury v. Wilson 538 V. Whitmore 558 Dibble v. Duncan 474 V. Willis V. Birchmore 861, 371 V. Rogers 491 V. Wood 381 Dickenson v. Kelly 270 V. Wright 190, 543, 545 V. McGraw 137 Donaldson v. Holmes 480 Dicrcks v. Kennedy 395 V. Thompson 196, 201 Dikeman v. Parish 878 Donahue v. McNulty 267 Distun V. Diston 224 Dougrey v. Topping 330 UivoU V. Leadbetter 352 Doke V . James 172 Index to Cases Cited. XIX Doolittle V. Lewis Dorrance v. Jones Dorris v. State Dorsey v. Dorsoy Doty V. Brown Dougherty v. Hunter V. Linchicum Douglas V. Howland 67. Page. 1S8 822 108 107 70, 84, 104 470 294 47, 50 V. Scott 232, 239, 257, 260, 264 Donnell v. Kelsey Downer v. Flint V. Ford V. Fuller Downing v. Miller V. Estate Downs V. Cooper Dozier v. Sea Drake v. Clover V. Mitchell Drane v. Gregory 489 435 431 156 501 135 252 474 478, 479 101 366 Draper v. Charter Oak Ins. Co. 518 V. Stouvenal Drayton v. Dale Drew V. Kimball Drummond v. Prestman Drury v. Forster Drustroe v. Yewre Dubuque v. Maloney Ducker v. Casker Duchess of Kingston's Case Dudley v. Cad well Duel V. Bear, &c. Dufresne v. Hutchinson Duffield V. Scott Duffy V. N. Y. & N. H. R. R Dunlap V. Glidden Dumont v. "Williams Dunbar v. Frederich Dundas v. Hitchcock Dunlap V. Patterson Dunley v. Rector Dunrick v. Denyer Durckle v. Wiles Durham v. Alden Dutchess M. F. Co. v. Davis Dykeman v. Mayor, &c. Dwyer v. Ashton Dyer v. Cannell V. Pearson 73, 75 451 425 50 480 500 498 279 33, 34, 200, 541 392 439 109 46, 47 328 109 448 475 333 342 561 63 546 402 532 156 366 437 434 Dyer v. Rich Dyson v. Leek Page. 265 61 E. E.A. R. R. V. C. C. R. R. 64 Eaglton V. Gutridge 45 Earl V. Baxter 601 Earl of Bandon v. Beecher 33 East I. Co. V. Vincent 433 V. Wells ^ 311 Eastman v. Cooper 80 V. Tuttle 352 Eaton V. Aspenwall 534 V. Smith 534 Eccleston v. Ogden 449 Eckles V. Carter 270 Eddleman v. Carpenter 308 Edgellv. Segerson 67 Edgerton v. Thomas 408 Edwards v. Dick 54 V. Mellhallum 321 V. State 272 V. Stewart 81 V. Varick 407 Eldred v. Hazlitt 348, 445 Ellengcr v. Cromell 270 Elliott v. Clellan 443 V. Piersal 135 V. Smith 367 v. Welch 448 EUis V. Didy 331 v. Welland 452 V. Wild 448 Elmer v. Pennell 276 Embree v. Ellis 329 Embry V. Hannon 2o;-; Embury v. Carver 81 V. Connor 165, 216 Emery v. Fowler 39 Emerson v. Dowe 470 V. Newbury 471 Ermer v. Richardson 27 England v. Downs 483 V. Slade 868 Engleton v. Gutridge 455 English V. Wright 32<. Ennis v. Smith 134, 15e Eppes V. M. R. R. Co. 5Z-J XX Index to Cases Cited. Page. Page. E. P. Hotel Co. V. "West 531 Fenwick v. Gill 64 Erwin v. Down 447. 456 Fenton v. Pocock 452 V. Loury 147, 432 Ferguson v. Hamilton 454 Estell V. Taul 70, 105 V. Miller 419 Estep V. Hitchmaa 190 Fermor's Case 156 Estey V. Strong 30 Ferris v. Coover 424, 429 Etheridge v. Osborn 96 Field V. Flanders 217 Evans v. Burge 163 V. Gibbs 555 V. Bucknell 478 V. Hitchcock 135 V. Commonwealth 50 V. Langsdorf 434 V. Elliott 874 Finly v. Hanbert 72 Y. Knaphaus 65 Fire Ins. Co. v. Cochran 464 Eveleth v. Crouch 258 Fisher v. McGeir 149 Everhart v. W. & R. R. 531 V. Milliken 381 Evertson v. Sawyer 368 v. Mossman 426, 428 E & W. P. R. R. V. Brown 531 V. Willard 471 Ewing V. Robeson 512 Fisk V. Miller 62 Ex parte Watkins 37 V. Woodruff 48 Fitch V. Baldwin 300, 801 V. Fitch 283 F. Fitts V. Crook V. Hall 467 478 Fackler v. Ford 249 Fitzhughs' heirs v. Tyler 279 Fairbank v. Williamson 14, 281 Fitzsiminons V. Newport Ins Co. 197 Fairly v. Fairly, 383 Flad. Oyeu The 196 Fairtitle v. Gilbert 238 Flagg v. Mann 307 Faulkner v. Beers 370 Flandraw v. Downey 542 Fargo V. Ladd 471 Fletcher v. Farrell 227 Farmers Bank v. Bronson 394 V. Holmes 421 V. McGraw 50 V. Jackson 108 V. Kee 108 V. McFarland 370 Farmers L. & T. Co. v. Conn. V. Sommers 29 Bank 262 Fleming v. Gooding 359, 370 Farmers & M. Bank v. Butchers, Flin V. Chase 147 &c. Bank 514 Flora v. Carbean 507 of Mil. V. D. &M. R. R. 529 Floyd V. Brown 168 V. Rathbone 276 Floyd v. Lee 341 Farnan v. Hotchkiss 407 V. Mizizier 30 Farnsworth v. Arnold 49 Foots v. Gibbs 162 V. Taylor 260 V. Northwestern Ins. Co. 516 Farrar v. Cooper 260 Foot V. Ketchum 444 Farren v. Christy 245 Ford V. Gray 251 Fairington v. Barr 268 269 V. Williams 484 V. Payne 73, 75 Forsythe v. Day 340, 442 561 Faucett v. Osborn 434 Fort Wayne T. Co. v. Dennis 531 Faust V, Ramsay 82 Foss v. Strachn 243 , 308 Fay V. Ames 54 Foster v. Allanson 546 V. Rivers 175 V. Bigelow 427 Fellman v. Bowen 332 V. C. M. Life Insurance Co. 339 Felter v. Beal 546 V. Millner 355 Index to Cases Cited. TYI Page. Foster v. Neuland 446 V. Ogle 107 Foraquet v. Perkins 105 Fowler v. Hill 547 V. Moller 458 Fox V. "Waters 10 V. Widgeon 302 Francis v. Doe 371 V. Welch 435 Franklin v. Atlantic Ins. Co. 517 V. Borland 301 V. Twoogood 539 Freeman v. Cook 347. 424 V. Heath 375 V. Thayer 307 Frays v. Worms 555 French v. Beuchard 395 V. French 161 V. Lafayette Ins. Co. 542 V. Parish 47 V. Spencer 261, 278, 284, 292 Frick V. Dorst 281, 306, 307, 308 Frost V. Frostburg Coal Co. 535 V. Quackenbush 433 V. Saratoga M. Ins. Co. 619 Fuller V. Fotch 169 Fulton V. Hood 562 V. Moore 478 Funk V. Dart 285 V. Newcomer 248, 286, 309, 419 Funk's Lessee v. Kincaid 367 G. Gaines v. New Orleans 243 Galloway v. Finley 388 V. Ogle 367 Galena R. R. v. Welch 108 Gammon v. Freeman 330 Garber v. Commonwealth 50 Garbutt v. Finney 359 V. Smith 467 Gardner v. Buckbee 44, 68, 82, 102 V. Greene 237, 378, 384, 387 388 V. Ladne 589 V. Tisdale 497 Garhart v. Finney 359 Garner v. Bird 420 Page. Garraher v. Prentiss 181 Gari-aher v. State 107 Garrahan v. Rodgers^^^^ 466 Garrett v. Lyle 465 V. Van Home 510 Gari'ity v. Byington 423 Garwood v. Dennis 251 Gates V, Preston 83, 149 Gatlingv. Rodman 419, 427, 429, 479 Gaunt V. Waiuman 237, 383, 387 Gay V. Monroe 149 Gayle v. Price 329, 331 Gee V. Moore 306 Geffer v. Aguilar 114 Geisse v. Beal 176, 262 Gelperke v. Dubuque 524 Gelston v. Hays 176 V. Hoyt 114, 117 George v. Gillespie 27 V. Putney 367 Gerard v. Bassett 142 Ghegan v. Young 380, 382 Ghen v. MofFatt 560 Gibbs V. Shayer 288 Gibson v. Gibson 14, 550 Gilbert v. Thompson 547 Gilchrist V, Ball 547 Gillespie v. Carpenter 338, 459 Gillian v. Bird 309 V. Truman 395 Gill V. Rice 395, 561 Girault v. Zantz 311 Glass V. Gieben 407 Glen V. Gibson 388 Glidden v. Strupler 237, 427. 479, 481 Globe, The 114 Glymer v. Pointdexter 292 Glynn v. George 378 V. Thorp 16 Goddard v. Merchants Bank 96 Godding V. Oliver 51 Goddefroy v. Caldwell 417, 421 Goggill V. Am. Exch. Bank 447 Goit V. Nat. Protection Ins. Co. 515 Goldstein v. Hart 353 Goodell V. Jackson 29 Goodhue v. Scamwell 346 Gooding v. C. & S. R, R. 523 Goodman v. Simons 448 Goodridge v. Dustin 490, 500 XXll Index to Cases Cited. Page. 1 Page. Goodrich v. Bryant 14 Greely v. Smith 544 V. City of Chicago 178, 180, 181 V. Thomas 65 V. Gale 79 Gregg V. Wells 400, 435 V. Thompson 185 Gregory v. Dorge 374 Goodright v. Cordment 461 Green v. Bates 561 Goodson V. Beachani 289, 305, 424 v. Clark 260 Goodspeed v. Fuller 269 V. James 325 Goodtitle v. Bailey 279, 321 v. Munson 375 V. Otway 29 V. New River Co. 20, 107, 108 Gordon v. Hobart 57 V. Price 404 Goshen v. Shoemaker 510 v. Sarmiento 217 Gosling V. Burns 436 Greeno v. Munson 878 V. Veley 355 Greenwault v. Davis 270 Gottschalk v. De Santu 419, 483 Girder's Appeal 882 Gouchenor v. Mowry 286, 287 Griffin v. Griffin 143 Gouldsworth v. Knight 317 V. Richardson 343 Gove V. Richardson 491. V. Sheffield 235 236 V. White 416, 421, 493 Griffith V. Bogarth 134 481 Govett V. Richmond 417 V. Frazier 135 Grace v. Mercer 403, 404 V. Griffith 828, 264 ,378 Graff V. P. & S. R. R. 345, 531 Griggs V. Howe 448 Graham v. Birkenhead 540 Grignon v. Astor 152 V. Maxwell 190 Grinman v. Legge 38 V. Meek 226 Griswold v. Haven 470 V. Moore 375 Groff V. Groff 139 ,149 V. "Whichello 380 Guernsey v. Carver 73,75 Grandy v. Bailey 247, 250, 332, 366 Guest V. Warner 546 375, 379 384 Guild V. Richardson 659 Granger v. Clark 215 Gundry v. Feltham 212 Grant v. Chamberlain 42 v. Vivian 262 V. Davenport 527 Gutv. State 216 V. Lexington Ins. Co. 516 Guttridge v. Smith 856 V. McLachlin 200 Gutz wilier v. Lackman 466 V. Ramsay 103 Gwin V. McCarrols 134 V. Townsend 269 V. Wainman 237 V. White 324 H. Gratz V. Lancaster Bank 45 Gravenor v. Woodhouse 872 Hadly v. Greene 546 Gray v. Allen 434 Haines v. Garden 329 v. Bartell 428 429 Hair V. Lyttle 269 V. Berry 491 Hale V. Chappel 289 V. Gillian 105 544 V, Union Ins. Co. 520 V. Johnston 371 Hall V. Claggett 564 V. Stockton 237 V. Dodge 160 Grazehook v. Percival 483 V. Fisher 404 Great Falls Co. v. Wooster 383 V. Hands 882 Greathead v. Bromley 23 V. McHuas 378 Greathouse v. Dunlap 240 V. Mann 829 , 333 Greely v. Quimby 495 V. Parmlee 445 Index to Cases Cited. xxiu Pago. Page. Hall V. Simons 482 Havolock V. Rockwood 196, 201 V. Union Ins. Co. 512 Haw V. T re ma in 105 V. AVilliams 224 Hawes v. Watson 486 Ham V. Ham 285, 308 383, 413 Hawkins v. Lambert 48 Hamblin v. Harablln 439 Hayden v. Davis 389 Hamilton v. Cutts 48 Hayne v. Maltby 268, 283 V. Dutch Ins. Co. 199 Haynes v. Calderwood 55 V. Elk Kidge R. K 528 V. Small 360 V. Elliott 800 Hays V. Askew 284, 258 V. Hamiliton 420, 423, 505 Hayes v. Gudykurst 445 V. Quimby 181 V. Rees 165 Hammond v. Anderson 29 Hazard v. Irwin 240 V. Wilder 46 Hazeltine v. Seaves 880 V. "Woodson 268 Hazelton v. Batchelder 439 Hampton v. McCowell 211 Hean v. Rogers 334, 342, 344 Uamtmnck v. Bank of Edwardville Heard v. Hall 261, 292 534 V. Lodge 50 Hancock v. Welch 545 V. Mitchell 50 Haney v. Richards 43 Heillner v. Battin 14 Hanks v. Drake 473 Hellenkamp v. Lafayette 521 Hannibal v. Draper 497 Heller v. Jones 49 Hanley v. Middlebrook 343 Helps V. Hereford 278, 288 Hansbrough v. Peck 457 Hemphill v. Flynn 464 Hanson v. Bucko ver 551 Hempstead v, Eastman 237, 251, 264 Hardisty v. Gleen 367 V. Conway 92 Hardy v. Williams 551 Henderson v. Conway 378 Hare v. Baker 165 V. Hackney 285 Hargrave v. Bank of 111 539 V. Henderson 179 Harle v. McCog 384 Hendrick v. Cleveland 147 Hamet v. Scribner 383 Henry v. Root 482 Harriott v. Van Cott 157 Hennessy v. Farren 376 Harriman v. Gray 302, 306, 332 Henson v. Castenon 267 Harris v. Brooks 475 Herbert v. Adams 287 V. Columbia Ins. Co. 517 v. Norcross 344 V. Harris 165 Hermitage v. Tompkins 314, 320 V. Hardeman 227 Herrick v. Whitney 447 Harrison v. Casebier 269 Hibbard v. Stewart 434 V. Castner 269 Hibbsman v. Dulebum 133 V. Wright 355 Hicks V. Cram 413 V. Corutald 453 Higgins V. Ferguson 417 ,478 ,480 V. Pove 466 Higham v. Robbins 306 Hassel v. Walker 261 Hill V. Bcraan 374 Hartman v. Ogman 190 V. Draper 501 Hart V. Holcomb 240 V. Epley 339, 412, 421 , 424 ,426 V. Lanman 457 428 433 Harvey v. Horton 257 V. Hill 388 Harwell v. Fitts 269 V. Mitson 150 Hasbrouck v. Milwaukee 523 V. Mossman 438 Haskell v. Putnam 366, 373, 877 V. Perry 266 Hatch V. Kimball 402 V. Samuel 887 XXIV Index to Cases Cited. Page. Page. Hill V. West 235 236 Hotchkiss V. Hunt 62 Hildreth v. Sands 269 V. Nichols 44 Hills V. Lansing 74 Houston V. Sneed 491 Hinkley v. Buchanan 33 Howard v. Hudson 347 425 V. Hillsdale 246 V. Mitchell 541 555 Hinton v. McNeil 60 V. Murphy 375 Hippie V. Bruce 373 V. Thomas 564 Hitchcock V. Harrington 328 Howard Ins. Co. v. Burner 517 Hitchin v. Campbell 89 184 Howard Mut. Loan Ass. v. Mcln- Hite V. Long 73 tyre 537 Hoag V. Hoag 376 Howe V. Alger 260 V. Lowell 496 Hoxie V. Prov. Ins. Co. 515 Hobbs V. Norton 425 Hubbard v. Briggs 456 533 Hockenbury v. Snider 373 374 V. Chapin 867 Hodges V. Eddy 30, 486 507 V. Kraus 366 V. Hodges 173 Hubbell V. McCulloch 487 493 V. N E. Screw Co. 540 Huddelkaup v. Smith 108 V. Shields 324, 366 368 Hudson V. Critcher 266 Hodson V. Sharp 372 V. Guestin 114, 197 200 201 Hoey V. Furman 107 V. Prewitt 455 Hoff V. Myers 78 Huff V. Hutchinson 37 214 Hoffman v. Lee 399 404 V. McAuley 437 Hoffman v. Noble 344 Hughes V. Alexander 78 104 Hogeboom v. Herrick 474 V. Blake 70, 105 Holbrook v. Burt 441 V. Great W. R. R. 355 V. Worcester Bank 246 V. United States 162 Holden v. Trustees 498 Humble v. Humble * 268 Holdridge v. Gillespie 506 Hunsden v. Cheney 425 HoUingsworth v. Barbour 116 Hunsucker v. Tipton 244 V. Hancock 412 Hunt V. Coon 483 Hollister v. Abbott 216 V. Crary 270 Holmes v. Ferguson 258 V. Wright 248 V. Fields 147 Hunter v. Butts 116 V. Hall 408 V. Stewart 546 V. Remsen 160 V. Trustees 494 496 Holt V. Martin 376 Huntington v. Am. Bank 866 Holyoke v. Hoskins 147 V. Havens 258 276 Homer v. Brown 97, 105 Huntley v. Perry 520 V. Fish 95 Hutchinson's Case 168 V. Johnson 442 Hutt V. Morell 547 V. Parker 203 Hyatt V. Esmond 513 Hood V. Mather 367 V. N. H. &N. Y.R.R. 510 527 Hopcraft v. Keyes 367 J. Hope V. Stone 307 Hopple V. Brown 510 Jack V. Fulton 564 Hopkins v. Freeman 546 Jackman v. Wood 479 V. Lee 43,92 Jackson V. Ayres 314, 320, 372, 388 Horton v. Davis 397 V. Bard 373 Horwitz V. Equitable Ins. Co 517 V. Bradford 239, 298, 505 Index to Cases Cited. XXV Page. Page. Jackson v. Brinkerhoff 239 Jennison v. Hapgood 135 V. Britton 504 Jeter v. Ilewett 144 V. Brown IIG 382 V. Jeter ^^.t^ 552 V. Bull 239, 285 , 303 314 Jewett V. Miller 343 424, 429 V. Collins 505 V. Town of Alton 509 V. Creal 8G1 Jones V. BankofTenn. 539 V. Croy 504 V. Carter 463 V. Guerdon 504 V. Case 370 V. Davis 871 502 V. Cowles 423 V. Demorest 247 V. Hardisty 444 V. Forster Dysling 490 V. Heller 46 V. Foster 324 V. Hersey 466 V. Griswold 47 V. Howell 897 V. Harder 373 V. Jones 262 V. Hushouck 245 V. King 296 V. Hindman 505 V. McNiel 101 V. Hoffman 293, 302 '■ V. Susser 561 V. Hotchkiss 388 V.Williams 46, 47 V. Ireland 258, 263, 388 Johns V. Church 343 V. Leek 504 V. F. &M. 539 V. Manlius 501 Johnson's Admrs. v. Unversar 35, 37 V. Marsh 47 V. Corpenning 147 V. McLeod 502 V. Durant 175 V. Murray 303, 320 V. Fritz 348 V, Ogden 492 V. Morse 80 V. Peck 302 V. Page 418 V. Rowland 368 V. United States 135, 243 V, Spear 868, 505 V. White 544 V. Stiles 320 Jordan v. Deaton 487 V. Still 370 V. Mar'ih 375 V. Thompson 263 Junction R. R. v. Harpold 422, 439 V. Vanderheyden 235, 236 V. Vedder 30 V. Waldron 14, 273, 308, 408, 323 424 K. V. "Walker 373, 384 Kabberton v. McNiel 409 V. Wheedon 3G7, 502 Kane v. Rock River Co. 93 V. Wheeler 247 Karber v. Nelles 498 V. Wood 187 Kearney v. Van Rensalaer 261, 279 V. Wright 294 Keeler v. Vantugle 431, 562 Jacobs V. Hill 50 Keel V. Ogden 652 James v. Allen 203 Keene v. Clark 90 V. Landon 325, 477 Keen v. Coleman 479 V. Lawrenceburg Ins. Co. 549 V. Hartraan 479 Jarvis v. Sewall 456 Keenan v. Mo. S. F. Ins. C 3. 519 Jay V. Almy 97 Kees v. Miller 381, 382 Jefferson v. Howell 262 Kcithsburg v. Frick 525 Jenk V. Howlan 134, 159 Kellog V. McLaughlin 311 Jenkins v. Robinson 142 V. United States 174 Jennings v. Whittaker 352 V. Smith 490 XXVI Index to Cases Cited. Page. Kelly V. She Church 48 V. Eichman 465 V. Inness 240 299 y. Kelley 378 V. Pike 545 V. Troy Fire Ins. Co. 518 Kelsey v. Murphy 160 Kensdale v. Hunt 460 Kemp V. Kennedy 146 V. Goodall 376 Kennedy v. Georgia Bank 37 Kennedy's Exrs. v. Jones 495 V. Skier 229, 306 V. Spear 279 Kent V. H. R. R. 49 Kerr v. Clark 381 V. Hays 71 V. Union Bank 27 V. "\Yanchop 463 Key V. Dent 39, 429 Keyes v. Grannis 552 Kiefer v. Ehler 135 Kilgore v. Jordan 237, 481 Kilhoeffer v. Herr 45, 72 , 87, 103 165 Kimball v. Blaisdell 239, 293, 307 V. Kimball 329 V. Schroff 298 V. Walker 267 Kimho V. Hamilton 251, 265 Kimmersley v. Orpe 49, 56 182 545 Kindersly v. Chase 199 King V. Armory 525 V. Carlisle 116 V. Chase 107 V. Grimes 41 V. Norman 34 , 50, 190 V. Younger 29 King The v. Stacy 173 Kingsland v. Spaulding 92 Kingsley v. Vernon 353 474 Kinney v. Earns worth 343 Kinsman v. Loomis 260, 264 279 . 302, 308 V. Parker 460 V. Parkhurst 14, 276 Kip V. Morton 491 Kirkv. Taylor 378 Kirkpatrick v. Winans 395 Kisselback v. Livingston 563 Page. Knaupfv. Thompson 426, 429, 433 Knee land v. Milwaukee 29 Knight V. Hunt 246 Kraft V. Wickey 206 Krang v. Kroger 389 Krountze v. Price 471 L. L'Ameroux v. Vandenburgh 400 Boone Co. v. Finney 63 Lacrosse R. R. v. Seger 363, 528 384, Lafarge v. Hester Lafayette Ins. Co. v. French Laman v. McNamee Lambert v. Oak Lamperts' Case Lamont v. Trest Lannahan v. Latrobe Laucker v. Rex Lane v. Harrison Lanesborough v. Cutts Langdon v. Goddard V. Kerth Langsdorfv. Field Lansing v. Montgomery Lanton v. Howe Larco v. Cassanuvema Larkin's Appeal V. Biddle Earned v. Lamed Lathrop v. Foster Lanman v. Lebanon R. R. Laws V. Purser Lavelle v. Burnet Lawrence v. Brown 380, 381, 418,424 V. Hunt 80, 89 V. Sherman Lea V. Lea , V. Metherton Leach v. Buchanan LeCaux v. Eden Leciester v. Rehoboath V. Rose Lee V. Clark V. Getty V. Munroe Leggett V. Cooper Legg V. Legg 458 210 382 451 279 380 466 564 105 513 133 564 468 559 386 259 343 664 495 333 540 460 404 105 90 502 450 114 326 246 47, 62 297 406 366 236 Index to Cases Cited. XX\'ll Lcgucn V. Gouvenor Leland v. Gassett Lelien v. Sm'der Lentz V. Baird Leonard v. Bates V. Leonard Leppin v. Hedge win Lessley v. Johnson Lessee of Buckinghara Levi V. Dorn V. Moylan Levy V. U. S. Bank Lewis V. Baird V. Carstairs V. Hanchman V. Lewis V. Newzell V. Willis Lewis' heirs v. his Ex'rs. Lexington R. R. v. Chandler &c. R. R. V. Elwell Libby v. Pierce Libscomb v. Holmes Lincolm v. Tower Lindell v. McLaughlin Lindsay v. Hawes v. Lovely V. Ramsay V. Springer Littleton v. Richardson Livingston v. Hammer V. Mayor V. Potts Lizzie "Weston The Loader v. Clark Lock V. "Winston Lockwood V. "Walker London Grand Junction R. R. Freeman V. Graham Lloyd V. Barr Long V. Bangas Long I. R. R. V. Conklin V. Mast Longwell v. Bentley Loomis V. Pingree Lord Alhough v. Tyre V. Bigelow Lore V. Truman Page. 81, % 423 142 287, 301 240 183 105 397 12 293 175 149 450 289 293 346, 431, 562 453 V. Hanna 224 96 370 141 531 526 449 366 555 493 270 296 491 47, 105, 108 50 260 381 116 483 107 373 538 538 58 89 294 378 251 286 482 559 92 rage. Lonsdale v. Portland 306 Lothair v. Henderson 193 Lounsbury v. Depew 446 Love v. Gates ""^^ 248 V. Edmundson 378 V. "Wells 412 Lovejoy v. Murray 52. 57 Lowell v. Daniels 235, 265, 248, 479 Lucas v. Hart 429 Ludlow v. Bingham 126 Ludlum's Estate 484 Lynch v. Rotan 142 Lyme v. Sanders 367, 368 M. Maybie v. Matterson 577 Maher v. Hobbs 483 Mack v. "Willard 240 Madison Av. Bap. Church v. Bap- tist Church 511 Maddox v. Graham 27 Magee v. Mellon 231 Magounv. N. E.M.Ins.Co Mahurin v. Buckford Mayor v. Barbour, The Males V. Lowenstein Mallet V. Foxcraft Maley v. Shattuck Maloney v. Estrange Maltby v. N. W. R. R. Mankato v. "Welland "Wankin v. Chandler Mann v. Drexel V. Howland V. Rogers Manning v. Norwood Manufacturers' Bank v Maple V. Russell 118, 200 218 116 348 87, 184 197 475 538 495 130 649 396 63 390 Hazard 418 240, 349, 425 Marchioness of Arniandale v. Har- ris Maxet v. Hampton Mar ley v. Rodgers Marsh's Admrs. v. Bost Marshall v. Shaffer Marsh v. Butterworth V. Pier 10, 251 81 867 179 63 368 V. Rice 108, 108, 227, 643, 545 648 240 XXVlll Index to Cases Cited. Page. Marston v. Hobbs 804 Martin v. Germandt 46 V. G. & N. R. R. 855, 358 V. Ives 117, 466 V. Martin 330 V. Richter 445 Martineau v. Steele 317 Maryland Ins. Co. v. Woods 197 Mary, The 195, 200 Mason v. Allen 329 V. Eldred 51, 189 V. Mumcaster 286, 287 V. Strickland 50 Matlow V. Cox 552 Mathews v. Light 421 V. Mennedge 52 Mattack v. Lee 308 Mattingly v. Nye 175 May V. Tilcman 329 331 Maybee v. Snippen 240 Mayer v. Bills 475 Mayor v. City of Chicago 526 of Carlisle v. Blamire 10 363 Hoboken v. Harrison 526 Mason v. Franklin 497 Pittsburg V. Scott 522 8ic. V. Sheffield 523 V. White 373 McAfferty v. Connover 235 , 338 ,411 423 McAllister v. Brooks 124 McArnsley v. Western R. R 528 McBroom v. Lebanon Co. 532 McBurney v. Cutler 279 McCabe v. Rainey 443 McCall V. Cosver 283 McCandless v. Horkle 50 McCann v. Letcher 564 McCarthy v. Marsh 156 McCarty v. Pepper 455 McClann v. Gregg 243 McCleskyv. Leadbetter 264 McClure v. Douthilt 479 V. White sides 108 McComb V. Gilkey 234 McCormick v. McMestree 421 V. Digby 404 v. SulUvant 3 7,13 3, 146 McConnell v. Bowdy 367 McCounihc v. McClerg 449 Page. McCracken v. San Francisco 427 McCrevy v. Remsen 108, 344, 466 McCullough V. Wilson 478 McCune v. McMichael 424, 429 McCurdy v. Smith 369 McCutcheon v. Jameson 274 McDermott v. United States 171 McDonald v. Rainor 105 V. Smalley 224 McDougall V. Bell 533 McFarlaiid v. Carr 472 McGarrity v. Byington 428 WcGinnis v. Porter 369, 502 McGoveiTi V. Hoesback 457 McGregor v. Reynolds 499 V. Rhodes 451 McGough V. Wellington 52 McKee v. Miller 457 V. McKee 116 McKeldore v. Darracutt 462 McKelly v. Mcllhany 438 McKelvy v. Turby 419, 421 McKennehan v. Crawford 566 McKenzie v. City of Lexington 278, 315 V. Ramsey 151 McKinney v. Rearden 381 McKnight v. Wheeler 454 McLaughlin v. Bank of Potomac 50 V. McGovern 456 McLean v. Lafayette Bank 406 McMahon v. McMahon 499 V. Perrin 350 McNair v. O'Fallon 541 McNamee v. Moreland 244 McNeely v. Rucker 246 McNeil V. PhiUips 390 McPherson v. Arnliff 132, 139, 142 V. Waters 411, 565 McQueen v. Sanders 244 McQuigg y. McQuigg 224 McRae v. Eriditas 244 V. Matoon 215 McWilliams v. Nisely 295 Mead v. Keller 536 Mechanics' Bank v. Townsend 454 Building Ass. v. Stevens 537 Medenhull v. Parish 266 Meeder v. Meeder 270 Megee v. Beirne 114 Index to Cases Cited. XXIX rage. Paga. Melms V. Weiderhoff 440 Mitchell V. Reed 345 Memphis City v. Deane 181 Moadwell v. Holmes 143 Meiiges V. Vystor 410 Moers v. White 142 Melville Iron Works v. PI (cnix Montgomery v. Bru-«*e^ 328 Ins. Co. 417 K. R. V. Hurst 639 Mcrford v. Ambrose 249 Monroe v. Douglass 206 Merrick's Est. 464, 500 Moran v. Conners of Miami Co. 511 Memfcld v. Parrott 284 524 Merritt v. Hone 249, 561 Morell V. Dickey 206 Merriam v. Cunningham 481 Moiford V. Bliss 400, 412 V. Wolcott 448 Morgan v. Ballard 370 Merriman v. Whittemore 86 V. Barker 108 Mervine v. Parker 46, 545 Moore v. Bowman 559 Mesereau v. Pearsall 100, 549 v. Farrow 384 Meyers v. Hill 60 V. Freeman 379 Meyer v. Peck 452 V. Gonow 238 Michai'l Mutual Ins. Co. 515 V. Lamed 257 Mickle V. Townsend 391 V. Lucas 47,50 Middleton v. Jerome 444, 448 V. Rake 296 V. Lord Onlow 246 V. Watts 546 Milbum V. Cedar Rapids 528 Morris Canul v. Lewis 424 Miles V. Caldwell 63,66 Morris v. Hall 458 Miller v. Auburn R. R. 528 V. Moore 418, 423 V. Bagwell 468 V. Murray 355 V. Bingham 397 V. Phelps 300 V. Bonadon 368, 370 V. Rexford 176 V. Covert 73,75 V. Stewart 480 V. Elliott 548 V. Wait 482 V. Ewing 286, 303, 306, 307 Morse v. Marshall 79 Miller's Ex'rs v. U. S. 128 V. Roberts 368 Miller v. Holman 239 V. Royal 475 v. Jones 384 V. Shattuck 269 v. Maniel 52, 53, 84, 548 Morrison v. Cune 447 V. McBrien 366 V. Mullen 48,61 V. Miller 421, 426 V. Morrison 422 V. Shackelford 383 V. Wilson 281, 479 V. AVilliams 356 Morton v. Hogdon 423 Milliken v. Whitehouse 520 Mosely v. Mosoly 249 Millingar v. Long 412 Mosher v. Chapin 472 Million V. Riley 384 V. Redding 379 Milw. & Miss. R. R. v, Finney 470 | Moslin V. Trenton Ins. Co. 206 Mills V. Dennis 482 Moss V. Averill 512 V. Duryea 211, 224, 555 Motz V. City of Detroit 522 Minea v. Walter 43 Mullen V. Folley 483 Miranvillc v. Silverlhorn 4.39 Mumford v. Am. Life Ins. Co. 405 Mitchell V. Brewster 106 Munson v. Anthony 454 V. Burlington 524 Murray v. Birringer 473 V. Needy 249 V. Palmer 475 V. Mount 412 Mussing V. State 469 V. Pease 58 XXX Index to Cases Cited. N. Page. 1 Naglee v. IngersoU 368, 373 Nance v. Thompson 308 Napier v. Elan 404 Nasby v. Spofiford 235, 236, 392 V. Turner 327 Nations v. Johnson 211 Neane v. Moss 325 Nellis V. Lathrop 502 Nelson v. Allen 29 V. Couch 545 Ness V. Anges 476 Nevecho v. Lafayette Ins. Co. 274 Nevett V. Berry 274 Newberry v. Trowbridge 27 New England Bank v. Lewis 105 Car Co. V. Union I. R. Co. 509 Fire Ins. Co. v. Wetmore 517 Mut. Fire Ins. Co. v. Belknap | 517 Newell V. Newell 259 V. Nixon 476 Newman v. Jenkins 133 Newton v. State Bank 52 N. H. C. R.R. V. Johnson 538 McKerson v. California 103 Nicol V. Atherton 380 Nichols V. Levj'^ 97 Niles V. Ransford 376 V. "Woodward 268 Nixon V. Carco 285 419 565 Noel V. Ewing 224 V. Wells 135 Noble V. Copesachus 64 Norris v. Mil. Dock Co. 452 V. Norris 274 V. State 272 Norton v. Dohermy 72 V. Keany 416 V. Outland 318 , 499 V. Sanders 258 North V. Barnes 502 Norwood V. Manon 3S2 Nouvelli V. Rossi 204 Nowlan v. Geddes 212 Noyes v. Butler 224 V. Webb 495 Nucken v. State Bank 52, 53 Nunally v. White 237 1 Page. Nuny V. Judah 447 Nutford V. Fenwick 328 N. y. & N. H. R. R. V. Schuyler 345, 470, 609, 511 0. O'Bannan v. Paramour 286 Oddy V. Bovil 201 Odiome v. Amesbury Nail Co. 351 Odlin V. Gove 423, 425, 428, 429, 433 Ogden V. Rowley 178 Ogle V. Atkins 389 O'Linda v. Lathrop 260, 265 Olcott V. BanfiU 495 01m stead v. Webster 189 Oldham v. Langmad 268 O'Neal V. Thornton 469 Ormsby v. Ihmsen 426, 429 Orphan House v. Lawrence 30 Osburn v. Endicott 234, 258 V. Tunis 607 Osceola The 178 Osgood V. Nichols 389 Osterhout v. Roberts 101 V. Shoemaker 329, 332, 38;^ Ottawa R. R. Co. V. Murray 512 0. & S. P. R. Co. V. Rust 532 Otisv. Sill 403, 404 Outram v. Morewood 39, 42 ,48, 102 545 Overly v. Overly 471 Overseers v. Supervisors 149 Overton v. Bannister 237 ,417 P. Packard v. Reynolds Page v. Esty Paige v. Kinsman v. Wilcox Paine v. Hibbard V. Wilcox Paisley v. Hays Pallard V. Bell Palmer v. Cross V. Ekins V. Goss 174 86 370 472 468 472 482 200 479 317 479 Index to Cases Cited. XXXI 29. Page. 655 635, 536 521 178 243 155 240, 325 161 511 418, 421, 433 300 272 507 90 72, 895. 418, 421 260, 265 Palmer v. Ilutchins V. Lawrence V. Stiimph Panama The Pane v. Oliphant Paplin V. Hawks Pargetter v. Harris Parish v. Ferris V. Wheeler Parker v. Barker V. Brown V. Campbell V. Foot V. Hotchkiss V. Parker V. Smith V. Thompson Parkhurst v. Kingsman V. Sumner Parsons v. Copeland Partridge v. Badger Pat chin v. Dickenson Patten v. Caldwell V. E sterling V. Lyttle Patterson v. Pease Pawer v. Mitchell Pawlett V. Clark Paull V. Oliphant V. Wilman Payton v. Stith Peabody v. Leach Peak V. Bnrr Pearce v. Jackson Pease v. Chator Peck V. Bannon V. Barr Peck V. M. & F. Fire Ins. Co. Peclv V. Randall V. Woodbridge 95, 143, 159, 161 Peirce v. Andrews 339 Pelham v. Rose 128 Pelletrau v. Jackson 234, 308 Pence v. McPherson 476 Pendleton v. Richey 269, 293 Penn. S. Nav. Co. v. Dundridge 528 Pennyman v. Patchin 174 Pentz V. Knester Penrose v. Gaffin V. Simonson 182 460 151, 156 108 512 882 47 428 840 239, 265, 293 449 495 283 48, 50, 51 372 473 459 304 646 459 511 149 176 251 235 Page. People V. Brennan 626 : V. Bristol T. Co. 565 V. Central R. R. 530 V. Law -^"^^ 613 V. McCumber 450-. V. Miner 405 V. Norton 271 V. Smith 91 Perkins v. Stiner 867 V. Hart 78 V. Moore 544 V. Portland R. R 628 V. Walker 68 Perry v. Calhoun 832 V. Rail Road Co, 266 Person v. Jones 80 Peters v. Peters 184, 159 V. Warren Ins. Co. 200 Peterson v. Lathrop 30, 46, 49, 128 407 444, 447 R. 529 377, 378 240, 559 227 Petrie v. Case V. Fitter Pheiffer v. Sheboygan R. Phelan v. Kelly Phelps V. Blouut V. Brewer Philadelphia W. & B. R. R. v. Howard 178, 512, 542 Phillips V. Berrick 72, 73, 80 V. Bothwell 370 V. Imthum 451 V. Kellogg, 283 V. Pearce 372 V. Potter 240 V. Wooster 246, 247 Philpots V. Elliott 564 V. Hull 352 V. Philpot 560 Philty V. Sauders 296 Phipps V. Senethorpe 370 Pierce v. Keefe 469 Pierpont v. Barnard 841 Pickard v. Sears 837, 402, 422 Pitkens v. Yarborough 348 Pickering v. Burt 484 Picquet v. McKay 551 Pike V. Galvin 286 Pilbrow V. P. A. R. R. 464 Pinney v. Barnes 79 Pintard v. Davis 474 Pitkin V. Leavitt 60 xxxu Index to Cases Cited. Page. Pitt V. Chapman 451 V. Hall 351 Pitts V. Furgates' admrs. 180 Place V. Potts 23 Plate V. N. Y. R. Co 166 Piatt V. Scott 350 Pledger v. EUabe 329 Plant V. Voeghm 442 Plumb V. Catt. Ins. Co. 425, 517, 518 5G4 Plumer v. Lord 439 V. Plumer 3G7 Pocliello V. Kemper 520 Pollard V. Maddox 431 Pomeroy v. Mills 494 Ponder v. Moseby 433, 484 Pope V. Hay 438 Pope V. Henry 284 Poor V. Robinson 288 Porter v. Hill 300, 350 V. May fie Id 369 Porthouse v. Parker 477 Poston V. Jones 62 Power V. Talbot 442 Powell V. Binnfield Mfg. Co. 276 Pratt V. Hubbell 499 Prentiss v. Holbrook 27, 85 Prescott V. Calverly 447 V. Hutchinson 559 President, &c., v. Comer 472 V. Frick 526 Preston v. Many 444 V. McCall 380 Price V. Case 431 V. Dewburst 20 V. Johnston 388 V. Neal 450 Prigg V. Adams 155 Prince of Wales, &c., v. Harding 511 Pritchard v. Hitchcock 20 Proctor V. Keith 426 V. Pool 13 Proprietors v. Prescott 489 491, 492 Provident Ins. Co. v. Mass. 216 Purefoy v. Rogers 216 Queen v. Sandwich Quick V. Thomas Page. 465 345, 432 Q. Queen v. Huntington 82 R. Rab.'juhe v. Lark 265 Racine Bank v. Lathrop 418. 515 Race V. Lawson 445 Ragan's Adm'rs 75, 116 Railroad Co. v. Evansville 158 V. Sparhawk 91 V. Smith 108 Ralston v. Wood 50 Randall v. Bingham 216 V. Phillips 246 V. Rich 380 Rangely v. Spring 192, 260, 422, 479 561 Rankin v. Goddard 203 Rapello V. Stewart 459 Rapalye v. Prince 47 Rathbone v. Fry 227 V. Terry 216 Raw V. Pote 425 Rawles v. Dresley 472 Rawlyns' Ca.se 278, 284, 313, 315, 320 334 Rawson v. Turner 464 Ray V. Bell 353 V. McMurtry 94 Raymond v. Holden 238 V. Raymond 306 Reay v. Duncan 27 Reed v. Burley 565 V. Farr 486, 492, 493 V. Jackson 17 V. McCourt 261 V. Pratt 565 V. Proprietors of Locks 105 V. Sheply 367, 379, 607 V. VanCleve 434 Rees V. Lloyd 324 Reginav. Varsley 148 V. Eastmark 495 V. Gov. of Arlington 169 V. Green 535 V. Sandwich 178 Reid V. Hibbard 178 V. Stanley 116 Index to Cases Cited. xxxiu Page. Page. Romio V. Robertson 568 Roche V. O'Brien 475 V. Tarr 145 Rogers v. Burlington 524 Remsen v. Graves 466 V Coleman 217 Renshaw v. Gaus 664 V. Cross -^•- 406 Rfsor V. V. & M. R. R. 406 V. Haines 58 Reeves v. Reeves 53 V. Lih'iiy 104 ,551 Rex V. Cox 29 V. Parker 260 v. Gundon 169 V. Place 450 V. Hebden 20 Roth V. Wells 350 V. Orgil 356 Rootv. Crook 261, 279,285 301 ,487 V. Stacy 301 Rose V. Davis 371 V. Trevenen 636 V. llimcly 114, 192 ,193 ,198 Reynolds v. AVilas 269 200 ,201 Rhodes v. Otis 487 V. Teyle 446 Ricardo v. Garcias 545 , 546 Roscvelt V. Kelly 149 Rice v. Dwiglit M. F. Co. 230 Ross V. Curtis 626 V. GrofT 52 V. Pritchard 431 V. Savernier 262 V. People 446 Richards v. Johnston 239 V. Wilson 664 v. Watson 128 Roundell v. Fay 539 v. Williams 501 Rounter v. Jacob 266 Richardson v. Chickering 419 ,488 Rourk v. Rourk 224 Richmond v. Hayes 101 , 551 Rowley v. Empire Ins. Co. 517 V. Willis 621 Roxborough v. Meesick 445 Richtmej'er v. Remsen 96 Royal Bank v. Turquand 511 Ridgely v. Stilwell 552 Royce v. Burt 103 Rid way v. Morrison 94 Royston v. Harris 418 423 Rigge V Burbridge 547 Ruckner v. Balgrave 355 Riggin's Ex'rs Brown 80 Runlet v. Otis 240 Rigney v. Smith 534 Russell V. Allard 367 Right V. Bucknell 234, 252, 292 306 V. Erwin 369, 371 376 Riley v. Gregg 473 V. Fabyan 870 V. Waugh 158 V. Maloney 415, 489, 490 Ritter v. Jamestown 120 V. Titus 559 Rivard v. Gardinier 179 Rutherford v. Taylor 496 Rivers v. Thompson 143 Rj'der v. Sisson 407 Roach v. Gar van 207 v. Union Ind. Rub. Co. 419 Roberts v. Levy 242 V. Mills 82 V. Opdyke 459 s. Robertson v. Wilson 308 Robbins v. Richardson 448 Sadler v. Jackson 246. V. Jones 496 Sagory v. Prim 260 Robinson v. Garrow 451 Salmon v. Cutts 466 V. Howard 554 Sammiss v. McLaughlin 408 V. Justice 426, 431, 432 487,562 1 Sampson v. Corke 266 V. Prescott 218 V. Steam Nav. Co. 512 V. Swett 109 Sanderson v. Ballance 417, 419 Rockhill V. Sprigg 267, 269, 270 v. Caldwell 101 Rockwell V. Adams 491 v. Coleman 565 XXXIV Index to Cases Cited. Page. Sandis v. Brant 217 Sands v. Hill 635 V. La Costa 444 Sange's Appeal 349 Sargent v. Sargent 444 Satterlee v. Bell 63 V. Pooley 10 Savarty v. Moore . 487 Sawyer v. Hoyt 650 V. M. F. St M. Ins. Co. 200 V. Whiteside 488 Sayles v. Smith 388 Saylor v. Woodbury 80, 102 V. Hicks 190 Saxton V. Chamberlain 135 Scaggs V. B. & W. R. R. 612 Schaffner v. Gundmake 235 Schatfelin v. Carpenter 380 Schenty v. Coramo;iwealth 495 Schunman v. Ganart 251 V. Weatherhead 30 Schnalz v. Avery 551 School District v. Hobson 351 Scott V. Cleaveland 219 V. Hancock 139 V. Sadler 395 V. Sherman 114 V. i-bumway 219 Scrimshaw v. Scrumishire 207 Seaton v. Benedict 356 Sebastian v. Bryan 272 Secor V. Sturgis 74, 78. 104 Secrist v. Green 94 V. Zimmerman 65 Seden v. Tutop 69 Sedan v. Williams 61 Seiple V. Elizabeth 271 Selby V. Banlens 29 Senner v. R. R. 75 Sertzinger v. Ridgway 60 Seymour's Case 617 • V. Lewis 183 S. E. R. R. Co. V. Warton 234 Shafer v. Kretzel 190 V. Stonebraker 103 Sharpe v. Kelly 368 Shaw V. Beebe 43 V. Turnpike Co. 457 Sheaf V. The Betsy Bee 197 Sheets v. Selden 179, 180 Page. Sheffield v. Callis 438 R W. Co. V. Woodcock 538 Sheldon v. Dilley 96 V. Wright 251 V. Hopkins 220 V. Paine 856 V. Carpenter 64 Shelton v. Alcox 174 V. Barber 48 V. Doe 370 Shepley v. Rangely 400, 565 Sheppard v. Butterfield 549, 500, 541 V. Little 269 Y. Ryers ' 500 ■^ V. Wallace 103 Sheppardson v. Elmore 378, 380 Sherman v. Ballou 149 V. Dilley 94 V. Eldey 408 V. McKeon 521 V. Supervisors • 460 V. Trans. Co. 502 Shields v. Taylor 544 Shurely v. United States 53 Sholes V. State 469 Shrewsburg v. M. W. R. R. Co. 512 Shull V. Biscoe 419 Shumway v. Wilson 219 Sibbering v. Barcamy 466 Siglar V. Van Riper, 309 Sigourney v. Sibley 147 Silver Lake Bank v. Harding 219 Sims v. Salter 368 v. Slocum 143 V. Zane 74, 75, 165 Simons v. Steele 340 Simpson's Appeal 331 V. Hart 92 V. Palace Hotel Co. 612 V. Rickering 545 Simson v. Eckstein 259 Sinclair v. Jackson 232, 235, 241, 263 v. Murphy 350 v. Sinclair 207 Skinner v. Stamer 300 Skipweth v. Green 326 Skirving v. Newfrille 938 Sloan v. Richmond 444 Slocum v. Glubb 485 Small y v. Eddy 104 Index to Cases Cited. XXXV Page. Small V. Baxter 270 V. Hoskias 66 V. Proctor 238, 383, 387, 395 Smart v. Smith 875 Smily V. Wright 330 Smith V. Alexander 101 V. Ballantyne 30 V. Burnham 246 V. Compton 47 V. Crocker 455 V. Emerson 52 V. Gined 466 V. Gibson 546 V. Ileidenecker 532 V. Ingalls 828, 332 V. Ins. Co. 517 V. Kemochan 61 V. Knapp 408 V. KnowltoQ 192 V. Lewis 91, 95, 203 V. Lowe 278, 315 V. Masack 451 V. Mercer 450 V, Merton 339 V. Monies 299 V. Mundy 565 V. Pendleton 261, 279 V. Sherwood 101 V. Smith 296, 388 V. Stone 444 V. Sweeney 480 V. Wait 263 V. Wander 478, 482 V. Whittaker 551, 559 V. Whiting 173' South Bay Co. v. Gray 533 Sneed v. Jenkins 868 V. Osborn 491, 492 Snodgrassv. Ricketts 344, 422, 424 Snyder v. Croy 69, 212 V. Wise 149 Society v. Town of Hartland 55 Society for Savings v. New London 526 Somerset v. R. R. Co. 538 Somers v. Skinner 14, 286, 293 Sparrow v. Kingman 238, 241, 252, 285 286, 301,308,325,362 887, 388 Spaulding v. Hallenbeck 242 Page. Speake v. United States 271 Speller v. Scribner 486, 488 Spencer v. Sloan 217 Spivey v. Morris — *— 101 Spragg V. Shriever 349 Sprague v. Waite 547 Sprigg V. Bank of Mt. Pleasant 272 276, 418, 452, 473, 474 Sprights V. Hanley 472 Springstein v. Schemerhorn 248, 388 St. John V. Roberts 449 Standish v. Parker 101 Stanley v. Whipple 851 Star The 197 Stark V. Hinton 461 Starkie v. Woodward 44 Starkweather v. Loomis 219 V. Barker 150 V. Chandler 248 State V. Eads 55 V. Hart well 149 V. Holloway 419 V. McGrath 144 V. Morton 79 V. Lepre 586 V. Stanley 348 V. Surgart 272 V. Trustees 526 V. Trask 496 State Bank v. Campbell 405 V. Hastings 453 V. Steamer Hope 120 Steam Nav. Go. v. Weed 536, 539 Stearns v. Godfrey 502 V. Henderson 299 Steele v. Adams 399 Stephen v. Harvey 474 Harvey's Adm's. 474 80 138 Steptoe Adm's. v. T. Teft Stevens v. Gaylord v. McNamara 421 Stevenson v. Newnham 463 Stewart v. Board, &c. 144 v. Ketaltas 851 V. Roderick 376 V. Smith 379 V. Stebbins 68 Stilles V. Cowper 423 Stillman v. White Rock Co. 507 XXXVl Index to Cases Cited. Stinson v. Sumner Stimson v. Thomaston Bank Stinchfield v. Emerson Stockton V. Ford V. Williams Stoddart v. Chambers Stokes V. Mowatt Stone V. Britton V. Compton V. Damon V. G. W". R. R. Co. V. Lamon Storrs V. Barker Story V. Lee Steven V. Ecclesheimer Stow V. Wyse Strack v. Seaton Straver v. Ehli Striker v. Kelly Stroder v. Seaton Stronghillv. Buck 242, 252, Strong V. Ellsworth Strout V. Bovington Sturdy v. Jackaway Sturgess v. Alyea V. Secor Sturgeon v. Warfield Stuyvesant v. Davis Style V. Hearing Sullivan v. Stradling Sunderland v. Struthers 239, Supervisors v. Plank R. Co. V. Hubbard SwaflFord v. "Whipple Swanv. Wiswall Swanson v. Walker Swartz v. Faltouts V. Moore v. Saunders V. Swartz Sweet v. Tuttle Sweetzer v. Jones Swift V. Dean Sydam v. Barber T. Taggard v. Stanberry Tarus v. Sevis Page. Page. 300 Tarleton v. Johnson 50, 128 328 332 Tarton v. Hull 258 247, 439 Taunton v. Caswell 387 105 Taylor v. Chambers 27 245 V. Clemsen 148 247 V. Cornelius 91 178 V. Elliott 431 565 V. Ely 335, 339, 412, 423, 439 276 V. Gilmore 665 132 V. McCracken 80 536 V. Needham 327 353 396 V. Parkhurst 465 425 V. Phelps 205 161 V. Wilkinson 507 283 Telle V. Green 230 257 260 Temple v. Partridge 14 368 Terry v. Bissell 448 448 V. Chandler 490, 491 159 Thatcher v. Cannon 892 545 v. Powell 149 268, 273 V. Society 368 417 Thayer v. Bacon 489, 490 545 Thillate v. Stanley 482 61 Thomas v. Bowman 439 893 V. Hubbell 30 , 47 76 V. Ketteminck 137 813 Thompson v. Blanchard 432 463 V. Boyd 380 327 V. Clark 869 371 372 V. Emmet 555 259 260 V. Morgan 262 531 V. Pickel 493 525 V. Santom 396, 408 432 565 269 V. Simpson 417 393 V. Steamer Morton 114 444 V. Thompson 108, 270 329 348 509 V. Tollman 142 352 V. Tolmic 203 480 Thorndike v. Spear 328 332 438 Thornton v. Edwards 601 80 Thorpe v. Cooper 69 406 V. Wedge forth 536 373 Thrall v. Newall 448 189 Thrasher v. Harris Thurston v. Ludwig V. Spratt Tiley v. Cowling 47 663 63 108 Tilghman v. Little 368 558 267 V. West 418 423 72 Tillman v. Davis 62 Index to Cases Cited. xxxvu Tillman v. Shakelton ] Page. 481 u. Tillotson V. Kennedy 285 302 ,307 Page. Tilton V. Emery 299 Ullcry V. Clark 406 V. Meson 478 661 United States v. Adfimtt 469 V. Nelson 420 424 ,425 V. Armistad 246 Tindal v. Den 378 388 V. Collier 361 Tinkum v. Ncale 91 V. Cushman 62 Tioga R. K. Co. 530 V. King 13 Tison V. Yawn 368 V. Little 566 Titus V. Morris 338, 422, 433 V. Nourse 94 Tobacco AYorks v. 'Woodruir 537 V. Price 189, 462 Tolen V. Tolcn 224 V. Primrose 130 Tolman v. Sparhawk 427 Bank v. Merchants' Bank 211 Tomlinson v. Mason 240 Express Co. v. Bedbury 612,613 Tondro v. Cushman 372 Upshan v. McBride 379 Tongue's Lessee v. Nutvvell 429, 433 V. Upshan 461 Tooley v. AA'olcott 635 Usher v. Richardson 331 Topp V. Bank 216 Torron v. Strickler 381 Torren v. Minor 331 V. Town V. Nims 186 Towsley v. Johnson 251 Vale V. Owen 158 Townsend v. Kern 169 Valle V. Clemsen 289 Tracy v. Atherton 607 Valentine v. Mahoney 63 Trafton V. U. S. 61 Vallinghan v. Ryan 544 Trannell v. McDade 245 Van Alstyne v. R. R. Co. 30 Treadwell v. Commissioners 510 Van Arrnan v. Phelps 499 V. Stebbins 68 Van Booklem v. Ingersoll 30 Trecollhick V. Austin 137 Vanderpool v. Drake 446 Trevivian v. Lawrence 251 278 315 Vandevoort v. Smith 353 645 556 557 Van Duzen v. Howe 446, 448 Trimble v. Scott 549 Van Horn v. Fonda 606 Troy Bank v. Lamain 451 Van Hook v. Whellock 520 Trull V. Eastman 281, 286, 293, 294 Van Hosbrip v. Madison City 526 Trumbull Co. M. Ins. Co . V. ] Bor- Van Kleek v. Eggleston 27 ner 519 Van Ornian v. Phelps 499 Trustall v. Robinson 217 Van Rennsalaer v. Kearney 12. 26 Trustees v. Fox 496 287, 290 Tucker v. Clark 299 Van Schaickv. Zane R.R.281 ,305514 Tufts V. Hayes 353 Vance v. Johnson 367 Turner v. Bradner 373 375 Vaugner v. Taylor 269 V. Coffin 425 439 Varick v. Edwards 466 V. Roby 149 Veale v. "Warren 36rf Tuttle V. Reynolds 367 Veazie v. Penobscot R. R. 54 V. Robinson 619 Vermont v. Society, &.c. 243 Twilley v. Rogers 370 Veruam v. Smith 371, 873, 375 Twomby v. Henry 80 304 Violett V. Patten 448 Tyler v. Hyde 61 Virgin, The v. Vyfkina 273 Tyler v. Pomeroy 170 Voorhees v. Bank of U. S. 81, 156,214 V. Ulmann 167 Voltze V. Proutze 91 XXXVlll Index to Cases Cited. Vosburg V. Huntington 388 V. Teuton 486, 487, 490 Vroome v. Van Home 408 w. Wadsworth v. Bentley 546 Wadleigh v. Gline 235, 236 V. Veazie 184 "Waite V. Baray 173 TTalden v. Body 56, 162 Waldo V. Chi., &c., R. R. 529 "Wakefield v. Grossman 339 Walker v. Murphy 565 V. Sedgwick 314, 378 V. Mitchell 60 V. Mocks 142 V. Mosely 151, 399 Wall V. Hurds 381 V. Wall 216 Wallace v. Bassett 483 V. Miner 235, 2G5 Walton V. Newson 565 v. Gavin 170 Walworth Co. Bank v. F. L. T. & Co. 529 Watson V. Hutton 142 Watts Adrs. v. Watts dis 143 Wenzer v. Debauni 73 Ward V. Fuller 829 V. Johnson 474 V. Kelsey 388 V. Mcintosh 249, 262, 331, 333 864, 884, 887, 388 Warden v. Bailey 171 Wender v. Woodruff 387 Warner v. Scott 27 Warren v. Cummings 75 V. Flagg 218 . V. Ferdinand 870 Washabaugh v. Entriken 296 Washburn v. Washburn 243 Wash. Ins. Co. v. Colton 273, 518 Wash. Steam Packet Co. v. Sickle 25 87, 89 Waters Appeal 329, 263, 270, 345, 412 422, 424 Watkins v. Ilolman 862, 383 V. Peck 423 Page. Watson T. Fletcher 309 V. Lane 374, 383, 388 V. McLaren 441, 444 Watts V. Cresswell 237 Watt V. Ganahl 486, 493 Wattles V. Hyde 147 W. T. Society v. Philadelphia 509 Wcale V. Lower Weaver v. Lynch Webb V. Austin Webster v. Lee V. Reed Wedge V. Moore 329, 331, 278, 315 346, 445 320 173 211, 214 364, 384 387 Welland Canal v. Hathaway 341, 565 Wells V. Austin 278, 315 V. Compt 109 V. Pierce 417, 419, 438, 562 Weishod v. C. & N. W. R. R. 494 Welborn v. Finley 235 Weraway v. Paulching 217 Wendell V; Van Rensselaer 412, 417 418 Wesley Church v. Moore 562 West v. Pine 251 V. Gillman 662 West Winfield Bank v. Ford 536 Westfield Bank v. Cowen 472 Western R. R. v. Babcock 523 Westmoreland Bank v.Khnemuth 476 Weston v. Weston 135 Whalin v. White 316, 324, 368. 500 Wharton v. Hardesty v. May Wheeler v. Raymond V. Winn Wheelton v, Hardisty Wheelock v. Henshaw Whirch v. Howard White Mt. Bank v. West White V, Brocan V. Coatsworth V. Coventry v. Evans V. Erskine V. Hopkins V. Laiigdon V. Merritt V. Miller 840 482 203 312 444, 564 240, 241, 293 355, 536 67 345 800 84 618 397 281 453 839 81,82 270 White V. Patten V. Phillips V, Reynolds V. Kiggs Whitehead v. Clifford Whitney v. Clarendon V. Holmes Whittaker v. Sumner V. Conley V. Williams Whittington v. Wright Wiatt V. Essington V. Franklin Wieseger v. Wheeler Wight V. Arnold V. Butler V. Shaw 235, 283, V. Walhamer Wightman v. Reynolds 14, Wilcox V. Wilcox AVild V. Keep AVilder v. Adams V. St. Paul 342, Wildey v. Burney Wild's Lessee v. Russell Wilkinson v. Scott Wilkins v. Wingate Wilkinson v. Lutridge Willan V. Willan Willaid V. Willard Willey V. Pock Williams v. Armoyd V. Ball V. Bennett V. Clairborne V. Cush V. Gibbs V. G. A. Ass. V. Jackson V. Parker V. Presbyterian So. V. Sweetland V. Thacher V. Thiirlow V. Wheeler Willis V. Swart ze Willison V. Watkins V. Watson Wilson V. Chalfant V. Green ] ^agc. 283 ,313 399 96 147 381 547 490 53 230 27 427 483 546 266 471 478 80 289 293 137 281 290 224 477 460 397, 497 499 368, 379 383 395 370 450 564 52 50 200 116 364 279 384 51 532 446 444 279 242 308 546 286 157 417 488 370 502 362 438 474 476 VSES L.ITKD. XXXIX rage. Wilson V. Harwood 423 V. Hiiyne 4(11 V. MeKenzie 171 V. McCleniiing 191 V. Smith ■"'*^ 8(17 V. Townsend 371) V. Turner 35;^ V . Watkins 373, 378 384 V. Watts 564 V. Wilson 484 Winder v. Lane 472 Winlock V. Hardy 238,-3^ Winans v . Peebles 270 Wine V. Withers 171 Wires v. Nelson 507 Wiseman v. Macy 333 Witchcote v. Lawrence 468 Witchcr V. Williams 338 Witherell v. M. Ins. Co. 616 Wivel's Case 279 Wolcott V. Knight 239 Wood V. Dwarris 346 564 V. Fleet 499 V. Griffin 421 425 -: V. Jackson 89 V. Kirk 660 V. Mann 146 V, Ostram 561 V. Stephen 80 V. Turner 501 Woudbury v. Paisley 438 Woodhouse v. Williams 541 Woods V. C. & C. R. R. 629 V. Wilson 423, 426, 431 439 Woodman v. Clapp 312 Woodward's Adm'rs v. Campbell 405 Woodward v. Harbin 451 Woodruff V. Spafford 189 V. Taylor 110 130 Woodfolk V. Ashby 385 Wolf V. Wilton 78 Woolly V. Edson 439 Worden v. Haviland 664 Work V. Bra\ ton 270 Worral v. Lathrop 338 Worthington v. Hillyer 13 Wright V. Allen 446 V. Bodley 98 V. Boiling 898 V. Butler 44,80 Index to Cases Cited. Wright V. Degraff V. Dekline V. Dunning V. Hazen V. Leclaire V. Walbaura "W^yland v. Stafford Wymanv. Harman V. Mayor V. Perkins Wynn v. Harman Page. 439 44 164 660 27 137 393 289, 300 498 343 300 "Wyoming Ins. Co. v. Sheffler 515 Y. Yard v. Hammond 150 Page. Yates V. Donaldson 474 York Building Co. v. Mackenzie 468 Young V. Black 27, 104, 547 V. Bush 522 — — V. Foute 353 V. Hunter 457 V. Raincock 18, 234, 268, 273 547, 555 V. Runnell 105, 547 V. Ward 448 V. Wright 353, 472 z. Zabriskie v. C. C. & C. R. R. 456. 513 Zants V Courcelle 287 Zeller v. Eckert 378, 502- PEEFACE. The Author in his practice has often felt the necessity of a work embracing as fully as possible, the law on the sub- ject of Estoppel. No work has been published in which the subject is fully treated, and with the exception of the able review in Smith's Leading Cases, the law is to be found scattered through the text books and reports. It has been his aim to gather the decisions and rules, laid down by the various courts in England and America, and to give the law in a concise, comprehensive and practicable form. In doing so he has endeavored to treat separately, the several subjects to which estoppels peculiarly apply, such as judg- ments in rem.; in personam, or inter partes; proceedings in rem.; of courts of superior and inferior jurisdiction ; by d,eeds ; landlord and tenant ; mortgages ; corporations, etc. The writer has substantially laid down the settled rules and principles which have been applied to a doctrine of the law which once served as a species of judicial tyranny, but which has, by modern innovation, become a branch of the jurisprudence of all nations. The work originated in a conviction that the labor of every member of the Profession would be materially les- sened by an attempt,- however imperfect, to collect and reduce into system the decisions on this important branch of the law. The writer has aimed to show what an Estoppel is and how it is made effectual, and has not intended to show what is not an Estoppel, or when it could not be applied. Where the principles laid down are &mly established in the jurisprudence of both continents, he has not deemed it necessary to cite authorities, and has cited only sufficient to show where the principles and rules have been applied as stated in this work. Should it render the arduous labors of the Profession lighter and pleasanter, the Author will feel amply rewarded for his labor. ESTOPPEL THE LAW OF ESTOPPEtr CHAPTER I. THE ORIGIN, NATURE, AND OBJECT OF ESTOPPELS. Section 1. There are but few older principles or rules of law that have been handed down from generation to generation, from the earliest days of the Eoman law to the present time, than that of Estoppel. The term estoppel is derived from the French word estoupe, whence the English word stopped, and it is called an estoppel, or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth. Conclusion is derived from the verb concludo, which is derived from con and cludo, to determine, to finish, to shut up, to estop, to bar a man, to plead or claim anything ; it signifies literally the winding up of all arguments and reasoning. § 2. Touching estoppels, says Lord Coke, which are a curious and excellent kind of learaing, it is to be observed there are three kinds of estoppels : by Matter of Record ; BY Matter in Writing ; and by Matter in Pais ; and although Coke uses the word writing, it is clearly evident that the wi'iting which will operate as an estoppel must be a deed. Estoppels therefore are : 1. By Matter of Record ; 2. By Deed ; 3. In Pais. § 3. A man is said to be estopped when he has done some act which the policy of the law will not permit him to gain- say or deny. An estoppel is when a man is concluded by his own act. An estoppel is an obstruction or bar to one's alleging or denying a fact contrary to his o^vn previous ac- tion, allegation or denial. A conclusion or admission which 8 The Law of Estoppel. cannot be controverted. A man shall always be estopped by his own deed, or not permitted to aver or prove any- thing in contradiction to what he has once solemnly avowed. Estoppels signify that a man for the sake of good faith and fair dealing, should be estopped for saying that to be false, which by his means has once been accredited for truth, and by his representations has led others to act. The very meaning of estoppel is when an admission is intended to lead and does lead a man with whom a party is dealing into a line of conduct which must be prejudical to his interest, unless the party estopped be cut off fi'om the power of re- traction. An estoppel affecting the right of a party in real estate, may be created by matter in pais, consisting of acts and declarations of a person by which he designedly induces another to alter his position, injuriously to himself; as for instance, if a person with full knowledge, permits another without objection, to sell his property as the property of the vendor, he will be estopped from questioning the title of a bona fide purchaser ; and where one has a secret title or trust or interest in property, and permits one to ex- pend money on the property, he is estopped from question- ing the title. But a party is not estopped by an admission or assertion of a conclusion of law upon undisputed facts. ^ § 4. Where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position. The former is estopped from aver- ring against the latter a different state of things as existing at the same time. By the term wilfully, it must be under- stood, if not that the party represents that to be true, which he knows to be untrue ; at least, that he means his represen- tation is to be relied and acted upon accordingly, yet gen- erally without regard to intention ; if the party so conducts himself as to deceive a reasonable man to his prejudice, he will be estopped from asserting the truth. As every man is bound to act and speak according to the -truth of the case, the law presumes lie has done so, and will not allow him to 1 Brewster v. Striker, 2 N. Y. 19. Oeiqin, Nature, and Object of EsxorrEL. 9 contradict so reasonable a presumption. This is the foun- dation of the doctrine of estoppels. The truth is deemed to be shown by what estops. ^ 5. An estoppel is, therefore, an admission, or-setnething which the law treats as an admission of an extremely high and conclusive nature, so high and so conclusive that the party whom it affects is not allowed to aver against it or offer evidence to controvert it. Though it may be shown that the party relying upon it is estopped from setting it up, since this would not be to deny its conclusive effect as to him- self, but to incapacitate the other from taking advantage of it. Such being the general nature of an estoppel, it matters not what the fact thereby admitted may be, or what would be the ordinary or primary evidence of that fact, whether by matter of record or speciality of writing, unsealed or mere parol. The fact may, in such case, be proved, the ordi- nary evidence rendered unnecessary by an estoppel ; and this is no infringement on the rule of law requiring the best evidence to be produced, and forbidding secondary evidence to be produced, until the sources of primary evidence be exhausted, for the estoppel professes not to supply the ab- sence of the ordinary instruments of evidence, but to super- cede the necessity of any evidence by showing that the fact is already admitted. An estoppel is an imperative and abso- lute presumption of law determining the quantity of evi- dence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise ; it forbids and dispenses with any ulte- rior injmy. Estoppels have been adopted by common con- Bent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and therefore is it that all corroborating evi- dence is dispensed with and all opposing evidence is for- bidden. ^ 6. An admission, which is in the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, were it not for the admission, must be proved by certain steps appropriated by law to that pur- pose ; iis for example, a recital in a deed stated, that the 10 The Law of Estoppel. deed was executed in pursuance of a power contained in a certain will. A will, purporting to have been the will under which the deed was made, was introduced, and there was some slight evidence that, that was the will mentioned in the deed, and it was held that this was sufficient evidence to go to the jury without calling the attesting witnesses. In deciding this case, Chief Justice Tyndal said, " he did not put the admissions as high as an estoppel, but it has its effect on this principle, where a party executing a deed was held estopped by the recital of a particular fact in that deed to deny or controvert that fact."^ § 7. Notwithstanding the unpromising definition of the term estoppel, the doctrine is in no wise unjust or unrea- sonable, but on the contrary, it is reasonable and just in the highest degree, that the law should provide for some solemn mode of declaration in order that men may bind themselves to the good faith and truth of representations on which other persons are to act. Interest reijmblicae ut sit finis litiurn^ is an old maxim deeply fixed in the law of fundamentals ; that it concerns the state that there be an end of litigation. This maxim has a wide application ; it, in fact, embraces the whole doctrine of estoppels ; a doctrine which is obviously founded on common sense and soimd policy. For if mat- ters which have been once solemnly decided are to be again drawn into controversy ; if facts, once solemnly affirmed, are to be again denied whenever the affirmant sees his opportu- nity, there can never be an end of litigation and confu- sion. It is wise and just, therefore, to provide certain means by which a man may be estopped or concluded — not from saying the truth — but from saying that, which by the intervention of himself, has once become accredited for truth, is false. And, in all probability^ no Code, however rude it might have been, ever existed without some such provision for the security of men, acting as all men must, upon the representations of others. 1 Bringloe v. Goodson, 1 Bing. N. C. 739; Shelly v. Wright, Willes, 9; Sat- terlee v. Pooley, 6 M. & W. 6G4; Newhall v. Holt, ih. 662; Fox v. Waters, 12 A. & E. 43; Marchoness of Annandale v. Harris, 2 P. Wms. 432; Mayor of Carlisle v. Blamire, 8 East, 487; Carver v. Jackson, 4 Peters, 1. Origin, Nature, and Object of Estoppel. 11 ^ 8. The reasons why estoppels are allowed, seem to be : First, no man ought to be allowed to allege anything but the truth for his dctence, and what he has once alleged is presumed to be true, and therefore he ought not to be per- mitted to contradict it. It is said in the second instance, " Allegans contraria non est audiendus." He is not to be heard who alleges things contradictory to each other. Secondly, as the law cannot be known until the facts are ascertained, so neither can the truth of them be found out from the evidence ; and it is reasonable that some evidence should be allowed of so high a nature as to admit of no con- tradictory proof. ^ 9. The law of estoppel is not so unjust or absurd as it has been too much the custom to represent. Its founda- tion is laid in the obligation which every man is under to speak and act according to the truth of the case, and in the policy of the law to prevent the great mischiefs resulting from uncertainty and want of confidence in the intercourse of men, if they were permitted to deny that which they have solemnly and deliberately asserted and received as ti'uc. The doctrine of estoppel has been guarded with great strictness, not because the party enforcing it wishes to ex- clude the ti'uth, but it is to be supposed that, that is true which the opposite party has already recited ; but because the estoppel may exclude the truth, and for this reason estop- pels must be certain to every intent ; for no one shall be denied setting up the truth, unless it is in plain and clear con- tradiction to his fm'mer allegations and acts. The doctrine of estoppel is both equitable and legal, and will be applied by courts, both of law and equity, in all proper cases upon well ascertained faqts and between the proper parties. Courts of equity will disregard the principles of estoppel in Ihose cases where it becomes necessary to prevent injustice only through mistake, accident or fraud. § 10. Estoppels are sometimes said to be odious and not favored in law ; and it has also been said "that there is no equitable estoppel. But the doctrine of election, which prevents a party from claiming repugnant rights, and which has been so advantageously introduced into courts of equity, 12 The Law of Estoppel. is manifestly an extension of this principle. In courts of law, they are for the most part reconcilable to the purest morality; and when they produce neither hardship nor in- justice, they merit indulgence if not favor. The conclu- siveness of judgments, which conduces so essentially to peace and repose, has no other foundation. This doctrine of estoppel may debar the truth in a particular case, and is therefore not unfi-equeutly in such cases declared odious. Still it must be remembered that it debars it only when its utterance would convict the party of previous falsehood, or would be a denial of a previous representation, on the faith of which other persons have dealt or pledged their credit, or expended their money. It is a doctrine, therefore, when properly understood and applied, that estops the truth in order to prevent fraud and falsehood ; and imposes silence only when the party should not, in conscience and honesty be allowed to speak. And it is now one of the well settled principles of law, both in foreign coimtries and our own, that estoppels are favorably looked upon by the courts as tending, when properly construed and applied, to uphold the pur[3ose of agreements and prevent and suppress fraud and injustice.^ ^11. Their technicality will accordingly be restrained, their ti-ue meaning adduced and applied, and they may even be raised by implication in aid of persons who have acted on faith, of a declaration to which they were origin- ally sti'angers, and which was not meant to be conclusive in their behalf. The office of estoppels at law is like that of injunctions in equit}^, to preclude rights that camiot be as- serted consistently with good faith and justice, and prevent wrongs for which there might be no adequate remedy.'- And they should, consequently, when the circumstances will per- mit, be so construed and moulded as to not deviate from their object ; and in those cases where estoppels are said to be 1 Waters' Appeal. 35 Penn. 522; 2yan Rensselaer v. Kearny. 11 How Bocock V. Paver, 8 Ohio St. 280; 297. Van Rensselaer v. Kearny. 11 How. 297; Den v.Doe,8 Ind. 495; Les- see of Buckingham v. Hanna, 2 Ohio, 551. OiiioiN, Nature, and Object op. Estoppei,. i:^ odious or not favored, should be understood to be ouly where the teehuicality of the estoppel cannot be subservient to its equity. As for an example, in the case of the S. E. li. W. Co. V. Warton, in a comprehensive declaration, i*Min agree- ment to be referred to arbitrators, the parties had settled, adjusted, and mutually satisfied every other claim and de- mand which they had against each other, arising in imy account, matter or thing whatsoever ; yet this was held not to be an estoppel to a cause of action arising prior to the agreement, because the intention, as indicated by the tenor of the agreement, was to make the settlement only for the purpose of reference.^ But where a deed contains a reci- tal of a particular fact, in express terms, the eilect of the recital cannot be got rid of by showing what the intention of the parties "was. ^ 12. But where the language is general, the intention may be collected from the whole deed. But when a j)ar- timlar clause is of such a nature that it cannot stand with- out mvalidating the whole instrument, it may, in such a case, be shown to be false and rejected altogether.-^ A deed containing a recital that a feme sole is covert, will not pre- clude either party from proving that she is a feme sole, in order to support the grant.^ In the earlier history of the law, the doctrine of estoppels was more harshly and vigor- ously enforced ; in fact, it was a species of legal tyranny, by means of which the intervention of an estoppel excluded the truth in many cases where justice and equity required its admission, and it often became a preposterous and ab- surd defence. The courts of modern times have, however, modified the doctrine, and application of estoppels to con- sistency and in accordance with the law of common sense and justice, and courts will be found to have been some- what astute to reconcile the hnrsh doctrines of the earlier law with the substantial truth and justice of the cause. ^ An 1 6 Hurst. &. N. 520. 3 Young v. Raincock, 7 C. B. 310; 2 Doe V. Carew, 2 Q. B. 317; Worth- Viner Abrig. Estoi)iK'I, M. 8, Pi. 3; ingtoa V. Hilycr, 4 Mass. 196; Brincgar v. Chaffiii, 3 Dev. 108. Proctor V. Pool, 4 Dev. 370 ; Uuited 4 Don v. Camp, 4 llarr. 148. States V. King, 3 llow. 773. 14 The Law of Estoppel. estoppel, in the words of Lord Coke, is where a nmii, by his own act or acceptance, is concluded to say the truth, and generally arises from some precise and positiv.e allegation, made under circumstances which preclude the right and power of contradiction. So a party, which doubtfully alleging a fact, or even asserts its existence, agrees to be bound by it whether it exists or not, will be as much estopped from relying on it subsequently, as a defence to the contract, as if there had been a recital or stipulation expressly deiiy- mg that which he seeks to establish. The evidence under these circumstances is shut out — not because it is inconsistent with the deed or false — but as being, by the terms of the agreement, irrelevant to the decision of the case before the court. ^ So the estoppel of a compromise rests on the same basis and may arise without a seal. As an illustration of this principle, the following case may be cited : An agreement made with a patentee to manufacture his machines upon certain conditions, and making and selling such machines under the patentee's title, estops the manufacturer from al- leging the invalidity of the patent as a defence to an action by the patentee for an account under the contract.^ "Where a remedy is by action, an executory agreement ; as for ex- ample, not to convey or sue, does not operate as an estoppel.^ But when such an agreement is intended to give force and effect to a present transfer and covenants of warranty for quiet enjoyment, or for a future assurance, not only precludes the covenantor from disputing the title he has conveyed, but from asserting any other that he may subsequently acquire.^ ^ 13. The effect of an estoppel, whether legal or equita- ble, is the exclusion of evidence, and its existence must always be a question of law for the court and not of fact i Temple V. Partridge, 42 Maine. 56; 2 Kingsman v. Parklmrst, 18 How. Jackson v. Waldi-on, 13 Wend. 289; affirming S. C. 1 Blatchford, 178; Wightman v. Reynolds, 24 C. C. R. 488; Heilner v. Battin, 27 Miss. 675; Goodrich v. Bryant, 5 Pcnn. 517. Sneed. 325; Heilner v. Battin, 27 3 Gibson v. Gibson, 15 Mass. 106. Pcnn. 517; Hills v. Lansing, 24 ^ Somcs v. Skinner, 3 Pick. 52; Fair- Eng. L. & E. 432. bank v. Williamson, 7 Greenl. 96. Origin, Nature, and Object of Estoppel. 15 for the jury. Estoppels, whether claimed as of record or in pais, must be such within the principles which gives them force before they will be ellectual. An estoppel may be used as a defence against a party who is thus-^-ecluded from his act or statement from maintaining his action ; or it may be used by the plaintiff to prevent or avoid a defence which is open to a similar objection. This doctrine at law gives rise to a kind of pleading that is neither by way of traverse, nor confession or avoidance, viz : a pleading, that waiving any question of tact, relies merely on the estoppel, and after stating the previous act, allegation or denial of the opposite party, prays judgment if he shall be received or admitted to aver contrary to what he before said or did. This is a pleadiiig by way of an estoppel. § 14. As we have now ascertained what an estoppel is and from whence it originated, we will now ascertain its opera- tion and effect as a defence which is at once final and con- clusive ; and as we have already seen the number and kinds of estoppels, we will proceed now to treat of them in order, viz : I. Estoppel by Record ; II. Estoppel by Deed or Writing ; III. Estoppel In Pais, or Equitable Estoppel ; showing how they are used as against parties and things, whom they bind or estop, and in what their conclusiveness consists. CHAPTER II. ESTOPPEL BY RECOED. Section 15. Eecords are the memorials of the proceed- ings of legislative bodies and of the king's courts of jus- tice iu England, preserved in rolls of parchment, and they are considered of such authority that no evidence is allowed to contradict them. In the ancient practice all court records were wi'itten in latin, on parchment, and contained all the proceedings in a cause, from the filing of the petition or declaration to the final decision or judgment ; they were accurate transcripts of all the proceedings, papers and pro- cess in the action, but there have been great innovations in this practice, and they are now written in the English lan- guage and are not as full and complete as they were in olden times, but their authority has not been lessened to any great extent. A record is, therefore, a written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said or done, and may be divided into three classes. First, those which relate to legislative proceedings ; second, the courts of common law, the courts of chancery, and those which are made so by statutory provision ; a record imports such ab- solute verity that no person, against whom it is admissible, shall be allowed to aver against it.^ And upon this point the law is well settled that a party cannot be alloAved or received to aver against it.'^ As an instance of the conclu- siveness of a record, the case of the King v. Carlisle,^ may be cited. There the defendant had been convicted of a crime, and brought error to an appellate court, assigning as eiTor that there was but one judge on the bench when there should have been more at the time of the trial. The record was made up in the ordinary way, showing that the court ' Co. Litt,2G0 a. Gilbert Ev. 5; Glyn 2 King v. Carlisle, 2 B. &, A. 362. V. Thorp, 1 B. & A. 15G. 3 2 B. & Ad. 3(32. EsTorrEL by Record. 17 liolow had regularly I'literod jiulgincnt ajrainst liim. The appellate court, Lord Teiiterden delivering the opinion, held Ihat a record imports such absolute verity that a pj^iity could not aver as error in fact a matter contrar}^ to that record ; while in the tirst. Justice Coke says: The rolls or memo- rials of the judges of the courts of record import in them such uncontroUaljle credit and verity as to admit of no 'averment, plea or proof to the contrary ; and if such a record be alleged and it be pleaded nul tiel 7'ecord, it shall l)e tried only by itself; for otherwise there should never be an end of litieration. Numerous cases are found which conclusively settle this principle of law. ^ Id. Judgments and verdicts of courts are always of record. They have, thercfofc, the character which belongs to all records, that they cannot be contradicted by evi- dence. ' Where a judgment is produced in which the record shows that there were several issues, the opposite party will not be allowed to aver that there was no evidence offered on one of the issues, or that the judgment as to that issue was entered by mistake.'- § 17. If there were no limitations to this conclusive effect of records, courts of justice would become tyrannical inqui- sitions, inflicting, under the guise of justice, great hardships, wrong and oppression, by enforcing what might be termed edicts, surpassing all record of ancient tyranny and injus- tice, upon parties in no ways interested in the matter in dis- pute, which had been adjudged and finally concluded. There are, therefore, certain principles and considerations l)y which the conclusive effect of records are limited, laid down by Lord Coke and other eminent jurists. ^18, 1. Where tJie record is coram non judice. Where a court has no jurisdiction over the person, the cause or the process, as where an indictment purports to have been de- termined in a civil tribunal having no criminal jurisdiction. 2. Where the irulh cqjpears in the same record. As where a defendant is sued by a wrong name, and enters into a bail 1 2 Phil. Ev. 2. 2 Reed v. Jackson, 1 East, 355. 2 18 The Law of Estoppel. bond Prout the writ, us he must and then puts in bail by his right name ; he Avho was arrested is not estopped from plead- ing in abatement, or where the record shows that the judg- ment relied on as an estoppel has been reversed in error. 3. Whe7-e the matter alleged is consistent icitJi the record. A man is not estopped to aver a thing consistent with the record ; as if A. B. senior, and A. B. junior, are bound by an obligation, it may be averred that A. B. junior, was in- tended. 4. ^Hiere the allegation of the record is uncertain. For an estoppel, not being favored by the law, ought to be cer- tain to every intent, and not be taken by argument or infer- ence ; it ought to be a precise affirmation of that which makes the estoppel, as if it b» said, ut dicitur quia in per- sonalitas, non concludet nee leget impersonal dicitur^ quia sina persona, and therefore if a thing be not directly and precisely alleged it shall be no estoppel. 5. Or is alleged merely by ivay of supposal. In the words of Lord Coke : ' ' Matter alleged by way of supposal shall not conclude after nonsuit ; otherwise after judgment, and after nonsuit, notwithstanding the supposal in the count, shall not conclude, yet bar the title, replication, or other pleading, which is precisely alleged, shall conclude after nonsuit — and hereby are the books reconciled." 6. If not traversable or material. Where matter is neither traversable or material, it shall not estop, as for example : the day in an indictment, or a description of the nature of land in a lease, or as in a debt upon an obligation alleged to be made in A., in another action upon the same obligation, he may say it was made in B. 7. Estoppels ought to he reciprocal or mutual, that is to hind hoth parties ; and this 'is the reason that strangers shall not take advantage of nor be bound by an estoppel. 8. Where there is an estoppel against an estoppel. In the words of Coke : " An estoppel against an estoppel set- teth the matter at large, as a warranty against a warranty." 9. There is no estop^pel where an interest ptcifsses. By which is meant that a grantee is not estopped from saying that a grant does not pass so great an interest as it purports to EsTorrEL by Eecord. 19 convey, though he is estopped from saying that it passes no interest at all. § 19. Bnt the principal limitation to the couclusjje eflfect of a record, is that arising from the consideration, that, in most cases, it is not binding, or even evidence between all persons. Questions of this sort generally arise on judgments, they being by far the most extensive species of records.^ ^ 20. A judgment, sentence or decree is a judicial deter- mination of a cause agitated between real parties, upon which a real interest has been settled. In order to make a judgment, sentence or decree, there must be a real interest, a real argument, a real prosecution, a real ^efence, a real decision. Of all these requisites not one takes place in the case of a fraudulent and collusive suit. There is no judge ; but a person, invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him ; there is no party litigating, there is no party defend- ant, no real interest brought into question. It is the decis- ion or sentence of the law, which is pronounced by a judge or court upon matters "contained in the record of an action which has been prosecuted or litigated before such judge or court; and the final proceeding in an action at law, by which the court applies the law to the particular case presented before it, and specifically grants or denies to the plaintitf the remedy which he has sought by the action ; and if the defendant sets up a claim by way of affirmative relief, claim, or defence, such right is also determined and declared. In every action which is prosecuted to its final termination, the litigant parties present to the court the facts and agreements to be considered, and the points of law to be resolved; and the judgment is the result of a full determination of all these matters, while the judge or court pronounces the decision, is the decision or sentence of the law, and the court or judge is the mere instrument in expressing the determina- tion of the law. § 21. There are numerous legal questions that arise from the simple fact that there has been a judgment rendered in 1 Smith's Leading Cases, 659. 20 The Law of Estoppel. an action by a court of competent jurisdiction. It may con- stitute part of a title, or be used to show that a controversy has been adjudicated, or as a means of letting in certain testimony used on a former trial, or in justification of pro- ceedings in execution of the judgment, or to entitle a part- ner to contribution, or for any purpose to which a judgment is properly applicable, while a judgment against one man is generally no evidence against another. Yet, Avhere A. sues B. for neghgence as his agent, he can prove the consequences of the negligence to himself, by producing the record of a judgment against him by a third party ; the record in such cases is evidence as to the amomit of damages, but not as to the fact of the injury.^ Sec. 22. According to the Koman Law as administered by the praetors, an action might be defended in any of the following modes :- 1st. By a simple denial or traverse of the facts alleged as the ground of action. 2d. By pleading new facts which constituted, tjysojure, a bar to the plaintiff's claim; although such claim might have been in the first instance, well founded as a payment or a release. 3d. By showing such facts as might induce the praetor, on equitable grounds, to declare certain defences admissible, the efiect of which, if established, would be not, to destroy the action ipso jure, but to render it ineffectual by means of the '■'■ exceptio^'' thus spe- cially prescribed by the praetor for the consideration of the judge, to whose final decision the action might be referred. Excej[)tio is, therefore, defined to be, quasi quaedam exclusio quae opponi actioni cujusque rei solely ad elidendum id quod, in intentionem consentionemve deductem est,^ and according to Paulus : Exceptio est conditio quae modo eximit reum damna- tione, modo minuit condemnationem,^ In the class of excep- tions referred to was included the exceptio rei judicata from which the pica of judgment recovered or estoppel by record IGrreonv. New River R.R. Co.,l4 T. 2 Mackeldy's Civil Law, 407 R. 590; Rex v. Hebden, BuUers N. 3 Brisson (cd cura Heinec.) P. 231 ; Pritchard v. Hitchcock, 6 4 Dig. 44, 1, 22, Pr. M. andG. 151. Estoppel by Record. 21 in our law may be presumed to have derived its origin.^ The res judicata was, in fact, a result of the definitive sen- tence, the decree of the judge, and was l)inding_ui)on, and in general unimpeacha1)le by the litigating parties ; and was expressed by the familiar maxim, res. adjudicata pro veritate accipitur, which nuist l)c understood, to have applied only when the same question was onccjudiciall}^ decided, and was again raised between the same parties, the rule l)cing exceji)- tionem reijudicatae ohstare quoties eadem quaestio inter easdem personas revocaturr' Sec. 23. The mode in which this particular exception was, in practice, made available under the Roman law, may be illustrated as follows : B. having no title to a horse, sells it to C. A. is the rightful owner of the horse and brings an action against C, who recovers a judgment against A. After- wards C. loses the horse and A. obtains possession of it. C. brings an action against A. to recover possession of the horse. A. files an answer denying C.'s title to the horse. C. success- fully estops A. from denying his title by pleading the res adjudicata, or former judgment between the same parties. Sec. 24. The exceptiones which were unknown to the old Roman law, were introduced to mitigate its rigor by letting in defences which were not admissil)le or valid stricti juris ; by long usage and custom these exceptions became establish- ed in such a manner as to berecognizedby the j«.s civile, and ceasing to depend merely upon the will of the praetor, be- came in some measure compulsory upon him. In the civil law the plea of judgment recovered at once suggests itself as analogous to the exccptio i^ei judicata above mentioned, sis directly founded on the fundamental principle of the law, " nemo debet bis vexari.pro una eadem causaJ' With the rule of the civil law rightly understood, which, in the language of Ulpian, says : res adjudicata jjro veritate accipitur. The law of England and America generally agrees. Sec. 25. The sound reason of the rule cannot be better expressed, thanPaulus, in the digest, thus lays it down: Sin- gulis controversiis, singulas actiones unamque, judicati Jinem 1 Phillimore Roman Laws, 43. 2 Digest 42, 1 pr.; 3 Digest Civil Law, Dib. 44; Let. 2, § 24. 22 The Law of Estoppel. sufficere jgrobahili ratione, jjlacuit ; ne aliter modus litiu'.n muhiplicatus smnmam atque inexpUcabilem faded difficulta- tem, maxime, Si. diversa pronunciarentur.^ Other passages in the same division of the digest are to this effect; thus Ulpian says: "■ Etgener aliter, {utJulianus defnit) exceptio rei judicatae obstat quoties inter easdem personas eadem quaestio revocatur, vel alio genere judicUr'^ Paulus says : " Cum quaeritur, haec exceptio noceat necne 9 inspiciendum est an idem corpus sit.^ Et an eadem causa pe- tendi et eadem conditio personarum : quae nisi omnia concur- runt, alia res est^^ And again, " Si quis interdicto egerit de possessions postea in rem agens non repellitur per exceptionem; quoniamin interdicto possessio, in acti one p)ropri etas vertitur,''^ and Neratius, " cum de hoc, an eadem res est, quaeritur, haec spectanda sunt ; personoe ; id ipsmn de quo agitur : causa proxima actionis : nee jam interest, qua ratione quis eam causam aUionis competere sihi existimasset ; peinndeac si quis, pos- tea quam contra eum judicatum esset, nova instmimenta causae suae reperisset.''^'^ Voet, in his commentary on this title says : '^JVbn aliter tamen huic exceptioni locus est, quam si lis ter- minata denuo moveatur inter easdem personas, de eadem re, et ex eadem petendi causa; sic ut, uno ex his tribus deficiente cesset. Eadem res intelligitur quoties apud judicem posteriorem, id quaeritur quod apud prior em quaesitum est. Eadem petendi causa est etiam, licet non eadem agatur actione, sed alio judicii genere eadem quaestio ventiletur; cum eandein causam non tam actio facial, quam potius origo petitionis. Qua ratione, cum propter rei emptae vitium tale, propter quod eam emptor emp- tunts non fuisset, et redhibitoria et quanti minoris actio competere possit, sic ut actio, quanti minoris etiam redhibitio- nem tunc contineat. Julianio placuit eum qui, alterutra earurn egerit, si altera. postea ogat rei judicatce exceptione sub- tnovendum esse.'' Vinnius, in a note to the 13th title of the 4th book of the institutes upon the words "jjer exceptionem rei judicatae,'' says : " Quae ita agenti obstat si eadem quaes- 1 Digest, lib. 44, tit. 2 § 6. 4 Digest, lib. 44, tit. 2, .sec. 14. 2 Digest, lib. 44, tit. 2, sec. 6. 5 Digest, lib. 44, tit. 2, sec. 27. 3 Digest, lib. 44. tit. 2, sec. 12. ESTOITEL BY ReCORD. 23 tio inter easdem revovetur, id est, si omnia sint eadem, idem corpus, eadcm quaiititas, idem jus, eadeni ccrnsa jjatetidi, eadeni conditio personarunu Sec. 20. If un action be brought and the mcw-<» of the question be discussed between the parties and a final judg- ment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps some objection or argument might have been urged upon the first trial which would have led to a dilferent judgment. In such a case the matter in dispute hav- ing ly.issed in rem judicatum, the former decision is conclu- sive between the parties if either attempts, by commencing another action to reopen the question.' A decision once made by the highest tribunal empowered to pass upon it, or a judg- ment rendered by a court of competent jurisdiction, that is hav- ing jurisdiction of the parties or thing adjudicated upon, which is unreversed or unannulled, is conclusive upon the parties to the controversy and their privies, and they are for- ever afterwards estopped or barred from reviving it in any new proceeding, for the purpose of the same or any other question passed upon in the former action. The matter in controversy, the cause of action has become definitely settled by judicial decision ; it is res adjudicata, and the judgment of the court imports absolute verity, whatever the question involved, whether it be the iuterjDretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of conclusiveness is the same. The controversy has been adjudicated, and once finally passed upon is never to be renewed. Sec. 27. This rule of conclusiveness, this doctrine of estop- pel, is one of the most inflexible principles of law, and has its foundation in this fimdamental principle, " interest repub- licae ut sit finis litium.^^ When a cause of action is so far the same that a former judgment can be pleaded in bar, or when the matters in controversy in the suit can be shown by record evidence to have been examined and decided in another. There is every reason why that which hits attained the high- 1 Greathead v. Bromley, 7 T. R. 456 ; Bagot v. Williams, 3 B. & C, 235; Place V. Potts, 5 H. L. cas. 383. 24 The Law of Estoppel. est degree of certainty known to the law, should not again be litigated between the same parties ; for it concerns the peace and welfare of community that there should be an end to litigation. Justice requires that every cause should be once fairly tried, and the public tranquility demands that having been once so fairly tried, all litigation of that question between those parties should be concluded forever. Were it otherwise there would be no security for any person and great injustice might be done under color and pretence of law.^ To ascertain the grounds and motives which may have led to the final determination of a question once settled by the jurisdiction to which the law has referred it, would be extremely dangerous, and it is better for the general ad- ministration of justice, that one individual should be incon- venienced than that the whole system of jurisprudence be overthro^vn and endless uncertainty^ introduced.'^ Sec. 28. The efiect of a judgment does not depend upon the reason given for it, or upon the circumstances that any were or were not given. If they were they may have covered por- tions of the controversy only, or they may have had such refer- ence to facts peculiar to that case, that in any other contro- versy where the facts were somewhat similar and apparently resembling it in its legal bearings, serious doubts might arise whether it ought to fall within the same general principle. If one judgment is absolutely to conclude the parties to any similar controversy, we ought to know to a certainty almost that all the facts and questions of law upon which the former judgment was rendered, was substantially the same in the other controversy. Sec. 29. The essential conditions under which the excep- tion of the res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and of the parties in the character in which they are litigants. Experience has disclosed that for the security of rights and the preservation of the repose of society, a limit must be im- posed upon the facilities for litigation. For this purpose the presumption has been adopted that the thing adjudged 1 6 Schuman V. Weatherhead. 1 East, 2 yin. abr. judgment, (M. a.) 541. Estoppel ijy Record. 25 by a court of competent jurisdiction, under definite condi- tions, shall be received in evidence as irrefragable truth. This presumption is a guarantee of the future efficacy and binding operation of the judgment. It presupposed tliat all the constituents of the judgment shall be preserved by the court, Avhich renders it in an authentic and unmistakable form. In the courts upon the continent of Europe, and in the courts of chancery and admiralty in the United States and Great Britain, where the function of adjudication is per- formed entire by a tribunal composed of one or more judges, this has been done vs^ithout much difficulty. The separate functions of the judge and jury, in common law courts, created a necessity for separating issues of law from issues of fact; and with the increase of commerce and civilization, transactions have become more complicated and numerous, and law and fact have become more closely interwoven, so as to render their separation more embarrassing. The ancient system of pleading was more conclusive to the end of ascer- taining the material issue between the parties, and the preser- vation in a permanent form of the evidence of the adjudica- tion, has been condemned as requiring unnecessary precision, and subjecting parties to over technical rules, perplexity and expense. A system of general pleading has been extensivel}'- adopted in this country, which rendered it unnecessary that as 'oetween parties and privies the record should show that the question upon which the right of the plaintiff to recover, on the validity of the defence, depended for it to operate conclusively, but only that the same matter in controversy might have been litigated, and that extrinsic evidence would be admitted to prove that the particular question was mate- rial, and was in fact contested, and that it was referred 'to the decision of the jury. ^ In Young v. Black,-' a record of a former suit between the sam.e parties, was admitted in evi- dence in which judgment was rendered for the defendant, supported by parol proof that the cause of action in tiie two suits was the same. The court said the controversy had passed remjudicatum; 1 "W. S. Packet Co. v. Sickles; 24 2 7 Cranch. 565. Howard, 333. 26 The Law of Estoppel. and the identity of tlie causes of action being once established the hiw would not suffer them again to be drawn into ques- tion, and this seems to he the settled rule in this country ; and the supreme court decided that the record of a former suit between the parties, in which the declaration consisted of a special count, and the common money counts, and where there was a general verdict on the entire declaration, it cannot be given in evidence as an estoppel in a second suit founded on the special count, for the verdict may have been rendered on the common counts, and there is no variation from this rule, although after a verdict is rendered the court directs a judgment to be entered for the plaintiff on the first count in the declaration, it being the special count. ^ The estoppel of a judgment is limited in all cases to the points actually decided, but will not be less an estoppel to those points decided because it fails to go further, and hence while a judgment may be evidence and conclusive evidence, it may still not be availa- ble as an estoppel to a second action. Sec. 30. The estoppel of a judgment covers the whole mat- ter in dispute in the cause in which it is rendered, and to every point decided between the parties, in the course of the proceedings which led to the judgment. The judgment itself operates as a bar, and the decision of a particular issue as an estoppel ; but their conclusive effect is the same and depends upon the principle of interest reijntblicae ut sit finis litwn. In order to make a judgment effectual as an estoppel, the cause of action must be substantially the same ; it must be sus- tained by the same evidence, although the form of the action may be different. But the estoppel of an issue on a particu- lar point, or of the judgment itself as to the point which it de\'ides, will be conclusive as to the points in any subsequent proceeding, whether founded on the same or a different cause of action. At the old practice the course of pleading tended constantly to narrow the c(mtroversy between the parties to a single point of fact or law, which was exactly defined on the record and could not be subsequently ques- tioned. But the course of modern practice requires little certainty of allegation or denial on the part of either plain- 1 Wash. S. Packet Co. v. Sickles, 24 Howard. 333. EsTorrEL uy Record. 27 tiff or derciidaiit, and renders it difiieiiK to aseertain the sub- ject matter of the controversy, and still more the precise points on which it was decided, l)y a mere inspection of the record. So that the nature of the question int^pvite be- tween the parties may be shown l)y parol evidence, as a mat- ter of public policy, and thus l)roua-ht within the estoppel of the judgment, and this may be done in regard to the particu- lar points on which the decision of the question depended, whenever the circumstances are such that they cannot be ascertained with certainty. Sec. 31. It is often the case that questions of constitu- tional law are decided in a private litigation in which the parties to the suit and all others, who after the litigation has ended, who acquire right under them in the subject matter of the controversy, are absolutely and forever estopped from renewing the question in respect to the matter then involved. So inflexible is this rule, that if another tribunal were to hold the judgment in that particular case erroneous, the old controversy could not be reopened in order that the final conclusion might be applied thereto.' As important princi- ples of constitutional law may be disposed of in private actions, when private persons and their counsel alone are heard, it is of some importance to know to what extent other persons as well as the community at large may be afiectedby the decision. And here it will be discovered that the fundamental principle of law, re* inter alios acta alteri nocere non de- bet applies, and a judicial decision has no such force of absolute conclusiveness as to other parties as it possesses between the parties to the controversy in which the decision has been made, and those who have succeeded to their rights. 1 Van Kleek v. Eggleston, 7 Mich. 511 : Newbury v. Trowbridge, 13 Micb. 278: Crandall v. James, 6 R. I., 144; Babcock v. Camp, 12 Ohio, S. 11; Warner v. Scott, 39 Penn. St. 274; Kerr. v. Union Bank. 18 Md. 396; Ernier V. Richards. 25 III., 289;. Wright v. Leclair. 3 Iowa, 241; Wliittaker v. Conly. 12 Iowa, 595; Maddox v. Graham, 2 Met. (Ky.,) 50; Clark v. Sammons 12 Iowa. 368 : Young v. Black, 7 Cranch. 567 : Chapman v. Smith, 16 How. 114: Reay v. Dunkin, 20 Ark. 85. 28 The Law of Estoppel, It" strangers who have no interest m that subject-matter are to be in like matter concluded, because their con- troversies are supposed to involve the same question of law, we shall not only be forced into series of endless inquiries, often resulting in little satisfaction, in order to ascertain whether the question is the same, but we shall also be met by the query, whether we are not concluding par- ties by decisions which others have obtained in fictitious controversies and b}^ collusion, or suffered to pass without sufficient consideration and discussion, and which might iiave been given otherwise had these parties an opportunity of being heard.* Sec. 32. All judgments are supposed to apply the exist- ino- law to the facts of the case : and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclusion in all other similar cases where there has been no change in the law since the decision. There Avill thus be uniform rules for the administration of justice, and the same measure that is meted out to one would be received by all others. And even if the same or any other court, in a subsequent case, should be in doubt con- cerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of dis- regarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizeu is always at a loss in regard to his rights and his duties, is a very serious evil ; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analagous facts, and brouirht within the same reasons, is obvi- ously preferable. Precedents, therefore, become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind. Sec. 33. Kent says : " A solemn decision upon a point of law arising in any given case becomes an authoritj^ in a like case, because it is the highest evidence which we can ' Coolcv on Const. Estoppel bv IvKcoia). 29 have of the luw ;ipplical)le to the suhjcct, uiul the Judges are bound to follow that decision .so long us it stands unre- versed, unless it can be shown that the law was misunder- stood or misapplied in that particular case. If^ decision has l)een made upon solemn argument and mature deliber- ation, the presumption is in favor of its correctness, and the connnunity have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely incon- venient to the public if precedents were not duly regarded and implicitly followed. It is by the notoriety and stabil- ity of such rules that professional men can give safe advice to those who consult them, and people in general can ven- ture to buy and trust, and to deal Avith each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been delii)erately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error ; and if the practice were otherwise, it would be leav- ing us in a perplexing uncertainty as to the law.'" Sec. 34. After a recovery by process of law, there must be an end to litigation ; if it were otherwise, there would be no security for any person, and great op^jression might be done under color and pretence of law.^ To fathom the grounds and motives which may have led to the determina- tion of a question once settled by the jurisdiction to which the law has referred it, would be extremely dangerous ; and it is better for the general administration of justice that one individual should be inconvenienced, than that the whole system of jurisprudence be overturned, and endless unccr- ' King V. Younger, 5 T. R. 450 ; Boone v. Bauers, 20 Miss. 24G ; Palmer V. Laurence, 5 N. Y. 389 ; Kneeland v. Milwaukee, 15 Wis. 458 ; Rex v. Cox. 2 Burr. 787 ; 1 Kent, 475 ; Selby v. Banleus, 3 B. & Ad. 17 ; Fletcher v. Sora- ers, Cro. Jac. 527 ; Brooms Max. 109 ; Hammond v. Anderson, 4 B. & P. 69 ; Anderson v. Jackson, 16 Johns. 402 ; 3 Bing. 588 ; Goodtitle v. Otway, 7 T. R. 416 ; Goodell v. Jackson, 20 Johns. 722 ; Bates v. Relyea, 23 Wend. 340 ; Emerson v. Atwater, 7 Mich. 12 ; Nelson v. Allen, 1 Yerg. 376. " 7 T. R. 269. 30 The Law of Estoppel. tainty be introduced.^ And we ought also to see that the tirst litigation was conducted in entire good faith, and all the facts were presented to the court which could properly have wei<>-ht in the construction and application of the law. These things being manifestly impossible, the law therefore wisely excludes judgments from being used to the preju- dice of strangers to the controversy, and restricts their con- clusiveness to parties thereto, and their privies.^ Even parties and privies are bound only so far as regards the subject-matter then involved, and are at liberty to raise the same questions in another distinct controversy affecting a distinct cause of action.^ Sec. 35. And if there be any one principle of law well settled, beyond all question, it is this : that whensoever a cause of action, in the language of the law, transit in rem judicatum, and the judgment thereon remains in full force and unreversed, the original cause of action is merged, and orone forever. A case illustrative of this principle is that of Harriot v. Hampton, 7 Term. Eeports, 269. Where A. sued B. for the price of goods sold, for which B. had paid and obtained a receipt before the suit was commenced, not beino- able to find his receipt, and having no other proof of payment, A. recovered judgment against B. for the price of the goods sold ; B. was obliged to submit to the payment of the money again, but afterwards found the missing receipt, and brought an action against A. for money had and received, to recover back the amount of the sum of payment thus wrongfully enforced ; but he was estopped on the ground M Q. B. 631; Vin. Abr. (Judgment, ?n, a); Schumann v. "Weatherhead, 1 East, 541. ' Burrill v. West, 2 N. H. 190 ; Davis v. Wood, 1 Wheat. 6 ; Jackson v. Vedder, 3 Johns. 8 ; Van Bookklein v. Ingersoll, 5 Wend. 315 ; Case v. Reve, 14 Johns. 79 ; Smith v. Balantyne, 10 Paige, 101 ; Alexander v. Taylor, 4 Denio, 302 ; Orphan House v. Laurence, 11 Paige, 80 ; Wood v. Stephen, 1 S & R. 175 ; Thomas v. Hubbell, 13 N. Y. 405 ; Peterson v. Lothrop, 34 Penn. St. 233 ; Twombly v. HeniV, 4 Mass. 448 ; Estey v. Strong, 2 Ohio, 401 ; Cowles V. Hartz,3 Conn. 516 ; Floyd v. Mizizer, 5 Rich. 361 ; Riggin's ex'rs v. Brown, 12 Georgia. 271 ; Person v. Jones. 12 Georgia, 671. 3 Vanalstyne v. R. R. Co. 34 Barb. 28; Cook v. Viemont, 6 B. Mon. 284; Taylor v. McCracken, 2 Blackf. 260. Estoppel by Record. 31 that the former .suit was eoiiclusive, and (hat nimiey [)ai(i iiiKk'r legal process could not be recovered hack again, and the .same evidence used in the second suit would have l>een a good defense in the lirst ; B. was bound to either pimluce the evidence or submit to the judgment of the court, and that when once res judicata, it was conclusive in any subsequent action arising from the same transaction. Sec. 36. Every judgment is jprima facie a substantial and final determination of the matter in controversy, and this prcsum})tion cannot be overcome by extrinsic evidence, unless there is something on the face of it to justify its ad- mission. Individual good and public policy both require that there should be some fixed and certain end to litiga- tion, and that suitors that have been once discharged from attendance in court, shall not be again brought before it Avithout sufficient reason ; and as this rule nuist l)c inflexible to effect its object, it Avill not yield to the clearest proof that a defense or cause of action was overruled which ought to have been sustained, or sustained when it ought to have been excluded, and that injustice will result unless the mistake is overruled. The conclusive effect of a judgment is the same, whether it was rendered upon the evidence or a technical rule of law ; and a plea of a prior recovery, for the same cause of action, cannot be answered by a replication that the decision was not on the merits, without showing that the proceeding was such that they could not have been decided. Suitors are bound to prepare and present their cases in a proper manner, and cannot allege their own carelessness or ignorance as a cause for beinor relieved from its consequences. A defendant cannot escape from the consequences of an adverse judgment on the ground that he had a good defense in fact, and relied inconsiderately on an untenable point of law ; and a plaintiff is precluded from regaining his mistakes or omis- sions by recourse to another action, unless under rare and peculiar circumstances. Sec. 37. Matters which have been once settled hy judi- cial authority camiot lie again drawn into controversy, as betW'Cen parties and privies to their decision. As the 32 The Law of Estoppel. uature of the judgment does not affect the operation of this l)riuciple, a decree with regard to the personal statits of an individual will be equally conclusive with a decision upon a rio-ht of property. The appointment or removal of a guardian or administrator, or the adjudication of a question of descent or pedigree is conclusive, not only in the pro- ceeding in which they may take place, but in every other in which the same matter is agitated. The manner in which the question is actually brought before the court is imma- terial, as long as it is actually decided ; whether the action of the court is formal or summary on motion, makes no dif- ference in the conclusiveness of the judgment, if as it is presumed, until it is otherwise proven, that there was an opportunity to appear and contest the case on its merits ; and hence, an adjudication under a rule to show cause will preclude a renewal of the conti-oversy at law, or even an application for relief in equity. Sec. 38. Burgundus, divides judgments, (Sententia) into three classes : 1. In rem ; 2. Li x>ersonam ; 3. Mixed in rem et in personam -'■Omnium condemnationen smnma divisio, pariter intria genera deducitur aut einim in rem^ aut in 'per- sonam, aut in ulramque conci piuntur In rem quoties alicur res. asseritur, hoc est ejus esse dicitur vel jure creditoris, aut alio modo possodentur datur. In personam, si condemnitur ad aliquid dandum aut non faciendum, vel si personae statuin, official. In utramque, si et res, et jiersonae simal in condem- nationem veniantJ' The iirst respect things either the pro- prietary right or ownership, or the right of possession of a creditor or some other right or title. The second respects the quality, state or condition of persons and pronounce ao-ainst them judgments purely personal ad dandwn, aut faciendum, aut non faciendum. The last respects both per- sons and things, either in adjudging the property to one, or pronouncing against him a personal judgment for the benefit of the other and adjudging the other to make resti- tution of the profits to him, so that it is the title of the action which characterizes it.' ' Buullenois Obs. 25 P. 601, 602. Estoppel by Record. 33 In regard to their conclusiveness they may he divided into two classes : 1. Judgments zn rein. 2, J mlgmvnis in perso7iam ov tnte7- paries.^ ""^^ An adjudication upon the status of a particular person has as conclusive an etfect as an estoppel as a judgment or decree in rem, which is an adjudication upon the status of a particular inanimate thing ; that renders the thing ipso facto, what it declares it to he. In regard to both these classes of judgments, one impor- tant fact or principle must not be overlooked, and that is, that for the purpose of proving its own existence, the pro- duction of a record is conclusive upon the whole world ; the record of the judgment is generally produced in evi- dence, not for the purpose of proving the fact of its own existence, but for that of concluding some party upon the point adjudicated ; and here arises the distinction above adverted to, between judgments in rem and judgments inter partes ; the former having this conclusive effect, the effect of the latter being much more limited. * Duchess of Kingston case, 20 Howell, St. T. 478 ; Earl of Bandon v. Beecher, 3 CLi. k, F. 510 ; Smith Lead. Cases, 659. 3 CHAPTER III. PERSONAL JUDGMENTS; OR, JUDGMENTS BE- TWEEN PARTIES. Section 39. In u preceding chapter we have seen the dis- tinction between judgments in rem and in personam, and as the hitter chiss of judgments are by far the most extensive of the two, estoppel, in its application to personal judg- ments, or judgments between parties, will now be considered. The great distinction is in this fact, that while a judgment in rem (which will hereafter be fully treated) is conclusive upon the whole world, a judgment in j)erso7iam or inter jKirtes is conclusive only upon parties to the proceedings and their privies. The fundamental principle of law upon which this branch of the doctrine of estoppels is founded, and which in law governs it to a great extent, is res inter alios acta alteri nocere non debet, which, in effect, is to pre- vent a litigant party from being estopped, or even affected, by the evidence, acts, conduct, or declaration of strangers ; and, as a general principle, it may be stated as one thor- oughly well settled, that a transaction between two parties should not be binding upon third parties ; for it would be inflicting great wrong and injustice to conclude and bind parties who could not be allowed to make a defense, or permitted to examine witnesses, adduce any testimony, or to appeal from a judgment that they might deem erroneous ; and for this reason the depositions of witnesses in another action in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon the fticts found ; while evidence of the most conclusive kind against the par- ties, and all claiming under and through them, can not, gen- erally, be used to the prejudice of strangers.' The prin- ciple upon which judgments are held conclusive npon the parties, requires that the rule should apply only to that ' King V. Norman, 4 C. B. 897 ; Duchess of Kingston case, 20 How. St. T. 578. Personal Judgments. 35 which was (liioctly in issue, and not to cvoiy thinir which was inciiU'nlally hronuiit inio (•()n(r()vci-s\' diirintwo parties, in judicial proceedings, ought not to l)e binding upon a third. From tlie variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true. First, that a judgment of a court of concurrent juris- diction, directly upon the point, is as a plea, a bar, as evi- dence, CONCLUSIVE, between the same parties, upon the same matter direct!}^ in question in another court. Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incident- all}' in question in another court, for a different i)urpose. But neither the judgment of a concurrent or exclusive juris- diction is evidence of any matter Avhich came collaterally in question, though within their jurisdiction, nor of any mat- ter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." 36 The Law of Estoppel. Sec. 41. A much more conclusive effect is given to judg- ments of courts of exclusive jurisdiction than to the judg- ments of courts which have only concurrent jurisdiction. With regard to the parties, between whom they are to be used, and the matter to which they relate, these two cla.sses of judgments are put upon the same footing, and subject to the same limitation and restriction ; the subject-matter must be identical ; and the parties also the same. There is a vast difference in the two classes of judgments in reference to the occasion and manner in which it is proposed to use them. It is only upon a matter directly in question that a judg- ment of a court of concwrent jurisdiction is conclusive — Avhile the judgment of a court of exclusive jurisdiction is conclusive, not only when the matter comes directly in ques- tion, but also when it comes incidentally in question. This difference with regard to the effect of the conclusiveness of judgments, results from the difference in the constitution of the tribunals which pronomice them. When a matter, over which some other tribunal is permitted to have exclusive jurisdiction, comes directly or incidentally in question, and the judgment of that court is offered in evidence as proof of the matter, it must necessarily be conclusive ; implicit credit must be given to a court so constituted, while its judgment is in full force and unreversed ; for the court in which the particular matter is to be proved, has no author- ity to examine into the merits of the judgment, but must take the matter as judicially and conclusively decided.^ Sec. 42. The judgment or decree of a court of dernier re- sort in a particular case is final and conclusive upon all other courts, not only as to the merits of the cause, but the juris- diction of the court, and is conclusive whenever the same matter is again drawn into controversy. But the exception to this rule of conclusiveness is, that it does not apply to points not under consideration, or incidentally considered, or which can only be argumentatively inferred from the judg- ment. The United States courts are courts of limited juris- diction ; yet they are not inferior courts, and their judg- ments and decrees have the same conclusive effect as all 'Phil. Ev. Personal Judg^ients. 37 ollu'i- jiKlginenls until revenged or aiiuulKMl ; aixl so con- clusive is the effect of their jiulgnu'nts, tlial aficr ihc- ttini of court at which they were rendered they cannot be sc-t aside or revoked. Their power over the sul»ject-rntn'ter has gone, and the only remedy is that of a[)[)eal ; and they arc of such a binding effect that although the record does not show any jur,isdictioii\ the rights of third parties dependent upon it cannot be in any way impaired in any collateral pro- ceedings as long as the judgment is unreversed or unan- nuUed. Chief justice De Grey, in the case of the Ducliess of Kingston, in stating the rule of law in regard to the effect of a judgment, distinctly says that where the parties arc the same in the subsequent as in the first suit, the judg- ment is conclusive between the same parties and all those claiming under and through them. Sec. 43. In regard to the term parties, as used in connec- t'lon with the doctrine of estoppel, the law includes all who are distinctly interested in the subject-matter of the suit and had a right to make defense or to control the proceed- ings, and to appiial from the judgment, the right to adduce testimony and to cross examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the record." If parties to a suit are bound, natm-al justice requires that all persons claiming under or through them should also be concluded, for there is a mutuality of interest between parties and their privies ; one of the general rules is, that estoppels ought to be reci- procal or mutual, it is therefore well settled that no record of a conviction or verdict can he used as an estoppel uidess in cases where the benefit is mutual, that is, such as might have been given in evidence by either of the parties to the action ; and in Gilbert on evidence it is laid down that nobody can take benefit by a verdict who had not been prejudiced by it, had it gone contrary, and this seems to be settled the rule. Sec. 44. Estoppels, like all other branches of law, are founded upon certain fundamental principles or rules. In 'McCormick v. Sullivant, 10 Whcaton 192; exparte "Watkins, 3 Pet. 193; Kennedy v. Georgia Bank, 8 Howard, 580 ; Ilutf v. Ilntcliinson, li How. 386. * Greenleaf Ev. 38 The Law of Estoppel. their application to parties, privies and strangers as regards their conclusive effect, the maxim of res inter alios acta is one of the fmidamentals applicable in regard to strangers. The judgment in the case of the Duchess of Kingston declared that a record was conclusive between the same parties ; and in Buller's Nisi Prius, the reason for the rule of conclusiveness between parties and those claiming under and through them, and that parties not so connected with the subject-matter of the controversy were not so bound, is thus stated : The verdict ought to be between the parties, otherAvise a man might be bound by a decision, who had not the libertj^ to cross-examine ; and nothing can be more contrary to natural justice than that a man should be injured by a determination that he, or those under whom he claims, was not at liberty to controvert. It would be unjust that such proceedings should be evidence against strangers. Numerous reasons might be given for this rule, one of which might be, that if the stranger had been a party to the action, in place of the party who recovered ju 'gment, the result might have been different ; as the parties were different, there is every reason to believe that the evidence would have been, part of which may have been inadmissible and part uncertain, or evidence of a totally different character might have been introduced by the unsuccessful party, which would have changed the result. To give such a judgment the effect of an estoppel, would be giving a party the ben- efit of testimony which he might l)e allowed to introduce in an action, in which he was a party or directly interested. The principal reason other than those given is, that all estop- pels must be mutual, and this is the reason that regularly a stianger shall neither be bound by, nor take an advantage of an estoppel, and it must be conceded that it would ])e a hard- ship were it otherwise ; but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be bound, for there would be no injus- tice in such a case. Sec. 45. The maxim "■ qui sentit commodmn sentire debet et onus" is applical)le in support and as particularly explana- tory of this branch of the law of estoppel, in accordance Peusonal Judgments. 39 with wliich the rccuril of :i vurdicl i'ollowcd iiy ;i Jiidiiiiiciil tiller jiur/ca will t'sto]) not only (he original i)arli(.'s, hut those uLso who claim under them. A man will be Ixnnid 1)}' that which l)()und those under wdiom he claims quoad the subject-matter of the chiim, for he Avho derives the benelit from a thing ought to sustain the burden, or feel the dis- advantages attending it. And no man, except in certain cases, which arc regulated by the statue law and law mer- chant, can transfer to another, a better right than he himself possesses. The grantee shall not be in a better condition tluui he who made the grant, and, therefore privies hi blood, law and estate shall be bound by and take advantage of estoppels.' In order to give full efiect to the rule by which parties are held estopped by a judgment; all persons who lire represented by the parties or claim under them or in privity with them are as equally and as effectually estopped by the same proceedings. Sec. 46. A personal judgment or a judgment between parties not only binds the parties but those claiming under or through the parties. Therefore such judgments conclude, viz : 1st. Parties and 2d. Privies thereto. The term privity used in this connection denotes mutual succession or relationship to the same rights of property.' Persons standing in this relation to the litigating party, are bound by the proceedings to which he was a party, and the reason for this rule is, that they are idcntilied with him in interest, and whenever this sameness is found to exist, all arc alike estopped. Hence all privies, whether in estate in blood, or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity.' Lord Coke divides privies into three classes : 1. Privies in blood. 2. Privies in law. 3. Privies by estate. 'Poth Oblig. 263 ; B. L. M. 634 ; 2 Coke Litt. 352 ; Outram v. Morewood, 3 East 346. " 1 Greenlcaf Ev. 'Carver v. Jackson. 4 Peters, 85 ; Chapin v. Ciutis, 23 Conn. 388; Emery V. Fowler, 39 Maine, 326; Key v. Dent, 14 Md. 86. •40 The Law of Estoppel. A privy in blood, us for example an heir, would be estop- ped by a verdict against bis ancestor through whom he claims, and may take advantage of judgment in favor of an ancestor. Coke gives as instances of privy in law, lord by escheat, tenant by curtesy, tenant in dower, the incum- bent of a benefice, and others that come in by act of law or in the post.^ An executor or administrator, suing as such, will be bound by a verdict against his testator or intestate to Avhom he is privy in law. One of the leading cases in which the doctrine of estoppel by a judgment inier partes in regard to privies is laid down, is the celebrated English case of Outram v. Morewood, reported in 3d East, page 125, and was decided by Lord EUenborough, Chief Justice : The question in that case, said the learned judge, " is whether the defendants, the husband and wife, are estopped by this verdict and judgment from averring, contrary to the title there found against the wifeP The operation and effect of this finding, if it operates at all as a conclusive bar, must be bj' way of an estoppel. If the wife were bound by this finding, as an estoppel, and precluded from averring the contrary of what was then so found ; the husband, in respect to his privity, either in estate or in law, would be equally bound, according to what is said in Co. Litt. 352. "Privies in estate, as the feoffee, lessee, etc.; privies in law, as the lord by escheat, tenant by the curtesy, tenant in dower, the incumbent of a benefice, and others that come in by act of law in the post, shall be bound by and take advantage of estoppels. The question then is : Is the wife herself estopped, by this former finding, to aver the con- trary ? , In Brooke, tit. Estoppels, pi. 15, it is said to be agreed that all the records in which the freehold comes in debate shall be estopped with the land and run with the land, so that a man may plead this as a party, or as heir, as privy, or by que estate. But if it be said that by the free- iiold coming in debate must be meant a question respecting ihe same, in a suit in which the freehold is immediately recoverable, as in assize or in writ of entry, I answer, that a recovery upon any one suit in issue, joined on matter of ' 2 Coke Litt. ?.52. h. Personal Juixjments. 41 title, is equally conclusive upou the subject-uuiltcr of such title, and that a linding upou title iu trespass not only ope- rates as a har to the future recovery, by way ofjlamages for a trespass founded upon the same iujury, but also ope- rates by way of an estoppel to any action for an iujury to the same supposed right of possession" And in accordance with the well settled doctrine of estoppel, and "the reason and convenience of the thing, and the analogy to the rules of law in other cases, decided, that the husband and ivife, the defendants in this case, are estopjied by the former verdict and judgment on the same point in the action af trespass, to which the wife was a party ^ This case is an example of the well-settled principle, that a verdict negativing the right of a defendant stated in his plea, estops' him in a subsequent action from asserting that right as plaintift' against the same part3% And in another English case it was decided that a judgment against a schoolmaster, concerning the rights of office, is evidence against his successor.'' So, a judg- ment of ouster is conclusive in a quo warranto against a person claiming to have been admitted to a corporate office, by or through a party against whom the judgment "was obtained." But there is no privity between an executor or administrator and the heir or devisee of all the land, and a judgment against the administrator or executor will not have that conclusive effect to charge the real estate of the heir or devisee." In the case of Combs v. Turlton's adm'rs,* it was held that a decree for the specific execution for a covenant in a suit commenced by the covenantee, and afterwards revived in favor of his heirs, was no bar to an action brought by his administrator to recover damages for breach of the covenant, if the administrator Avas not made a party to the action of revivor ; and the only relief the covenanter had from the double burden of executing the covenant and pa3dng dam- ages for the ' breach, was in resorting to a court of equity. But, under the laws of New York, a judgment against an ' Outrara v. Morewood, 3 East, 346. * Deneale v. Stump's cx'rs, 8 Peters, 'Brounkcr v. Atkins, Skinn. 15; 528. Berry v. Barues, Peake. 156. '5 Dana Rep. 574. =" BuUers N. P. 231; King v. Grimes. 42 The Law of Estoppel. heir or devisee is an estoppel to a subsequent suit against an executor or administrator of the ancestor or devisee for the same debt or damage, unless it can be shown that the judgment against the heir and devisee is unsatisfied or that sufficient property has not descended, or been devised, to the heir or devisee. A judgment against an heir or devisee for a debt or legacy expressly charged on the estate devised or descended, is an estoppel to any subsequent action ajrainst the executor or administrator for the same debt or legacy.' At common law there is no privity between an executor and administrator de bonis non cum tes- tamento annexo, and a judgment recovered by the former will not bar a suit brought by the latter ; and the rule is the same where an administrator recovers judgment and dies ; this does not estop the succeeding administrator from bring- ing a new action.'' Sec. 48. Privies in estate are Avhere there is a mutual or suc- cessive relationship as to rights, as in the case of lessor and lessee, donor and donee, joint tenants, persons who have an interest in an estate created by another ; a person may he a privy in estate and contract, as a lessee who from the nature of the covenant entered into by him, while an assignment destroys the privity of estate the privity of contract remains, and he may he liable on his contract. Sec. 49. If a party after a judgment against him assign his interest, his assignee will be bound ; as it is conclusive against the assignor it must ])e against the assignee, for the substitute can be in no better position than the principal,^ as for example where a mortgagor, when sued for possession, pleaded usury as a defense and failed in establishing it, he afterward assigned his rights to a third party, who brought a writ of entry against the mortgagee, and in support of his action plead usury. The former judgment between the mortgagor and mortgagee was held conclusive against him. 1 2 N. T. R. S. 114, §§ 8 and 10. » Grant v. Chamberlain, 4 Mass. 611 ; Allen v. Irwin, IS. & R. -549; Barn- hurst V. Telverton, Yelv. Rep. 83. ^Bac. Abr. 617 ; 2 Starkie Ev. 194 ; Adams v. Barnes, 17 Mass. 365; Grecnlf Ev. PERSONiVL Judgments. 43 All privies, whether in estate, in blood or in law, are es- topped from litigating that which is conclusive upon him with whom they arc in privity. And if one cove2iants for the result or consequences of a suit between others, as if he covenants that a certain mortgage, assigned by him, shall produce a specified sum, he thereby connects himself in privity with the proceedings, and the record of the judg- ment in that suit will be conclusive evidence against him. But to prevent this rnle from working injustice it is essen- tial that its operation be mutual. Both the litigants must be alike concluded, or the proceedings cannot be set up as an estoppel upon either. For if the adverse party was not also a party to the judgment offered in evidence, it may have been obtained upon the party's own testimony; in which case, to allow him to derive a benefit from it would be unjust. Sec. 49. It is scarcely necessary to observe that the con- clusive efiect of judgments in j)ersonam depends upon the fact of whether the same point was in issue in the former action. The rule as laid down in the Duchess of Kingston's case is the well settled rule of all countries, that judgments of courts of concurrent jurisdiction are not admissible in a sub- sequent suit, unless they are not only between the same par- ties, but also upon the same matters coming in question, and directly upon the point.^ "A judgment estops the parties only as to the grounds covered by it and the facts necessary to ui)hold it. Parties are not allowed to prove what is inconsistent with its rectitude and justice, for while it stands unreversed it is final as to the points decided, ])ut not in respect to matters Avhich the record itself shows were not in question, and therefore when a cause has gone off for some defect, which precluded an inquiry into its merits, t Ik; judgnicnt is usually no l)ar to a second action. So a reversal of a judgment proves nothing but its own correctness, and it only nullifies what has been done, and leaves the parties in the same situation as to thcMr rights and remedies, in regard to the subject-matter in litigation, as if no judgment had been rendered. 'Hopkins v. Lee, 6 Wheaton, 109 ; Haney v. Richards, 2 Gall. 21G ; Minor V. Walter, 17 Mass., 237. 44 The Law of Estoppel. Sec. 50. The dismissal of a bill in chauceiy is uot always conclusive of the complainant's right in a court of law, although the bill may have been filed for the same matter,' for if a complainant endeavors in a court of equity to enforce a strictly legal title, when his remedy is at law, the dismis- sal amounts to a declaration that he has no equity, and does uot reflect upon his legal title — for as it concludes nothing', it can prove nothing ; and if a decree in express terms pro- fesses to affirm a particular fact, if that fact is immaterial in the case, it will not estop the parties in relation to that fact." Where a cause of action is the same in two suits, a prior judgment in one will be a bar to the other. But where they are different, though the point in controversy is the same, the prior judgment is no bar to the subsequent action,' but the judgment is evidence to prove such point, while a prior judgment may be no bar, strictly and techni- cally speaking, where the cause of both objects are not identical, it does not follow that either party in the subse- quent action can be allowed to contradict what was expressly adjudicated in the fii'st, and in this country the principle is well settled that the judgment of a court of competent juris- diction, directly upon a particular point, is as between the parties conclusive in relation to such point, though the sub- ject-matter and object of the two suits may be different, and yet a judgment may not only be evidence but conclusive evidence, and still no bar to a second action.* Sec. 51. But when the same matter is directly in ques- tion in another suit, and the judgment of the former suit is directly in point, it ivill he as a lolea, a bar, as evidence, conclusive. This is the rule of every system of jurispru- dence, not only from its obvious fitness and justness, but if it were otherwise, there never could be an end to litiga- tion ; and it is not only applicable to courts of concurrent 'Wright V. Deklyne, 1 Pet. C. C. R. 198. ^Hotchkiss V. Nichols, 3 Day, 138 ; Coit. v. Tracy, 8 Conn. 208. ' Swift Evidence, p. 17. * Betts V. Starr, 5 Conn. 550 ; Wright v. De kline, 1 Peters C. C. 198 ; Star- kie V. Woodward, 1 Nott &. McCord, 329 ; Canan v. G. Turnpike Co., 1 Conn. 1; Cist V. Ziegler, 16 S. & R. 282 ; Gardner v. Buckbee, 3 Cow. 120 ; Wright V. Butler, 4 Weud. 284. Personal Judgments. 45 jiirisfUction in England and America, hnt is applica])lc to orphans' courts in Pennsylvania ; to a discharge under the insolvent laws ; to a decision of a court of probat^^rthough admitted to be erroneous; to a decree of the county court pursuant to the statute ; to a decision of a court of common pleas upon a complaint made pursuant to statute for over- flowing lands ; to a decree of a county court awarding money to claimants from the sale of lands by the sheriff, though the decree was made upon a mistaken notion of law, and there was no remedy by writ of error ; ' to a record of the forfeiture of a recognizance, where del)t was brought upon such recognizance ; to decrees of court of equity ; to sentences of courts of admiralty and of ecclesiastical tribu- nals, and in fact to every court which has proper cognizance of the sul)ject-matter so far as they profess to decide the subject-matter in dispute. Sec. 52. The solemn decisions or judgments of tribunals of justice made in the exercise of their rightful jurisdiction, where the parties have had an opportunity of being heard or making a defense, and upon due deliberation, are in the law conclusive upon all points, directly involved. The funda- mental principle, interest reipuhlicos, ut sit finis litium, being regarded as governing this branch of the law ; and it makes no difference whether the courts rendering the iudgments be of limited or general jurisdiction, whether they are courts of record or not, as long as they act within their jurisdiction or sphere assigned to them, their adjudications are conclu- sive between the same parties and their privies upon the same subject matter ; " and in conclusion it must be remem- bered that this conclusive effect is only applicable where the tribunal rendering the judgment had jurisdiction over the parties or subject-matter in controversy. When a court transcends the limits prescribed for it by the law, and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppel or otherwise. ' Gratz V. Lancaster Bank, 17 S. & 2 Starkie Ev.; 2 Greenlf. Ev.; 2Phil. R. 278. Ev. « Kilheffer v. Herr, 17 S. & K. 319 ; 46 The Law of Estoppel. Sec. 53, In order (generally) to make a person a party to a judicial proceeding, it is necessary to make a formal and legal service of summons upon him to appear, or by voluntary appearance of the party without service.' But there is an exception to this, as there is generally to all rules of law, and the exception is that by the intervention of a party in the prosecution or defense of an action in which he is interested, he is held to be concluded by the result,'' nor can the rights of such third persons be impaired by any col- lateral proceedings. In other cases where parties were allowed to notify third persons to come in and take defense, and where such notice did not emanate from the court.^ In matters of private right, a judgment is evidence only against parties and privies. A court will look beyond the record, and treat as parties, all who are found to have in fact acted a part, and this, whether their interference was irregular or not. Yet, except in particular cases, no one will be forced to become a party, indirectly, who could not be brought in directly ; and even in the excepted cases, he must have had notice to defend. The notice to defend is derived by analogy from the voucher to warranty, and came into use with the personal action of covenant, when it superseded both the voucher and the ancient warrantia chartoe ; and like the voucher, its object is a recovery over against the warrantor, with whom none but the party against whom the recovery has been had, has to do. The purpose of giving notice, is not in order to gire a ofround of action ; but if a demand be made which the party indemnifying is bound to pay, and notice be given to him, and he refuses to defend the action, in consequence of which the person indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money.* 'Martin V. Germandt, 19 Penn. 124. 'Jones v. Heller, 4 Binney. 161; 'Adams V.Preston, 22 Howard, 473 ; Chirac v. Rei. ecker, 2 Peters, 617. Peterson v. Lathrop, 10 Casey, 223 ; * Duffield v. Scott, 3 T. R. 347 ; Jones Carpenter v. Pier, 1 Shaw, 81. v. Williams, 7 M. & W. 493. Personal Judgments. 47 Sec. 54. A defoiidaiit may call upon any one wlio.-se liabil- ity for the cause of action is primary as compared with his own, to assume the burden of the defense in the action ; the notice given by the defendant will be as effectual in binding such party by the judgment rendered in such action as thougli the notice emanated from the court ; ' and, while as a general rule, a principal is not liound as privy by a judg- ment on an action of debt against the guarantor or surety,' to which he is not made a party and may contest the validity of the judgment ;' he is brought within the reach of the estop- pel when notitied by the defendant to come in and take part in the defense.* Covenants to indemnify against the consequen- ces of a suit arc of two classes : First, where the covenantor expressly makes his liability depend upon the event of a lit- igation to which he is not a party, and stipulates to abide the result ; in this class the judgment is conclusive evidence against the indemnitor, though he was neither a party or had notice ; for its recovery is the event against which he coven- anted. Second, where the covenant is one of general indem- nity, against clainis or suits, the want of notice does not go to the cause of action, and the judgment is only prima fade evidence against the indemnitor, and he may be let in to show that the principal had a good defense to the claim which he neglected to make, to defeat the judgment, or that it was obtained by fraud or collusion, etc., but if notice is given they are concluded.' This rule applies in like manner between grantor and vendor, and the grantee and vendee of real and personal property in an action against the vendee or grantee by third parties, the grantor or vendee as the case 'Littleton V. Richardson, 34 N. H. 179 ; Thrasher v. Harris, 2 N. H. \\?> ; Jackson v. Marsh, 5 Wend. ; Beers v. Pinney, 12 id 309. " Brown v. Chancey, 1 Kelly, 410 ; Douglas v. Howland, 24 Wend. 35 ; Jack- son V. Griswold, 4 Hill, 522; Moore v. Lucas, 8 Blackfd. 9. Trench v. Parrish, 14 N. FI. 496. ^Duffieldv. Scott, 3 T. R. 374; Jones v. Williams, 7 M. ScW. 492; Thomas V. Huhbell, 18 Barb. 9. 'Duffield V. Scott, 3 T. R. 374 ; Smith v. Compton, 3 B. & E. 407 ; Leo v. Clark. 1 Hill, 56 ; Rapelye v. Prince. 4 Hill, 119 ; Patton v. Caldwell, 1 Dallas, 419; Ins. Co. v. Wilson, 34 N. Y., 180; Brown v. Chancey, 1 Kelly, 410; Moore v. Lucas, 8 Blfd. 9 ; French v. Parrish, 14 N.H. 496 ; Jones v. Williams. 7 M. & W.492 ; Thomas v. Hubbcll, 18 Barb. 9. 48 The Law of Estoppel. may be, when notiried or called upon to assume the burden of a suit in ejectment or trover, else be concluded and bound by the judgment and estopped from disputing the title on which the action is brought in a subsequent suit against him- self, in an action founded upon an express or implied warranty or covenant in the sale or grant.* The notice, however, to have this conclusive effect, must clearly and explicitly con- vey the precise information and notify the party to whom it is written or sent ; that unless he takes the necessary steps to defend the suit and prove the validity of his title in the first suit, he will be estopped from doing so in the subse- quent action.'' The principle, interest rd'pvblicoi ut sit finis litium, will thus be seen to pervade the entire branch of this doctrine of the law, and all instances and cases cited, all decisions made, have their foundation in this fundamental maxim. Sec. 55. All heirs are privies when they claim or derive title through and from the ancestor; as an example, a case ma}'' be cited;^ in an adjudication a mother was declared a slave, the judgment was held conclusive evidence that all the children born prior to the judgment were also slaves ; this was on the fact that it operated as a judgment in rem, and ipso facto ren- dered her such as the judgment declared her to be. A hus- band may be l^ound by a judgment against a woman while a feme sole, as representing the person and succeeding to the estate of his wife.'' Every one Avho claims or justifies under a conveyance made or command given by another, is in privity with him who made the conveyance or issued the mandate, and is bound by an estoppel relating directly to the interest conveyed or right on which the mandate is founded.' A master or principal is in privity with his servant or agent when the latter defends an action in the right of the for- mer, and a judgment is an estoppel to a renewal of the ^Blasdale v. Babcock, 1 John. 518 ; CoUingwood v. Irwin, 3 "Watts ; Kelly v. The Church, 2 Ilill, 115 ; Hamilton v. Ciitts, 4 Mass. 348 ; Carpenter v. Pier, 1 Shaw, 81 ; Fisk v. "Woodruff, 15 111. 15 ; Rawie on Gov. 226. 2 Paul V. Witman, 3 W. & S. 410; Morrison v. Mullen, 34 Penn. 12. ^Shelton v. Barber. 2 W. C. C. R. 82. * Outrara v. Morewood, 3 East, 125 ; Hawkins v. Lambert. 18 B. Mon. 99. ^Beebec v. Elliott, 4 Barb. 457; Calkins v. AUaton, 3 Barb. 171. Personal Judgments. 49 controversy by the principal or master' in the suit, on the ground that he is considered the real party, and specially when the principal expressly or inii)liedly aulhcnizcd or ratitied the acts of the agent, virtually rendering hifiTii party to the proceedings instituted by or against the other." We have already stated that no one can take advantage of a verdict, if they would not have been predjudiced by it, had it been contrary, as estoppels are mutual. So where an ejectment suit was brought by the assignee of the lessor against the assignee of the lessee, for the non-payment of lent on lease, containing a covenant for re-entry, and a judg- ment was rendered therein in favor of the plaintiff for recovery of possession of the premises. In a subsequent action, brought by a party claiming through a purchaser of the land at a foreclosure sale under a mortgage executed by the assignee of the lessee, subsequent to the date of the lease, but prior to the commencement of the ejectment suit, it wji-s held that the judgment in the first mentioned eject- ment suit was a bar to any recovery in the sul)sequent suit. The lessee was privy to the lessor and the defendant in the ejectment suit (the assignee of the lessee) was also privy. The grantee in the mortgage executed by such defendant, took subject to the rights of the lessor, and the sale of the premises under the foreclosure proceedings did not in any way affect or impair those rights, or give the plaintiff any title as against the defendant ; and the title which the plain- tiff claimed, through and under the defendant in the eject- ment suit, having been perfected by the foreclosure proceed- ings after the ejectment suit was commenced, the judgment in the latter suit, in connection with the title which the evi- .re, while using due care, and of the amount of the injury; bu, not of the tenant's liability to keep the place in repair, nor of his having neglected to do so, nor of such negligence lii\ing been the sole cause of such injury.' Ordinarily tie judgment of a court of competent jurisdiction is con- cusive between parties to it. One who is neither a party or p'ivy, or purchases pendente lite, is not bound, but he who pn-chases during the pendency of the suit is bound by the d'.cree that is made against the person from whom he drives title.' So a judgment contirming a mechanic's lien isconclusive upon the parties thereto, and claiming under ad in privity with them ; and it is not necessary to make a m«rtgagee or encumbrancer by a lien of a diflerent kind, a paty in order to bind them by such a judgment' 5EC. 59. Every person is entitled to his day in court, be- foB his rights can be concluded by its judgment. Those ony^, who, in some manner recognized by the forms of law, beome parties or privies to the record in a suit, can be con- cMed by the judgment therein." As I have already stated thf, parties in the legal sense, are all persons having a rigt to control the proceedings, to defend, to adduce, and cros-examine witnesses, and to appeal from the decision,' if anjappeal lies. On this principle, the lessor of the plain- tiff n ejectment, and the tenant, are the real iTurties to the suit and are concluded in any future action in their own uams, by the Judgment in that suit. So, if there be a ' B5ton V. "Worthington, 10 Gray, 496. » Onmonwealth v. Dieffenbach, 3 Grant, 368; Walden v. Bodloy's lipirs, 9 Howai, 34; Society v. Town of Hartland, 2 Pcnn. St. 536; Ilaynes v. Colder- wood23 California, 409. » Stte V. Ead's, 15 Iowa, 114. ♦Atms V. Filer, 7 Wis. 306. Caiey v. Emmons, 9 Wis. 114. 56 The Law of Estoppel. trial between A.'s lessee and B., who recovers judgment, and afterwards another trial of title to the same lands, between B.'s lessee and A., the former verdict and judgment will be admissible in evidence in favor of B.'s lessee, against A. ; for the real parties in both cases were A. and B. Tli2 case of yrivies^ previously mentioned, is governed by lile principles to those which have been stated in regard to pa- ties ; the general rule is, that the person who represeits another, and the person who is represented, have a l^al identity ; and whatever binds the one, in relation to the subject of their common interest, binds the other also. Thus, a verdict and judgment, for or against the ancesto', binds the heir. So, if several successive remainders aie limited in the same deed, a judgment for one remainde'- man is evidence for the next in succession. But a judg- ment, to which a tenant for life was a party, is not evidene for or ao:aiust the reversioner, unless he came into the siit upon aid prayer^ A judgment in trespass against one vao justifies as the servant of A., is evidence against anotfer defendant in another action, it appearing that he also actd by the command of A., who was considered the real paty in 1)oth cases.^ Sec. 60. An assignee is bound by a judgment against he assignor prior to the assignment. There is the like pri^t}'- between the ancestor and all claiming under him, not aly as heir, but as tenant in dower, tenant by the curtesy, Iga- tee, devisee, etc. A judgment of ouster, in quo ivarrato, against the incumbent of an ofiice, is conclusive evidoce against those who derive their title to office under Im. Where one sued for diverting water from his works, andjiad judgment ; and afterwards he and another sued the f^e defendants for a similar injury, the former judgmentivas held admissible in evidence for the plaintiffs, being p\ma facie evidence of their privity in estate with the plaiitiff in the former action. The same rule applies to all granees, they being in like manner bound by a judgment conceding the same land, recovered by or against their grantor, rior * 1 Buller Nisi Prius, 232. » Kinnersly v. Orpe, 2 Doug. 37. PkUSOXAL jL]>nMEXTS. Z)? to the c'onvcyuncc. So, a plahitifl' who indeiiiiiilics an otliccr, and tk'ti'nd.s an action of trespass against him, is estop[)L'd l)y the judgment ; and a party having an interest^ a suit who intervenes in the suit, and judgment is rendered against him, it is linal, and even equity will not relieve against it ;' and a recovery of a judgment against a sheritl'. by the owner of property attached for the del)t of astrangei-, the suit being defended l)y the attaching creditors, is con- clusive in another suit between the same parties. A private party is estopped by a suit against a corporation, for an act of negligence, if he knew of the suit, and could have defended it, as an express notice is not required f and while persons not parties are not estopped l)y a decree, yet, if they wish to derive any benefit from it, are compelled to admit its validity; they are bound l)y the estoppel, because they cannot accept part and reject part of an entirety.' A judgment of foreclosure does not bind the assignee of the mortgagor, unless he was a party to the suit. . JSec. t)l. A judgment in trespass or trover will not tramfer the title of the goods to the defendant, although it is plead- able in bar of any action afterwards brought by the same plaintiff, or those in privity with him, against the same defendant, or those in privity Avith him. And as to the original parties, the rule, applicable to all personal actions, is, that wherever two or more are liable jointly and not severally, a judgment against one, though without satisfac- tion, is a bar to another action against any of the other for the same cause ; but it is not a bar to an action against a stranger. As tar as an action in the form of tort can be said to be exclusively joint in its nature, this rule may govern it, but no further. In regard to joint contracts, a judgment aaainst one alone is a bar to a subsequent action against the other. A judgment in trover or replevin by or against a bailee, can be pleaded as an estoppel to another action for the same suljject-mattcr, l)y the bailor. A bailee who deliv- ers goods entrusted to his care to a third person in good ^ Ingraham v. Dawson, 20 How. 486 ; Lovejoy v. Murray, 3 Wallace, 1. " Chicago V. Robbius, 4 Wall. 657; Chicago v. Robbing, 2 Blackf. 418. * Gordon v. llobart, 2 Smn. 402. 58 The Laav of Estoppel. faith, believing him to be the rightful owner, may take advan- tage as an estoppel to an action brought against him by the bailor, of the judgment against the bailor in an unsuccessful action by the latter against the party to whom the goods were surrendered.' Upon this principle, the equitable assignee of a chose in action has been estopped by a verdict and judgment thereon, in the same manner as if he were a party to the record, the suit having been prosecuted in the name of another for his beneiit, and at his request and expense.* Sec. 62. A judgment against two joint debtors in an action of debt estops both in an action of one against the other, from denying the existence or obligation of the debt, without interfering with the right to prove that the whole burden of the obligation should be borne by the party who seeks to enforce it.' A defendant who claimed under a donatio mortis causa, was held to be within the estoppel of a judgment obtained by a creditor of the donor against his administrator, and estopped from showing fraud and collu- sion, or that there was no such debt as that sued upon.* Generally no one can be within the estoppel of a judgment as a privy, unless his title accrues after the rendition of the judgment.* A vendee or assignee will therefore not be concluded by a judgment against the vendor or assignor prior to the sale or assignment. But to this rule there is an excep- tion, that is, in cases of judgments in rem ; as they are con- clusive upon the whole world, they must necessarily be binding upon the assignee, regardless of the time of assign- ment.' In equity, all who acquire title to real estate from a defendant during the pendency of a bill to establish aright, or for the enforcement of a trust that is distinctly alleged in the bill, are effected with notice and are bound by the decree rendered against the vendor,' while a judgment in an action of ejectment is conclusive evidence of title in a subsequent action for mesne profits, against all claiming under ' Burton v. Wilkinson, 18 Vt. 126; * Mitchell v. Pease, 7 Gushing, 350. Bates V. Stanton, 1 Duer 79 ; Story ''Campbell v. Hall, 16 N. Y. 575. on Bailments. ' Peck v. Barnuni, 24 Vt. 376. ' Rogers v. Haines, 3 Greenleaf, 362. ' Leading Cases in Equity, 171 . •Lloyd V. Barr, 11 Penn. 41. Personal Judgments, 59 or (hrougli the defeiuliiiit a.s pureha.ser.'S duriiii; tlic liiigalion and Avhile the estoppel, is limited only to the profits of the land ; it does not l)ind or embrace the title. k5EC. (J3. A party is estopped by a judgment ao^amst him from disputing its correctness, so far as the point directly involved in the case was concerned ; whether the reasons upon Avhich the judgment is based were sound or not ; and even if the reasons were not given. And as the parties them- selves are estopped, so also are those who since the judg- ment, claim to have acquired interests in the subject-matter of the judgment from or under the parties. CHAPTER lY. JUDGMENTS IN PERSONAM. Section 64. In ejectment, the verdict and judgment is con- clusive, of the title to the lessor of the plaintiff to mesne profits accruing after the day of the demise, during such time as the defendant has held the premises in question.* The statutes of New Jersey declare a judgment in eject- ment conclusive as to the right of possession established by such judgment, upon the party against whom it is recov- ered, and upon all persons claiming from, through or under such party, ])y title arising after the commencement of such action, but provides that, in certain cases, it may be re- opened in three years. In Pennsylvania, in order to give the conclusive effect on parties to a judgment in ejectment, it must appear that the equitable title was directly in issue and decided upon ]'' and upon a judgment in ejectment to enforce or rescind a contract for the sale of land, one that is conclusive upon the rights of parties, whether the judg- ment is entered on the verdict of a jury or on an award of arbitrators ;^ it must be regularly entered upon the record. In Ohio, a judgment in ejectment is as conclusive as judg- ments in other actions, until reversed for error, or annul- led by an adverse recovery in a subsequent suit,* and also in Minnesota,^ and are made conclusive by the statute in Iowa, but appl}^ o"ly to interests existing at the time of trial. In Kentucky, if in an action for the recovery of hmd, a claim is set up for rents, issues and profits there- of ; it is a bar to another and separate suit for rents, although the judgment is not a bar to a recovery for any- thing that he had a right to recover, which was not claimed in the petition, for the recovery of the land.' In Tennes- ' Den V. McShane, 13 N.J. Law 496; Arick, v. Ogler, 25 Penn. 506. R. 35. " Hinton v. McNeil. 5 Ohio, 509. " Meyers v. Hill. 46 Penn. 9. * Bass v. Arper, 6 Minn. =" SerUinger v. Ridgwa}-, 9 Watts, MYalker v. Mitchell, 18 B. Mon. 541. Judgments in Personam. 61 see, the judgment is conclusive upon tiic I'JUt}' against whom it is recovered, and by title accruing al'Ler the com- mencement of the action, on all cluinn'ng under and through him, provided the person against whom the judgment is recovered is not under disability at the time ;' and the gen- eral well-settled rule is, that judgments in ejectment hav • the same eflect as all other actions, and l)inds parties and privies thereto, upon the subject-matter directly in issue, but will not bind strangers. Sec. 65. There is no distinction in ejectment between a judgment by default and one obtained by a verdict. In the one case the right of the plaintiff is confessed, in the other it is tried and determined. Although when the fictitious forms in ejectment are aboli.-ihed by statute the action is placed on the same basis as other actions in regard to the conclusiveness of judgments, and courts give them the same effect. Yet were a plaintiff is defeated in one action he will not be estopped in another action, where he claims under a new deed. Having a new^ title, he has the same right to assert it Avithout prejudice from the former suit that a stran- ger would have.^ In South Carolina, by the act of 1744, if the plaintiff in an action of trespass to try title, suffers a judgment against him, or is nonsuited, or discontinues, or otherwise drops his action, he must within two years there- after commence a second suit, or else he is ban-ed and estop- ped of his right and title, and as against him the title is abso- lutely vested in the defendant.' If the validity of a mort- gage be tried and adjudicated in a suit in chancery, the decree binds parties and privies in an action of ejectment on the same mortgage.' Where the action of ejectment is l)rought for the purpose of settling the title, and to estalv lish the right of property, as well as to recover possession, the judgment is conclusive upon all parties.^ In Illinois, Vermont and Arkansas one verdict and judgment in eject- ment is conclusive of the title. ' Tennessee Code. Sturdy v. Jackway,4 Wall, 174; Bar- " Barrows V. Kindred, 4 Wallace, rowsv. Kindrod, 4 Wall. 399. 399. ■'Smith v. Kernochan, 7 Howard 'DysoQ V. Leek, 5 Strob. 141; 198; Tyler v. Uyde, 2 B. C. li. 308. 62 The Law of Estoppel. Sec. 66. In actions for mesne profits the judgment in the ejectment suit is conclusive evidence against the tenant in possession, but not as to third persons/ and is conclusive evi- dence for the plaintiff against the defendant or any person claimin**- under or through him," and the defendant is estop- ped in an action for mesne profits from setting up any de- fense which would have been a bar to the action of eject- ment ; he cannot set up a title in bar of the action even if he has a better one than the plaintiff.' If the plaintiff in the action for 7nesne profits endeavors to recover for those which acci-ued antecedently to the day of the demise laid in the declaration in the ejectment, he cannot introduce the judgment in ejectment as evidence for him. A judgment in ejectment, like all other judgments, binds only parties, and privies ; a tenant is concluded by the judgment in ejectment and cannot controvert the title. But where the action is brought against third parties, against persons who are neither parties or privies to the record, the judgment loses its conclusive effect, and they may controvert the plaintifl''s title ; it proves the plaintiff's possession, and this he can establish by introducing the record of the judgment and an executed writ of possession under it.* But where it is against the tenant he cannot controvert the plaintiff's posses- sion any more than his title, for the reason that his posses- sion is part of his title ; for to entitle the plaintiff to recover, he must show a possessory right not barred by the statute of limitations. The judgment in the preceding action of ejectment, like all others, estops parties and privies only as to the subject-matter of it and proves nothing at all beyond the time laid in the demise.' In a writ of entry, whether the tact of non-tenure seasonably pleaded by seve- ral tenants be established the admissions of the defendants or a judgment, the effect as far as the tenant is concerned operates as an estoppel of record.* 'Chirac v. Reinecker, U Wheat. * Chirac v. Rienecker, 11 Wheat. 280; risk v. Miller, 20 Tex. 581. 280. " Poston V. Jones, 2 Dev. &, Bat. '294. * Asliii v. Parker, 2 Burr. 665. "Tyler on ejectment, 844 and cases *Hotchkiss v. Hunt, 56 Me. 252. cited Judgments in Personajvi. 63 Sec. 67. In California, in an action of ejectnicnl under iho practice act, a jndgment is conclusive upon the question of title, in u subsequent suit between the same parties and their privies, where the title has been put directly in issue and determined in the tirst suit.' Where, under iHhb laws of Maryland, an issue is directed by tiie probate court, as to tlie legitimacy of the person who claims to be appointed administrator of the estate of an intestate, on the ground that he is the intestate's nephew, the linding thereon is conclusive upon the question of legitimacy, as between the parties in an ejectment suit subsequently brought by the claimant.^ A state statute, enacting that a judgment in eject- ment (provided the action be brought in a form which gives precison to the parties and land claimed), shall be a bar to any other action between the same parties on the same sub- ject-matter, is a rule of property as well as practice, and being conclusive on title in the courts of the State, is con- clusive also in those of the United States.' A judgment in ejectment binds the parties and their privies, and estops them from denying that the plaintiiF was entitled to the possession of the premises at the time of its rendition. Privies are those who enter under the defendant in eject- ment, or acquire an interest in or through him, or in collu- sion with him.* So where a plaintiif has been restored under a writ of restitution to the possession of the demanded premises in an action of ejectment the, defendant so evicted is estopped at law to deny that the plaintiif Avas rightfully restored and that his own prior posses.sion was wrongful.^ If, in an action of ejectment against a tenant, the landlord assumes the defense and puts his title in issue, the judgment rendered therein binds him as effectually as though he was made a party defendant." A joint judg- ment in ejectment against several, if reversed as to one, is reversed as to all ; it is either void in toto, or not at all. 'Copoton V. Schmidt, 25 Cal. 479. ^ Mann v. Rogers, 35 Cal. 816. " Blackburn v. Crawfords, 3 "Wall. " Valentine v. Mahoney, 37 Cal. 175. 389; Caldewood v Brook, 28 Cal. ' Miles V. Caldwell, 2 Wallace, 35. 12G ; Dimvick v. Denyer, 32 Cal. * Satterlee v. Bliss, 3i; Cla. 489 ; 488. Marshal v. Shafer, 32 Cal. 176. 64 The Law of Estoppel. Sec. G8. "When a plaintifi' avers title and right of posses- sion in himself, and the defendant denies these alles-ations, and on the other hand avers title and right of possession in himself, the title is 2)rima facie in controversy; and in such a case the judgment operates as an estoppel in any future litigation between the same parties, unless it should be shown that one of the parties was prevented from making his title available in the former suit by some temporary impediment, such as an outstanding lease or license, or that he had acquired some new title since the former judgment.' The doctrine that a judgment cannot be pleaded in bar or given in evidence by way of estoppel, arises from the fact that the action of ejectment at common law is between ticti- tious persons, and has no applicability to one action for pos- session of real propert}', which is more like the writ of cntr}' or assize than the old action of ejectment. One action, although called ejectment, seems to combine the properties of a writ of assize, of entry and of right, and as such, a judgment in an action is an estoppel in regard to all titles litigated. But where, since the judgment, new rights and titles have accrued, it is no bar to another action. In States where the fictitious form of the action of ejectment formerly in use has been abolished, and issue is made by the parties in their real names, and the land is accurately described, a verdict and judgment in such action, where the title to the fee is in question, is a bar to a second trial for the same cause of action between the same parties in the absence of statute law to the contrary. But in Missouri it was decided (owing to a repeal of the statute) that there was no bar iu such actions.^ Sec. 69. A confession of judgment in ejectment is con- clusive in a subsequent ejectment for the same land between the same parties or their privies. It must be treated upon the same general principles of law that belong to solemn or judicial confessions in other cases. The most important interests, not only property and liberty, but life itself, are habitually concluded judicially by solemn confessions made ' She'ly V. Dilley, 3 Nevada, 21. = Feuwick v. Gill,. 38 .Mo. 510. Judgments in Personam. 65 by the party in interest in the ftice of a court of jussticc. Is there any reason why ejectment should form an exception? In the nature of things, the interests involved in an eject- ment suit are no more beyond the power of the party to control by his confession, than any other righfcs^of person or property. If he may confess his guilt in a capital case, he may most assuredly confess his want of title in ejectment, and a judgment confessed concludes and estops him and all his privies ; this not upon the effect of the statute, but of the general principles of common law. It is a voluntary waiver of all defenses, and of all rights under the statute or at common law — a total and unconditional surrender of the field of controversy which concludes him forever.* And where the attorneys of both parties in an action of eject- ment enter into an agreement in open court, submitting a question of boundary to the final decision of arbitrators, the award of the arbitrators and judgment thereon is con- clusive in another action of ejectment between the same par- ties for the same land.* A disclaimer by a defendant in ejectment, unless withdrawn or amended by leave of court, operates as an estoppel of record of the part of the land disclaimed.' Sec. 70. In regard to the conclusiveness of judgments in actions of ejectment, there is a vast difference in the dif- ferent States in the Union in the value attached to real estate, and to the title by which it is held, as compared with other species of property. But there can be no doubt that in all of them the feeling is far removed from that which for- merly prevailed in England, or which prevails there even now, while some of our older States still maintain many of the safeguards of the common law, with its complicated sys- tem of conveyancing operating as a strong drag upon the facility and frequency of transfers of real property ; in the Western States, the inhabitants traffic in land as they do in horses or merchandise, and sell a quarter section of .^Secrist v. Zimmcrmau, 55 Penn. ^Greely v, Thomas, 56 Penn. St, St. 446. -■'. *Evans v. Kauphaus,59 Penn. S 379. 5 66 The Law of Estoppel. land as readily and easily as they do a horse or wagon. The laws of the people corresi3ond with their habits. Deeds of conveyance are, by statute, rendered exceedingly simple and effectual; the main safeguard being a Avell-digested sj's- tem of registration. In consonance with this general facil- ity for traffic, it is their policy to prevent those endless liti- gations concerning titles to land, which, in other covmtries, are ti"ansmitted from one generation to another. The rapid settlement of a new country requires that a title once fairly determined, shall not be again disturbed as between the same parties.* ISec. 71. Ejectment is a possessory action ; the judgment, therefore, is not conclusive upon the mere right or title, and cannot be pleaded in any subsequent suit, whether of eject- ment or trespass, in which the title is in controversy ; while a judgment in trespass may be an estoppel in a subsequent ejectment, the estoppel of the judgment in ejectment does not extend to the title ; it is limited only to the right of pos- session, and is conclusive in regard to that only, till reversed or set aside in another action of the same nature. The defendant in an action of ejectment, against whom a judg- ment has been recovered, cannot deny the plaintiff's title in an action for mesne profits, for the simple reason that the only question in controversy in the action of ejectment was the plaintiff's right of possession, and not the absolute right to the land. A verdict and judgment for the plain- tiff in action for trespass quare clausamf regit, in which the question of the plaintiff 's title was directly involved and adjudicated upon, will be conclusive evidence that he has a valid title in another action against the same defendant. Sec. 72. The case of Outram v. Morewood {ante), it was decided, where parties are bound by the estoppel of a former judgment in such an issue, when raised on the record in pleading, they must be equally bound, when it arises on the trial under the general issue.'' So, in an action on a promissory note, where the defense was fraud, and the judgment was rendered for the defend- ' Mills V. Caldwell, 2 Wallace, 43. » Small v. Haskins, 26 Vt. Judgments in Personal. 67 ant, the verdict was held, in another action on another note growing out of the sjime transaction, conclusive evi- dence of the fraud.' 80, an action for interest due on a bond and a judgment for the plaintiff for the attmunt of the interest claimed, will be conclusive evidence in an action on the bond, and estop the defendant from alleging fraud, for the reason that it was a defense Avhich was available in the former suit, and the presumption is that it was so used;'' and on the same principle in an action of assumpsit for goods sold and delivered, a verdict against the vendee on the ground that the sale was fraudulent as against the vendor's creditors, is conclusive of fraud in a subsequent action between the same parties, for other goods which were not included in the first action. So a judgment against a firm, on a note made by one of the partners, will be conclusive evidence of the existence of the partnership, the makino- of the note, and the right of the partner to bind the firm in a subsequent action brought by one of the firm, to recover damages from the plaintiff in the former action for fraudu- lently taking the note for the individual debt of the maker, and the court held that the estoppel of the former judo-, ment beyond the fjict of the making of the note and the right to bind the firm, would not prevent a recovery in an action for damages, provided it could be done without controverting the issues which had been irrevocably settled in the first action.' So a decision that a bankrupt's dis- charge was fraudulently obtained, is conclusive of the fraud in another action where the discharge is pleaded In an action for forcible entry and detainer, a judgment for the plaintiff will be conclusive as to the lawful possession of the land in an action for assault committed by the defendant at the time of entry, where the defendant attempts to justify on the ground that the legal possession is in him and not in the plaintift'; it may be laid down as a settled principle that whenever a judgment cannot be rendered without decid- ing specific issues, it will be conclusive on those issues in any 'Doty V. Brown, 4 N. Y. 71; Chase "Edgell v. Segerson, 26 Mo. 583. V. Walker, 26 Me. 555; Whircli v. ' Christ ran v. Pierce, 7 Geo. 434. Howard, 14 Ind. 455. Q8 The Law of Estoppel. future litigation between the same parties;' and where a judgment is rendered on one of two notes, it will be con- clusive in an action on the other of the matters litigated and decided in the first, though it has to be shown by parol tes- timony, the record being silent on the matter. It makes no diflerence whether the judgment is on a question of law or fact, for whenever the construction of an instrument has been judicially determined, it must be followed in every other action where the same issue arises between the same parties,'' Sec. 73. When a former judgment is used b}^ way of an estoppel, the plaintiff may reply, that it did not relate to the same property or transaction in controversy in the action, to which it is set up m bar : and the question of identity thus raised is determined by the jury, upon the evidence adduced. And though the declaration in the former suit may be broad enough to include the subject-matter of the second action, yet, if, upon the whole record it is doubtful whether the same subject-matter was actually passed upon, parol evidence will be admitted to show the truth. If, in the pleadings, there are several distinct counts, the evidence may have referred to either, or all, with equal propriety ; the judgment, in such a case, is only prima fade evidence upon any one of the counts, and evidence aliundi is admis- sible to rebut it. Where one wrongfully takes another's horse, and sells him, applying the mone}' to his own .use, a verdict and judgment in trespass, in an action by the owner, for the taking, will be effectual as an estoppel in an action of asswnimt for the money received, or for the price, the cause of action being proved to be identical. And upon this same principle, if a plaintiff declares on the counts, as, for instance, one on a promissory note, and the other for goods sold, and takes a judgment for the note, but offers no evidence on the other count, it will not be a bar to another action for goods sold ; but if the plaintiff had adduced evidence on the count for goods sold and delivered, and the judgment had ' Bell V. Walker, 18 Conn. 91 ; Perkins v. Walker, 19 Vt. 144 ; Gardner v, Buckbee, 3 Cow. ; Treadwell v. Stebbins, 6 Bos. 538. ^ Stewart v. Stebbins, 30 Miss. 66. Judgments in Personam. 09 incliKlcd this with the other demand, it can be pleaded as a judgment recovered upon the same cause of action; if the real merits of the action are not decided in the first, the prior judgment is no bar.» Generally, where'^ucstions of this kind arise, regulating the identity of the matters liti- gated in the former suit, parol evidence is admissi})le, to show what transpired on the former trial, in order to explain the record ; and if the record shows that the same cause of action was apparently determined in the first suit, it will l)e pri7nafade, but not conclusive evidence that it has passed in rem judicatum ; and the burden of proving that it did not, is upon the party against whom the record is used. Hence, in order to know what is within the estoppel of a judgment, it is necessary to go beyond the judgment, first to the demand or cause of action, and next to the defense or answer made by the defendant, and regard every ques- tion as finally adjudged against the unsuccessful party, which would have the eflfect of an estoppel for him, if determined in his favor. This is the rule, where the point is set forth deiinitely on the record, and also where the general issue is substituted for the special plea, where the questions raised by the evidence and presented to the jury can be ascer- tained with certainty, from the testimony of witnesses or the decision of the judge before whom the cause is tried. A fact is not less at issue or within the conclusion of the verdict, because it is comprised in a general traverse or averment, and the only diflTerence between the cases, where the issue is general, embracing various matters, and those where it is limited to a single point, is, that the estoppel, which appears by the mere inspection of the record in the one case, must be made out by evidence in the other ; so that, when what was actually decided in a former suit can be ascertained by parol evidence, it will be an estoppel, notwithstanding the ambiguity of the record, or a change in the form in which the question is presented. So, a ver- dict for the defendant in an action brought for the recovery ' Seden v. Tutop, 6 Terra. R. 607; Bagotv. "Williams, 3 B. &C. 240; Thorpe V. Cooper, 5 Bing. 129; Snider v. Croy, 2 Johns. 277; 2 Slarkie Ev. 199; 2 Phil. Ev. 21. 70 The Law of Estoppel. , of a chattel, which was conveyed by a deed, which is put in evidence at the trial, and relied on as a source of title, will be conclusive of the validity of the deed in a subse- quent suit for another chattel comprised in the same instru- ment.* When a question litigated in a second suit is the same as that decided in the lirst, the estoppel will not be less binding, because the cause of action is different, and the identity of the points actually in dispute cannot appear without extrinsic proof. So, where a decision that the defendant did not owe the plaintiif contribution on one bond, was held to estopp him from recovering it on another, g-iven»at the same time and in course of the same transaction, although parol evidence was necessary to apply the bar of the former proceeding to the demand in suit.^ Sec. 74. In the case of Sheldon v. Edwards,^ the learned judofe says, "that the question whether the former suit and judgment thereon was bar to the action, depends upon the question whether it was a judgment upon the whole merits. The same defense was set up m the answer there, as in this suit. The facts were particularly found there, though not all precisely as they are in this suit. On the judgment there can be no dispute or denial that both issues were dis- tinctly passed upon, found and adjudged ; the same defense was pleaded, the facts found and the law adjudged. Why then was it not a bar to this action? It is said that where the action is dismissed or judgment given for the defendant upon a preliminary point liefore reaching the merits, it is no bar to another action.* No one can dispute the soundness of the rule, but these cases have no sort of application to this one. Take a plainer case ; an action is brought upon a draft before the days of grace had expired. The defendant answers ; first, that the draft is usurious ; second, that it was paid ; third, that it was premature. The defendant being entitled to grace, the comt found each issue for the defendant, and judgment was accordingly entered. Can any court assume to say that the judgment was given upon one • ■ — — * Doty V. Brown, 4 N. T. 71. '' Hughes v. Blake, 1 Mason, 515 ; ^ Bouchard v. Bias, 3 Denio, 233. Estell v. Farel, 2 Yerg. 467. 'SSN. T. 286. Judgments in Persoxa3i. 71 issue more than upon another, when the record shows it was given alike upon all ? Can it be denied that each of these issues was tried and adjudged ? What court then can detract from the power or force of the consequences flow- ing upon such judgment upon the issues ? If is stated that estoppels must be mutual ; that if these issues upon the merits had been found the other way, and the complaint dis- missed because the action was prematurely brought; there would have been no estoppel against the defendant from tiying them again if another action was brought. This seems plausible, but I think unsound. It is the judgment upon the findings that makes the estoppel. If the judgment be one of nonsuit, or in the nature of a nonsuit, and the action be dismissed, nothing whatever is adjudged in respect to a subsequent suit. It is no bar to anything : aji action is brought on a draft, and the plaiutiflf, after evidence on both sides, is nonsuited, judgment of nonsuit entered and paid. The next day he brings the same action again, and succeeds ; the former of course being no bai'. But suppose, instead of a nonsuit, the judgment had been for the defen- dant upon the merits, because he failed to prove the defen- dant's handwriting, it is equally clear that the judgment would have been binding and a bar, whether it was founded on the finding of a court or referee or the verdict of a juiy." Sec. 75. What is meant by an estoppel being mutual is, that the particular judgment is binding upon both, if obligatoiy upon either. The merits having been detennined in the former suit, and judgment entered thereon, it is conclusive upon both parties until reversed. It is entirely mutual.' lu order that a judgment in another action between the same parties shall constitute an estoppel, it should appear that the identical questions involved in the issue tried were passed upon by the court or jury at the former trial.' It must, therefore, be clearly evident that a former judgment cannot operate as an estoppel to another action, unless the subsequent suit is not only founded upon the same contract or transaction as that litigated in the first, b«t that the sub- » 35 N. T. 286. ' Kerr v. Havs, 3*3 N. Y. 3-31 . 72 The Law of Estoppel. sequent action is brought for the wrong or redress which the party sought in the first action.' So, a judgment for a defendant in action brought to recover damages, for an alleged deception in inducing the plaintiff to enter into a contract, can be no defense to an action on the contract* or on a bond given for the fulfillment of the contract, because a judgment that a contract was not procured or void, for fraud can be no reason why it should not be enforced.' Every fact which exists on record must be proved by the record, but when the question is as to the real subject-mat- ter of the suit, or to show a bar to another suit, or to lay the foundation of an action of indemnity, the identity of the cause of action may be proved by other than record evi- dence." Whether any matter has been tried between the same parties, and has been decided before, is a fact depend- ing partly on parol evidence and partly on the record. But while a record can be explained, it cannot be added to or contradicted, and where a record distinctly shows what mat- ters were in issue and decided, parol evidence will be allowed to show that other matters not within the issue were like- wise adjudicated. Sec. 76. But where a plaintiff brings an action against a defendant, and the declaration contains several causes of action, and he gives evidence on all the counts, but for want of evidence fails in establishing some of them, the judgment is an estoppel to another action on the counts he has failed to sustain, and if a claim is submitted to a jury, and they dis- allow it or allow less than the plaintiff* is entitled to recover, the verdict and judgment is a conclusive bar to another action for the same cause.* Where the plaintiff's claim is divisible, part of it can be withdrawn and another action brought, but where it is indivisible, the defendant cannot be vexed by having it split up into separate causes of action; and a judgment in a suit for part of a claim is a bar to 'Tarns V. Lewis, 42 Penn. St. 402. ■ ■■' Wanzer v. Debaun, 1 E. D. Smith. 261; Norton v. Doherty, 3 Gray, 72. ^Finley v. Hambest, 30 Penn. St. 190. "Parker v. Thompson, 3 Pick. 429; KillhoefFer v. Herr. 17 S. & R. 319. * Brockway v. Kinney, 25 Johns. 210; Philiips v. Berrick, 16 Johns. 136. Judgments in Personam. 73 another action for the remainder. Parol evidence is not admissible to show that matters prima facie y^\th\n the estop- pel of a judgment, are exempt from its operation. When the cause of action upon which the judgment ts"i'endered is entire, and therefore insusceptible of severance or apportion- ment the estoppel extends to the whole, and it cannot be shown that any part was withheld from the decision of the court or the jury. So inflexible is this rule, that even on the clearest proof that no evidence was given as to part of the demand in controversy, or that it was overlooked by the jury in rendering their verdict. Thus, where several actions for trover were brought for the taking of several articles of goods at the same time and by one act, it was held that a judgment for pm^t of the articles was a bar to another action for the residue.* So, where trover was brought for a horse, it was held that trespass for taking the same could not afterwards be maintained, for in trespass he might have recoverpd damages for the force and violence for taking the horse , yet, having elected to bring an action for the horse only, or for its value, he is bound by his election, and not allowed to carve two suits out of the same cause of action.'* So, for an entire contract for the payment of money, or for the sale of goods, and an account for goods sold and deliv- ered, consisting of several distinct items, delivered at differ- ent times, but all due, is an entire demand within the mean- ing of this principle, and a recovery for a part is a bar to any action for the residue." And where a party brings an action for part of an entire and indivisible demand, and odtains judgment thereon, he cannot afterward avail him- self of the residue, by way of set-ofl" in an action against him by the opposite party." Nor can a party, by assigning part of his claim to another, divide an entire cause of action, nor by any means sustain more than one suit on it, and if two suits be brought, a recovery in the first will bar the ' Draper v. Stounel, 38 TST. T. 211 ; Farrington v. Pavne, 15 John. 431 ; Bates V. Qnattlebom, 2 N. & Mc. 205. ''Hite V. Long, 6 Rand, 457. ^Bunnel v. PintO; 2 Conn. 431; Guernsey v. Carver, 8 "Wend. 492. ♦Miller v. Covert, 1 Wend. 487. 74 The Law of EsxoprEL. second ;' as an entire cause of action cannot be divided, a judgment for or against the plaintiff for a portion will be as conclusive ao^ainst his rig-ht to maintain another action for the balance, as though the judgment had embraced the whole. In the case in the 24th Penn.,^ the judge said the rule that prevents a party from splitting up his cause of action into small payments, takes away his remedy for the residue entirely, and having once claimed by action or defense a part of an entire subject-matter, the law allows him no remedy for the other part, else there could be no end to litigation. Sec. 77. A party cannot divide and recover in parts in different actions, a claim which in its legal nature is indivi- sible. The difficulty which is often experienced is increased rather than diminished, if courts are to rely on the doctrine of stare decisis in making their decisions. That a party shall not be allowed to split up an entire and indivisible claim and recover upon it in fragments in different actions, is itself palpal)ly reasonal:)le and is well enough settled. A party should not be vexed with a multitude of suits for one and the same cause of action. There can be no reason given why he should be, but sufficient and numerous reasons he should not nemo debet bix vexari pro una eteadein causa, and interest reipuhlicce ut sit finis litium ; if a party divide a single and entire cause of action once, what limit is there but the caprice and will of the party to endless divisions ? for what depends upon the mere caprice or will of an adversary, may be said to be without limit. To allow a sin- gle claim to be divided and recovered in parcels would be instituting an unreasonable doctrine that would necessarily lead to vexatious and endless litigation. To effectually pre- vent this the law wisely holds that a party cannot recover in parts a claim which in its legal nature is indivisible. So where a plaintiff brings an action of trespass or trover for one of several chattels carried off or converted at the same time, or for any other indivisible act or ' Ingraham v. Hall. 11 S. & R. 78. » Secor V. Sturgis, 16 N. Y. 548; Sims v. Zaue, 24 Penn. St. 242. Judgments in Personam. 75 wrong, and recovers judgineiit, it will be eflectiial as an estoppel to any future litigation by the same parties for the residue. 80 a judgment, recovered against one of two wrong-doers, is au estoppel to an aetton by the plaintifi* against both. In Farrington v. Payne, a ])ed and quilts were taken at the same time and by the same act ; a recovery in trover for the quilts was held to be a bar to a recovery in trover for the bed. As the same rule is appli- cable in actions of contract, a vendor who sells goods at the same time and place to the same person, cannot multiply costs in bringing as many actions as there are parcels, but must include the whole in one action, even when they were deliv- ered at different periods.^ The amount due on a book account is regarded as one debt, although it may be com- posed of a hundred charges ; it would be gross injustice to allow the creditor to divide it into as many actions or demands as there are items in the account ; and it is for this reason that such claims are generally regarded as entire and indivisible.'' So, an entire demand for goods sold at one time, although in different parcels or barrels, or upon a con- tract for the payment of money in a gross sum and at one time, whether as rent or any other indivisible consideration, cannot be apportioned or severed, and if once made the sub- ject of a judicial decision will be absolutely and forever extinguished, notwithstanding it can be shown by the clear- est proof that part of the demand was withheld and that the judgment which was rendered was only for the resi- due of the amount in litigation. This difficulty presents itself, and that is, to ascertain what is an entire demand ; the rule is that all acts of the same nature performed at the same time are regarded as one act in law, and cannot be made the subject of several and separate actions where they are continuous instead of being simultaneous ; the same rule ' Draper V. Stouvenal, 38 N. Y. 219; Cracraft v. Cochran, 16 Iowa, 300; Farrington v. Payne, 15 Johns. 432 ; Phillips v. Berick, 16 id. 136 ; Cimniug- ham V. Harris, 5 Cal. 181 ; Miller v. Covey, 1 Wend. 487. '^ Avery v. Fitch, 4 Conn. 362 ; Bendernagle v. Cocks, 19 Wend. 207 ; Guernsy V. Carver, 8 id. 492 ; Warren v. Cummings, 6 Cush. 103 ; Senner v. R. R. 26 Mo. 46 '; Brown v. King, 10 id. 57 ; Sims v. Zane, 24Pcnn. St. 242 ; Colburn V. Wentworth, 31 Barb. 481. 76 The Law of Estoppel. applies unless it be shown by proof that they are distinct causes of action. In New York, it has been held that where goods are sold, services rendered or money received under such circumstances, that the different items while occuring at different times are but one transaction; the cause of action will be entire and a recovery for any part will be conclusive against the rifrht to sue for the balance.' So wages due for work and labor performed at different periods, under a gen- eral hiring or retainer, form but one demand, and cannot be severed by withdrawing the amount due for a particular mouth or week formally from the record in one suit, and making it the basis of another. The cause of action is not the less entire because the services were not continuous, but if there had been different hirino-s each one mio;ht have been a cause of action : so where a mau paid by the day or week returns to his employer after a short absence, will not constitute a new contract, nor entitle him to bring separate actions for that which, although performed at different periods, is in the eye of the law one consideration. But where the consideration is distinct in nature, place or time, and unless the circumstances surrounding the transactions are such as to indicate that they are to be regarded as a whole and should be treated as an entirety, the onus is upon him who alleges the fact, and unless proven to be so it is not so considered.'' The judge who delivered the opinion in 16 N. Y. stated that "the principle is settled beyond dispute that a judgment concludes the right of parties in respect to the cause of action stated in the plead- ings in which it is rendered, whether the suit embraces the whole or only part of the demand constituting the cause of action. It results from this principle, and the rule is fully established that an entire claim, ensuing either upon a con- tract or from a wrong, cannot be divided and made the subject of several suits ; and if several suits be brought for clifierent parts of the same claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar in other ' 8 Wend 492 ; 13 id. 644 ; 19 id. 207 ; 15 Wend. 557. » Sturges V. Secor, 16 N. Y. 548. Judgments in Personam. 77 suits. The true distinction between demands or rights of action are several and distinct, in that the former arises out of one and the same act or contract, and the latter out of difierent acts or contracts. Perhaps, as safe--aHd simple a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be ; in respect to contracts, express or implied, each contract affords one, and only one, cause of action. The case of a contract con- taining several stipulations to be performed at different times is no exception ; although an action may be main- tained upon each stipulation, as it is broken before the time for the performance of the others, the ground of action is in the stipulation which is in the nature of a several con- tract ; where there is an account for goods and laljor per- formed, where money has been lent to or paid for a party at different times, or several items spring in any way from the same contract, whether only one or separate rights of action exist, will, in each case, depend upon whether each case is covered by one or separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or perform work or advance money ; and, usually, in the case of a running account, it may be fairly implied that it is, in pursuance of an agree- ment, that an account may be opened and continued, either for a definite period or at the pleasure of both the parties. But there must be either an express contract, or the circum- stances must be such as to raise an implied contract em- bracing all the items, to make them, when they arise at dif- ferent times, a single or entire demand, or cause of action." When, however, simultaneous or successive contracts are so far different that they cannot be united, or described as con- stituting a single consideration in pleading, the contract will not be entire unless made so expressly ; and a party who lends money and sells goods, at the same time and place, to another, may either bring a joint or separate action, as he 78 The Law of Estoppel. may see fit. When several promises or covenants are con- tained in the same instrnnient, or where a covenant is made to pay money, from time Lo time, by installments, a separate action may be brought for each installment, as it falls due, on the several covenants when broken before the jDeriod fixed for the payment or performance of the others.' And as the defendant ought to have as much latitude as the plain- tiff, he will not be estopped from taking advantage of a defense to an action brought under these circumstances, by having neglected to plead in a former action, when it would have been equally available.' And unless the stipulations in an instrument are essentially distinct, after the occurrence of several breaches, they must be made the subject of one action.^ Judgments, like all contracts, are vitiated by fraud. In the 12 Mich, the following decision was ren- dered in a case upon a \)ond : An insurance agent gave bond to his principal, conditioned to pay over and account for all moneys received by him as such. Judgment having been recovered by them on this bond, for money not accounted for and paid over, a scire facias was issued, assio-nino; as a breach that the obligor had received a further sum of money for which he failed to account, and the receipt of which he fraudulently concealed ; and on plead- ing the former judgment as an estoppel to the subsequent action on the same ])ond, the court held that the fraudulent concealment was sulficient reason for not including the sum in the original pleading, and rendered judgment in the sub- sequent action for the amount proved to have been con- cealed.* So, a suit by an administrator cwii testamento annexo against an executor who had been removed from his ofiice for the assets remaining in his hands, is a bar to another action for the recovery of funds which have been received by the executor before the institution of the first suit, but are not included in the judgment, in consequence of a mis- taken impression that they were not due at the time it was ' Secor V. Sturgis, 22 N. Y. 548; ^ Hughes v. Alexander, 5 Duer, 488. Perkins v. Hart, 11 Wheat. 261 ; Wolf = Hoff v. Myers, 42 Barb. 270. V. Wilton, 30 Penu. St. 202. " Johnson v. Provincial Ins. Co. 4 Judgments in Personam. 79 rendered.' But if the defendant fails truthfully to account for the assets in his hands, it is an indicia of fraud, and the former suit would not be a bar on account of fraud ; but if it is a mistake of the plaintiff, without con<3ealment and falsehood on part of the defendant, the former action can be pleaded as an estoppel.* And in a case where the plain- tiff recovered a judgment on a bond, whereby the defend- ant was bound to the plaintiff to abstain from all injuries to • the plaintiff's property, was held a bar to a subseqnent action of tort by the same plaintiff against the same defend- ant, for particular injuries committed to the property, be- tween the time of giving the bond and the beginning of the former action.^ Sec. 78. When, however, several causes of action are set forth in the complaint, the law presumes that the judgment covers the whole ; but tlijs presumption may be rebutted by clear proof that it extends to only one of the counts, or part of them. So, a presumption that a judgment obtained on a contract for the payment of money in installments, includes the whole amount of the debt, may be rebutted by parol evidence that a portion of the installments were not due, and that the action and judgment could not include them at the time of its rendition, and a judgment recovered for that portion which could not have been included in the former. A plea of former recovery in trover may be defeated by proving that the property for which the subse- quent action is brought was not converted until after the first litigation wag decided ; in cases of this kind judgments could not have been rendered on demands which did not accrue prior to the rendition of the judgment in the former action ; and, in a late decision in Massachusetts, it was held that a judgment in an action of tort, in the nature of an action of trespass quare clausum, was not conclusive in another action between the same parties, upon the same close, if there was nothing to show that the two trespasses. were identical,* and that a judgment in an action for the ' Pinney v, Barnes, 14 Conn. 420. ' Goodrich v. Gale, 97 Mass. 15. ' State V. Morton, 18 Mo. 53. * Morse v. Marshall, 97 Mass. 519. 80 The Law of Estoppel. conversion of a tree was not conclusive evidence of tiie title in a suit to recover the premises on whicii the tree stood, although accompanied by proof that the only ques- tion litigatTjd in the former suit was the question of title.* Sec. 79. It may be shown that matters which might have i)een litigated and included in a former judgment, were excluded from its operation by evidence that not only the particular cause of action embraced in the second action was withdrawn from the record, but that the evidence adduced upon the trial of the former action upon the demands sub- mitted to the jury, related to a particular or specific demand entirely different from that upon which the subsequent action is founded. Thus on a general verdict on a complaint embracing a half a dozen counts, that the evidence was given on one count only, and that there was none on the other, as if an action was brought upon a note, and for goods sold and delivered, and for money loaned, it may be shown that the verdict was rendered on the note and that the other two counts were withdrawn ; or that no testimony was adduced to sustain the other two counts ; or that a judgment on the common counts for work and labor which is a prima facie conclusion that it includes all the work and labor performed by the plaintiff prior to the commencement of the action, yet in a subsequent action for work and labor it may be shown that it is different from that which formed the subject of the former action. So a judgment in an action for goods sold and delivered will not be available in another action of a like nature for goods sold prior to the commencement of the former action, though the plaintiff might have included it in his first suit.^ But a judgment in favor of a vendor for the price of part only of the goods sold, is a bar to a subsequent suit for non-delivery.' Sec. 80. K party cannot sustain a suit on a ground which would have constituted a sufficient defense to a former action * Johnson v. Morse, 11 Allen, 540. * Sweet V. Tuttle, 14 N. T. 465 ; Wight v. Butler, 20 Johns. 367; Banker V. State, 6 Ind. 248; Phillips v. Berick, 16 Johns. 136; Brony v. King, 10 Mo. 57; Buddv. Gray, 14 Pick. 1-36. * Lawrence v. Hunt, 10 Wend. 80; Stevens v. Teft, 8 Gray, 419 ; Sawyer V. Woodbury, 7 Gray, 501; Eastman v. Cooper, 15; Gusli. 276. Judgments in Personam. 81 against him.' So, where a party has a dcfen.sc ^vhich ho neglects to make, he is estopped after the rendition of jiido-- raent from seeking relief in a court of c(iuity. But wlicro a defendant is ignorant of the facts which c(fitstitulc his defense at law peuding the suit, or the defense is not avail-" able at laAv, the case forms an exception to the rule, that equity will not interpose to relieve against a judgment at law; but if he be guilty of any negligence, courts of equity cannot interfere. So, a physician against whom judgment has been rendered for mal-practice cannot recover in action for professional services, in the course of which the mal- practice is alleged to have occurred, while a judgment for his services will be a bar to a subsequent action for mal- practice. In the case of Gates v. Preston, 41 N. Y., the plaintiff in the justice's court brought an action to recover six dollars for professional services ; the defendant confessed judgment for the amount, and then brought an action in another court claiming damages for an alleged mal-practice occurring during the time for which* the services were ren- dered on which judgment had been confessed ; the court there held, that the judgment in the justice's court in favor of the surgeon for professional services was a bar to any action by the defendant against him for mal-practice in per- forming such services, where the judgment was rendered by confession, without a trial, and, although the suit was brought by the surgeon and judgment was rendered prior to bringing the action for mal-practice,' on the ground that the judgment in the former actions being presumptive if not conclusive proof that there is no cause of action or founda- tion for the subsequent suit. So, where one is induced to indorse a promissory note by the statements of the payee that it was a mere matter of form, and that he would not be troubled about it, and afterward suit is brought and he makes no defense, and judgment is rendered, he is estopped from claiming that the judgment is not binding upon him. * Mai-iot V. Hampton, 7Durn.& East, 265; Le Queen v. Governeur, 1 Johns. 496; Embry V.Carver, 3 N. Y. 522; Voorhces v. Bank of U. S. 10 Pet. 449. ^ Davis V. Talcott, 12 N. Y. 184; White v. Merrett, 7 N. Y. 352; Bellinger v. Carrique, 31 Barb. 334; Edwards v. Stewart, 15 Barb. 66. G 82 The Law of Estoppel. But where after the judgment, statements to a similar effect were made under such circumstances as to justify the indor- ser in believing and acting upon them, and in supposing he was not liable, and he was thereby induced to abstain from securing himself, when he might easily have done so, until the maker was insolvent, and an execution was then levied upon his property, it was held that he was not bound by the judgment and that he was entitled to a perpetual injunc- tion.' So, a plaintiff who has declared specially on a con- tract will be entitled to rely on the judgment in his favor as conclusive that the contract was in force during the period over which the declaration extended. So, where a plaintiff had sued a defendant on the same contract of lease as that set forth in the declaration, and recovered judgment against him, was a good answer to a plea that the lease had been amended before the breach for which the former action was brought.' The rule that the estoppel of a judgment must be certain, and will not be extended by implication to matters not embraced its terms, does not hold good where the implication is irresistible, or so far aided by extrinsic evidence as to leave no room for doubt. A judgment is conclusive not only to the point which it professes to decide, but of matters which it was necessary to decide, and which were actually determined as to the ground work of the decision. So, where an order recitino- that John and William were the lawful children of their parents, and that their last settlement was in the parish of Hartingtou, was held conclusive of the settlement of the parents as well as of the children, because the one was involved in the other, and appeared from the record, though not set forth in it, for the reason that it partook of the nature of a proceeding in 7-ein.^ So, a judgment in favor of a servant, who is suing for wages, or a physician who has brought an action for his fees, is in form merely that the plaintiff is entitled to the compensation which he claims. But it also conclusively ' Roberts v. Miles, 12 Mich. 297; White v. Merrett, 7 N. Y. 352. ^ Faust V. Ramsey, 7 Ohio State, 457 ; Gardner v. Buckbee, 3 Cowen. 124. ' Davidson v. Shipman, 4 Ala. 27 ; Chamberlain v. Galhard, 2G Ala. 501 ; The Queen v. Hartington, 4 E. & B. 788. Judgments in Personam. 83 establishes, that the plaintiff did all it was necessary for him to do in order to recover, and estops the defendant from denying that such was the case, or recovering damages for an alleged want of care or skill in the cours^^of business in which the plaintiff was employed/ While an estoppel cannot be drawn from a judgment by arguing from it to any- thing that lies beyond, it is often necessary to reason back to the foundation on which it rests, on the principle that when a conclusion is indisputable and could only have been drawn from certain premises, the premises will be equally indisputable with the conclusion. A former judo-ment is conclusive not only of the thing directly decided, but of every fact which was essential to the adjudication. A judg- ment that a plaintiff is entitled to compensation for an alleged wrong, is not merely a judgment that so much is due, but it is also a judgment in favor of the right or title set forth by the plaintiff, and against that opposed to it, or relied upon by the defendant ; and, although this may be in one sense a mere inference or presumption, still it is a necessary inference which cannot be controverted. Sec. 81. Matter which would have been a defense to a former action cannot afterwards be made the subject of another suit. Where a party has an opportunity to set up fraud as a defense to a suit at law, but omits to do so, he cannot maintain a bill in chancery for the same fraud. The judgment of the court is not only final as to the matter actually determined, but as to every other matter which the parties neglect to litigate in the cause, and which might have been decided ; but this is only limited to mere matters of defense. A judgment extinguishes the demand, and if a plaintiff bring two actions for the same cause ; a judgment in one is a bar in the other, and is conclusive in any future litigation of the same question between the parties and those claiming under them, whether the question arises either directly or collaterally in such subsequent litigation, pro- vided the question of estoppel is brought before the court in the proper form, and it makes no difference in this respect * Gates V. Preston, 41 N. T. 84 The Law of Estoppel. that the object of the first suit was different from the second. A demand which has been passed upon as a set-off, or by way of defalcation or recoupment, cannot be made the subject of any other cause of action. So a vendee who elects to set up fraud or breach of warranty in mitigation of damages, or as a bar to an action for the purchase money, will be concluded by the judgment, and is estopped from afterwards bringing an action, on the defense that he pleaded in the former suit. Sec. 82. An estoppel created by a judgment is not limited to facts admitted or proved. Judgments turning exclu- sively upon questions of law are equally conclusive. It is the judgment itself, whatever may be its form and without any regard to the nature of the question in controversy, that creates the estoppel, and when the same question is at issue between the parties in two successive actions, a judg- ment rendered for the defendant in the first is an absolute bar to a recovery in the second, although the evidence in the second, had it been given in the first, would have entitled the plaintiff to recover,' and although the subject-matter of a subsequent suit is different from the first, when it depends upon the same question it is equally conclusive. Thus, where A. gave B. a bill of sale of property, C. a constable levied an execution against A. upon the property, but did not remove it ; A. subsequently converted it to his own use, for which conversion C. sued him and obtained judgment that the sale was fraudulent and void as to the creditors of A. Held, in a subsequent replevin by B. against C. that the former judgment was conclusive upon the question of fraud in the bill of sale." And where a plaintiff brought an action against a sheriff for taking certain personal property, which on final hearing was determined against the plaintifl', after the sheriff had sold the property, the plaintiff brought an action to recover the same of the purchaser at the sheriff's sale, and it was held that the judgment in the suit ' Buchead v. Brown, 5 Sandford, 134 ; Miller v. Manice, 6 Hill, 14. " Doty V. Brown, 4 N. T. 71 ; White v. Coatsworth, 6 N. Y. 137; Castle v. Noyes, 14 N. Y. 329. Judgments in Personam. 85 ♦ against the sberifi' was a bar to the action against the purchaser. ' Sec. 83. It is not necessary to the conclusiveness of the former judgment that the issue should have beeii taken upon ( the precise point controverted in the second trial ; it is suffi- cient if it was essential to the finding of the former verdict. Thus, where the parish of Islington was indicted and con- victed for not repairing a certain highway, and afterwards the parish of St. Paucras was indicted for not repairing the same highway, on the ground that the line dividing the two parishes ran along the middle of the road, it was held that the former record was admissible and conclusive evi- dence for the defendants in the latter case to show that the road was wholly in Islington ; for the jury must have found that it was so, in order to find a verdict against the defend- ants. Sec. 84. The estoppel of a judgment extends beyond what appears on its face ; it includes every allegation made by the plaintiff and denied by the defendant ; it extends to every fact in issue between the parties, that was adju- dicated in the action ; and while it not only proves and establishes the case of the successful party, it denies and refutes that of the other ; and on this principle a judgment in one action on a mortgage conclusively establishes the debt for which it is given is justly due. So, a judgment for the plaintiff on a contract is conclusive, not only that the plaintiff shall recover the amount awarded by the jury as damages or compensation, but that he has done every act and performed all the stipulations that were conditions pre- cedent to the right to maintain the action ; and the defend- ant is estopped from afterwards alleging that the plaintiff has failed to do what the judgment has formall}'- declared he has done.^ So, a master who fails in an action, for negli- gence, against his servant, cannot, in a subsequent action by the servant for wages, avail himself of the negligence as a defense to the action, the former judgment having dis- posed of that question. A judgment against two or more * Prentiss v. Holbrook, 2 Mich. 372. « Davis v. Talcott. 12 N.Y. 184. 86 The Law of Estoppel. defendants jointly is an entirety, and neither party can take any advantage of it without affecting all ; it cannot be void in part and good in part ; it must be either entirely void or not at all, and if reversed as to one, must be as to all.* Where a motion to set aside a verdict is overruled, and judgment is entered on the verdict, a similar motion in the same suit, between the same parties or their privies in estate, to set aside a verdict settling the same question in the same way, cannot be heard. The judgment is conclusive on the parties and their privies in estate, the matter in litigation having passed in rem judicatum is finally settled, and is con- clusive when arising in a subsequent proceeding, though before a different tribunal. But where points come collat- erally or incidentally under consideration, or can only be argumentatively inferred from the decree, the rule does not apply ; and where a bill is filed in a U. S. court during the pendency of a suit in another action, in a State court, against both the parties to the bill, to enforce a claim to the same premises, it was held, that as the parties, the objects and the equities were different, and the relief prayed for involved a different decree, the suit in the State court constituted no bar to the bill. Sec. 85. A decree of the United States Court giving a discharge in Bankruptcy, under the act of Congress estab- lishing a uniform system of bankruptcy throughout the United States, is conclusive, unless the certificate has been impeached for fraud, or the debt is one of the fiduciary class, which is saved from the operation of the act. So, a decree showing an absolute discharge, that the bankrupt was authorized to receive it, is as conclusive as the certifi- cate itself. So, a verdict and judgment for the defendant in an action on a contract, on the plea that he had been dis- charged as an insolvent debtor, will estop the plaintiff from disputing the discharge in an action on a contract between the same parties.* So, where a license is pleaded in an action brought for the erection of a nuisance, and found for ' Buffin V. Ramsdell, 55 Maine, 252; Page v. Esty, 54 Maine, 319. ' Merriam v. Whittemore, 5 Gray, 316. Judgments in Personam. 87 the plaintiff, the defendant is estopped from setting up the same defense in a subsequent suit for the continuance of the nuisance, and the only question for the jury is^.jvhether the state of things remain the same or not.' Sec. 86. The rule that estoppels must be certain to every intent, is peculiarly applicable to estoppels by record and judicial proceedings, and for this reason the record of a judgment must show with some degree of certainty the pre- cise points determined, and not from inference or argument; and where it gives no indications at all of what particular matters were adjudicated, it leaves the question unsettled, and is not available either as an estoppel or anything else, but merely evidence of its own existence. The conclusive effect of a judicial decision cannot be extended by argument or implication to matters which were not determined.' Evi- dence aliunde to explain a record is therefore admissible, and often becomes a necessity. Whether any matters have been tried between the same parties is a fact depending partly on parol testimony and partly on the record. Thus, a judgment for the plaintiff on a petition containing several counts, is not conclusive of the existence or validity of the contract set forth in the special count.' In a case,* in 5th Wallace, Justice Nelson in delivering the opinion of the court said: "The court, when the case came up on error, agreed that the record was properly admitted as evidence of the former trial between the parties, but held that the plead- ings, verdict and judgment did not furnish the necessary proof, to show that the contract in controversy in the suit then on trial had been before agitated, and conclusively adjudicated in the former trial on behalf of the plaintifls ; that the verdict had been rendered upon the entire declara- tion, and without special reference to the first count." The record, with the pleadings and verdict, furnished evidence that the same matters might have been litigated on that ' KilhefiFer v. Herr, 17 S. & R. " Chamberlain V. Gaylord, 26 Ala. 504; Mallet v. Foxcraft, 1 Story, 474; Imhsen v. Ormley, 32 Penn. St. 198. ^ W. Steam P. Co. v. Sickles, 24 How. 533. * W. S. P. Co. V. Sickles, 5 Wallace, 592 88 The Law of Estoppel. trial, and afTorded ground for the introduction of extrinsic evidence to show that the same contract had been in contest before the court, and had been referred to the jury, but nothing more. For this reason the judgment was reversed and a new trial ordered. Taking this view of the applica- tion and effect of the record of the former trial, the plain- tiffs introduced extrinsic evidence, and have endeavored to prove the necessary facts which, in connection with the record, would lead to the conclusion that the same contract was in controversy in the former suit, and had been con- clusively adjudged in their favor. But this extrinsic evi- dence was open to be controverted on the part of the defendants, as the record itself did not furnish evidence of the finding of the existence or validity of the contract in the former suit, and hence extrinsic proof was required; to this effect it was of course competent for the defendants to deny and disprove both, as in so doing they did not impeach the record, but only sought to disprove the evidence intro- duced by the plaintiffs. The declaration in the former suit contained four counts, to which the general issue was pleaded, and a general verdict for the plaintiffs. The first and fourth counts set up two different special contracts relat- ing to the same subject-matter, and which constituted the cause of action between the parties. Now, the extrinsic evi- dence furnished on the part of the plaintiffs as to the former trial and the grounds of proceeding therein, tended to prove either count, and was sufficient to have justified the jury in finding either contract. These contracts as thus set forth were identical, Avith the exception of the agreement to settle the proportion of fuel saved by an experiment. The jury, therefore, might have found in favor of the plaintiff's on the contract as set forth in the fourth count, even if they dis- believed the proof of the agreement as to the mode of set- tling the proportion of fuel saved. As we understand the rule in respect to the conclusiveness of the verdict and judg- ment in a former trial between the same parties ; when the judgment is used in pleading as a technical estoppel, or is relied on by Avay of evidence as conclusive per se, it must appear by the record of the prior suit that the particular Judgments in Personam. Sy controversy sought to be concluded was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not have been rendered with- out deciding the particular matter, it will bo ctmsidered as having settled that matter as to all future actions between' the parties ; and further, in cases where the record does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record, may be received to prove the fact ; but even where it appears from extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its con- sideration and determination, it will not be concluded/ The evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their considera- tion, and then the record furnishes the only proper proof of the verdict.^ Sec. 87. a verdict and judgment for the defendant in trover or trespass de bonis asjjortates, cannot be pleaded as an estoppel in a subsequent action for the same goods, with the aid of proper allegations, for the reason that the jury may have been of the opinion that the defendant did not take the goods, not that they did not belong to the plaintifi"." So in an action for replevin, where a plaintiiF took several chattels from the possession of the defendant, and recovered final judgment for part of them only, on a trial in which the whole was contested. In a subsequent action of reple- vin brought to regain possession of the residue of the chat- tels by him from whose possession they had been so taken, he cannot be permitted to allege title and prove it by the same evidence by which he endeavored to prove title to the same property on a former trial and failed. The effect of a ver- * Wood V. Jackson, 8 Wend. 10; W. Steam P. Co. v. Sickles, 24 Howard, 333; Lawrence v. Hunt, 10 Wend. 80. '^Wood V. Jackson, 8 Wend.; Hitcliin v. Campbell, 2 Blackstone, 827; Saunderson Pleading and Ev, Pt. 1, 260; 5 Wallace, 592. =■ Bennett v. Holmes, 1 Dev. & Bat. 486 ; Long v. Bangas, 2 Ired. 290 ; Angel V. Hollister, 38 N. Y. 378 ; Gates v. Fassett, 5 Denio. 21. 90 The Law of Estoppel. diet, where the answer put in issue the allegations of the complaint, is not necessarily conclusive that the plaintiff' has no title to the property, for the reason that it may have been found that the plaintiff did not wrongfully detain. Its effect therefore depends upon extrinsic evidence ; but where the property was taken from the defendant's possession, and, it is proved that the title was in fact in question, and the subject of the contest on the former trial, the verdict therein is conclusive. A verdict and judgment are conclusive by way of estoppel only as to facts, without the existence and proof or admission of which they could not have been rendered.^ In order that a judgment shall be conclusive it must appear by record, or by some sufficient means of proof, that the title was actually drawn in controversy and decided.' Justice Miller, in the case of Washington, &c., Steam Packet Co. v. Sickles, 5 Wallace, in his dissenting opinion says, that it was decided in the same case in 24 Howard, that between parties and privies it is not necessary that the record should show the question upon which the right of the plaintiff to recover depended, for it to operate conclusively, but only that the same matter in controversy might have been litigated, and that extrinsic evidence would be admitted to prove that the particular question was mate- rial and was in fact contested, and that itAvas referred to the decision of the jury. The rule as I understand it, is that to render such former judgment conclusive, it is only neces- sary to show that the same matter might have been decided and actually was decided f but the rule seems to be that while it is not conclusive, hut p^'ima facte evidence, the onus is on the party against whom the record is used to prove to the contrary. Sec. 88. A judgment dismissing a complaint on the ground that a material element of the cause of action was wanting, is a bar to another action. Thus, in an action on a recognizance, a judgment finding that the recognizance was never filed, and that the recognizance was necessary to sustain an action thereon, is a bar ; for it shows that the ^ Brulen v". Shannon, 99 Mass. 200 ; " Parker v. Hotchkiss, 2 Conn. 326. Lea V. Lea, 99 Mass. 493. ^ Keene v. Clark, 5 Robertson, 38. Judgments in Personam. 91 merits of the controversy were litigated, submitted and de- cided. To sustain a recovery in another action, it would be necessary to find that the conclusions of the former judo-- ment were not true in point of fact, and this it-is not com- petent to do as long as the former judgment is unreversed and remains in full force and effect.' The recovery of a judgment by an assignee of a cause of action is conclusive on the question whether the cause of action was assignable." So, a recovery upon a partnership contract merges the debt, and a judgment against one partner constitutes an estoppel in a subsequent action for the same breach against his co- partners.' And in order to render a decree or judgment conclusive against a party, it need not be against him by name ; it is enough if it be against his interest.* Where a cestui que trust consents that part of the trust property may be exchanged for other property by the trustee, and upon a bill filed by the trustee, the exchange is passed upon by a special jury and the chancellor, and ratified by a decree, the cestui que trust is estopped.* This principle of conclu- siveness is inflexible, and will not yield to circumstances or the hardship attendant upon its application in the particular instance. A judgment for the defendant on plea oinul tiel record to an action of debt on a judgment, is conclusive even where the failure of the plaintifi* arises from having the judg- ment defectively authenticated or certified, and the validity of the judgment is beyond dispute f nor can the conclu- siveness of a former judgment be overthrown by proof that it was procured by fraud or the subornation of witnesses,' or that the cause of action orio-inated in a fraud that was not discovered until after the rendition of the judgment. The only relief a party can obtain is in equity, under circum- stances similar to those hitherto mentioned ; and as this piin- ciple of conclusiveness efiects privies, as well as parties, a ' People V. Smith, 51 Barb. 360. ' Carr et al. v. Armory College, 32 * Richtmeyer v. Remsen, 38 N. Y. Georgia, G57. 206. ' Voltz V. Proiitz, 15 111. 434. ' Tinkum v. O'Neal, 5 Nevada, 93. ' Demerest v. Lyford, 7 Foster N.H. * Taylor v. Cornelius, 60 Penn. St. 541; R. R. Co. v. Sparliawk, 1 Allen 187. 448; Smith v. Lewis, 8 Johns. 137. 92 The Law of Estoppel. veudee caimot set up a defense in a suit upon a mortgage which has been previously decided against the vendor, or where a point which has been decided on the merits, in a suit at law, is again brought into question on the same grounds in equity/ Thus, a vendee, who had covenanted to convey other laud, as soon as certain incumbrances on the land conveyed to him were removed by the vendor, is estopped from pleading a failure to remove them, as a bar to the covenant, by a prior decree in equity directing that the incumbrances should be discharged by him out of the purchase money due to the vendor, with the same effect as if they had been paid by the latter ;' but it applies only where both jurisdictions are concurrent ; and a judgment at law will not estop the defendant from seeking relief on equitable grounds in chancery,' or the dismissal of a bill, for want of jurisdiction in chancery, cut the plaintiff off from obtaining redress at a suit of law.* Sec. 89. The effect of verdicts and judgments, whether upon parties or privies, depends upon the question whether the same point was in issue. A verdict between two parties on one question can certainly have no binding effect in an issue joined between them on another question, nor will the judgment be admissible unless it clearly appears that the same point was actually in issue and was determined in the former action. Thus, an action for a deliberate and inten- tional fraud practised by a person in making a sale, may be maintained against him personally, even though he acted as ao-ent of another in makino- the sale : and it makes no dif- .ference that the plaintiff has already sued the seller for a breach of warranty and has been defeated in such action. Had he recovered in the first action and got his damages, lie might be estopped, but where he fails by reason of having no cause of action on the warranty, he may still have a good cause of action for the fraud, which has never been determined. So, where one contract contains several covenants, an action for breach of one is not necessarily a ' Kingsland v. Spalding, 3 Barb. Ch. '■' Hopkins v. Lee, 6 Wheat. 109. 141; Simpson v. Hart, 1 Joiins. 96; ^ Arnold v. Greene, 2 Clarke, 1. Hemstead v. Conway, 1 English, 311. * Lore v. Newman, 10 Ohio S. 45 Judgments in Personam. 93 bar to a subsequent action for breach of another, althoucrh the two relate in part to the same subject-matter, as in cove- nants to build a fence, and also to keep the buildings and fence in repair. In order to preclude a secojcrd" action for items which might have been embraced in the first, the true' question is not, whether allowing separate actions to be maintained for separate items would load to a multiplicity of suits or would operate oppressively, but whether the former action was for the identical cause or demand for which the subsequent one was brought. One method of ascertaining whether the subject-matter or cause of action is the same as in a former suit is, to inquire whether the same evidence would sustain both actions, and, although the former action is changed, if the same matter is determined, the former judgment is admissible in evidence upon the sub- sequent trial. A judgment for the defendant in trespass, when the right of property is determined, will be effectual as an estoppel in an action of trover for the same takino-. So, a judgment for the defendant in trover is a bar in an action for money had and received for the wrong arisino- from the sale of the same goods ; and thus, though the for- mer action was against the creditor and sheriff, and the latter against the creditor alone. Where a court, in a for- mer action between the same parties, had jurisdiction over the subject and the parties, and the questions of fact are the same as in the subsequent action, and were necessar^^ to its decision, and either was or might have been litigated in that suit, and the final hearing was upon its merits, the judgment is res ad judicata as to all those things that were, or under the pleadings might have been, controverted in that action. Where proceedings in partition are properly taken to bind unknown owners, the judgment not only concludes them in respect to any interest they may have as tenants, but pre- cludes them from showing afterwards that they had a para- mount title in severalty to any part of the premises.' A decree in partition cannot be inquired into in a collateral suit to see whether irregularities exist in the proceedings. * Kane v. Rock River Co. 15 "Wis. 179. 94 The Law of Estoppel. But in Illinois, if the decree in partition recites that due notice was given, it is only 'prima facie, not conclusive evi- dence of the fact.' A decision of a United States district court enjoining a treasury warrant is final, and bars an action on the account which formed the subject-matter of the war- rant and bill of complaint.* And where a court has juris- diction of the parties, and a judgment is entered by consent of parties, the parties, and those claiming under them, are estopped from denying that they consented in the absence of an allegation of fraud. So a party cannot deny that a judgment was rendered on the day of its entry ; if the record is regular on its face, it is conclusive, as it imports absolute verity.^ In order to make a judgment effectual as an estop- pel, it must appear that the facts were actually passed upon by the jury in the former case, and, if the pleadings do not show it, and no evidence is introduced, the record is only evidence of what is necessarily put in issue by the pleadings.* Sec. 90. It is not necessary in a partition suit, in order that a judgment shall bind the parties on a question of intes- tacy of an ancestor, or the validity of his will, that the adjudication of those matters should be in precise terms. It is sufiicient if the substance is decided. The estoppel extends beyond what appears on the face of the judgment to every allegation, which, having been made on one side and denied on the other, was at issue, and determined in the course of the proceedings. Those who rely upon the estop- pel must, of course, show that the matter in controversy has already been heard and determined; but where it is made to appear with sufiicient clearness that the transaction has undergone a judicial investigation, the presumption will be irresistible that the judgment covered the whole, so far as it was entire and indivisible, and cannot be over- come, except by the clearest proof that no evidence was given as to that fact by the plaintift', or that the defendant * Secrist v. Green, 3 Wallace, 744. =" U. S. V Nourse, 9 Peters 8. ^ Ridgway v. Morrison, 28 Ind. 201 ; Ray v. McMurty, 20 id. 307. * Sherman v, Dilley, 3 Nevada, 21. Judgments in Personam. 95 failed to take advantage of a defense that might have been made available.' Judgments are not merely final as to the facts actually litigated or decided, but they are usually (except where proceedings are instituted in the^^ame cause of action for their reversal) conclusive evidence of their own rectitude and virtue ; and it is upon this principle that no action Avill lie for obtaining a decree of judgment by false evidence." The case of Marriott v. Hampton (7 Durn. & East, 265), heretofore referred to, is a forcible illustration of this principle. The general principle that a judgment of a court of dernier resort is final, admits of no doubt ; l)ut the principle extends still further, as to include everything that might be litigated or decided. The reason for the rule seems to be, that it is both expedient and proper to silence the contention of parties by accomplishing the ends of jus- tice by a single and speedy decision of all their rights. It is, therefore, obvious that there should be some time pre- scribed to controversies of this sort, and can there be a more fitting and proper opportunity than one which aftbrds a full and fair opportunity to examine and decide all their claims ? This rule certainly imposes no hardship. It does not require anything more than a reasonable degree of vigilance and attention ; a different course would be danger- ous and oppressive. It would create infinite litigation and vexation, render judgments and final determinations of the rights of parties a useless expense, resulting in no benefit, but, on the contrary, resulting in a series of harassing oi^e- rations, which, under the guise of justice, would never ren- der justice. " Every one is bound to take care of his own rights, and to vindicate them in due season and in proper order." This is a sound and salutary principle of law. Accordingly, if a defendant, having the means of defense in his power, neglects to use them, and suflers a recovery to be had against him by a competent tribunal, he is forever precluded. The only case forming an exception to this rule is the case of mutual dealings between the parties, where ' Clemens v. Clemens, 37 N. T. 59. " Peck V. "Woodridge, 3 Day (Conn.) 30 ; Smith v. Lewis, 3 Johns. R. 157 ; Homer v. Fish, 1 Pick. 435. 96 The Law of Estoppel. the defendant oinits to set off his comiter-demand, and may still recover in a cross-action and ejectment, where the de- fendant purchases title after judgment is rendered against him. The general rule is intended to prevent litigation and to maintain peace ; were it otherwise, men would never know when they might repose with security on the decisions of courts of justice, and judgments solemnly and deliber- ately rendered would cease to be revered as being no longer the end of controversy and the evidence of right,^ whose adjudication were necessary to the final disposition of the case. A judgment for the defendant in trespass, for taking a chattel, is an estoppel in an action for the money received from its subsequent sale, for the reason that both actions relate to the same subject-matter, and must be determined substantially upon the same evidence.* And where a plain- tifl', in an action of ejectment on a mortgage, had previously recovered judgment on a note given b}^ the defendant for the debt, for which the mortgage was security, the defend- ant in the ejectment suit was not allowed to plead the same defense which he had unsuccessfully used in the action on the note.^ A failure in an action brought to recover dam- ages for the non-delivery of lumber, was conclusive against the plaintiffs, denying the non-delivery in action, on a bond given for the price.^ The limited nature of a judgment for damages only, does not prevent its operation as an estoppel as to all the questions embraced in the pleadings ; and as the non-delivery of the lumber must have been the mate- rial point in issue, in order to found a verdict for the assessment of damages, it is obvious that the judgment must be conclusive in action for the price of the lumber. Sec. 91. a judgment in personam recovered without notice, or attachment of property, on mesne process is void. In a collateral proceeding, a judgment against one who had no opportunity to defend, may be avoided by proof of ' Le Quen v. Governeur, 1 Johns. 501. * Lewis V. Nenzell, 38 Penn. 222. ^ Betts V. Starr, 5 Conn. 350; Goddard v. M. Bank, 4 N. Y. 174; Cist v. Ziegler, 16 S. & R. 282; Sheldon v. Carpenter, 4 N. T. 578; Etheridge v. Osburn, 12 Wend. 399. * White V. Reynolds, 3 Penn. 97; Casler v. Shipman, 35 N. Y. 533. Judgments in Personam. 97 fraud, or shown to be void upon its face ; a judgment of non- suit is not a bar to another action. Nor an agreement to sulimit a case upon an agreed statement of facts ii|)on which judgment and nonsuit was entered by the court.' But where the facts put in issue by an assignment of a breach of a sheriff's bond have been once tried in a statutory pro- ceeding, they cannot again be drawn into question, and it is a question of law, on inspection of the record, whether they were or were not in issue in the former proceedings. So a decree, that a vested interest in remainder is not subject to the claims of creditors, though erroneous, is res adjudicata; and is conclusive against the rights of creditors, when the estate comes into possession of the remainderman by the death of the tenant for life.'' No recovery can be had on a cause of action which has been pleaded or offered in evi- dence as a defense in a former action, in which it was legally admissible, although the court may have erred in excluding it from the jury. The estoppel of an adjudication, made on grounds purely technical, and under such circumstances that the merits could not come in question, will be limited to the point actually decided. A judgment is conclusive on all points within the scope of the record and legally brought before the court and jury, although extrinsic evidence may be given for the purpose of showing what the controversy really was, and showing that matters expressly or impliedly embraced in the pleadings, and which might have been adjudicated, were not presented or decided in fact. But while parol evidence may sometimes be admitted for the purpose of limiting the estoppel, it is never allowed to enlarge its operation, or to show that matters foreign to the record were embraced in the verdict. The mistakes of a judge who tried the cause cannot serve as a reason why muX- ters prima facie within the bar of the judgment should be excluded from it, for the reason that the remedy is by a new trial or writ of error. 'Homer v. Brown, 16 Howard, 354; Toy v. Almy, 1 "Woodbury and Minot, 263. "Nichols V. Levy, 5 Wall. 433. 7 9S The Law of Estoppel. Sec. 92. But in order to give a judgment this conclusive effect, it must have been made by a court of competent juris- diction, upon the same subject-matter between the same parties, and for the same purpose, and such a judgment between the same parties, upon the same point, is conclusive as a plea in bar, or when given in evidence ; and it makes no difference whether other parties are estopped by it or not, and it is so far conclusive, although all the parties in interest may not have been before the court, that its validity cannot be collaterally questioned in another tribunal, and when it is used as evidence its regularity cannot be enquired into. Thus, in a case of a sale of mortgaged premises under a decree in equity, the regularity of the sale cannot be called into question in a collateral suit ; and so conclusive is their effect that even the courts rendering them are estopped from annulling their final decrees or judgments, either for error of fact or law ; after the term at which they are rendered, unless it be for a clerical error, or to reinstate a cause dis- missed by mistake, and a final decree in chancery is as con- clusive as a judgment at law. Bui a judgment for a defend- ant on the plea of the statue of limitations, is not neces- sarily a bar to another action on the same contract in another state. ^ Sec. 93. There are many reasons why the plea of res adju- dicata should be more cautiously received under the Code system of pleadings, than is or was necessary under the common law system of pleading. The want of certainty in the system of pleading under the Code, renders it not unfre- quently diflicult, if not impossible, to determine what issues have been joined, and the precise rights which have been adjudicated. The united law and equity jurisdiction enables parties litigant to embrace in the same suit more than one cause of action or defense, which would be incongruous and inadmissible under a different system, and perhaps the widest range known to any system tolerated in the form and scope of code pleadings. Parties who have several causes or rights of action against the same party, of different and * "Wright V. Bodley, 14 Peters, 156; Bank of U. S. v. Donnally, 8 Peters, 361. Judgments in Personam. 99 distinct character, are not compelled to imite them in the same suit, on penalty of being barred as to those not included ; nor, is this the meaning of that well settled prin- ciple, that a judgment or decree of a court or7;ompetent jurisdiction is final and conclusive, not only as to every matter determined, but also as to every other matter which the parties might litigate in the cause, and which they might have had decided ; nor does the rule apply so as to defeat a trial upon the merits because of a former suit between the same parties, upon the same subject-matter, where no adjudication upon the merits is sought or prayed for by either party, in which a judgment upon a general exception was rendered, merely dissolving an injunction which had been previously awarded against a third party having no interest in the suit, and awarding costs, &c. The Code system of pleading does not by any means favor a multiplicity of suits, and when the proper parties are brought before them, the courts will hear and finally determine all of the rights of the parties touching the subject-matter, if properly presented, whether such was the original intention of the parties or not; but, if neither party demands a judgment upon the merits of the respective rights claimed, and the judgment of the court appears to have been rendered upon the merits of a mere preliminary question, it would be rendering harsh injustice, 'and make justice and equity a species of tyranny utterly antagonistic to the signification of those terms. Sec. 94. It is an admitted principle, that a demurrer admits all the facts well pleaded, and demands the judg- ment of the law upon those facts; and when the judgment is pronounced it must be conclusive upon the parties, and as effectually determine the litigation a.s if judgment had been rendered on a verdict. But there is this difference to be observed between judgments on verdicts and judgments on demurrer ; the former are certain as to what was intended to be decided, however inartificially drawn, whereas the lat- ter are often of very doubtful construction, leaving it diffi- cult to determine whether the judgment was intended to sustain the demurrer, as to all matter demurred to or only partially. In a judgment on demurrer, if the reason to be 100 TriE Law of Estoppel. collected from the record appears to have been matter of form, it cannot be pleaded in bar ;^ when a judgment that is ren- dered on demurrer and the parties are still left in court, it must be obvious that such a judgment cannot be available as an estoppel, nor preclude a trial on the merits. Sec. 95. The conclusive effect of a judicial decision can- not be extended by argument, inference or implication to matters which were not actually heard or determined. In the case of Meserau v. Pearsal," the matter in controversy was whether the defendant had obstructed the working of a mill by building and raising a dam; the court held that he could not escape from the estoppel of a former judgment in regard to the same mill, on the ground that he had obtained a verdict and judgment in another action brought by the plaintiff for an injury alleged to have been occasioned to another mill for the same cause ; evidence was adduced that the mills were both on the same level, and that one could not have been injured or interfered by the water back- ing on it unless the other was likewise injured, for the reason that such an inference might be probable or certain; still while there was no inconsistency in the verdicts, they were each conclusive in its own sphere. The celebrated case of the Duchess of Kingston is probably as familiar to every practitioner who has ever had an action in which the question of estoppel arose, as Blackstone or Kent's com- mentaries; in fact, it is the leading case on the question of estoppels by record, and from it, has been deduced the well- settled and universal principle that a judgment is not evi- dence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment ; and I have been unable to find any exceptions to the rule. Collateral or incidental questions which must naturally arise in and dur- ing the litigation of every controversy do not become a part of the action by being given in evidence, or because they are brought to the notice of the court; while on the contrary, matters that are and might be well pleaded, and if they ' 1 Blackford, 392. » 19 N. T. 108. Judgments in Personam. 101 were, would constitute a good plea, are neither incidental or collateral, and constitute an essential part of the cause of action or defense ; and it is on this ground, that a judgment is conclusive not only of the right which it affirms''or denies, but of all the questions which were material and necessary to be determined during the pendency of the litiiration. A recovery in an action of tort, without satisfaction, docs not invest the defendant with the title to the property, and consequently is no estoppel in a subsequent action of the same kind against one who claims under him.' Thus, in trespass or for torts generally,, nothing is conclu- sively settled but the point or points directly in issue. Thus in trespass, upon not guilty pleaded, the title is mot concluded, though if the title is put in issue by a plea of soil or freehold, the verdict will be conclusive on the title in another action of trespass for an injury done to the same laud. So, in actions on the case for interruptions of rights and other easements. On the general issue the title is not settled, though if the defendant plead a title in bar, and issue is taken on it, the verdict will settle that point for future actions.' When a judgment is used in pleading as a technical estoppel, or relied upon by way of evidence as something conclusive, per se, between the parties, it must appear by the record of the prior suit that the particular controversy so sought to be precluded was there necessarily tried and determined. If in such cases the record shows that such judgment could not have been rendered without deciding a particular matter, it will be considered as having determined that particular matter in all future litigations, otherwise not. A judgment for the plaintiff in assumpsit expressly determines that the defendant owes the plaintiff a sum certain which the latter is entitled to recover by execu- tion. But, in an action on a note, if a judgment is rendered against the defendant on a plea of non est factum, the judg- 'Spivey v. Morris, 18 Ala 254; Smith v. Alexander, 4 Sneed. 482; Drake V. Mitchell, 3 E. 251; Curtis v. Groat, 6 John. 168; Ostcrhont v. Roberts, 8 Cowon 43; Sanderson v. Caldwell. 3 Aik. 203; Jones v MeNeil, 2 Bar. 46G. = Standish v. Parker, 2 Pick. 20; Smith v. Sherwood, 4 Conn. 27G; Church V. Leavenworth, 4 Day, 274; Richmond v. Hays, 2d Penn. 492. 102 The Law of Estoppel. ment in effect is not merely that the phiintiff shall recover the amount found due by the judgment, but that the defend- ant made the note. If the execution of a deed in fee be put in issue in an action of trespass, and expressly found by the jury, the verdict and judgment may be relied upon as conclusive evidence of that fact in the trial of a real action or writ of right between the same parties, for the same estate. It becomes a fixed fact between the parties, for all purposes.' Sec. 96. Lord Ellenborough, in rendering the decision of the court in the celebrated case of Outram v. Morewood,'' after reviewing and citing numerous authorities, said, " that a verdict for the plaintiff in trespass is conclusive against the right of the defendant to rely on the same defense in a subsequent suit ; it is not the recovefi-y, but the matter alleged by the party on which the recovery proceeds^ that creates the estoppel ; and that the recovery of damages in one action was not only a bar to another recovery for the same injury, but that the estoppel went further, and estab- lished the right on which the recovery was founded." In the case of Gardner v. Buckbee,^ two notes had been given for the sale of one vessel ; on one of the notes suit was brought in the Marine Court in the the city of New York^ where the defendant pleaded the general issue, and gave notice of a total failure of consideration, because of fraud in the sale of the vessel, and on that ground succeeded in his defense. In a subsequent action on the other note, the defendant offered in evidence the record of the former action, and the Supreme Court held that the record, with proof aliunde, that the fraud in the transaction was the ground on which the judgment had been rendered, and was conclusive against the plaintiff. In delivering the opinion of the court, Wood worth. J., citing the Duchess of King- ston's case, said, " that the rule there laid down had not been departed from in any of the courts of that State ; that from the record of the former suit, it cannot be inferred 'Sawyer v. Woodbury, 7 Gray, ' 3 East. 125. 499. ' 3 Cowen N. Y. 120. Judgments in Personam, 103 whether the two suits were founded on the same or a diller- ent state of facts. It is true that the record merely proves the pleadings, and that the judgment was rendered for the defendant ; without other proof, it would uot-make out a defense. The record shows that it was competent on the trial to establish the fraud of the plaintiff; whether the fraud was made out, and whether that was the point upon which the decision was founded, must necessarily be proved by evidence extrinsic the record ; to do so, is not inconsist- ent with the record, nor does it impugn its verity. The jury must have passed upon the fraud ; it was directly in question. Scott testified that the unseaworthiness was not disclosed at the time of the sale to the defendant. The inquiry was then solely directed to the question, Was the yessel unseaworthy, and had the plaintiff knowledge of that fact when he sold ? By the finding of the jury, both propositions are affirmed. The judgment became conclu- sive between the parties on these points, and is an effectual bar to an action to recover the residue of the purchase money." Sec. 97. The estoppel of a former adjudication will, how- ever, only extend as far as the subject-matter, in the second action, is substantially the same as the first, and may l)e con- clusive on some points, while leaving others open to con- troversy.' Hence, a verdict and judgment for the defend- ant, on the general issue, pleaded in which the plaintiff claimed damages resulting from the defendant's wrong- fully raising his mill dam, will not estop the same plaintiff in another action for damages from alleging the same act as the occasion of his sustaining subsequent dam- ages, because the former judgments may have been rendered on the ground that the plaintiff was not damaged, or had released his cause of action, or had given the defendant the right to do the act complained of, and did not necessarily determine the defendant's right to raise his dam, and con- tinue it in that state.'' So, a verdict for the plaintiff in an action quareclausumf regit, Avill estop the defendant from al- ' Nickerson v. California, 10 Cal. 520. * Shafer v. Stonebraker, 4 Gill & S. 345 ; Killheffer v. Herr, 17 S. & R. 319; Shepherd v. Wallace, 19 Ohio, 322; Grant v. Ramsay, 7 Ohio St. 159. 104 The Law of Estoppel. leging the same title in a subsequent action of ejectment ; but if the defendant, after the rendition of the judgment, acquires title by purchase, he is not estopped from alleging that fact. Sec. 98. In order that a judgment in one action shall be conclusive in another, it must appear with covenient cer- tainty that the question in controversy in the second suit was litigated and decided in the first ; when this appears on the face of the proceedings in the former action, the mere production of the record will be enough ; but where, as often happens, it is not, it must be shown aliunde by parol evidence, and the burden of proof rests on the party who maintains the aflBrmative.' Although a difierent opinion has been expressed in other instances, and the presumption said to be, that a debt or demand which might have been given in evidence, under the pleadings in a former action, was actually laid before the jury." " When," said Abbot, C. J., in Bao-ot V. Williams, " the declaration in the second action is framed in such a manner that the causes of action may be the same as those in the first suit, it is incumbent on the party who brings the second action to show that they are not the same." The question is one which hardly admits of any gen- eral rule, but would seem to depend on whether the cause of action in the second suit \q prima fade the same as that on which judgment was had in the fii'st ; for when it is not, their identity cannot be presumed in the absence of proof.' And hence, a recovery on the money counts, and for p-oods sold and delivered, will not bar a subsequent suit on a promissory note, merely because the note might have been given for the price of the goods, nor without sufficient evidence that it was.* The question whether the same matters could have been litigated in both actions, must be determined solely by the record ;' but if it shows that » Shotlier v. Butler, 17 Ala. 733; Doty v. Brown,4N.T. 71; Davis v. Scott, 14 Barb. 511; Smalley v. Eddy, 19 111. 207. » Badger v. Titcomb, 15 Pick. 409; Baggott v. Williams, 3 B. & C. 235. ^ Hughes V. Alexander, 3 Duer, 488; Secor v. Sturges, 16 N. T.548. ■* Cummings v. Colgrove, 25 Penn. 50. * Campbell v. Butts, 3 N. Y. 173; Young v. Black, 7 Cranch. 565; Chapman V. Smith, 16 How. 114; Rogers v. Libby, 35 Me. 200; Chamberlain v. Gail- lard, 26 Ala. 504; Demerit v. Lyford, 27 N. H. 341. Judgments in Personam. 105 they might, then the fuct that they were actually decided, may and often must be proved by extrinsic evidence.' Sec. 99. A judgment on the merits, in a personal action, is a bar to another action, though the form of the-t-M^o actions is not the same. It is the same cause of action where the same evidence will supj)ort both actions, though grounded on different writs," and if a court of civil jurisdiction render a general verdict for the defendant,, the presumption is that the whole case was decided, and not merely a particular branch of it.^ But it is only where the merits have been passed upon, or from the course of pleadings and trial that a judgment bars a subsequent suit; and in a case where the plaintiff failed to appear, and his suit was abated and dis- missed, and the judgment was that the defendant recover five dollars and costs, it was held that this was no more than a nonsuit, and not a bar to a subsequent action on the merits." The dismission of a former suit on the plaintiff's motion cannot be pleaded in bar to another action. So, a verdict in which no judgment is rendered, is not an estoppel.* It is only where the point in issue has been determined that the judgment is a bar. If the suit is discontinued, or for any other cause there has been no judgment of the court upon the matter in issue, the proceedings are not conclusive. So also, to render a former judgment a complete bar, it must appear to have been a decision upon the merits, and this Avill be sufiicient though the declaration was essentially defec- tive, and would have been bad on demurrer,' or if the trial went off on a technical defect,' or because the debt was not yet due,* or because the court had not jurisdiction," or because ' Young V. Ruraraell, 2 Hill 478; Gray v. Gillian, 15 111. 450; Littleton v. Richardson, 34 N. H. 79; Briggs v. "Wells, 12 Barb. 567; Royce v. Burt, 42 id. 655; Babcock v. Camp, 12 Ohio S. 11. ^ Lawrence v. Sherman, 3 Sumner, 20. 'Stockton V. Ford, 18 Howard, 418; Fouget v. Perkins, 7 Howard, 160. niaw V. Tiernan, 63 Penn. 192. 'Reedv. Proprietors, 8 How. 274. ' * Hughes V. Blake, 1 515. ' Homer v. Brown, 16 How. 354; Lane v. Harrison, Munf. 573 ; McDonald v. Rainor, 8 Johns. 442 ; Lepping v. Kedgewin, 1 Mod. 207. "N. E. Bank v. Lewis, 8 Pick. 113. « Estill V. Taul, 2 Yerg. 467. 106 The Law of Estoppel. of a tenipoi'aiy disability of the plaintiff to sue,^ or if the judgment has been reversed in error which cannot be proved by the record, or the like, the judgment will be no bar to a future action, and the estoppel of a judgment will be set at large by the award of a new trial. But a judg- ment against one of several makers of a note, without pro- cess against the others, is a bar to a suit against those who were not parties to the first action,^ Where an action of trover is brought, after a judgment in trespass, if title to the property was set up by the defendant in the first action, and it was found for him, it is clearly a bar to a second action for the same chattel, even though brought against one not a party to the former suit, but an accomplice in the original taking. So, a judgment for the defendant in trover upon trial of the merits, is a bar to an action for money had and received for the money arising from the sale of the same goods. But, where the plaintifi* recovers judgment in trespass, without satisfaction, he is not estopped from after- ward maintaining trover against another person for the same goods, for the reason that the principle of transit in rem judicatmn extends no further than to bar another action for the same cause against the same party ; the original judg- ment can imply nothing more than a promise by the defend- ant to pay the amount, and an agreement by the plaintifi" that, upon payment of the money by the defendant, the chat- tel shall be his own ; it is contrary to justice, and the analogies of the law, to deprive a man of his property without satisfaction, unless by his express consent. Solutio pretii emptionis loco hahetur Sec. 100. But where from the nature of the two actions, the cause of action cannot be the same in both, no averment will be received to the contrar}^ Therefore, in a writ of right, a plea in bar that the same title had been the sole sul)ject of litigation in a former action of trespass, quere clausum f regit, or in a former writ of entry, between the same parties, or others privy in estate, was held to be a 1 Dixon V. Sinclair, 4 Vt. 854. 2 Mitcliell V. Brewster, 28 III. 163. Judgments in Personam. 107 bad plea.i A judgment in action of trespass, upon the issue Uberum tenementum, is admissible in a subsequent action of ejectment l)etween the same parties.'- The etlect of what occurs in one judicial proceeding upoji^nothcr, is sometimes due to the principles of estoppel m pais rather, than by record. A man who obtains or defeats a judgment by pleading, or representing an act or adjudication in one aspect, is estopped from giving it a different and inconsist- ent character in another suit founded upon the same subject matter. Pleading a former judgment as an estoppel, or taking advantage of it in any other way, will estop its being reversed on error ; a party who leads a plaintiff to believe that he has given a recognizance for the appearance of the defendant, cannot subsequently show that the recognizance is void. So a married woman who sues her husband and recovers judgment as as if she was sole, is estopped from appealing from a decree of divorce. A defendant who ob- tains judgment by impeaching an instrument, cannot rely on it as a defense in another suit brought by the same plaintiff. So a judgment may be used to show that the suit was de- termined, or in a proper cause, to prove the amount which a principal has been compelled to pay for the default of his agent ; or the amount which a surety has been compelled to pay for the principal debtor; and, in general, to show the fact, that the judgment was actually rendered at such a time, and for such an amount.'* Sec. 101. A judgmentmay beadmissible in evidence to es- tablish its own existence and acts consequent upon it, in cases where it can not be used as an estoppel.* For example, a surety may introduce a judgment against himself in an action against his principal, in order to show that he has l)een forced to pay, and the extent of the damage, and while a judgment against a master for the tortious act of his servant, establishes conclusively the amount of the loss resulting from 1 A.rnold v. Arnold, 17 Pick. 4 ; Bates v. Thompson, Id. 14, n.; Bennett V. Holmes, 1 Dev. & Bat. 486. 2 Hoey V. Furman, 1 Penn. 295. 3 Lock V. Winston, 10 Ala. 849 ; King v. Chase, 15 N. H. 9 ; Green v. New River Co., 4 T. R. 589. 1 Garver v. State, 7 Ponn. 2G5. i08 The Law of Estoppel. the act, it does not have the same conclusive effect as to the na- ture of the act itself.' Judgments on questions of title to lauds are as conclusive on privies that is, on all who claim by descent or purchase through or undei the person for or against whom they are rendered, as they are on the parties to the action. The same principle applies to chattels, for the reason that the title to chattels in the vendee depends on the title of the vendor, and whatever will operate as an es- toppel against the vendor operates with the same effect against the vendee.'- A record may also be admitted in evi- dence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration by such part}' in regard to a certain fact. But in that case it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party himself, that the fact was so. It is, therefore, to be treated in accordance with the principles governing admis- sions to which class of evidence it properly belongs. Thus, where a carrier brought trover against a person to whom he had delivered the goods intrusted to him, and which were lost, the record in the suit was held admissible for the owner in a subsequent action brought by him against the carrier, as amounting to a confession in a court of record, that he had the plaintiff's goods.^ So, also, when the plaintiff, in an action of trespass quere clausumf regit, claimed title by dis- seisin, against a grantee of the heirs of the disseisee, it was held, that the count in a Avrit of right sued by those heirs against him, might be given in evidence, as their declaration and admission that their ancestor died disseised, and that 1 Bank of Oswego. 5 Hill, 152; McClure v. Whitesides, 2 Ind., 573; Green V. New River Co., 4 Term Rep. 589; R. R. Co. v. Smith, 7 Dana, 245; Huddlc- kauf V. Smith, 1 Md., 329; Doris v. State, 13 Penn., 140; Galena R. R. Co. v. Welch, 24 111. 31; Fletcher v. Jackson, 23 Vt. 581; Littleton v. Richardson^ 34N. H., 139 2 Morgan v. Barker, 26 Vermont, 602; McCravey v. Remsen, 19 Ala. 430; Boyn- tonv. Willard, lOPick. HI; Thompson v. Thompson, 31 Ala. 108; Cunningham V. Harris, Cal. 81; Cammell v. Sewel. 3H. & N. 617; Marsh v. Pier, 4 Rawle, 273; Farmers Bank v. McKee, 2 Penn. 318. 3 Parsons v. Copeland, 33 Maine, 370; Bullers, N. P. 243; Tiley v. Cowling, 1 Lord Raymd. Rep. 744. Judgments in Personam. 109 the present plaintiff was in possession.^ So where two had been sued as partners, and had suffered judgment, the record was held competent evidence of an admission of partnership in a subsequent action brought by a third pei^on agaiiLst them as partners.'^ Sec. 102. Where separate actions are brought against several defendants for the same single act of trespass, the party last sued may plead the pendency of the first in abatement, and a recovery of one of several parties to a joint tort, frequently estops the plaintiff from proceeding against any other party not included in such action. Thus in an action against one for a battery, or for taking away the plaintiff's posts, or destroying grass in field, where several persons are concerned, the recovery against one will be a bar to an action against the others, and in these cases, the court will, in general, in a summary application, stay the proceedings in a second action, where it is manifest that the entire damage have been recovered in the first. A judgment in trespass de bonis asportatis^ not satisfied, is a bar to an action against a co-trespasser,^ and it is a good de- fence by way of satisfaction, to an action against several persons that a former action was brought against them and another, a sum of money accepted from him and the suit dropped.* A party against whom a judgment has been rendered on a verdict cannot, while the judgment remains in force, maintain an action against the other party jointly with others alleging that said verdict was unjust and false, and was procured by them by fraud and perjury, and by a conspiracy to effect that purpose. He is estopped by the judgment.^ 1 Robinson v. Swett, 3 Greenleaf, 316; Wells v. Compt., 3 Rob. Louisiana Rep 171. 2 Craig V. Carleton, 22 Maine, 492. 3 Campbell V. Pbelps, 1 Pick. 62. ^Dufresne V.Hutchinson. 3 Taunt. 117. ODunlapv. Glidden, 31 Maine, 435. 110 The Law of Estoppel. CHAPTER V. JUDGMENTS IN REM. Section 103. A judgment in rem is a judgment of a court of exclusive or at least peculiar jurisdiction, declaratory either of the nature and condition of some particular thing, or the condition or status of some particular person ; or, perhaps a better definition is, that it is an adjudication pronounced upon the status of some particular thing, or subject matter, by a tribunal having competent authority for that purpose, such an adjudication being a most solemn declaration of a court of competent jurisdiction that the status of the thing adjudicated upon ijpso facto, renders it such as it declares it to be, and estops and precludes all persons from denying that the status of the thing operated upon is not what the court has declared it to be, and such judgments are conclu- sive not only upon parties and juries, but upon strangers. In fact, a judgment in rem is conclusive against the whole world. The term judgment in rem, strictly speaking, is somewhat objectionable when applied to the status of a person. The term itself is derived from the civil law, where actions were classed as actiones in personam, and actiones in rem. The former including actions upon contract or for injuries " eaj contractu vel ex maleficio,^'' while the latter referred to actions in which some pai-ticular thing was the subject mat- ter of the controversy. "-Cum inovet alicui de aliquaiecon- troversiam,^^ under the roman law generally, a judgment " in rem was, " in rem ipsam restituat (^possessor) cmn fructibusy^ Sec. 104. In the case of Woodruff v. Taylor,'^ the dis- tinction between judgments in rem and in personam is so clearly and ably laid down that I cannot do better than quote from it. "The effect and purpose of a proceeding in 1 1 Inst. Lib. 4, Titles 16, 17, § 1, 2. •-2 20 Vermont, 65. Judgments in Rem. HI rem is to ascertain the right of every possible claimant ; and it is instituted on an allegation that the title of the former owner, whoever he may be, has become divested, and notice is given to the whole world to appear and makejihiim to it. From the nature of the case the notice is constructive only to the greater part of the world ; but it is such as the law presumes will be most likely to reach the persons interested, and as such does, in point of fact, generally reach them. Li case of seizure for violation of our revenue laws, the substance of the libel on which the forfeiture is claimed, with the order of the court thereon, specifying the time and place of trial, is to be published in a newspaper and to be posted up a cer- tain number of days, and proclamation is also made in court for all persons interested to appear and contest the forfeiture. In every court, and in all countries, whose judgments are respected, notice of some kind is given. It is just as essen- tial to the validity of a judgment m rem that consti-uctive notice should appear at least to have been given, as that actual notice should appear in a record of a judgment in personam. A proceeding, professing to determine the right of property, where no notice, actual or constructive, is given, whatever else it might be called, would not entitle it to be dig- nified with the name of a judicial proceeding. It would be an arbitrary edict, not to be regarded anywhei-e as the judg- ment of a court." Sec. 105. "A judgment in rem is an adjudication, pro- nounced upon the status of some particular subject mat- ter, by a tribunal having competent authority for that pur- pose. It differs from a judgment in personam in this, that the latter judgment is in form as well as substance between thepai-tiesclainnngtheright,thatit is so inter paries am^eavs by the record itself. It is binding upon the parties appear- ing to be such by the record, and those claiming under or by them. A judgment i?i rem is founded on a proceeding, not as against the person, as such, but against the thing or subject matter itself, whose state or condition is to be deter- mined. It is a proceeding to determine the state or condi- tion of the thing itself, and the judgment is a solemn decla- 112 The Law of Estoppel. ration upon the status of the thing, and it ijdso facto vendievs it what it declares it to be. Sec. 106. The probate of a will is a familiar instance of a judgment in rem. The proceedings is in form and substance upon the will itself. No process is issued against any one in determining the state or condition of the instrument, but all 23ersons are notified by a newspaper advertisement to appear and contest the probate, and the judgment is not that this or that person shall pay a sum of money or do any par- ticular act, but that the instrument is or is not the will of the testator. It determines the status of the subject matter of the proceeding. The judgment is upon the thing itself, and when the proper steps required by law are taken the judgment is conclusive, and makes the instrument (as to all the world, at least, so far as the property within the state is concerned) just what the judgment of the court declares it ought to be. This is one instance upon a proceeding upon a written instrument to determine its state or condition, and that determination in its consequences involves and inciden- tally determines the rights of individuals to property afiected by it. Sec. 107. Proceedings in rem may be and often are upon personal chattels directly declaring the right to them in such cases. The proceeding is for the supposed violation by the property (so to speak) of some public law or regulation by which it is alleged that the title of the former owner has become divested. The property being seized a proceeding is then instituted against it upon an allegation stating the cause for which it has been forfeited, upon which public notice is given in some prescribed form to all persons to appear and contest the allegation. It is by no means cer- tain that all persons having an interest in the property have actual notice of the proceeding, but if the thing itself upon which the proceeding is had be within the jurisdiction of the court, all persons interested are held to have construc- tive notice, and the sentence or decree of the court declar- ing the state or condition of the property is conclusive upon all the world. A sale of the property under such a sen- tence passes the right absolutely and further, in cases of Judgments in Rem. 113 judgments in courts of admiralty they arc also conclusive evidence of the facts stated in the decree to have been found by the courts as the basis of the decree, so the judgments of municipal courts acting in rem within the sphere of their jurisdiction would have the same effect. Sec. 108. Under the term judgment in rem are included judgments of courts of admiralty relating to a prize or a judgment of condemnation, confiscation or forfeiture under the revenue or excise laws, and the judgments of all other courts directly upon the personal status or relations of the party such as marriage, divorce, bastardy, settlement, an adjudication by a competent tribunal of a question of descent or pedigree. The decision of a court of probate, orphans' courts, guardians' courts, courts of ordinary, surrogates' courts, courts martial, ecclesiastical and spiritual courts, courts having probate jurisdiction upon the validity of a will. The settlement of the accounts of an administrator, executor or guardian, or a court having jurisdiction in bankruptcy or insolvency matters, as an order dischargiug the person or estate of a bankrupt from the obligation of his debts estops all parties from disputing the point decreed whether they were or were not parties to the proceeding in which the decree was made. So a judgment or decree regarding the legal status or authority of parties, for they operate pre- cisely like a judgment of condemnation or forfeiture in rendering the person what they pronounce him to be, as the grant of letters testamentary or administration, the appoint- ment of a guardian or the naturalization of an alien. Sec. 109. In regard to courts of admiralty or prize the very nature of the question of prize is beyond the jurisdic- tion of common law and state courts, for the reason that the jurisdiction is exclusively vested in courts of admiralty which in this country are United States courts whose jurisdic- tion alone can extend on the high seas. The federal courts have exclusive jurisdiction of all seizures whether made on land or water for a breach of the laws of the United States, while the admiralty jurisdiction of the district courts extends to all cases of seizure in waters navigable by vessels of ten or more tons burthen, therefore they must be conclusive on 8 114 The Law of Estoppel. all other courts. In the English courts of exchequer as well as in American courts where proceedings in rem have been commenced, it is conclusive evidence to any other court as well as to all the world that the goods are liable to be seized for the reason that by the judgment of condemnation the title to the property is irrevocably changed and vested in the government ; it is the judgment of condemnation that changes the title and not the act of seizure, ^ therefore a judgment in an admiralty or prize court condem- ning a vessel as enemy's property or for violation of inter- national law, binds the property though obtained without notice to the party interested, and is final and conclusive upon all other courts; and a sale made in pursuance thereof vests an indefeasible title in the purchaser against the world, no matter how deficient the title may have been of the par- ties who were in possession of the vessel through whose acts the forfeiture was occasioned,'^ and it follows as a necessary consequence that there can be no action maintained either in trespass or trover for taking the property.^ Sec. 110. The same principle applies to a decree of any competent tribunal, that property has been forfeited for a breach of a municipal law or local regulation which decrees a sale as the means of carrying the forfeiture into efiect,"^ or for a libel filed for repairs or supplies, furnished to a vessel, whether the action is in an admiralty or in a state court, under a special enactment.'^ So a judgment order- ing the sale of a foreign vessel, by the master of it, which has stranded within the jurisdiction of the court decreeing the sale, is conclusive upon all the world and estops all per- sons from questioning the title of the purchaser, in any foreign country, where the vessel may be taken after being got off and repaired. It is therefore evident that this class of judg- 1 Cook V. Howard, 13 Johns., 276; LeCaus v. Eden, 2 Doug. 614, n. 2 The Rose v. Huntley, 4 Cranch., 291; The Globe, 2 B. C. C. R., 427; Bradstreet v Nep. Ins. Co. 3 Sumner. 600; Crousdon v. Leonard, 4 Cranch, 494 3 Scott V. Shearman, 2 Wm. Blackstone, 979; Geffer v. Aguilar, 7 T. R.. 696; Bullers N. P. 244. 4Gelston v. Hoyt, 3 Wheat. 246 ; Megee v. Beirne, 39 Penn., Hudson v. Gustee, 4 Cranch. 295. 5 The Globe, 2 B. C. C. R. 427 ; Thompson v. Steamboat Morton, 2 Ohio, S. 3G; Caramel v. Sewell, 3 H. & N. 617. Judgments in Rem. 115 ments are conclusive, not only upon the parties interested, but upon third parties who are termed strangers. The rea- sons therefore are, first, that in such cases, whciaxthe Res is the subject matter of the litigation, every one who has any interest or can possibly be affected by the judgment, is entitled to appear and asseit his own rights by becoming and being made an actual party to the proceedings. 2nd. on the principle Interest reijiublicae ut sit ftnius iitium, it is essential to the peace and tranquility of community, that questions of this kind should not be left in doubt ; but, that our domestic and social relations should be clearly defined and conclusively settled and at rest, and on this ground, such judgments can neither be set aside or impeached collaterally, either by parties or strangers, on any other ground than the want of authority or jurisdiction of the tri- bunal rendering the judgment or decree. Some instances may be found w^herc this class of judgments partake of the nature of judgments in personam, as for example. The Federal Courts have jurisdiction of Revenue cases. They declare property forfeited for a violation of the revenue laws of the United States, and while the judgment of forfeiture is con- clusive upon the whole world, as regards the property for- feited, the judgment of the same court in the same action, for the same violation of the revenue laws, convicting the par- ty is not so, because that is a judgment in personam. But, a proceeding i?i rem can effect only the property attached or described in the bill, and when the proceeding is under some statutory provision all the forms must be strictly complied with and pursued, or the judgment loses the conclusive effect attached to proceedings in rem.^ Sec. 111. Another class of proceedings i7i 7'em are actions brought for the recovery of title to real estate, but they are commenced by personal service or notice by publication as in actions in personam. The force of the judgment in regard to its conclusive effect is limited primarily and exclusively to the matter or land in litigation. The estoppel is limited to those who have been made parties to the action by appearance or service of process. Natural IBoswell V. Dickeuson, 4 McLean, 262. IIG The Law of Estoppel. justice as embodied iu the fundamental priuciple of the hnv, Res inter alios acta alteri nocere non debet will not suffer the title of third persons or strangers to the ligitation to be barred by any order or execution based on such a judgment/ as for example judgments in ejectment are ex- ecuted by a writ which transfers the title from the defendant to the plaintiff, and as they operate upon the Res they are judgments in rem, but in all other respects they operate as judgments in personam as they do not and cannot effect the title of strangers to the action who were in no wise interested or made parties to it,- and this principle is not applicable to proceedings which pursue the course of common law, but of those which are founded and regulated by statute.^ Sec. 112. All persons in every part of the world arc con- cluded by the sentence of a prize court in a case clearly coming within its jurisdiction. A prize court having ren- dered a decree has no power to re-open it after the expira- tion of the term at which it was rendered.^ A judgment in rem is conclusive, and binds the property, though obtained without notice to the party interested. So a sentence of a United States District Court on the question of forfeiture, imder the laws of the United States, is conclusive, and the question cannot be again litigated iu a common law court, and an admiralty decree iu a proceeding in rein for a for- feiture, is conclusive upon all parties claiming an interest in the thing. But a decree in a statutory proceeding is not conclusive, unless the forms be strictly pursued, and a pro- ceeding in rem can only effect the property attached as des- cribed in the bill. Justice Story in an elaborate opinion says: When property is seized, and libelled as forfeited to the government, the sole object of the suit is, to ascertain whether the seizure be rightful and the forfeiture incurred or not? A judgment or decree, acts upon the property 1 Jackson v. Brown, 3 Johns. 459; Ragans Est. 7 Watts, 440. 2Decosta v. Atkins, Bullers, N. P. 87; Hunter v. Butts, 3 Camp. 46; Chirac v.Reiuecker, 11 Wheat. 280; Reid v. Stanley. 6. W. & S. 369; Chirac v. Reinecker; 2 Peters, 613; Den t. White, 7 T. R. 112. 3Hollings\vorth v. Barbour, 4 Peters, 475; Williams v. Ball, 8 Howard, 566; Boswell V. Dickinson, 4 McLean; Ege v. Sidee, 3 Poun. 124 ; .McKoe v.McKee, 38Penn. 231. 4 Lizzie Weston, Bl. Pr. cases. 246; The Major Barbour, lb. 330. Judgments in Rem. 117 seized and forfeited, and is conclusive upon the whole world. If the judgment is one of condemnation, it com- pletely changes the title of the property, and the new title thus acquired by, and through the forfeiture, tiHTels with the thing in all its future progress. If on the other hand, it is acquitted, the taint of forfeiture is completely removed, and cannot be re-annexed to it. The original owner stands upon his title discharged of any latent claims, with which the supposed forfeiture may have previously infected it. A sentence of acquittal in rem, ascertains a fact as much as a sentence of condemnation ; it ascertains and fixes the fact that the property is not liable to the asserted claims of for- feiture, and it is therefore conclusive upon all the world of the non-existence of the title of forfeiture, for the same reason, that a sentence of condemnation is conclusive of the existence of the title of forfeiture. It would be stranere in- deed, if when the forfeiture ex directo, could not be enforced against the thing, but by an acquittal, was completely purged away, that the forfeiture might be indirectly enforced through the seizing officer ; and that he should be at liberty to assert a title for the government, which is judicially abandoned by, or conclusively established against the govern- ment itself; because the decree of a court of competent jurisdiction in rem, is as to the points directly in judgment conclusive upon the whole world, ^ and in this connection it is to be rememl)ered, that whenever a question arises in which the authority of a legal tribunal is to be exercised in regard to a specific thing ; the decision is conclusive, not only upon the Res itself, but upon the question, and it estops all contradiction in any other litigation with reference to the same property between persons who were not parties to the judgment, and founded on a contract pi'ior to the time when the decision was rendered in reference to the same property, although between persons not parties to the for- mer action, and founded on a contract previous to its rendi- tion. A decree by a court of admiralty condemning a ves- sel, for a violation of the revenue law of a foreign country, 1 Gclston V. Iloyt, 3 Wheat. 246. 118 The Law of Estoppel. or a breach of a blockade, will not only convej'' an indefeas- ible title to those who become purchasers under the de- cree, but it is conclusive evidence of the cause of condemna- tion in any action that may arise betwen the owners of the ves- sel and the insurers.^ A decree apportioning d loss occasioned by a collision at sea, is not only conclusive, in a subsequent action by the insurers of the loss and share of each vessel, but of the cause and nature of the collision.''^ Sec. 1 13. The universal eflect of a judgment m retn is that it is a solemn declaration of a court of competent jurisdiction upon the status of a thing which very declaration operates upon the status of the thing adjudicated upon, and renders it ipso facto, such as it is thereby declared to be, and is therefore binding upon the whole world. Thus a con- demnation of goods or a prize, not only declares them liable to forfeiture, but accomplishes the forfeiture accordingly. When the status of a thing is thus altered, it follows that the judgment altering it must estop the whole world, for it would be absurd to try the question whether a thing was or was not what it is declared to be, when the judgment has not only declared but rendered it such, and where the title to the property is changed and ii-revocably vested in the government by a judgment of condemnation. Neither trover or trespass will lie for taking them in an orderly manner, and this must be the meaning of the doctrine as laid do^vn by Lord Coke, in 1st Inst., 352, (b) where he states that "where the record of the estoppel runs to the disabilitie of, or legitimation of the person, there all strangers shall take the benefit of that record as outlawrie, excomengement^profession, attainder of praemununei'i, d3c., felonie, &c., bastardie, mul- iertie, and shall conclude the parties, though they be stran- gers to the record.''^ In all these cases the record operates upon the status of the individual. The judgment of out- lawrie not merely declares the party an outlaw, but renders him so; and is, therefore, a judgment inrem. It, therefore. 1 Croudson v. Leonard, 4 Cranch, 434; 3 Sumner, 600 ; Baxter v. N. E. M. Ins. Co., 6 Mass. 277 ; 4 Ellis & BI. 788. 2 Magoun v. New England M. las. Co., 1 Story, 157 ; 12 Richardson, 13, 3 Sumner, 228. Judgments in Rem. 119 seems impossible to say that where the status of the thing is actually operated upon, that operation shall be of less effect, because some other court, had it been called upon, might have produced a similar one. It may happen 4l*ut after a court of competent jurisdiction has decreed in rem, some other court proceeding m rem may pronounce a contrary decree on the same subject matter. But that tribunal as- sumes a power of appeal, and it is as a judgment of an ap- pellate court that its decision can be looked on as warrant- able. Sec. 114. A judicial sentence in rem will be conclusive on all the world, whether a corporation, state or United States, was plaintiff, or an individual. A judgment is equally conclusive, which ever way it is pronounced, whether it be of forfeiture or acquittal, and if it be the latter, is as effectual an estoppel as though it was of condemnation, in justifying the conduct of the officers seizing the property on the ground that it had incurred a forfeiture, as a judgment of con- demnation would be in estopping the owners from averring that the seizure was illegal and no forfeiture had occurred. The decisions in rem are conclusive, not only upon the par- ties actually litigating in the cause, but upon the whole world, for the reason, that in cases of property seized and proceeded against, every one who has a right to appear and assert his own rights by being made or becoming parties to the proceedings, and upon the maxim, Interest rei])uhUcae ut sit finis, litium. It is essential to the peace and tranquility of the community that questions of this kind should not be left in doubt ; but that our domestic relations should bo clearly defined and conclusively settled and at rest, and so well are they settled, that decrees in rem cannot be set aside or impeached collaterally, either by parties or strangers, on any other ground than want of authority, or jurisdiction in the court in which the judgment was rendered. But no judgment in rem can be binding unless the situation of the property seized, or to be seized, is such as to render it amena- ble to the authority of the court which renders the decree, or unless the proceedings are conducted in accordance with the well established forms and principles which the juris- 120 The Law of Estoppel. prudence of all countries regard as essential to the safety and validity of judicial actions. And it also depends upon the fact whether the court had power to make a decree of that kind, and whether the property was so situated that the ex- ercise of the judicial power would be effectual in rendering it what it declared it to be. In order to render a judgment, sentence or decree in rem, the right arises from an actual or constructive possession of the Res, acquired or held in such a way as to make it a fit subject for adjudication, and when this has been once acquired by a duly authorized tri- bunal, no other is allowed to interfere with the tribunal which first obtains jurisdiction, until the fii'st tribunal has fully adjudicated all matters connected therewith. Sec. 115. As a general rule strangers are not bound by nor can they take advantage of an estoppel, and it is not to be presumed that the law intends parties to be bound by proceedings to which they were strangers and had no opportunity of being heard ; for instance, where a vessel is sold at a sheriff's sale under a judgment rendered in an action upon an account for goods, wares and merchandise sold and delivered in the shape of supplies or necessaries, will not estop third parties notwithstanding service was made by publication, and " interested parties notified to show cause unless by special statutory enactment by the legislature of the state in which the proceedings are had, such actions being made proceedings in rem, thus obvia- ting the necessity of having the interested parties in court as is done by the statute of Missouri.^ But it has since been decided that state legislatures have no authority to create maratime liens or confer jurisdiction upon state courts to enforce such liens by proceedings in rem. Such jurisdic- tion is vested exclusively in the courts of admiralty of the United States.^ Where proceedings for the recovery of land are invested with the character of proceedings in rem, by the statutes of the state in which the land is located the judgment is as conclusive as any other decree in rem, be- cause it declares the land to belong to the successful party 1 Ritter v. Jamestown, 23 Mo. 348. 2 Deever v. Steamer Hope, A. L. R., G83; The Belfast, 7 Wall., G31. Judgments in Rem. 121 and the judgment renders it his, and no foreign court can either interfere or review the decree with a view or for the purpose of redressing any injustice that might have been or was conmiitted. -*-*■ Sec. 116. Fraud will vitiate any contract or judgment and may be pleaded either in a judgment intei- partes or in rem, and it makes no difference whether they are foreign or domestic judgments, but it must be understood with this proviso that fraud, collusion or covin, must be proven and not deduced from mere inference. This may be done when they are urged against strangers to the proceedings who have had no opportunity to appeal- and take the necessary step for their protection, and may be plead cither collater- ally or in a direct proceeding. Estoppels in rem are sub- ject to the same limitations which are applicable to those in personam, and are limited only to the subject matter in litigation and will not be extended in any way by intend- ment or implication. Sec. 117. Besides the class of cases referred to in the pre- ceding sections there is another class which to a great ex- tent may be considered proceedings in rem, while in form they are proceedings between parties or in personam. Pro- ceedings in attachment are in the nature of, but not strictly a proceeding in rem. A proceeding in rem is that in which the process is served on the thing itself and the mere posses- sion of the thing itself by the service of the process, and making proclamation authorizes the court to decide upon it without notice to any individual whatever. In England all the notice the defendant has is by the attachment of his prop- erty, while in this country the writ of attachment is usually preceded or accompanied by a summons, and service made on the defendant either personally or by publication. If personal service is had on the defendant and judgment is rendered, it is in personam. But an attachment of property where the court has jurisdiction of the Res, but not of the person of the defendant, and a sale of it or a levy npon it, if it be real estate, is in the nature of a proceeding in rem. The judgment, if the defendant have no notice, is treated as a nullity, outside and beyond the jurisdiction of the court 122 The Law of Estoppel. rendering the judgment, so far as the person of the defend- ant is concerned, though it will be held binding as between the parties so far as regards the property, as a proceeding in rem. The defendant cannot recover back the property in another jurisdiction. The status of the property is deter- mined by the proceeding. But the proceeding will not in any way eifect the status of the property as to other persons than the parties to the record and those claiming by or under them. Sec. 118. The distinction between proceedings by attach- ment and by garnishment, is that the latter is a peculiar pro- cess by which the effects of the defendant which cannot be seized and taken into custody as in attachment, may still be rendered liable to the payment of his debts. Garnishment is more in the nature of proceedings in rem than attachment, since its aim is to invest the plaintiff with the right and power to appropriate, to the satisfaction of his claim against the defendant, property of the defendant in the garnishee's hands, or a debt due from the garnishee to the defendant. It is virtually, a suit by the defendant, in the name of the plaintiff against the garnishee, without reference to the de- fendant's concurrence and against his will.^ The distinction between these proceedings and proceedings in rem, is that the latter are directed against the things themselves and only operate incidentally upon the rights of parties ; while at- tachments and garnishments use the hold they have obtained by the seizure of specific property as the means of reaching and giving effect to the rights of parties, and exercises no controlling authority over the rights of strangers, so that at- tachment and garnishment, strictly speaking, are not pro- ceedings in rem. Sec. 119. Where one is by garnishment involuntarily made a party to a suit in which he has no personal interest, he is fully protected by the proceedings in law, provided he acts in obedience to the orders of the court, in the surrender and payment of the property attached. As a garnishee is a mere stakeholder for the parties to the suit, he is in a position in which he cannot act voluntarily without danger to his 1 Drake on Attachment, § 452. Judgments in Rem. 123 own interest. No voluntmy payment after garnishment by the garnishee of his debt to the defendant, and with a knowledge on his part of its existence will estop his liability as a garnishee, but if it is paid before garni shmcilttt is as com- plete a defence as it would be in an action against him Ijy the defendant for the same debt. In order then to have the protection and benefit of the estoppel he can only surrender the property or pay the debt in obedience to the order of the court which issues the execution and thus will protect him not only as against the defendant, but against all parties claiming under him by virtue of a grant or assignment subse- quent to the issuing of the garnishment or attachment. Nor can a garnishee interfere or inquire into the proceedings when the jurisdiction of the court extends over the defendant and garnishee; all that he is interested in is that the proceedings shall protect him in any subsequent action against him for the same debt, and against a second payment neither can he avoid or reverse a judgment for irregularities, he is bound by the judgment. The operation of a judgment against a garnishee is compulsory. He has no choice but to pay in obedience to the judgment of the court to whose jurisdiction he has been subjected ; the exercise of that jurisdiction ef- fects a confiscation of the debt due by the garnishee to the defendant, for the plaintiii''s benefit.^ Sec. 120, A judgment rendered against a garnishee by a court having jurisdiction of both the action and the person of the garnishee, and if he has satisfied it in due course of law, is conclusive against parties and privies, of all matters of right and title, decided by the court, and con- stitutes a complete defence to any subsequent action by the defendant against the garnishee for the amount he was compelled to pay, and this, though the court be a foreign tribunal. But the judgment does not affect any one not a party or privy to it. A judgment in favor of a garnishee is just as conclusive against the plaintiff, although it was obtained by fraud and perjury committed by the garnishee. But a judgment in favor of a garnishee will not estop his being charged in another suit by a different party, on account of 1 Drake on Attachment. 124 The Law of Estoppel. the same debt, for the obvious reason that judgments bind only parties and privies, not strangers. Nor is a judgment against a garnishee res adjudicata, between him and the defendant so as to estop the defendant from claiming more in his action than the garnishee was considered in the attach- ment proceedings, to owe ; if it was, it would enable a gar- nishee to practice a fraud upon his creditor by confessing in his answer a smaller indebtedness than actually existed. Sec. 121. Where a part or the whole of a debt of the garnishee to the defendant has been paid under the judgment against him, such payment is as effectual an estop- pel either pro tanto or completely to a subsequent action by the defendant, as if the payment had been made to the defend- ant himself. In an action against a garnishee, by his credi- tor, the attachment defendant, where there was no allegation in the agreed statement of facts, that the amount of the judg- ment against the garnishee was equal to his debt to the defendant, it was presumed it was so.^ A jDayment of a debt by one of several joint debtors under garnishment, is a good defence by way of estoppel in a subsequent suit brought against them by the defendant in the attachment suit.- But a judgment rendered on the attachment for a debt or fund, or specific assets of any other description will not estop third parties from asserting a paramount or adverse right to the property attached, or growing out of its negotiation, when it is negotiable security. An attachment will not be a pro- tection against an equitable assignee who claims under the defendant, and not paramount to him, if the garnishee knew of the assignment and failed to plead or give it in evidence against the attaching creditor, unless the assignee was duly notified and opportunity given to come in and defend in per- son. Nor can a sheriff rely upon an attachment against A. for seizing the goods of B. even when the proceedings result in a judgment in favor of the attaching creditor, and where he is ordered to sell the goods on account of their perishable nature, while it may be a sufficient justification for the sale ; it will not relate back or justify the original seizure ; for the 1 McAllister v. Brooks, 22 Maine, 80. 2 Cook V. Field, 4 Ala. 53. Judgments in Rem. 125 obvious reason that a judgment against the defendant or gai- nishee, can effect only the property of the defendant not stran- gers, and does not authorize the seizure of property belong- ing to third persons, for the defendant's debt. -*- Sec. 122. In regard to negotiable notes they cannot properly be made the subject of attachment, as will be seen by the I'ol- lowing principles of law laid down by Drake in his admira- ble work on Attachments. 1st. It is impossible to charge a garnishee as a debtor of the defendant, unless it ajjpear affirvnatively that at the time of the garnishment, the de- fendant had a cause of action against him, for the recovery of a legal debt due, or to become due by the efflux of time. 2d. The attachment plaintiff can hold the garnishee only so far as the defendant might hold him by an action at law. 3d. The garnishee is under no circumstances to be placed by the srarnishment in a worse condition than he would other- wise be. 4th. No judgment should be rendered against him as garnishee, where he answers fairly and fully, unless it would be available as a defence against any action after- wards brought against him on the debt, in respect of which he is charged. Applying these well established principles to this subject, it seems that a negotiable instrument can not properly be made the subject of an attachment while still running and before it has reached maturity. It bears the character of negotiable paper until it is due and no operation which can be given to the garnishment of the maker, can • change its nature in this respect. As long as it is negotiable, it is difficult for the maker to say who the possessor or holder may be when it reaches maturity. If the maker is garnisheed in an action against the payee, and an- swers that he does not know whether he is indebted or not, or may be indebted to the payee, there is no doubt that the answer is insufficient to charge him, without the risk of making him liable twice over for the same debt. For the reason that his obligation is not to pay to any particular person, but to the holder at maturity whoever he may be, and as neither the garnishee, the defendant, or the court, can say that the defendant will be the holder of the note at its maturity, a judgment against 126 The Law of Estoppel. the garnishee assumes he will be, and necessarily renders him'^liable to pay the same del)t twice. For this reason no jndirnient can he rendered without placing the garnishee in a won-^e situation than he would otherwise be in by requiring him to pay to the plaintiff what he may from the character of the paper, in all probability be compelled to i>ay again to the innocent holder of the note. For although privies are bound by the result of a judical proceeding between the parties under whom they claim, and the assignee of an overdue note or chose in action is in privity with the assignor, and can a-ssert no right which has been barred by judgment against him. The indorsement of a note before it is due for value, and without notice, does not full Avithin the same principle as the assignment of an overdue note. If a note which passes from hand to hand as cash ; on which the holder may in- stitute suit in his own name, has all the properties of a bank note payable to bearer, which would be embraced by a bequest of money, and which may be actually in circulation in an- other state or country, should be adjudged to be liable to attachment before maturity, it would not only overthrow an essential part of the commercial system but annihilate the negotial)le (pialities of all such instruments,^ and unless it is utiirraatively shown that, ])cfore the rendition of the judg- ment the note had become due, and was then still the prop- erty of the payee. The maker of the note cannot be charged UH garnishee of the payee without violating sound aud well f.->tablished principles of connnercial law, justice and equity. Jionajidts nan palilarh is ideme.dgatur. Unless it is done as wa.s the case in Kieffer v. Ehler, by impounding the note and holdinjr it until it was due. The doctrine of lU pi^ndiiiis is not applicable to a proceeding like attachment, whieh docs not specifically limit the property involved, and constructive notice cannot supply the place of actual, in the case of negotiable paper which passes freely from hand to hand. Payment by compulsion of law is a good defence against the creditor when it is legal, rightful, and strictly within the order of the court; but a judgment or decree asfjuminir to reach beyond the parties, and estop persons who 1 Ludlow T. Bingham, 4 Dallas, 47. Judgments in Eem. 1'27 have not been summoned or had an oi)p()rtunity to he heard iu their own defence is not only contrary to right and justice but is absokitely void for want of jurisdiction.' Sec. 123. In a suit by the attachment defendant against a garnishee, a payment under a judgment against tlie gar- nishee will be etfectual as a defence by estoppel if properly pleaded. In order to render it etfectual, the garnishee must prove the judgment under which he made the payment ; that it was a valid judgment, for a payment under a void judgment, no matter how apparently reguUir the proceeding may have been, cannot protect him against the defendant or his repre- sentatives. That the payment was not voluntary. That it was an actual payment not pretended or contrived. That the court which rendered the judgment had jurisdiction of the subject matter and the parties. If there l)e a defect in this respect the payment is regarded as voluntary. But if it had jurisdiction, no matter how irregular the proceeding may have been, it is as good as an estoppel; even a reversal on error after payment by the garnishee will not invalidate the payment ; if he contest the jurisdiction of the court, and his objection is overruled and judgment is rendered asraiust him it will be conclusive in his favor. If the law requires the plaintiff to perform as a condition precedent to obtaining execution a particular act to be performed, such as filing a bond, and without its performance the garnishee makes payment under it, the payment will be no protection as it is regarded as voluntary. In order to entitle one to plead an attachment as a conclusive defence, there must be no neglect, collusion, or misrepresentation on his part in the progress of the attachment suit; if there is, then there is no estoppel against the creditor. A garnishee is not obliged to watch the regularity of proceedings in the suit in which he is garnisheed, nor can he be held in any way responsible for them. The answer of the garnishee being the basis of the judgment, his liability being therein set forth the record will sufficiently establish his defence when sued by the attachment defendant, unless he allows judgment to go by default, then it must be proved by parol evidence. In assumpsit the 1 Kiefer v. Ehler 18 Penn. St. 388. 128 The Law of Estoppel. judgment and execution in attachment may be plead specially or given in evidence under the general issue, but in debt on bond it must be pleaded specially, if not pleaded properly, or the defendant fails for want of a proper plea. The garnishee will have no remedy either in law or equity but to pay the debt over again. A payment by a garnishee in obedience to the order of the court in which he has been attached, will be effectual as ah estoppel in any subse- quent suit against him for the same debt, whether the pro- ceedings took place in a domestic or foreign tribunal, and whether they were or were not conclusive as regards the other parties to the action, because a payment made in good faith and by compulsion of law, exonerates the person who makes it, from further responsibility and remits those entitled to the fund to an action against whom it is received. So a creditor who takes part in defending an attachment on the ground that the debt attached was due to him, is estopped from denying the validity of the attachment subsequently, as against the plaintiff and garnishee.^ But proceedings commenced by attachment can not be binding unless the thing attached is within the State or district over which the authority of the court extends, or jurisdiction is acquired by personal service upon the garnishee, and a party can, under any and all circumstances, show that the thing at- tached was not subject to attachment. Sec. 124. The proceedings in foreign attachment partake still more of the nature of a proceeding in rem ; its opera- tion is, however, limited in character. The suit is between the parties, and, as a proceeding ^V^ 7'em, it must be confined to such parties. A writ is issued in favor of the plaintiff, de- claring against his debtor, residing in a foreign government, and alleging, also, that another person, named in the writ 1 Peterson v. Lathrop, 34 Penn.,223; Richards v. "Watson. 23 Mo., 34; Tarle- ton V. Johnston, 25 Ala., 300. In a late case in the U. S. Supreme Court, Miller's Exrs. v. U. S.. 11 or 12 Wallace, that court decided that proceedings by garnishment and attachment against negotiable paper was a valid seizure, and that the return was conclusive as to the seizure, and that it held the property, and that the res was then in possession of the U. S. Marshal reversing Pelham v. Rose, in 9 Wallace. Judgments in Eem. 129 and styled a trustee or garnishee, has goods in his hands be- longing to the attachment defendant, or is indebted to him, praying that the goods or debt found within the jurisdiction of the court from which the process issues, may fle'dechircd forfeited to the phiintiff, or, strictly spealving, that the prop- erty be appropriated in satisfaction and payment of the plaintiff's demand. Where the court has jurisdiction, its proceedings are in rem, after publication, which construc- tively notifies the defendant of the proceedings against the property. The court adjudicates upon the jDropei-ty, the thing itself, and orders it sold or delivered to the plaintiff in payment of his debt. The judgment changes the status of the property or debt, it deprives the attachment defendant of all title to it ; and is binding and conclusive upon all the parties to the proceeding. The foreign creditor of the trus- tee or garnishee having placed his property within the juris- diction of the court rendering the judgment, is estopped from prosecuting his claim against the garnishee in any other jurisdiction. Sec. 125. The operation of this proceeding m rem is limi- ted to the parties to it, and does not affect the right, title or interest of any other person having an independent or ad- verse claim to the goods or debt, which was the subject mat- ter of the suit, for the reason that the court does not pre- tend to notify such adverse claimant either constructively or otherwise, nor do the proceedings determine the right of any persons except those who are parties of record to it. These limited proceedings m re7n, are not based upon any allega- tion that the right of property is to be determined between any other person than the parties to the suit, no notice is given to any other persons, the judgment being only as to the status of the property between the parties of record, it is, as to all other persons, a mere nullity. Whenever a court of competent jurisdiction assumes the control or custody of a particular thing, its proceedings are then in rem, and are so regarded whenever it is necessary, /or the protection of either of the parties to the proceeding or the property itself. A purchaser of property under a sheriff's sale made by or- der of the court on accoimt of the perishable nature of the 9 130 The Law of Estoppel. property, will obtain a good title againat the world, do mat- ter how defective or irregular the attachment proceedings may be.^ The sale of a ship seized under proceedings in foreign attachment, by a court of common law, under an or- der that it should be sold as perishable property, and the proceeds paid into court, was held to pass a good title against the world, and divested the title of the seamen for their wa- ges, and remitted them to the fund arising from the sale.- The estoppel, in such cases, is founded on the action of the court in its ministerial capacity, and it may be founded on the acts of persons who are destitute of judicial power, whose author- ity is derived solely from necessity.'^ A sale made by a mas- ter of a vessel, in case of necessity, will pass a good title, not only as against those by whom he was himself appointed, but against third persons claiming under an independent right or title. The right to sell under such circumstances, carries with it the right to confer a new and indefeasible title on the purchaser, founded on the necessity of the sale. A judgment in an action for trover or trespass, brought by the finder of a chattel against a third person, by whom it has been wrongfully taken or detained, Avill operate as an estop- pel in rem^ and vest a good title in the defendant against all the world, because the nature of the action compels the plaintiflf to act for unknown and absent owners of the prop- erty found, and renders it necessary that the defendant should be protected from being made answerable a second time in damages for the same thing. The estoppel in such cases is essentially an estoppel in pais, deriving its force from the circumstances which creates it; and unless they are such as to give it birth, it will have no existence, no matter how regu- lar or formal the proceedings on which it assumes to be founded, and a decree of a tribunal that an injured vessel shall be sold, will pass no title, unless the sale would have been valid if made by the master, in case of necessity, with- out a decree, or the proceeding is strictly m rem, and the 1 Woodruff V. Taylor, 20 Vt. 65. 2 Cayl V. Taylor, 24 Penn. St 259 ; 1 Wallace, Jr. 311 ; 20 Howard, 583. ^ Mankin v. Chancellor, 2 Brock. 125. Judgments in Rem. 131 court duly authorized to bind the parties without giving them an opportunity to be heard. ^ Sec. 126. The same rule applies to proceedings in re- plevin, where the authority to seize specific property is given, solely with a view to the determination of the right of property between the plaintiff and defendant, the judg- ment will not estop the subsequent assertion of a distinct and adverse title by a third person. There is no conflict or inconsistency between successive writs of replevin or attach- ment by different persons for the same property. Replevin may be maintained by one man for the recovery of chattels that have been seized under an attachment against another, because an authority to take the goods of A. will not be a justification for taking the goods of B. While a judgment in replevin, although limited to the Res, is not in rem, and will not be conclusive on third persons ; the writ can be pleaded as a justification by the sheriff against all the world. Sec. 127. Besides the actions mentioned, there are still another class which partake of the nature of proceedings in rem, and the determination of the tribunals having jurisdic- tion may be in rem and pei'sonam. The proceedings in England of Ecclesiastical Courts, Spiritual Courts, and in America of Probate Courts, Courts of Ordinary, Surrogate Courts, Orphans' Courts, and all other courts, whatever their appellation may be, which have jurisdiction of the sale of a decedent's estate for the payment of his debts, or for the purpose of facilitating or effecting the distribution of a decedent's estate among his heirs. Proceedings of this nature are usually commenced on petition, or notice by pub- lication, and partake, to a great extent, of the same conclu- sive effect and nature as that accorded to proceedings in rem, or rather in Admiralty and Prize Courts. All parties claiming title from or under a decedent are bound b}^ the decree, whether they were made parties or not. In England, the courts having special jurisdiction of matters of probate, marriao-e and divorce are termed Ecclesiastical or Spiritual Courts. They decide directly upon the legality of mar- riages, compel specific performance of a contract of marriage, ] 2 Smith's Leading Cases, 836. 132 The Law of Estoppel. or for restitution of conjugal rights, &c. There are no such courts in this country. But the courts above mentioned are placed on the same basis as the Ecclesiastical and Spiritual Courts of England. The action causa jactitationis matri- nionii, and that for the restitution of conjugal rights are unknown to our law, and an action to enforce the celebration of a marriage, in accordance with a former contract, is an action that has never been heard of in American courts, the general rule being the converse of this, the action being for a dissolution of the marriage contract. In another portion of this work I will show that in actions of divorce on any of the various grounds on which a decree is granted, by the various tribunals in the United States, though not by Eccle- siastical Courts, they have the same conclusive eifect in every State in the Union as is accorded them in the State where they are granted. Sec. 128. Proceedings in Surrogates' Courts, Orphans' and Guardians' Coui-ts, County Courts, Courts of Ordinary, Pro- bate Courts, and other courts having a limited jurisdiction, that of the disposition of the estate of decedents, their decrees are conclusive evidence in regard to the real as well as the per- sonal estate of the intestate. It is a general rule of law, that where any matter belongs to the jurisdiction of one court, so peculiarly that other courts can only take cognizance of the same subject incidentally and collaterally, the latter are bound by the sentence of the latter and must give credence to it.^ A probate is the only legal and legitimate evidence of personal property being vested in an executor, or of his appointment, and is conclusive evidence of this fact, and letters of administration are conclusive of the appointment of the administrator. A grant oi ;probate^ or of administra- tion^ is in the nature of a decree in rem, and actually invests the executor or administrator with the character which it declares belongs to him. Accordingly such grant of pro- bate or administration is conclusive against all the world. Sec. 129. In regard to the decrees and sentences of courts exercising any branches of Ecclesiastical jurisdiction, they 1 McPherson v. Cunliff, 11 S. & R. 429; Hargraves' Law Tracts, 452; Cas- sels V. Vernon, 5 Mass. 534. Judgments in Rem. I33 are governed by the same general principles already stated. The principal branch of this jurisdiction, existing in the United States, is that relating to matters of probate and ad- ministration. In this, as in other cases, the limitatton is as to whether the matter was exclusively within the jurisdiction of the court, and whether a decree or judgment has been passed directly upon it. If jurisdiction has attached, the decree is conclusive. Where the decree is of the nature of proceedings in rem, as is generally the case in matters of probate and administration, it is conclusive, like those pro- ceedings, against all the world. But where it is a matter of exclusively private litigation, such as in assignment of dower, and some other cases of jurisdiction conferred by particular statutes, the decree is subject to the same rules as judg- ments in other actions. Thus, the probate of a will, at least, as to the personalty, is conclusive in civil causes, in all ques- tions upon its execution and validity.^ The grant of letters of administration is, in general, conclusive evidence of the intestate's death ; for only upon evidence of death, are they granted. 2 But the grant of administration upon a woman's estate determines nothing as to the fact whether she were a feme covert or not; for that is a collateral fact, to be collect- ed merely by inference from the decree or grant of adminis- tration, and was not the point directly tried.-^ Where a court of Probate has power to grant letters of guardianship of a lunatic, the grant is conclusive of his insanity at that time, and of his liability, therefore, to be put under guardianship against all persons subsequently dealing directly with the lunatic, instead of dealing as they ought to do with the jruardian.* 1 Paplin V. Hawks, 8 N. Hamp., 124; Jarmen on Wills, p. 22, 23, 24 ; Langdon V. Goddard, 3 Story, 1. 2 Newmaa v. Jenkins, 10 Pick., 515; Moone v. DeBernalis, 1 Russ. 301. The general practice was stated and not denied to be, to admit the letters of administration, as sufficient proof of the death until impeached, but the Mas- ter of the Rolls in that case, which was a foreign grant of administration, re- fused to receive them, but allowed the party to examine witnesses to the fact. 3 Blackham's case,l Salk. 290; Hibsham v. Dulleban, 4 Watts, 183. 4 Leonard v. Leonard, 14, Pick. 280. But it is not conclusive against his subsequent capacity to make a will. Stone v. Damon, 12 Mass. 488. 134 The Law of Estoppel. Sec. 130. Whenever these courts transcend the limits of their powers their acts will be held void ; or if they fail to take the necessary steps for obtaining jurisdiction over the cause or the parties.^ But when jurisdiction of these courts has once attached and is not exceeded it will not be lost by an irregularity in the mode of exercising it, and every intendment will be made in aid of the regularity of the pro- ceedings which will be regarded as equally conclusive with those courts of superior and general jurisdiction. When the validity of a grant of letters of administration is questioned collaterally the only point open to examination is whether the court had jurisdiction ; if that fact is affirmatively estab- lished the grant is conclusive. A decree for the sale of a decedent's real estate for the payment of his debts by a court of competent jurisdiction, non-resident heirs having been made parties by publication cannot be impeached collater- ally, and where it is sold on a certain day pursuant to a decree of a competent court it cannot be objected to, that the* sale took place before the time prescribed by law. When courts having jurisdiction for the sale of an intestate's real estate for the payment of his debts make an order for such sale, no other court can re-examine the order while it remains in force except an appellate court^ on proceedings regularly brought in error.'^ A decree made upon a deceased guar- dian's account, the subsequent guardian being made a party to the proceedings, is conclusive and a complete bar to a bill in equity in any other court.^ So a decree of a probate court granting to a husband administration with the will annexed on his wife's estate is conclusive of her right to make the will,^ and an order for the sale of a decedent's real estate granted by a probate court, if jurisdiction is shown on the face of the proceedings, is conclusive as to the necessity 1 Jenks V. Howlan, 3 Gray, 536; Gwin v. McCarroUs, 1 S. & M., 354; Enos V. Smith, 7 Id., 85; Babbett v. Doe, 4 Ind.; Peters v. Peters, 8 Gush- ing, 529. 2 Griffith V. Bogert, 18 Howard, 151. 3 Allen V. Lyons, 2 W. C. C. R., 475. 4 Blount V. Darrach 4 W. C. C.«657. 6 Cassels v. Vernon, 5 Mason, 352. Judgments in Rem. 135 and propriety of the sale.^ A decree settling an account is conclusi\^e and cannot be impeached in an action on a i)ro- bate bond nor by a bill in equity to compel an account.^ In New York they are expressly made so by statue but are impeachable in equity for fraud. In Pennsylvania the con- clusive character of decrees settling an account are placed as far above impeachment as the adjudications of any other court. Notwithstanding the conclusiveness of this class of adjudications one fact must be remembered, that evi- dence may be adduced to show want of jurisdiction f as for instance, that the deceased died in a foreign state, the surro- gate not having the power so that the letters were of admin- istration durante absentia of an executor, or that the 2:rant was revoked, for that is the further act of the same court ; or that it was forged, for that shows it not to be the act of the court at all ; or that it was granted by a court having no jurisdiction, for then it is a nonentity. But it cannot be shown that the testator was mad or that the will was forged, for these facts might have been alleged in the probate, sur- rogate or orphans' courts in opposition to the grant of pro- bate or administration^ of an executor, or that they are of the estate of a living person, or if there be no jurisdiction of the party for want of notice if that is required, or where the party is not regularly in court as is required by law, or where the land sold lay in a foreign state, or if an attorney or guardian of an infant be necessar}^ and there be none appointed the sale of land is void as to him, or if there was no petition to sell or where they go beyond the statute power of the court, as where the land held in dower was on the death of the tenant distributed to one in preference to another of the next of kin or heirs.'"' The United States government is not ordinarily bound l)y an estoppel' in a case where an administratrix had distril)uled her estate 1 Comstock V. Crawford. 3 Wall, 396. 2 Saxton v. Chamberlain, 6 Pick, 422; Field v. Hitchcock, 14 Pick. 405. 3 Elliott v. Pearsal, 1 Pet. 328; Jennison v. Hapgood, 7 Pick. 1; Groff v. Groff, 14 S. & R. 184 ; Down- ing's Estate, 5 Watts, 90; The Aurora, 1 Wheat. 96; Goodricli v. Tliompaon, 4 Day, 215. * Noel v. Wells, 1 Levinz, 235. S Bates v. Delcvan, 5 Paige,' 310; Weston v. Weston, 14 Johns. 428; Griffith Frazier, 8 Cranch, 14. 6 Johnson v. U. S., 5 Mason, 425. 136 The Law of Estoppel. and made her final settlement under a decree of a probate court, it protected her from a claim by the United States gov- ernment,^ against the estate some years after the settlement. It has also been held that the payment of money to an executor who had obtained probate of a forged will Avhich was afterwards repealed is a discharge to the party paying it.-^ Since the probate being conclusive evidence of the executorship as long as it remains unrepealed, the debtor would, when he was called upon to pay, have had no defense against the action brought by the executor under the forged will. Sec. 131. Mr. J. Buller said in Alter v. Duncans, 3 T. E., 125, the question naturally rises and to be considered is what is the efiect of a probate ? It has been contended by counsel, that it is not a judicial act, and secondly that it is not conclusive. But I am most clearly of the opinion that it is a judicial act, for the ecclesiastical court may hear and examine the witnesses on the difierent sides, whether a will be or be not properly made. That is the only court that can pronounce whether the will is good, and the courts of com- mon law have no jurisdiction over the subject. Secondly, the probate is conclusive till it is repealed, and no court of common law can admit evidence to impeach it. Then this case was compared to a probate of a supposed will of a living person, but in such a case, the ecclesiastical court have no jurisdiction, and their probate can have no effect ; their jurisdiction is only to grant probate of the wills of Dead persons. The distinction in this respect is this, if they have jurisdiction, their judgment, as long as it stands unrepealed, shall avail in all other places ; if they have no jurisdiction, their whole proceedings are a nullity, and inasmuch as " if a testator be circumvented by fraud, the testament loseth its force," and that may be set up in objection to the grant of probate of that part of the will which is effected by the fraud. It was in a highly interesting case, Allen v. McPher- son, 5 Beav. 469 ; on appeal before the Lord Chancellor, 1 Phil. 133 ; and 1st. House of Lords cases, 191, been held 1 U. S. V. Primrose, Gilp. 58. 2 Allen V. Dundas, 8 T. R., 125. Judgments in Rem. 137 that after a will and codicils had in a contested suit, been admitted to proof in the ecclesiastical court, the court of chan- cery had no jurisdiction either to set aside one of the codi- cils, for fraud alleged to have been practised upoulhj testa- tor, or to declare the persons who had been guilty of the fraud, and to have reaped a benefit for themselves by indu- cing the testator to alter his will in their favor ; trustees for the persons they induced the testator to cut olf. Their opin- ion seemed to have been in that case, that independently of the prior determination in the ecclesiastical court, the court of chancery had no jurisdiction in the matter. So a decree or decision in an action in a Probate Court in regard to which of two parties are next of kin, and the court finds that one of them is next of kin and issues letters of administration to that one, the decree will be conclusive evidence of the rela- tionship of the parties in any other court for a distribution of the estate.^ Another well settled principle of law is that the grant of letters testamentary or of administration, are not notice in foreign states or countries, nor are probate pro- ceedings of states recognized in another with any thing like the degree of conclusiveness that they have in the state from whence they emanate. In fact they have no effect whatever in other states, and an administrator or guardian will not be recognized as a party beyond the territorial jurisdiction of the court from which he derives his powers. He is not even permitted to bring a suit jointly with a domestic administra- tor,'^ and in the case of Dixon's Exr's. v. Ramsay's Exr's. Chief Justice Marshall stated that it was on these grounds, " all rights to personal property are admitted to be regulated by the laws of the country where the testator lived ; but suits for those rights must be governed by the laws of that country in which the tribunal is placed. Sec. 132. No man can sue in the courts of any country, whatever his rights may be, unless in conformity with the rules prescribed by the laws of that country.^ But there 1 Barr v. Jackson. 1 T. & C. 21 Eng. Chan. 585 ; Thomas v. Ketterinck, 1 Ves. sr. 333. 2 Dickenson v. McGraw, 4 Rand. 158. *l Trecotthick v. Austin, 4 Mason, 35; Story Conflict of Laws, 431, note 2. 138 The Law of Estoppel. are of course some qualifications to this rule, not in fact denying the validity of the general rights and acts of a foreign executor or admiustrator arising under the lex loci, but only when he goes abroad to act, sue, or be sued, that he is regard- ed as with<9ut power. While his title is complete under his foreign letters, he can bring an action (in another state as the personal representative) for trover,^ voluntary payments to and receipts by him are conclusive. A recovery by a foreign administrator, is a bar to an action here, by a domestic ad- ministrator for. the same demand, and there is no distinction between administrators, &c. in the various states and foreign ones ; the same rule applies, in both instances. In some of the states administrators and executors are allowed to sue, but where a domestic executor or administrator is appointed he takes precedence over a foreign one ; but it is well settled that a probate of one state cannot be received as such to effect the title to land in another. This is on the ground of the lex loci^^ it is strange that it should be so when the constitution of the United States expressly says full faith and credit shall be given to the records, public acts and judicial proceedings of other states.^ In Bush v. Sheldon, a sale of land under a decree of the probate court, for want of personal estate, was held unimpeachable by the heir in an action of ejectment, because he was a party in the probate court, and a decree of a probate court establishing a will is conclusive not only to the per- sonal but to the real estate, the power given to the court being the same in both instances. Independent of the modi- fications made by the statutes of the various states in regard to the various tribunals of which we are now treating, (and there are in all the states in the union courts created by statute having jurisdiction of the real and personal estate of decedents.) Their decrees are conclusive, and no court can impeach them until they are reversed, or set aside by appellate courts. Such courts being creatures of the statute or sjDecial lAkjms V. Smith, 2 Atk. 63; Doolittle v. Lewis, 7 Johns. 49; Stevens V. Gaylord, 11 Mass., 264. 2 McComick v. Siillivant, 10 Wheat. 192. 3 Stevens V. Gaylord, 11 Mass., 264. Judgments in Rem. I39 enactment, they are treated as inferior courts or courts of limi- ted jurisdiction, and in pleading their decrees, jurisdiction must be shown, and when once shown to have attached, they are effectual and conclusive until annulled (hi appeal, and cannot be impeached collaterally.^ In New York it has been held that the recital of the presentation of an account in a sur- rogate's order is insufficient. The fact of its presentation must be affirmatively shown. So where there are irregularities in granting letters of administration, the court having juris- diction of the subject matter and person, thereby being fully empowered to act by refusing or granting such letters. A person so appointed becomes the administrator de facto ; the regularity of his appointment cannot be questioned, in a collateral proceeding it must be held conclusive excejjt in a direct proceeding for reversal.'^ The execution of an ad- ditional bond estops both the principal and surety from con- troverting the probate court's jurisdiction in any proceeding or action. The sureties have no more right than the principal to deny assets. Because, by their bond, they are bound by the acts of the administrator co-extensively with his liability and cannot deny assets ; for the recital in the bond shows that there were assets. Sec. 133. As to the effect of the decree of a spiritual court in estopping the parties to the suit, with respect to a ques- tion incidentally determined therein upon opening up the same question in another court, in a suit having a different object, much discussion arose in the case of Barrs v. Jackson.^ In that case the Lord Chancellor Lyndhurst, reversmg a de- cretal order of the Vice Chancellor, held that a judgment of an Ecclesiastical Court, in a suit for administration turn- ing upon the question of which of the parties was next in kin to the intestate, to be conclusive upon that question in a subsequent suit in a court of chancery, between the same parties for distribution. The judgment was based upon the ground that the House of Lords had decided : that the court 1 Brown v. Lanman, 1 Conn., 467; McPherson v. Conliff, 11 S. & R., 422; Scott V. Hancock, 13 Mass. 166; 14S.&R.181. 2 Wright V. Walbaum, 39, 111. 355. 3 1 Young & Collyer, 20 Eng. Chancery. 583. 140 The Law of Estoppel. of chancery, in exercising its concurrent jurisdiction as to distribution, was concluded by judgments of the spiritual courts in granting administration, and not at liberty to re- examine the points decided in their peculiar jurisdiction. The principles laid down in the judgment of the Vice-Chancellor are, however, wholly untouched by the reversal, and that judgment presents a very full and clear statement of the law of estoppel by adjudication in a former suit, considered with reference to the conditions of its operation. The Vice-Chan- cellor proceeded, after a discussion of the leading English authorities, to state his opinion of the law as derived from those and other authentic sources to be, that "generally a judgment neither of a concurrent or exclusive jurisdiction, is (whether receivable or not receivable) conclusive evidence of any matter which came collaterally in question before it though, within the jurisdiction, or of any other matter inci- dentally cognizable, or of any matter to be inferred by argu- ment from the judgment (after citing numerous cases to il- lustrate the injustice and absurdity of holding deci- sions upon facts in proceedings inter partes to be conclusive upon the parties for all purposes) his honor proceeded to say: " Lord Ellenborouo:h certainlv, and the Court of Kiuir's Bench, in Outram v. Morewood, decided most accurately, with reference to the pleadings in that action at common law, and that an allegation on record upon which issue has been once taken and found, is between the parties taking, it conclu- sive, according to the finding thereof, so as to estop them respectively from litigating that fact once so tried and fomid. The action, however, in Outram v. ^ Morewood, raised as to the same property, and for the same purpose, the same issue as was raised and tried in the action, the judg- ment wherein was pleaded. There are material points of distinction between the system of pleading in the English courts of common law and those of other courts of justice. But it is, I think, to be recollected, that the rule against re- agitating matter adjudicated, is subject generally to this re- striction; that however essential the establishment of particu- lar facts may be to the soundness of a judicial decision; how- ever it may proceed on them as established, and however Judgments in Rem. 141 binding and conclusive the decision may, as to its immedi- ate and direct object be, those facts are not at all necessarily established conclusively between the parties, and that Holmes v. Ferguson, 1 Oregon, 220. Recitals. 259 ing the existence of that fact.^ So an executor is estopped from denying the recitals of a deed made by him, as to his having taken the oath of oHicc and received h'ttcrs tcslumen- tary.- A recital of title in a deed is binding upon the grantor. But a recital in a conveyance under whi^ a party claims, cannot estop the grantor from claiming under an older conveyance or a paramount title. A grantor is estopped by his deed from denying that he had any title in the thing granted. But where a grantor is acting officially as a public agent or trustee the estoppel does not apply. Sec. 236. While a delivery is essential to the perfection or completion of a gift, a recital under seal, that the thing given was delivered, will estop the donee and those claim- ing under him from disputing the title of the donee on the ground that possession did not accompany the deed.'^ Where tenants in common join in a deed, each is only bound to see that his own title is recited correctly, and they will not be estopped from showing any error or mistake that may have been committed in setting up the title of the others.* Ordinarily a seal is requisite to give rise to the presumption that a recital or stipulation is intended to be conclusive, and estop the parties from contradicting it in pleading or in evidence.^ But when a fact is specifically set forth by one of the parties to a simple contract, and constitutes the cause or inducement upon which the other relies, the former will not be permitted to controvert it, after the contract has been wholly or partially performed by the latter, or where no adequate compensation can be made for the resulting injury. The estoppel in such a case is equitable rather than a legal one, and cannot ordinarily arise, unless the party who relics upon it was ignorant of the truth and deceived by the false or erroneous allegation. Sec. 237. When both parties claim under the same grantor, the covenants or recitals in the deeds constituting the claim of title under which each holds, will, so far as they 1 Simson v. Eckstein, 22 Cal. 580. 2 Larco v. Casanuvcma, 30 Cal. 560. 3 NewcU V. Newell, 34 Miss. 385. 4 Sunderlein v. Struthers, 47 Penn. 411. 5 Davis V. Tyler, 18 Johns. 490. 260 The Law of Estoppel. enter into and qualify the grant, be evidence for or against the other that cannot be contradicted as long as the grantor's title is the only one in question and no estate has been de- rived from any other source. The recital of a particular fact aflfecting the title conveyed by a deed is confessedly conclu- sive on all who derive title subsequently from the grantor.^ Estoppels by recitals in deeds are, in some respects, as effect- ual as if they were actual warrantees. Thus, where the deed of a grantor recited that certain conveyances had been made to him, he could not afterwards deny that they had been made; nor could one deny this who claimed under such grantor.'- If a party convey land, and in his deed describes it as bounded by a street, he is estopped to deny the exis- tence of such a street, or that the grantor might use the same in connection with the land granted.^ But the decis- sion were based in the above cited cases, upon the fact that the grantor was, at the time of making his deed, the owner of the adjacent land described as the street or way.^ Where the party solemnly admits a fact by a deed under his hand and seal, he is estopped not only from disputing the deed it- self, but every fact which it recites.^ But if a deed be made by several owners of an estate in common, whatever recital as to title it contains, estops each grantor as to his own in- terest only, and not as to the title of his co-grantors.*^ A stranger to a deed can never set up the recital therein, by way of estoppel as against a party to the deed.*" Sec. 238. A specific recital that the grantor in a deed has a good and sufficient title, or is possessed of the estate 1 Van Rensselaer v. Kearney, 11 Howard, 297. ■2 Kingsman v. Loomis, 11 Ohio, 475; Hangeley v. Spring, 28 Me. 142; Far- var V. Cooper, 34 Maine. 401; Denn v. King, Coxe, 432; Doe v Howell, 1 Houst. 183. 3 Parker v. Smith, 17 Mass. 413; O'linda v. Lathrop, 21 Pick. 292; Farns- worth V. Taylor, 9 Gray, 162; Rodgers v. Parker, 9 Gray, 445. 4 How V. Alger, 4 Allen, 210; Livingston v. Mayor, 8 Wend. 85; Bellinger v. Burial Ground Soc., 10 Penn. St. 137. 5 Stow V. Wyse, 7 Conn. 214; Greene v. Clark, 13 Verm. 158; Sagory v. Primm, 3 Mo. 373; Dougla.ss v. Scott, 5 Ohio, 199; Van Rensselaer v. Kear- ney, 11 How. 532; Clark v. Baker, 14 Cal. 629. 6 Sunderlin v. Struthers, 47 Penn. St., 423. 7 Allen v. Allen, 45 Penn. St. 573. Recitals. 2G1 which the deed purports to convey, estops him from denying the fact thus annexed in a subsequent action or proceeding ao-ainst the ffrantee.^ Recitals in an instrument are evidence against the party making them, but when immaterial to the instrument, or when the action is not founded on tk» instru- ment but is wholly collateral to it, the recitals work no es- toppel.'^ In an English case it was held that a party to the instrument is not estopped in an action by the other party, not founded on the deed, and wholly collateral to it to dis- pute the facts recited, although the recitals would be in evi- dence.^ Where, in a deed conveying an unconfirmed claim to land, without any warranty of title, both parties recite that grantors are the owners of the claim, as the only sur- viving heirs and devisees of the assignee by purchase, from the original claimant, they are estopped from denying the truth of such recitals.^ So where a guardian of a i;)erson non compos sold certain real estate belonging to his ward under a license of court and conveyed the same with cove- nant that he was duly authorized to sell the granted premi- ses; it was held that the guardian was estopped by such covenant, from setting up a claim in his own right to any portion of such real estate under a previous conveyance to him in his own right.^ Sec. 239. If a deed of conveyance, expressly or by neces- sary implication, affirms or recites that the grantor has and conveys a fee simple in the land, his heirs are estopped from denying that he had that estate and passed it by the deed to the grantee.*^ But where a principal gives his agent a power of attorney to sell certain land, and the agent exceed his authority and sells land not included or described in the. authority given him in the power of attorney. The princi- pal in selling other land is not estopped by the recital in his 1 French v. Spencer, 21 Howard, 118; Kearny v, Van Rennsalaer, 11 Id. 325; Smith V. Pendleton, 19 Conn. 107; Hassell v. Walker, 5 Jones, 270; Root v. Crook, 7 Penn. 318. 1 Reed v. McCourt, 41 N. Y. 438. 3 Champlain, &c. v. Valentine, 8 Mees & Welsby, 209. 4 Glamorgan v. Greene, 32 Miss. 285. « 6 Heard v. Hall, 16 Pick. 457. 6 Van Rennsalaer v. Kearny, 11 Howard, 297. 262 The Law of Estoppel. deed of a portion of the boundary, describing it as sold by his agent, from denying the agent's authority to make the deed.i So a recital in a deed that a mortgage exists, does not estop the grantee from relying upon a defence to its va- lidity, that there is only one witness to its execution, or that part of the amount has been paid.'^ But an assignee of prop- erty for the benefit of creditors, is estopped from denying that persons who are named in the assignment, as creditors of the assignor, are such creditors.'^ A recital in a deed that fom'teen acres is all the land conveyed, estops a party deri- ving his title from such deed, from claiming more than that quantity of land.* Sec. 240. A recital in a deed of release that a lease was duly executed and delivered may be conclusive upon subse- quent creditors and purchasers and estop them from alleging that the conveyance failed from the want of an estate in the release ; but they are estopped from showing that the deed was voluntary when it contains a recital that it was made for a valuable consideration; so a declaration that the grantor has a good title or was seized in fee, may be disproved by the grantee or a third person, although it may enlarge the scope of the deed and bring an after acquired estate within its operation. A statement in a grant of one tract of land with regard to another cannot estop a subsequent purchaser of the former in any controversy that may arise with regard to the latter. Sec. 241. A grantee who accepts a conveyance reciting a prior lease or mortgage is not allowed to impeach the title of the lessor or mortgagor, on any ground that would have been open to the grantor, unless it can be shown that there is not a better title, but that it is vested by conveyance or descent in him.'' Where a covenant or recital in a deed to one man is so worded as to induce a third person to adopt a 1 Rice V. Savernier, 8 Min. 248. 2 Thompson v. Morgan, C Minn. 292; Briggs v. Seymour, 17 Wis. 255; Farm- ers L. & T. Co. V. Conn. Bank, 15 Wis. 424. 3 Grundy v. Vivian, 17 Wis. 436; Geisse v. Beal, 3 Wis. 367; Jones v. 'Jones, 20 Iowa, 388. 4 Jefferson v. Howell, 1 Hueston, Del. 178. 6 Addison v. Crow, 3 Dana, 271; Ward v. Mcintosh, 12 Ohio State. Recitals. 2G3 course from which he cannot recede without injury, there is sufficient privity to give rise to an estoppel.^ In regard to wills, an heir cannot take under and in hostility to the will. If he claim under the will, he must give it efiect so far as in his power, and a party claiming through deedsijathich re- cite a will is estopped from denying its validity and genuine- ness.'^ So a recital in a will that the testator had executed a deed to the defendant, was evidence against the testator's heirs of a perfect execution of such deed, and of title in the defendant.-' So where A. accepted a grant confirmatory of a will devising him a remainder, the grantee was estopped from setting up any title inconsistent with the will.' Sec. 242. The effect of recitals in deeds was considered in the case of Douglass v. Scott. One Massie made a deed to the heirs of one Montgomery, who had entered under an agreement for a deed, and died in possession of the land. The heirs conveyed to Kerr by deed, with warranty, reciting the patent to Massie, and Massie's deed to them. Kerr entered under this deed. Massie never received his patent, and having died, it was issued to his heirs. Douglass, prior to 1816, obtained a judgment and creditor's lien on the land against Kerr, which, being kept alive, he sold the land in 1821, and acquired a title under this sale. In 1816, Kerr mortgaged the estate, and in his deed recited the title by patent in Massie, the sale by Massie to the Montgomery heirs, and their conveyance to him. The land was sold under this mortgage and purchased by Scott, in 1823. Kerr released to him, as did the trustees of the heirs of Massie, to whom the patent issued. The deed from Massie to the Montgomery heirs was invalid for want of proper execution. Douglass brought a bill in equity to quiet his title. The court held : "That the obligation created by estoppel not only binds the party making it, but all persons privy to him, — the legal representatives of the party, — those who stand in his situation by act of law, and all who take his 1 Water's Appeal 35 Penn. 523. 2 Jackson v. Thompson, GCowcn, 178. SSniitli V. Wait, 4 Barh. 28. 4 Jackson v. Ireland, 3 Wend. 70. 264 The Law of Estoppel. estate by contract entered into in his stead, and are sub- jected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate, it be- comes a muniment of title, and all who afterwards acquire the title, take it subject to the burden which the existence of the fact imposes on it." They held, that Douglass acquired the legal title of Kerr by the sale under the judg- ment, and that the recital in Kerr's deed from Montgomery's heirs, that Massie had received a patent and had conveyed the estate to them, was one upon which Kerr had a right to hold them bound, as an admission of the factby which, as a party to the deed, he was himself bound, and that Kerr's assignee, claiming under him, was alike concluded ; that the land was patented to Massie, and conveyed by him to the Montgomery heirs, was proved by their admission while they were owners and were disposing of the estate, "upon which all persons deriving the title under them have a right to rely, and which conclude all persons to whom their estate is transmitted," and, "that neither party, deriving title through this deed, are at liberty to question these facts."^ The recital in a patent of a prior patent, being a recital of a particular fact directly affirmed, estops one claiming under it from denying the existence of such prior patent. Wherein a deed conveying an unconfirmed claim to land, without any warranty of title, both parties had recited that the grantors in the deed were the owners of the claim as the only survi- ving heirs and devisees of the asignee by purchase from the original claimant, they are estopped from denying the truth of such recitals." The recitals of a deed estop only parties and privies. In Missouri it is held that the recitals in a deed by which a married woman purports to convey her title to land, do not estop her nor those claiming under her from asserting the truth against the recitals.^ Sec. 243. The date of a deed may be contradicted, as 1 Washburn on Real Property, 1 Douglass v. Scott, 5 Ohio, 194; McClcskey V. Leadbotter, 1 Ga. 551; Den, v. Brewer, Coxe, 172; Den. v King, Coxe, 432; Kinsman v. Loomis, 11 Ohio, 475 - Glamorgan v. Greene, 32 Mo. 285. 3 llemp.stead v. Eassou, 33 Mo. 143. Kecitals. 2G5 not being essential to its operation, and as a general thing is not intended to be within the conclusion of a seal. But when the eflect of its contradiction would be to vary the effect of the instrument or defeat any right which it was meant to confer, it becomes a recital which beciitties con- clusive and cannot be denied.^ So where a covenant is made the basis of a deed or agreement, it is as conclusive as a positive averment or recital — as, for example, a description of the land conveyed by a deed as bounded by a road or street estops the grantor from denying the truth of the description, whether the way is set forth as already there or is to be laid out and opened. The object in both instances is to give certainty to a grant, and a contrary allegation would contravene, and might defeat the intention of the l^arties.'^ There are a few exceptions to the effect given to recitals in deeds, one of which is in the case where the deed containing the recital is, upon its face, a void one. There it does not work an estoppel.'^ Or if it be inoperative from any cause, as for want of proper execution, even if it eon- tain covenants of warranty. ' And though a party claiming title under a deed is barred by the recitals in such deed, he may show that the deed in which they are contained is inoperative, defective, and void.^ Another is, where the other party who would enforce the estoppel, proposes to go behind the deed which contains the recitals, to defeat it. As where one holding a mortgage took a deed of release from the mortgagor, reciting that its object was to cancel the mortgage, and a third person claimed title to the same land through an attachment laid upon it between the date of the mortgage and that of the deed of release, the grantee in such deed of release was permitted to show that he still 1 Kimbro v. Hamilton, 2 Swan, 190; Dyer v. Ritch, 1 Met. 180; Curdy v. Eggleston, 11 Mass. 282. 2 Parker v. Smith, 17 Mass.; O'Linda v. Lathrop, 21 Pick. 291; 2 Gray, 271. 3 Sinclair v. Jackson, 8 Cow. 687; Wallace v. Miner, 3 Ohio, 366; Concord Bank v. Bellis, 10 Cush. 276; Lowell v. Daniels, 2 Gray, IGl; Cuthbertson V. Irving, 4 H. & Norm. 75i. 4 Patterson v. Pease, 5 Ohio, 190. 6 Blake v. Tucker, 12 Verm. 39. 266 The Law of Estoppel. held imder the mortgage by an agreement with the debtor to await the result of the attachment.^ Sec. 244. The estoppel in general extends to all the facts recited in the deed. But an exception to the conclusiveness of recitals in a deed has been allowed in the case of the re- citals of the amount of the consideration and the fact of its payment. The grantor in a deed conveying in fee simple, acknowledging the receipt of the consideration, is not es- topped from showing a dilierent consideration from that ex- pressed in the deed.- If the deed recite that the considera- tion Avas paid by a hus'^and and wife, parol evidence is ad- missible to show that the money consisted of a legacy given to the wife.3 jj^ England the recital is regarded as conclusive evidence of payment, binding the parties by the estoppel.* But the general practice in the American courts has been to treat the recital of the amount of the money paid, like the mention of the date of the deed, the quantity of the land, and other recitals of quantity and value, to which the atten- tion of the parties is supposed to have been slightly directed, and to which therefore the principles of estoppel do not apply ; while the party is estopped from denying the con- veyance, and that it was for a valuable consideration, yet the weight of the American authorities is in favor of treating the recital as only prima fade evidence of the amount paid in an action of covenant by the grantee to recover back the consideration, or in an action of assumpsit by the grantor to recover the price which is yet unpaid, with the exception of the states of North Carolina' and Louisiana, it is the univer- sal rule of the American courts. In Tennessee a grantor is estopped by the recitals of the deed from denying the con- sideration expressed in the deed ; he is not estopped from proving that there were other considerations than the one ex- pressed in the deed ; it only estops him from denying that there was any consideration,'' and this though the deed is 1 Crosby v. Chase, 17 Maine, 369. 2Rabsuhe v. Lack, 35 Mo. 316. 3 Doe V. Statham 7 D. & Ry. Ill ; Shelly v. Wright, Willes 25. 4 Sampson v. Corke, 5 B. fe Aid. 606 ; Rountner v. Jacob, 2 Taunton, 141. BMcndenhall v. Parish, 8 Jones 105 ; Hudson v. Cutcher. Id. 285. 7 Perry v. R. R. Co. 5 Cald. 138. Recitals. 2G7 not stated to be upon other considerations.' Where a deed conveying personal property acknowledges the receipt ot the purchase money, this recital may be contradicted and ex- plained by parol evidence, which shows that the money has not in fact been paid. But such evidence cannotndfect the legal import of the deed.'- The grantor is estopped to deny a resulting trust in his favor, or to deny that the deed was executed for the purposes expressed in it."^ Sec. 245. An officer's deed of sale under execution, is not evidence of the matter recited in it against strangers, and least of all, as against those claiming adversely to it.-* In a suit on a delivery bond, the return of the officer made in the original suit in relation to the disposition of the prop- erty is conclusive upon the parties ; a return to an execution is always conclusive against the officer making it, but as agjiinst other parties it is generally prima fade evidence of the facts which it recites. Where a sheriff returns anything as a fact, done in the course of his duty in the service of a precept, it is conclusively presumed to be true against him, and he is estopped from denying it. Sec. 246. A statement in one transaction will not be binding in another which it was not designed to influence, and to render an admission binding on the right sought to be enforced, it must have been acquired on the faith of the admission. A recital in a deed, that the consideration was pecuniary, or that it has been paid may be conclusive on a suit brought on the deed itself, or for the price of the land conveyed, but is open to contradiction when the title to other land is involved or in a proceeding instituted to test the question whether the grant was not voluntary and intended as an advancement by the grantor.'^ Estoppels are founded on intention, and are limited by it, and cannot ex- tend to objects which the parties can not reasonably be supposed to have had in view. A recital may therefore be 1 Powell V. Brimfield Mfg. Co. 3 Mason, 347. 2 Taggard v. Stanberry, 2 McLean, 543. 3 Kimball v. Walker, 31 111. 492. 4 Donahne v. McNulty, 24 Cal. 411. 5 Henion v. Gushing, 11 Ohio State, 329; Rockhill v. Sprigg, 9 Ind. 30. 268 The Law of Estoppel. an estoppel for some purposes and not for others.^ Thus, while the consideiratiou set forth in a deed cannot be im- peached or its payment denied, in order to defeat the opera- tion of the instrument as a conveyance, or operate to raise a resulting trust, it may, notwithstanding, be impeached so as to increase or reduce the amount or nature by parol evi- dence or the receipt given for it be contradicted in an action brought by the grantor for the price, or against him on the covenant for title. - Sec. 247. A party to the deed is not estopped in an ac- tion by another party not founded on the deed, and wholly collateral to it, from disputing the truth of certain facts recited and set forth in such deed.'^ When a recital in a deed is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But where it is intended to be the stq^te- ment of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the whole instrument.^ As between the parties themselves, any averment of a fact made by one of the parties in the nature of a warranty to the other, may be contradicted and shown to be false by that other. If a deed of assignment, for example, recites that the assignor is possessed of some estate or interest, such as a lease, or a patent right, and then proceeds to assign such estate or interest, and the assignee, in consideration of the assignment, enters into certain cove- nants upon which an action is brought, the assignee is not estopped from showing that the recital was false, and that no such estate or interest was vested in the assignor, and trans- ferred by virtue of the deed.^ But the assignor himself, who makes the averment, would not be permitted to con- tradict or dispute the fact recited.*^ If a lease, however, 1 Young V. Raincock, 7 C. B. 310. 2 Farrington V . Barr, 36 N. H. 86; Hammond v. Woochman. 41 Me. 177; Kawle Gov. 65, 462. 3 Carpenter v. Bullen, 8 M. & W. 209. 4 Stronghill v. Buck, 14 Q. B. 787; Niles v. Woodward, 5 Exch. 557. 5 Hayne v. Maltby, 3 T. R. 44; Vin. Abr. Estoppel, M. 465. 6 Oldham v. Langmad, 8 T. R. 439; Humble v. Hunter, 12 Q. B. 310. Recitals. 269 recites that the lessor is possessed of real or personal prop- erty, the lessee who executes and accepts such lease is estop- ped, as we have previousl}'' seen, during the continuance of his occupation, from denying the title and possession of his lessor at the time such lease was executed.^ ^_ Sec. 248. The same principle which has created an estop- pel in certain cases where none would have existed at law, has, in others destroyed that which the law could have created ; for as an estoppel will be called into being for the prevention of fraud, so it will be suppressed when fraud will be produced by its existence.^ This is a well es- tablished principle in courts of equity, but has been applied reluctantly in courts of common law and it has become a well established principle, that while the general estoppel of admissions under seal continue so far as to forbid an at- tempt to avoid the operation of a deed as a conveyance, by de- nying the consideration,^ it no longer exists in a suit brought for the purchase money, or to enforce the fulfilment of collater- al stipulations contained in the instrument. In all such cases, the general operation of the deed being left untouched evi- dence may be given to vary the consideration both in amount and character,* or to show that it was not paid in opposition to a recital iu the instrument or the accomjianying receipt that it was f and the deed held conclusive at law of the nature of the consideration, although not that it was paid,^ and liable to be impeached in equity on the ground of fraud, '^ the real consideration may be shown to be natural love and affection, while the deed purports to be made for value or a sum certain set forth on its face,^ while the deed is the 1 Beckett v. Bradley, 8 N. H. 843. 2 Pendleton v. Richey, 32 Penn. 58. 3Farrington V. Barr, 36N. H. 86; Wiett v. Franklin, 1 Bin. 562; Grant v. Townsend, 2 Hill, 557. ^Goodspeed v. Fuller, 46 Me. 141 ; Jones v. Jones, 12 Ind. 389 ; Harrison v. Cashier, 11 Ohio, 883 ; Holbrook v, Holbrook, SO Vt. 532 ; Swafford v. Whip- pi^, 3 Iowa, 261. 5 Reynolds v. Wilas, 8 Wis. 471 ; Harwell v. Fitts, 20 Geo. 723 ; Vaugner v. Taylor, 18 Ark., 65 ; Hair v. Lyttle, 28 Ala. 236 ; Hill v. Perry, 3 Jones, 679 ; Belden v. Seymour, 8 Conn. 210 ; Buckley's Appeal, 48 Penn. 494. "Shepardv. Little, 14 Johnson, 210. 7Hildreth v. Sands, 2 Johnson, Ch. 35 ; Morse v. Shattnck,14 N. H. 229. SRockhill V. Sprigg, 9 Ind. 30 ; Harrison v. Castner, 11 Ohio, § 339. 270 The Law of Estoppel. execution of the contract of sale, it is not the contract, the object of the deed being to transfer the title to the purchaser and not to state the terms of the purchase.^ The estoppel will therefore be limited as in other cases, to the olyect the parties have in view, and ^Yi\\ not extend to other and collat- eral matters, forming part of the same transaction. There could be no greater wrong inflicted than in treating formal receipts introduced into conveyances for the benefit and convenience of grantees in order to facilitate the transfer of the title to subsequent purchasers, as conclusive evidence, in opposition to the truth of the case and understanding of the parties.'- But in Maryland the stringent common law rule still prevails ; the consideration cannot be disproved by parol evidence or sho^\^l to difier from the description given of it in the deed.^ The estoppel arising from recital of the nature or judgment of the consideration is ordinarily confined to the parties and does not extend to third parties as credi- tors, or to the heirs of the grantor.^ But where a grantor who has put a deed upon record in which there is a recital that the consideration was paid, or acknowledging the re- ceipt of it will be estopped from showing that it was not paid as against third persons who have given credit or taken a conveyance in rehance upon the admission or acknowledge- ment of the receipt of such consideration contained in the deed,^ and a recovery of a purchaser on a warranty con- tained in a grant to the vendor, cannot be reduced below the amount set forth in the deed as having been paid by the grantee.*' A recital in a deed that the purchase money had been paid was held conclusive on the grantor in favor of subse- quent judgment creditors who might reasonably be supposed to have been influenced by it in trusting the grantee or giv- ing him time.^ 1 White V. Miller, 22 Verm't, 380 ; Bolles v. Beach, 2 N. J. 680 ; Winana v. Peebles, 33 Barb. 371 ; Thompson v. Thompson, 9 Ind. 323. 2 Eckels V. Carter, 26 Ala. 568 ; Collins v. Tillyou, 26 Conn. 368 ; Lindsay v. Lovely, 26 Verm't, 123 ; Dickinson v. Kelly, 3 Blackford, 189. 3 Small V. Baxter, 2 Md. Ch. 454 ; Ellenger v. Cromell, 17 Md. 367. 4Meeder v. Meeder, 6 Conn. 83 ; Rockliill v. Sprigg, 9 Ind. 30. 5 Work V. Brayton, 6 Ind. 396 ; Waters' Appeal, 35 Penn. 503. 6 Hunt V. Crary. 17 111. 73 ; Greenwault v. Davis, 4 Hill, 643. 7 Waters' Appeal, 35 Penn. 523. Kecitals. 271 Sec. 249. So a man may be estopped by a matter of writing, which is not of record. An admission under seal is conclu- sive upon the obligor and estops him from asserting or proving to the contrary. Thus if a condition in a bond recite that a particular suit is pending in the Court of the Kind's Bench, the obligor is estopped from saying there is no such suit there. ^ So if the condition of a bond be to perform the cov- enants in a particular indenture, the obligor is estopped by his deed from saying that there is no such indenture. Where a distinct statement of particular facts is made in recitals in a bond or other instrument under seal and a contract is made with reference thereto, it is not competent for the parties bound by the deed to deny the recital in an action between them.^ Where a statute requires a bond to be taken in double the value of the thing concerning which it is executed, and the parties voluntarily and without fraud assent to the insertion of a given sum as equal to double the value, they are estop- ped from denying that it is double the true value, there be- ing no pretense or allegation that it was obtained by fraud, oppression or circumvention.^ In a suit upon a forthcoming bond for goods attached, the obligors are estopped from denying admissions made in the bond or controverting their existence. No evidence is needed to prove that there was a levy, the judgment is conclusive evidence of the levy. So if a condition be that he shall pay a sum of money for which he is bound in a particular recognizance, he is estopped from denying that there is such a recognizance. Sec. 250. No one who has bound himself by an instru- ment under seal for the fidelity and good conduct of another in a private trust or public duty, can escape from the liability thus assumed under cover of an allegation that his principal was not duly designated, or elected, or was subject to some legal disqualification which should have prevented him from accepting or administering the office.* Thus in a suit on a sheriff's bond, the defendants are estopped by their own 1 Cro. Eliz. 756. 2 Bonner v. Wilkinson, 5 B. & A. 682. 3 Speake v. U. S., 9 Crauch, 28. * People V. Norton, 5 N. Y. 176 ; Seiplc v. Elizabeth, 3 Dutch, 407. 272 The Law of Estoppel. acknovrletlgment od the bond, from denying that the person described therein as sheriff Avas such at its date, and the hiw will presume that he continued so during the term for which he was elected.^ Where one has voluntarily signed a guar- dian's bond which has been accepted by the probate court he is estopped to set up that the court did not order it made.'^ The sureties in an official bond are estopped to deny the offi- cial character of their principal. And upon a suit brought upon the bond a tax collector and his sureties are estopped to deny his official character therein recited.^ When the principal and surety bind themselves jointly and severally on a bond, although there is no express admission on the face of the instrument that all are principals, the surety is estopped in an action at law that he is principal. The same rule applies in equity unless it is shown that there was fraud or mistake.* The recital in an official bond estops the obligor from denying it, and it is not necessary to produce the com- mission of the officer or a copy thereof In an action upon^ a prison-bounds bond the defendant is estopped to dfeny the existence of such a judgment as that recited, and the plain- tiff need not produce the judgment record.^ Where a bond is given by A. at the request of B., and this fact is expressly recited in their bond, A. cannot question its validity ; he is estopped by his bond, and where parties bind themselves as principals, they are estopped from denying facts which they have solemnly admitted under their seal. Where the owner has a ship which has been attached delivered up to him upon an appraisement, and he gives a stipulation according to the course of admiralty proceedings to refund that value, together with damages, interests and costs, he is not at liberty to in- sist afterwards that the ship is of less value in his hands, or that he has discharged other liens diminishing the value, for 1 Norris v. State, 22 Avk. 524 ; State v. Surgart, Id. 528 ; Edward v. State, lb. 303. 2 Sebastian v. Bryan, 21 Ark. 447. 3 Parker v. Campbell, 21 Tex. 763 ; Burnett v. Henderson, 21 Tex. 585. 4 Sprigg V. Bank of Mt. Pleasant, 10 Peters, 257; same case, 14 Pet. 201; S. C, 1 McL. 178 & 384. 6 Bruce v. U. S., 17 How. 437. 6 Allen V. Magruder, 3 Cranch, C. C. R. 6. Recitals. 273 which the owners Avcrc personally liable in solido in the first instance.^ Sec. 251. Sureties in an undertaking which purports to have been given upon an application to discharge an attach- ment, are estop})ed from denying recitals in the undertaking, which state that an attachment was issued, and that an application had been made for its discharge.^ The sureties in an administration bond are estopped by a recital that their principal had been duly appointed, from denying that the fact was as averred,^ and also in a bond where there was a recital that one of the obligors was sheriff and the others were his deputies.^ In like manner the obligor in a bond, conditioned for the performance of the covenants in an indenture, or the faithful discharge of the duties of an agent, will not be allowed to prove or allege that there is no such deed or agency aa the condition avers.^ In such cases the estoppel is equitable as well as legal, because it would be unjust to permit a person who has aided another to obtain access to a place by a pledge that he will behave himself properly when there, to point out the reasons why he should not have been admitted, after it was too late to correct the error ; and while a recital couched in general terms or relating to past transactions, will not ordinarily operate as an estoppel, no statement can be contradicted which was meant to be a basis of a contract oi conveyance, and is necessary to render it efiectual.^ Sec. 252. A recital or allegation in a title, that A. had purchased out all the rights of his said son in said firm, estopped the complainant from questioning that fact.^ If a vendor states under seal that he has "bargained, sold, and delivered " the property to the vendee, he is estopped in an 1 The Virgin v. Vyfkins, 8 Peters, 538. 52 Coleman v. Bean, 3 Keyes, 94; S. C. 32; How. Pr. 370. 3 Cutter V. Dickinson, 8 Pick. 887. 4 Cox V. Tliomas, 9 Grattan, 312; Cecil v. Early, 10 id. 5 Washington Ins. Co. v. Colton, 20 Conn. 42; Collins v. Mitchell, 5 Fla. 364. 6 Shelley v.Wright, 9 Willes, 11 ; Young v. Raiucock, 7 C. B. 310; Brinnegar v. Chaffin, 3 Dev. 108; Stronghill v. Buck, 14 Q. B. 771; Jackson v. Waldron, 13 Wend. 178. 7 Armstrong v Fahnestock. 14 Md. 56. 18 274 The Law of Estoppel. action of trover brought by the vendee for the property, to deny the delivery.^ A master of an apprentice is estopped by the recital in the indentures as to the age of the boy."- A covenant expressed by way of recital is as obligatory as if expressed in the body of the agree- ment.^ A party giving a receipt for property seized by an officer upon an execution or attachment, is estopped from setting against the officer that the property was his own, or that of any other person than the execution or attachment debtor ; nor can he show that the property was worth less than the debt, which in default of returning the property he covenanted to pay.* His liability to the officer is as broad as his covenant, and is absolute and discharge- able only by act of God or the public enemy. But the obligation ceases to be binding as soon as the goods are surrendered, and leaves the obligor free to show who is the owner, in any subsequent proceeding.^ It is not essential to the estoppel of instruments under seal that the admissions .should be made in terms ; it is sufficient if the intention of the parties is to place the existence of a fact beyond ques- tion or make it a basis of the contract is so clearly expressed, ns to leave no room for doubt. Thus a condition in a bond that one of the obligors shall well and faithfully execute iiis office, as collector, estops him from denying that he held I he office or was bound to discharge the duties with fidelity, although the bond does not recite or allege that he was collector, and leaves that fact to be gathered by implication.'' A recital in a will operates as an estoppel to parties claim- iuo- under it. Where the defendant made a deed stating'^ that he had bargained, sold, and delivered certam personal j)roperty to the plaintiff, he was held to be estopped from .lenying the delivery in ftn action of trover.*^ A receipt 1 Nevett V. Berry, 5 Cranch, C. C. R. 291. - McCutcliin V. Jameson, 1 Cranch, C. C. R. 348. :: Bealle's adm'rs v. Shoals' ex'rs, 1 A. K. Marsh, 475. * Cornell v. Dakin, 38 N. Y. 253. ■■ Norris v. Norris, 19 Ark. 319; Decherd v. Blanton, 3 Sneed, 373. - Billingsly v. State, 14 Md. 3G9. ~ Den V. Cornell, 3 John. Cas. 174. » Newett V. Berry, 5 Crar\ch, C. C. 291. Recitals. 275 that declares, that this receipt shall be conclusive evidence against me, as to the receipt of property, its value and my liability under all circumstances to said officer, estops the receiptor from denying that the property was the debtor's, and the officer, in an action against him by the cTSclitor for refusing to deliver the property attached, to be taken on execution, is estopped from setting up as a defence, that the property did not belong to the creditor but to the receiptor.^ Sec. 253. There is a distinction between the effect of a par- ticular and general recital. It is laid down^ that if the condi- tion of the bond contain a generality to be done, the party shall not be estopped to say that there was not any such thing, as if the condition of a bond be to perform ; all agreements set down by A., the obligor may say that there was no agree- ment set down by A. for the condition is general, or if it be to carry away all the marl in a close, he may say there was no marl there. But in all cases where the condition of a bond has reference to a particular thing, the obligor shall be estopped to say that there is no such thing. The reason of this rule seems to be the same as that heretofore laid down in reference to estoppels by matter of record, that is that an estoppel must be certain." Sec. 254. A mere general recital cannot control the plain words of the granting part of a deed. Where a deed of asign- ment by a debtor, in trust for creditors, recited that the debtor was desirous to convey his property to secure three of his creditors named, in full, and the residue for the bene- fit of his other creditors, and in the body of the deed, the assignment was expressed to be in trust to pay and satisfy those three creditors, and three others named, and the sur- plus divided among his other creditors, it was held that the three creditors named in the recital, were only entitled to be paid ratably with the other three creditors, in propor- tion to their demand out of the proceeds of the property as- signed. The general recital here was of an intention which 1 Brown v. Gleed, 33 Vt. 147; Hill on Torts, 225. 2 In 1 RoUc's Abridgement, Estoppel 872. 276 The Latv of Estoppel. was inconsistent with the plain language of the instrument, and could not control the latter.^ A joint or joint and several obligor, may aver that he is, in point of fact, a surety, and set up any act of the creditor tending to impair the right of recourse for indemnity against the principal as a defence to an action for the recovery of the debt, for the reason that a plea of this kind does not consist in a denial of the terms of the contract, but in showing the existence of certain collateral relations between the parties which the creditor has impliedly sanctioned and is therefore bound to preserve uninjured.'-^ This is especially applicable in equity when the language of an obligor is so clear as to leave no doubt that the oblio-ors intended to be or were meant to be primarily liable, the seal estops any contrary allegation, and a surety who binds himself expressely as principal, and not as surety, is estopped at law and will be precluded in equity from denying that his true character is in accordance with the terms of the instrument.^ Sec. 255. In the absence of any contract as to novelty or usefulness or value of any invention, the recitals in the letters patent granted by the United States, that it is a new and useful invention is conclusive in state courts.* An agreement made with a patentee to manufacture his machines under his patent upon certain conditions mentioned therein, and making and selling such machines under the patentee's title, estops the manufacturer from alleging the invalidity of the patent as a defence to an action by the patentee for an account under the contract.^ 1 Huntington v. Havens, 5 John. Ch. lb. 23. 2 Brook V. Harris, 21 Pick. 195; Stone v. Compton, 3 M. & "W. 583; Bank &c. V. Leavitt, 6 Ohio, 17; Stone v. Bing. N. C. 162; F. & M. Bank v. Rath- bone, 26 Vt. 19; Bell v. Banks, 3 Scott N. R. 503. ■' Sprigg V. Bank of Mt. Pleasant, 14 Pet. 207. I Elmer v. Pennell, 40 Me. 430; Ball v. Murray 10, Penn. 113. ^ Kingsmau v. Parkhurst, 18 How, 289. Title by Estoppel. 277 CHAPTER X. TITLE BY ESTOPPEL. OF THE RULE THAT THE INTEREST WHEN IT ACCRUES FEEDS THE ESTOPPEL. — AFTER ACQUIRED TITLE ENURES TO THE BENEFIT OF THE GRANTEE. — EXCEPTIONS TO THIS RULE. Section 256. The ordinary effect of an estoppel is con- fined to precluding parties from contradicting the recital or admission on which the estoppel is founded, and this is implied from the definition of the word. The most striking instances of an estoppel by deed are where a party without any title to land undertakes to convey it covenanting as to title, and afterwards acquires title to the same land by de- scent or purchase. In such cases, arising on the conveyance of land, it acquires a further and transcendent power which binds the estate and confers a title where none passed origi- nally by operation of the deed. If a grantor's covenant is of warranty and entitles a covenantee to recover for its breach just as much of the covenantor as he, the covenan- tor would recover of the tenants of the covenantee, if he pre- vailed by enforcing his claim to the land, the law to avoid circuity of action, permits the tenant to avail himself of this covenant to rebut the covenantor's claim upon the land, and prevents the grantor from setting up a claim to the estate by his after acquired title.^ Perhaps a more proper mode of stating it would be, that the warranty of the grantor is as if a particular recital or averment had been inserted in his deed, and he was thereby estopped trom asserting its efiicacy.- While an estoppel will not grow out of a recital unless it is direct and precise, and manifests an intention to render the fiict set forth a part or basis of the conveyance or agreement. A recital that a grantor has a 1 Washburn on Real Property. '- Rawle on Gov. for Title. 278 The Law of Estoppel. particular estate or owns the interest which the deed pur- ports to convey, will not only estop him and his heirs from denying what he has thus averred, but will take effect on any title to the land which he may subsequently acquire, and transfer it to the grantee.^ If a vendor has no title at the date of his deed, but acquires a good title afterward, the title thus acquired enures to the benefit of the first vendee by estopi^el.^ So where one conveys lands with warranty, but without title, and afterwards acquires one, his first deed works an estoppel, and passes an estate to the grantee, the instant the grantor acquires his title, not only against the grantor and those claiming under him, but also against strangers who came in after the deed creating the estoppel. Sec. 257. There were two classes of cases in which an estate actually passed by estoppel under the old civil law. The first was where the mode of assurance was a feofi'meut, a fine or a common recovery. Such was their solemnity and high character, that they always passed an actual estate, and divested the feofier or conusor not only of what he then had, but of every estate which he might thereafter, by any possibility acquire.'^ And this principle has been ap- plied in modern times.* The second class of assurances which passed an after-acquired estate by way of estoppel, were leases, which, it will be remembered, were susceptible of taking eifect in futuro ; and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties, the same contract which im- plied a covenant for quiet enjoyment from the word demise on the part of the lessor. And a covenant for payment of the rent from the words yielding and paying on the part of the lessee.'' These modes of assurance seem to have been the 1 French v. Spencer, 21 Howard, 228. 2 Corcoran v. Brown, 3 Cranch. C. C. R. 143; Bush v. Marshall, 6 Howard, 284; Barr v. Gratz. Heirs, 4' Wallace, 215. ■" Shepard's Touch, 204, 210; Co. Lit. 9 a, 49 a; Plowden, 423. 4 Doe d. Christmas v. Oliver, 5 Mann. & Ryl. 202; S. C. 10 Barn. & Cress. 182; Helps v. Hereford, 2 Barn. &. Aid. 242; Doe d. Thomas v. Jones, 1 Crompt. &. Jerv. 528. 5 Bac. Abr. tit. Leases, 296, 441; Rawlyn's Case, 4 Coke, 53; Weale v. Lower, PoUcxfen, 00; Smith v. Low, 1 Atkyns, 490; Trevivan v. Lawrence, 1 Salkeld, 276; Wells v. Austin, 7 Manning &. Granger, 701; McKcnzie v. City of Lexington, 4 Dana, (Ken.) 129. Title by Estoppel. 279 only ones by which an after-acquired title Avas actually passed by direct operation of law under the doctrine of estoppel. Thus a grant or a lease had not this elfect. They only operated upon the estate which the grantor or releasor actu- all}- had, " and therefore if a man grant or rent a Q^rge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the manor, yet he shall hold it discharged,"^ and this applied equally to a release. No other forms of conveyance, in the absence of covenants of warranty, had any effect in transferring the title suljsequeutly acquired. In this country no greater effect is given to a grant or a conveyance by bargain and sale, or lease or re- lease, unaccompanied with convenants of warranty, than in England under the statute of uses. They pass only the estates which are vested in interest at the time, and do not bind or transfer, by way of estoppel, future or contingent estates.'- Sec. 258. Where it distinctly appears, in a conveyance, either by a recital, an admission, a covenant, or otherwise, that the parties actually intend to convey and receive, re- ciprocally, a certain estate, they are estopped from denying the operation of the deed, according to its intent."^ There was then an ordinary and an extraordinary effect attached to an estoppel. The one was personal in its char- acter, like the rebutter in a warranty, and estopped the gran- tor and his heirs from doing or alleging anything contrary to the tenor and effect of his sealed instrument. The other, besides this quality, possessed the high function of actually transferring every estate, present or future, vested or con- tingent, to the feoffee, couusee, or lessee, according as the mode of assurance employed was a feoffment, a fine or a 1 Perldns, tit. "Grant," § 65, "Wivel's Case, Hobart, 45; Touch, 1^40; Lam- pet's Case, 10 Coke, 48. 2 Kennedy v. Skeer, 3 Watts, (Pa.) 98. 3 Goodtitle v. Bailey, Cowper, 559; Doc v. Errington, 8 Scott, 210; Bownan V. Taylor, 2 Adolph & Ellis, 278; Carver v. Astor, 4 Peters, 8G; Kearney V. Van Rcnnsalaer, 11 Howard, 325; Smith v. Pendleton, 19 Conn. 107; McBurney v. Cutter, 18 Barbour, 208; Root v. Crock, 7 Penn. 380; Kins- man V. Loomis, 11 Ohio, 478; Williams v. Presbyterian ^ciety, 1 Ohio State R. 478; Den v. Brewer, Coxe, 172; Ducker v. Caskey, 2 Green's Ch. 449; Fitzhugh's heirs v. Tyler, 9 B. Monroe, 5G1 ; Williams v. Claiborne, 1 Smcdes & Marsh, Ch. 3G5. 280 The Law of Estoppel. lease; and this effect was peculiar to them alone, there being no authority in any of the English books to show that it was produced by any other species of conveyance.^ An estoppel can hardly be regarded as a distinct mode of acquiring real estate, because it is not by itself a transfer or assurance, but depends as a secondary incident upon other direct alienations while it gives to them a peculiar and dis- tinctive operation. Sec. 259. The rule that there can be no estoppel where an interest passes is peculiarly applicable, and in fact derives its operation from estoppel by deed. Thus, while a lessee is estopped from showing that his lessor had no title to the premises demised, yet he may show that he was entitled to a particular estate which has expired. Whether an after acquired interest will pass by the estoppel of a prior convey- ance, depends upon the meaning of the deed as manifested by its language ; and when the intention is to convey the land and not merely the title which the grantor has at the time, an estoppel arises and renders it effectual ; whether the object in view appears from the covenants or recitals in the deed will make no difference if it is disclosed with sufficient clear- ness, and an allegation that the grantor has or agrees to con- vey a good and sufficient title will be equally effectual with an agreement to warrant or protect the right or enjoyment of the grantee. Sec. 260. The effect of a deed depends on its meaning as collected from its language, and whether its operation should be limited to the interest which the grantor has at the time, or extend to that which he may subsequently acquire, will depend on all the recitals and stipulations which it contains, rather than on the effect of any particular clause in the words of grant by which the title is passed or the covenants by which it is assured and fortified. Therefore, any covenant which like that of further assurance or quiet enjoyment indi- cates that the intention of the grantor was to convey the land absolutely, and not merely such title as the grantor had, is as effectual »as an absolute warranty in binding an after 1 Doe V. Olive, 10 Barn. &. Cr. 181. Title by Estoppel. 281 acquired interest in equity (in England) and in (this country) at law, while the limitation of a covenant of warranty or for title may not only restrict its own operation, but afford sround for an inference that the operation of the deed is equally limited ; yet the purpose of the pailies majiimve been that the grant should extend to future as well as present estates or interest, without making the grantor answerable for the goodness of the title conveyed at the time. When such intention is apparent, it should be carried into effect without regard to the manner chosen for its expression. Whenever the terms of the deed or the covenants which it contains clearly show that it was meant to convey an absolute and indefeasible title, and not merely that which the grantor had at the time, it will bind or pass every estate or interest which may vest in him subsequently to its execution, whether the wari-anty it contains be general or special, and although it may contain no warranty whatever. ^ If the seisin or possession of a particular estate is affirmed in the deed either in express terms or by necessary implication, the grantor and all persons in privity with him are estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after acquired title as between parties and privies. By the statute of California conveyances under the statute of uses, where a fee simple absolute is conveyed in land, of which the grantor has no legal estate at the time of making such conveyance, and the grantor subsequently acquires title to the same, the estate so acquired passes at once to the original grantee, creating in him a valid title and estate. And this applies to cases of mortgage estopping the mortgagor, and his privies from setting up against his own mortgagee an after acquired title to the estate. - Sec. 261. Some forms of conveyance operate as an estop- pel against those who make them, from their very nature, as 1 Fairbanks v. Williamson, 7 Greenlf. 96; White v. Erskine, 10 Maine, 360 ; Trull V. Eastman, 3 Met. 121 ; Bean v. Welsh, 17 Ala. 722 ; Wightman v. Reynolds, 24 Miss. 089. 2 Clark V. Baker, 14 Cal. 612 ; Van Rensselaer v. Kearney, 11 How. 322 ; Bogy V. Shoab, 13 Mo. 379 ; Cooke v. Brogan, 5 Ark. 699 ; Frink v. Darst. 14 111. 308 ; Morrison v. Wilson, 30 Cal. 347. 282 The Law of Estoppel. is the case of a feoiruient. Others, as a simple release, have no effect beyond passing or extinguishing whatever interest the releasor has at the time. Others operate l)y way of estoppel, by reason of the covenants as to title they contain. A party to a deed is estopped to deny anything stated in the deed which has operated upon the other party as the in- ducement to accept and act under such deed, and this ex- tends to facts stated in other deeds referred to directly, or by way of recital. Thus, a feoffment, by a person who is not the owner of lands, passes of necessity a fee by wrong or disseisin. It binds the feoffor for life, by estoppel, so that he cannot claim the right, should it descend to him, against his own feoffee. He cannot purchase the fee, since his feoffment is a disseisin. But it is an estoppel only to him personally, and will not bind his heirs. Lord Coke says, there is a diversity between a feoffment and a warranty. A feoffment is good against the feoffer, but not against his heirs ; a warranty is good against one and his heirs. As far as the heir claims as heir, he may be barred by force of the warranty as a rebutter, though not bound by the feoff- ment. Thus,, if an heir apparent makes a feoffinent in the life of his ancestor, of land which afterwards descends to him, he is estopped to set up a title against his feoffee. Sec. 262. A deed of simple release passes only such in- terest or estate as the releasor has at the time, and never operates by way of estoppel to convey any interest which he may afterwards acquire. In order to prevent mainte- nance and the multiplying of contentions, as stated by Lord Coke, it was an estaljlished maxim of the common law, that no jpossibilUy, right, title, or any other thing that was not in possession or vested in right, could be granted or assigned to strangers.^ Thus a simple release by an heir apparent of his chance of succession, though made by deed, will not bar his title when it accrues.^ So one who has a contingent remainder, an interest l)y way of executory devise, or a pos- sibility like that of an heir apparent, even though he may not at common law make a grant of such an interest by deed 1 Co. Lit. 265 a, note, 212. 2 1 Prest. Abst. 302; 2 Prest. Conv. 208. Title by Estoppel. 283 so as to pass the same distinctly, may convey the estate out of which his interest is to arise, in such a manner that this will operate as an estoppel, and prevent his claiming such interest when it arises. Thus equity holds a contract of an expectant heir, who becomes heir de facto, bindiyi^on him, though equity does not extend this to his heir.^ In order to work an estoppel in such cases, there must be either a grant or release, with a general covenant of warranty, or an ex- press affirmation in the grantor's deed of there being an estate such as he assumes to convey.^ The estoppel of a conveyance is founded on the intention which it manifests to convey, and arises whenever the instrument, taken as a whole, =^ shows that the agreement was that the grantee should have a good title and not merely that which the grantor had when the deed was executed. A covenant that any title that might afterwards be acquired by the grantor, should enure to the benefit of the covenantee, was held to bind and pass a subsequent estate immediately upon its acquisition by the grantor, not only as between the parties, but as against all the world. Sec. 263. Where one makes a deed of land covenanting that he is the owner, and subsequently acquires an outstand- ing and adverse title his new acquisition enures to the grantee on the principle of estoppel, and where a person buys land and pays for it, and there is a deed made subsequently to the grantee in consequence of his purchase, it does not con- fer a new title on him but confirms the right which he had before the deed was made,* so one who conveys without title is estopped from claiming it, if he afterwards acquire it. So where one received the legal title of land for the benefit of certain creditors of the owner thereof, he can not afterwards set up any title which would afiect the trust.' A patent is necessary in order to pass a perfect and consummate legal 1 2Prest.Abst. 210; 2 Prest. Conv. 268, 271; Hayne v. Maltby, 3 T. R. 438 Purefoy v. Rogers, 2 Sand. 388 ; Fitch v. Fitch, 8 Pick. 483; Stoven v. Evclesheimer, 46 Barb. 84. •2 White V. Patten, 24 Pick. 324; Wight v. Shaw, 5 Cush. 66. 3 Phillips V. Kellogg, 15 111. 131. 4 Irvine v Irvine, 9 Wallace, 617. 5 Paul V. Oliphaut.U Penn. 342. 284 The Law of Estoppel. title to piilDlic lands. But wlieu granted it enures to any one to whom the patentee is bound to convey the land or for whose iise he ought to hold it.^ Any title subsequently acquired by the grantor who conveys by warranty, will enure to the benefit of the grantee. But grants made by the grantor on conditions or limitations, or estoppels subsequently at- tempted to be annexed to the estate, will not affect his grantee.- If the vendor in a conveyance of land has no title at the date of the deed, but acquires a good title afterwards, the title thus acquired enures to the benefit of the first ven- dee against a subsequent vendee, who claims by a deed made after the title accrued to the vendor, and the vendor and all who claim under him are estopped by his first deed to deny that the vendor had title at the date of the deed.^ Thus where a patent issued to the original beneficiary under a bounty act, who had previously sold and assigned his right, it enures to the benefit of the purchaser, and relate back to the date of the entry. The heir of the grantor, the beneficiary, is estopped from setting up a legal title under the patent. If a person sells land, or an interest of land, and takes pay for it, and covenants for the title, while he has no title and none actually passes, his covenant runs with the land, and estops him whenever he acquires title.^ Thus where a man demised laud, in which he had nothing by indenture, the lease was destitute of effect at the time as it regarded third persons, and only valid between the parties because they were estopped from showing the truth ; but when a term of twenty-one years subsequently vested in the lessor, the estop- pel bound the interest thus acquired and rendered the title of the lessee good against all the world. ^ Sec. 264. In addition to the more usual effect of an estop- pel in precludmg the right to show that the deed did not pass the estate, there arose another by which the estate was passed in conformity to the deed. In Doe v. Oliver, *" where 1 Green v. Liter, 8 Cranch, 229 ; Lindsay v. Lessee of Miller, 6 Peters,. 677. 2 Pope V. Henry, 24 Vt. 560. 3 Corcoran v. Brown, 3 Cranch, C. C. R. 143. 4 French v. Spencer, 21 Howard, 228. 5 Rawlins' case 4 Coke, 52. 6 3 M. & R. 202. Title by Estoppel. 285 it had been contended that as the conusor had no vested estate when the line was levied, it only concluded the parti(!S and privies, and did not bind the defendant who claimed as a stranger, the court held that the estate which subse- quently acccrued, fed the estoppel and passed by ttie opera- tion of the fine. Nothing which is not possessed can he granted, but may yield to the force of an estoppel, a deed which purports to convey land absolutely and without qualification, will not only estop the grantor from recovering in opposi- tion to the grant, but transfers any estate or interest which he may subsequently acquire, whether it does or does not contain a covenant of warranty, or for quiet enjoyment, or a recital that he has good title to the premises conveyed.^ Sec. 255. The old rule of law was : where one by a deed of bargain and sale, or lease and release, conveyed to which he had no title, he was estopped by his deed from claiming an after acquired title in it.^ But this rule has been repeat- edly set aside, and the law at the present time is, that where one conveys land to which he has no title by deed of bargain and sale without a covenant of warranty, a subsequent ac- quired title will enure to the benefit of the bargainee even as against the bargainor and his heirs.^ Sec. 266. But, while a conveyance by deed works no es- toppel that can bind future estates or even conclude the gran- tor or those claiming under him from recovering in opposi- tion to the grant ; a different result follows and is caused by the presence in the deed of a covenant of warranty. The es- toppel of a conveyance depends wholly on the presence or absence of the warranty. A warranty creates an estoppel which not only binds the grantor but takes effect on every subsequent interest which he acquires, and transfers it im- mediately to the grantee. Sec. 267. It has been decided in Maine, that a covenant 1 Henderson v. Hackney, 23 Geo. 383 ; Bro^vn v. McCorinick, 6 Watts, 610 ; McCall V. Coover, 4 W. & S. 161; Root v. Cook 7 Peiin. 380; Nixon v.Car- co, 28 Miss. 414. 2 Jackson V. Bull, 1 John. Cases, 81. 3 Sparrow v. Kingman, 1 N. Y. 247; Comstock v. Smith, 13 Pick. 116; Ham V. Ham, 14 Maine, 351 ; Funk v. Dart, 14 111- 308 ; Tillotson v. Kennedy, 5 Ala. 413. 286 The Law of Estoppel. of non-claim, viz.: A covenant that neither the grantor nor any other person shall or will have, claim or demand any right or title to the premises, is not such a covenant as will support an action against the party making it, and hence that it will create no estoppel,^ Such a construction given to this covenant has not, however, been elsewhere adopted, it being generally considered as synonymous with a covenant of warranty.^ Any after acquired estate will enure by vir- tue of the warranty, to the party claiming under such con- veyance, with the same effect as if it had been originally passed by it. Thus, where one having granted land to his father, afterwards mortgaged the same land with a covenant of warranty, it was held that upon the death of the father, and the descent of the moiety of the estate upon himself as one of his father's heirs, the mortgagee took that moiety by estoppel.'^ So where an heir gave a release of his expectant estate, with a covenant that neither he nor those claiminsr under him should ever claim any right to the same, it was held that when the estate devolved upon him, it immediate- ly enured by estoppel to the grantee.^ It is a well settled principle of the common law, that if one couvej^s lands or other real estate, with a general covenant of warranty against all lawful claims and demands, he cannot be allowed to set , up against his grantee or those claiming under him, any ti- tle subsequently acquired, either by purchase or otherwise. Such new title Avill enure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This prin- ple is founded in equity and justice, as well as the policy of the law. It is just that a party should not be permitted to hold or recover an estate in violation of his own covenant ; and it is wise policy to repress litigation and to prevent a 1 Pike V. Galvin, 29 Maine, 185; Loomis v. Pingree, 43 Maine, 314. 2 Trull V. Eastman, 3 Metcalf, 121; Miller v. Ewing, 6 Gushing, 34. 3 Somes V. Skinner, 3 Pickering, 52. 4 Trull V. Eastman, 3 Metcalf, 121; Carbrey v. Willis, 7 Allen. 361; Gouch- enor v. Moury, 33 111. 381; Sparrow v. Kingman, 1 N. Y. 247; Baxter v. Bradbury, 20 Conn. 2C0; Williams v. Thurlow, 31 Me. 295; Blake v. Tuck- er, 12 Foster, N. H. 44; Funk v. Newcomer, 10 Md. 316; Barton v. Morris, 15 Ohio, 408; Beau v. Welsh, 17 Ala., 772; O'Banuan v. Paramour, 24 Geo. 493; Mason v. Muiicaster. 9 AVhoat, 455. Title by Estoppel. 287 circuity of actions, when better or equal justice may be ad- ministered in a single suit. By such a grant with general warranty, nothing passes, nor indeed can possiljly pass, ex- cepting the title which the grantor has at the time of the grant; but he is estopped to set up a title subsequojitly ob- tained by him, because if he should recover against his gran- tee, the grantee in his turn would be entitled to an action against the grantor, to recover the value of the land. The principle of estoppel, therefore, not only prevents multiplic- ity of suits, but is sure to administer strict and exact justice, whereas if the grantee were driven to his action to recover the value of the land, exact justice might not be obtained, because the land might possibly not be esteemed at its just value. Sec. 268. If a grantor either expressly or by necessary im- plication, conveys an estate in fee simple, his heirs are es- topped from denying that he had such an estate and passed it by the deed to the grantee.^ If an executor convey an equitable interest in land before the issuing of a patent, and a patent subsequently issued in the name of the executor it enures to the benefit of the grantee by way of estoppel.- So although the church wardens of a parish are not capable of holding lands and a deed to them and their successors in of- fice forever, cannot operate by way of grant, yet where it contains a covenant of general warranty, binding the gran- tors and their heirs forever, it may operate by way of estop- pel to confirm to the church and its privies the perpetual and beneficial estate in the lands.^ An assignment of a patent before a patent is obtained is a good transfer of the right of the patentee when he obtains a patent, and he will be estopped from setting up any adverse title.* "Where a grantor conveys land, with warranty in which he has nothing at the time he is not only estopped from claiming in oppo- sition to his deed, but the estate which subsequently vests in him is bound by the estoppel and is transferred by the 1 Van Rensselaer v. Kearny. 11 Howard, 207 ; Carbrey v. "Willis, 7 Allen, 364; Gouchenor v. Mowry, 33 111. 831. 2 Lents V. Baird, 3 McLean, 57 ; Zants v. Courcelle, 16 La. 96. 3 Mason v. Muncaster, 9 Wheat. 445. 4 Herbert v. Adams, 4 Mason, 15. 288 The Law of Estoppel. operation of the estoppel to the grantee. A fine levied by an heir binds his estate afterwards acquired by descent.^ So where a testator was disseized and died, having by his will made two of his sons executors, with power to sell his lands. They did so as executors, and afterwards, together Avith the other heirs, brought ejectment against the purchaser on the ground that the testator having been disseized nothing passed by their deed. But the court held, that they were estopped to deny the effect of their deed, by claiming the land them- selves.- A husband, entitled as such to an estate for life, conveyed the estate in trust for his wife, in order to avoid his creditors, covenanting against the claims of all persons claiming under him. He then went into insolvency, and his assignee sold the estate, on the groimd that his former deed was void as against creditors, and the husband himself purchased it. But it was held, that he was estopped by his forrner deed to set up a title against his grantee. The de- fect in the title was like an encumbrance created by himself, against which he had covenanted, and by removing it, he had done no more than he had by his covenant , engaged to do.^ Where the estoppel of a conveyanne binds the after acquired estate in the land conveyed, it extends be- yond the immediate parties and enures in favor of all who derive title from the grantor by descent or purchase ac- cording to the measure of their respective interests, and subject to the provisions of the deeds under which they hold. A second grantee will therefore, ordinarily be entitled to the benefit of the estoppel, and enforce it against the original grantor, in the same manner as the fii'st. Sec. 269. Deeds defeasible by way of mortgage, are as much within the rule as if they were absolute, and the after acquired title enures to the benefit of the mortgagee.* It ex- tends beyond express warrantees to those arising by implica- tion from the terms of the gi-ant.^ 1 Helps V. Hanford, 2 B. and Aid. 242. 2 Poor V. Robinson, 10 Mass. 136. 3 Gibbs V. Thayer, 6 Cush. 30. 4 Annvet v. Annis, 16 La. 227. 5 De Wolf V. Ilayden, 2i 111. 525. Title by P]sTorPEL. 289 Sec. 270. The principle is, that if any persons who in terms conveys land or any specific interest in land with war- ranty, and does not own it, afterwards acqnires the same land or specific interest, such acquisition enures to the bene- fit of the grantee, because the grantor and thosiijvho are privy in estate with him, are estopped to deny against the terms of the warranty that he had the title in question. The warranty is co-extensive with the estate, right or interest which the deed purports to pass. Thus where A., when he executed a deed to B., had no title, but his deed was an at- tempt to convey the fee, and it was a deed with a warranty. This shows, first, that the intention was that the land, the whole interest in the land, should be conveyed to B. ; sec- ondly, that B. had paid the purchase money. Such being the intention, the consequence would be that if A. should afterwards acquire the title, he would be bound to convey it to B., as much so as if the contract were one standing in the form of a bond for title. This would be the consequence, even without the warranty, where the intention was clearly expressed in the deed, so as to place the existence of a fact beyond question, or make it a basis of the contract.^ If an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him, in whose favor . the estoppel works, the title might frequently be locked up in him and his heirs, against whom the estoppel operated ; and the party for whose benefit it was intended, might find himself without title, and unable to recover from a mere in- truder ; for if the title to the after acquired estate did not pass to the grantee by means of the estoppel, but it only precluded the grantor from asserting an after acquired title, it would be difficult to see how he could recover in ejectment from one who had no title; to show title in another would not enable him to recover, and he, having none, could not main- tain the suit. To give, therefore, the full eflfect to an estoppel, it is clear that it must frequently operate to pass the title.- 1 Gordon v. Beacham, 24 Georgia, 150. 2 Bean v. Welsh, 17 Alabama. 773 ; Derby v. Jones, 27 Maine. 361 ; Coe V. Persons unknown, 43 Maine, 436 ; Hall v. Chaffee, 14 N. IT., 326 ; Wight V. Shaw, 5 Gushing, 56 ; Wyman v. Harmon's Devisees, 5 Grat- tan, 162; Lewis v. Baird, 3 M'Lcan, 78; Valle v. Clemens, 18 Mis.soari. 490. 19 290 The Law of Estoppel. Sec. 271. Rawle, in his elaborate work on covenant for title, page 4.54, says, in regard to the creation of estoppel to warrantys, "if an estoppel is not created by a deed taldng eifect under the statute of uses, and if a warranty in that deed does not of itself create an estoppel, how is an estop- pel created, and what is the true principle that appears to be properly deducible from the many authorities cited ? The answer to this question might be, that the principle of the cases seems referable to a familiar rule in equity, that if a man contracts for the sale of au estate which he has not at the time such contract is entered into, and he afterwards acquires such an interest as will enable him to make good his contract, equity will compel him to perform it and make good the title, and that the presence of a warranty in a deed purporting to convey an estate, has, it would seem, upon strict principle, no greater effect than an averment that the contract between the vendor and purchaser is, that, that identical estate shall l^e actually transferred from the former to the latter ; and such an effect can be produced by other covenants than that of warranty,- and by other parts of the deed than the covenants."^ A grantor conveying by deed of bargain and sale, by Avay of release, or quit-claim of all his right and title to a tract of land, if made in uood faith and without any fraudulent representations, is not responsi- ble for the goodness of the title beyond the covenants in his deed.'^ A deed of this character purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time, and does not operate to pass or bind an interest not then in existence. The bargain between the parties pro- ceeds upon this view, and the consideration is regulated in conformity with it. If otherwise, and the vendee has con- tracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper cove- nants of title. But this principle is applicable to a deed of bargain and sale by release or quit-claim, in the strict and 1 "Wjghtman v. Reynolds, 24 Mass. 680. 2 Eawle on Gov. for Title. 3 Van Rensselae!' v. Kearney, 11 Howard. 497. Title by Estoppel. 291 proper sense of that species of convej'^ance. And, therefore, if the deed bears on its face evidence that the grantors intend to convey and the grantee expected to l)cc()nie invested with an estate of a particular description or quality, and that the bargain had proceeded upon that" footing between the parties, then, although it may not contain any covenants of title, in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted, at least so far as to estop them from ever afterward denying that he was seized of the particular estate at the time of the conveyance. Sec. 272. "Whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized and possessed of a particular estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seizin or pos- session of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him, shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after acquired title as between parties and privies. The reason is, that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with him, in good faith and fair dealing, should be forever there- after precluded from gainsaying it. The doctrine is found- ed, when properly applied, upon the highest principles of morality, and recommends itself to the connnon sense and justice of every one; and although it debars the truth in the particular case, and therefore is not unfrecpiently character- ized as odious and not to be favored, still it should be re- membered that it debars only in the case wheie its utterance would convict the party of a previous falsehood, and im- 292 The Law of Estoppel. poses silence on a party only when in conscience and hon- esty he should not be allowed to speak." ^ Sec. 273. The effect of the covenant is that the title acquired by the grantor who has conveyed with warranty, enures eo instaiUi that he gains the title, to his grantee and vests in him or to the grantee of such grantee with like covenants.- Many of the decisions have been based upon the ground of preventing circuity of action. Thus it was held that an after acquired estate would pass, although the covenantor had since the conveyance been discharged, as a bankrupt. The breach of the covenant having happened after such discharge.^ Estoppels which run with the land and operate thereon, pass estates and constitute titles. They are muniments of title assuring it to the purchasers. So the heir of one who is entitled to bounty land, assigned his right after entry, he is estopped by his ancestor's deed from setting up any title imder a patent issued in the name of his beneficiary.^ If a tenant for life convey in fee simple, and the fee is afterwards cast upon him, by operation of law, his heirs are estopped by his deed. An estoppel can only operate against a party who has conveyed a precise or definite legal estate or right, by a solemn assurance which he will not be permitted to deny or vary, but it has no opera- tion to prevent the denial of an equitable transfer, not iden- tical with the legal title, which it is relied on to establish or protect.^ Where one, as guardian, conveys lands and enters into covenants of warranty as to the title, in his deed, he is estopped from setting up a personal claim, to the same land under his own title.^ Sec. 274. The estoppel of a warranty being intended for the protection of the parties, should be so moulded as not to defeat the end which it was intended to secure ; and when- 1 Doe d. Merchant v. Errington, 8 Scott, 210; Bowman v. Taylor, 2 Ad. 8c Ellis, 278; Fairbanks v. Williamson, 7 Greealeaf, 96; Right v. Bucknell, 2Barn. &Adolph, 281. 2 Crocker v. Pierce, 31 Maine, 177. 3 Bush V. Cooper, 2G Miss 613; S. C. 18 Howard, 82. 4 French v. Spencer, 21 Howard, 228. 5 Gilmer v. Pointdexter, 10 Howard, 267. 6 Heard v. Hall, 16 Pick. 457. Title by Estoppel. 293 ever there is no suflicicnt cause why the estoppel should not operate, it will be kept in abeyance.^ The efleet of the cove- nant will be limited in its extent by the premises granted, and with which it may run. As where a grantor owning one undivided sixth part of a tract of laud, coveuanj^iJ against the claims of all persons to the estate, he was only estopped as to his portion, and not to any shares which he afterwards acquired."^ In order to bar a party by his covenant of war- ranty, the deed must not only be a good and valid one in form and mode of execution, but it must convey no title to the premises, nor pass anything upon which the warranty can operate ; for if it passes a title or interest, (that is, a ves- ted interest,) the covenant does not operate as an estoppel even though it cannot operate upon the interest to the full ex- tent of the parties. If any interest passes, however small it may be, it works no estoppel.^ The covenant need not be a general covenant of warranty, l)ut will always work an estop- pel to the extent of its terms. Thus where there was a cove- nant of warranty against a particular title which the grantor afterwards acquired, he was estopped to set it up.* So where one covenants against incumbrances and afterwards buys in an outstanding mortgage or purchases the estate under a sale for foreclosure of a mortgage existing thereon prior to his conveyance, whatever title he thereby acquires enures to the benefit of his grantee.^ But the covenant to have this effect must be something more than the personal covenant of him who makes it. It must be of a nature to run with the land, and if it be such a covenant it will attach to the land and run with it the instant the covenantor acquires the title which he has undertaken to convey by his deed.*^ Lord Coke, in treating of release, while commenting upon Little- 1 Pendleton v Richey, 32 Penn. 58 ; Baxter v. Bradbury, 20 Maine, 260 ; Somes V. Skinner, 3 Pick. Lessee of Buckingham v. Hanna, 2 Ohio State, 551. 2 Wight V. Shaw, 6 Cush. 50 ; Trull v. Eastman, 3 Met. 121. 3 Lewis V. Baird, 3 McLean, 66 ; 4 Kent's Com. 98 ; Jackson v. Xloffman, 9 Cowen, 271 ; 2 Prest. Abst. 216. 4 Blake v. Tucker, 12 Vt. 39; Trull v. Eastman, 3 Met. 121; Kimbal v. Blais- dell, 5 N. H. 535. 5 Brundred v. Walker, 1 Beasly, 140. « Patterson v. Pease, 5 Oiuo, 190 ; Wheclock v. Henshaw, 19 Pick. 341. 294 The Law of Estoppel. ton's statement, that "no right passeth by a release but the right which the releasor hath at the time of the release made," sjDeaks of a release accompanied by a warranty, and re- marks : " The warranty may rebut and bar him (the warran- tor) and his heirs of a future right which was not in him at the time." He puts the case of a grandfather, father, and son, where the father disseizes the grandfather, and then makes a feoffment in fee, and the grandfather afterwards dies ; the father, in such a case, might not enter upon his feoffee against his own feoffment, though the son might upon his death. It is said that there is no English authority that any other conveyance than a feoffment, fine, or lease, ope- rates by way of estoppel to pass an after acquired title, " and so note a diversity between a release, a feoffment, and a war- ranty. A release, in that case, is void ; a feoffment is good against the feoffer, but not against his heir ; a warranty is good both asrainst himself and his heirs."^ Sec. 275. In some of the United States,-^ a similar rule exists with this difference : in England a release is second- ary evidence, and derives its validity and effect from the possession of the releasee, while in this country it is primary evidence and passes the releasor's right the same as a grant, and in effect it operates as a conveyance without a warranty. If made with a warranty, the releasor is estopped to claim the land. A covenant for quiet enjoyment of the property by the grantees, estops the covenantor and those claiming under him, from interfering with such enjoyment;^ no title not in esse will pass by deed, unless the deed contains a cov- enant of warranty ; in which case it operates as an estoppel as to such future title.* No person can recover or defend himself against his own grant or covenant ; nor can any one controvert against his own acts, though not by deed, a title which he has by his deed acknowledged.^ 1 Coke, Litt. 265, a. 2 Dart v. Dart, 2 Conn. 256; Trull v. Eastman, 3 Met. 121; Butler v. Seward, 10 Allen, 468; Jackson v. Wright, 13 Johns. 193. 3 Long Island R. R. Co. v. Conklin, 29 N. Y.572. 4 Blanchard v. Brooks, 12 Pick. 47; Dart v. Dart, 7 Conn. 250; Jackson v. Wright, 14 Johns. 193. 6 Cooper V. Galbraith, 3 W. C. R. R. 546. Title by Estoppel. 295 Sec. 276. A state may be estopped l)y its own grant and warranty, like an individual, even from claiming land as having escheated, Avhere the claim is made on the ground of alienage. Thus, where the commonwealth granted lands to an alien who died leaving; heirs, citizens and residents of France ; to an inquest of office for recovering the lands, it was held, that the deed and warranty of the commonwealth was a bar, and that it could not take advantage of the alienage of the heirs.^ Sec. 277. A covenant of warranty is a perpetually ope- rating covenant. When made in a deed by a grantor, has the same eflect as if a particular recital or averment is in- serted in his deed. Its eflect as an estoppel is similar to that of a recital, upon this principle of conclusiveness : A grantor who has delil^erately made certain representations and covenants of warranty in his deed, is not allowed to controvert the fact that he owned an interest in the estate which by his deed he granted, in order to set up a claim hostile or adverse to the title of his grantee, where his grant is of land or an estate, and not a quit-claim deed or a mere release of his interest or title to the same. A man is never allowed to claim in opposition to his deed, by averring that he had no estate in the premises. So where the plaintiff's ancestor conveyed the premises to the grantor of the tenant, the ground of the plaintifl''s claim was, that when their an- cestor conveyed the land, he had no title to it, but acquired one subsequently in his lifetime, which had descended to them. Tilghman, C. J., says: "Can his heirs recover against his grantees ? In such case they would be estopped by their father's deed from denying his title, and if there were occasion for further assurance, equity would compel them to make it." " So in equity, a grantor conveying lands for which ho has no title at the time, shall be consid- ered trustee for the grantor, in case, at any time afterwards, he should acquire title." " Chancery would compel them (the plaintiffs) to convey to the defendants."^ Sec. 278. Where one conveys land with warranty, before 1 Commonwealth v. Andre, 3 Pick. 224. 2 McWilliams v. Niscly, 2 S. & K. 507. 296 The Law of Estoppel. he acquires title, he cannot bring ejectment upon his subse- quently acquired title, against the grantee or his assigns.^ It estops the grantor and his privies from any future claim of title, and passes an interest and a title the moment any estate in the land comes to the grantor.'^ The estoppel applies where the property is devised to the former grantor.^ A grantor in a deed conveying property in fraud of creditors is estopped, as well as his administrator, to avoid the deed/ The estoppel includes the heirs of the grantor. A grantor in fee with covenants of warranty, can not deny that the heirs of the grantee are seized in fee. A title subsequently acquired by him enures to their benefit, unless, perhaps, with this exception : when an after acquired title is obtained through a judicial sale for taxes, or other- wise. This applies to a sale made by an administrator, even though the estate be held over in fact for a term of years only.^ Under the statute of Illinois, the words "grant, bargain, and sell," amount to an express warranty, and pass an after acquired estate.^ So a subsequent title enures under a covenant for further assurance in a quit-claim deed, as well as under a covenant of warranty," and where a grantor with full covenants of warranty against incumbrances, pays off or buys in a prior mortgage, or buys the land at a fore- closure sale under it, the right and title he thus acquires enures to the benefit of hi* warrantee.*^ Lineal warranty estops the warrantor and his heirs from ever afterwards claiming title to the lands. To any such claim the war- ranty is a perfect defence or rebutter.'^ But unless the deed contains covenants of general warranty, it cannot ope- rate as an estoppel to pass an after acquired estate. The deed of an attorney estops him and all persons claiming 1 Lindsey v. Ramsey, 22 Geo. 627. 2 Moore v. Rake, 2 Dutch, 574; Philly v. Sanders, 11 Ohio S. 490. 3 Washabaugh v. Entriken, 34 Perm. 74. 4Beale V. Hall, 22Geo. 431. 5 Jones V. King, 25 111. 383. 6 DeWolf V. Hayden, 24 111. 526. 7 Bennett v. Walker, 23 111. 99. « Brundred v. Walker. 1 Beaslcy, 140. 9 Smith V. Smith, 14 Gray, 532; Den v. Cornell, 3 John. Cas. 174. Title by EsTOPrEL. 297 under him.^ An alioiuition of the interest of one joint tenant, either by deed or other le^al process, is not void for all purposes, but operates against him and all claiming under him by estoppel, whether he had notice or not, and can only be avoided by the co-tenant who is injured- or those claiming under him. Sec. 279. In England, while a contingent remainder will not pass by legal conveyance, yet it may pass by estoppel, but a feme covert not being bound by an estoppel, can- not convey such remainder,'- by fine or recovery, so as to bind the party when the contingency happens, after the death of the original remainderman, and such remainder is as- signable in equity.^ A fine by a contingent remainderman passes nothing but operates by estoppel, and has an ulterior operation when the contingency happens, the estate, which then becomes vested, feeds the estoppel and the fine operates upon it as though it had been vested when the fine was levied.'* A vested remainder, lying in grant, passes by deed without livery ; but a contingent remainder is a mere right, and cannot be transferred before the contingency happens, other- wise than by way of estoppel, and therefore cannot be con- veyed by a married woman. Any conveyance by matter of record or by deed indented, will work an estoppel. So if there be an estate to A. and B., and to the survivor in fee, a conveyance operating by way of an estoppel, will bind the contingent remainder in fee in the survivor. A lease and release, if the latter be by deed indented, will work an estoppel. The estate for life is only a tangible inter- est, and the other is a mere possibility, and estoppels exist where no interest passes from the party. One holding a vested interest and a contingent interest, conveying by deed with warranty his right, title and interest therein, passes his vested interest only by the deed, and is not estopped thereby to claim his contingent interest whf>n it becomes vested.^ 1 Lee V. Getty, 26 111. 76. 2 Den V. Demarest, 1 N. J. 3 2 Cruise, 393; Doe v. Martyn, 8 Barn. & Cress. 616. i Doe V. Martin, 8 Barn. & C. 527. 5 Blackwell v. Brooks, 14 Pick. 47. 298 The Law of Estoppel. Sec. 280. Where an estoppel works on the interest of land, it passes with the laud. An estoppel is not a mere con- clusion, but may pass an interest and constitute a title from the moment the grantor acquires one, and all who comem the post are bound by the estoppel; though claiming under another title. The i>:rantee's rii^ht is not limited to a claim by the grantor or his representatives ; he may defend against trespassers or disseizors. Though a warranty estop the heir and his issue it does not estop the purchaser under a judgment against the heirs, recovered during the life of the ancestor and before the deed from which the estoppel would arise.^ Where the husband convej^s the wife's estate and afterwards inherits it from her, he is estopped.^ So an heir and residuary devisee, who has given bond as such devisee, to pay the debts of his testator, is estopped to set up a subse- quent title as heir of the testator's wife, against a warranty deed made by the testator, although all right of action on the covenants in the deed is l)arred by the statute of limitations.^ So where A. conveyed with warranty to B. land claimed by his father, and after the father's death purchased land of the heirs, one of whom wa.s the wife of B. and released with her husband all her right, while B. could not claim against his own deed the share of his wife, all the residue enured to him by estoppel.* Sec. 281. The rule that one having no title, but conveying with full covenants of warranty, and subsequently acquiring title, is estopped as against his grantee, to deny that he had a good title at the time of his grant, and that the new title enures to the grantee, applies in a suit upon the covenant for seizin, where the covenantee is in possession ; but where the grantor purchases the paramount title after the eviction of his grantee, such title does not enure to the grantee by way of estoppel, without his consent, so as to defend his right to sue on the covenants of Warranty, and to recover the con- sideration, neither can the grantor avail himself of it in miti- 1 Jackson v. Bradford, 4 Wend. 619. 2 Clark V. Slaughter 34 Miss. 65. 3 Cole V. Raymond, 4 Gray, 217. 4 Kimball v. Schoff, 140 N. H. 190. Title by Estoppel. 299 gation of damages.^ But if before the covenantor acquires a title, the covenantee sue for a breach of the covenant of seizin he cannot defeat that action by purchasing in the title and tendering it to his covenantee, if the latter refuse to accept it.-- But if the title comes to the covenantor in tb^xapacity of trustee , and not in his own right, it would not enuie to the prior covenantee. The estoppel would not apply in such a case.'^ The covenantee may estop himself from setting up the covenant of his grantor, by way of claiming the estate. If the purchaser under a deed with general covenants of warranty, be evicted by a better title, it is not in the gran- tor's power afterwards to acquire a title to the premises, and compel the grantee to accept the same against his will ; but if instead of claiming the land, the purchaser sues upon his covenants, and recovers damages for a breach thereof, he is estopped thereby from claiming the land by estoppel, though his grantor and covenantor should have acquired.* Nor will such covenant prevent the grantor from subsequent- ly acquiring a title to the granted premises, and availing him- self of it against his own grantee, if the title conveyed by such grant was, at the time a good one. Thus, where the grantor disseized his own grantee, and held adverse posses- sion for twenty years, he was not estopped by his former deed and covenant, to claim title to the premises by such disseizin.^ Sec. 282. If a grantee after eviction by the holder of a paramount title, recovers damages for the breach of the cov- enants of seizin on the ground that the grantor had no title whatever, the operation of it must be to estop the grantee from setting up the deed afterwards as a conveyance of the land, against the grantor. The grantor may again enter if he chooses as against the grantee. A recovery in trespass or trover, vests the property in the party against whom the damages are assessed. And there is nothing in the nature 1 Burton v. Reed, 20 Indiana, 87. 2 Tucker v. Clarke, 2 Sandf. Ch. 96. 3 Burchard v. Hubbard, 11 Ohio, 316 ; Kelly v, Jenness, 50 Me. 455. 4 Blanchard v. Ellis, 1 Gray, 195 ; Baxter v. Bradbury, 20 Me. 2G0. 5Tilton V. Emery, 17 N. H. 538 ; Smith v. Montes, 11 Tex. 24 ; Stearns v. , Henderson, 9 Cush. 502. 300 The Law of Estoppel. of the feudal investiture, or in the principles which regulate the title to land that requires a different rule in relation to real estate.^ The record of the recovery will furnish as good an estoppel as that which arises from a disclaimer,- when land conveyed by A. to B. with general warranty, and sub- sequently granted by B. to C. with warranty, but subject to incumbrances, was sold under a judgment against A., and bought in by him, it was held that the title thus acquired might pass to B. but that C. could claim nothing under it, who had taken subject to the first judgment on which execution was issued,-* where the deed does not, on its face, purport to conve^^ an indefeasible estate, but only the "right, title and interest" of the grantor, even although the deed may contain a general covenant of warranty where that covenant is held to be limited and restrained by the estate conveyed and not to warrant a perfect title, the estoppel does not apply ; while a warranty is invested with the highest functions of an estoppel in passing by mere operation of law; an after acquired estate, it loses that attribute when it is apparent that the grantor intended to convey no greater estate than he was possessed of. " Thus a devisee, being entitled to a vested remainder in one moiety, and a contingent remainder in another moiety of certain real estate held in common with other devisees, conveyed all his " right, title, and interest in and to the undi- vided real estate devised," with unlimited covenants of war- ranty and for quiet enjoyment, he was held to have conveyed only his vested interest, and the warranty being only co-ex- tensive with the grant, he was not thereby estopped to claim the contingent interest Avhen it became vested in interest and possession by the happening of the contingency.* Sec. 283. Where a deed conveys title, a warranty can 1 Burton v. Reed, 20 Ind. 87. 2 Parker V. Brown, 15 N. II. 188; Hamilton v. Elliot, 4 N. H. 682; Porter v. Hill, 9 Mass. 36 ; Stinson v. Snmner. Id. 150 ; Morris v. Phelps, 5 Johns. 55 ; Fitch v. Baldwin. 17 Id. 164 ; Blanchard v. Ellis, 1 Gray, 202. 3 Skinner v. Stainer, 24 Penn. 125. 4 Blanchard v. Brooks, 12 Pickering, 66 ; Wyman v. Harman, 5 Gratt. 137 ; White V. Brocaw, 14 Ohio, St. 344 Title by Estoppel. 301 never operate as an estoppel.^ A vendee holds adversely to his vendor, and is not estopped from denyiii<; his vendor's title. -^ There is no general or inflexible principle which estops the grantee from showing that the grantor had no title, or none which was capable of being passed by the grant. The mere acceptance of a conveyance does not pre- vent him from showing want of estate in the grantor of the land conveyed. •' By accepting a deed the grantee is estop- ped to deny the eflect and provisions of snch deed.^ A person is not allowed to accept a deed with covenants of seizin, and then set up breach of covenant on the ground that the grantee is himself seized at the time of the making of the deed.^ Where one who owns land adjacent to that of another, purchases of the latter a parcel bounded by his own, and the line is definitely described in the deed, he and his successors are estopped to claim that he was at the time of purchase, holding adversely any part of the land beyond the boundary line therein described.''' A grantor may dis- seize his grantee, and if he does, he is not estopped by his deed, fiom claiming title against his grantee, by adverse possession, as such disseizor to the land which he had form- erly conveyed.^ The court of Massachusetts, while main- taining that if one grants his right, title, claim and demand to an estate with covenants of warranty against all persons claiming by or under him, the grantor is not estopped to set up a newly acquired title against his own grantor, and decide that a grantor of an estate is estopped by his convey- ance to deny that he had any title in the land at the time of the conveyance, and whatever interest he had, passed to the grantee, by his deed."^ Where a person assents to an act, and derives and enjoys a title under it, it shall not lie in his mouth to impeach it.^ 1 Lentz V. Baird, 1 McLean, 51. 3 Cutter V. "Waddingham. 33 Mo. 143. 3 Sparrow v. Kingman, 1 N. Y. 242 ; Averill v. Wilson, 4 Barb. 180; Blair v. Smith, 16 Mo. 275. 4 Shep. Touch. 53 ; Comstock v. Smith, 13 Pick. 116. 6 Fitch V. Baldwin, 17 Johns. 161. 6 Hodges V. Eddy, 38 Vt. 349 ; Root v. Crock, 7 Penn. 378. 7 Franklin v. Borland, 28 Cal. 180. 8 Comstock V. Smith, 13 Pick. IIG. 9 Rex V. Stacy, 1 T. R. 4. 302 The Law of Estoppel. Sec. 284. Where in a deed, with covenants of warranty, there is a recital of an outstanding mortgage, the recital qualifies the covenant.^ So where the grant is in the form of a release or quit-claim of all the grantor's right, title and interest, Avith covenants of warranty against all persons claiming by or under him, while such a grant as this estops the grantor from claimingthat any title existed in him at the time of making his deed, it is no estoppel as to any after ac- quired title.'-^ Where the covenant for seizin is satisfied by the transfer to the purchaser, of an actual though a tortious seizin, (as is the case in many of the New England states,) no estoppel is created by that covenant.'^ Where the cove- nant of warranty is limited to the acts of the grantor, and the purchaser would not be entitled to sustain an action upon it, by reason of the defect of title not being of the grantor's own creation, and therefore not coming within the scope of the covenant, there will be no estoppel, and an after acquired estate will not pass to the purchaser. Judge Wilde in delivering the opinion of the court, said :^ "If the grantee were not entitled to recover the value of land on the grantor's covenant of warranty, then in such a case it is ob- vious that this species of estoppel would not be applicable. And such appears to be the law in regard to the covenant in question, by which the demandants attempt to estop the tenant to set up or plead the title of Waters. The tenant's covenant is a restricted covenant, and is co-extensive with the grant or release. He agrees to warrant the title granted or released and nothing more. That title only he under- took to assert and defend. To extend the covenant further would be to reject or do away with the restrictive words of it, and to enlarge it to a general covenant of warranty, against the manifest intention of both parties. The tenant. 1 Jackson v. Hoffman, 9 Cowen, 271. 2 Comstock V. Smith, 13 Pick. 116; Jackson v. Peck, 4 Wend. 300; Miller v. Ewing, 6 Cush. 3G; Kinsman v. Loomis, 11 Ohio, 475; Harriman v. Gray, 49 Me. 538; Doane v. Wilcutt, 5 Gray, 323. 3 Fox V. Widge6n, 4 Greenleaf, 218; Allen v. Sayward, 5 Id. 231; Doane v. Willcutt, 5 Gray, 333. 4 Comstock V. Smith, 18 Pick. 113; Bell v. Twilight, 26 N. H. 401; Tillotson V. Kennedy, 5 Alahama, 418; Chauvin v. Wagner. 19 Missouri,. 653. Title by Estoppel. 303 in covenanting: to warrant and defend the granted or re- leased preniiseis, must be understood to refer to the estate or title sold or released, and not to the land, because he did not certainly intend to warrant any estate or title not intended to be conveyed. Now if Waters, after the the ten^x^t's quit- claim deed, had evicted the demandants, this would have been no breach of the tenant's covenant. Or, if the tenant now held under Waters without having obtained the fee from him, he might pray Waters in aid, and thus defend himself against the title of the demandants, the title of Waters being, as the plea avers, the elder and better title, and this also, would be no breach of the tenant's covenant. He did not undertake to convey to demandants an indefea- sible estate, but only his own title ; nor did he agree to war- rant and defend it against all claims and demands, but only against those derived from himself, by which he must be understood to refer to existing claims or incuml)rances, and not to any title which he might afterwards acquire by pur- chase or otherwise from a stranger.^ There is, therefore, no reason to be assigned why the tenant should not purchase the title of Waters. The demandants cannot thereby be pre- judiced, nor ought they therefrom to derive any benefit. "It was then contended by the demandant's counsel, that, admitting the tenant is" not estopped by his covenant of warranty, he is nevertheless estopped by his conveyance to deny that he had any title in the land at the time of the conveyance. This also is a well established principle of common law.'- But the tenant, in this plea, does not deny that he had any title to the land ; on the contrary he avers that before the time of his conveyance he was in possession of the land under Waters ; that afterwards the demandants disseized Waters, and being seized by disseizin, they con- veyed to the tenant all their right and title, with a covenant of warranty similar to the one contained in his conveyance to them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any 1 Ellis V. Welch, 6 Mass. 250. 2 Co. Litt. 45, 47; Jackson v. Murray, 12 Johns. 201; Jackson v. Bull, 1 Johns. Cases, 91; Isham v. Morrice, Cro. Car. 110. 304 The Law of Estoppel. such averment in the pleadings. The tenant, at the time of his reconveyance, might have had a vahiable interest in the land by possession and improvements, although Waters had a paramount title. This interest, whatever it was, passed to the demandants by the tenant's deed, and it was all the title he had to convey, or was expected to convey. If, un- der these circumstances, the demandants could now acquire, without any consideration, another title by estoppel, we should be compelled to admit that estoppels are as odious as they are sometimes said to be. But the doctrine of es- toppel aids much in the administration of justice. It be- comes odious only when misunderstood or misapplied. Nothing can be more just than the doctrine of estoppel urged by the demandants' counsel, when applied to a con- veyance with a general covenant of warranty; but to apply the doctrine to the tenant's restricted conveyance and cove- nant, would be a manifest perversion of the principle upon which the doctrine is founded." Sec. 285. A mere intention to convey will not be suffi- cient to pass a subsequent estate.^ No particular form of words is essential to a conveyance to uses, but the deed, if it cannot operate in one way, may in another, to effectuate the manifest intention of the grantor. In the case of a conveyance, before the grantor has acquired the title, the legal estate is not transferred by the statute of uses, but the conveyances operate as an agreement, which the grantor is entitled to have executed in chancery. Sec. 286. A covenant of warranty estops the grantor from setting up an after acquired title against the grantee, for it is a perpetually operating covenant ; but he is not estopped by a covenant that he is seized in fee and has good right to convey,'^ for any seizure in fact, though by wrong, is suffi- cient to satisfy this covenant, its import being merely this, that he has the seisin in fact at the time of conveyance, and thereby is qualified to transfer the estate to the grantee.^ . — • . — __ — . — — — J. 1 Chew V. Barnett, 11 S. & R. 389. 2 Allen V. Sayward, 5 Grecnleaf, 227. 3 Chape 11 V. Bull, 17 Mass. 213; Murston v. Hobbs, 2 Mass. 433; Pearce v. Jackson, 4 Mass. 408; Twonibly v. Henley, 4 Mass. 441. Title by Estoppel. 305 A grantor, conveying by deed of bargain and sale, by way of release or qnit-claim of all his right and title to a tract of land, made in good faith, and without any fraudulent representations, is not responsible for the goodness of the title beyond the covenants in his deed. A daod of this character purports to convey nothing more than the interest or estate of which the grantor is seized or possessed at the time ; and does not operate to pass or to bind an interest not then in existence.^ Neither is one who has purchased land in his own name for the benefit of another, which he has afterwards conveyed by deed to his employer, estopped by such deed from claiming the land by an elder and after acquired title. Nor is the heir estopped from questioning the validity of his ancestor's deed, as a fraud against an express statute.^ But while a conveyance must necessarily fail of its object at law, unless the estate to be conveyed is vested in interest at the time when the deed is executed, it will, notwithstanding, be enforced in equity, as an executory agreement to convey, whenever the intention of the parties is apparent and sustained by a sufiicient consideration.^ Sec. 287. An estoppel of a warranty may be restricted by its own terms, or by those of a deed in which it is in- serted, and a deed without a warranty may operate as an estoppel, in order to prevent a failure of the purpose for which it was executed.* Thus, a warranty against a partic- ular outstanding title, will bind and pass that title by estop- pel, if subsequently acquired, by the warrantor.'' So, where A., having only an equitable fee in land, mortgaged it by lease and release to B., covenanting that he was legally or equitably seized, and reciting that he was legally or equit- ably entitled to the premises, and the legal estate was after- wards conveyed to him, and by him was sold to C, he was not estopped to set up his after acquired legal estate, either by his covenant or his recital, they being in the alternative, 1 Van Rensselaer v. Kearney, 11 Howard, 297. 2 Doe V. Lloyd, 8 Scott, 93. 3 Goodson V. Beachan, 21 Geo. 180 ; Bayler v. Comforth, 40 Penn. St.. 37. 4 Van Rensselaer v. Kearny, 11 Ho\Yard, 297. 5 Blake v. Tucker, 12 Vt. 39. 20 306 The Law of Estoppel. and not positive affirmations that it was a legal interest to which he was entitled, and that the Avords of release in his deed only operated to pass whatever interest he had in the premises at the time.^ And where the grant was of all the grantor's right, title and interest in certain premises, with covenants that neither the grantor, nor any person claiming under him should claim, &c., there was held to be a qualified warranty of the land, and premises conveyed. The war- ranty was co-extensive with the estate which the deed pur- ported to convey, but as that did not purport to convey any interest thereafter to be acquired, it did not afiect any after acquired titlc.- Sec. 288. Where a person gives a quit-claim without covenants, a title subsequently acquired by him, does not enure to the grantee.-' Hence a conveyance of all a man's right, title, and interest will not estop him from proving that he had no right to convey, and evicting the grantee by a subsequent acquired title, ^ a conveyance by deed of bargain and sale or release without warranty or covenants, does not l)ind an after acquired estate then contingent.^ A party against whom a judgment is rendered in a real action, he having then an equitable title, is not thereby estopped if he afterwards acquires the legal title. "^ kSEC. 289. Where a grant in a deed is of all the grantors right, title, and interest in the land, and of the land itself, or tiny particular estate in the land ; the warranty is of the premises, viz : of the estate granted, and must be confined to the estate vested. A conveyance of all the right, title, and interest in land is sufficient to pass the land itself, if the party conveying has an estate therein, at the time of the convey- ance, but it passes no estate which is not then possessed by the party. *" The grant in legal efi'ect operates only to 1 Right V. Bucknell. 2 B. & Ad. 278. 2 34 boane v. Wilcutt, 5 Gray, 328 ; Raymond v. Raymond, 10 Cush. 134 ; Gee V. Moore, 14 Cal. 472. '^ Hariman v. Gray,. 49 Me. 537. 4 Miller v. Ewing, fj Cash. 3i ; Right v. Bucknell 3 B. and Ad 278 ; Frick V. Dorst, 14 111. 314 ; Kennedy v. Shear, 3 Watts. 95. 5 Lounsdale v. Portland. 1 Oregon, 381, 399 e Brown v. Roberts, N. H. 131. 7 Brown v. Jackson, 3 AYhcat. 452. Title by EsTorPEL. 307 pass the vested interest, and the warninty l)einiZ' co-extensive with the grant, does not extend to the contingent interest, and does not operate on it by way of estoppel.^ The estop- pel of a warranty may be limited by the object of the deed and when that is simply to convey, or diviila an estate which the parties have, it will not take effect on an after ac- quired title." Sec. 290. In cases of involuntary alienation, as where a creditor lives upon the land of his debtor, the latter is not estopped to assert a subsequent acquired title/^ If a disseizee take a deed from his disseizor he is not estopped to set up a former and better title.* So where a grantee conveys all his right and interest in the granted premises he is not es- topped to claim against his grantee under a newly acquired title though his deed contains a general covenant of warrant ty.'' A mere deed of grant with or without an indenture, does not in a court of law, work an estoppel. Whether op- erating as a grant, a release, or confirmation, if an heir appa- rent were to grant his interest, it would not have any eJSect at law, though he should afterwards become actually seized.^ The words "granted, bargained, sold and released," in a deed do not amount to an estoppel as to any future estate, nor do any of the deeds which take eifect by the statute of uses.'' While a deed of acquittance or release may in certain cases be an estoppel, it being a valid and final bar to all ex- isting claims and all the possibilities arising from previous contracts of which it imports a relinquishment, it cannot affect rights of which the foundation is subsequently laid.*^ Thus where one who was entitled to a contingent remainder con- veyed the same, and subsequently the estate became vested, if 1 Miller v. Ewing, 6 Cush. 34 ; Blanchard v. Brooks. 12 Cush. 47. 2Doane v. Wilcott, 5 Gray. 328. 3 Freeman V. Thayer, 29 Maine, 369; Tillotson v. Kennedy, 5 Ala. 413; Frick v. Darst, 14 111. 308. 4 Flagg V. Mann, 14 Pick. 467. 5 Hope V. Stone, 10 Minn. 132. C 2 Prest. Abs. 410; Clark v. Baker, 14 Cal. 612. "' Burt Real Prop. § 593; Wnis. Real Prop. 329; Brown v. Jackson, 3 Wheat 449; Kimball v. Blaisdell. 5 N. H. 535; Dart v. Dart, 7 Conn. 250; Clark v. Baker, 14 Cal 612. 8 Co Litt. 265 a.; Burt Real Prop. § 149. 308 The Law of Estoppel. the couveyance was by quit-cltiiin, the deed was no estoppel to his claiming the estate, if with covenants of warranty, it is an estoppel. In this case the contingency consisted in the grantor's taking as the oldest surviving son at the death of his father.^ So a release of a disseizee to a disseizor, will effectually estop all of his claim to the estate.'^ A grant re- lease, or bargain and sale, only operates as an estoppel between parties and privies, and does not bind or transfer future or contingent estates by estoppel. An estate acquired after the execution of a deed, will not pass by its operation merely as such, and no contingent or executory estate can be conveyed either by a common law grant, or under the provision of the statute of uses, and that not only does not pass by the estate, but it does not estop the grantor and those claiming under him from recovering the land at a subsequent period,'^ Sec. 291. A deed estops the grantor from an equitable claim, ^ or a claim of homestead.^ The rule of law forbid- ding champerty does not prevent an estoppel of the grantor himself.*^ Where A. conveyed to B. land to which he had no title, but afterwards obtained a deed took actual posses- sion, which he held adversely to all the world for seven years it was held that B's. right of entry was taken away.'^ Sec. 292. A case similar to the instances heretofore cited of an after acquired estate passing by estoppel but not rest- ing on the same technical ground is where one conveys an undefined interest in lands, to which at the time he has a general and undefined title, and subsequently acquires cer- tain specified lands, in completion of his former right. The lands immediately vest in the assignee. Thus, where one 1 Robertson v. Wilson, 38 N. H. 48. 2 Perkins, §86; 2 Prest, Conv. 2G9. " Pelletrau v. Jackson. 11 Wend. 110; Jackson v. Waidron, 13 Id. 178; Corn- stock v. Smith, 10 Mass. IIG; Ham v. ILim, 14 Maiiio, 301; Kinsman v. Loorais. 11 Ohio, 475; Brown v. Jackson, 9 Wheat. 452; Boll v. Twilight, 27 N. H. 101; Sparrow v. Kingman, 1 N. Y. 242; Dodswell v. Bu- chanan, 3 Leigh. 365; Dart v. Dart, 7 Conn. 2-56; Robertson v. Wilson. 38 N. II. 48; Mattack v. Lee. 9 Ind. 298; Frick v. Dorst, 14 111. 304; Blanchard V. Brooks, 12 Pick. 47; Byler v. Commonwealth, 40 Penn. 37. 4 Breeding v. Stamper, 18 B. Mon. 175. 5 Fo.ss V. Strachn, 42 N. H. 40; Williams v. Sweetland, 10 Iowa, 51. *> Nance v. Thompson, 1 Snced,321. 7 Eddleman v. Cari)cnter, 7 Jones, GIG. Title by Estoppel. 309 having a contract for a grant of 8,000 acres of land from a state npon the completion of certain roads, to be hiid oil" in any hinds through which such roads might pass, before any survey or conveyance from the state ; transferred an undi- vided third of this quantity of land, and afterwards tools, a deed from the state ; both the irrantor and all claimino; under him were estopped from claiming such third part.^ So where a joint proprietor of a township entitled to a certain number of acres, conveys his mterest before any location is made to him, a subsequent location enures to the benefit of the grantee and vests a portion of the land in him iu sever- alty.2 Sec. 293. Where tenants in common convey jointly with warranty land upon which one of them has a mortgage from the other, the tenant is estopped after making his joint war- ranty deed from claiming any interest in the land under the mortgage made to him by his co-tenant.^ So a surviving partner of a firm which had been engaged in gambling, and purchased and used a house for gambling purposes, cannot impeach the title of the grantee of the other partner, on the ground that the house is unlawfully used, being estopped by his privity with the grantor.* Where an occupant of lands claims under a warranty deed from a third person, he is es- topped to allege that he holds in common with the plaintiff.^ So one of two grantees who has accepted the deed by acting under it, in executing conveyances for parts of land, is es- topped from denying the title of his co-tenant in common, and cannot claim the whole by a title paramount to that under which his co-tenant claims.'^ A party cannot contro- vert the title of one under whom he claims.^ If either the pleading or evidence show that both parties trace their titles to the same source, neither can be permitted to attack the title of their common grantor. So where one has expressly 1 Fairbanks v. ■Williamson, 7 Greenleaf, 96. 2 Burghardt v. Turner, 12 Pick. 534. 3 Denham v. Allen, 2 Appl. 228. 4 "Watson V. Fletcher, 7 Grattan, 1. 5 Siglar V. Van Ripar, 10 Wend. 414. 6 Funk V. Newcomer, 10 Md. 311. 7 Gilliam v. Bird, 8 Irod. 280 ; Crocker v. Pierce, 31 Mc. 177. 310 The Law of Estoppel. recoguized the title of another, and thus estopped himself from questioning its validity holding under him as vendee, must be held to a recognition of that title, and must show that he has acquired it.^ A party cannot set up and at the same time deny the title under which he holds, as against his adversary having claim under the same title.- Sec. 294. "A tax deed creates no estoppel upon the for- mer owner for the reasons that it is not conclusive evidence ot title. Its recital binds no one. It does not ipso facto transfer the title of the owner as in grants from the govern- ment or in deeds between man and man. The deed is not the title itself nor even evidence ot it. No presumption arises upon the mere production of the deed that the facts upon which it is based have any existence ; when it is shown, however, that the ministerial officers of the law have per- formed every duty which it imposed upon them — every condition essential in its character — then the deed becomes conclusive evidence of title in the grantee according to its extent and import. But the instant it is shown, if it is shown that the requirements of the law were not complied with, the tax deed is a nullity. Nor can any legislative body declare that it is conclusive. For the reason that a state legislative body cannot violate the obligations of con- tracts and divest the estate of the citizen. It cannot do in- directly that which it is forbidden to do by direct means, nor can it under the guise of taxation or the appropriation of private property to public purposes, take the land of A. and give it to B. Suppose A. is the owner and in possession of a tract of land worth two thousand dollars. It is sold at a tax sale," and " B. purchased it at fifty dollars ; he pro- cures his deed and brings an action of ejectment against A." A. relies upon one of three defences Avhich ordinarily are conceded to be valid. 1st. That the land was not subject to taxation. 2. Or that it was never listed or valued and assessed. 3. Or that he paid the taxes before the sale. Can a legislature then step in and deprive him of his defence by 1 Girault v. Zaiitz, 15 La. G84. 2 Chonquctte v. Barada, 33 Miss. 249. Title by Estoppel. 311 (Iccluring that a deed shall be conclusive upon all points? Certainly not, for no legislature or law niaicing power pos- sesses such arbitrary authority. Sec. 295. The taxing power extends to the levy and collection of the tax. Taxable property is only embraced by it, and the power to collect cannot be extendea so as to reach and divest the property of one who has paid his tax promptly. The law does not, and never intended that a party who had performed all his duties to the public, should l>e deprived of his property in this way ; the power of tax- ation, so far as it relates to the collection of taxes, was de- signed to operate upon those only who should omit wilfully and negligently to pay these taxes to which they might be subject, and which should be legally assessed upon their estate, and not upon those who promptly perform all their constitutional obligation. The obligation is reciprocal, if the citizen performs his duty to the government. The gov- ernment should perform its duties to the citizen. Among the first of these, is protection to his property — not only from private force, cupidity or fraud, but from gov- ernmental plunder, and it cannot be taken l)y the state, or its agents, without any fault or omission on his part. If the laud was not liable to taxation, if no taxes had ever been assessed upon it, or if the taxes had been paid, the power of sale never attached to it, and for any legislature to declare or any court to decide that the owner is estopped under a tax deed, from showing that fact, is not only unconstitutional, but would be a monstrous doctrine. So that notwithstand- ing legislative enactment the doctrine of estoppel cannot be applied to a tax deed."^ A party is bound by the record under which he claims title.'- A county making a tax deed is one of the grantors, and is estopped by the recitals therein. Thus, where a Clerk of the Board of Supervisors without authority has issued a tax certificate, reciting that it was assigned by the county to J. C, and by him assigned to the defendant, the county is estopped from objecting to 1 Blackwell on Tax Titles. 2Black\vell on Tax Titles, 600; East v. Wells, 2 Vt. B. 18; Kellogg v. McLaughlan, 8 Ohio, 113. 312 The Law of Estoppel. such assignment or the deed issued upon the certificate, and the (county) former owner of the certificate cannot avail itself of the original defect of authority. It estops itself by the issuing of the deed^ where one of the parties claim- ing title to the land had made, in the capacity of collector, which office he formerly held, a tax deed of the land, under which the other party claims, and such tax deed is void by reason of stating a sale in lump, whereas the sale was in parcels. The party who made the deed is not estopped from setting up the defect iu the deed.- But a tax deed cannot be impeached by a mere intruder.^ A legislature cannot make a tax deed conclusive evidence of matters which are vitally essential to any valid exercise of the tax- ing power.^ 1 Woodman v. Clapp, 21 Wis. 350. ' 2 Byum V. Cook, 21 Iowa, S92. 3 Wheeler v. Winn, 53 Penn, St. 192. 4 Abbott V. Lindenbower, 42 Mo. 62. Leases by Estoppel. 313 CHAPTER XI. LEASES BY ESTOPPEL. Section 296. Leases become operative by way of estoppel where a lessor, at the time of making the lease, has no es- tate in the subject matter of the lease. In order that the estoppel can operate upon a lease of this kind, it must be by indenture, thus becoming the act of both parties, in order that the estoppel thereby created may be mutual.^ Mutuality is a necessary ingredient of an estoppel. Thus, suppose A. makes a deed of indenture of lease of premises to which he has no title, and afterwards acquires one during the term ; he will not be admitted to deny that his lessee had a good title to the same, nor, on the other hand, will the lessee, if permitted to occupy under such a lease, be at liberty to deny the title of his lessor.'^ For the want of mutuality, infants and femes covert are excluded from the benefit of a lease by estoppel where the lessor has no title at the time of the demise.^ The rule that the interest, when it accrues, feeds the estoppel, and that an after ac- quired estate enures to the benefit of the grantee, is pecu- liarly applicable, and in fact is one of the two modes under the old civil law, where an estate actually passed by estop- pel. Such is now and ever has been the rule,* but is wholly inapplicable where the lessor has any legal estate in the premises which passes by the lease, though than that which he has in terms demised.'' One reason for this rule, that in 1 Burton Real Prop. § 850; Co. Lit. 352, a; 1 Piatt Leases, 55. 2 Burton Real Property, § 850; Smith Land and Tenant, 32; Co. Lit. 271; Sturgeon v. Wingfield, 15 M. & W. 224; Bank of Utica v. Mersereau, 3 Barb. Ch. 567; "Wms. Real Prop. 329; Rawlyn's Cas. 4 Rep. 63; Bac. Abr. Lease, O. 3 1 Piatt Leases, 55. 4 Baxter v. Bradbury, 20 Me. 260; White v. Patten, 24 Pick. 324; "Wms. Real Prop. 330- 6 Cuthbertson v. Irving, 4 Hurl. &, Nor. 742. 314 The Law of Estoppel. order to ascertain what the amount of the estate is which actually passes ])y the lease, would opeu the very inquiry which it is the object and effect of an estoppel to preclude. It passes only what he has who makes it, while if it is wrongful, as by feoffment, fine, and the like, it operates to bar the estate Avhich may afterwards be in the one makiu<2^ it.^ The distinction should always be observed between the conveyance of a particular parcel of estate by description, and of the right or title that the grantor has in it. Sec. 297. A man, by accepting a lease by indenture from a stranger, may bind himself to be treated as the lessor's tenant, and to pay him rent during the term purported to be granted by the lease, unless he has been induced by fraudu- lent representations to accept the lease."^ Where one in possession of land, covenants with the owner to purchase it of him, but fails to, and the vendor brings ejectment for the land, the tenant is estopped by his covenant to set up au outstanding title against the claim of the plaintiff.'^ Sec. 298. Estoppels apply to leases for years with greater force than to deeds poll. Thus, if a person execute an in- denture, purporting to demise land for a term, in which he has no estate in fact, or no estate by a good legal title, and the want of such estate does not appear upon the instrument, the lease will operate upon any interest which he may after- wards acquire in the same land during the continuance of the term. It is requisite that it should be an indenture, in order to bind both parties, and make the estoppel reciprocal, while, if any valid interest, however short it may be of that pretended, actually passes from the lessor to the lessee ; the lease works no estoppel against him."^ Coke cites this case : A., tenant for life of B., makes a lease for twenty years, then buys the reversion. B. then dies. A. may enter and avoid his lease by virtue of his newly acquired title. But had he 1 2Prest. Abst. 411. 2 2 Prest. Abst. 210; Alderson v. Miller, 15 Gratt. 279. 3 Jackson V. Avers. 1 Johns. 224; Walker v. Sedgwick, 8 Cal. 403. i Shep. Touch. Prest. 53 ; Burt. Real Prop. 850 ; Wm .'s Real Prop. 229; Hermitage v. Tomkins, 1 Ld. Raymd.729; Jackson v. Bull, 1 Johns. Cas. 90 ; Co. Lit. 47G ; 2 Prust. Abst. 410. Leases BY Estoppel. ;^15 no title when he made the lease, and he then acquired one, he could not have contradicted his own lea.sc, and say it \v:ia Avliolly void.^ If the conveyance be rightful, us such, it derives its validity from the statute of uses. The circum- stance that a lease for years, was anciently notliiiig ni Perry v. Calhoun, 8 Hump. 551. 7 Grandy v. Baily. 3 Ind. 221. 8 Thorndike v. Spear, 13 Maine, 91. Applied to Dower. 333 of her ward's real estate, describing it as the entire title. Tlic order was made and the sale coniijlctcd accordiiiirlv, without any mention of her interest. She was estopped from setting it up.^ So A., being in possession of land, claiming title during his marriage with B., conveyed it to C, with general covenants of warranty, and delivered possession to'C, wliieh C. retained, deriving neither title nor possession from any other source. Upon the decease of A., B., his widow, claimed dower in the premises. C. was estopped from showing title in a third person with whom he did not connect himself, or from claiming an adverse possession.'^ In an action of eject- ment for dower, a purchaser, as well as the heir holding under the husband, or deriving title from under him, is estopped from denying the husband's title.^ Sec. 319. A release of dower in a mortgage deed wcjrks an estoppel, not only in favor of the mortgagee, but also of those who become entitle, by equitable substitution to its benefits.^ But a release of to a person who has conveyed the land by such deed, creates no estoppel in favor of any other person than the releasee. Thus, where the release was to a stranger to the title, it did not extinguish the right of dower, but if the stranger subsequently acquires the title, the release operates to bar the dower as to him by way of estoppel.^ Although a wife has signed a deed of certain premises, with her husband, she is not thereby estopped to claim dower therein, when the deed contains no words indi- catini? her intention to release her riiiht of dower.'' A widow who has received dower shall not claim land settled on her in jointure. If a widow, who is also devisee, release to a purcha- ser for a valuable consideration, she is deemed as having con- veyed, in every character which gives etiect to her deed, and she cannot set up that she conveyed only under a power, that she disaffirmed the provisions for herself in the will and took her dower and did not release that.^ 1 Wiseman v. Macy, 20 Ind. 239. 2 Ward V. Mcintosh, 12 Ohio S. 231. 3 Chapman v. Schroeder, 10 Geo. 321; Hale v. Mann, 4 Gray, 4 Dearborn v. Taylor, 18 N. H. 153. 5 Harriman v. Gray, 49 Me. 537. 6 Lathrop v. Foster, 51 Me. 367, 7 Dundas v. Hitchcock, 12 How. 256. 334 The Law of Estoppel. CHAPTER XII. ESTOPPEL IN PAIS, AND EQUITABLE ES- TOPPELS. Section 320. In addition to the branches of estoppel of which we have treated, there is still another class equally important, founded on equitable principles, which consist of admissions, which are again divided into two classes. They are solemn admissions or admissions in judicio, which have been solemnly made in the course of judicial proceedings ; their "solemnity" being apparently derived from the almost religious solemnity with which justice was dispensed in Eng- land, under the old civil law, which, in America, has in a great measure been dispensed with. And unsolemn admissions extra judicium, which have been acted upon or were made to influence the conduct of others, or to derive some advantage to the party which cannot be afterwards claimed without a breach of good fixith, that are known as Estoppels in Pais, or equitable estoppels. This class of estoppels, with the exception of their application to the peculiar relation of landlord and tenant, of which we will treat heareafter, have their origin in equit}^ and by universal custom have become a well settled and important branch of the law. Under the old English decisions, the mere acts, statements and admis- sions of a party, when not made or performed under seal, of record, or in the course of some of those acts to which peculiar authority was attached by law, were not considered as estoppels, and had no other effect or weight than evi- dence, more or less strong, but which might be explained or rebutted.^ But the later decisions in England and America, have given a much broader scope to the doctrine of estop- pels in pais than they originally possessed, and the law has been established to be, that whenever an act is done or a 1 1 Heaae v. Rogers, 9 B. & C. 577. Estoppel in Pais. 335 statement made by a party, which cannot he contravened or contradicted withont frand on his part and injury to others, whose conduct has been influenced by the act or ad- mission, the character of an estoppel will attach to what would otherwise be mere matter of evidence, auil it will become binding on a jury, even in opposition to proof of a contrary nature. Sec. 321. Equitable estoppels only arise when the con- duct of the party estopped is fraudulent in its purpose or unjust in its results, and this forms the distinction be- tween the common law doctrine of estoppel, and that which has groAvn up under the influence of equity, in modern times.^ Every solemn admission under seal was regarded as an estoppel by the older law, even where it was not shown to have been injurious to others, and might have been withdrawn without wrong by the person by whom it' was made ; the estoppel in pais of a feoffment was of the same nature as that of a sealed instrument. Sec. 322. The law in regard to admissions has alwaj's been to treat them against the interest of the party maldng them and therefore proba1)ly true. But in regard to the admis- sions implied from the conduct and assumed character of the party, it cannot be supposed that at the time of the princi- pal act or declaration the party believed himself to be speak- ing or acting against his own interest, but often to the reverse.- This class of admissions are therefore treated as a substitute for the ordinary and legal proof, either by virtue of the di- rect consent and Avaiver of the party, or on the grounds of public policy and convenience in the case of those implied from assumed character, acquiesence or conduct.^ In regard to the conclusiveness of admission, it must be remembered that the genius and policy of the law favor the investigation of truth by all convenient and expedient methods, and that the doctrine of estoppels by which fuilher investigation is precluded being an exception to the general rule, founded on convenience and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded. They 1 Taylor v. Ely, 25 Conn. 250; McAfferty v. Conovor, 7 Ohio State, 99. 2 1 Greenleaf Ev. 336 The Law of Estoppel. bind only parties and privies. "When verbal admissions are held conclusive, they are rendered effectually so by not per- mitting the parties to give any evidence against them. This class of admissions which have been held conclusive against the party, are those on the faith of which a court of justice has been held to adopt a peculiar course of proceeding, or on which another person hiis been induced to alter his con- condition ; while an admission may be conclusive in a civil action it may not be regarded as even admissible evidence in a criminal one. Thus, where a party was charged with misapjjlicatiou of money received from the government, the admission of his agent and receiver was held conclusive of the fact of the receipt of the money, but was not admis- sible to establish the charge of criminal misapplication of it.^ So that while a matter in jKiis, may be conclusive in a civil action it would not be admissible in a criminal one. Admissions which have been acted upon by others are con- clusive against the party making them in all cases, between him ;md the person whose conduct he has thus influenced, and it is of no importance whether they were made in ex- press language to the person himself or implied from the open and general conduct of the party. In treating of this branch of estoppel, it is to be remembered that etoppel in pais and equitable estoppels are one and the same ; though designated by either term. Sec. 323. The well established and often recognized fun- damental principle of law. Nullus Commodum Capere Potest De injuria Sua Propria. That no man shall take advantage of his own wrong, is fully recognized in all courts of law and equity, and is one of the most essential elements in an equitable estoppel, or estoppel in j^ais, which, as a principle of law, is founded on the strictest morality. As this class of estoppels are founded upon the principle of equity and justice that no man shall take advan- tage of his own wrong, where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as 1 29 How. State Trials, 764. Estoppel in Pais. 337 to alter his own previous position, the former is estopped from averring against the latter a different state of things as existing at the same time.' If a party uses language which in the ordinary course of business and the general sense in which the words are understood, conveys a certaia-meaning, he cannot afterward say that he is not Ijound, if another so understanding has acted upon it. If any peison l)y a course of conduct or by actual expressions so conducts himself tluit anothei- may reasonably infer the existence of an agree- ment or license, whether the party intends that he should do so or not, it has the effect that the party using that lan- guage, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.- Before the party is concluded by an estoppel, it must appear, first, that he has made an admis- sion w^hich is clearly inconsistent with the evidence he pro- poses to give, or the title to the claim he proposes to set up. Second, that the other party has acted on the admission. Third, that the other party will be injured by allowing the truth of the admission to be disproved. Where the acts and representation of the party must have influenced the other to do acts which he w^ould not otherwise have done, and where a denial or repudiation must operate to the injury of such other party, the estoppel is created. In discussing the matter of estoppel, the court in Welland Canal v. Hath- away'^ thus speaks of acts in pais : " An estoppel is so called because a man is excluded from saying anything, even tlie truth, against his own act or admission. The acts set up in this case, it is not pretended, constitute a technical estoppel which can only be by deed or matter of record. But it is said they should operate by way of estoppel, — an c.f that a wrong hnn been done, or is threatened, on one side, and injuiy suffered, or justly to be apprehended from it, on the other, nor unless the injury is so closely connected with the wron;^ that it might and ought to have been fore- seen by the guilty party. There must be some degree of wrong,- for a statement innocent in itoclf, and susceptible of being withdrawn or contradicted, cannot be rendered bind- ing by anything that wcurs subsequently, unless it is made with full knowledge that it will or may be acted upon,' when the mere attempt to retract is, in itself, a wrong. The first step in charging a party with the consequences of a false impression on which another has acted, is to know that he knew the impression existed and the result to which it would lead if not corrected.* Xo estoppel can grow out of the answer to a question put incidentally, and without com- municating the intention of the party who asks it, to \)e guided by the reply, -^ because, under these circumstances, whatever may be the injury on the one side, there is no implied fraud on the other. *^ Sec. 326. Equitable estoppels are, in a great degree, de- signed to prevent circuity of action, by preventing injuries by which redress would have to l>e sought by suit, and can not arise unless the evidence discloses some default or fraud for which compensation might be awarded by equity or law. The wrong must be coupled with an injury, and with injury, that is the legal result of the wrong, for where the public is not a party, and the suit is a purely private one, courts of justice sit for the puqjose of awarding re- 1 Smith V. Merton, 38 111. 2.30 ; Knobel v. Kirch, 33 III. 308. 2 Crest V. .Jack, 3 "Watts, 238; Commonwealth v. Moltz, 10 Penn. .521; Tay- lor V. Ely, 2o Conn. 2-00. 3 White V. Langdon, 30 Vermont, 509; Foster v. G. M. Life Ins. Co. 3 Ellis & B. 48. * Hill V. Epley, 31 Penn. 331. 5 Ptiirce V. Andrews, C> Cush. 4. 6 Wakefield v. Crossman, 25 Vermont, 290. 340 The Law of Estoppel. dress and corapeusation, and not for that of inflicting pun- ishment. Therefore an estoppel does not arise and will not grow out of a mere falsehood, however flagrant, unless its results are such as to render the action of the law necessary, to prevent some one who has been misled by it from suflfer- iug on the one hand, or the guilty party from gaining an undue advantage on the other. Sec. 327. To give rise to an equitable estoppel, there must be a wilful representation by one party, made with an intention that it should be acted on by the other ; or where they are of a nature to be injurious, injury may be inferred ; that is, no one should be estopped from alleging the truth, unless his false assertion or equally culpable silence have been the inducement to a course of action which would re- sult in a loss, if he were permitted to change his position, and enforce the right which he has thus expressly or vir- tually waived. The question, in such cases, is not so much what was meant, as what the meaning must have been un- derstood to be ; and a man who uses words that can only be interpreted by those to whom they are addressed as an un- qualified assurance, will not be permitted to allege subse- quently, to their injuiy, that he wished or intended them to be taken in a different sense. ^ Sec. 328. The doctrine of equitable estoppel is founded upon the principle that a party has, by his own volun- tary act, placed himself in such a situation in regard to some fact, that he is precluded from denying it. Its appli- cation to the dealings and contracts of men is a salutary one — that a man shall not be permitted to deny what he has once solemnly acknowledged. They will not be carried further than is necessary for the attainment of the object, and they may be waived or enforced at the pleasure of the party who has acted on the faith of the representation or admission out of which they arise. The techuicalltics inci- dent to estoppels have been gradually giving way to con- siderations of reason and practical utility, and the courts 1 Patterson v. Lyttle, 11 Penn. 53; Simons v. Steele, 36 N. H. 73; Wharton V. Ilardisty, 8 El. & B 232; Forsyth v. Day. 46 Maine, 176. Estoppel in Pais. 341 seem disposed to give force and efficacy to a doctrine wliich is based upon principles of justice and the purest morality. Sec. 329. Equitable estoppels are as binding upon privies as legal estoppels, and are as efiectual in courtirof law as in equity. The act or assertion must be wilful, with intent to deceive the other party. Parties are only estopped from denying their own acts when the denial operates to the in- jury of another, and when such expressions are expressly designed to and do influence the conduct of such person. "An admission by the defendant intended to influence the conduct of the man with whom he is dealing, and actually leading him into a line of conduct which must be preju- dicial to his interest, unless the defendant be cut ofl* from the power of retraction, is the very definition of an estoppel in pais "^ But a man can be estopped from denying only what he has once admitted. An estoppel m pais is to be resorted to solely as a measure to prevent injustice. Always as a shield, but never as a sword.'- Where a party fails to make his rights known, where fairness and good conscience require that he should do so to protect the interests of others, he cannot be heard as against them to assert such rights.3 Estoppels in pais, as well as those which are technical estoppels, must be reciprocal.* Sec. 330. A person who intentionally or by culpable neg- ligence induces another to act on his representations will be estopped from denying their truth. Under the circumtanccs creating the estoppel, representations made by words, acts, or silence when duty requires the party to speak are con- clusively presumed to be true as against him and in favor of the person whom he has misled. The estoppel is called into life for the purpose of preventing wrong and redressing injury, and being never carried further than is neces.sary to prevent one party from being injured by his reliance on the acts of another, and therefore no declarations or acts give rise to an estoppel unless they have been relied and acted 1 Delzell V. Odell, 3 Hill, 215. '- Pierrcpont v. Barnard, 5 Barb. 364. 3 Floyd V. Lee, 45 111. 277. * Welland Canal Co. v. llatheway, 8 Wend. 480. 342 The Law of Estoppel. upon, and unless their denial would prejudice the person in whose favor the estoppel is introduced. Thus a declara- tion or act retracted before it is acted upon, does not raise an estoppel; it may exist for one purpose and not for another and in favor of one person and not in favor of another, though growing out of the same transaction.^ A i:)arty who has receipted for goods, as the property of the defendant in attachment, may prove property In himself in a subsequent suit brought for the goods by the plaintiff in attachment, in mitigation of damages can neither be benefited by the goods, nor injured by their loss, unless they actually belong to the defendant ; but if it is shown that there was other property of the defendant in the attachment, which would would have been seized but for his acts and declarations, he will be es- topped from proving title subsequently either in mitigation of damages or in bar.- While a man, whose goods are wi'ongfully sold under a writ against another may bid at the sale to raise their price to a fair value, and with a view to his own protection, without losing the right of redress from the officer making the sale f he is estopped from questioning the title of the purchaser. Where a sheritf had a writ com- manding him to arrest A. and took into custody " B." who represented that she was the person named in the writ. The sherifi* after asceitaining his mistake was compelled to discharge B., but B. was estopped by her representations from suing the sheriff for the original taking. In order however to raise an admission or statement by one party from the rank of evidence to the dignity of an estoppel, it must not be shown that its retraction would be injurious to the other but that the injury results from a course of action induced by the admission.* Thus if a man induces a trades- man to supply a woman with goods by representations that she is his wife, he will be concluded by the representa- 1 Brusley v. Hamilton, 15 Pick. 32 ; Wilder v. Cit. St. Paul, 12 Minn. 202; Combs. V. Cooper, 5 lb. 254. 2 Deweys v. Field, 4 Met. 384. 3 Ileane v. Rogers, 9 Barn. & C. 517. 4 Dunlap V. Patterson, 2 C. B. N. S. 495. EsTOPrEL IN Pais. 343 tion and will not afterwards be permitted to show that she was not his wifc.^ Sec. 331. Equitable estoppels are always applicable, in cases where an attempt is made to assert a right, subse- quently, to the injury of others, which was waived by ac- quiesence at the time. Thus a man who induces another to comply with an award by alleging that the suljinission em- braced all his demands, is estopped from afterwards enforc- ing a claim which was fraudulently withheld from the arbi- trators.'^ And in the same way a party who prevents a plaintiff in an action from exacting bail, by an assurance that he has already entered into a recognizance for the ai> pearance of the defendant, is estopped by his action from relying on the insufficiency of the recognizance as a defence to a suit brought upon it for the debt.'* But where l)oth parties know, or have the means of knowing, and each is equally in fault, neither can have any equitable claim to relief asfainst the other,* and it matters not that means were used to* deceive, if the other party was not in point of fact misled.^ The estoppel is not extended beyond its require- ment to prevent one party from being injiired by his reli- ance upon the acts or declarations of the other. '^ Where the possession of goods is obtained on the faith of an admis- sion of the right of the person, from whom it is derived. The admission is only binding while possession is retained." This rule is the same in every case where the admission is relied on as conclusive, and limits the estoppel to what is necessary to put the parties in the position which they would have occupied had the admission not been made.*^ In order to create an estoppel in pais, or equitable estoppel, as defined and established by the law at the present time, there must be an admission intended to influence the conduct of the 1 Case V. Farrer 12 Min. 89. 2 Wyman v. Perkins, 89 N. H. 219. 3 Hanly v. Middlebrook, 28 Conn. 527. 4 Commonwealth v. Nancty, 10 Penn. 527.. 5 Jewett V. Miller, 10 N. Y. 42; Larkins' Appeal, 38 Penn. 427. 6 Kinney v. rarnsworth, 17 Conn. 345; Miller v. Cresson. 5 W. & S. 284. 7 Johns V. Church, 12 Pick. 307. 8 Bocock V. Pavey, 8 Ohio S. 270. 344 The Law of Estoppel. man with whom the part}^ is dealing, and actually leading him into a line of conduct prejudicial to his interest, unless the party estopped be cut off from the power of retraction. A better definition is given by Bronson, J.,^ who said, to con- stitute an estoppel in pais against a party, there must be, 1st, an admission inconsistent with the evidence which he has proposed to give, or the title or claim which he proposes to set up ; 2d, an act done by the other party on the faith of such admission ; 3d, an injury to him by allowing the injury to be disproved. This definition shows that the diiference between this kind of an estoppel and legal estoppels, is that the inference that the admission was the basis of the act or covenant and cannot be justly retracted, which is drawn in the one case by the law from the seal, and must be supplied in the other by proof. Thus, where a party who had pointed out certain property as belonging to an execution debtor, and stands by and sees the sherifi" sell it as the property of the defendant, he is estopped from contradicting these state- ments and proving property in himself, and this principle extends to eveiy case where an unauthorized sale is ex- pressly or impliedly sanctioned by the owner, and it estops him from setting up his own right against the purchaser. Sec. 332. Estoppels must ordinarily be mutual and will not extend beyond the parties to the contract or transaction in which they arise.^ A declaration or admission made to one man can seldom be absolutely conclusive in favor of another f but when the statement is meant to influence the conduct of third parties, this rule does not apply. It embraces in its conclusive efiect parties and privies and estops all who claim under the person originally barred. Thus, the buyer of a chattel was held to be within the bar of an estoppel in pais growing out of the acts and declara- tions of the vendor.* And the rule is the same in regard to an estate in land,'' but as the interest conferred by an estoppel 1 DelzeU v. Odell, 3 Hill, 219. 2 Griffin v. Richardson, 11 Ired. 439; Hoffner v. Noble, 11 111. 531; Wright v Hazen, 24 Vermont, 143. 3 Heane v. Rogers, 9 Barn. & C. 517. ^ McCrevey v. Remson, 19 Ala. 430. 6 Barber v. Edson. 35 Vermont, 304; Herbert v. Norcross, 35 N. H. 19; Snod- grass V. Ricketts, 13 Cal. 354. Estoppel in Pais. 345 of this description is where real estate is involved, essentially equitable, subsequent purchasers will not be bound with- out notice. A judgment creditor is generally subject to every equity that would have been l)indiiig on the debtor.' An estoppel can never be founded upon an omission to object to the peiformauce of an act which was lawful when done by the party doing it, or for an omission to deny an asser- tion which was true when made. It is when a party stands silently by, and sees an unwarrantable act done to his prop- erty, or hears- a false and injurious declaration made in relation to his rights, that he is estopped from subsequently questioning the act or statement to the prejudice of an in- nocent party.- No one can be estopped from refusing to do an illegal act, and an estoppel can only operate in favor of a party injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out throu^-h its operation.-^ Sec. 333. Where a declaration is so general in its terms, or made under such circumstances as to indicate that it was intended to reach third persons, or the community at large, the estoppel will be extended far enough to protect every one who may have been presumed to have acted or been governed by it.^ While a bond signed and sealed in blank may not (according to some authorities) be valid between the parties, it is binding when it is in the hands of third parties after it has been filled up by the obligee. Thus, a recital in a deed that a judgment given for the price had been paid, was held to estop the grantor from setting it up against subsequent creditors, who, though not technically privies, might have refrained from trusting the grantee, if the judgment had still been in force.^ And an alley which 1 Brace v. Duchess of Marlbourg, 2 P. Wm. 471; 2 Lead. Cases In Equity, 3 Ed. 108. 2 Corning v Troy Nail Factory, 39 Barb. 31. 3 N. Y. V. N. H. R. R. Co. v. Schuyler, 34 N. Y. 30. 4 Mitchell V. Reed, 9 Cal. 204; Graff v. Pittsburg & Steubenville R. R. Co., 31 Peon. 489; White Mt. Bank v. West, 46 Me. 15; Quick v. Thomas, 6 Mich. 76; Cary v. Clark, 13 La. 465; Crawford R. R. v. Lacy, 2G. & J. 79 5 Waters' Appeal, 35 Penn. 523. 346 The Law of Estoppel. had been treated for a number of years as the common property of the owners of the adjacent houses, cannot be closed by one of them against a purchaser, who may be presumed to have purchased on the faith of the appearance.^ Courts go a great Avays in presuming that acts and declara- tions calculated to influence third persons have, in fact, reached their ears and induced them to buy. In another case- it was held that bona fide purchasers who, by the deceptive acts of acquiesence of the wife in the will of her husband, might have had reasons for believing that its pro- visions would not be disturbed or would estop her, though it cannot be shown that the purchasers acted on that belief. This extension of equitable estoppels is peculiarily applica- ble to those statements which like letters of credit or the prospectus of an insurance company, are addressed to all the world, and where the defendants had advertised that they would not refuse the payment of a loss on any ground short of fraud, they were held estopped from taking advan- tage of a failure to comply with the requisitions of the policy which Avas not actually fraudulent.-^ There can be no estoppel in equity or on any principles of equity unless the person who asks relief from the rigor of the law is a purchaser in the large and liberal sense in which the term includes all who have given value, or changed their position for the worse in reliance on the acts or declarations of others.* A donee or devisee cannot, therefore, enforce an estoppel which would not have been valid in favor of the donor or devisor, and the same principle applies to every one who takes a conveyance or assignment without giving anything in return, and will, therefore, be in no worse condition if the title which he has fails than he was before,'^' Sec. 334. Estoppels are strictly construed, and are not allowed as instruments of fraud, but only to prevent injustice. 1 Lewis V. Carstairs, 6 "Wharton, 193. 2 Ackla V. Ackla, 6 Penn. 228. :« Wood V. Dwarris, 11 Echq. 493. 4 Weaver v. Lynch, 25 Penn. 449; Goodhue v. Scamwell, 3 Cal. 827; Thompson v. Thompson, 9 Ind. 323. 6 Weaver v. Lvnch. 25 Penn. 449. Estoppel in Pais. 347 Sec. 335. There can be no cst()pi)cl whore the act or rep- resentation is made or done afterwards. Thus in an action of replevin brought for a mare, levied on by the defendant under an execution against a third person, the plaintill" wius permitted to show that the third person had no title, although he had declared some months previously that the mare was the common property of both. The court held that if this statement had been made at the time of the levy it would- have been conclusive, but that as it occurred in the com'se of another transaction it was to be regarded in the light of an ordinary admission, and was consequently open to explana- tion and contradiction, whatever the loss on one side and the degree of moral wrong on the other may be, there will be no estoppel unless the loss is the direct and natural result of the wrong ; nor unless it is clearly apparent that the injuri- ous influence exercised by the acts and declarations which constitute the estoppel, if not intended might have been fore- seen. A man will not be bound by an answer to a question asked without disclosing the object, and which he may rea- sonably deem frivolous or impertinent, nor unless he has notice that the person by whom it is put means to shape his course by the answer. Thus it was held, that a representa- tion by the defendant in an execution, that the goods seized by the officer were the property of his brother, did not estop him from proving that they were really his own, although the sheriff went on to sell them, under a suit against the brother, if the existence of which the defendant was ignorant, because the circumstances of the case, taken as a whole, were such as to show that the representation was not meant to bring about the sale, then the sale Avas not the re- suit of the representation.! A declaration to one man can rarely operate as an estoppel in favor of another, not only because what is learnt merely through report seldom has much influence on conduct, but because it would be unjiist in most cases to cany the responsibility arising from a statement fur- ther than the person to whom it is addressed, or render the per- son answerable for every act that may be built on it by stran- 1 Freeman V.Cook, 2 Exchq. 653 ; Howard v. Hudson, 2 S- & B. 1. 348 The Law of Estoppel. gers. Thus a letter written to an assignee of a bond, acknowl- edging that it was justly due, Avas not held to be an estoppel in suit brought for the benefit of a third person, by whom the bond was subsequently purchased, because there was no evidence that the purchaser had seen the letter or was influ- enced by it in purchasing the bond.^ Sec. 336. No man can adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit.'- This applica- tion of the law of equitable estoppel admits of less mistake or misapprehension than any other, and is a favorable doc- trine with all tribunals whenever the circumstances are such as to admit of its application. Therefore, where those who are entitled to avoid a sale, adopt and ratify it, equity will estop them from afterwards setting it aside for reasons which are too plain for statement.^ Where a sale of land is made no one can be permitted to receive both the money and the land. Even if the vendor possessed no title at the time of the sale the estoppel would operate upon a title subsequently acquired. Equitable estoppels of this character apply to infants as well as adults, to insolvent trustees and guard- ians, as well as to persons acting for themselves, and have place as well where the proceeds arise from a sale by autho- rity of law, as where they spring from the act of the party. The receipt of the purchase money is an affirmance of the sale whether it were void or only voidable. Thus, where a husband and wife were seized of an estate by entireties, the husband, by will, directed the land to be sold, and the proceeds divided amongst his children, and died leaving a wife and a number of children ; having named no one to make the sale, the land was sold under an order of court, and bought by two of the children, at the request of the widow, who received her share of the proceeds, in accordance with the will. After her death, in ejectment for the land by the heirs, held they were estopped. If she were inno- 1 Eldred v. Hazlitt, 33 Penn. 307. 2 Males V. Lowenstein, 10 Ohio S. 512. 3 Johnson v. Fritz, 44 Penn. 472 ; Pickens v. Tarborough, 30 Ala. 408 ; Bo- cock V. Pavey, 8 Ohio S. 270 ; State v. Stanly, 14 Ind. 109. Estoppel in Pais. 349 cent of her rights, she would be estopped upon the princi- ple that, where one of two innocent persons must sutler, it shall be he who caused the injury. One who encourages another to purchase land, and spend money on it^jtSimnot set up a better title in himself to defeat the purchaser. Silence alone will not postpone unless it is a fraud, but positive encouragement without fraudulent intent will bar the asser- tion of a right. It makes no ditference, if the defect in the title might have been discovered by the purchaser, he has been put olf his guard, and a party cannot have the price of the land, and the land itself. The acceptance by the widow and heirs, was an affirmation of the sale, whether it was void or voidable.^ And where a court decrees the sale of an adult's lands, and he assents to it, he is estopped.'- It makes no difference in the application of this principle, whether the proceedings under which the sale occurs are voidable or wholly void, in consequence of the want of jurisdiction.'^ The design and utility of the estoppel is to prevent the gross injustice that must necessarily arise, where a man accepts all the benefits from an act that it is capable of con- ferring, and then sets it aside to the injury of third persons. Sec. 337. A defendant in an execution is estopped from questioning the validity of the writ or judgment by allowing the purchaser to make payments to the sheriff in satisfaction of the judgment debt.^ A defendant who has notice that his property is about to be sold by the officers of the law for the payment of his debts, and who makes no objection until an innocent purchaser has paid the purchase money and received a deed duly acknowledged, is estopped from objecting after- wards. Even if the judgment on which it was sold was paid, the payment cannot be set up against such a purchaser.^ Where parties have admitted and acted upon instruments, they are estopped from denying them, unless the admissions were made by mistake or procured by fraud. Where the grantor 1 Maple V. Russart, 53 Penn. 348. 2 Sange's Appeal, 53 Penn. 383. 3 Spragg V. Schriever, 25 Penn. 282 ; Mcrritt v. ITone, 5 Ohio St. 307. 4 Mitchell V. Freedy, 10 Perm. 208 ; Crowell v. Meconky, 6 Penn. 176. 5 Dean v. Connely, 6 Penn. 234. 350 The Law of Estoppel. of laud passed it by deed to A., and after the death of the grantor his heirs recognized the deed and confirmed it upon the death of the grantee the property descends to his heirs. One who is cognizant of all these transmissions and assented to them, cannot go behind these links of title to dispute them. A party ought not to be heard to contradict and falsify his own solemn admissions and declarations made be- fore judicial tribunals. When an ancestor has acquiesced in acts so as to conclude her, her heirs are likewise concluded.^ Sec. 338. Where money is borrowed to make a purchase, and title taken in the name of the lender of the money to secure his advances, he is estopped from pleading illegality of the purchase, so as to retain the property.^ Where a party received money of a person legally intrusted with it and interested in it, and contracted to deposit it to the credit of such person, he is estopped, in a suit for such recovery, from setting up as a defence the rights of some third person with whom he had no contract.^ Where a party is bound to pay a sum of money upon the happening of a particular event, his preventing the happening of that event operates as an estoppel.'* An agreement to cancel and release mutual claims, or discontinue mutual suits, is a mutual accord and satisfaction, and either party may rely on it as an estoppel against the prosecution ot the suit or claim by the other. Every person is considered to be acquainted with the law, both civil and criminal, and no one can, therefore, complain of the misrepresentations of another respecting it.^ A judgment debtor who has mingled, with goods levied on by the sheriff, other goods of the same description, and refuses to designate them to the sheriff, will be estopped from a re- covery against the sheriff for seizing those with the rest.*" Sec. 339. The declarations on the part of an inventor that he did not intend to take out a patent, but to let the 1 Porter v. Hill, 30 Tex. 529. 2 McMicken v. Perrin, 18 How. 507. 3 Sinclair v. Murpliy. 14 Mich. 392, 4 Bleeker v. Bond. 3 Wash. C. C. 529. 5 Piatt V. Scott, 6 Blackford, 389. 6 Roth V. Wells, 29 N. Y. 471. Estoppel in Pais. 351 ])u])lic have his invention, will estop such party, or any one holding under him, from asserting his right against a person acting on the faith of his representations.' Where one has advertised a patented article as one of the most useful of in- ventions, and one which has superseded all similar articles, and has also sold such articles for use, such person is estop- ped, in an action against him for an infringeipent of the patent, from denying the utility of the invention.'- An in- ventor can have but one single valid patent for his invention. The first he obtains, while it is unrepealed, is an estoppel to any future patent for the same invention.'^ A grant of a subsequent patent for an invention, is an estoppel to the patentee to set up any prior grant for the same invention, which is inconsistent with the terms of the last grant.* Sec. 340; Where, in a written contract for the erection of a house, a question arose whether certain work was extra work, and the question was submitted to the architect, who decided that such was extra work, the owner is, by such submission, estopped from afterward denying that it was extra work.^ Where a district township has exercised juris- diction over certain sections claimed by another district, by collecting taxes therefrom and providing schools for the children resident thereon for several years, during a portion of which time the other district has refused admission to its schools for scholars residing on the section thus in dispute, and has made no claim thereto, the latter district will be estopped from afterwards asserting its claim to the disputed territory." The United States having treated one as a collector, under a special act, during a cer- tain period, were held to be estopped from denying his right to the compensation provided by the act.' Where a man has cohabited with a woman, and treated her in the face of the world as his wife, he cannot deny this 1 Pitts V. Hall, 2 Blatchford, 229. 2 Stanley v. AVhipple, 2 McLean, 36. SOdiome v. Aniesburg Factory, 2 Mason, 28. 4 Barrett v. Hall, 1 Mason, 447. 5 Stewart v. Keteltas, 36 N. Y. 388. 6 School Dist. V. Hobson, 25 Iowa, 275. 7 U. S. V. Collier, 3 Bl. C. C. 325. 352 The Law of Estoppel. and claim to be her servant, in respect to her lands, which are taken in execution against him ;^ and he cannot object to a creditor who supplied her with goods during the cohabi- tation, that she wjis not his wife."^ The levy and sale of land by a sheriff, was left in doubt as to its extent by the terms )f the deed ; and L., the purchaser, declared that a certain is-hmd and^other land was not included ; these were after- wards purchased by S. If S. purchased in consequence of L.'s declaration, he and those taking from him by a deed subsequent, would be concluded.^ Sec. 341. It has been held in numerous cases, that in the action for use and occupation, the possession of the defendant by the plaintiff's permission being made out, the former will not in general be allowed to dispute his landlord's title. A receiptor of property to the sheriff who hiis taken it in execu- tion, is estopped to question the sheriff's title, though he have suffered it to remain with another by whom it is eloigned.* Where one was present w'hen a levy is made by an officer, and does not deny the right of the officer to make the levy but furnished a list of the property to be levied on, takes an active part and assist the officer, advises bystanders to bid and disapproves another's foi'bidding the sale ; although it may appear that such conduct is wilful and fraudulent for the purpose of deceiving the officer the party so conducting him- self is estopped from afterwards alleging the officer to be a trespasser. Again : the plaintiff in possession of land, was hired by the defendant to depasture his cattle on the land. In assumpsit for the price, the defendant was holden con- cluded, and could not with a view to invalidate the contract, show the land to be his own and not the plaintiff's.^ Sec. 342. A party is usually concluded by admissions or conduct upon which others have been induced to act : and where, if he were permitted to prove that such admissions or conduct were false, such permission would operate as an 1 Divall V. Leadbetter, 4 Pick. 220. 2 Jennings v. Whittaker, 4 Monroe, 52. ^ Swartz V. Moore, 5 Serg. & Rawle, 257. •t Pliilpots V. Hall. 8 Wend. 610. 5 Eastman v. Tuttle, 1 Cowen's Rep. 248. Estoppel in Pais. 353 injury to the persons who were misled by them. Such ad- missions and conduct, although they cannot operate us a technical estoppel, which can be by deed or record only, op- erate by way of an estoppel in pais. The partyjhall be es- topped, where his intent was to influence the other, or derive a credit or advantage to himself.^ Thus where one of several defendants had a good cause of defence, and by the fraudu- lent device of the plaintiff was prevented from making it and also from making his motion within the time allowed by law to set aside the judgment, for mistake, inadvertence, surprise, or excusable neglect. The plaintiff and his administrator were estopped from enforcing his judgment against such de- fendant, and especially in the case where the plaintiff did not attempt to enforce it, but repeatedly asserted to such defendant that it was satisfied and released." A party who pledges to another goods that he does not own, and at the same time makes a delivery of them, is estopped from set- ting up a title to the goods subsequently acquired during the existence of the pledge, and the pledgee may recover pos- session of them as against him or any other party possessed without right.^ Sec. 343. The class of solemn admissions which by law are charcterized and have the force of estoppels, are gener- ally, all agreements of counsel, which necessarily dispense with the legal proof of the facts admitted. Thus if a mate- rial allegation, well pleaded, is admitted by the adverse party, it matters not whether it be by pleading some other matter or demurring at law it be conclusively admitted.^ A party cannot contradict by parol evidence what the plead- ings themselves admit in the very cause on trial. Nor can the jury find contrary to those admissions which are made at the trial, they are conclusive against the party making them.'^ So is a stipulation by an attorney oil record 1 Tufts V. Hayes, 5 N. H. 463; Kingsley v. Yernon, 4 Sand. 361; Young v. Fonte, 43 111. 43; Ray v. Bell, 24 111. 444. 2 Johnson's Admrs. v. Unwersaw, 28 Ind. 435; Stone v. Lamon, 28 Id. 97. 3 Goldstein v. Hart, 30 Cal. 372. 4 Young V. Wright, 2 Campb. 139 ; Wilson v. Turner, 1 Taunt. 398 ; 1 Green- leaf Ev. 5 Vandervoort v. Smith, 2 Cam. 155. 23 354 The Law of Estoppel. to admit certain facts on trial of the cause.^ The mere silence of counsel on the trial, as omitting an objection to a defect in the testimony, will conclude the client, even in respect to the existence of records, documents, and other testimony of the most important character, on the familiar principle that a silent concession has been acted upon by the other party, or that he has omitted evidence which he would otherwise have produced. Sec. 344. The admissions of attorneys of record bind their clients in all matters relating to the progress and trial of the cause. But in order to have this conclusive effect it is necessary that they should be distinct and formal or of the nature of those which are termed solemn admissions made for the express purpose of alleviating the stringency of some rule of practice or dispensing with the formal proof of some fact at the trial as a substitute for the regular legal evidence of the fact. Judicial admissions or those made in court by the party's attorne}-, appear either of record, as in pleading, or in the solemn admission of the attorney, made for the express purpose of being substituted for the legal evidence of the fact at the trial, or in a case stated for the opinion of the court. Admissions made before trial relating to the course of proceeding in court, are equally under its control, in effect, by means of its coercive power over the attorney in all matters relating to professional character and conduct. But it must be remembered that the attorneys are engaged in the cause. But in cases of mistake where the admissions have been improvidently made, the court will generally relieve the party from the consequences of his error, ^' nonfatetur, qui err at nisi jus ignoravit. Sec. 345. Conseiu Doe d Johnson v. Baytup, 3 A. & E. 188. 6 Gar hart V. Finney, 40 Mo. 340. Estoppel in Pais. 3(U estopped from setting up a breach of the couditions of the lease and demandino; a forfeiture.^ ^*^ Sec. 351. The ordinary method of estahlishiiitr: a privily in estate, is by proof of the payment of rent, ^vhit•h is always prima facie evidence of the title of the landlord and is conclusive against the party paying and all others claiminf under or in privity with him. If a privity in estate hiis sub- sisted between the parties, proof of title is unnecessary ; for a party is not allowed to dispute the original title of h^m ])y whom he has been let into possession. So a lessee of a close in severalty demised to him by one of several tenants in com- mon, cannot set up an adverse title in bar of an action by his lessor.- This applies to the case of a tenant, b}'^ wrong against the owner and to one holding over after the expira- tion of the lease, though the landlord's title was acquired by wrong, or only an equitable title, and when the relation of landlord and tenant is once established by express act of the parties, it attaches to all who may succeed to the possession through or under the tenant, whether immediately or re- motely ; the succeeding tenant being as much affected ])y the acts and admissions of his predecessor in regard to title as if they were his own. So a purchaser at a sheriff's sale is privy to the debtor's title, and is therefore equally estopped with him. An agreement to purchase lands if made de- liberately, estops the purchaser from denying the title of the purchasee, as a recovery cannot be had in ejectment with- out proof of title, and that it may be defeated by proving an outstanding title in a third person. The result of allow- ing a tenant to deny the right of a landlord, in an ejcctnu-nt for the land, would be to take the estate from the landlord and confer it on the tenant whenever there is a defect either in the title itself or the proof brought forward to sustain it. The law therefore does not permit or tolerate a coui-se \\lii
  • er.- Sec. 371. As this class of estoppels are founded upon the injustice of keeping possession of the land, in violation of the implied or express understanding of the i)arties, they cease to exists as soon as it is surrendered,-' or taken from him l)y the entry of a third person under a paramount title. The efflux of the term and the surrender of the i)reniises leaves the tenant free to contest the landlord's title even when the lease is under seal.* Estoppels being limited in their application to the transactions in which they arise, they cease to exist when the purpose for which they came into being is satisfied. Sec. 372. Equitable estoppels have an important bearing on the surrender of particular estates to those in remainder or reversion, and the consequent extinguishment of the rights and duties incident to the estates surrendered. The statute of frauds, which renders a writing necessary to the validity of a surrender, expressly except surrenders by oj^eration of law. The participation of a tenant for life, or for years in any act of the remainderman or the reversioner inconsistent with the continuance of the tenancy, will enure as a sur- render by operation of law and thus come within the excep- tion of the statute, even when the act is in j^ais and the original lease by deed.' Especially when the act consists in the grant of a new estate in the tenant himself, as whi-n the lessee for life accepts a feofiment with livery from the lord or a new lease from the reversioner, or when the parties to a lease enter into an agreement which substitutes the relation 1 Upshaw V. McBride, 10 B. Mon. 202 ; Grandy v. Bailey 13 lied. 221. '■2 Doe V. Skirrow, 7 A. & E. 157. 3 Reed v. Shepley, 1 Vorm't. 202; Camp v. Camp, 5 Cuw. 201 ; Moshicr v. Redding, 12 Me. 478; Moore v. Freeman,! Bushy, 95. 4 Wild V. Russell, 10 Gratt, 405; Stewart v. Smith, 2 Dev. 258. 5 Baiter v. Pratt, 15 111. 570. 380 Estoppel in Pais. of vendor and vendee for that of landlord and te.uant.^ Where the tenant assents to a lease to a stranger and sur- renders possession, which is taken by the new lessee, it estops the first tenant while it may not be regarded as a surrender of the term, from enforcing his lease to the injury of the lessor and second lesee, the other parties to the transactions.'-^ 8ec. 373. No contract or agreement can take effect, either as a surrender by operation of law or as an estoppel, unless it has been acted upon, or wholly or partially executed. An agreement between a landlord and tenant, for a change in the tenancy, or to put an end to the lease, will not be binding as an agreement, without some new extrinsic or in- trinsic consideration,^ nor operate as a surrender, unless it enures as a new or actual lease,* or manifests, in some equally unmistakable way, a design to substitute a new and inconsistent relation for that which has hitheito prevailed.^ An agreement with a stranger for a new lease, unattended by a change of possession, will be ineifectual, although made with the assent of the tenant.'' The grant of a new lease is a material and indispensable ingredient, unless its place is supplied by other circumstances, because the mere entry of a third person, and even the acceptance of rent from him by the landlord, are evidence, not of the surrender of the ex- isting term, Ijut of its transfer or assignment, and conse- quently go to charge the new tenant, without discharging the original lessee.from his express covenant, whatever may be the effect on those which are implied.^ A surrender of the estate by the lessee to his lessor will not authorize him to deny the title of his lessor, unless it is made fairly, so as to give time to the lessor to take possession ; and if imme- diately after a surrender the tenant takes a lease of an ad- 1 Livingston v. Potts, 16 Jolitis. 28; Burnett v. Scribuer, IG Barb. G21. 2 Nicoll V. Athertoii, 10 Q. B. 914, Dawson v. Gent, 1 II. & N. 744; Kandall V. Rich, 11 Mass. 494; Haseltiiie v. Seavey, 16 Maine, 212. 3 Crowl)' V. Witter, 1 Exch. 318. i Doe V. Thomas, 6 B. & C. 288; Doe v. Poole, 11 Q. B. 713; Brewer v. Dyer 7 Gush. ;«7; Donnelan v. Kcid, 3 B. & A. 899. 5 Allen V. Jacques, 21 Wend. 528; Lamont v.Trest, 2 H. & G. 4oo. c Lawrence v. Brown. 5 N. Y. 394; Seliieffelin v. Carpenter, 15 AVend. 400 7 SehieHelin v. Carpenter, 15 Wend. 400; Preston v. McCall, 7 Grattan 121; Ghegan v. Young. 23 Penn. 18; Shepperdson v. Elmore, 19 Wise' 424. Landlord and Tenant. 381 verse claimant, it does not extinguish the cstopprl.' 'llic execution of a new lease to a stranger, with tk«*assent of the tenant, Avill not operate cither as a surriMuler of the original term or as an estoppel, unless followed by the entry of the stranger and the withdrawal of the tenant, for the reason that until the entry, the transaction is executory, and there is not sufficient matter in i:)aiis to make up for want of written evidence.^ Sec. 374. Both landlord and tenant may be estopped from insisting on their rights under the lease, by circum- stances which fall short of a new tenancy. The delivery up of the key to the house by the tenant and the acceptance by the landlord constitutes a surrender by operation of law,* and the landlord cannot make the tenant subsequently liable in an action for use and occupation.* But to produce this result the tenant must not only deliver possession to the land- lord, but the landlord must accept it in satisfaction or rescission of the lease.^ A lessor being entitled to re-enter when the lessee withdraw^s, for the purpose of taking care of the property, and preventing the intrusion of third persons, withotit abandoning the right to enforce the lease, and proof that the key was sent or left by the tenant and received by the landlord, does not warrant the inference that the lease was surrendered, unless it is shown that such w;i^ the olyeet of the tenant, and that he would not give up the lease on other terms.^ It is not necessary that possession shall be given directly to the landlord, the abandonment of the premises under such circumstances that indicate that the tenant has no intention of returning will justify the landlord in regarding the term as at an end.'' While the landlord may treat the derelectiou of the tcu- 1 Wall V. Hurds, 4 Gray, 25G; Fisher v. Milliken, 8 Penn. 111. 2 Lawrence v. Brown, 5 N. Y. 394; Doe v. Wood, 14 M. & W. 681; Doe v. Johnson, McC. & Y.141. 3 Dodd V. Acklow, 6 M. & G. 673. 4 Whitehead v. Clifford, 5 Gaunt, 518. 5 Kerr v. Clark, 19 Mo. 132; Kees v. Miller, 25 P.nn. 481; Canaan v. Hart- ly, 9 C. B. 634. 6 Cannan v. Hartly, 9 C. B. 634. „ . , , _ t rn 7 McKinney v Reader, 7 Watts, 123; Torens v. Stncklcr < Jones, oO. 382 Estoppel in Pais. ant as a surrender he need not do so unless he thinks proper, for the reason that the contract cannot l)e dissolved by the default of one of the parties.^ The obligations of the express covenants in the lease may continue, notwith- standing the withdrawal of the tenant and the payment of rent by a third person as assignee,'- and until the assignees of a lease elect to take the term, it remains in the lessee with all its antecedent rights and obligations, and when the term has been accepted by the assignees and has vested in them by operation of law, the lessee is still bound, by his express covenant?, to pay rent or perform any other duty growmg out or connected with the estate which the lease confers. This results from the general principle that the passage of a covenant running with the land to an assignee, will not vary or discharge the obligation of the original covenantor. When possession is given upon one side and accepted on the other with an express or implied agreement that the demise shall cease, a surrender will, according to the present authorities, take place by operation of law, al- though there is no written note or memorandum of the transaction, and the intention of the parties has to be gathered from their words and acts.-^ Sec. 375. The same result follows where the premises are transferred to a third person, who comes in under a new lease, because his entry is virtually the entry of the landlord, and it would be useless to require the lessor to go through the ceremony of taking possession merely to go out again. The burden rests on the tenant, who must show affirmatively that the leaise was determined by some act inconsistent with its continuance in which both parties joined ; and proof that the landlord took the key, or even re-entered, will not be suffi- cient, unless it appears that he did so voluntarily, and not merely because it was thrust upon him by the tenant, and could not be got rid of without throwing it in the street. 1 Kees V. Miller, 25 Penn. 480. 2 Jackson v. Brown, 7 Johnson. 227; Ghegan v. Young, 23 Fonn.18; Hall v • Hands, 4 Gray, 25G. 3 Patchin v. Dickerman. 31 Vernit. 663; Grider's Appeal, 5 Penn. 422; Lamar V. McNamee, 10; G. & J. 116; Dodd v. Acklon. 6 M. &. G. 673. Landlord and Tenant. 383 While the possession must be yielded up to the laud lord, or transferred with his assent to a third person, iwder a new letting, to constitute a surrender hy operation of law, still whenever the parties have so far changed their position on the laith of a subsequent agreement, that it would be in- equita]>le to enforce the lease, relief may )je given in equity, or on the ground of cquital)le estoppel at law,' and a con- tract for the sale of the premises to the tenant, followed i)y part pajnnent of the price, was held to put an end to the term by creating a new relation, inconsistent with its con- tinuance.'^ A tenant who has covenanted with his landlord to give up fixtures at the end of the term, is not estopped from showing, in reduction of damages, that they were claimed and given up to a mortgagee, deducing title from the landlord.-^ There is no estoppel upon a grantee to deny a grantor's title where the grant is of a fee, as there is in the case of a lease by indenture, which depends upon the obligation which the lessee is under to return the land and surrender the possession.^ If the lease be by deed poll, the lessee might deny the lessor's title. ^ Wherever there is an obligation to restore possession to the lessor, the tenant is estopped to deny the title of him under whom he enters.*"' A grantor by deed poll, as well as indenture, is estopped to deny the title of his grantee by setting up any claim wliicli existed in his favor at the time of the grant." A man is estopped by his deed, to deny that he granted the estate thereby conveyed, or that he had good title to the same.** Sec. 376. The same principle of estoppel applies to a purchaser from a tenant, to the relations of morgagor and mortgagee, trustee and cestui qui trust, and generally to all 1 Allen V. Jacques, 21 Wend. 628. 2 Harnet v. Scribner, 16 Barb. 621. 3 Watson V. Lane, 11 Exch. 769. 4 Osterhout v. Shoemaker, 3 Hill, 513; Rawle Gov. 403; Ram v. Ham, 14 .Mc. 351; Watkins v. Holman, 16 Pet. 25; Small v. Proctor, 15 Mass. 495; Blight's Les.see v. Rochester, 7 AVheat, 548. 5 Bac. Abr. Leases, 0.; Co. Lit. 476; Gaunt v. Wainman, 3 Bing. n. c. 69. 6 Miller v. Shacleford, 4 Dana, 286; Bac. Abr. Leases, O.; Gn-at Falls Co. v. Worster, 15 N. H. 412. 7 Currier v. Earl, 13 Me. 216; Comstock v. Smith, 13 Pick. 116. 8 Wilkinson v. Scott, 17 Mass, 257; Fairley v. Fairlcy, 34 Miss. 18. 384 Estoppel in Pais. cases where oue man obtains possession of real estate belong- ing to another b}?- a recognition of his title. The relation of vendor and purchaser, under an executory contract for the sale of laud, is so far in the nature of a tenancy, that the purchaser is estopped from denying the title of the vendor, so long as he retains possession under the contract.' It would be a violation of good faith to obtain possession under such a contract, and then deny the right of the other party to reclaim possession or the fruits of the contract. The acceptance of a deed and taking possession mider it, operates as an estoppel in pais only where there is an obliga- tion on him who accepts it, to retain possession as in the case of lessor and lessee, mortgagor and mortgagee.^ When one enters on land under a contract to purchase, but neglects to pay the consideration money, he and those claiming under him are estopped to question the title of the vendor or his heirs.^ The relation of landlord and tenant is not created between vendor and vendee ; yet, the vendee in ejectment by the owner against him, is absolutely estopped from either showing title in himself, or setting up an outstanding title in another ; and the same rule applies to one coming into possession under the vendee, either with his consent or as an intruder.^ If a defendant (in an an action of eject- ment) enters under the lessor of the plaintiff by gift, pur- chase, lease, or otherwise, he cannot dispute the plaintifl"'s title.'^ A party is always estopped to deny the validity of the title of the one under whom he claims.^ So where the defendant claims title under the defendant's ovm. deed, he is estopped to allege that it did not convey title.^ So where a grantor in a deed to a school district delivered the same to a committee who gave him their note for the purchase money, he was estopped to deny their authority to accept 1 Harle v. McCoy, 7 J. J. Marsh, 318; Moore v. Farrow, 3 A. K. Marsh, 41. 2 Lanton v. Howe, 14 Wis. 241; Million v. Riley, 1 Dana; Winlock v. Hardy, 4 Lit. 272. 3 Gardner v. Greene, 5 R. I. 110; "Wilson v Watkins, 3 Pet. 48. 4 Jackson v. Walker, 7 Cow. 637. 6 Grandy v. Bailey, 13 Ired. 221. 6 AVard v. Mcintosh, 12 Ohio S. 230; Wedge v. Moore, 6 Cash. 7 Williams v. Cush. 27 Geo. 612. Vendor and Vendee. 385 it.^ A widow was estopped from relying on a gi'ant by, or attornment to the holder of ii paramount title, asli Inir to the recovery by the plaintiff, to whom the land had been con- veyed by her husband during his life.- In order to j)roducc a result like this, the wife must come into possession under the husband, not the husl^and under the wife, and a widow may always give a title, held by her while sole, in evidence in an ejectment founded on a conveyance without her con- currence, after the marriage. A grantee who enters into and retains possession of land under a deed, will l)e estop- ped from disputing the title of not only the grantor, but of all those whose right relates back to or is derived from his.^ But it is not a necessary consequence that while the grantee is estopped from denying the grantor's title, that he is bound by all recitals or covenants in prior deeds which he may not have seen, they will not be conclusive or even evidence against him unless they enter into and qualify the operation of the instrument as a grant. Sec. 377. The general principle that a tenant, trustee, mortgagor, purchaser or other person who comes into pos- session of real estate by recognizing the title of another, while so possessed is estopped from disputing that title, or purchasing an outstanding claim, without its enuring to the benefit of the party under whom he entered, does not apply to one who enters and claims in his own right and for his own benefit, nor estop him from fortifying his title by the purchase of any other which may protect him in the quiet enjoyment of the premises. In respect to estoppels as between lessor and lessee, and, so far as respects them, they are well established and should be maintained. The title of the lessee is, in fact, the title of the lessor. He comes in by virtue of it, and rests upon it to maintain and justify his possession. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims, that the paramount ownership of the lessor shall be acknowledged during the continuance of 1 Woolfolk V. Ashby, 2 Met. (Ky.) 288. 2 Cox V. Lacy, 3 Litt. 334. 3 Case V. Benedict, 9 Cush. 340. 25 386 Estoppel in Pais. the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor without disparagino- his own, and* he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still continuing in full operation,^ This estoppel is not appli- cable as between vendor and vendee. The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this ; nor is the letter or spirit of the contract violated by it. The payment of the purchase money is the only controversy which ought to arise between him and the vendor. How far he may be bound to this by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and in deciding it, all those circumstances are examinable.^ Sec. 378. A condition may be provided for the benetit of the vendee as well as the vendor, and the latter will be strictly bound by it, even though the breach does not affect the vendee's title to the property. The vendor is estopped to deny that his own act, done in violation of the condition, is invalid. Thus, where a town in Massachusetts sold to A. the right of fishing in a certain river, upon condition that they should sell no further right. The town afterwards sold another right of fishing to B., upon condition to be void if the town could not lawfully make such sale. A. refused to accept, and pay for the privilege sold him, but joined with B. in carrying on the fishing in B.'s own right. Held, al- though the sale to B. was void, the town could not maintain 1 Lanton t. Howe, 14 "Wis. 241. 2 Blight's Lessee v. Rochester, 7 Wheat, R. 535. Vendor and Vendee. 387 an action against A. for the price which he agreed to pay. The condition in the conveyance to A. was intc^tted for his benefit. The town having pretended to convey the j)rivi- lege to B., were estop})ed from denying their power to do so.^ Sec. 379. Mutuality is ordinarily essential to the existence of an estoppel, and as the grantor may show that his title was defective at the execution of the conveyance, and re- cover the land in opposition to his own deed, the grantee must, for the same reasons, be allowed to pursue the same course. An estoppel is said, by Coke, to arise from the ac- ceptance of an estate, but, in order to create this estoppel, there must be an estate to be accepted, which, in the case of conveyances by deed, is the very point in question. This passage in Coke, therefore, only applies to the common law assurances, by feoflmeut, fine, or recovery, which, -when properly employed, necessarily passed an estate, either by right or wrong. It must be apparent, then, if the accept- ance of a conveyance estops the grantee from disputing the estate of the grantor, covenants for title would be mere nul- lities, because no recovery could be had on them in any case without showing that the title conveyed by the covenantor is defective. Sec. 380. The grantee may deny the seizin or title of his gi'antor, for he holds adversely to him, and it is a matter of almost eveiy-day occurrence.-^ The acceptance of a convey- ance does not estop the grantee from showing that the grantor had no title in the land conveyed,'* unless possession accompanies the grant, and is still held under the deed. In this case it will be prima facie, if not conclusive, evidence that the grantor had the i-ight which he assumed to convey.^ But where a vendee obtains and keeps possession of hind under a contract of sale, which is not fulfilled, he cannot set up any defect in the title, as a defense to an action of 1 Taunton v. Caswell, 4 Pick. 275. 2 Gaunt V. Wainman, 3 Bing. N. C. 69; Small v. Proctor, 15 Mass. 499. 3 Averillv. Wilson, 4 Barb. 00; Sparrow v. Kingman, 1 N. Y. 212; Gardner v. Greene, 5 R. I. 104. 4 "Ward V. Mclntsh 12 Ohio State, 231; Wedge v. Moore, G Cu.sh. 8; Warder V. Woodruff, 6 English, 82. 388 Estoppel in Pais. ejectment by the vendor, or on a suit for the purchase money.^ A vendee who goes into possession under the vendor, virtually occupies the position of tenant, and is not only estopped from using the defects in the vendor's title to deprive him of the land Avithout paying him for it, but will be compelled to make any steps which he may have taken to complete the title, subservient to the purposes of the con- tract, instead of a means of defeating it. The estoppel, in its application to the relation of vendor and vendee is only where the circumstances are such as to render it the duty of the vendee to surrender the possession which he has de- rived from the vendor before contesting the title.'^ Sec. 381. When parties in an action brought for the re- covery of land claim through the same person, they will be obliged to treat his title as valid, and will not be allowed to rely on that portion which makes in their favor, and reject thf rest.'^ In summary proceedings for the recovery of land, if the landlord establishes the relation of landlord and tenant, the tenant cannot dispute landlord's title.' Nor is a bailee or agent allowed to dispute the original title of the person from whom he has received title, ^ and a vendee who takes a deed of an estate, in pursuance of previous articles of agree- ment, is estopped to deny the vendor's title, and an agree- ment under seal to accept a conveyance or lease, will estop the covenantee from disputing the title of the covenantor, in a subsequent action for the recovery of the land." Not- withstanding the cases cited, in support of the propositions, there is no general or inflexible rule, which prevents a gran- tee from showing that the grantor had no title that was capa- ble of passing by the deed. Sec. 382. The acceptance of a devise estops the devisee to set 1 Galloway v. Finley, 12 Peters, 264; Jackson v. Hotchkiss, 6 Cow. 401. 2 Blight's Lessee v. Rochester, 7 Wheat, 555; Price v. Johnson, 1 Ohio State. 390; Hill v. Hill, 4 Barb. 519; Sparow v. Kingman, 1 N.Y. 242; Gardner v. Greene, 5 R. I. 104; Glen v. Gibson, 9 Barb. 634. 3 Ward V. Mcintosh, 12 Ohio State, 231 ; Jackson v. Ireland, 3 Wend. 100. 4 Ward V. Kelsey, 88 Barb. 269. 6 Vosburgh v. Huntington, 15 Abb. 254. C Sayles v. Smith, 12 AVend. 57 ; Tindal v. Den. 1 N. J. 651 ; Jackson v Ayres, 14 John. 225; Spring.stein v. Schermerhorn, 12 Johns. '362. Bailor and Bailee. 389 up title in opposition to the will both at law and CHjuity.^ Where two persons both bearing the same nairrtrrire entitled to lands and patents issue therefore to each for certain land.4 differently located, and in the delivery of the patents a mis- take occurred, l)y which the patent of one was delivered to the other, but both acted on the fact of the case as existing at the time and profited out of the same, without objection being made on the part of either of them, neither their grantees nor any other person can raise the question of such mistake, in the delivery of the patents, each of them and their representatives are estopped from claiming the land of the other. -^ Where a state legislature has authorized the conveyance of a certain tract of land to a person, the pre- sumption being that he solicited the grant and having acted under it, he and those claiming under him are estopped from denying the title of the estate.^ Sec. 383. The bailment or lease of chattels creates an es- toppel of the same nature as that arising from a lease of land, and estops the bailee from disputing the title of the bailor or setting up an outstanding title in a third person, but leaves him free to excuse the failure or refusal to return the thing bailed, by proof that it has been delivered up to the true owner, or is withheld in consequence of a notice or demand from him and for his use and Ijenefit.^ It has also been held that an auctioneer who has been sued for the pro- ceeds of goods sold in the course of his business in behalf of another, is estopped from alleging that they were his own, in bar of an action brought for the proceeds or in mitigation of damages.^ A bailee or agent cannot dispute the original title, of the person from whom he has received property, and one who takes goods of another to return on the occurrence of a certain event ; after the occurrence, the bailor will not 1 Miller v. Jones, 29 Ala. 174; Kranz v. Kroger, 20 111. 74; Iliiyden v. Davis, 9 Cal. 573. 2 Smith V. Smith, 14 Gray, 532; Gardner v. Ladue, 47 111. 212. 3 Gary v. Whitney, 48 Maine, 516. 4 Ogle V. Atkins, Taunt. 759; Watson v. Lane, 11 Exch. 709; Biirnott v. Ful- ton, 5 Jones, 537. & Osgood V Nlchols; 5 Gray, 420. 390 The Law of Estoppel. be compelled to show a legal title to the goods. ^ The de- fendant is estopped to set up title in a third person as he would be in an action for use and occupation.^ 1 McNeil V. Philip, 1 McCord, 392. 2 Manning v. Norwood, 2 Rep. Estoppels as Applied to Mortgages. 391 CHAPTER XIV. APPLICATION OF ESTOPPEL TO MORTGAGES. technical estoppel, recitals, equitable estoppel. Section 384. The doctrine, thcat a grantee, from one who had no title at the time of the convc3auce, but has sub«cquently acquired one, takes it by estoppel, in virtue of the covenants in the deed, is applicable to mortgages. Thus a party who is in actual possession of land, but without title, mortgages it with warranty, and afterwards acquires a good title by purchase, the Avarranty takes immediate effect on the title so acquired and transfers it to the mortgagee, not only as against the mortgagor himself, but those claiming under him subsequently to the conveyance. So where one mortgaged land which was at the time subject to a judgment lien, (the deed containing what was equivalent to a warrant)',) and then took the benefit of the bankrupt law, and afterwards purchased the property when sold under the judgment lien, he was estopped by his covenant from setting up such after acquired title to defeat the mortgage.^ A person who con- tracting an obligation to another, grants a mortgage on pro^^erty of which he is not then the owner, the mortgage is valid, if the debtor ever afterwards acquires the owner- ship of the property by whatever right.'- A release by a mortgagee to the holder of the equity of redemption pjusses by the warranty, contained in the prior grant by the releasee, and o:ives the grantee an unencumbered title ai^ainst a subse- quent assignment of the mortgage, notwithstanding an alle- gation that a mortgage being a chattel interest, and that the rules applicable to estates in lands did not govern mort- gages.^ This is on the principle that an after acquired title enures to the benefit of the grantee. 1 Bush V Cooper, 18 IIow. 82. 2 Aniounett v. Annis, IG La. 225. 3 Micklo V. Towiisund, 18 N. Y. 375. 392 Estoppels as Applied to Mortgages. Sec. 385. A mortgage by husband and wife, of her land, with covenants of warranty by both, estops both to deny her titl? at the time of the conveyance. Nor can they, in an action upon the mortgage against them, be permitted to show that after the commencement of such action she acquired a new title, under Avhich they hold possession. The doctrine of rebutter, to avoid circuity of action, is not admissible in such cases. ^ Two successive mortgages, with covenants of warranty, were made of the same land. The second mort- gagee bought the first mortgage, receiving from the first mortgagee a quit-claim deed. On the same day, the second mortgagee gave a mortgage, with covenants, to a creditor. There was no proof which of the two last named deeds was first delivered ; Ijut the grantee of one was a subscribing witness to the other, and both were attested by, and acknowledged before, the same magistrate. The right of redemption of the original mortgagor having expired, the last mortgagee brings ejectment against him for the laud. The deed to plaintifi" would be presumed to have been made after the deed to his grantor ; or, if not, the covenants in the deed first executed had the efi'ect to vest a title in the plaintiff, when the conveyance was made to him by estoppel ; and this title was effectual against the defendant.'^ Sec. 386. A statutory foreclosure of a usurious mortgage, and a sale of the mortgaged premises, followed by a sale thereof to a third person for a valuable consideration, with- out notice of the usury, will not convey a valid title to the land, or estop the mortgagor from alleging usury in the mortgage.-' But if judgment has been recovered upon a usurious contract secured by mortgage, and a new mortgage given, the mortgagor cannot resist a suit on the latter, upon the grounds of usury. The judgment upon the contract which was effected by usury having estopped the debtor from sho^ving it in an action upon the judgment; he is equally estopped in a suit on the mortgage.* So where a 1 Nash V. Spofford, 10 Met. 102. 2 Dudley v. Cadwell, 19 Conn. 218. 3 Wyland v. Stafford, 10 Barb. 558. 4 Thatcher v. Gammon.. 12 Mass. 268. Estoppels as Applied to Mortgages. 393 mortgagee sues upon his mortgage, and the mortgagor de- fends u})on the ground of usury, but fails in .^7Wt4i defence, and afterwards conveys his right in the land, the purchjiser cannot maintain ejectment against the mortgagee upon this ground, being estopped by the former judgment.^ In the case of a mortgage by husband and wife of her estate, they remain in possession till breach of condition, and the mort- jxawe brines an action to foreclose against both, the wife must be joined as defendant. By joining in the mortgage she parts with her estate pro tanto, but no further. The equity of redemption is still hers, and cannot be disposed of by the husband without her consent, an entry in pais, with his assent, but unknown to her, will not foreclose her right to redeem, for the reason that in a suit for foreclosure she must be joined. In case of his death, the action proceeds against her. She is entitled to the benefit of the conditional judg- ment and may pay the debt, and prevent a foreclosure. The object of the statutory action is, to give the mortgagee such possession as will result in an absolute title, unless re- deemed. It is inconsistent with the plain principles of law and justice, to hold that she and her estate shall be bound by the judgment, if she cannot be a party to the suit.'- Sec. 387. One may hold two mortgages on two different estates, to secure one debt, and foreclose one only. Whether this will bar a foreclosure of the other, depends on the value of the property foreclosed,'^ if equal in value to the debt, it will have that efiect. A joint bond from A. and B. was secured by mortgage of A. Afterwards A. gave a bond to B. assum- ing the former, and indemnifying B. against it. The par- ties having paid each half of the first bond, B. procured an assignment of it to a third person, for the purpose of obtain- ing a foreclosure. Held, a bill to foreclose by the assignee could not be maintained.^ The same estoppel applies to tho mortgagee, who has been permitted to come in and defend the suit. The court say : ' " In substance, it seems to us to 1 Adams v. Barnes, 17 Mass. 365. 2 Swan V. Wiswall, 15 Pick, 126. 3 Bi-upce V. Parker; 24 VlmiiU. 567. 4 Sturges V. Alyea, 3 Sand. Ch. 188. 5 Davis V. Evans, 5 Ired. 525. 394 Estoppels as Applied to Moetgages. stand on the same reason with the other cases, in which it is held that the debtor in execution cannot set up a want of title in himself. Sec. 388. As he has had the benefit of the sale in the payment of his debts, he ought not to gay that he had noth- ing in the promises ; and he cannot, with truth say so, as he had, at least, the possession and enjoyment of the land, and those he ought to give up ; and to recover them is the object of the ejectment. The same principle applies equally to a case in which the debtor has only an equitable interest. The act of 1812 authorized the sale of an equity of redemp- tion under a fieri facias. This act makes the equity of re- demption, when sold under execution, a legal interest, to the extent, at least, of enforcing it by the recovery of pos- session from the mortgagor himself." So it has been held, that a tenant of the moitgagor, or a purchaser from him by executory contract, cannot dispute the title of the execution purchaser.^ Sec. 389. It is provided by statute in Georgia and South Carolina, that a mortgagor who executes a second mortgage without disclosing in writing to the second mortgagee the existence of the prior mortgage, is not allowed to redeem the second mortgage. In South Carolina, if a person suffer a judgment or enter into a statute or recognizance binding his land, and afterwards mortgages it, without giving notice in "WTiting of the prior incumbrance, unless within six months after a wi'itten demand he clear ofl'such incumbrance, he is not allowed to redeem. These are substantially re-enactments of an act of Parliament. There are provisions similar to this (the concealment of a prior incumbrance by the mort- gagor) in Tennessee and North Carolina. Sec. 390. Where a mortgagee has taken possession of the mortgaged premises under a deed from the mortgagor, he is not at liberty to repudiate the mortgagor's title afterwards, and all releases obtained to cover defects in the title must be held to be obtained for the support of the mortgagor's title.- Where on the assignment of a mortgage to the complainant 1 Dougherty v. Linthicum, 8 Dana, 194. 2Farmeis' Bank v. Bronson, 14 Mich. 361. EsTorrELS as Applied to Moutgages. 31)5 and the moitgagor gave a written ceitilicatc thar the mort- gage was a valid lien upon the premises, and that it was given for part of the purchase money, and that there then ex- isted no legal or equitable defense thereto, the mortgagor is estopped in equity by his own representations from setting up the defence of usury on the foreclosure of the mortgage.' Where a party negotiates with the agent of another for a loan, and a part of the money is only paid, and delivers a bond and mortgage for the full amount of the loan, and after- wards in a settlement by the mortgagee with the principal accepts the mortgage and bond in full settlement of his ac- count for the face of the mortgage, and allowed that the money had been advanced to him, he is estopped from deny- ing that he received the whole amount of the money, or from making any claim against the mortgagee on the foreclosure of the mortgage.- A mortgagor who has given a certificate that the mortgage debt is unpaid, is estopped to set up pay- ment against one who took an assignment of the mortgage for value on the faith of the certificate.-^ In a suit to foreclose a mortgage, the mortgagor is estopped to answer that the notes and mortgage, though running to the plaintiff, were, in fact, the property of a mercantile firm of which the plain- tiff was a partner, having been given for goods purchased of the firm, and that the partners had made no assignment to the plaintiff.^ Sec. 391. In a suit against a mortgagor for tlie land mort- gaged, he is estopped to deny that he had title when he mort- gaged, or to set up title in a stranger. '' But where a mort- gage refers to a note, the mortgagee is not estopped to deny the existence of such note.*^ A mortgagor may in the al> sence of covenants for title, abandon the premises to the mortgagee, or suffer him to take possession and then re-enter 1 Diercks v. Kennedy, 1 Green, (N. J.) 40. 2 Kirkpatrick V. Winana, 1 Green, (N. J.) 407- 3 Scott V. Sadler, 55 Pcnn. 211. 4 French v. Blanchard, IG Ind. 143. 5 Wilkinson v Scott, 17 Mass. 249; Small v. Proctor. 15 Mass. 495; Barker V. Harris, 15 "Wend. 015. c Parker v. Parker, 17 Mass. 370. 396 Estoppels as Applied to Mortgages. under the paramount title derived from a third person.^ The maker of a mortgage for part of the purchase money, is es topped by such representations from setting up failure of consideration or defect of title as a defence thereto.'^ A jiarty who has effected a sale of his land, subject to a mort- gage given by a former owner, by representing that such mortgage is a subsisting lien for only two of the three notes secured thereby, is estopped from afterward claiming that it is also a lien for the third note, which he had in his own possession at the time of the sale.^ A mortgagee who has made a verbal agreement to discharge the mortgage upon payment of a part of the money due^ and thus induced a party to purchase the mortgaged premises, maybe estopped thereby from foreclosing his mortgage; but such agreement will not estop him from denying that the mortgage debt has been fully paid, in an action against him for refusing to dis- charge the mortgage.* If the maker of a note and mortgage inform a party about to purchase them, after due, that the amount appearing by the instruments and indorsements thereon to be due is due and will be paid, and the latter, re- lying upon such statements, purchases the note and mortgage for a valuable consideration, without notice of any usury therein, such maker is estopped from setting up the usury to defeat the mortgage.^ He is so estopped, not only as against the person to whom such statements are made, but as against his assignee.*^ Sec. 392. The same principles of estoppel in pais apply in the case of mortgagors, and the rule that no man shall take advantage of Ms own wrony^ is one of universal application. Thus, where the owner of personal property allowed it to be mortgaged in his presence to one ignorant of his title, he was estopped from setting up his ownership to the prop- erty against the mortgagee.^ Upon the same principle, if a 1 Gillian v. Truman, 1 Bus. 95. 2 Man v. Howland, 20 Wis. 282. 3 Briggs V. Seymour, 17 Wis. 255. 4 Stone V. Lamon, 6 Wis. 497. 6 Gill V. Rice, 13 Wis. 549. 6 Gary v. Wlieeler, 14 Wis. 281. 7 Thompson v. Sanborn, 11 N. H. 201. Estoppels as Applied to Mortgages. 397 person having an incumbrance or an estate, deny the fact upon an inquiry Ix'ing made hy a pei-son abouClT) purchase it, equity will relieve against the incumbrance. So, like- wise, Avhere upon a treaty for a mortgage of an estate, a person who was entitled to be recouped out of the estate, in case a certain incumbrance was levied out of his own estate, was in communication with the mortgagee, to whom he was referred as a person to give information upon the subject of the transaction, but he gave the mortgagee no information of his equitable claim, it was held by Lord Chancellor Hwr- den that he could not afterwards set up his claim against the mortgagee.^ A mortgagee, who acts as an adviser or witness in the sale of land, with full knowledge that the purchaser is buying with the impression that the mortgage is satisfied, will be estopped by such act from enforcing his mortgage.- Where the plaintiff purchased a mortgage at the solicitation of the mortgagors, and rel^'ing on their representations that a certain sum was due thereon, they are estopped from denying the truth of such representations, in an action brought by him to foreclose the mortgage. An execution creditor, who, at the sale of his debtor's chattel upon a previous execution, purchased it subject to a mort- gage, which the officer making the sale assumed to be a valid lien, prior to both executions, is estopped from disputing the validity of such mortgage.'' A party to a foreclosure suit is estopped by the judgment therein, from dis})uting the tiUe of a purchaser at the foreclosure sale.^ The assent of a mortgagor to the transfer of the mortgage as an indemnity to a third person, for uniting with him in as surety in a note to the mortgagee, estops him from saying that the note wiw given for a subsequent debt, or advance not covei-ed by the mortgage, and that the surety was, consequently, not liable on the note.5 A mortgage of personal property, not yet acquired by the mortgagor, will take eflect as against him and others, not having acquired precedent rights, on the title 1 Boj'fl V. Bolton, 1 J. & L. 730. 2 Miller v. Bingham, 3 Williams, 82. 3 Lesley v. Johnson. 41 Barb. 359. i Horton v. Davis, '21 N. Y. 495. 5 White V. Evans, 47 Barb. 179. 398 Estoppels as Applied to Mortgages. becoming vested iii the mortgagor, and possession taken by the mortgagee.^ Where one accepts a transfer of personal property, but expressly subject to a mortgage thereon which is held by another, he is estopped from claiming a prior lien upon the property, on account of a previous mortgage held by him, but which was not properly renewed.- Nor can he set up as a defence to an action by the subsequent mortgagee, his prior lien, where he has voluntarily become the bailee of the mortgagee, and accepted possession of the property as belonging to him, and having promised to return it to him on demand/' Sec. 393. Where one buys personal property subject to mortgage, nominally from the mortgagor, but really from mortgagee, or with his concurrence, and by his request, the latter will not be allowed to set up a title under his mort- gage. In one case,^ where property was conveyed, and a mortgage given back, to secure the purchase money, after- wards the mortgagor being unable to pay it, application was made to a third person, with the knowledge and by the desire of the mortgagee, who himself wrote to the party upon the subject to buy a part of the property at an advanced price. He accordingly bought it and paid the price, but the receipts were expressed to be on account of the mort- gage debt. Before the purchase was completed the mort- gagee expressed to the purchaser his perfect confidence in his fulfilling his engagements. Most of the property was delivered to the purchaser with the consent of the mortgagee and a part of it by the mortgagee hmself. . The part remain- ingr in the mortsjafree's hands havino; been sold at a reduced price, and the mortgage debt therefor, unsatisfied, the mort- gagee claimed to hold the portion sold, and the purchaser filed a bill for a perpetual injunction, against the claim. Held, the mortgagee was a party to the contract of purchase, and the property sold was discharged from the mortgage. But where a mortgagor having sold the property, the mort- 1 Wright V. Boiling. 27 Ala. 259. 2 Walker v. Vaughn. 33 Conn. 577. 3 Jones V. Howell, 3 Rob. 438. 4 Skirving v. NeulVille, 2 Des. 174. Estoppels as Applied to Mortgages. 3i>l) gagee upon being informed of it, said he cared nothing about the property and did not want it, he might stiirassert his title under the mortgage.^ Parker C. J. says lie may tiiu.s claim : "There being no evidence of any consideration for it as a release, and the sale not having been made on the credit of it, if that might make any difference. It was a mere loose declaration, which cannot operate as an estoppel. It might have a tendency to show that the mortgage had been settled, and be used with other evidence to show the fact if alleged." So it has been held that where a mortirao-e is duly recorded, the mortgagee does not waive his claim by being i)resent at a sale of the property, and not disclosing such claim.'- Sec. 394. A mortgagee promised, by writing, not under seal, to extend the time of payment, and a third person, in conse- quence, bought the estate from the mortgagor. The mort- gagee being bound by his promise, could not maintain 6icire facias upon the mortgage until the time of such extension had expired.-^ The judge, in delivering the opinion of the court, said: "Whether such a paper given to the debtcn- would have been binding, is not the question ; though if a mortgagee gives a writing to his mortgagor that he will ac- cept a debt presently due, if paid in instalments, at specified times, and receives one or more of them as they fall due, it may, in some instances, be a great fraud to afterwards pro- ceed, before the other instalments fall due; and I am not prepared to say that it would, under all circumstances, be void. But that is not the case. It is not fair, nor honest to make a promise which induces a man, a stranger to the party, to buy his goods, and give his labor, to exchange his property, for an incumbered property, and promise not to press the incuml)rance, and then say: I make nothing by the indulgence which I promised you, and I will nol meet my promise. True, the mortgage was a dwd umler seal, and this not under seal ; but it was, though informal, enough to induce him to exchange for that land, and pay one-third 1 Steele v. Adams, 21 Ala. 534. 2 White V. Philips, 12 N. H. 38i 3 Hofifman v. Lee, 3 Watts, 352. 400 Estoppels as Applied to Mortgages. of a debt which he was not liable for, and never would hare been, except for that paper, and, in equity, it was as binding as if more formally drawn, under seal and witnessed." A mortgagee requested the holder of a note of the mort- gagor, in which the mortgagee was surety, to obtain judg- ment on the note, and levy on and sell the mortgaged prem- ises ; he was also present at the sale, and asked one person to bid, and did not object to the sale. He was estopped to assert his title under the mortgage.' An attorney, holding a mortgage upon land, was employed by the mortgagor to draw the deed, and assist in the conveyance of a portion of the premises to an ignorant purchaser, and, although know- ing that the purchaser was paying the full value of the prop- erty, concealed the fact of the mortgage. Neither the at- torney nor his assignee could enforce the mortgage against this portion of the land.''^ Sec. 395. " If parties claiming an interest in land look on and see it conveyed, or take part in the transaction without complaint or olrjection, they are estopped, in equity, from afterwards setting up a title against the grantees and those holding under them. This rule rests rather on the tenden- cy of such conduct to mislead, than on any deceit actually intended or actually practiced in such case. "'■^ " The rule of law is clear, that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded, from averrins: against the latter a diHerent state of thino-s as existing at the same time. "^ A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dis^Dute the fact, in an action against the person whom he has himself assisted in deceiving. "^ "Where a devise of lands to children of the testa- 1 Moiford V. Bliss, 12 B. Mon. 255. 2 L'Ammoureux v. Yandenburgh, 7 Paige, 316. 3 Shepley v. Rangley, 1 Wood k. M. 217. 4 Pickard v. Sears, 6 Ad. & Ell. 474. 5 Gregg V. Wells, 10 Ad. &, Ell. 97. Estoppels as Applied to Mortgages. 401 tor was made with a provision that the part devised to one of them should be subjeet to the maintemiiice of liis widow for life ; the widow, elaiming a beneficial interest in the lands devised, under a mortgage made to the testator and herself, deceptively acquiesced m the provisions of the will for several years, and thereby gave reason for confidence on the part of bona fide purchasers from the children, that such provisions were to be final and not disturbed, Held, although such purchasers were not proved, in fact, to have acted in this confidence, she was estopped to imj)each their title.i Sec. 396. In another case the demandant gave in evi- dence a quit-claim deed from the tenant to Daniel Kimball, dated December 23, 1818; the levy of two executions on the 8th of November, 1827; a conveyance from the execution creditors to the demandant; a deed from Daniel to Leggett and Hance, dated November 27, 1828; and a deed from them to the demandant, dated April 25, 1832. The tenant then offered a bond from Daniel to him, dated December 23, 1818, conditioned to re-convey the property; a mortgage from the tenant to one Peabody, dated May 17, 1811, to secure a certain sum; an assignment of it by Peabody to Wheelwright and Clark, April 24, 1812; an assignment from them to one Buck, of June 2, 1827; and a deed from Buck, reciting a judgment on the mortgage and possession taken under it in 1824, to the tenant, dated June 2, 1827. The levies were duly recorded, as also all the deeds, all of which covered the demanded premises. The bond to re- convey was not recorded. The tenant had Ijecn in posses- sion thirty years, built a house on the land, and made expensive repairs both before and after Buck's deed to him. Upon these facts the defendant having been defaulted, the default was taken off, and new trial ordered. Upon the new trial a verdict was rendered for the demandant. It appeared that after the tenant had paid off the mortgage, and taken a re-lease of the premises, having conveyed to Daniel and being still in possession, he knowingly suffered 1 Ackla V. Ackla, 6 Penn. St. 228. 26 402 Estoppels as Applied to Mortgages. two executions to be levied on the premises as Dauiel's without cliiimiug title; that he pointed out the bounds at the time of the levy, and agreed to become a tenant and pay rent. He continued the tenancy till 1829, and rendered an account of repairs made by him to the plaintiff, who subse- quently himself made repairs and put in another tenant. No claim was made under the mortgage, till after the plain- tiff had purchased the title. The mortgage, under these circumstances, was declared extinguished; that it could be kept alive only by the equitable principle of being most for the mortgagee's interest, which was rebutted by a stronger equity on the part of the demandant, and could not be ap- plied where it Avould promote a fraudulent purpose. ^ Sec. 397. One having a mortgage upon the property of his son, encouraged a third person to purchase the property, promising to abide by any agreement which the son might make concerning the mortgage. The son delivered the mortirao-e to the purchaser, but it was re-delivered to the father for the purpose of having it discharged. Held, the mortgage could not be enforced.'^ One co-tenant, owning one eighth of the land and holding a mortgage on the other seven eighths, joined the other in conveyance of the whole, *the terms being as follows : — "Do hereby give, &c., that is to say, the said, &c., seven eighths parts, and the said, &c., one eighth part of the following piece, &c. And we do cove- nant, &c., that we are lawfully seized, &c.; that they are free of incumbrances and that we have good right to sell, &c. in the aforesaid proportions." The mortgagee did not disclose his mortgage to the purchaser. Held, an action could not be maintained upon the mortgage.'^ Shepley, J. says: — "Admitting the covenants to be several and not joint, the effect of this transaction is, the demandant knowingly becomes a party to the most solemn assurance made by his mortgagor under his hand and seal, that the seven eighths are free of all incumbrances, and that he has good right to sell and convey the same. And he does this, 1 Hatch V. Kimball, 16 Maine, 146. 2 Curtis V. Trcpp, 1 Clark, 318. 3 Durham v. Alden, 2 Appl. 228. Estoppels as Applied to Mortgaqes. 403 while he held a mortgage covering the premises, on whieh was due more than double the amount of the purchase money, without causing any exception of his own title to he introduced. He is as much bound by the declarations of his mortgagor as if they were his own. It would be a fraud upon the purchaser to permit him now to disturb that title. It would be uo legal excuse, if done through ignorance or inattention, for it is more just that he should be the loser under such circumstances than that the innocent and faultless purchaser should." Thus when a mortgagee consents to the sale of the property, or permits it to be levied upon without asserting his claim he is estopped from claiming title to it as against the purchaser,^ as between the mortgagee and the purchaser of property acquired subsequently to the mort- gage, but mentioned therein as being conveyed thereby, the former, by attending the sale upon execution, bidding, and omitting to give the bidders notice of his claim, will be es- topped from claiming a right to specific performance of the contract to give a mortgage."^ Sec. 398. A. executed mortgage deed of the same land, on the same day to B. and C. afterwards assigned his interest to D. E. having attached the premises as the property of C, and re- covered judgment against him, sent an agent to D. who had knowledge of such judgment, to inquire whether there wjis any priority in the deed under which he claimed, to which D. replied, "There was not ;" that " both deeds were de- livered at the same time ;" and that " B. had given a writing to that effect." E. thereupon took a mortgage of the iiri-ni- ises from C. to secure his debt ; C. being at this time insol- vent. D.'s representation, however, was not true ; the deed to B. having been, in faet, delivered first. On a bill of fore- closure, brought by D. against E., the plaintilf was estcjpped by these facts, from claiming a priority of title. Sec. 399. A mortgage will be avoided as to third per- sons, by any misrepresentation or concealment, on the ])art of the mortgagee, with respect to his incumbrance, which induces them to purchase or make advances upon the laud. 1 Grace v. Mercer, 10 B. Moii. 157. 2 Otis V. Sill, 8 Barb. 102. 404 Estoppels as Applied to Mortgages. This kiud of fraud is chiefly cognizable in equity, though even courts of law will often take notice of it. In many cases, equity and law have concurrent jurisdiction. The j)rinciple of equity is, that where one seeks, by misrepresen- tation or even improper concealment of facts, in the course of a transaction, to mislead the judgment of another to his prejudice, the court will generally interfere. Mere conceal- ment or looking on has the same effect, as using express words of inducement. " Qui tacet, consentire videtur. Qui j^otest et debet vetare jubety If a person maintain silence, when in conscience he ought to speak, equity will debar him from speaking when conscience requires him to be silent.^ It is a fraud to conceal a fraud. "^ If a mort- gagee stands by at the sale and receives the consideration, it is a discharge of that part from the mortgage.^ As a general thing it must appear that the acts would not have been done, and that the party must have conceived they would not have been done, except upon such encouragement ;* though, in some cases, even the ignorance of the party mis- leading has been held to make no difference. In a case of this kind, Chancery will not only refuse its aid to enforce the mortgage, but, upon a bill by. the party injured, to quiet his title, will decree a perpetua,l injunction against enforcing the mortgage, declare it void, or order a release or convey- ance.^ If a mortgagee has actual knowledge of the contents of a subsequent mortgage, and stands by, and witnesses the execution of the second mortgage, without disclosing his prior incumbrance, this is such a fraud in him as to author- ize a court of equity to postpone such prior iiicumbrance, so as to let in the subsequent mortgage.^ A mortgagee with- out notice of an outstanding title, in one who encourages him to take the mortgage, or stands by and makes no objec- tion, will be protected against it.^ 1 Hall V. Fisher, 9 Barb. 17. 2 1 Story Eq. 390. 3 McCormick v. Digby, 8 Digby, 99. * Ibbotson V. Rhodes, 2 Vermt. 554; Otis v. Sill, 8 Barb. 102. 5 Hoffman v. Lee. 3 Watts 3.52; Napier v. Elan, 6 Yerg. 108; Jeremy's Eq. 385; Hill R. Prop. 452; Story Eq. 375; Grace v. Mercer, 10 B. Mon. 157; Carter V. Longworth, 4 Ohio, 385; Lavalle v. Barnett, 1 Black. 181. 6 Brinkerhoff v. Lansing, 4 Johns. Ch. 658. 7 Green v. Price, 1 Mumfd. 449. Estoppels as Applied to Mortgages. 405 Sec. 400. So Avhere A. bought land of B. aiid^ave a mort- gage for the purchase money after judgraenta-^d been en- tered against A., the mortgage was recorded. C. bought the land at sheriff's sale on one of the judgments sul)ject to the mortgage, and in consequence paid much less than the value of the land; C. sold, the vendee having knowledge and re- taining enough of the purchase money to pay the raort"-ao-e, is estopped from denying that he bought subject to the mortgage.^ A mortgagee, who after assigning an interest in the mortgage debt and files a bill in the name of himself and the assignee to foreclose, and alleges therein under oath the assignment, he is estopped from setting up usury in the as- signment.- An assignee of a mortgage after foreclosure, who promises a subsequent mortgagee that he may redeem after the expiration of the decree, provided the mortgagor docs not, is estopped in equity from denying the right of said mortgagor to redeem, and the estoppel applies to a purcha- ser of the decree cognizant of the mortgagee's claim and right to redeem under the decree.^ So where a bond and mortgage is made to certain persons as executors, and the money due is also payable to them, and the survivor or sur- vivors, they are estopped to claim that they hold in a differ- ent personal capacity.^ Where a mortgage was made l>y five joint trustees, and a mortgage of the joint trust property was given to secure the note, purporting to convey the whole estate, but signed by only four of the trustees, although dra^vn in the name of all, and it appeared from the circum- stances that the other ti'ustee must have known of the trans- action, and that he never made any o])jection to it, it wils held that the mortgage was binding upon him by an equit- able estoppel, and that the purchaser of the e(|uily of r(Mlemi»- tion of the morto.a2;ors at a sheriff's sale uas also bouml by it.^ A mortgagee who knows that another person is about to lend money on the mortgaged premises, and denies that he has a mortgage, or asserts that it is satisfied, will be post- 1 Cook V. Douglass, 50 Penn. 61. 2 Mumford v. Am .Life Ins. Co., 4 N. T. 403. 3 Woodward's Adms. v. Couchey, 41 Vurmt. 496. 4. People V Miner, 37 Barbour, 440. 5 State Bjink v. Campbell, 2 Kich. E"!. 170. 406 Estoppels as Applied to Mortgages. poned to the second mortgagee, who is induced to lend money by this concealment or misrepresentation. ^ So a concealment or entry of satisfaction of a mortgage procured by fraudulent representations to the injury of third parties, is void.'^ Sec. 40.1. A mortgagor is estopped from denying that he had title, and from setting up title in third persons.-* Where a person takes from another a mortgage of lands, the record title, which is in himself at the time such mortgage is exe- cuted, and in good faith assigns such mortgage, and it is foreclosed, neither such mortgagee nor his representatives or privies can set up such a prior title in him to defeat the mortgage. They are estopped by his acts, and it makes no difference whether it can be proved that he ever executed a deed of the lands to the mortgagor or not.'' So where a vendor puts his vendee in possession, and executed and placed in his hands a deed of conveyance, for the land sold, with an understanding between them, that the deed should not be considered delivered or become effectual until the pur- chase money should be paid, and the vendee subsequently put the deed upon record without paying the purchase money, mortgaged the land to a bona fide mortgagee for value, without notice. The vendor was estopped, as between him and the mortgagee, from denying the delivery of the deed, or asserting any claim to the land.*" Sec. 402. Where a party gave a mortgage upon real estate in his possession, the title to which is in another party, who afterwards conveyed to the mortgagor, and in such conveyance described the property conveyed as subject to his mortgage, it was held that, as against the grantee and all persons claiming under him, the land conveyed was as effectually charged with the encumbrance as if it had been expressly mortgaged therefor."^ Bona fide purchasers are bound by the estoppel of prior grants, for the reason 1 Lee V. Munroe, 7 Cranch, 366. 2 Buckingham v. McLane, 13 How. 150 ; McLean v. Lafayette Bank, 3 McL. 589. 3 Barber v. Harris, 15 Wend. 615. 4 Rogers v. Cross, 3 Chand. 39. 5 Resor v. O. &. M. R. R. 17 Ohio S. 139. c Sweetzer v. Jones, 35 Vt. 317. Estoppels as Applied to Mortgages. 407 that the assignment of a mortgage is always subject to the equities of the mortgagor and those claiming under him. An assignment of a mortgage estops the mortgagor from alleging that it was satisfied.^ A mortgagor is estopped to deny the fact of an entry having Ijeen made for condition broken, by the mortgagee, when he has signed a ccrtiticate to that eflect on the deed.'^ But merely suffering the mort- gagee to enter and record a certificate of such entry for a breach of the condition does not after a lapse of three years, estop the mortgagor from denying any breach, and show- ing that none had been made.^ A defendant in an action to foreclose a purchase money mortgage, cannot set up as a defense a failure of title where there has been no eviction or disturbance of his possession.^ Where a trustee and a cestui qui trust mortgage, th^ trust property in In'cach of the trust they are estopped from setting up such breach in defense of an action by the mortgagee of the mortgage.^ The validity of a mortgage and the regularity of the judg- ment on a scire facias obtained on it cannot be questioned by one not connected with the mortgagor's title as grantee, mortgagee, judgment creditor, &c. Thus where a married woman executed a mortgage in her maiden name, scire faciases on it -were issued against her in that name, judg- ment Avas recovered after two nihils, and the land sold by the sheriff, it was held that the purchaser took a good title, and the validity of the mortgage could not be enquired into in an action of ejectment for the mortgaged premises.^ Where a mortgage is made in express terms subject to cer- tain bonds secured by prior mortgage, the bonds being negotiable in form, and having in fact passed into circula- tion before such mortgage was given, the junior mortgagees and all parties claiming under them are estopped from de- nying the amount or validity of such bonds in the hands of 1 Jackson V. Waldion, 13 Wend. 178; Edwards v. Varick, 3 Denio, 665. - Bennett v. Conant, 10 Cnsh. 1G3. 3 Petrie v. Case, 11 Gray, 478. * Farnam v. Hotchkiss, 2 Keyes, 9. 5 Ryder v. Sisson, 7 R. I. 341. 6 Ilartman v. Ogman, 54 Penn, 120; Glass v. Giebcn. Id. -GO. 408 Estoppels as Applied to Mortgages. bonajide holders.^ The release of a mortgage,, obtained in good faith from a foreign administrator, estops the same administrator after taking out letters within the state from objecting that he had no power to release. "^ Sec. 403. The mortgagor of a chattel, having the right of possession for a certain period, or a purchaser from him, cannot, after its expiration, dispute the title of the mortga- gee. ^ Where a mortgagee of personal property, not in pos- session, is present at the sale of such propeiiy by the mort- gagor to another, and such mortgagee, on being asked to fix the price between the mortgagor and purchaser, but does not notify the purchaser of his mortgage, and the property is afterwards delivered to the purchaser, the mortgagee cannot recover the property as against such purchaser, without notice.* A husband who is present at the execution of a mortgage by his wife, of his personal property, and who assents to its execution, is as effectually bound by the mort- gage as though he executed it himself '^ So, where a hus- band permits, without objection, his wife to hold herself out before the world as transacting business on her sole or separate account, and to deal with the property as her own, the husband is estopped from setting up any claim to the same against the mortgagee of his wife, although he mQ.j ad- vance money to her in business, and she uses it to purchase the mortgaged property with." If a party having knowl- edge that he has title to property, stands by and sees another mortgage it to a third person, to secure a debt or liability incurred at the time, without giving notice of his title, he is estopped from setting it up afterwards in a suit at law.^ 1 Bronson v. La Crosse R. R., 2 Wall, 283. 2 Vroome v. "Van Home, 11 Paige, 549. 3 Holmes v. Hall, 3 Dev. 98. 4 Brooks V. Record. 47 HI. 30. 5 Edgerton v Thomas, 9 N. Y. 40. « Sammis v. McLaughlin, 35 N. T. 647; Sherman v. Elder, 24 N. T. 381; Smith V. Knapp, 27 N. T. 277; Buckley v. Wells, 33 N. Y. 518. 7 Thompson v. Sanborn, 11 N. H 201. Equitable Estoppels 409 CHAPTER XV. EQUITABLE ESTOPPELS AS AFFECTING THE TITLE TO LAND. Section 404. As we have heretofore seen, in the case of estoppels by deed, that the most striking instances of its ap- plication were in regard to its effect on the title to land in passing an after acquired estate. It is proper to notice the same application of the doctrine of equitable estoppel in regard to real or personal property in a manner as efi'ectual, if not more so, than where a vendor or purchaser attempts, by deed, to convey land without any title, in its action in conveying real and personal property without any written conveyance or agreement, or express intention so to do. Sec. 405. No portion of the law of equitable estoppel is more important than that which applies, when a sale is made without authority or title, and is sanctioned at the time or is ratified subsequently by the owner, and renders the title of the purchaser valid, by imposing silence on the only person entitled to contest it. This principle applies irrespective of the nature of the property sold, and the estoppel will be so moulded as to prevent fraud and injustice in whatever form it may present itself. The principle that one who en- courages, or even stands by and sanctions, the acquisition of land by another, will not only be estopped from inval- idating the interest thus acquired, by the subsequent asser- tion of a title, with full knowledge at the time, but may be compelled to make a conveyance to the purchaser, is an old and well established one at equity, and also in modern times in courts of law. The rule is a broad one, and is equally applicable, whether the sale be public or private, the act of the parties themselves or the act of the law, with this lim- itation in regard to sales by authority of law, that as the sale is of the interest only of the defendant in the execution, requiring clearer proof than is necessary in oilier cases to 410 Atfecting the Title to Land. estop third persons from asserting an adverse interest which is not 'prima fade Avithin the scope of the sale.^ Sec. 406. The statute of frauds requires a writing, when real estate is in question, and the title to land cannot be transferred, or its assertion precluded under ordinary cir- cumstances by an act in jpais or an oral declaration. Sec. 407. Equity has long held that the statute shall not be used as a cloak for that which it wa's designed to suppress, and where a parol agreement has been so far executed that it cannot be rescinded without an actual or constructive fraud on the purchaser, it will be specifically enforced against the vendor ; and a man who stands by and encourages, or even acquiesces in, the sale of land which is his own, as the property of another, will be restrained from disputing the title of the purchaser, or even compelled to perfect it by conveying the estate to such purchaser. The original source of relief, under such circumstances, was in courts of equity, but it is now also granted in the form of an equitable estop- pel at law. The questions involved in the application of equitable estoppels, on real estate, is one that is both difficult and important ; while it is generally true that a parol agreement cannot be binding upon the title to real estate, without an apparent violation of the statute of frauds, which require a writing, when the realty is in question ; it is also a well established principle of equity that the statute shall not be used as a means of eflecting the fraud which was the object of the statute to prevent, and withdraws every case not within its spirit from the rigor of its letter, if it can be done without violating the general policy of the statute, and creating the uncertainty which it was meant to obviate. It is a well established principle of equity, that part perform- ance of a parol agreement or contract will take a verbal sale of land out of the statute of frauds, and when a verbal sale is made, accompanied by possession of the estate, equity will compel the vendor to make a conveyance. So that an estate in land ma}- be transferred from one man to another, without a writing, and this principle is applicable to those cases where 1 Menges v. Vystcr, 4 W. & S. 420. Equitable Estoppel8 411 the owner fails to give notice of his title to the purcha«cr, when the circnmstanccs are such as to make j.r*Bis duty to do so, and while a title does not actually pass, a court of equity will decree a conveyance. So that it may l)o con- sidered as a well settled principle that the title of real estate may be barred by matter in 2mifi, but not as to the forum wherein the remedy must be sought. Sec. 408. The statutory provision, which renders a writ- ing necessary for the creation of an estate in land, is not dispensed with either at law oi- equity unless on the ground of actual or constructive fraud. A party who relies on a verbal contract and thus dispenses with the conclusiveness of written evidence should not be allowed to have or receive the benefits of equitable estoppels to repair his negligence.' The retraction of a promise on which another has acted is regarded as a constructive fraud which warrants the inter- vention of equity or a resort to the aid of an estoppel at law. Though there may have been no concealment or misrepresen- tation, and the only ground of the relief is the breach of the promise.^ But where men rely on the honor of those with whom they are dealing instead of using the means recog- nized by law, the law leaves them to sutler from the results of their undue confidence and discretion ; but where a party entered upon land in consequence of a parol agreement of the owner to exchange for other lands, made improvements with the knowledge of the owner, the owner cannot take ad- vantage of the want of a contract that would bind liini to convey. A party by whose encouragement expenditures have been made to such an extent as to be incapal)lc of re- imbursement except by enjoyment will be enjoined from disturbing the possession : he is ostopjied because he would wrong the party by withdrawing his consent.'^ But a parol estopp.el cannot operate to transfer the legal title to land.^ Where one makes a deed on Sunday, and fraudulently dates 1 Burke v. Brewer, 2 Met. 421; Batchcldcr v. Sanboru, 24 N. H. 471; Mc-Af- ferty v. Conover 7 Ohio St. 99. 2McAfferty v. Conover, 7 Ohio St. 99. 3 Big Mountains Imp. Co., 54 Pcnn. 3G1. 4 Barker v. Bell, 37 Ala. 3.59; McPherson v. AYalters, K, Ala. 7J4. 412 AFFECTrNG THE TiTLE TO LaND. it as of another day, and his grantee conveys the estate to a stranger who is ignorant of this fact, the grantor is estopped to set up that the original deed was made on Sunday.^ Sec. 409. In addition to the fundamental legal principle of law, nullus commodum capere potest de injuria sua jyro- pna, as one of the essential elements of an equitable estop- pel, in regard to its application to title to land, there is one which applies still more forcibly, viz : Qui tacit consentire videtur — He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience re- quires him to keep silent.^ No estoppel can be created by mere silence or acquiescence, unless there are some special circumstances which make it necessary to speak.^ When such are the circumstances, equity unhesitatingly applies the maxim. Qui tacit cotisentire videtur. If he w^ho ought to have explained himself clearly- and plainly, has not done it when the occasion required and opportunity was presented to him, he is not allowed to introduce subsequent restrictions which he did not at the proper time express.^ Thus, where a party negligently and culpably stands by and allows an- other to contract on the faith of an understanding which he can contradict, he is afterwards estopped from disputing the facts, in an action against the person whom he has assisted in deceiving,^ upon the principle, that between innocent pur- chasers, he who causes the injury must suffer.'' Qui non prohibet quod prohibere potest assentire videtur, is also one of the fundamental maxims and rules of law particularly applicable to this branch of estoppels, especially those acts which, in equity, and to a great extent in law, are regarded iis the foundation of the estoppel which is created by the silence, acquiescence, or consent of the owner of real or personal property in its disposal to a stranger by one not iLove V. "Wells, 25 Ind. 503. 2 Wendell v. Van Renssalaer, 1 John. Ch. 354; Morford v. Bliss, 12 B. Mon. 255. 3 Taylor v. Ely, 25 Com. 250; Clabaugh v. Byerly, 7 Gil. 384; Hill v. Eply, 30 Penn. 331. 4 Mitchell V. Mount, 31 N. Y. 356; S. C. 19 Abb; Corkhill v. Launder. U Barb. 218. 6 HoUingsworth v. Hancock, 7 Fla. 338.. C Millin;rar v. Long, 61 Penn. 471. Equitable Estoppels 413 having the title, but whom, if allowed to set up his claim of title or ownership to the property after its purchase by a stranger, would be perpetrating a gross fraud upon the party whom he, by his acquiescence, silence, and consent, has misled. "He who can forbid, but does not, is deemed to have assented." The law will not permit a man to say what he has said and done as a solemn act, by which others have acquired rights, was not true ; nor will it allow one who has, in a like solemn manner, admitted a matter to be true, to allege it to be false. ^ If one having a title to land looks on and suffers another to purchase and expend money on the land, without making known his claim, he will not be permitted afterwards to assert his title against an innocent purchaser. Sec. 410. The effect of an estoppel in iiais is to prevent the assertion of an unequivocal right, or preclude a good defense, and justice demands that it should not be enforced unless substantiated in every particular. The ground upon which the estoppel proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. What will amount to the suggestion of a falsehood or the suppression of the truth, may be difficult to determine in all cases, but some turpitude, some inexcusable wrong that coustitued the direct motive, or induced the outlay or purchase, is necessary to give silence or acquiesence to the force of an estoppel in jpais. Hence the ignorance of the true state of title on tlie part of the purchaser must concur with wilful misrepresen- tation or concealment on the part of the person estopped. In order to apply an estoppel it is indispensable that the party standing by and concealing his rights should be fully ap- prized of them, and should by his conduct or gross neglect encourage or influence the purchaser. Eights can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert them. Therefore it one act in such a manner as intentionally to make another believe that he has no rights, or has abandoned them, and the oth.-r trusting to that belief, does an act which he would not have 1 Ham V. Ham, 14 Me. 351; Hicks v. Cram, 17 Venn. Wy. 414 Affecting the Title to Land. done, the fraudulent party will be estopped from asserting his right. ^ Sec. 411. But to constitute an equitable or estoppel in jxiis the act or admission must he shown to have had a direct or iihmediate influence upon the conduct of the party claiming its benefit ; no such estop^Dcl can arise without proof of wrong on one side, and injury suffered or apprehended on the other, nor unless the iujury be so clearly connected with the wrong that it might and ought to have been foreseen by the guilty party. There must unquestionably, be some degree of wrong, for a statement innocent in itself and susceptible of beiug withdrawn or contradicted, unless it be made with the knowledge, that it will or may be acted ui^on, camiot 1)6 rendered binding by what subsequently occurs. The only qualifications which seems necessary to this doctrine as laid down, is that a party may be estopped by acts and delara- tions which Avere desioned to influence another who has acted upon them, although both parties were ignorant that what is thereby represented is not true ; for if one of two innocent parties must suffer, he through whose agency the loss occurred should sustain it. Sec. 412. Estoppels in pais are well founded, when con- fined to the legitimate jDurpose of preventing one man from being injured by the acts or misrepresentations of another. Where no injury results from a misrepresentation, its de- cision belongs to the forum of morals, and not to the judicial tribunals. The connection between the wrongs and the injury should be direct and apparent, and such as to leave no reasonable doubt that the former is the efficient cause of the latter. For as the efiect of an estoppel is to prevent the assertion of rights unqucstionabl}^ valid, or preclude de- fenses which would otherwise be good, justice requires that it should not be enforced, unless sustained in every particu- lar. In order, therefore, to raise an express or implied admission of one party from the rank of evidence, to the dignity of an estoppel, it must not only be shown that its retraction will be injurious to the other party, but that the 1 Bnnelson v. Bunelson. 28 Tex. 384. Equitable Estoppels 415 injury results from the course of action induced ])y tiiu admission. Whatever, therefore, the degree of moral wrong on one side, and injury on the other, there will he no estop- pel, unless the injury be the direct and natural result of the wrong. « Sec. 413. The true rule seems to be, and with it goes the later and better considered cases, that the mere presence of the owner, if he have concealed no fact of which he was in- formed, and which the purchaser could not have learned Ijy the use of reasonable diligence, will not create an estop})el, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale. Sec. 414. A party will, m many instances, be concluded by his declarations or conduct which have influenced the conduct of another to his injury. But the application of this principle with respect lo the title to real property, it must appear, first, that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title; second, that he made the admission with in- tent to deceive, or with such culpable and careless negli- gence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of all means of acquiring such knowledge; and further, that he relied directly on such admission, and will be injured by allowing its truth to be disproved. It is only when silence becomes a fraud that it postpones. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evi- dence which he attempts to set up. The primary ground of this estoppel is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. Sec. 415. One essential element of every equitable estop- pel, by which a man is to be precluded from claiming what is his own, is ignorance on the part of the purchaser or party claiming the benefit of the estoppel, as to the true state of the title. To estop a vendor of real estale, by statements in regard to the eflfect of his deed or extent of the 416 Affecting the Title to Land. grant, such iguoruuce on the part of the purchaser must con- cur with knowledge of his title, and wilful concealment or misrepresentation in regard to it on the part of the vendor, or such gi-oss neo-lio-ence or indifference to the rights of others as under th» circumstances to be equivalent to actual and premeditated fraud. It must also appear that the lan- guage or conduct of such vendor was the direct inducement to the purchase by the other party,^ and that the purchaser will sufler if the vendor is permitted to deny it.'- The prin- ciple of estoppels in pais apply equally to transactions in regard to real and personal property. It does not at all touch the question of creating title to real estate by parol. ^ But such personal property must be in existence and expressly designated at the time, because the vendor by such sale asserts that he has an existmg title, and is bound to support and defend it, and the purchaser has a right lo rely on such assertion, but when the property sold is not in existence, the reason fails and the estoppel does not apply.* If a party who is interested in an estate, and who has know- ledge of his rights, misleads another into dealing with the estate, he will be postponed in equity to the party so misled, and will be required to make good his representations, even to the extent of any claim or title he may have in or to the estate, and this though the representations are verbal and without consideration moving directly from him.'' The estoppel does not operate as a conveyance of the interest of the party making them, but by way of estoppel preclude him from setting up any claim or title in himself at the time against the party he misleads. This estoppel in many states is not available in a court of law, but may be enforced in a court of equity. Sec. 416. Where a person knowing his own title to prop- erty, even although covert or under age, encourages, or even lies by, and permits a purchaser to buy it, equity will com- 1 Gove V. Wliitc, 20 Wis. 425. 2 Norton v. Keany, 10 Wis. 443. 3 Corkhill v. Lander, 44 Barb. 218. 4 Chynourth v. Tenney, 10 Wis. 397. 5 David V. Sliepard, 40 Ala. 587, Adams Eq. 373. Equitable Estoppels 417 pel such person to convey to the purchaser.^ ^Whcn any- thing- in order to a purchaser is publicly transacted, and a third person, knowing thereof, and of his own right to the lands intended to he purchased, does not give the purchiLser notice of such right, he shall never afterwards be admitted to set up such right to avoid the purchase ; it is apparent fraud in him not to give notice of his title to the intended purchaser ; and in such case infancy or coverture shall be no excuse ; for though the law prescribes formal conveyances and assurances for the sales and contracts of infants and femes covert, which every person who contracts with them is presumed to know ; and if they do not take such convey- ances as are necessary, they are to be blamed for their own carelessness, when they act with their eyes open ; yet, when their right is secret, and not known to the purchaser, but to themselves,or to such others who will not give the purchaser no- tice of such right, so that there is no laches in him, the coui-t will relieve against that right, if the person interested will not give the purchaser notice of it, knowing he is about to make the purchase ; neither is it necessary that such in- fant OY feme covert should be active in promoting the pur- chase, if it appears that they were so privy to it that it could not be done without their knowledge.-^ The distinction seems to be between participation or procurement, and si- lence or acquiescence, the one imposing no liability unless there is wilful concealment or fraud ;" Avhilc the other may create a bar, notwithstanding good faith and fair dealing, by rendering it more just to throw the loss on the i)art}' in whose conduct it originated, than on a purchaser who has been induced to buy by assurances, which, though believed at the time, turn out to be unfounded.^ No one should be 1 Wendell V. Reniisellaer, 1 Johnson's Cli. 354; Carr v. Wallace, 7 Watts. 100; Wells v. Pierce, 27 N. H. 7 503; Iliggins v. Ferguson. 14 ill. 20!»; Helk- nap V. Nevins. 2 Jolinson, 573 ; Clieciioy v. Arnold, 18 Barb. 435 ; San- derson V. Ballance, 3 Jones, Eq. 322 ; Godefrey t. Caldwell, 2 Cal. 489. 2 Clare v. Earl of Bedford, 13 Vin. 536 ; Berrisford v. Milward, 2 Atk. 45) ; Conyert v. Gertckeii, 2 Madd. 40; Thompson v. Simpson 2 T.& L. 110; Gov- ett V. Richmond, 7 Sim. 1; Overton v. Banister, 3 Hare, 503. SClabaugh v. Byerly, 7 Gill. 384; Strong v. Ellswortli, 2cti()M on the part of the real owner, the latter will, in C(iuity, l)e estopped from afterwards setting up the title which he has so long concealed.^ Sec. 429. It is difficult to draw the precise line how fur positive fraud must enter into the act or declaration of the party who is sought to be estopped. But that it must have the same effect upon the party, who sets it up as an estoppel, is a rule well settled. The party will, in many instances, be concluded by his declarations or conduct which have influenced the conduct of another to his injury. The part}', in such cases, is estopped from denying the truth of his admissions. But to the application of this i)riiiciplo M'ith respect to title to property, it must appear, first, that the party making the admission by his declarations or conduct, was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such Imowledgo; and , fourtii, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.'^ " The i)ri- mary ground of the doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential either in the intention of the party estopped, or in the eficct of the evidence whi.Ii he attempts to set up."'^ 3 Foster v Bigelow, 14 Iowa 239; Lucas v. Hart. 5 L.wa. 415; 2 SuRacn on Vendor's, 1022; Gatling v. Rodman. G Ind. 289. 1 Story J-^M- ^ 38'.>. 3 Boggs V. Merced Go. 14 Cal. 367; Gliddcn v. Stnipler, Wl P.-nn, 40.). 3 Hill V. Epley, 31 Perm. 834; 1 story £((. § 391 ; Adams K.^ 1:„ ; ( ..pH.ind V. Copelaiid. 28 Maine. 539; Whitaker v. Williams, 20 Conn. 101; Oda- plaine v. Ilitclicock, 6 Hill, 17; Tolman v. Sparh.awk, 5 Met. ^>'\]^''''^*'!J- Boston & Worcester K. K. Id. 4S7 ; McCracken v. San !• rancisc •, 10 Cal. 0-8. 428 Affecting the Title to Land. Sec. 430. The various circumstances which render the ajDplication of estoppel in pais necessary to titles of real estate being of so varied a nature that it is next to impossible to lay down positive rules regarding their application, it will therefore be necessary to illustrate the principle of this branch of estoppel by the citation of a variety of analogous cases, an estoppel in pais, where it applies is as effectual as a deed, but no more so ; so that, if the party doing the act could not have made a deed of the land in question, his act cannot create an estate by estoppel in the same.^ In the next place, a party who insists upon the acts of another as working an estoppel, must show that he acted upon the same, and that it formed the inducement which led him at the time to do what he did. Thus where an infant, whose land has been irregularly sold during his minority, made declarations after he became of age expressing his satisfaction of the sale ; it was held not to be an estoppel to his claim to the estate, because being made long after the sale, it ccfuld have formed no inducement to the party to make the jDur- chase.'^ But acts and declarations of a positive character, are not the only grounds of estoppel. Under some circum- stances, one may by being silent or passive, when he ought to speak or act, estop himself from claiming his rights. Ques- tions of this kind have most frequently arisen in cases where one, having a claim upon land, has stood by or knew of a sale of it being made as the property of another, without disclosing his claim. If a man holds a title to his lands by deed which has been duly recorded, it is all the notice he is bound to give so long as he remains passive ;^it is only when he sees another 2:)urchasing land upon which he has some unre- corded lien or charge, of which the other is ignorant, that he is bound to give notice thereof. And, upon failing to do so, he is estopped to set up such claim against the purchaser.'* 1 Lowell V. Daniels, 2 Gray, 169; Beaupland v. McKean, 28 Penn. 124. 3 Ackley v. Dysert, 33 Penn. 176; Allen v. Allen, 45 Penn. 473- 3 Patterson v. Esterliiig,. 27 Ga. 207 ; Fisher v. Mossman, 11 Ohio, St. 42; Tongue's Lessee v. Nutwell, 17 Md. 212 ; Hill v. Epley, 31 Penn. 332 ; Odlin v. Gove, 41 N. H. 477 ; Brinckerhoff v. Lan.siiig, 4 John's ch. 70 ; Bigelow v. Topliff, 25 Verm. 287 ; Carter v. Champion 8 Conn. 554. ■1 Gray v. Bartlett, 20 Pick. 193. Equitable Estoppels 429 No man can set up another's act or declaration as the ground of an estoppel, unless he has himself been mislGtt7)r deceived by such act or declaration, nor can he set it up, where he knew, or had the same means of knowledge, as to the truth of the statement, as the other party. ^ The same rule applies where the owner of land has stood by and allowed another to go on and make improvements upon it, in the mistaken belief that he was the owner thereof. If the true owner not only knows of such expenditures being incurred, but also that the other party is doing it under a belief that he owns the land, it is regarded as a fraud to suffer him to go on with- out notice, and he would thereby be estopped to claim the improvements, &c., and in some cases, even the land itself. - Thus where A. sold land to B. by parol, without giving any deed, and represented to C. that he had conveyed it to B., and thereupon C. purchased the estate of B. and made ini- pit)vements upon it, it was held that A. w'as estopped to set up a title against C. on the ground that he had not made a deed to B.^ Sec. 431. An estoppel in pais, as affecting the title to land, can be better understood by referring to some of the following cases, in which similar questions were raised. In Tilton V. Nelson, a husband and wife having mortgaged an estate to loan commissioners, wdth a power of sale, the hus- band applied to them to make sale of it, and induced the officers of a bank, who held a judgment against liiiu, to purchase the mortgaged estate for the purpose of satisfying their debt. The bank subsequently sold the estate. The sale being, for some reason, irregular on the part ot the commissioners, the title defective, after the hu.-band's dt-aih, his heir-at-law attempted to recover the land on that ground. It being shown that the father was cognizant of the facts, though not of their legal effect, and had induced the bank to purchase, as if the title was valid, he tuid all privy in es - lOrmsby v.Ihmsen, 34 Penn. 472 ; Gray v. Bartlett, 20 Pick. 193; Mc- Cune V. McMichael, 29 Geo. 312; Jewett v. Miller, 10 N. Y. 40b ; I erris v. Coover, 10 Cal. 589. , , „ ZMcGarrlty v. Byington, 12 Cal. 431; Knoup v. Tho.nps.ui. b Penu. 364 ; Gatling v. Rodman, 6 Ind. 289 ; Odliu v. Gove, 41 N. H. 447. 3 Key V. Dent, 33 111. 316. 430 Affecting the Title to Land. tate with him were estopped from setting up an adverse title. In Storrs v. Barker, the plaintiff's daughter, whose heir he was, made a will while covert, devising her real es- tate to her husband. The husband offered the land for sale, and the father, supposing the will to be valid, advised the defendant to purchase it, stating at the time that he had no claim to it. Subsequently the plaintiff ascertained that the devise, being that of a feme covert^ was void, and claimed the estate. He was estopped to set up a title against one whom he had thus misled as to the true state of the title. In Hunsden v. Cheney, a son settled upon his wife, at mar- riage, a term, in the presence of his mother, stating to her that the same was to come to him at his mother's death. This, though done in his mother's presence and hearing, and being witness to the deed, was not denied by her — she did not then know that she had a claim to the term as a tenant in tail. She was thereby estopped to set up any greater Es- tate in the term than one for her own life. In Blackwood V. Jones, one having a claim upon land was present at the sale, and, to an inquiry, stated that his claim had been set- tled, he was estopped to set up the same against the pur- chaser. In Snodgrass v. Ricketts, the true owner was estopped, where a sale was made by another in his presence, and the purchaser was instigated, by the one who had the title, to buy the land. In Beaupland v. McKeen, one who had been employed to purchase land for another, who bought and paid for the same, on the belief that he had obtained thereby a good title, was estopped to set up a pre-existing adverse title, which he had purchased after the purchase made by the tenant. Sec. 432. The owner of lands through which a railroad passed, having previously granted the right of way to the com- pany, was apprised when the agents of the company entered on his lands to open the road, and knew that they claimed the right under his deed, but raised no objection, and took a contract for supplying materials used in the construction of the road. He was estopped from afterwards bringing tres- pass against the members of the company, although the in- strument by which he convej'^ed the right of way might be Equitable Estoppels 431 inoperative as a deed. ' Where a creditor has treated wiili l lie transferee of his debtor's property as the real mmer, he la estopped from contesting the sale.'- Where the party bene- ficially interested in lands sold under a deed of trust to se- cure a debt, the sale of which was voidable, because the lands were put up in lump, subsequently induces a third party to purchase the lands from the vendee at the tnistee's sale, he cannot attack the validity of the sale. ' The de- fendant having settled on and inclosed a vacant lot, told the owner that he would give it up when his family came. Af- terwards, he wanted to fence with boards, and it was agreed that he should do so, and that the owner should pay one- half of the expense ; and at other times he recognized the owner's title. In ejectment by such owner's vendee, the defendant was estopped from disputing the owner's title.* Where the plaiutifi' had lived, for nearly twenty yeai-s, near the land, and had made no claim for his share of it, nor given any notice of his title, though aware that othei-s were making valuable improvements upon it on the faith of their titles, he is estopped from asserting title in himself, as against purchasers ignorant of his title and without notice.'' Sec. 433. When the circumstances are such as to give rise to an equitable estoppel, it will be binding on all who acquire title subsequently, with notice or knowledge from the party estopped.'^ Although in the absence of notice, the legal title must prevail where the title to land is in question.' Generally speaking, estoppels of this description are limited to parties to whom the declaration was made, or the assur- ance given, but the courts have also enforced them against third persons.^ And in one case,'* the acquiescence of the grantee in an exclusive rigfht of way in its use by others, 1 Pollard V. Maddox, 28 Ala. 321. 2 Ross V. Pritchard, 15 La. An. 531. 3 Taylor v. Elliott, 32 Miss. 172. 4 Downer v. Ford, 16 Cal. 845. 5 Woods V. Wilson,. 37 Penn. 379. 6 Shaw V. Beebe, 35 Vt. 204, 7 Price v. Case, 10 Conn. 375. 8 Robinson v. Justice, 2 Penn. 19; Keclcr v. Van Tuyle. G Penn. i>0. 9 Lewis V. Carstairs, 6 "Wheaton, 193. 432 Affecting the Title to Land. and his calling upon them to contribute to keep it in repair, were held to create an estoppel in favor of a third person, who might be presumed to have been influenced by the course thus pursued in paying, although there was no evi- dence that it had been brought to his knowledge. There is no better settled principle of law than, that the express, or even tacit acquiescence, of the owner in an unauthorized sale of chattels, will estop him from questioning the title of the purchaser,^ and it has even l^een applied where a failure to inform a purchaser on credit of the real state of the title, .and thus put him on his guard against jjaying the purchase money.- Whether the acts, admissions or declarations con- stituting the estoppel are contemporaneous with or prior to the sale, makes no difierence if they tended to deceive, and the buyer w^as actuall3^ misled.^ Sec. 434, Upon a sale on execution, if the debtor acts in selecting appraisers, and in giving directions to the mar- shal concerning the mode of sale, and these facts are known to the purchaser when he buys and pays for the property, the debtor is estopped from avoiding the sale, by showing that the marshal had not taken the necessary steps to author- ize him to sell. ^ Even where no judgment of foreclosure has been entered, yet if the mortgagee has admitted in writ- ing the whole mortgage debt to be due, and l)y his signature and acts to forward and expedite the master's or sheriff's sale of the mortgaged premises, waiving matters of form, surrendering possession to the purchaser, and moving away, or standing by and suflering purchasers for large and valua- ble consideration, to improve the property, he is equitably estopped from asserting his ownership for want of proper authority, at the time in the master or sheriff to sell.^ Where land is incumbered by a judgment, and the owner of it allows a purchaser to acquire a title to it at a sherifl^'s sale on execution when he could have restrained the sale by an 1 Thompson v. Blanchaid, 4 N. Y. 303; Cox v. Biirk, 3 Strobh. 3G7. 2 Thompson v. Sanborn, 11 N. II. 201. 3 Quirk v. Thomas, 5 Mich ; Robinson v. Justice, 2 Penu. 19. 4 Erwin v. Lowry, 7 How. 172. » Cromwell v. Bank of Pittsburg, 2 Wall, Jr. C. C, 509. Equitable Estoppels 4:^3 equity superior to the judgment, he cannot then cluini title to the land as against the purchaser, whero'^ch chiim, if sustained, would also result in a loss of the pmciiase money to such purchaser.^ Sec. 435. In order that an equitable estoppel may arise to debar the owner, the concealment must be fraudulent, or attended by such gross negligence and indiHtTcncc to the rights of others as to be equivalent to actual and premedita- ted fraud.'- What shall be sufficient concealment or false representation to create the estoppel, is a matter depending in a great measure on the circumstances of the case. While it has been well established in estoppels by record and by mat- ter of writing, or by deed, what is necessary to create either, there have been no particular rules established or adopted in regard to the nature and amount of proof or circumstances necessary to create an equitable estoppel. Every case in which this branch of the law of estoppel is applicable must therefore depend upon the peculiar circumstance:^ connected with it ; but some degree of moral turpitude is imlispensa- bly necessary to give mere silence or acquiescence, the force of a peremptory estoppel.^ Good faith and diligence must concur on one side, with the want of them on the other, and no estoppel can arise in the absence of actual fraud, unless the purchaser was destitute not only of actual knowledge of the true state of the title, but of a means of acijuiring knowledge by a recourse to the record,' or in any other manner equally obvious or certain ;•' for under such circum- stances both parties will be regarded as equally negligent, and it would be wrong to relieve one at the cost of enforc- ins: a forfeiture against the other. '^ 1 Frost V. Quackenbush, 18 Abb. 3. 2 Parker v. Barker, 2 Mot. 421. 3 Titus V. Morse, 40 Me. 348 -, Colbert v. Daniel, 32 Al.a 311 ; IIill v. Epley, 31 Penn. 331 ; Clabaugh v. Byerly, 7 Gill. 354. 4 Bigelow V. Topliff, 25 Vt. 273 ; Carter v. Champion, 8 Conn. 554. 5 Hill V. Mossman. 11 Ohio S. 42 ; Odlin v. Gove, 41 N. H. 405. 6East India Co. v. Vincent, 2 Atk. 83 ; Gray v. Bartcll. 20 Pick. 8.', ; Casey V Inloe, 1 Gill. 430; Tongue v. Nutwcll, 7 Md. 212; Knonjif v. Thompson, 16 Penn. 502 ; Carpenter v. Stillwell, 11 N. Y. 61 ; Claubaiigh v. Hyerly.T GiU. 354. 28 434 Affecting the Title to Land. Sec. 436. A nmu cannot deny the validity of a sale made by a person whom he has enabled to hold himself out to the world as the owner, or didy authorized to sell.^ In order to produce this result, there must be fraud or neglect on the part of the owner, as well as good faith on the part of the purchaser."-^ When A., with a view to hinder and delay his own creditors, falsely and fraudulently holds out to the pub- lic and pretends that certain chattels bought and paid for by him, and then in his possession, belong to B., who has the lease of the store where the articles are sold, and whose name is upon the awning, he will be precluded from claiming the property as against the creditors of B., who seize the property upon their executions.^ Where the owner of goods stands by and allows another to treat them as his own, by which means a third person is induced to purchase them, the former cannot recover them from the purchaser ; and if one by his conduct causes another to believe in the existence of a state of facts, or by his silence admits another to be the owner of property, when such ownership is asserted, so that a third person, in acting upon it, assumes a responsibility or parts with the property, he cannot afterwards aver his own title to the injury of such person.^ If, after an alleged purchase of goods, the vendees cause an execution to be levied upon them as the property of the vendor, this is a solemn admis- sion on their part that the goods were, at the time of the levy, the propeit}' of the vendor, and they are estopped from claiming the goods in any other way than by virtue of the said levy, even where it was proven that they did not intend to abandon their alleged purchase, and acted under the advice of counsel that their title would not be affected thereby.^ The owner of goods, who stands by and volun- tarily allows another to treat them as his own, whereby a third person is induced to buy them bona fide^ cannot re- 1 Pickering v. Bust, 15 East, 38; Davis v. Bradly, 24 Vt. 35; Dyer v. Pear- son, 3 B. & C. 38; Reed V. Yanclcve. 3 Dutch, 352; Carmichael v. Buck, 1 Rich. Eq. 332. 2 Faucett v. Osborn, 32 111. 41; Dyer v. Pearson, 3 B. & C. 38. 3 Rigney v. Smith, 34 Barb. 383. 4 llibbai-d V. Stewart, 1 Hilt. 207. 5 Field V. Lang.sdorf, 43 Mo. 32. Equitable Estoppels 435 cover them from the vendee. Thus the phiiiilill', i1k' t)\viuT of the fixtures of a public house, demised lIu-rlTto A., >vhi» thereupon became tenant of the house to B., under an agree- ment which gave his hmdlord a lien on the fixtures, the plaintifi* being present at the execution of such agreement. A. afterwards sold the good will and fittings, without the plaintiff''s knowledge or assent, to the defendant, who, being told by B. that A. was his tenant, bought them hona Jide, in ignorance of the plaintifi''s title, and was accepted l)y B. as a tenant in the place of A. Held, that he was estopped in an action to recover the fixtures.^ Sec. 437. So where one of several administrators was present at a levy upon the property of his intestate, and fur- nished to the officer a list of the slaves, and was present at the sale, and made statements to the bidders; although it did not appear that he acted fraudulently, the admin- istrators were estopped from proceeding against the officer as a trespasser.- So the plaintifis agreed with A. to sell to his firm fifty casks of potashes, for a certain price, cash on delivery. A. engaged freight for the potashes in a ship, advertised for a voyage to Liverpool. The plaintiffs sent the potashes on board by their carman, who took receipt therefor from the mate. A. then went to the office of the plaintifiis, and stole the receipts from their desk. On the same day he presented them to the owners of the ship, and procured a bill of lading in his own name. Drawing a l)ill of exchange against the shipment, he assigned the bill of lading to B., who, in good faith, made an advance ui)on the security. C, the master of the ship, refused to deliver the potashes to the plaintiffs, but delivered them to the holdei-s of the bill of lading in Liverpool. The plaintills gave no notice of the theft to any one connected with the ship lor two or three days. In the meantime they treated with A, and demanded from him pay for the potashes or then- return. In an action against C. and A., and his partners to recover the potashes, held, that the conduct of A m obtain- 1 Gregg V. Wells, 10 Ad. & Ell. 99; Francis v. Welch, 11 Ircd. 2ir.; Downer V. Flint, 2 P. Wm-s. 527. o-r.ir^-.i 2 Ponder ;. Moseley, 2 Florida, 207; Acldey v. Neufv.lle. 2o Cal. 5.,1. / 436 Affecting the Title to Land. ing possession of the property was fraudulent rather than felonious; and, the plaintiffs having allowed him to assume some of the indicia of ownership, so as to justify C. in con- sidering him the lawful owner, and having also neglected to notify C. of the fraud promptly they could not recover from Sec. 438. So where A. sold by contract to B. 100 casks ot tallow then lying at a wharf, and on the same day gave him a ^vi-itten order to the defendants, the wharfingers, •' to weigh, deliver, transfer and re-house the same." The next day B. who had previously entered into a contract with the plaintiffs for the sale of 300 casks of tallow, in part fulfil- ment of that contract, obtained from the wharfingers and sent •to the plaintifls the following acknowledgment : " Messrs. C. & Co., we have this day transferred to your account (by virtue of an order from B.) 100 casks tallow, &c., with chai'ges from 10th October." Upon the receipt of this, the plaintiffs paid B. the full amount of the tallow. Shortly afterwards the defendants delivered twenty-one of the casks to the order of the plaintiffs. On the 1 1th of October, B. stopped pay- ment, and on the 14th, A. sent notice to the defendants not to deliver the remainder of the tallow to B. or his order ; and though the tallow had not been weighed, held, the defendants were estojjped by their acknowledgment, and could not set up in defence a right in A. to stop in transitu.- The defend- ant, a wharfinger, having acknowledged certain timber on his whaif to be the property of the plaintiff ; held that he could not dispute the plaintifi''s title.'^ A manufacturer dejjosited goods with a wharfinger at Stockton, for the purpose of being shipped from the defendants wharf in Loudon, receiving from him receipts describing them. The plaintiffs sent the re- ceipts and delivery orders to the defendants, and demanded the goods. The defendants stated that the goods had not arrived, but promised that when they did arrive they should be forwarded to the plaintiffs; the defendants having thus assented to the plaintiffs title could not afterwards dispute it. 1 Browcr v. Pcabody, 18 Barb. 599. 2 lliiwes V. Watson, 4 Dovvl. &, Ry. 22. 3 Go.sling V. Birnic, 7 Bing. 339 Equitable Estoppels 437 Sec. 439. The expenditure of money or labor by one man on the kind of another, under a license given i»*r-th(! owner, will estop the owner from revoking the license and wresting the former from his possession of the land.^ Where a licensee has expended money on the faith of the license, and put himself in a position that he would be seriously damaged by allowing it to be revoked, the estoppel is ap- plied in the same manner as it is to those cases of acquies- cence and silent consent.'-^ A parol license, when executed, may become an easement on the land, and where acts have been done in reliance upon a license, the licensor will be estoi)- ped from revoking it to the injury of the licensee.-' This rule, that a license to do something on the licensor's land, fol- lowed by expenditure on the faith of, is irrevocable, rests upon the principle of estoppel, because the parties cannot be placed in statu quo. Equity treats a license thus exe- cuted as a contract giving an absolute right.^ A license cannot be revoked or withdrawn, as long as it is essential to the possession or enjoyment of a vested right or interest, which has been created by the licensor, placed, with his as- sent, where the continuance of the license is essential to its enjoyment. This is a branch of the rule that no one can with- draw a promise or declaration, made with a view of inducing others to act, after they have acted upon it, and thus placed themselves in a position where they must necessarily suller, if it be withdrawn. Sec. 440. There is a vast and apparent distinction between a refusal to fulfil an executory contract, and the ck^:>truction or deprivation of a right, which has aetnally veiled. No man is allowed to keep the property of othi-rs, by iudueing them to place it upon his soil and then refu^sing a right (.f entry to regain it. The estoppel is properly applied, and with- out divesting the title to land, prevents its being used as a means of injustice. Whenever a party has induced another 1 Dyer V. Cannall, 4 Penii. 353; Bridge Co. v. Bragg, 11 N. II. 702. 2 Rhodes r. Otis, 33 Ala. 578. 3 Dark v. Johnson, 56 Pcnn. 164. 4 Huff V. McAuley, 53 Pcnn. 20G. 438 ArFECTiNa the Title to Land. upon the fiaith of his promise, though verbal, to expend mouey or hibor, for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promisor to give such deed or writing as shall be requi- site to secure the possessor in the enjoyment of what was promised and in those states where there are no courts of equity to compel such things to be done. Courts of law con sider the thing as actually done, and the grantee will accord ingly be protected in the enjoyment of the thing promised.'' This principle has a much wider range in equity, which draws the line between participation and inducement, in the shape of assurances, or mutual promises and mere acquies- cence,- and enforces agreements which have been so far exe- cuted by an actual transfer of possession, as to put their ex- istence beyond question, and renders it difficult to restore the parties to their actual position, without injustice, and a license which has been acted upon, falls directly within this principle, and stands in the same position with other execu- ted agreements. Sec. 441. The principle on which chancery precludes men from falsifying hopes or expectations, on which others have acted, now forms one of the most prominent doctrines of the common law, under the title of equitable estoppel, and enables a court of law to do that indirectly, which would otherwise fall clearly beyond the scope of their powers. When a thing sold or given, is at the time on the land of him who gives it, he will be estopped from defeating his own grant, by refusing the grantee permission to enter on the land for the purpose of carrying the gift away. An ex- ecuted license stands on the same footing at law, as an exe- cuted parol' agreement in equity, and is equally irrevocable, whether lands or chattels are in question. ' The estoppel is limited l)y the purpose for which it is called into Ijeing, and Avill be extended as far as the exigencies of the case and the purposes of justice require. 1 McKellip V. Mcllhenny, 4 Watts, 317; Swartz v. Svvartz, 4 Penn. 353. 2 Wells V. Pierce. 27 N. H. 503. 3 Woodbury v. Paisley, 7 N. H. 237; Sheffield v. Gallis, 3 Geo. 82; Wilson V. Chalfant, 15 Ohio. 241; Clement v. Durgin, 5 Me. 9; Androscoegin Co. V. Bragg. 11 N. 11. 102; Pope v. Hay, 14 Vt. 5G0. Equitable Estoppels 4:iO Sec. 442. An estoppel in ^;rte's' can only be set uj) as ;i means to prevent injustice.' And not "\v4t(ni a person tbiough misapprehension, ignorance or inadvertence, docs acts or makes declarations that mislead another to his injury, l)ut where at the same time there is no wilful dec^eption or culpaple negligence, and no intention that the re})resriitati(in should be acted upon as true by the other party, and nothing that is equivalent to a promise that the representation is true.^ It must appear that there Avas fraud or gross negkct; that the party making the admission, by his declaration or conduct, was apprised of the true state of his own title; and that others were acting in ignorance of it; that he intended to deceive or was culpably negligent in the non-assertion of his rights; that the other party had no knowledge, or means of acquiring knowledge, of the true state of the title, and that he relied upon such admission to his injury.'' The declarations must have been the main inducements of the purchase.* Eepresentation or silence must not only have misled, but have been intended so to mislead; or at least there must have been such culpable negligence or careless- ness as amounts to such intention. Reasonal)le care on the one side or negligence on the other, will not estop.' The cir- cumstances must be such, in case of silence, as to render it the duty of the party to speak. But it has been held that there can be no verbal estoppel," none by a contract invalid under the statute of frauds.^ And not by a parol promise of which there can be no specific perfonnancc.^ The cases cited will serve in a measure to illustrate the rules adopted and the manner in which estoppels in pais, or technically 1 Thomas v. Bowman, 29 111. 42fi. 2 Danforth v. Adams. 29 Conn. 1U7. 3 Boggs V. Merced Co., 14 Cal. 279; Junction R. R. Co. v. Ilarpold, 19 Ind. 347; Woods v. Wilson, 37 Penn. 379; Brewer v. Boston ?cc.,o Met. 4,H; Brubaker v. Keson, 36 Penn. 519; Calilf v. Ilillhouse, 3 Min. 311. 4 Dnell V. Bear, &c., 5 Cal. 84; Wooley v. Edson 35 Verm. -^^^-Ij^ Austin v. Thompson, 45 N. H. 113; Ilazleton v. Batchelder, 44 N. H. 40; Calia %. Hillhouse. 3Min. 311. 5 Taylor V. Ely, 25 Conn. 250; Turner v. Coffin, 12 Allen, 401; Plumcr v. Lord, 9 Id. 455. . , x, • .rr G Hamblin v. Ilamblin, 1 Appl. 141; Stinchfield v. Emerson, 52 Mame, 4Co. 7 Miranville v. Silverthorn, 48 Penn. 147. !^ Wrisht V. DeGniff", 14 iMich. I(j4. (. 440 Affecting the Title to Land. speaking, equitable estoppels, have been and are applied to questions concerning the title to real estate and personal property. The rules in regard to estoppels by deed will, as we have already noticed, be found to be more uniform and systematic in regard to their use and application. Equitable Estoppels. 441 CHAPTER XVI. THE APPLICATION OF EQUITABLE ESTOPPELS TO INSTRUMENTS NOT UNDER SEAL. NOTES, BILLS, BONDS, CONTRACTS, DEBTS, ETC., ETC. Section 443. The application of this })ranch of estoppels, under the principle of commercial jiirisprutlence, is attended with as much of the same harshness and rigor, which were applied to technical or legal estoppels, under the com- mon law. The distinction between legal and equitable estoppels, is forcibly illustrated in their application to olili- gations, under seal for the payment of money. In this country, the estoppel attached by the common law to sealed instruments, has been to so great extent destroyed or modi- fied by statute or custom, as to permit fraud or a fniluro of consideration to be pleaded or given in evidence, as a defence to an action brought upon a speciality. But the modern decisions have established another important change in the api^lication of the estoppel to this elicct. That if such an mstrument be purchased by a third pei-son, in consequence of a statement by the covenantor or oljligor that he is liable to pay it. The admission operates and pre-, eludes him from controverting it, and setting up a dcfenco in a suit brought for the benefit of the purchaser, whieli would have been available against the assignee. Thus, while the common law estoppel of a declaration of debt, solcnmly made under seal to the obligee, has been to a great extent done away with. A subsequent parol promise or statement to an assignee, has in lieu of the conunon law estoppel, become binding and acquired the conclusive force and ellect which the former has lost.^ 1 Watson V. McLaren, 10 Wend. 557; ITolbrook v. Bnrt. 22 Tick. 5tr.; Drrker V. Isenhauer, 1 Penn. 476; Davis v. Thomas, 5 Lcigli. 1; Bn.wn v. W right, 17 Ark. 9. f. 442 Equitable Estoppel Sec. 444. As regards the application of the estoppel, there is no difference whether the debt assigned is a simple contract debt or one under seal, the debtor is estopped from talving advantage of any defence that was concealed or with- held from the assignee.^ It is a universal rule that estop- pels shall not be extended by implication or intendment. But as regards this class of estoppels, the rule is not applied with the rigor and strictness, with which it is to estoppels by record and deed. Courts are inclined to extend rather than restrict their operation of this class of estoppels in their application to mercantile transactions, where men are to a great extent compelled to trust to appearances. The estoppel must, however, be limited within such bounds as are sufficient to place the party who has dealt on the faith of appearances to turn out to be incorrect, in the same posi- tion with reference to the author of such appearances as if they were really true. The utility of this class of estoppels has met with great favor by courts, while they have been hostile to their technicality. Perceiving how necessary and essential it is to the easy and rapid transaction of business, that one man should be able to put faith in the conduct and representations of his fellow man. The courts have almost uniformly decided and established the principle that such representations and conduct shall be binding and con- clusive, in cases where a mischief or injustice would be caused by treating them in effect as revocable, while they are unwilling to allow men to be inveigled by former state- ments and admissions, which are regarded as unimportant when made, which neither deceive or induce any one to alter their position. Such estoppels are regarded and held to be as odious as they were formerly. Sec. 445. These estoppels arise where a party by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief and alter his own previous position. A party who so acted is estopped and precluded from falsifying his 1 Plant V. Voeghm, 30 Ala. 160; Powers v. Talbot, 11 Ind 1; Forsythe v. Day, 46 Me. 170; Buckner v. Colcote, 28 Miss. 432; Homer v. Johnson, 5 IIow- ard. 698. \ On Unsealed Instruments. i i;j own representation. "By the term wilfully," observes Par- ker, B., "we must midcrstand, if not that tTicT party repre- sents that to be true which he knows to be \mtrue, at least that he means his representation to bo acted upon and that it is acted upon accordingly, and if, Avhatever a man's real intentions may be, he so conducts himself that a rea.s()nal)le man would take the representation to be true, and bflicvo that it was meant that he should act upon it, and he did act upon it as true, the party making the representation would be equally precluded from contesting its truth." If one party dealing with another puts forth a sealed instrument as his deed, or if he represents it to be a binding obligation which he has himself executed, he cannot be heard in any court of law or equity to say, as against a party who has dealt with him on the faith of the correctness of the representation, that the instrument is not his deed, or that he never execu- ted it ; or that it is not a binding obligation. Sec. 446. Any act of the principal which estops him from setting up a defense personal to himself, operates ccjually against his surety. Where the principal maker of a prom- issory note not governed by the law merchant, was informed by a person that the latter was about to purchase said n(jte, and would do so if it was good, and if there was no defense to it, and said principal thereupon informed such person that the note was good, that there was no defense to it, and that it would be paid to such person if he should purchase it, and, by reason of such representations, such person th«"r(>- after purchased the note, and the same was :issigned to him. In a suit on the note by a subsequent assignee of such i)ur- chaser, the principal and his sureties wore estopped from setting up a defense, personal to the principal, existing at the time of said representations. Sec. 447. An unqualified assurance by a debtor thai he has no defense, or that the debt will be paid, will enure as a new contract, and is equally binding, whether it is made under a mistaken impression or with a fivuululent design to conceal the truth from the assignee.' Such an c-^topp.-l arises where the repres entations are recklessly made, with - 1 Elliott V. Clolan, 1 Penn. 54; McCabc v. Ruiioy. 32 Ind. (. 444 Equitable Estoppel out knowing or inquiring into the real state of the case.^ A man wlio acts or si)eaks in a way to influence the conduct of others, cannot escape from the resiDousibility, on the ground that he had no intention to mislead, and believe what he uttered to be true. When language is ambiguous, and spoken in a double sense, the meaning should be pre- ferred which it was meant to have in the ears of those to w^hom it was addressed.'- Every one who participates in the sale of a bond or note, or takes an active part in inducing another to become a purchaser, will be bound by what he does or says in the course of the transaction, whether it re- sults from mistake or from any other cause, while his acts and declarations will be weighed, and not interpreted as meaning more than they import.^ The purchase of a debt on the faith of an admission by the debtor of his liability to pa}^ for it, deprives him of the right of making any defence to any suit which may be brought subsequently on behalf of the purchaser.^ Sec. 448. Where a surety signs an instrument apparently perfect and complete, and hands it to his principal, to be finally delivered to the obligee, only when it shall have been executed by certain others as co-sureties, and the principal, without complying with the condition, delivers the instrument to the obligee, who has no notice, actual or constructive of the condi- tion and takes the instrument in good faith, such surety will be bound. When a debtor wilfully admits a greater liability than actually exists, or conceals the equity or defense on which he subsequently relies, such concealment or admission is abso- lutely conclusive in favor of the assignee, if acted on by him in accepting the assignment.-^ A debtor will not be predju- diccd l)y failing to state a defense of which he is ignorant, 1 Preston v. Manny, 25 Conn. 158; Smith v. Stone, 17 B. Mon, 2 Wheelton v. Ilardesty, 8 Ellis & B. 232. 3 Cambridge v. Littleficld, G Cash. 210. 4 Sloan V. Richmond Co. G Blackfd. 176; "Williams v. Parker, G Cortcr, 230; Grout V. DcWolf, 1 R. I- 393; Swanson v. Walker, 3 Tex. 93. 5 Jones V. Hardisty, 10 Gill & Johnson, 404 ; Sands Adm'r. v. Lacoste, 5 How. 471 ; Decker v. Eiscnhaucr,, 1 Penn;v. R. 476 : Sargant v. Sargant, 18 Vermont, 371 ; Foot v. Ketchum. 15 Id. 258; The 3Iiddleton Bank v. Jerome, 18 Conn. 443 ; Watson's Exr's. v. M'Laren, 19 Wend. 557 ; Petrie V. Fleter, 21 Id. 172. On Unsealed Instruments. 145 nor unless his statements are valid and acted ouhy tlic a-ssij^- nee in takinir the assijjnment. No admissionr*l!(»wever for- mall}^ or solemnly made can bo binding on the debtor, with- out specific proof that it has injnrcd or j)rejiidiced th(! as- signee.^ Where the assignee of a judgment pnrchased it in good faith, relying upon the statement of the defendant tiiat no part of it had ])ccn paid, when in fact a payment had be<'n made by the defendant to the plaintiff, before assignment, the defendant cannot as against the assignee, set np snch payment as a discharge of so much of the judgment, nor by confessing a second judgment to another creditor, can lie enable the latter to attack the first judgment in the hands of such assignee for the same cause. - Sec. 449. In the case of equitable estoppels the bnrden of proof is on those who seek to shut out evidence which is prima fade admissible, or exclude a defense Mhieh is valid under the ordinary rules of law; and they nuist show, in order to be successful, not only that tlu' del>t or demand as- signed was admitted to be good, but that the assignmenl was accepted on the faith of the admission. The admis.sion nui>l not only be contemporaneous Avith and precede the assign- ment, but must be made directly to the assignee, or in su.-h a manner as to justify the inference that it was meant to reach his ears and induce him to become a purchaser of the debt.'^ The transfer must be for value and not a gift or \wnv- faction.^ Although value may be given by surrendering an antecedent security or obligation.'^ In order that the prin- ciples of equitable estopples may be made applicable to in- stances like those above cited, it is not necessary that the admission be made in express terms. It is sutiieient it the language or conduct of the debtor is such a5 to load the assignee to believe the debt is valid and may be jjurchased with safety. A man standing by and seeing an instnnnent from which he has been discharged transferred to anotlur as 1 Hall V. Parmlee, 2 Md. ch. 137 ; Weaver v. Lynch. 26 Penn. 449. 2 Rae V. Lawson, 18 How. Pr. 23 . o, r,n 3 Elder V. Hazlett. 35 Ohio, 107; Martin v. Richtcr. 2 Stockton « Lh. ..Ki; Lounsbury v. Depew, 28 Barb. A\\. 4 Weaver v. Lynch, 25 Penn. 449. . „ . , c r.i t c .».!« 5 Boyd V. Gumming, 17 N. Y- 101; Roxborough v. Messick, 6 Ohio S. 448. 446 Equitable Estoppel a valid and existing obligation, is as much bound as if he had taken an active part in the transaction.^ Sec. 450. Where a maker of a note by himself or agent represents to a person about to take an assignment of the note that it is a valid obligation, that he has no defense to it, he cannot in action brought by the assignee on the note jjlead a failure of consideration.'- And where a note is transferred to a creditor for an antecedent debt who takes it upon the statement of the maker, he is estopped to deny its validity.'^ The maker of an accommodation note by deliv- ering it to the payee invests him with the character of a creditor, and if a third party in the belief that such note is given for actual indebtedness, from the makers to such payee, at the solicitation of the latter, and to enable him to negotiate it, signs such note. The maker after paying the note is estopped from claiming contribution from him.* A party who intrusts a blank acceptance to another, who fills in a larger amount than that fixed by the acceptor as a limit, and procures it to be discounted by a bank, which acts in good faith and without notice of fraud upon the acceptor, estops the acceptor in an action upon the bill by the bank from setting up fraud or forgery as a defense to it.^ If the maker of a promissory note tells one seeking to trade for it, and desirous to know whether he has any defense against it, that it is " all right," he will not be permitted afterwards to dispute this admission when sued on the note. It is such an admission as estops the maker from denying that the note is all right, if the facts upon which the subse- quent defense is rested, existed at the time of making such admission. Such admission is good against the maker of the note, if it be negotiable, not due, and unprotested, whether it be false or true, or fraudulent or innocent, if it is made so as to have a tendency to mislead or deceive, and has that eflect.'^ ^Declaring a note to one about to purchase 1 Cambridge Inst. v. Littlefield, 6 Cush. 210. 2 Vaiulerpool v. Drake, 28 Ind. 130; Williams v. Jackson, Id. 334. 3 Foster v. Newland, 21 Wend. 94. 4 Melms V. Weiderhoff, 11 Wis. 18. 5 Vanduzer v. Howe, 21 N. Y. 531. 6 Wright V. Allen, 10 Ind. 284; Brooks v. Martin, 43 Ala. 360; Clements v. Loggins, 2 Cal. 514; Rose v. Teeple, 16 Ind. 37. On Unsealed Instuuments. 447 it to be good, or standing by in sileiu-c when it is ti:iii.-t'fni'«l for a consideration, is au estoppel in pais against a debtor.' Sec. 451. A person to whoso order a bill or note is made payable, is generally vested with the right to transfer tht; same by indorsement, and the maker or acceptor cannot dispute the power of the payee to indorse and ti'ansfer the instrument. The making or accepting of it is an assertion to all the world of the competency of the payee to negotiate and transfer the paper, and they are esto})ped from after- wards gainsaying the assertion so made. One who tran.sfers a negotiable instrument by deliver3% or by indorsement im- pliedly guarantees that it is genuine, and that he has title to it.'- Thus, where one of the members of a tirm drew a l)ill payable to the order of a third party, payable ten days after sight, the bill was delivered with the forged indorsement of the payee and that of a second indorser thereon, to a bank in Utica, which discounted the bill, indorsed and sent it for- ward for collection. The drawee after having acei'pted and paid the bill, discovered it was a forgery, brought an action against the bank, to whom he had made the payment, to re- cover back the amount paid, he was held to be eslopp«'d. because the drawers delivering the bill with the name of iIk- payee indorsed upon it, affirmed that the indorsement was genuine, and that it might be negotiated by delivery, and because such a bill, when transferred by the maker, indorsed in this manner, is in effect payable to bearer. So if a i)aity whose name has been forged to a note, promises to i)ay it, he adopts the signature as his own and is estopped Ironi pleading thi^t as a forgery.' Sec. 452. Although an accommodation note is invalid in the hands of the pei-son for vrhose benetit it was made, sldl, if it is transferred as business paper, at a usurious discount, to a bona fide purchaser, the payee is estopped from set tin- up usuiy as a defense against his liability on the note. 1 Petrie v. Filter, 21 Wend. 172; Davis v. Thomas, 5 Leigh. 1. 2 Herrick v. Whitney. 15 Johns. 240; Nuny v. Judali. G Cow. l&l; Mor,'..H„„ T. Cunc, 4 Ducr, 79. ,.. 3Go-mv.Am.Ex. Bank, IN.Y. 11=!; Krwin t Down,, U > > , Prescott V. Calverly, 7 Gray, .407. 448 Equitable Estoppel Where the maker, endorser, drawer, or acceptor of negotia- ble paper represents the same to have been made, endorsed^ or accepted for value, and the same is purchased or taken on the strength of those representations, he is estopped from showing the contrary.^ The rights of the endorsee thereon are the same against the parties so representing it, as if it had been in ftict business paper.'- When an endorser of a note commits it to the maker vnth the date in blank, the note carries on the face of it, an implied authority to the maker to fill up the blank, as between the endorser and third persons, the maker, under such circumstances, must be deemed to be the agent of the endorser, and as acting under his authority and with his approbation. In like manner, where a person endorses his name upon a piece of blank paper, and delivers it to another for the purpose of giving him a credit, the latter is authorized to write on the other side a promissory note payable to the order of the endorser.'' Such a blank endorsement is, in effect and intention, a letter of credit, and he'mg made with the intent that a promissory note shall be written on the other side of it, it does not lie with the endorser to say that he did not endorse the note. A party who makes a blank acceptance, or signs his name on a blank paper and delivers it to another person, to be over written with a note, gives an implied authority to fill up the instrument, and he is liable thereon to the party re- ceiving it honestly and for value, though filled up for a larger amount than was actually authorized, and in a differ- ent manner.^ The vendor of a promissory note who trans- fers it by endorsement, impliedly warrants that the signa- tures of the prior parties, whose names appear thereon, are genuine, notwithstanding the endorsement is expressed to be without recourse to him.'* 1 Benedict v. Caffe, 5 Duer, 226; Robbins v. Richardson, 2 Bosw. 248. 2 Burrt'll V. Degroot, 5 Duer, 379; Chamb.Tlain v. Townsend, 26 Barb. 611; Middletown Bank v. Jerome, 18 Conn. 443. 3 Violett Y. Patten, 5 Cranch, 151. 4 Griggs V. Howe, 31 Barb. 100; Vanduzen v. Howe, 21 N Y.-531; Young v. Ward. 21 111. 223; Goodman v. Simons. 20 Howard, 3G1. 5 Duraont v. William. 18 Ohio. 515; Buxten v. Durin, 29 Maine, 434; Straver v. Elili, 16 Johns. 201 ;' Ellis v.Wild, 6 Mass. 321; Merriam v. Wol- cott, 3 Allen, 528; Aldrich v. Jackson, 5R. I. 218; Terry v. Bisseil, 26 Conn. 2.3; Thrall v. Newell, 19 Vt. 202. On Unsealed Instruments. 1 }•.» Sec. 453. Where a ncootiable promissoiy note has hern protested for noii-pnymeiit, uiid the li!il)ility of thTi cndorsi'ib has been hxcd by notice, such endorsers selling such note' without erasing their endorsement, will be held responsible for the non-payment of the same, though no notice is given them of non-payment. They are estopped by their ai-ts from controverting their liability upon the note.^ A party who purchases a promissory note after it becomes due, througii the activity and procurement of the endorsers, who induced him to buy without disclosing that they are discharged for want of notice; their silence is equivalent to an atlirmation that they are still liable, and they cannot set up any want of notice as a defense to an action on the note.^ A party who binds himself to indemnify another for all liabilities he might incur for a certain bank, by accepting their drafts, endorsing their notes, or the renewals thereof, or otherwise sends notes to such obligee in pursuance of such bonds which are endorsed by the latter and are negotiated, and the proceeds received and appropriated by the l)ank, while such notes, may not be executed as to be technically the notes of the bank, yet the obligor is estopped from setting up the defect to defeat a suit upon the bond or mortgage given to secure it.^ Where the holder of a note agrees to relin(piish all claim upon an endorser of the note, if he will secure other notes endorsed by him, and pay the costs of actions commenced upon such other notes, and the endorser gives the security and pays the costs, this will estop the holder from suing such endorser on the note.^ An endorser ot a note who waives a demand of payment upon tiie maker, and notice to himself of non-payment, either wholly or for a specified time after maturity, is estopped from setting up in defense a want of demand and notice at the maturity of the note.^ . Sec. 454. In the absence of any devise to put him oil his 1 St. John V. Roberts, 31 N. Y. 441. 2 Libby V. Pierce, 47 N. II. 309. 3 McConihe v. McClurg, 18 Wis. C37. 4 Eccleston v. Ogdcn, 34 Barb. 444. 5 Pawer v. Mitchell, 7 Wis. 101; Day t. Elmore, 4 Wis. 190. 21) 450 Equitable Estoppel guard, a party, who knowing the capacity to read an instru- ment, signs it without reducing it, he phiccs himself beyond legal relief. Thus where a promissory note wiis on its face, made payable to A., the maker of the note was estopped to deny that the note was made to A.^ Where a person whose signature is forged to a promissory note, upon being asked by one, who afterwards purchases it, if he shall purchase, and tells him that he may, or where, after purchase, when the note falls due, he promises to settle it, he cannot after- wards excuse himself from paying it, on the ground that it is a forgery. If a person whose signature is forged, treats the forged notes as valid, and thereby leads the community to beheve that the forger has authority to draw notes in hi& name, he will be bomid to pay similar notes, purchased ])y one who is deceived by his conduct. Where the person, whose signature is forged, promises the forger to pay the note, this amounts to a ratification of the signature and binds him.2 The guarantor of the collection of a note or debt, if he consents to a delay in the prosecution of the principal debtor, on his failure to pay at the maturity of the debt, will be estopped from setting up such delay as a defence to a suit upon the guaranty.^ Sec. 455. An acceptor of a bill is not allowed to allege that the signature of the drawer is a forgery ; by accepting it he accredits the bill and gives it currency in the market. ^ There is no ground of principle upon which he can raise such a defense. He knows, or is presumed to know, the handwriting of the drawer, and his acceptance is a contract entered into upon the basis of facts that are peculiarly within his knowledge. So where a party taking a bill inquires beforehand if the acceptance is genuine, and he answers that it is, he is estopped from afterwards denying his signature, in an action brought by the purchaser, who acted on the faith of his representation.'^ Where an acceptance is not 1 Rogers V. Place, 20 Ind. 577. 2 Grouts V. Dewolf, 1 R. I. 393. 3 Day v. Elmore. 4 Wis. 190. 4 Levy V. U. S. Bank, 4 Ball. 234; Price v. Neal, 3 Burr, 1354; Smith v. Mer- cer, 1 Marsh, 453; Wilkinson v, Luttndge, 1 Stra. G18. 5 Leach v. Buchanan. 4 Esp. 226; Cooper v. Le Blanc, 2 Stra. 1051; ;AMlkin- son V. Luttridgc, supra. On Unsealed Instuuments. 451 regarded as a contract to pay accordinxu^o the; tenor of the l)ill, it is sufficient to estop liini from d('nyin Canal Bank v. Albany Bank, 1 liill, 287; Gloncester Bank v. SalcMu Bank, 17 Mass. 41. 6 Robinson v. Garrow. 7 Taunton, 556; Bi-nian v. Diirck. 11 M. &. W. 2.A. 7 Bjies on Bills 185; Troy Bunk v. Lanman. 1 N. Y.; Wool v. War- bin, 1 Ala. 104. 8 McGrt-o-or v. Khodes, C El. & B. 200; Lambert v. 0;iks. 1 L<\. Hymd. iU; Drayton v. Dale, 2 B. & C. 293; Pitt v. Chapman, 8 M. & W. 610. 452 Equitable Estoppel of a bill of lading, (as by making advances,) the ship owners are estopped as against them from denying the amount therein expressed, and are liable to them for any defi- ciency.^ Sec. 456, No one who contracts expressly as principal or assumes a position which is at variance or inconsistent with the relation of suretyship, can show that he is surety, or claim any of the rights incident to that character. This is equally true at law and at equity, and was strikingly illus- trated by the case- in the Supreme Court of the United States, when the sealed writing obligatory on which the suit was brought, contained a recital that the defendants were bound as principals, and not as sureties, which estopped them from denying that such was the true nature of their obligation. Sec. 457. The acceptor of a bill of exchange cannot show that he has put his name to it without consideration for the purpose of placing himself in the position of surety, for no one can vary the basis on which he has contracted, after the contract is made ; a defendant who has assumed the guise and character of a principal cannot change his posi- tion subsequently to the injury of others who have dealt with him on that footing.^ The defendant is bound to submit to all the incidents and undergo all the consequences of the position in which he has voluntarily placed himself; one of which is that of being primarily and ultimately answerable notwithstanding a temporary or final discharge of the other parties to the instrument. This same principle applies to a promissory note which the makers had executed, each as principals, and held to preclude a defense based on the ground that the relation between them was that of principal and surety.* Even knoAvlcdge of the nature of the accept- ance at the time when the bill is taken will not vary its efiect, nor preclude the holder from treating the acceptor as 1 Norris v. Mil. Dock Co. 21 Wis. 130; Ellis v. Wclland.. 9 N. Y. 529; Meyer V. Peck, 28 N. T. 590. 2 Sprigg V. Bank of Mt. Pleasant, 10 Peters, 257. 3 Fenton v. Pocock, 5 Taunt. 551; Sprigg v. Bank of Mt. Pleasant, 14 Peters, 201; Bank of Montgomery v. Walker, 9 S. & R. 229. 4 Claremout Bank v. Wood, 10 Vt. 182. On Unsealed Instuuments. \b:i a principal.^ He who luakcs a note or iucmj^iIs ;i l.ill lor tlio accommodation of another, virtually authcni/es Iho.sc who take the instrument subsequently, to make such terms or arrangements with the endorsers, as may he most eonducive to their mutual interests, and cannot revoke the autlii»rity thus given, to the injury of others who have aeteil upon it. A defendant who contracts expressly as principal, caniiol claim relief either at law or equity, on the ground that he is merely a surety, and was known to ])e such when the iii>tru- ment was executed. The implication which arises from making a note or accepting a bill, supercedes the necessity for an express covenant or recital, and estops the maker or acceptor from pleading the collateral relation between him- self and the payee, as a bar to an action brought to enforce the instrument ; no court can depart from or vary the mean- ing of a contract as expressed in its terms, and it is ecpially binding whether in a court of law or equity. Sec. 458. A judge who gives to a bank an order on the a state treasurer, directing him to pay such bank or order on subsequent day a certain sum "in full for his quaiters' salary commencing on that day," thereby clothes such bank with the apparent ownership of the fund, and as against bona fide purchasers of such order for value, is estopped from asserting that such apparent ownership was not the real ownership, notwithstanding such order was given without value, and as a mere authority to receive the money for his use.- Where a party upon the faith of a promise by another, that if the plaintifis would suspend bringing an action upon a second note of the defendant, he would abide by the divi- sion of the first action upon a similar note of the defendant, delayed bringing an action upon the second n*)te until alter the decision of tlie action upon the first n(»le. ami until afl Wis. 75. ^ . . , . .,- ■i Brooknian v Mctcair, :^1 H<'«. Ti • 120 ; .S, C I Koh .'.h 454 Equitable Estoppel Sec. 459. An estoppel in pais may be urged against the defence of usury as well as against other matters of defence which do not involve any idea of legal or moral turpitude. Thus, where a sale of a note is negotiated by an agent of the maker, for the purpose of raising money for them jointly, and the agent in the sale of the note declares to the pur- chaser that it is a valid business note, the maker is estopped from setting up the defence of usury. ^ A note was made payable to the makers own order, and his certificate was attached thereto stating that the note was given for value and would be paid when due. The note was then sold to the plaintiff for a greater discount than the legal rate. In an action by the plaintiff thereon the maker cannot set up the defence of usury, as that would give him an opportunity to profit by his own deception practiced on the plaintiff.^ This estoppel is as applicable to an indorser of an accommo- dation promissory note, who represents that the note is valid business paper as to the maker of the note. Where the maker of a note annexes thereto at the time of executins: it, a certificate that it was given for value received, and that it will be paid when due, he will be estopped from setting up usury as a defence to it in an action by a bona fide holder for value. One who transfers a note void for usury with full knowledge of its invalidity, though without indorse- ment is responsible on an implied warranty to repay the amount of it.'^ Sec. 460. In regard to bonds, where a special agent is clothed with the apparent authority to make an uncondi- tional delivery of a bond, the obligee, without any know- ledge that any conditions were imposed by the principal, to be complied with before the agent is authorized to deliver the bond, and the bond is delivered to the obligee, nothius: short of absolute notice will vitiate or avoid it, and the sure- tics are estopped from setting up anything in order to vitiate the bond. The surety signs an instrument complete on its 1 Ferguson v. Hamilton, 35 Barb. 427 ; Munson v. Anthony, 3 Keyes, G09. " Chamberlain v. Townseiid, 2G Barb. CU; McKnight v. Wheeler, (! Hill, 492. 2 Mechanics Bank of Brooklyn v. Townsend, 29 Barb. 501 ; Edwards v. iJick, 4 B. & A. 212 ; Delaware Bank v. Jarvis>, 20 N. Y. 226. On Unsealed Instruments. \^)r> face, and delivers it to the principal to pass to the olili^'co. If he impose any condition upon his (K-livcry, he must rely upon the principal to execute that condition, for he Ini-s made him his agent for the general purpose of a delivery, and h:us clothed him with the indicia of a sub-agency. The ohligre accepts an instrument perfect in. form and execution, whiih comes to him from the person who should have ])o.sscs- sion of the instrument for the purpose of such delivery. The entire transaction, so far as the obligee is involved, is according to the ordinary and natural course. The suret}'- however, while he executes the instrument and places it in the usual channel for delivery, departs from the ordinary course of procedure by circmnscribing the general authority by a condition unknown to the obligee. The condition is disregarded, a fraud is accomplished, and he who has not scrupled to trust his principal with the seml)lancc of a gen- eral authority to make the delivery, must stand the hazard he has incurred. So where a surety signed a county trea- surer's bond, at the request of the principal obligor, after the signatures of other sureties, without reading it, or hear- ing it read, or asking what it was, upon being told by the principal that it was a county paper, such surety is not re- leased by the fact that one of the signatures is forged. When a bond has been signed and delivered to the prin(ii)al oblit'-or by a surety, upon the condition that others, not named in the instrument, shall sign before it is delivered to the obligee, and it is delivered without the signatures being obtained, and received by the obligee without notice of sueh condition of circumstances which should put him upon in- quiry, the condition imposed will not avail the surety. This is not a question of the power of the luiiicip.il to deliver the bond in its apparently perfect condili"n. but simply a question of estoppel. A surety signing mid d.divering t.. the principal o])ligor a bond, lu'foie the names of the sureties have been inserted in the body of the instrument, will be held as agreeing that the blank for .Mi.di names may be hlled in after he has executed it.' When Mj>ur.-ty bond is exe- lEagleton v. GiUrid^Ml M.& W.465; Smith v. Crocker f, Mass. ^>f-A^^- ofMckv. Huntress. 53 Me. 89; Hudson v. f-rw.tt, 5D.nfr ■ - ^'" -^ V. Popper, 01 lull. 70. 456 Equitable Estoppel, cuted by the plaiutiiF, at the request of the defendant, and upon his promise to indemnify the phiintiff, the defendant is estopped from alleging that the bond given by the plaintiff is invalid.^ A party who executes a bond as surety for a bank, which receives canal tolls on deposit, and thus admits its existence, and, by his bond, covenants for a faithful per- formance of its contract, will, Avhen sued upon such bond, be estopped from denying that such bank has a legal exist- ence.^ Where one has voluntarily signed a guardian's bond, which has been accepted by the probate court, he is estop- ped to set up that the court did not order the bond to be made. Sec. 461. Where a mortgage is made in express terms subject to certain bonds secured by a prior mortgage, these bonds being negotiable in form, and having in fact passed into circulation before such former mortgage was given, the junior mortgagees, and all parties claiming under them, are estopped from denying the amount or the validity of such bonds so secured, if in the hands of bona fide holders.^ Where a bond and mortgage has been assigned to and de- posited with the comptroller as security for circulating notes of a bank, the party who deposited the same is estopped from denying their validity in his hands. And if they have been sold by the comptroller in the party's presence, the party making no ol)jectiou thereto, he is estopped from denying their validity in the hands of the purchaser.* One who guarantees in writing the payment of a bond assigned by him thereby estops himself from denying in an action on the guaranty that the makers of the bond were competent to contract in the manner they did. The guaranty of the pay- ment of the bond by the defendant imports an agreement or undertaking that the makers of the bond were competent to contract in the manner they did, and that the instrument is a ])inding obligation upon the makers.^ If a obligor, who 1 Jarvis v. Sewall, 40 Barb. 449. 2 People V. McCumber, 18 N. Y. 315. 3 Bronson v. LaCrosse R. R. 2 Wall. 283. 4 Hubbard v. Briggs, 31 N. Y. 518; Rem.sen v. Graves, 41 N. R. 473. s Zabriskie v. C. C. & C. R. R., 23 Howard, 899; Coggill v. Am. Exchange Bank, 1 N. Y. 113; McLaugblin v. McGoTcni, 31 Barb. 208; Erwin v. Downs, 15 N. Y. 575. On Unsealed Instruments. 457 was also one of the obligors in a bond, could not iiiaKc :i delivery to himself, an assignment and delivery ol" the Inuid to a third person estops him from setting up tliu oljiction in a suit on the bond by the assignee. It is like the easi" oi' a partner making the note payable to one of the tirni. wliitli becomes valid and collectalde at law in the hands of a //oioi 7?tZe holder.' It is the duty of the oI)ligor in a voluntary bond to add the stamp, and neither he nor his sureties »:ui allege his own neglect in avoidance of the stamp. - Sec. 462. Where there has been a special contract, and the plaintiff has performed a part of it according to \U terms, and has been prevented l)y the act or consent of the defendant, or by the act of the law from perfornung the icsi- due, he may in general assumpsit recover compensation lor the work actually performed, and the defendant carniot set up the special contract to defeat him. But where there is an entire executory contract, and the plaintifl" hiuj performed part of it, and then wilfully refuses without legal excusi', and against defendant's consent to perform the rest, he can recover nothing either in general or special assumpsit. No one who waives or dispenses with the performance of a con- tract can rely upon the failure to perform it, either as a defence or a cause of action, for no one can complain of a default which he has caused or sanctioned.'^ A stranger to a contract is estopped from taking advantage of a breach of its conditions. Where in part performance of a contract a party has advanced money or done an act, and then stops short and then refuses to proceed to its conclusion, the other party l)eing ready and willing to proceed to fultil all his stipulations according to the contract, such first nanicd parly is estopped from recovering 'hack what has thus l»een ad- vanced or done.' Sec. 463. Contracts vitiated by fraud are regarded by the law as voidable, not void. So a man who has his oi)tion 1 Bradford v. Williams, 4 How. 576. 2 McGovcrn v. Iloe.sback, 53 Penn. 76 3 Shaw V. The Lcwiston Turnpike Comiiany, 2 I'.mhi. t-h M. K.-.- ^ Mil- ler, 4 Blackf. 222 ; Young v. llnntor, 6 N. Y. 203 ; Boutwdl t. O'Kct-fo, 82 Barb. 434 ; Hart v. Lonman, 2".t Id. 110. 4 Ilausbourgh v. Puck, 5 Wallace, I'.'T 458 Equitable Estoppel whether he will affirm a particular act or contract, must either elect to affirm or disaffirm it altogether. He cannot adapt that part which is for his benefit and reject the rest. He cannot do both, therefore, if a party with knowledge of a fraud in a contract which would enable him to avoid it, treats it as a subsisting contract, he is estopped afterwards from repudiating it. A party delivering goods and in- ducing his creditor to accept them in payment, is estopped from allefj^ino; the contract to be void, and recoverins; their price. ^ If the vendor of a chattel receives payment of the purchase money and delivers possession of the property to the purchaser, he is estopped from asserting that the con- tract is invalid, whether such invalidity arises from the illegality, or of the consideration, or from the legal inca- pacity of the purchaser to make the contract.'- A party to an illegal contract is not allowed by an allegation of his own turpitude to recover back what in pursuance of a forbidden bargain he has delivered to the other party, or in any way avoid the Ijargain when once executed. Sec. 464. The taking of usury is a misdemeanor by stat^ ute in many of the states. The borrower may set up usury for the purpose of avoiding a contract tainted with it, but not the lender, it cannot be avoided by the party guilty of the fraud, he is estopped from setting it up to his own advan- tage.'^ A party to a contract who himself knowing the spe- cial or technical meaning of certain material words as used in such contract, and knowing that the other party is igno- rant thereof, falsely states to the latter that they have some other or diiferent signification, and thereby induces him to execute and act upon his contract to his injury, is estopped by such representations from taking advantage of the con- tract."^ Where a contract on behalf of the state, between an officer thereof and an individual, is pursuant to a power, vested in him by the statute declared illegal by the proper law officer of the state, the state, its agents and servants 1 Fowler v. MoUer, 10 Boss. 374. 2 Morris v. Hall, 41 Ala. 510. 3 Lafarge v. Hester, 9 N. Y. 241. 4 Calkins v. The State, 13 Wis. 389. On Unsealed Instruments. 459 are estopped from denying its illcgulily.' Aj^rcditor who with knowledge of an assignment by liis debtor, fniuchdent in law upon its face enters into an agreement with hin debtor, and the trustees named in the assignment, for the management of the trust property, and the distribution of its proceeds in accordance with the terms of the a-sigumeiit, the performance of such agreement having been enteretl upon, is estopped from impeaching the assignment for s\uh patent defect.- Sec. 465. A creditor who hiis contirmed a fraiKluleiit deed by receiving a benefit under it, or has i)ecome a paify to it is estopped from aftewards impeaching it. "Where a creditor by undertaking to discharge his debtor, indiiees other creditors to accept a composition and dischai-ge the debtor from further liability, he is estopped from after- wards enforcing his claim for the reason that it would be u fraud on the other creditors. Where the plaintilfs sold the defendant a largo amount of wheat in bulk, and lurni.>lied him with a weigher's certilicatc of the quantity, and were paid for the quantity certified, and the defendant relying upon the correctness of the certificate, resold it as of the same quantity, the plaintifis are estopped from aftenvard disputing the accuracy of the certificate.^ Where a charter party provides that a vessel shall carry a certain number of tons, and the charterer permits her to carry a less cargo without objection, he is estopped from objecting that it was not a performance of the contiact.' Where, under a con- tract for the sale of hops, a third party who was to inspect and brand them, neglected to put on the brand after inspec- tion, and the purchaser at a time when the omission might have been supplied said it would make no differenee. b." is estopped from insisting on the omission to brand in ;iii action againet him on the contract.'' Sec. 4G6. Where one purchiujcd an interest in a patent, 1 Peak V. Burr, 10 N. Y. 294. 2 Rappello V. Stewart, 27 N. Y. 310. 3 Gillespie v. Carpenter, 1 Robertson, N. Y. 05. 4 Roberts V. Opdyke, 1 Robertson, N. Y. 287. 5 (MinLon v. Bruwii, 11 Barb. 22. 460 Equitable Estoppel aud agreed with the patentee, upon certain conditions, to give his personal attention to manufacturing of machines under the patent, afterwards made a second agreement witli the patentee whereby he agreed to discontinue such manufac- ture. He was estopped in an action brought against him by the patentee for continuing such manufacture, aud for an account, from setting up the defence that such patentee was not the original and first inventor of the thing patented.^ Where a party claiming to be the owner of a patent right or a machine licenses another to make and sell such machine within a certain territory, and in consideration of such license the latter agrees to pay the former a given sum by way of royalty on each machine manufactured by him and sold, and a large number of machines being manufactured a part of which are sold and a part remain on hand, the parties enter into a compromise agreement whereby the licensee executes to the licensor his promissory note for the amount due under the former contract for the machines sold, but largely reducing the royalty payable for the machines remaining on hand and those thereafter to be made, the makers of the note having fully enjoyed without interrup- tion 'everything for which they stipulated in the contract under which they proceeded, are estopped to deny a consid- eration for the note either on the ground of utility or the want of novelty in said machine.- A person who signs and delivers a message under the printed heading furnished by a telegraph company containing the terms and conditions upon which messages will be sent, is estopped from deny- ing the agreement which he has signed by alleging that he never read it.''- "Where a l)oard of supervisors accept and act upon an account containing various items presented to them for audit and allowance, they are estopped from sub- sequently objecting that the account only is verified and not the items of the account as required by the statute.* 1 Parkhurst v. Kingsman. 1 Blackfd. 488. 2 Kinsman v. Parker. 18 Howard 282; Bartlett v. Holbrook, 1 Grav, 114; Cutler V. Boweii, 11 .\. & E. 253 ; Laws v. Purser, E. C. & E. R. 48; Bow- man v. Taylor. 2 A. & E. 278; Davis &, Co. v. Gray. 17 Ohio S. 530; Kemsdk v. Hunt. 9 Blackfd. 57; Wilder v. Adams, 2 W. & M. 329. 3 Breese v. U. S. Telegraph Co., 45 Barb. 274. ■1 Sherman v. The Supervisors, GO How. Pr. 173. By Election 4G1 CHAPTER XYII. EQUITABLE ESTOPPEL, AS APPLIED TO THE RELATION OF rKIXCII'AL AND AGENT, MARRIED WOMEN, INFANTS, ADMINISTRATORS, &C. Section 467. The doctrine of election is founded upon the principle that there is an implied ('onditioii, tliat he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renoun- cing every right inconsistent with them. This principle 'm recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who ehiinis an interest under an instrument, is bound to give full effect to that instrument as far as he can. A person cannot accept and reject the same instrument, or having availed himself of it as to part, defeat its provisions in any other i)aVt ; and this applies to deeds, wills, and all other instruments what- soever. Taking possession of property under a will or other instrument, and exercising unecpiivocal act^ of owner- ship over it for a long period of time, will amount to a binding election to confirm the instrument.' Sec. 468. A man who has his option whether he will affirm a particular act or contract, must elect either to aliirm or disaffirm it altogether; he cannot adopt that part which is for his own benefit and reject the rest. lie cannot l>low hot and cold. If a party having the right to npudiate or affirm a transaction, affirms it, he cannot afterwards resort to his right of repudiation. Thus, where the assignees of a bankrupt brought trover for chattels of the bankrupt, of 1 Upshaw Y.ljpshaw, 2 H. & M. 381; Wilson v. H.yiie, Chever's Equity, r.7. Caston V. Caston, 2 Richardson's Equity, 1; Stark v. Uunton, SMton . Chancery, 217; Clay & Craig v. Hart, 7 Dana, 1. 462 Equitable Estoppel which the defendant had ta'ken possession. The chattels were part of the bankrupt's stock in trade, which, on the bankrupt's al)sc()nding, the defendant had taken possession of and carried on the trade. He had, however, rendered to the assijrnees a fair account and turned over the balance. " The defendant," said Bayly, J.,^ "in the first instance was a wrong-doer, and the plaintiffs might have treated him as such. But it was competent in their character of assignees, either to treat him as a wrong- doer and disaffirm his acts, or to affirm his acts and treat him as their agent ; and if they had once affirmed his acts and treated him as their agent, they cannot afterwards treat him as a wrong-doer, nor can they affirm his acts in part and avoid them as to the rest. By ac- cepting and retaining the balance, without objection, they affirmed his acts, and recognized him as their agent, and hav- ing done so, they are not at liberty to treat him as a wrong- doer." That a party cannot affirm the existence of a con- tract to promote the purpose of a recovery and yet treat it at the same time as a nullity, in order to shut out the oppo- site party from a defense, which would be open to him, is entirely too inconsistent Avith reason to leave much room for dispute. When it becomes necessary to choose between in- consistent rights or remedies, the election will be final, and cannot be reconsidered, even where no injury has been done by the choice, or would result from setting it aside, and where a bond or pronlissory note is joint and several in its terms, the promisee or obligee must treat it as being either the one .or the other, and cannot sue one of the obligors or promisors separately after obtaining a joint judgment against all.- Where a tenant holds over after the end of the term, or incurs a forfeiture by committing a breach of condition during its continuance, the landlord may treat him as a tres- passer, or as being rightfully in possession, but must choose between the two, and cannot enter and bring ejectment after the receipt of subsequent rent,'^ nor enforce the payment of 1 Brewer v. Sparrow, 7 Barn. &, Cress. 310. 2 Bank of Columbus v. Hart, 6 Ohio S. 33; Beltzhoovcr v. Commonwealtli. 2 Watts, 126; United States v. Price. 9 How. 83. 3 Goodright V. Cordment, 6 Tenn. 219; McKeldore v. Darracott, 13 Gratt. 278. By Election. 403 rent after enliy ami l)riii«iiii<,r (•jcclnu'iit.' A.-, 11r« rlnlinii when once ni.ule will lu- linal, tin- iii>litiiiTuTl of a .suit fur rent will, th()iii!;ii nolhiii^^ is recovered, ojx'rule ;ts an e>lo|) pel to 11 subsequent ejeetnient.- Whili' issuin;^ u writ or serving a declaration in ejectment will iireelude the right to sue for subsequently accruing rent. ' Sec. 469. A person shall not beullowed at oiui' to beneiii by and repudiate an instrument, Init if he chooses to take the benetit which it confers, he shall likewise take the obligation or bear the onus which it imposes; no person can accept and reject the same instrument. If u testator give his estate to A., and give A.'s estate to B., courts of ecjuily hold it to be against conscience that A. shouhl take the estate bequeathed to him, and at the same time refuse to give effect to the implied condition containeil in the will of the testator. The court will not permit him to take that which cannot be his but by virtue of the disposition of the will, and at the same time to keep what, by the same will, is given or intended to be given to ancjther person. It is contrary to the established principles of e()iiity that he should enjoy the benefit, while he rejects the i-ondition of the gift.^ Where, therefore, an express condition is an- nexed to a bequest, the legatee cannot accept and reject, the will containing it. If, for example, the testator posse>- sing a landed estate of small value, and a large pergonal es- tate, bequeaths by his will the personal estate to the heir, who was not otherwise entitled to it, upon condition that lie shall give the land to another, the heir nui.st eitli(>r eoiuply with the condition, or forego the benetit intended for iiim. Where a party to a ccmtract, which might be impugned on the ground of fraud, knowing of the fraud, nevertheless elect.s to treat the transaction as a binding contract, he thereby loses his right of rescinding it; for fraud only gives a right to avoid or rescind a contract. ' Sec. 470. If a party be induced tt» i)urcha>e an article by 1 Hemphill v. Flynn, 2 Penn. 144; Stuyvesant v. Davis, 9 Paige, 470. 2 Dcnby v. Nicho'l, 4 C. B. N. S. ^77. 3 Jones V. Carter. 15 M. &. W. 517. 4 Kerr v. Wanchopo, I BliRh, 21. 5 Stevenson v. Newnham, 13 C. B., 302. 464 Equitable Estoppel fraudulent misrepresentations of the seller respecting it, and, afterward discovering thcfi-aud, continue to deal with the arti- cle as his own, he cannot recover the money paid from the sel- ler; nor does there seem any authority for saying that a party must, in such a case, know all the incidents of a fraud before he deprives himself of the right of rescinding. Where an agreement has been procured by fraud, the party defrauded may at his election treat it as void, but he must make his election within a reasonable time.^ The party guilty of the fraud has no such election. Sec. 471. The estoppel of an election will extend beyond the immediate parties to the suit or act by which the elec- tion is made, and be binding in favor of all who claim under or are connected with them as privies.^ Thus when a ven- dor who has sold goods to an agent for an undisclosed prin- cipal, has once signified his intention to charge or sue either of them with full knowledge of the relation in which he stands to both, he will be bound by his determination and cannot afterwards recall it for the purpose of proceeding against the other. In like manner a suit for the proceeds of goods or lands which have been isold wrongfully without authority, will operate as an affirmance of the sale, not only in favor of the defendant ante, but all who claim mediately or immediately under him as purchasers, and give them a good title to the property by the mere fact of its institution before and independently of judgment or satisfaction.^ And where a prisoner under a ca. sa., who has been permitted to go at large by a sheriff, subsequently returns to jail and is handed over to his successor, who again sufiers him to de- part, the plaintiff in the execution may consider him as hav- ing remained in custody for the purpose of making the sec- ond sheriff responsible, or as having escaped for that of charging the first, but cannot do both, and will be barred by suing either from recovering subsequently against the other.* 1 E. A. R. R. V. E. C. R. R., 11 C. B. 803; Pilbrow v. P. A. R. R. 5 C. B. 453. 2 Merrick's Estate, 5 W. & S. 9. 3 The Fire Ins. Co. v. Cochran, 27 Ala. 228. * Rawson v. Turner, 4 Johnson. 4G9. By Election. 4G5 Sec. 472. "Whatever may ])e the rule in oHtrr cx'^es. there can be uo doubt that when the ground taken by eitlier |)arty to a suit, is prejudicial to the other by cutting him oil Irnm a good defence, or prechiding a recovery on a valid ranx- of action, it will l>ind the parly who ad()j)l.s it, by an (M|uital)le estoppel, if in no other way, and will prechuK' him from shifting his ground, in a .sul).seal on.-, even though it is executed by such agent in his own n.imr only. A party in possession of a mill siti-, who rejJrcM-nt.s to a dealer in building materials that the contract for such sit«- was taken in his own name, but for the benefit of a third party, and that he had no interest therein, but that a thiid party is the real owner thereof; and pnjcures from such dealer materials for a mill thereon, in the name and jls the agent of such third party, who, as he says, will pay theivfor, and, by like statements, induces such materialman to en- force his lieu on the mill by suit against such third i)arty ; is thereby estopped from asserting that he is himscdf the owner of the property, as against the purchaser under the judgment in the lien suit ; and from denying that such a third party w\as in possession through him as agent.' Sec. 484. Wherever one of two innocent persons mu>t suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.- Whenever the very act of the agent is authorized Ijy the terms of the power, so that by comparing the act done by the agent, with the language of the power, the act itself is warranted th«'reby, such act is binding on the principal as to all })ersons dealing in good faith with the agent.'^ Sec. 485. No one person who contracts as principal, or assumes a position which is at variance or inconsistent with the relation of suretyship, can show any of the rights incident to that character. "^ A party who for usurious consideration grants extension of time for payment to the maker of a note whereby the surety is released, is esto})i)ed from si'tting up such usury to defeat the rights which the surety aitjuircd by reason of such extension.^ If principal and surety are 1 Peabody v. Leach, 18 Wis. G57. 2 Hanks v. Drake, 49 Barb. 186. 3 Murray v. Barringer. 3 Keyes, 107. 4 Sprigg V. Bank of Mt. Pleasant. 10 Peter.'), 257. 5 Kilcy V. Gr.gg, 10 Wis. •;<■,(;. 474 Equitable Estoppel jointly and severally bound in a bond, though there is no express admission on the face of the instrument that all are principals, yet the surety is estopped from alleging that he is surety only.^ Sec. 486. The discharge of the surety is often dependent on the doctrine of equitable estoppel and not on the varia- tion of the contract with the principle. It will not take place unless a course has been adopted on the faith of the statements or promises of the creditor which cannot be retracted or withdrawn without injury,'^ nor as it would seem unless the conduct of the creditor is marked by some viola- tion of good faith or fair dealing.^ Wrong on one side and injury on the other being the essential ingredients of every equitable estoppel. A statement by the holder of a bill that it had been paid, by which the indorser was led to delay proceedings against the acceptor until the latter became insolvent was, however, held to be a good defence to the indorser whether the statement was made in good faith or fraudulently.* Sec. 487. Those who have bound themselves as co-obligors or co-contractors are not allowed to show that their true char- acters is that of sureties.^ A surety who has bound himself as co-obligor by an instrument under seal is estopped from showing the real nature of his obligation as a defence to an action. Such is the rule at law in England at the present day^ and in this country.^ Sec. 488. A party who has bound himself to a direct and im- mediate performance is estopped from showing that his obliga- tion is that of a guarantor, and that he is answerable only in the case of the default of a co-contractor or other person. 1 Dibble v. Duncan. 2 McLean, 384 ; Sprigg v. Mt. Pleasant Bank, 14 Peters, 201. 2 Hogeboom v. Herrick, 4 Vermont, 131 •i Wilson V. Green, 25 Vermont, 450. 4 Kingsley v. Vernon, 4 Sanford, 361. 5 Bull V. Allen, 19 Conn. 101 ; The Claremont Bank v. Wood, 10 Vermont 582; Yates v. Donaldson, 5 Md. 389. 6 Ashby V. Pidduck, 1 M. & W. 564. 7 Ward v. Johnson, 6 Mumford, 6 ; Steptoes Ad'rs. v. Harvey's Ex'rs. Leigh. 501; Deberry v. Adams, 9 Terser, 52; Dozier v. Lea, Ilumi.hreys, 520; Pintard v. Davis, 12 Zabriskie, V.t- mout, 450. 3 Morse v. Royal, 12 Ver. 355; Rocho v. O'Brien, 1 B. &, B. 353. •i Murray V. Palmer, 2 S. & L. 48(3; Dunbar v. Frodouich. 2 B. kB.. .•?]"; Maloney v. L. Estrange, 1 Boav. 413; Adams v. Bratllcy. 1 J. N. W. 51. B Mayer v. Bills, 16 Iowa. 580. 476 Equitable Estoppel allowed afterwards to say that, that representation was incor- rect, and that he was not a partner."^ Where persons hold themselves out to the world to be partners they will be lia- ble to third persons, and they are estopped from j^roving that any other relation exists, or from showing what the actual relation is. A person who holds himself out as a partner, inducing others to believe that he is such, and thereby secures credit for the supposed firm, is estopped from denying his liability as a partner for the debts in- curred.'^ As the power of a partner to bind the firm is absolutely ended on the dissolution of the firm, it cannot be exercised for the purpose of binding his co-partners to the payment of a debt from which they have been discharged by the statue of limitations, or in any other manner. No party can be at once plaintiff and defendant; hence a firm which is promisee of a note is estopped from bringing an ac- tion against a firm that are promissors if any person is a mem- ber of both firms, although no partnership may exist between them.^ Yet where two persons are joint owners of a vessel, against which a claim exists for non-delivery, and one gives a note in the joint name for a balance agreed, on as due for such non-delivery, the other party being aware of the making of the note, and of the consideration for which it was given, and making no dissent from the act of his co- owner, such note cannot be repudiated by such other party, he having bought out the share of his co-owner in the vessel, and agreed to pay her debts and liabilities.* A. and B. were partners in a grist mill, to which was permanently attached a circular saw mill, in which C, who had no interest in the real estate, held an interest. A. and B. sold, and by their joint deed conveyed the entire property, in- cluding, with C.'s assent, the saw mill. Held in ;i suit by C. against A., the surviving partner, to recover the value of the saw mill, that the latter was estopped from denying his acquiescence in the sale. 1 Ness V. Anges, 8 Exch. 813. 2 Kirk V. Hirtman & Co., 63 Penn. ; Conklin v. Barton, 43 Barb. 435. 3 Newell V. Nixon, 4 Wal. 573. * Pence v. McPhcisoii, 30 Ind. GG. As AiTLiEi) TO Infants. 477 Sec. 492. A partner may be cstoppctf- rn.in snyuur that there was no partnership. Thus, in an action l,v an endorsee against the acceptor of a hill of exciianrrc., pur- porting to be drawn by a linn of several person.^ if ih,- declaration avers that certain persons using that linn divw that bill, but the evidence is that the drawer of the bill trades singly under that hrm name, and that he has no parln.-r. this is not a variance of which the defendant can take ad- vantage, because, by accepting the bill he is estopped from saying that it was improperly drawn.' So where a bill i.s drawn by the firm upon and accepted l)yone of its members, in an action by the payee against the drawers, the defend- ants are estopped from setting up its a defense any irrcLMi- larity in the drawing. Under such circumstances i)i-oof liial the bill was accepted is sufficient evidence of its haviii"- been regularly drawn.^ Sec. 493. AVhen an agreement is void for infancy or coverture, an estoppel founded solely upon it must be ccpiallv void.=^ The law throws its protection around infants aiie facts of fraud or misconduct on the part of her hu>l)and, in which she does not share, or even to point out that property which he is disposing of as his own belongs to her, foi- thi' reason that the law will presume that she was swayed by his influence or restrained b}'- fear of giving him offense.^ Sec. 496. Due regard should be had to the age of a minor in deciding upon his responsibilit}' for Avhat he has siid or done, and he ought not to be estopped from asserting his rights, unless there is sufficient ground for believing he knew of their existence, and Avas aware of the injurious effect which his conduct might have upon others.* But while it has been the almost univei-sal rule that esto2)pels do not apply to infants ' and femes covertf' 1 Lowell V. Daniels, 2 Gray 161; Keen v. Coleman, 39 Penn. 222. 2 Keen v. Hart man, 48 Penn. 497. 3 Bank of U. S. v. Lee. 15 Pet. 107; Drake t. Clover, 30 AU. 382; Palmer v. Goss, 1 S. & M. 48; McClure v. Douthitt. ti Pi-nn. 414; (Jatling V. Rodman, Ind. 280. l Drake v. Clover, 80 Ala 3S1 5 Jackman V. Wood, 25 Cal. 153; Godd v. Kerr, 42 Burli. ; Brown v. Mc- Cinie, 5 Sand. 224. 6 Moiri.son v. Wilson, 13 Cal. 494; Lowell v. Daiiifl.«. 2 Gray, UU; Keone v. Coleman, 39 Penn. 299; Concord Bank v. B.llin. 10 Cusli. 270; Gliden v. Struppler, 52 Penn 400; Rangcly v. Spring, 22 Maine, 130. 480 Equitable Estoppel Sec. 497. Equitable estoppels are held to apply to mar- ried women, and in some instances to infants. Thus, if a contract for the erection of a building is made by the hus- band, and the same is. erected on the real estate belonginor to the wife in her separate right, with her full knowledge, ap- probation and consent, and she does not disclose her interest, and, knowing that it is being done, takes no steps to prevent it, she will be estopped from setting up her rights as a de- fence to a mechanics' lien.^ Sec. 498. If a married woman voluntarily makes admis- sions and representations in respect to her rights of property which deceive others, and induce them to give credit to the huslDand on the faith of the property, she will be precluded from asserting her claim against the rights of those who have trusted in and acted upon her admissions and repre- sentations.^ If a wife permits an arbitration to proceed in the name of her husband, knowing herself to be the party in interest, she will be bound by the award;* and acquies- cence in a sale by a married woman, attended with the re- ceipt of the price by her husband, was held to render the title of the purchaser valid.* A person succeeding to the title of a married woman, is estopped from denying her competency to make the title, while on the other hand, the decisions seem to be quite as strong the other way. Thus, it is held, that though the wife be silent when she knows her husband is holding out her property as his own, she is not estopped^ even after the payment of the part of the pur- chase money, for the land in her presence, has been held not to prejudice her right to claim the land, after the termination of coverture." A devisee who, before real estate is assigned to her by the probate court, consents to the sale by the ex- ecutor to settle the estate, and to confirm the sale, quit-claims 1 Swartz V. Saunders, 46 111. 18; Higgins v. Ferguson. 14 111. 269; Donaldson V. Holmes, 23 111. 85. 2 Cravens v. Booth, 3 Tex. 243. 3 Smith V. Sweeney, 35 N. T. 291. 4 Morris v. Stewart, 14 Ind. 334. 5 Drury v. Foster, 2 Wallace. 24; Bank of U. S. v. Lee. 13 Pet. 10; Bemis v. Call, 10 Allen, 512. 6 Delancey v. Keene, 1 Wash. C. C. 354. As Applied to Infants. Ihi to the executor, three d;iys aftorwardd is c.sto[)pe(l iVoni >tl- ting up title in herself, adverse to executor or liis vendee' Sec. 499. The contract of a married woman IxiuLT Miid. it cannot be ratified unless by deed in the mode prcs< rilicd by the statute. Positive acts of encouragement wliieh might operate to estop one sui juns^ Avill not atTect one under legal disability ; and a wife can do or forbear to do an act to af- fect her property, unless settled to her separate use. Thus, a maiTied woman, by agreement signed only by herself and without acknowledgment, contracted to sell land ; she re- ceived one year's interest and a small part of the pm-ehase money. The purchaser took possession and made improve- ments with her knowledge and encouragement. It was held, that she was not estopped from recovering tlie land.- When a married woman keeps a boarding house with the consent of her husband and controls the entire business, contracts .,ld' l.y the sherifl; witliout assertinjr his title or inakini: it known (.. bidders, he cannot afterwards set np his claim, and, in such case, even infancy would be no protection, i)n)vid<-d il.c mind had arrived at those years of discretion wli«-n a fraud- ulent intent could reasonably l)c imputed to him.' Wiinc land was conveyed fraudulently as against creditors, and a creditor of the grantor sued him, and Wiis about tt) levy on the land, and thereupon it was sold for a fair price, and a large part of the sum received was paid to the creditor, he could not object to the purchaser's title.'- Where land is devised to A. subject to the maintenance of his mother, :md he allows her to sell, joining her in the deed, and retpiesLs the purchaser to make the notes for the unpaid part of the price to her; he is estopped from setting up a claim for the purchase money, and, though he caused the notes to be so executed to defraud creditors, he cannot question her title to them.^ Sec. 504. Where husband and wife separate under arti- cles in which he covenants that ho wU not claim or demand any property which she shall thereafter own or ac(iuire. and he is accordingly relieved during her life from her suii[)itrl. he is estopped from claiming a life estate in one-third of her real estate after her death.' The concurrence or accpiies- cence of a husband in a settlement, though he lie a minor, will preclude him from taking any objections to it.^ If a husband acquiesces in, or confirms, a settlement, he will not afterwards be allowed to dispute it.*^ Sec. 505. The acts and admissions of one of several ad- ministrators which amount to an estoppel against him binds 1 Whittington v. Wright, 9 Geo. 23. 2 Seymour v. Lewis, 2 Beasl. 439; Gottsclialk v. De Santu, 12 La. An. 47a; Mullen V. Follain, ib. 838. 3 Hunt V. Coon, 9 Ind. 637. 4 Slocumb V Glubb, 2 Bro. C. C. olo. 5 Maber v. Hobbs, 2 Y. &. C Exch. Ca. 317; England v. Downs. 2 Ilrav. Mtt; Ashton V. McDougall, 6 Beav. Sfi; Grazebrook v. Porcival, 11 Tur. IIUI ; Loader v. Clarke, 2 Mac. & Y. 382. 6 Wallace v. Bassett, 14 Barb. 92. 484 Equitable Estoppel the whole. ^ Thus where one of several administrators was present at a levy upon the property of his intestate and fur- nished to the officers a list of the property, and was present at the sale and made statements to the bidders, although it did not appear that he acted fraudulently, it was held that he and the other administrators were estopped from proceed- ing against the officer as a trespasser.- Where a party is both administrator and guardian, and receives funds as administra- tor which belonsr to the guardian and fails to credit himself with it as guardian, he is estopped to deny that he received them as administrator.'^ A legatee who has prayed the or- phans' court to recommit a report to an auditor is estopped from alleging that such auditor was improperly appointed.^ The executors of a deceased principal are estopped from rely- ing on his death as a revocation of the agency against a bona fide purchaser, where the act is in pais and may be done by the agent in his own name.'' The attorney in an execution who refuses to state whether he directs a sale of a particular chattel by instruction of his client, and challenged a suit against himself, is estopped from denying that he acted on his individual responsibility.'" Sec. 506. Where the administrator of an estate, who was also an heir and agent for the other heirs, and as such in possession, and had control and management of a lot, allowed a third party to obstruct a way adjoining the lot, by building a barn thereon without laying any claim to said way, but protested against the building extending over the lot, he is estopped from laying any claim to the way against the third party or his grantees.'' A private sale by an ad- ministrator in his individual capacity, of property of his intestates' estate, estops him from recovering the property from his vendee, but does not pass the title to the property out of the estate; and if the sale is perfected by delivery, 1 Camp V. Mosely, 11 Fla. 171. 2 Pondar v. Mosely, 2 Fla. 207. 3 Wilson V. Wilson, 17 Ohio, S. 150. 4 Ludlam's estate, 13 Penn. 188. 6 Ish V. Crane. 8 Ohio, S. 528. 6 Ford. V. Williams, 24 N. Y. 359. 7 Dodge V. Story, 39 Vt. 558. As Ari'LIED TO AuMINISTltATOUS. 4«5 and the administrator subsequently ac-ijuircs-^josseti.sion, lu; is estopped from settiug up against his vendees the invalidity of the sale made by himself.' 1 Bragg V. Massiu's Adm'r, 38 Ala. 89. 486 Equitable Estoppel CHAPTER XVIII. ESTOPPEL AS APPLIED TO BOUNDARIES, EASEMENTS, DEDICATION, ORAL PARTITION, AWARDS, ADVERSE POSSESSION. Section 507. The principle of estoppel is applicable to the question of boundary.^ As in case of verbal represeu- tation.2 Or the acceptance of a warranty deed.^ Or the making of improvements.^ Also in case of a&sent for twenty years.^ Numerous questions have arisen between parties owning adjoining lands, from fixing the dividing lines between them or constructing division fences, separating them, where the operation of the doctrine of estoppel has been applied excluding the right to change these, if after- wards found not to conform to the true division lines. From the variety of decisions on the question of the appli- cation of this branch of estoppel to the location of bound- aries, it will be necessary to refer to some of the numerous cases on this question in order to deduce any rules applica- ble to the subject. Thus, an enactment of the legislature establishing the boundary lines of the lands of the state estopped the state from denying that they were the true boundaries.^ The practical location of a boundary hne and an acquiescence therein for more than twenty years is con- clusive of the location of the boundary line, on the ground that it is evidence of the correct location of so high a nature as admits of no contradiction.' 1 Vosburgh v. Teaton, 32 N. Y. 563. 2 Speller v. Scribner, 3G Verm. 245. 3 Hodges V. Eddy, 38 Verm. 327. i Corkhill v. Landers, 45 Earb. 218. 5 Reed v. Farr, 35 N. Y. 113. 6 Commonwealtb v. Pejebsciit Prop., 10 Mass. 155. 7 Reed v. Farr, 35 N. Y. 113 ; Baldwin v. Brown, 16 N. Y. 359 ; "Watts v. Ganahl, 34 Geo. 2'JO. Applied to Boundauiks. 487 Sec. 508. The owner of property cMiuiot !^«*^ill a dcclaia. tion or admission Avith regard to a I)oundury, on wliich third persons have relied in buying.' A i)r()pr"ietor who i)oint.s out to a settler on land adjoining hiy own, a line a.s the true boundary, acquiescing and assisting hlni in a settlement and improvements thereon, is thereby estopped from afterwards asserting a claim to the land covered by the improvemenl.s, though a subsequent survey proved it to be his own land.'- Where the description in a deed designates a piece of land as that conveyed, the description cannot be (!<■- parted from by parol evidence of intent or a<(|iiie>- ceuce in another boundary, unless such an atlverbo possession is shown, as is in itself a bar to an ejectment. ' When the disputed or uncertain line is fixed and adoi)t<'il by parol agreement of the parties, it is binding upon them, their heirs, &c., not by way of transfer of title, but by way of estoppel.* Where two adjacent owners had occupied for eleven years, on either side, up to a fence, a*; a division line, and one of them had gone on, with the acquiescence of the other, and made expensive improvements upon the land in his possession, it was held that the other was estopped from setting up the true line against the one who had thus ex- pended his money ; and the chancellor remarked, in giving the opinion, "perhaps a grant might be presinned within twenty years." ^ Where land was surveyed with a view to partition among heirs, and the heirs conveyed the land ac- cording to the boundaries of such survey, and the husband of one of the heirs after\vards purcha.sed an adjoining lot, which included a portion of the survev, it was held tiiat the heirs were estopped to deny the l)oundaries so lixed, and that the husband was estopped to claim so mucji of the land surveyed as was included in the deed to him.''' When' A. was about to purchase a lot of land Avhieli adjoined B.'s, and was bounded by it, and not knowing the boundary line, 1 Robinson v. Justice, 2 Penn. 19. 2 Jordon v. Denton, 23 Ark. 704. 3 Ilubbell V. McCulloch, 47 Barb. 287 4 Vosburg V. Yeaton, 32 N. Y. 501. s Adams v. Rockwell, 16 Wend. 285; Savarty v. Moore. 32 B-arb. 347. '5 Root V. Ciuul:, 7 I'enu. 378. 488 Equitable Estoppel applied to B. to point it out to him, who did so, knowing that the inquiry was made with a view of purchasing it. A. having purchased it, relying on the statement of B., it was held that B. was estopped to deny that the line thus pointed out by him was the true one.^ Sec. 509. A grantor is bound in his pHvate capacity to a boundary line settled by him as trustee. He cannot ac- knowledge a line in one capacity, and be permitted to deny it in another. The government of the Uuited states, as well as individuals, may be bound by estoppel. For instance, in the case of a mistake in the survey, and the parties building on the land ;'^ nor can the United States object to a boun- dary line in an approved survey, if they have not appealed from the decree approving the survey.^ A parol adjust- ment of boundaries, executed at the time and acquiesced in subsequently, will be as eifectual as if it were by deed, and estops the parties from recurring to or enforcing their original rights. The estoppel of a parol designation of boundai'ies arises from the same cause which gave rise to that of a feoffment, with livery of seizure, both having their origin in the difficulty of having recourse to written instru- ments in unsettled countries, and a rude and primitive so- cial condition.* It is too late to correct an error in the boundary line after a building has been put up which would have been taken down if the error were corrected.'' An act of the legislature may operate as an estoppel, in regard to boundaries, but in North Carolina it is held that estoppels do not bind the state. "^ Sec. 510. A party is estopped to deny the line between his own and the adjoining land to be the true line, if he has sold and conveyed land up to such line, has pointed it out as the true line, and has induced the defendant to purchase up to such line.^ If a disputed boundary line has been 1 Speller v. Scribner, 36 Vt. 247; Richardson v. Chickering, 41 N. H 380. 2 Lindsay v. Haines, 3 Black. 554. 3 Alviso V. United States, 8 Wall, 337. * Sawyer v. Whiteside, 5 Terg. 18. 5 Willis V. Swartz, 28 Pena. 413. 6 Candler v. Lundsford, 3 Batt. 407. 7 Kidiardbon v. Chickoiing, 41 N. 11. 380. Applied to Boundauies. 481) fixed and settled by agreement between the liiulics, and tl.o defendant relying on such .settlement has built upon tliy land so decided to be his, without any notice of di.s.sciit from the plaintiff in regard to the line thus established, the plain- tiff will 1)0 estopped from denying that such line waa the true boundary of their respective lots.' An ac(iuiescencu by a party in the dividing line between adjoining estalcs, may conclude a party by those boundaries as an admis.^i()n, although not constituting a technical estoppel.- AMicre two neighboring OAvners of real estate have agreed upon a boun- dary line between their farms, and in accordance therewith cultivate their respective shares, each will be estopped from recovering against the other in trespass in contravention of the agreement but not in ejectment.' Sec. 511. It has been held that a line agreed upon, or a division fence constructed by parties, if the same were done under a mistake, and the true line were afterwards to bo as- certained, might be corrected.* Thus,-'' where the parties in- tending to establish the true division line between them, fixed the bounds indicating this line, and occupied their lands accordingly for more than twenty years. When the tenant, who had purchased of the original owner on one side of the line, was about to make the purchase, he inquired of the other owner as to the land, and was told by the latter, that he did not own beyond the line above mentioned. The tenant thereupon purchased and entered upon the land, filled it up, erected fences and buildings upon it, in the presence of the other owner, who frequently pointed out the line, and never objected to the acts of the tenant, nor gave him any notice that he claimed the land. It was, afterward.?, l)y the decision of another case, ascertained that the line agreed upon and occupied was not the true line, and Ihe p.irty who had agreed to it brought an action against the tenant to re- 1 Corkhill v. Landers, 44 Barb. 218. 2 Donnell v. Kelsey, 10 N. T. 412. 3 Dewey v. Bordwill, 9 Wend. 65. 4 Prop Liverpool Wliarf v. Pre.scott, 7 Alien. 49-t; Tliaycr v. Baoon. 8 Allon 163; Coon V. Smith, li'.i N. V. ;!92; Baldwin v. Hmwn. 16 N. V. o-V.i; Kn.H- sell V. Malonoy, 3'.) Vfrin. 580. .. „ , „, , ,, n i 5 Brewer v. Boston & W«r. K. R. 5 M.l \>^: ( n..k v. Babcwk. 11 Cu.-«h. 210. 490 Equitable Estoppel cover the strip of land between the true and agi-eed line. And th^ court held, that he was not estopped by these several transactions, because the line was agreed upon in good faith, under a mistake of facts, and it was now ascer- tained where the true line w^as. The party made no decla- ration contrary to his honest belief at the time, or with any intention to deceive the tenant. The court, moreover, stated this broad proposition, which certainly is apparently at va- riance with more than one of the propositions contained in what has already been said : "A party is not to be estopped to prove a legal title to his estate by any misrepresentation of its locality, made by mistake, without fraud or inten- tional deception, although another party may be induced thereby to purchase an adjoining lot the title to which may prove defective." Sec. 512. If, for instance, the line between two adjacent own- ers be in dispute, and the parties refer to arbitrators to deter- mine the same, who hear and award upon the subject, the sev- eral owners will be bound to conform to such award.^ But while the award of arbitrators as to such line would be binding up- on the parties to it, no award as to the title to any part of such lands would be binding.'- A mere agreement, though a mutual one, to employ a common agent to run a line and set up to the bounds between two proprietors would not es- top either party from shoAving an error or mistake in this line.* So where the deeds of the parties called for certain monuments, not then in existence, or a certain line which had not been run out on the face of the earth, and the par- ties came together and fixed the monuments, or agreed upon where the line should run, they would, if it was followed by occupation, be ])ound by their agreement, and estopped from claimino- another. The distinction between these classes of cases is, that in the one, the parties, by mistake, agree upon a line where their mistake can be corrected, and the true 1 Goodridge V. Dustin, 5 Met. 363; Whitney v. Holmes, 15 Mass. 152; Kellogg V. Smith, 7 Gush. 381. 2 Vosburgh v. Yeaton, 32 N. H. 567; Jackson v. Dysling, 2 Gain R. 198; Kab- berton v. McNiel, 12 Wend. 578; Terry v. Ghandlcr, 10 N. Y. 356. 3 Thayer v. Bacon, 3 Allen, 164; Russell v. Maloney, 39 Vt. 580; Doe v. Mc- Cullongh, 1 Kerr. (N. B.) 460. Applied to BouNDAruEs. IDl line ascertained. In ihc other, they simply ii+*k<' lli:il cfr- tain which had never before been detennined, 'I'hns, where the deed referred to a certain line not ascertainable by vx- isting bounds, or knowi monuments. The adjoining own- ers agreed, that certain existing marks or moimments should indicate where the line was, and after that, occupied each to that line for a consideral)le length of time, 'J'he court held the parties bound and estopped by this as the true line. Among the cases referred to by the court, was a class where the parties, in fixing the location of their lands, agreed ui)on a certain line between them, if followed by an occupancy, will bind them by such agreement, if the line thus fixed had jire- viously been ambiguous and uncertain.' ^Vhcre the jjartips settled a disputed line by agreement, and occupied under it, it estops them.'- If there is no way of ascertaining the true line, and the parties agree upon one, and mutually enter upon the occupancy of their lands in conformity to it, they make that the line and are mutually bound by it.' Courts have held that parties who agree upon a line by mistake, would not be estopped to claim up to the true line, although the other party may in the meantime have erected buildings or incurred other expense upon the land which he claims.* Sec. 513. While other courts, under similar circumstances, held that it would work an estoppel, if the party making the improvement would otherwise lose the benefit of the same.* And again, such an agreement was held to be only prima facie evidence of what was the true line, but not conclusive.' In New York on this subject it is held, if adjacent pro- prietors fix a boundaiy line between them, in which they both acquiesce, and to which they occupy for a long period, 1 Adams v. Rockwell, 16 Wend. 285; Jackson v. Offdcn. 7 .lolins. 238; Dibble V. Rogers. 13 Wend. 536; Chew v. Morton, 10 Watts, 321; Gray v. Horry, 9 N. H. 473; Orr v. Hadley, 36 N. II. 575; Lind.say v. Springer, 4 Harrint. 547; Rockwell v. Adams, 6 Wend. 407; Terry v. Chandler, ION. Y. 866; Dag- gett V. Willcy, 6 Flor. 482. 2 Kipp V. Morton, 12 Wend. 127; ITouston v. Snocd, 15 Texas, 307. 3 Snend v. Osborn, 25 Cal. 621; Bl;iir v. .Sniilli,, 16 Mo 27^ 4 Proprietors, &c. v. Prescott, 7 Allen, 496. 5 Corkhill v. Landers, 44 Barb. 228. <• Gove V. Kichardsun. 4 Mo. 327. 492 Equitable Estoppel " rarely less than twenty years," it is conclusive, and either party is estopped from oifering any evidence to the contrary, "unless their acquiescence has continued for a sufficient leno-th of time to become thus conclusive, it is of no im- portance."^ If, after an agreement as to the boundary one of the parties were to see a third party take a conveyance of the adjacent land for a valuable consideration according to the monuments agreed upon, he is estopped to claim fid- versely to such boundary.^ Sec. 514. It has been held that an admission by a party of a mistaken line for the true line, has no legal eflfect upon his title.^ An element of estoppel has been recognized as applicable to cases where the line had been agreed upon by mistake, and could be ascertamed. "If during such acqui- escence, expensive improvements, by the erection of build- ings or otherwise, had been made by the occupant of the premises in dispute, the owner would have been estopped from setting up the true line." So that, if this be law, it is not the agreement of the parties, nor the occupying under it, nor the good faith with which this was done, but the amount of money, whether much or little, which the tenant may have expended upon the land. Sec. 515. A state as well as an individual may be bound by the acts of its legislature, as where by an act it fixes the boundaries of certain lands, it estops the state fi'om denying the boundaries ; and where the legislature grants to a county, city or town, for ever the use of certain lands for the benefit of the grantee, it parts with all interest in the lands, and is estopped from claiming them under a forfeiture of condition broken before the grant is made. There may be an estoppel in jmts as to the boundary line between the adjoining pro- prietors, although no agreement may have been made be- tween them as to the location actually made ; nor is it es- sential that the proprietor claiming the benefit of the estop- pel should enclose up to the line. It is sufficient if it would 1 Reed v. Farr, 35 N. T. 117 ; Baldwin v. Brown, 16 N. Y. 359 ; Doe v. Mc- Cullough, 1 Kerr. (N. B.), 460; Sneed v. Osborn, 25 Cal. 626; Boyd v. Graves, 4 Wheat, 517; Prop. Liverpool wharf v. Prescott, 7 Allen, 496. 2 Colley V. Norton, 19 Me. 412. 3 Crowell v. Beebee, 10 Verm. 33. Applied to Boundakiks. 4'.);j work a practical iraud upon him to allow the oilier lu iIjh- turb a location made and acqniosccd in hy liiniscir.' To estop A. from denying a boundary line, orally agiced upon \u- twccn him and B., it is not necessary that he .should h:iv.' intentionally made false statements to B., by which the lat- ter was induced to put improvements on the land, nor th;»t knowing his rights he should have agreed to a line by whirl, he relinquished part of his land to B. But he is estopped where, imderstanding that there is an uncertainty about the true line, he agi-eed to the one fixed, and allowed B. to erect valuable improvements, Avhich B. would lose but for such estoppel.'- Sec. 516. Practical location of a boundary line, and ac- quiescence in for more than twenty years, are eonelusive evi- dence of the location of the line being jjroof of the correct- ness of such location, of so ccmtrolling a nature as to pre- clude all evidence to the contrary.'^ "Where a description in a deed of a piece of land as that conveyed, the dcscri})tioii can- not be departed from by parol evidence of intent, or ac(jui- escence in another boundar}^, unless such adverse posses>ion is shown as is in itself a bar to an action of ejectment.' Where a man, instead of making and recording a home- stead, continually treats, uses and recognizes, or holds out to the world as such homestead a particular tract of land, forty acres, on which he resides, and third pei-sous are inllti- enced by his acti(ms, his wife cannot l)e allowed year.-^ after- ward to change the boundaries so as to atlect or impair a security valid when it was given.'^ When the recorded plats of adjoining additions to a city represent a stn-et as located partly upon each of such additions, and rumiing along the line between them, with nothing to indicate that there is any laud included within the street lines not belonging theivto, the owner of one of such additions and those claiming under him are estopped, as against purchasers of lots on the oppo- 1 Lindell v. McLaughlin, 30 Mo. 28. 2 Gove V. White, 2-3 Wis. 282. 3 Watt V. Ganahl, 34 Geo. 2'.>0; Reed v. Farr, 32 N. T. 113. 4 Hubbell V. McCulloch, 47 Barb. 2cS7. s Thompson v. Pickel, 20 Iowa, 490. 494 Equitable Estoppel site side of such street, who purchased for value after the plats were recorded, aud without notice of his rights, from asserting title beyond the actual centre of the street as re- presented.^ Sec. 517. The ordinary doctrine of estoppel by deed ap- plies in case of a grant of an easement, so that if a person without title professes to convey or grant an easement, his conveyance operates by way of estoppel, if at a subsequent period he acquires the fee, and the subsequently acquired estate is bound thereby — the newly acquired estate feeds the estoppel. Where the owner of an estate has stood by and seen another expend money upon an adjacent estate, relying upon an existing right of easement in the first mentioned estate, and without which such expenditure would be wholly useless and wasted, and has not interposed to forbid or pre- vent it, equity will enjoin him from interrupting the enjoy- ment of such easement. So where one by parol grants a right to such easement in his land, upon the faith of which the grantee has expended money, which will be lost and valueless if the right to enjoy such easement is revoked, equity will enjoin the grantor from preventing the use of the easement. An easement is a liberty, privilege, or advan- tage in land, without profit, existing distinct from an owner- ship of the soil.'-^ Such a privilege or liberty, open to the community, is a public easement, of which highways are the most common instances. A highway may be created by legislative authority, exercised either directly or through a municipal corporation, authorized by its charter to open streets, or through general road laws, which exist in most states, empowering justices or county courts to act upon the petition of the inhabitants ; or it may arise from a dedi- cation of the owner. Squares, walks, streets, &c., may also be the subject of dedication to the public. Sec. 518. Dedication is the act of devoting or giving property for some proper object, and in such a manner as to conclude the owner.^ It does not operate as a grant, but is 1 Weisbrod v. Chic. & N. W. R. R. 18 Wis. 35; S. C. 20 Id. 419. 2 Pomeroy v. Mills, 3 Vt. 279. 3 Hunter v. Trustees, 6 Hill, 407; Connchan v. Ford, 9 Wis. 240. Ai'i'LiED TO Dkuication, 411.5 in the natiiVc of an cstopjicl in pais, whidTdchjii-s Ihe, owner from rcx-ovoring it Lack. U may l>c niado I.y parol,' or presumed from lapse of time,- or I.y immediate pre.sunip- tion.=^ The rule a.s to dedication at common law, is hut the application of the doctrine of estoppel in pais. A dedica- tion to the pu]jlic use does not operate as a grant, but us an estoppel in pais of the owner of the servient estate from asserting a right of possession inconsistent with the uses and purposes for which the dedication wjis made/ A party is as much estopped from acting fraudulently or unjustly with reference to property to which he Ikls not strictly and technically a legal title, as with reference to property to which his legal title is perfect. So where a person h.-us an equitable title, and the United States have the naked fee, he may convey and dispose of it as he pleiLses, and if he dedi- cates any portion of it to the public use, he is estopped from revoking such dedication to the prejudice of any individual or to the public. A party having no title or interest in land may estop himself by his deed from questioning the validity of his title, or denying that he had authority to convey the fee, or devote any interest or estate to puldic use at the time of the sale or dedication. Sec. 519. This principle of estoppel in. jhu'.s is api)lied in the case of a dedication of the use of one's land to the public as a public common, landing place or highway where i)rivate and individual rights have been acquired in reference to it. A dedication to pious and charitable uses may be eflectual though not distinctively a public one, and if so made that the holder of the estate becomes a trustee for the purposes of a charity, no subsequent conveyance to one having notice could change the use. The grantee would himself become the trustee. But the mere erecting of a church for a i-eli- gious society docs not dedicate it. The owner may sell it 1 Trustees v. Fox, 9 B. Mon. 209. 2 Abbott V. Miles, 3 Vt. 521; Grcely v. Quiniby, 22 N. H. 33S; KoumHly Ex'rs V Jones, 11 Ala. G4; Schcniy v. Coninioiiwoiiltli. 2«'. roiin. 2'.t; I\y an ex- clusive possession are acts of ownership by each tenant re- spectively and are valid and binds the heirs.' "\Vh<'ro a plaintiff presents a sworn petition for a partition of lands which stated that he and others were tenants in conunon thereof and proceedings are had thereon he is estopped from denying that the others are his co-tenants, and cannot maintain trespass against them for entering.'" Sec. 524. There is one other ad ol" pailio which niav 1 Cobb V. Smith, 16 Wis. 661. 2 McMahon v. McMalion, 13 Penn. 876, Wildcy v. Burney, 31 .Miss. G14, Pratt V. Hubbell, 5 Ohio, 243; Baker v. Lorillani, 4 N. Y. lIo7. 3 McGregor v. Re.vnolds. 19 Iowa, 228. 4 Wood V. rieet, 36 N. Y. 499; Norton v. Outland, 18 Ohio St. 883. 5 Van Arman v. Phelps, 9 Barb. 500. 500 Equitable Estoppel operate m the nature of an estoppel, not in conveying a title to lauds from oue to another, but in quieting titles so as to estop any adverse claim, and that is by arbitrament and award, where the parties have submitted to arbitrators the question of property in lands, and an award upon the point has been made and published. Such award is conclu- sive as to their respective rights of property, even though the submission and award were by parol.^ While the statute of frauds and the principles of the common law may pre- clude the transfer or extinguishment of a right to land, but by an award which has its origin in a parol submission, the transaction operates as an estoppel without passing the title and precludes either party from asserting in opposition to the award. ^ Sec. 525. Adverse possession cannot originate or continue while the party actually occupies under a lease from the owner."^ A tenaut under a lease from one having possession and control of the premises but no title to them (which lease contains a clause that in case lessors should cease to control or own the property no rent should be paid unless their successors in writing should confirm the lease) by holding under and paying rent to the successive assignees of the owner is estopped from ' denying that they are assignees of his original lessor, and continues bound to pay rent to them in that character or as having by the instruments of con- firmation become new lessors.* Sec. 526. A conveyance will not in general be presumed, where the original enjoyment was consistent with the fact of there having been none.^ But where the plaintiff pro- duced an original lease of the premises for a long term, and proved possession for seventy years, the mesne assignments 1 Doe V. Prosser, 3 East, ]6; Goodridge v. Dustin. 5 Met. 363; Drustoe v. Yewre, Cro. Eliz. 223; Baker v. Townsend, 7 Taunt. 422; Shelton v. Al- cox, 11 Conn. 2^10; Bowen v. Cooper, 7 Watts, 311; Shepherd vRyers, 15 Johns, 497; Carey v. Wilcox, 6 N. H. 177; Watson Arb. 38. 2 Carey v. Wilcox, 6 N. H. 177; Clark v. Whithers, 19 Wend., 320; Merrick Est. 5 W. & S. 9; Shelton v. Alcock, 11 Conn. 240. 3 Corning v. Troy, 34 Barb. 485. * Whalin v. White, 25 N. Y. 462. 5 Doe V. Reed, 5 B. & Aid. 232. Applied to Adveuse Possession. 5(il were presumed.' And the jury wt-re dinHtiTr-ti. pr.v^mno that a grant regularly issued, where a ciirtilicati,' r.f rrcoviry had been returned, and there Avere ^uuiti(»M, or made mider a misapprehension of his rights; hut a party entering into possession, under an agreement to purchase, cannot dispute the title of him under whom he enters, until after a sui-render of the possession. So long iLsthc ordinary relation of vendor and vendee exists, the po.ssession of ven- dee cannot be adverse to his vendor.^ Sec. 533. When the heir apparent conveys land hy deed, with covenants of warranty, and aft(!rward inherits the projv erty, he will be estopped from setting u}) an adven-^o po.s- session against his grantee; but a purchaser at the sheriff's sale, under a judgment against the heir, under such circum- stances, may claim an adverse possession against the gianteo of such heir. This is upon the ground that an estoppel does not bind strangers. The heir, when he conveyed, although he had no title, by his conveyance recognized a title in his grantee and warranted the same to him; but the purchaser at the sheriff's sale is a stranger in respect to the matter that is alleged as an estoppel in the deed. He is not a party to it, and his title is in no way derived from it. He relies upon no act of the grantor, performed subsequent to the execution of the deed, to give validity to his title, and luis in no way recognized the title of the judgment del)tor's grantee. He is not, therefore, estopped from claiming an adverse possession against the grantee of the judgment debtor.'^ But a judgment debtor remaining in possession of land sold under the execution against him will not l)e al- lowed to set up an adverse possession against the purchaser at the sheriff's sale. And the possession of one holding un- der a judgment debtor by a conveyance subsequent to the lien of the judgment cannot be set up as adverse to the purchaser of the premises at sheriff's sale under such judg- ment.^ And one who enters under a title from a party subsequent to a judgment against him, through the title 1 Jackson v. Spear, 7 "Wend. 401. 2 Jackson v. Bradford, 4 TTciid. G17. 3 Jackson V. Collins, 3 Cow. 8lt. 506 Equitable Estoppel comes to the party claiming in ejectment, cannot set up another title, but is estopped from denying the title of tho judgment debtor from whom he took a conveyance and en- tered into possession.^ Sec. 534. When two or more persons have a joint claim to property, the community of their interests creates a mu- tual obligation that neither shall do anything to the preju- dice of the other. An expenditure by one upon the subject of their common interest enures to the benefit of all ; and, on the other hand, all are bound to contribute toward that expenditure. Neither, will be permitted, without the con- sent of the others, to buy in an outstanding title, and appro- priate the whole subject to himself, and thus undermine and oust his companion. " This," says Chancellor Kent, " would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the recipro- cal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties created. Community of interest produces a community of duty, and there is no real difierence, on the ground of policy and jus- tice, whether one co-tenant buys up an outstanding incum- brance, or an adverse title, to disseise and expel his co-ten- ant."- And the same eminent jurist says in another case : "It is a general principle that, if a mortgagee, executor, trustee, tenant for life, etc., who has a limited interest, gets an advantage by being in possession or ' behind the back ' of the party interested in the subject, he shall not retain the same for his own benefit, but hold it in trust."^ Sec. 535. The mutual estoppel between mortgagor and mortgagee, by which the mortgagor is estopped from setting up an outstanding title, whether originally adverse or aris- ing from his own prior grant or mortgage against the mort- gagee, and each compelled to hold in subordination to the rights of the other, is founded upon the same principle as that which exists between vendor and vendee, and grows out of the injustice of using a possession acquired for one 1 .Jackson v. Hinman, 10 Johns. 292; Burhansv. Van Zandt, 7 N. Y. 523. 2 Van Horn v. Fonda, 5 Johns. Cb. 888. 'J llohidge V. Gillcsiiie. 2 Johns. Ch. oO; Baker v. Whiting, 3 Sumner, 476 AppLiEij TO Advkksk Posskssion. Tio; purpose, for one of a dillcrciit n.-itinc, (., (1,,. pT^udicc of Ihp party from whom it wus received.' Sec. 536. To authorize the prcsuinplioii ..f ;i -rant, []„■ enjoyment of the easement must not only la- imiiiti-rnipUd for the period of twenty years, hut it nmst he adverse, n<.t by leave or favor, but under a c laim or assertion of ri-^dit, and it must be with knowledire and ac(|uiesencc of "the owner.- The exclusive use of liowin:,' water for twenty years is a conclusive presumption of ri«;lit.= In Vermont, title acquired by fifteen years' adverse possession, i.s aa perfect for all purposes as thougli derived by deed, and no parol transfer, surrender or dechiration of the j)erson so acquiring, can have any eflect upon it. lie can convcv it only by a deed executed according to the recjuirenu'iits of the statute.* Sec. 537. In cases of estoppel in 2)(ns, the rule of law merely attaches itself to the circumstances ; when proved it is not deduced from them, it is not a rule of inference from testimony, but a rule of protection as expedient, and for tho general good. It does not assume that all landlords havo good titles, but it will be a pul)lic and general inconve- nience to suffer tenants to dispute them. Neither docs it assume that all averments and recitals in deeds and records are true, but that it will lead to great mischief if parties are permitted to deny them. It does not jussume, that every man, quietly occupying land for twenty years as iiis own, has a valid title by grant ; but it deems it expedient that claims, opposed by such evidence as the lapse of those jkv riods afibrds, should not be countenanced; and that society is more benefited by a rcfustil to entertain such claims, than by suffering them to be made good by proof In tine, it does not assume the impossibility of tilings which ure [yoai- 1 Anderson v. Crow, 6 Dana, 271; Reed v. Sheply, G Vt. 602; Wiroii v. Nel- son, 26 Vt. 13; Barber v. Harris, 16 Wend.; Oslwrne v. Tunis, 1 Dutch. 633; Doc v. Clifton, 4 A. & E. 809; Doc v. Vickcr.s, Id. 7S2. 2Flora V. Carbean, 38 N. Y. Ill; Parker v Foot, 21^t Wend. 311. 3 Stillman v. White Rock Co. 3 W. & M.539; Taylor v. Wilkinson, 4 Mason, 397. 4 Hodges V. Eddy, 41 Vt. 485; Aii.>>ly or incidental to its very existence. These, are such jls arc supposed best calculated to effect that object for whifli it was created. Among the most important of these are, im- mortality, and, if the expression may be allowed, individn- ality.^ A corporation being an artificial person and a cn-a- ture of the law, is, to a great extent, governed l>y the >\\\\w principles and rules as those which are applicable to natural persons. A corporation is liable to the same extent and un- der the same circumstances as a natural person for tlie con- sequences of its wrongful acts and omissions, and is resixm- sible for the acts and negligence of its agents while euLMged in the business of their agency, to the same extent and in a like manner and under the same circumstances as natural persons. The doctrine of implied ageney arising out of negligence has its true basis in the princii)le of estoppel in pais, and is founded upon the injustice of allowing a party to be the author of his own misfortune, and then to charge tiie consequences upon ethers, and it implies an act in itself in- valid, and a person forbidden, for equitable reasons, to set up its invalidity.^ A corporation is bound l)y an estoppel.^ and has no more right to rescind a contract once K-gally made, than an individual has.' The same i)resumptiou8 1 Dartmouth College v. "Woodward, 4 Wheat, 636. 2 N. Y. & N. H. R.R. V. Schuyler, 30 N. Y. 30. 3 New England Car Co. v. Union India-Rubber Co. 4 HI. C. C. 4 Jewett V. Town of Alton, 7 N. U. 257; W. F. L. Society v. rhibdcli.hia. 31 Penn. 135; Swartz v. Faltouts, 14 La. 213. 510 Equitable Estoppel which, by general rules of evidence, are continually made in respect to private persons and public officers, that all things are rightly done, are applicable to corporations. Sec. 539. Persons acting publicly, as officers of corpora- tions, are to be presumed to be rightfully in office. Acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Grants and proceedings beneficial to the corporation, are presumed to be accepted, and slight acts on their part which can be reasonably accounted for only upon the supposition of such acceptance of, are admit- ted as presumptions of the fact. If officers of a corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal ex- istence of such authority, the acts of such officers will be deemed rightful, and the delegated authority presumed. Sec. 540. The principle that when a contract is void, es- sentially from want of power or ability, it can be rendered valid by the aid of the doctrine of estoppel, is applied in full force when a body corporate transcends the limitations imposed by its charter, and the defect cannot be cured by the acts or representations of its officers or agents, or even by an express recital that an authority exists which is in fact wanting.^ Redress must be sought in a suit to recover back the consideration, or an action on the case against the persons guilty of the fraud; although it has been held that an estoppel may grow even under these circumstances out of a long continued acquiescence in, or enjoyment of the fruits of the contract.-^ But where the authority exists, and the doubt is whether it was regularly put forth, or the con- ditions precedent to its exercise fulfilled, every intendment will be made, ut res magis valeat, and third person will not be acquired to look beyond the face of the proceedings, or 1 Hood V. N. Y. & N. H. R. R. 22 Conn. 502; Treadwell v. Commissioners, &c. 11 Ohio S. 183; Hopple v. Brown, 13 Ohio, S. 311; Angell &Ames on Corp. § 256. 2 Garrett v. Van Ilorne, 7 Ohio S. 397; Goshen Town v. Shoemalier, 12 Ohio, S. 624. Applied to Cokpokationh. /in the recitals in the instruments under wlii, h i\ny ,|;u,„' j„i objection founded solely ou Hi,. w;,„i of authority of the olii-- cers or jigcnts l)y whom the act \v;us dune, or ajrirrnimt made, may be removed by llic subscciui'ut ratification or ar- quiescence of the corporation.- Jialilication of acts of a com- mittee, by a corporation, will euro any defects in orij;inal ap- pointment/' A corporation cannot atlirm an .-ic-t of it^aj^'cnt in part, and disaffirm iis to the residue.' Sec. 541. A corporation is bound by a deed undtr it.sscal duly affixed, unless illegality or fraud can be est^ibiitihed; and the defence resting on the nlfra vires doctrine e.\i.slb only when the corporation is prohibited by law from enter- ing into the contract upon which the action is brought. " Corporations," said Baron Parke, in an often-(piotod p;i.s- sage, "w-hich are- creatures of law, arc, when their seal is properly affixed, bound just as individuals arc by their own contracts, and as much as all the members of a i)artnei>hij) would be by a contract in which all concurred, lint where a corporation is created by legislative enactment, /or yK/r/?c- ular purposes, w^ith special powers, then, indeed, another question arises, their deed, though under their corporate M-al and that regularly affixed, docs not bind them, if it appear by the express provisions of the statute creating the corpo- ration, or by reasonable inferences from its enactments, that the deed was ultra vires ; that is, that the legislature meant that such a deed should not be made. The tiuosticui,'' con- tinued the learned judge, " apj^cars to me to be simply this : — Whether it can reasonably be made out from the stJttnte that the covenant is ultra vires, or in other words, lbrl»idden to be entered into by either the plaintitfs or defcudunts."^ 1 Parish v. Wheeler, 22 N. Y. 479; Moram v. Corns, of Miami, 2 Black. 722. a Buckley v. Fishing Co. 2 Conn. 252; Peck v. M. & F. Ins. Co. 22 Conn. M7. 3 Madison Ave. Baptist Ch. v. Baptist Church, 2 Abb. Pr. N. S. 254; S. C. 32 How. Pr. 335. 4 N. Y. & N. II. R. R. Co. V. Schuyler, 34 N. Y. 80. 5 The Royal British Bank v. Turqnand, 5 E. & B. 248; anirmr.i in .rror. •• K- & B. 327; Shrewsbury & Birniin-iham R. R. Co. v. N. W. H. H. Co. fi H. of Lord's cases, 113; .'\ger v. The Allien leuni Lifo AHSurinco Society, 8 C. B. N. S. 725; Prince of Wales Assurance Co. v. HardinK. 18 E. L. Sc K. 181 Bateuian v. The Mayor, &c. of Ashton, 3 II. 8t N. 572; Sinii>.<*oD v. West- minister Palace Hotel Co. 6 Tr. N. S. 98.3. 512 Equitable Estoppel Sec. 542. Corporations have the power to waive their rights, and are bound by estoppels in pais like natural per- sons.^ When an association of persons, having assumed a name which implies a corporate body, exercise the power of a corporation, they are estopped from denying their cor- porate liability.- So a bank organized under a general bank- ing law, is estopped to deny the regularity of its organiza- tion."^ So a corporation which has entered into contracts in its corporate capacity, is estopped when sued thereon to deny its corporate existence.* A corporation is estopped from averring that officers who have acted as such were not elected at a meeting duly held."' A corporation is bound by a con- tract which was originally unauthorized if it has been execu- ted by the other party and they have received the consider- ation for their promise, and are estopped from repudiating their obligation, but the other party may enforce it.'' The president of a private corporation having as such executed a promissory note in payment for property purchased for the corporation, and being afterwards prosecuted and sought to be charged as a stockholder for the debt, he is estopped from denying the power of the corporation to make the purchase/ So if a corporation in one action rely upon a certain instru- ment as their deed, they are estopped in another from deny- ing its validity,- nor can a corporation receiving the benefit of a loan avoid its liability upon a mortgage given to secure its payment by denying the authority of those who contract- ed in its behalf.^ A grant of a franchise, or any beneficial interest by the legislature to a corporation or a private person constitutes a contract between the government and the grantee which cannot be repealed nor essentially impaired by a subsequent legislature.^^ 1 Hall V. Union Ins. Co. 32 N. H. 295. 2 U. S. Express Co. v. Bedbury, 34 111. 459. 3 Ewing V. Robeson, 15 Ind. 26. 4 Callender v. Painesville R. R. 11 Ohio, 316. 5 Sampson V. Steam Mill Co., 36 Me. 78 ; Partridge v. Bdager, 25 Barb. 146. 6 Bissell V. S. & N. Ind. R. R. 22 N. Y. 258 ; DeGraflf v. Am. L. Thread Co., 24 Barb. 375 . V Moss V. Averill, 10 N. Y. 449. 8 P. W. & B. R. R. V. Howard 13 Howard, 308; Scaggs v. B. B. & W. 11 Md. 268. 9 Ottawa R. R. Co. v. Murray. 15 111. 336. 10 Charles R. Bridge Co. v Warren B. Co. 7 Pick. 344. Applied to Cokpokations. 513 Sec. 543. No person nutunil or aitilicial 7^\ cnin,.-,- h contract that is void, illofral or contrary lo tho policy (.filu; law. So a cori)oi-ation camiot U'l^nWy oxcrci.sc any authority or power not expressly couferrcd npon it. Where u statute IS passed creating new powers, and inovidin;: that anv ex- isting corporation may except it. and that on tiling their ac- ceptance, that part of their charter whieh is ineonsistent with the act shall be repealed ; if a corporation assume to a«'t under the statute and exercise its powers, though without filing the acquired acceptance, they cannot exonerate them- selves from responsibility upon contracts made in tljc exer- cise of such powers by objecting that they had not tiled the evidence required by the statute to evince their decision to accept it. Although a corpoi-ation cannot vary from the object of its creation, and persons dealing with them must take notice of whatever is contained in the law of their organization; nevertheless in cases in whieh a corporal i(»n act within the range of the general authority, they may be bound though failing to comply with some regulation which should not have been neglected but has been.' So grantees whi» accept a statutory grant providing for an assessment of the damages of owners affected therein*, admit by such accept- ance that such owners sustained damage- \\'hilc a corpora- tion cannot relieve itself from responsii)ility to those to whom it may be indebted, by becoming merged into a new organi- tion, it may by the act of merger become so situated as to be estopped from claiming that it remains undis-solved, ■ Persons associating and acting under the name, styh" and ti- tle of Express Companies, are estopped to deny that they arc corporations,'* where a conwration imi)oses new juvscssmcnts upon members it is estopped from denying lh.it they are still members.^ Sec. 544. A lease taken by an individual in trn.-t for a 1 Zabriskie V. Cleveland, 23 Howard, .S81 ; L.incsborough v. Cutl». 22. Pick. 320. 2 People V. Law, 34 B.irb. 404. 3 Carey v. Cincinnati K. R. 6 Clarke, Iowa, 357. 4 U. S. Express v. Bcdlmry, 34 111.459. 5 Hyatt v. Esmond 37 Barb. 601 514 Equitable Estoppel corporation thereafter to be formed, creates, ou the forma- tion of such corporation, and upon its receiving an assign- ment of such lease, with knowledge of the terms upon which it was executed and received from the lessor by the individ- ual lessee, a liability in equity, on the part of such corpora- tion, to pay the rent to the lessor ; and such liability cannot be avoided by a transfer of the lease by the corporation to a third person. Thus, after a lease had been made for the ben- efit of a partnership association, or such corporation as should be formed to succeed them, the lease being taken in the name of an individual upon an agreement to assign it upon request, the company were organized, took possession of the premises, and leased them for their own purposes. Held, that they had impliedly agreed to perform all the covenants of the lease, and to indemnify the nominal lessee against any liability on the same.^ Sec. 545. Where a bank makes a certificate that a party has funds, it has the means of accurate knowledge, and it is estopped from denying the truth of the statement where par- ties rely on its statement.'-^ Thus, where the teller or other proper officer of a banking corporation, representing it and doing its business at the counter, certifies the checks of its dealers and depositors drawn upon it, in the usual form, un- der a general power to certify, such banking corporation is responsible to holders of such checks in good faith and for value, notwithstanding private directions not to certify in the absence of funds without special permission.^ Sec. 546. It is sufficient evidence of the ratification by a bank of the unauthorized acts of its cashier, in assigning an account to other parties and taking their note in payment therefor, if it appears that the whole transaction is regularly and clearly entered on the books of the bank, subject to the inspection of committees of directors appointed to examine .such books, whose report that the books are correct has been adopted by the board ; and that such note is mentioned in the sworn reports made to the state bank comptroller, as a 1 Van Schaick v. Third Ave. R. R. Co., 38 N. Y. 346. 2 Irving Bank v. Weatherald, 36 N. Y. 335. 3F. & M. Bank, etc. v. B. & D. Bank, 28 N. Y. 425. Applied to Coui-okatiuns. 5 if) part of the assetb ol" the bank.' A ,sul)scqiiont mrilkali(.ii l.y the dh-ectors of a bank of the unaiithoriz(! Wyoming Ins. Co. v. Slicflcr, 42 IVnn. 1S8. 6 Citizens' Mutual Ins. Co. v. Sortwell, 8 Allen, 217. \ 516 Equitable Estoppel by holding out to the assured hopes of an equitable settle- ment, have themselves caused the delay, they cannot take ad- vantage of the stipulation in the policy that a suit shall be brought within twelve mouths after a loss and damage or the claim shall be barred. ^ Sec. 548. So where a policy requires notice to be given on all prior insurance, and that it be endorsed on the policy, and where the assured gave written notice of prior existing in- surance, which the company failed to endorse on the policy, it was held that the company was estopped from setting up such prior insurance as a defense to an action on the policy.'-^ The affidavit of loss made by insured estops him to deny in a subsequent suit on the policy any material facts therein stated.^ If a company see fit to renew a policy after it has full knowledge of the risk, any misrepresentation contained in the original application must be deemed waived; and the company are bound l)y the policy.* Where an insurance company, with knowledge of the facts, accepts from the assured a premium for a renewal and renews the insurance, it will be deemed to have declared the contract of insurance valid, and to have waived a forfeiture, if any has occurred by reason of the omission of the assured to give notice of other insurance and have it endorsed on the policy. Under such circumstances the company is precluded from asserting either that the renewal was inoperative, or that the policy became void, immediately after it was renewed, by reason of circumstances of which it was fully congnizant at the time of renewal, on the principle of estoppel in pens. It makes no difference that the policy provides that none of its conditions " can be waived execept in writing by the secretary." This provision may be rescinded or modified by a valid agreement even in parol, and the renewal of the [)olicy has this effect."^ Where the insurers of property have, by their acts and conduct, acknowledged the interest in the premises of one who has paid to them a premium for a re- 1 Grant v. Lexington Ins. Co. 5 Ind. 23. - Foote V. Nortlnvestern Ins. Co., N. Y. Sup. Court, 18G2, 3 Irving V. Excelsior Fire Ins. Co., 1 Bosw. 507. 4 Witliercll v. Maine Ins. Co., 49 Me. 200. 5 Carroll v. Charter Oak Ins. Co., 38 Barb. 402. AlPLIED to CoUPOltATIONS. .*, I 7 newal of the insumuce for another term, they v^uuA .l.nv lu.s interest iii a suit to recover the insunince money fur a 1,,.C oc- curring after such renewal.' An insurance coiuiiany w estopped from using the defects in a survey which has hecn prepared by the company or its duly authorized agent a.s a means of escaping from the payment of the loss.- Though there can be no estoppel under these circum.stanees, unle>s the insured acted iu' good faith and was mi.-led by the a-a-nt. ' An insurance company is estopped from taking advunta^e of the acts of its agents within the scope of thi-ir autiiorilv. Sec. 549. If a policy of insurance is issued by an in.sur- ance company, upon a personal inspection and .suivi-\- by its agent, without any written application on the part of the insured, or any fraud, misrej[)resentation, or any attenii)! to deceive the agent, or to prevent his acquiring a full know- ledge of the nature and extent of the risk, the company is estopped from taking advantage of any mistake or onii>siou of such agent in that respect.^ Where an insinance agent neglects to note on a policy other insurance whieh he takes, the company is estopped from setting up as a defeiLse the failure to have such additional insurance noted on tho policy.^ Sec. 550. Where the agent of an insurance company, who is notified in accordance with the conditions of tho policy, of the state of the property insured and its title, but fails to express it on the face of the policy and says it makes no difierence, that it is all right or words to that elfcct, and receives the premium, the act of the agent is such a waiver of the conditions named as amounts to an estojjpel //< jkh'.s.'' Sec. 551. One who accepts a policy of insurance, in which 1 N. E. F. & M. Ins. Co. v. Wetmore, 32 III. 221. ^ Plumb V. Mut. Ins. Co., 18 N. Y. 302; Ilowanl Ins. Co. v. UniniuT, ^Sl Penn. 60; Melville Iron Works v. Phcunix Fire lus. Co. 26 Conn. 406; Har- ris V. Columbia Ins. Co. 18 Ohio, 166. iJ Smith V. M. Ins. Co. 24 Penn. 226. 4 Beal V. Park F. Ins. Co. 17 AYis. 241. 5 llorvvitz V. Eq. Mut. Ins. Co. 40 Mo. 557. 6 Franklin v. Atlantic Ins. Co., 42 Mo., 456 ; Ilorwitz v. K note Ity surrendering his policy and taking it up ; nor can he reduce his liability on the note, by setting up that he w;l>< only in- terested in part of the property described.'' Where a polity in a mutual insurance company was l)y its teim.s to be »»m- pended if the assured should neglect for ten days to pay an assessment after it had been levied. Nearly lifteen months after the policy was suspended in conse- signed the policy to the purchaser, who at the same time executed a mortgage to the vendor and re-assigned the policy 1 Trumbull Co. Mut. Ins. Co. v. Ilorncr, 17 Ohio, 407. 2 Frost V. Saratoga Mut. Ins. Co., h Donin, \h\. 3 Tuttle V. Robinson, 33 N. H. 104. 4 Keenan v. Mo. State Mut. Ins. Co. 12 Iowa, 12G. & N. E. Mut. Fire Ins. Co. v. BcII^nap,. 'J Ciish. 110. 520 Equitable Estoppel to him with consent of the company. At the time of the sale and assignment of the policy the vendee was not in- formed of the defect in the policy by reason of the non-payment of the assessments. The directors of the company, not having spoken to him in regard to the defect, they waived it, and were estopped from setting it up, in an action for the insui-ance, to which the purchaser of the property had innocently trusted till the loss happened.^ In an action by the receiver of an insolvent insurance company, upon an insurance premium note, the maker is estopped from setting up as a defense that the policy and note are void by reason of his misstate- ments or omissions at the time of procuring the policy.'^ One who affects an insurance with an incorporated company by the terms of whose charter he becomes a member of the corporate body, and gives a premium note in consideration therefor, pa3'able to the company by its corporate name, is estopped from denying the corporate existence of the com- pany in an action against him on the note.'^ Sec. 553. Where a party sues and obtains judgment against a corporation, he is estopped from afterwards deny- ing its corporate capacity in an action upon the judgment.''^ Where a corporation makes an assignment and creditors claim under the assignment, they are estopped from assert- ing a claim upon the stockholders personally for the balance of their debts.*^ But in Massachusetts, proving a claim against a corporation in insolvency and receiving a dividend is not a bar to a suit for the balance of the debt.'^ A judg- ment is conclusive evidence of the indebtedness of a corpo- ration to the plaintiff, and its validity cannot be inquired into, but a defendant may show that it has been paid.'^ In Maine a judgment against a corporation is binding upon the stockholders until reversed, and is conclusive upon them in a subsequent suit by the same plaintiff". '^ And a stockholder 1 Hale V. Union M. Fire Ins. Co., 32 N. H. 295. 2 Huntley v. Perrv, 38 Barb. 569. 3 Caliill V. Kalamazoo Mut. Ins. Co., 2 Doug. (Mich.) 124. •1 Pochelow V. Kemper, 14 La. 308. 5 Van Hook v. Whitlock, 26 Wend. 43. G Coburn v. Boston Paper Mache Co., 10 Gray, 243. 7 Case v. Sandford, 14 Iowa, 235. « Milliken v. Wliiteliouse, 49 Maine, 527. Applied to Corporations. 521 ill a corporation is so far privy as to l)iiii<^ crrrtr to rcvcrso a judgment, but until reversed such judgment is valid against him. There can be do affidavit of defense made against the judgment, it is conclusive against him. In Massachusetts to render a stockholder lial)le he must be summoned, but where he allows judgment to go by default, he is estopped from denying the existence of the corpora- tion in a collateral action, or his lialnlity, to be arrested as a stockholder upon the execution against the corporation. ^ A judgment of record recovered on a contract of a corporation cannot be impeached, on the ground that the contract wius void for want of corporate power to enter into it.'^ Sec. 554. Where a corporation takes property for private purposes under a void and unconstitutional act, a party re- ceiving the amount of the damage assessed waives the ben- efit of the illegality, and the receipt of the money operates as an estoppel and has the same eflect as a conveyance, and vests the title in the corporation. Where parties having a right to appear and object, but do not, but take the money for his damage, he and his heirs are estopped from claiming title to the property so taken. The receipt of the money is an express consent to the taking of the property, and estops the party and those claiming under him from alleging an unconstitutional taking of private property for private pur- poses,^ and that the title to such premises did not vest in the corporation. A property holder cannot quietly permit money to be expended in work which benefits his land, under a contract ^vith the city, and then deny the power of the city to make the contract.^ Where several tax-payers peti- tion the common council to cause certain improvements to be made, as grading, macadamizing, or paving streets, and the improvements or work is completed in compliance there- with, without complaint or objection on their part, to the acts of the contractor or common council, in relation there- to, they are equitably estojjped to deny that the common 1 Richmond v. "Willis, 13 Gray, 18. 2 Bank of Wooster v. Stevens. 1 Ohio St. 233. 3 Sherman v. McKeon, 38 N. Y. 275. 4 irellenkamp v. City of Lafayette, 30 Ind. 102; Palmer v. Stumnh, 29 Ind. 329. 522 Equitable Estoppel council had no constitutional power to do it. It would be the perpetration of a gross fraud, after their willing and ac- tive assent; and when they impliedly consent that an assess- ment shall be made, to pay for such improvements, whether the assessment is illegal or not, they are estopped from ask- ing a court of equity to interpose an injunction to restrain the collection of the tax.^ And where an individual, whose land was appropriated for the purpose of a municipal cor- poration, was a member of the city council which author ized the improvement, one of those who petitioned them for the purpose, a member of the committee to whom the peti- tion was referred, participated in the proceedings which re- sulted in the opening, and stood silently by while the city was making large expenditures upon the work, he was held not to have either a legal or equitable right to set up his title against the city.- Where a town which, by its officers, expends upon a road the means provided by law to make and improve highways, in order to make them safe for traveling, proclaims to the world that such road is one of its public highways, it is thereby estopped from denying it to be so in an action for the recovery of damages for injuries sustained through the neglect of its officers to keep such highway in repair.^ Sec. 555. A corporation may become bound and estop- ped, otherwise than under a corporate seal, and their un- dertakings and admissions may be evidenced otherwise than by records, resolutions, by-laws, ordinances, or other writ- ten documents. Technical as well as equitable estoppels apply to corporations as well as to individuals. The ratifi- cation of a contract by a corporation, may be inferred from facts attending the transaction, and where persons assuming to act as agents of a corporation, but without legal authority, make a contract and the corporation receive the benefit of it, and use the property acquired under it, such acts will 1 Motz V. City of Detroit, 18 Mich. 496; Brown v. Bowen, 30 N. Y. 519; Young V. Bush. 8 Bosw. 1. 2 Mayor of Pittsburgh v. Scott, 1 Penn, St. 309. 3 Codner v. Town of Bradford, 3 Chand. (Wis.) 291. Applied to Corporations. 523 ratify the contract unci render the corp()ruti()n4+rtl)U.' thereon.' Corporations, in regard to their contracts, are u^jon the .santo basis as natural persons, open to the same implications, re- ceiving the benetit of the same presumptions.- Where a corporation is sued for an injury growing out of the negli- gence of the corporate authorities in their care of the stre'ets of the corporation, they cannot defend themselves on the ground that the formalities of the statute were not pursued in establishing the street originally. If the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as other streets, they cannot, when sued for an injury, defend -themselves by alleging want of authority in establishing the street.^ Sec. 556. A city is bound and estopped by acts of its officers within knowledge of its common council without objec- tion.^ Thus where goods are legally purchased by the town agent, assuming the right to pledge the town's credit for the price, and the town afterwards receives them with a know- ledge of the way in which they were purchased, the town is estopped from denying their liability." But Avhere a con- tract under which work is done for a municipal corporation, is void ; because entered into in violation of its charter, the contractor cannot recover for it in any form neither under the contract nor upon a quantum meruit, and a subsequent ratification of the contract before or after the work is done by the common council does not make it binding upon the corporation f nor is the corporation estopped from setting up a want of authority to make the contract.^ Sec. 557. When a county or other municipal corporation is authorized by statute to borrow money and issue l)ondsforthe 1 Bank of Columbia v. Patterson, 7 Cranch, 299; Gooding v . C. 8c S. R. W. Co. 17 Beav. 132. 2 Bank of U. S. v. Dandridge, 12 Wheat, 70; Amherst Bank v. Root. 2 Met. 633; Western R. R. v. Babcock, 6 Met. 356; Burgess v. Pire. 2 Gill, 11; King V. Amory, 1 Tenn. 575. 3 Mayor, &c. v. Sheffield, 4 Wallace, 489. 4Hasbrouck v. City of Mil. 21 Wis. 217. 5 42 N. n. 125. 6 Brady v. Mayor of N. Y. 20 N. T. 312. ' City Council v. New Platik R. Co., 31 Ala. 75, 70. 524 Equitable Estoppel payment of money thereof, and bonds are made and delivered, reciting the facts which show them to have been regularly issued, the county is estopped to deny their regularity, or to assert that they were not njade in conformity to the stat- ute.^ If municipal bonds are valid by the constitution and laws of the state, as expounded by the highest judicial authority, whose duty it was to interpret them, they cannot be made invalid by a subsequent judicial interpretation of an opposite kind.- Sec. 558. Such bonds being payable to bearer and bear- ing interest coupons, although not in the form of promis- sory notes or bills of exchange, are to be regarded as com- mercial securities, and the holder of them has a full title against one who has taken them in good faith, the county cannot set up the equities which might have been available against the original payee. The power to issue the bonds being shown, the corporation as against bona fide holders for value, is estopped to deny that the power was properly executed."^ Sec. 559. The fulfilment of the conditions or restrictions under which a body corporate is empowered to act, will be presumed until it is disproved, and that when they are alleged to have been fulfiled on the face of the instrument on which the suit is brought, the contrary cannot be shown as against a purchaser who has bought in good faith, and without notice of the irregularity. When a corporation has power under any circumstances to issue negotiable securities, a bona fide holder has a right to presume that they were issued under circumstances which gave the requisite authority, and they are no more liable to ha impeached for any irregularity in the hands of such a holder than any other commercial paper. ^ Sec. 560. Where authority is given to a city to take stock in a raitroad, provided that none should be taken "unless on 1 Moran v. Commissioners of Miami Co. 2 Black. 722. 2 Mitchell V. Burlington, 4 Wall, 270. 3 Rogers v. Burlington, 3 Wallace, 654 ; Cincinnati City v. Morgan, Id., 275 ; Moran v. Co. Corns., 2 Black, 722. 4 Gelpeke v. City of Dubuque^ 1 Wallace, 203. Applied to Corporations. 525 the petition of two-thirds of the citizens", thfts^in-oviso will be presumed to have been complied with, where the bonds «how, on their face, that they were issued in virtue ol' :iii ordinance of council of the city making the subscription, the bonds being in the hands of bona fide holders for value' Thus where the common council of a city were authorized by a statute to issue bonds of the city in aid of a railroad, on the petition of three-fourths of the legal voters, the com- mon council decided that such proportion had petitioned and issued the bonds to the plaintitts. Duly ccrtihed copies of their proceedings were exhibited to the plaintiffs at the time they received the bonds ; and upon the bonds themselves it was recited that three-fourths of the legal voters had petitioned for the subscription. Held that the bondholders and their assigns had the right to rely upon such recitals as importing alisolute verity, and the city was estopped to deny that three-fourths of the legal voters had petitioned.^ Where the municipality has repeatedly recognized the validity of the bonds issued by them, by paying them out, levying taxes and paying interest on them for a series of years, it is estopped from claiming that the issue is illegal." And the same principle applies in the case of coupon bonds in the hands of bona fide holders; the city is estopped in an action upon the coupon to deny the regu- larity of their issue.^ So, on a petition for a peremptory mandamus, to compel the trustees of a township to pay the overdue mterest on certain bonds, issued by said trustees to a railroad company, incorporated by an Ohio statute, and endorsed by the petition. Held that the defendants were estopped to aver, as to third persons holding such securi- ties in good faith, without notice, that the act of incorpora- tion of said railroad company was abrogated by the new constitution of the state, and if not superseded, that the pro- ceedings preliminary to the issuing of the bonds were not 1 VanHostrup v. Madison City, 1 Wall, 291. 2 Bissell V. City of Jcffca-sonville, 24 Ilovvanl, 287. 3 Keithsburg v. Frick, 34 111., 40-5. 4 Clark V. City of Zansevillo, 10 Wis. 13G; Supervisors of Mercer Co. v. Hub- bard, 45 111. 139. 526 Equitable Estoppel complied with, as to notice of electious, &c.^ . The bonds of a municipal corporation, issued in aid of a railroad, were publicly sold, with a knowledge of all the inhabitants of the city. Many of them had been deposited with the State Treasurer by banks as security for their circulation, one of which, located in the city, had for several years published in a newspaper there a quarterly statement, embracing such fact. The city had paid the semi-annual interest on the bonds, down to a certain date, and the payments had been reported at the annual city meetings. Held under these circumstances that the corporation was equitably estopped from denying the validity of the bonds, against parties who held them in good faith, and that individual citizens and tax-payers who had acquiesced in the conduct of the city, and taken no measures to prevent the sale of the bonds, or the payment of interest, were equally estopped from denying their validity, so far as their individual rights were con- cerned.'^ Sec. 561. A provision in a city charter restraining them from borrowing money for any public purpose, does not es- top it from issuing bonds in payment for property pur- chased.-^ The seal of a municipal corporation attached to a contract, does not estop the corporation from inquiring into the power of its officers to make it.^ But a municipal cor- poration is not estopped from maintaining an action upon a treasurer's bond, by accepting a report of an auditing com- mittee who had approved his accounts by making a report founded thereon to the legislature.^ Where a bond reciting that a party has been appointed for a particular office, and that he should pay over all moneys collected, «fec., the sure- ties are estopped from denying such a fact in an action on the bond, and their liability is co-extensive with the princi- pals.^ 1 State V. Trustees of Union Township, 8 Ohio, St. 394. 2 Society for Savings v. City of New Loudon, 29 Conn. 174; President, &c., V. Frick, 34 111. 405; Mayor v. City of Chicago, 38 III. 266. 3 People V. Breunan, 39 Barb. 522. 4 City of Leavenworth v. Rankin, 2 Kansas, 357. 5 Lexington & Cambridge R. R. Co. v. Elwell, 8 Allen, 371. 6 Mayor of Iloboketi v. Harrison, 30 N. J. Law, 73. Applied to Corporations. 527 Sec. 562. Where a city, ])y its ordiniince8,-*ia3 releu.sed all its rights in certain premises to the owner, and the owner's grantees occnpy and improve the same on the faith of such ordinances, the city is estopped to chiim the land.' Where money is raised by a town in pursuance of a statute, for the purpose of paying the interest due on bonds issued by such town, and the money is placed in the hands of the supervisor, who is required by statute to pay it over to the proper bondholders, such sui^ervisor will be liable to an ac- tion by a bondholder for his share, and will also be estopped from alleging that the bonds are not legal. - Sec. 563. Where a corporation have the power to do an act they may be estopped from objecting that the form they adopted was not the exact mode prescribed in the charter ; but where the question is one of power, they cannot be deem- ed estopped to deny that they have done what they never could by legal possibility have done.^ But if the agents of a railroad company represents the company to the public as common carriers to a place beyond the limits of their own road, in snch a manner and for such a time that the corpo- rators may be presumed to know and assent to it, the com- pany will be estopped to deny it, although no actual ar- rangements with connecting lines exist, although the com- pany may have had no special authority by their charter to make such contracts, and could perhaps by proper proceed- ings, have been restrained from so doing. They cannot plead such want of authority agamst persons contracting with their agents, emjiowered so to contract by express act of the company or their directors, or by implication arising from a mutual arrangement amongst all the carriers between the place where the goods are received and the place where they are delivered, and although the agent making such a contract had no authority from the company to do so, yet if for several years before and after the transaction sued upon, he made similar contracts to deliver goods at various places beyond the line of the company's road, their assent 1 Grant v. Davenport, 18 Iowa, 179. 2 Ross V. Curtis, 31 N. Y. 606. 3 Hood V. N. Y. & N. II. R. R. Co., 22 Conn. 502. 528 Equitable Estoppel may be presumed, and they will be estopped from denying their authority.^ Sec. 564. A railroad company, having procured an as- sessment of the value of lands to be taken and appropriated to the use of their road, by persons mutually chosen by them and the ostensible owner, are estopped from denying his title on the ground that his sale to them was fraudulent and void as to creditors, without showing that they were creditors, that the title had failed, and that they had been evicted by some of the creditors, or that they had acquired a paramount title. 2 After land is condemned for the use of a railway company, the adjudication can no more be impeached by any collateral proceedings, or by evidence, than the judg- ment of any other court of competent jurisdiction.^ After a raih-oad has lawfully taken lands under their charter, and the damages have been duly assessed by their commissioners, and, upon appeal, the assessment has been confirmed and the amount received by the owner, he is estopped from setting up any claim against the company's possession, while the lands are used for any of the purposes authorized by their charter.* So where a party acquiesces for a short period of time, whereby the company may infer that he intends waiv- ino- present payment, concludes the owner from afterwards stopping the company in the progress of their work or the running of the road.'' Where the legal title of streets in cities is vested in the municipal corporation, and a corpora- tion has been authorized by competent legal authorities to construct railroads in or upon the streets of such cities, courts cannot interfere to prevent their construction.'^ Sec. 5(35. Where one gives a railroad verbal permission to use his land, he is estopped from bringing a suit for damages for such use as long as the permission is unrevoked.' 1 Perkins v. Portland R. R. Co., 47 Maine; Penn. &c. Steam Nav. Co. Dandridge, 8 Gill, 5, 248. 2 La Cross & M. R. R. v. Seeser, 4 Wis. 268. 3 Hamilton v. Ann. & E. R. R. R. 1 Md. Ch. 107. 4 Dodge V. Burnes, 6 Wis. 514. 5 McAulay v. Western, &c., R. R. 33 Vt. 311. 6 Milburn v. Cedar R. R. 12 Iowa, 246. 7 Miller v. Auburn R. R. 6 Hill, 6. Applied to Corporations. 529 A subscriber for stock in a corporation with an"^r!\conditional charter, will not be permitted, in a suit against him by the corporation for the recovery of instahnents on his stock sub- scription, to inquire into and contest the validity of its char- ter. ^ Sec. 566. Fraudident misrepresentations relative to the past earnings of a railroad, the pecuniary condition of the railroad company, and the value of its stock, made by the officers or agents of such company while acting for it, in obtaining subscriptions to its stock, must be deemed to ))e made by them in the execution of their agency, and the company will be held liable therefor.-^ A sale of property belonging to a railroad company made by the president without authority will be deemed ratified, if the fact that such sale had been made was communicated to the board of directors, and openly talked of at one of their meetings, and they did nothing to disaffirm it.'' A person who has given a note and mortgage to a railroad company in payment for its stock, is estopped from setting up in a suit thereon, that such transaction is a fraud upon cash paying subscribers. He cannot set up his own fraud to defeat his own contract, when the party defrauded choose to accpiiesce in it.' Sec. 567. A railroad company, against which a Judgmtnt for laud damages has been rendered, was sold under a mort- gage, and a new company organized. It was held that the new company entering upon the judgment creditor's land, and running trains was estopped to deny his claim and was liable on the judgment.-"' A carrier who contracts with a corporation to carry goods, for it cannot defend an action for damages resulting fi-om his negligence in transporting such goods, on the ground that the corporation cannot law- fully acquire title in them.*^ Sec. 568. A foreign corporation is estopped from availing themselves of the statute of limitations as a defense to an 1 Woods V. C. C. R. R. 32 Geo. 273. 2 "Waldo V. Chi., St. Paul & Fon Du Lac R. R., 14 Wis., 575. 3 Walworth Co. Bank v. F. Loan & T., 16 Wis., 629. i Clark V. Farrington, 11 Wis.. 306. 5 Pheiffcr v. Sheboygan R. R. 18 Wis., 135. 6 F. & M. Bank v. Detroit &c M. R. R., 17 Wis., 372. 34 530 Equitable Estoppel action in the courts of the states.^ When a foreign corpo- ration, by its officers comes within the limits of any state, it becomes suliject to the hiws of that state, and to the process of the courts ; and where such a corporation by its officers is guilty of a wrong or commits a trespass within such state, the corporation is estopped from setting up its existance under a foreign government as a means by which to escape the consequences of its illegal acts.'^ Sec. 569. The question of forfeiture of a charter cannot be considered in a collateral proceeding. Even when the terms of a charter are that the corporation shall be dis- solved on the non-performance of a condition, the mere fail- ure to perform, it is not ipso facto a dissolution, Imt a judg- ment of ouster is necessary. In the absence of a statute en- abling a private party to take advantage of a forfeiture of a charter, only the state can do it. It is for the state to de- cide whether the forfeiture shall be enforced or not. An in- dividual cannot assert it until it has been enforced through a proceeding on behalf of the state for that purpose. A private party is estopped from taking advantage of a forfeit- ure, resulting from irregularities from the charter in the or- ganization of the company, and courts are bound to regard it as a corporation so far as third persons are concerned un- til it is dissolved by judicial proceedings. The question whether it has or has not, cannot be raised or examined col- laterally, or in another than a direct proceeding to obtain a decree of forfeiture. And a defendant in an action brought by a corporation is not allowed to set up in his defence the charge of irregularities, neglect, abuse, &c., which warrant a forfeiture of the charter or corporate powers. And until a forfeiture has been judicially declared a corporation cannot be estopped from prosecuting its rights of action against its members. ■ This rule applies in cases where actions are brought to recover subscriptions or assessments on the cai> ital stock, in actions brought to recover debts due from in- dividuals, and to foreclose mortgages given to building asso- 1 Tioga R. R. Co., 3 Keyes, 354. 2 People V. Central R. R. Co. N. T., 48 Barb. 478. AlTHED TO CUKI'UKATIONS. .031 ciations. And no stockholder can avail himself of such an objection on a suit brought against him l)y a corporation, nor can it be impeached for fraud. Sec. 570. A corporation cannot be organized nor act without the limits of the jurisdiction creating it. All votes and proceedings of persons professing to act in the capacity of corporators, when assembled beyond the bounds of the state granting the charter, are void, but a su])scriber to stock of a corporation thus illegally organized, who has given his note for the amount subscribed, is, by his acts, es- topped from denying the legal existence of the corporation, when sued by a bona fide endorsee for value before matu- rity.^ And where a party holding stock transfers it, thus recognizing its validity, it estops him, on a suit for the original subscription, from setting up that it is invalid by reason of the non-payment of the sums necessary to give it validity, at the time of making the subscription.'^ A sub- scriber to stock in a corporation, Avho attends a meeting of the stockholders and votes on the business of the company, is estopped from denying the validity of his subscription.'^ So if he has paid instalments of assessments, he cannot deny its legal existence, in an action against him for the balance of his assessment, or in a collateral way question the regu- larity of its organization. In the absence of fraud, any one subscribing to stock in a corporation, is estopped to deny its existence.* If a party admits that he is a su])scribcr to stock in a corporation, and on the faith of such admission others have acted for his benefit, he will be estopped from denying that he did in fact subscribe.^ A subscriber to stock in a corporation, v.^ho accepted the charter, has taken part in the business of the company, attended its meetings, and acted in the position of director, is estopiicd from set- ino- up fraud in the procuring of the subscriptions of stock, 1 Camp V. Byrne. 41 Mo. 525; E. P. Hotel Co. v. West, 13 La. 345. 2 Eveihart v. w! h P. R. R. Co. 28 Pcnn. St. 339. 3 E. &. W. P. R. R. Co. V. Brown, 25 Pcnn. St. 136; Lexington, &c. R. R. Co. V. Chandler, 13 Met. 311. 4 Sups V. Greensburgh Plank Road Co. 10 Ind. 4G; Fort Wayne T. Co. v. Deams, id. 563. 5 Graff V. P. &. S. R. R. 31 Penn. 489. 532 Equitable Estoppel when garuisheed as a subscriber in an action against the cor- poration.^ Sec. 571. A subscriber to stock in a corporation admits the legal existence of it, and cannot question their capacity to appear on the record.^ A stockholder who has acted as director, or a party who has contracted a debt to a corpora- tion, is estopped from setting up as a defense an irregularity which might show that the coiporation never existed, or that it had incurred a forfeiture. So one who has openly avowed himself a stockholder, is a registered member, and as such has taken part in its management, cannot be allowed as against third persons to prove that the corporation was never lawfully created. But this rule that a party contract- ing with a corporation as such is estopped from denying its corporate existence at the time of the contract does not apply to a suit brought on a subscription made with a view to the organization of a corporation. In an action by a corporation to recover a sum of money loaned to the defend- ant, the latter having had the benefit of the contract of loan, cannot be permitted to avail himself of the defence that the corporation plaintifi" had no autJtority^ express or implied, by the terms of its charter, to make the loan.'^ When it is a simple question of capacity to contract, arising either on a question of regularity of organization, or of powers conferred by the charter, a party who has had the benefit of the con- tract is estopped from questioning its validity. So one who contracts with a corporation acting under an amended char- ter cannot complain that the amendment has not been prop- erly accepted by the corporation.* Where one contracts with what purports to be a corporation, he is estopped from denying its existence at the date of the contract,^ and if he relies upon a subsequent dissolution he must allege and prove how it ceased to exist. ^ Contracting with a corpora- 1 Smith V. Heidenecker, 39 Mo. 157. 2 Dutchess Cotton Mfg. v. Davis, 14 John, 238; O. &S. Plank R. Co.v. Rust, snow Pr.390. 3 Williams v. F. T. A. Ass. 26 Ind. 310. een executed but for the promise.^ Where the promise can be proved, the course of decisions would be eminently just, because it would appear that the writing did not contain the whole contract, and that the meaning of the parties must be sought elsewhere.'- It is difficult to reconcile these deci- sions with the well established principles of equity and jus- tice, that where the contract is reduced to writing, the writing is not only the best, but the only evidence of the contract, which was intended to give stability to the trans- actions of life, by enabling men to put their acts and agree- ments in a form that should be beyond the reach of the un- certainty incident to oral testimony, and would be of com- paratively little value if witnesses could be called to prove that stipulations omitted, with the knowledge and assent of both parties, were, notwithstanding, meant to be as bind- ing as if they had been set forth in terms."^ Sec. 616. The weight of authority is decidedly in favor of holding, that a man who is so ill advised as to execute a written contract, in reliance on a promise that it shall not be literally enforced, must submit to the loss if he is deceived, and that he cannot ask that a principle of great moment to a community, shall be made to yield for the sake of reliev- ing him from the consequences of his own indiscretion.^ But this does not apply to those cases when the writing acci- dentally fails to express the agreement, and where it is executed in ignorance of the mistake. For where the vari- ance is not known, neither party can be charged without wilfully exposing himself to the consequences. Under these circumstances parol evidence is admissible in equity to prove 1 Chalfant v. Williams, 35 Penn. 212; Taylor v. Gilmore, 25 Vt. 411; Kis- selbrack v. Livingston, 4 Johns. Ch. 144; Renshaw v. Gaus, 7 Penn. 119. 2 Thur.ston v. Liidwig, 6 Oiiio State, 1. 3 Fulton V. Hood, 34 Penn. 305; Wheelton v. Hardisty, 8 Ellis & B. 232. * Wilson V. Watts, 9 Md., 355; Allen v. Spurr, 8 Allen, 412; Howard v. Thomas, 12 Ohio S., 201. 564 Estoppels, the mistake, and to show in what particulars the contract actually entered into, differs from that reduced to writing.^ Sec. 617. Courts of equity exercise this branch of jurisdic- tion with much caution, and refuse relief unless the grounds on which it is sought are clear and unequivocal.'- The question arose in an insurance case,^ where it was said that the plaintiff could not show that he had effected the insurance on the faith of a promise by the agent of the insurers, that the policy should not be vitiated by the inaccuracy of the survey, because this would be in direct opposition to the warranty contained in the policy; but he was permitted to show that the agent of the insurance com- pany prepared the survey, and was thus excluded from the warranty, the presumption of which was, that the warranty referred to the act of the insured, not the insurers. But when the peculiar nature of the case, or from the circum- stances, it can be shown in accordance with the established rules of evidence, that the contract cannot be enforced, as it stands, without a breach of taith, relief may be granted in equity, or under the principles of equitable estoppel at law."^ Sec. 618. The estoppel in pais, as applied to mercantile transactions, ma}^ be taken advantage of by a plea contain- ing the necessary averments, and concluding with a prayer, whether the defendant shall be admitted to say that the bill which he has accepted, was not made by the party whose name is affixed as drawer.^ Estoppels in pais are not plead- ed, but are in general, given in evidence, and will, jpi'ima facie, operate as effectually to estop the party under the direction of the court.^ Sec. 619. Equitable estoppels growing out of acts m ^a/s, 1 McCann v. Letcher, 8 B. Mon., 320; Willian v. Willian, 16 Vesey, 72; Bellas V. Stone, 14 N. H., 175 ; Brown v. Brown, 8 Leigh., 1 ; Worden v. Haviland, 18 Conn., 101 ; Langdon v. Keith, 9 Vt.. 299 ; Lancker v. Rex, 20 Penn., 464 : Larkins v. Biddle, 21 Ala , 557 ; Jack v. Fulton, 3 Gratt., 193 ; Ross v. Wilson, 7 S. & M., 783. 2 Hall V. Claggett, 2 Md. Ch., 153 ; Philpot v. Elliott, 4 Md. Ch., 273. 3 Plumb V. Cattaraugus M. Ins. Co. 18 N. Y. 385; Cliaffee v. Same, lb. 376. 4 Wood V. Dwarris. 11 Exch. 493. 6 Sanderson v. Coleman, 8 M. & W. 209. 6 Welland Canal v. Hathaway, 8 Wend. 480; Reed v. Pratt, 2 Ilill, 04; Peo- ple V. Bristol and Rensselaer Turnpike Co , 23 Wend. 222. How MADE Available. 505 coustitute an exception to the general rnle, andtlte equally conclusive whether pleaded or given in evidence. This isi)e- culiarly true, if estoppels in pais, which generally arise out of a great variety of circumstances that cannot well ])e set forth with the precision and brevity required for good i)kad- ing. Sec. 620. In Alabama it is held that the bar of an equit- able estoppel falls when land is in question, within the juris- diction of chancery, and cannot be set up by a mere legal tri- bunal.^ But in many other states the estoppel arising from fraud and misrepresention of the title to laud, is a good de- fence at law.^ Nor need they in certain cases be pleaded in order to make them obligatory. Where one party read a deed in evidence, signed by certain persons as executors, it was held to operate as an admission that they were such ex- ecutors in lieu of proof to that effect by the other party.'^ A court of equity will enjoin a party from setting up an uncon- scientious defence at law, or from interposing impediments to the just rights of the other party.* Sec. 621. A party who sets up an estoppel in pais as a bar to receiving evidence contrary to the representation made to him by another, must show that there was a wilful intent to make him act on the faith of the representation, and that he did so act.^. Estoppels, whether claimed as of record or in pais, must, to be such, be within the principle which gives them force before they will be effectual." 1 Walker v. Murphy, 34 Ala. 691; Smith v. Mundy, 18 Ala. 182. 2 Nixon V. Carco, 28 Miss. 414; Thompson v. Sanborn, 11 N. II. 201 ; Brown V.Wheeler, 11 Conn. 345; Reed v. Bensley, B Mon. 254; Uamilton v. Hamilton, 4 Penn. St. 193 ; Shepley v. Rangley, 2 N. & M. 213. 3 "W^alton V. Newsom, 1 Humph. 140. 4 2 Story Eq. § 903 ; McPherson v. Walters. 16 Ala. 714; Walker's Heirs v. Murphy, 34 Ala. 591 ; Smith v. Mundy, 18 Ala. 182; Stone v. Britton, i.'2 Ala. 543. 6 Andrews v. Lyon, 11 Allen, 349. 6 McKennahan v. Crawford, 59 Penn. St. 390. INDEX. A. Page. A deed of grant with or without an indenture works no estoppel 307 A future or contingent interest may be bound by estoppel of a lease. . . 316 A grant of all the parties right, title, claim and demand to an estate with covenant of warranty against all persons claiming under him, does not estop the grantor from setting up title against his own grantee 301 A grantor conveying by quit-claim or release not responsible for the goodness of his title 305 conveying covenants of warranty cannot bring ejectment upon after acquired title 295, 296 covenanting to give title which he expects to purchase cannot plead his own fraud in bar of a decree for satisfactory perform- ance 248 A joint and several obligor when he may allege that he is surety 276 A lease for years that cannot take effect when it may be estopped 326 to enure by way of estoppel to both lessor and lessee 319 A man taking a lease of his own land is estopped from denying the les- sor's title 320 A mere general recital cannot control the plain words of a granted part of a deed 275 A party bidding at a wrongful sale of his own goods is estopped from tbe title of the purcliaser 342 cannot controvert the title of one under whom he claims 309 making a lease of land to which he has no title and subsequently acquires on, his lease operates by way of estoppel 315, 316 may bind himself and leave others free 241 representing a woman to be his wife to a party supplying her with goods will not be permitted to deny it 343 recognizing the title of another is estopped from questioning it.. 310 A solemn admission in a deed estops the party from disputing the deed and every fact recited in it 260 A tenant agreeing to pay rent is estopped by his agreement from claim- ing to be released while his agreement is unchanged 323 A title acknowledged in a deed cannot be controverted 294 A third person who appears and takes part in an action may be bound. 46, 48 64, 55, 57, 58 A ^vilful representation when it gives rise to an equitable estoppel 340 A wnd'or having no title when executing his title, but acquires one after- ward, such title enures to the benefit of his grantee by estoppel 278 568 INDEX. A verdict for the defendant when an action for the recovery of— conclu- sive in another action as to the validity of the deed conveying it 69,70 Abandonment, when terminates an estoppel 381 Absolute conclusiveness of the judgment of the forum rei sitae 199 verity supported by judgment 23 Acceptance of a lease without possession where it creates an estoppel. . 373 of possession creates an estoppel in pais 362 of a bill by one of the members of a firm precludes the defence of irregularities *77 of a conveyance when no estoppel, • 387 of a dedication by the public when irrevocable, 496 of a deed and taking possession under it, how it operates, 384 of a deed does not prevent evidence that nothing passed by grant, 241 of dower estops the widow from disputing her husband's title,.. . 332 of a grant estops the grantee from denying the grantor's seasen against the widow in an action of dower, 331 of property for public use when it becomes conclusive of dedica- tion, ■ 498 Accepting a benefit under an award estops the denial of its validity, 174 a deed signed by one party esstops the grantee, 242 a lease by a party who cannot get possession and assignment of the lease to the parties in possession estops him from denying that he had possession 317 a lease from a stranger, its effect, 314 damages awarded for laying out highway when an estoppel, 498 Acceptor, when estopped from disputing drawer's handwriting 451 Acknowledged certificate of no estoppel in Massachusetts, 245 Acknowledgment of tenantsy when it estops pleading an adverse possession, 3'6 Acquiescence by ancestor, when it binds heirs in a boundary line when it may become conclusive 489, 491, 493 in an illegal act of the officers of a corporation when an estoppel on stockholders, 540 in a submission by both parties, effect of 172 in the sale of property to an innocent purchaser when it becomes an estoppel, 419 when it creates an estoppel in favor to railroad company, 528 of parties, how it estops them from claiming title against grantee, 400 when it creates estoppels applicable to mortgages,. 400, 401, 402, 403 Acquittal, decree of is as conclusive as one of condemation, 197 Acquittance, deed of may be an estoppel in one case and not another,.. 307 upon a sufficient indictment when a good plea in bar, 171 Action of ejectment against tenant when latter assumes the defence in estoppel "3 against one joint maker of a note bars another action, 51 against of, merged in the judgment of 189 against contractors bars another action, 41 against two joint debtors when it is conclusive upon other action between them, ^^ entire of cannot be defended 74 INDEX. 5(19 Action for interest due judgment is conclusive for the am crjtrrt claimed, 07 for mesne profits the record in the ejectment suit is conclusive,.. f»2 for rent, what it depends on, 37I for trover or trespass will not lie for seizure of property by gov- ernment. 113 in ejectment to settle rights of parties and title is conclusive on . all CI indefensible and judgment in, is conclusive 72 judgment in against one partner bars another action for same cause against copartners, 91 original cause of merged in judgment, 30 original cause of same in two suits one is a bar. 44 when defensible when judgment may not conchide, 72 Actions from the nature of them and the cause of action cannot be the same in both no plea of estoppel admissible, 105 of judgments and want of jursidiction may always be set up, 213 Acts and representations which must have influenced others to do acts which they would not otherwise have done creates an estoppel 337 in pais amounting to dedication, when regarded as an estoppel .. 496 of a mother as guardian, which estops her from claimiug dower . 332 333 of courts when void 45 of officers, when conclusive of corporation 629 of princii)al when conclusive on the surety 443 misleading parties when they become estoppels 418,419 or admissions whether estoppels or not depends upon the circum- stances of the case 338 or representations made afterwards do not create an estoppel . . . 347 Adjudication on legal ground when not conclusive in equity 162 Administration, grant of its efl^ect 132 Administrators and guardians' rights and powers are local and do not extend beyond the state under whose authority they are ap- pointed 216 and heirs when estopped by deeds 296 how effected by equitable estoppel 483, 484, 485 Administrator, judgment against, conclusive as to personal estate 62 removal of conclusive 9, 37 estopped when his grantee is 247 Admissibility of a judgment to prove its own existence 166 Admission in a record may be used by a stranger 108 and agreement of counsel, when estoppels 353 by a tenant in acceptance of a lease 370 by demurrer 212 by one party of the allegations of the other creates an estoppel . 190 effect of a mistaken line for a true boundary 492 in deeds when made for the purpose of influencing the conduct of another, becomes conclusive 267 in instruments to corporations, what conclusive of 539 judicial, what are within the meaning of an estoppel 464 in a record may be sued by stranger 108 is an estoppel when 9, 37 570 INDEX. Page Admission by the grantor that he has no title at the time liberates him from the estoppel 241 as estoppels, why held conclusive 3?6 made in a trial of an action, conclusive of what 555 of attorneys, when conclusive of their clients 354 of title, what it implies 375, 377 of one or several administrators when binding on the whole . . . 484 of a covenantor or obligor when they are precluded from contro- verting ^ 441 or declaration made to one man when conclusive in favor of another 344 or acts, what necessary to be shown in order to create an equita- ble estoppel 414 or assertions of a conclusion of law is estopped 245 of a conclusion of law no estoppel 8 requisites necessary to give them the dignity of an estoppel 414, 415 rule in regard to their effect as estoppels 415 that are estoppels 334, 338 under seal, upon whom conclusive 271 when treated as a substitute for ordinary and legal proof of facts 335 which estops parties from taking advantage of defense against notes, &c 446 which have been acted upon or made, or influenced the conduct of other 334 Adoption of estoppels from motives of public policy 9 Advantage of the doctrine of res adjudicata 29 of an estoppel of a judgment, how obtained 553 of a record, cannot be taken by stranger 49 Advantages in giving certainty and conclusiveness to judicial determi- tions 155 Adverse claimant, when concluded by same estoppel applying to a tenant 376 possession as equitable estoppels 600 possession cannot be set up by a vendee to deny vendor's title . . 503 possession, conclusive effect of 143, 144 possession, conclusive presumption of 501 possession, how award to be effectual 503 possession, how regarded in England 362 posssession, lease original, why the party occupies under a lease from the owner 316 possession, reasons why joint claimants are estopped from setting it up 505 possession, strangers, when they may set it up, and not parties and privies .' 505 possession, when tenant estopped from denying 500 title to the lessors cannot be set up by tenant 367 Affirming a void contract, when it becomes an estoppel 458 After acquired interest, whether it will pass by an estoppel or not de- pends upon the language of the deed 280 title enures to the benefit of the grantee 277 title when enures to the mortgagee 288 Agents, conclusive effect of affirming their acts 462 INDEX. 571 _-*.-- Tngo. Agreeing to bo bound by result of judicial proceeding creates, &c 61 Agreement, executing a lease, cannot claim any title iiiconsistunt with it 324 of parties, that a verdict shall be final, operates as an estoppel when ] fjO to be bound by doubtful allegation is 14 to purchase, when it estops a denial of the vendor's title 301 when a mutual accord and satisfaction is an estoppel 350 void fur infancy or coverture created in estoppel 477 All parties' to a deed bound by the recitals therein 251 the facts recited in a deed arc witliin the estoppel 206 Allegations and averments,when not conclusive 190 by way of supposal 18 at issue are included in an estoppel 105 judgments on one or several allegations may be no bar in another action 68 made and denied for the parties covered by judgment 85 of good and sufficient title has the same force as a warranty 280 if record, uncertain 18 is consistent with record, conclusion 18 on record at issue are barred by a judgment 106 Allegans conteauci. its application to estoppel 18 American courts, doctrine of in regard to foreign judgments 204, 205 rule in regard considering expressed in its 266 An adjudication upon the title of land by a foreign tribunal, why con- clusive 206 An appeal from a sentence, of a prize or admiralty court, prevents its having the force and effect of res adjudicata 201 estate in interest, how created 318 estoppel arises when the intent is to influence another to the ad- vantage of the party making the representation 353 estoppel by indenture does not bar the lessee beyond the dura- tion of the interest by him under it 322 estoppel cannot operate after the estate of the lessor is deter- mined 316 An estoppel created by a community of title — how far it extends 864 when a mixed question of law 363 will not bind an heir unless it would his ancestors 321 working on the interest of lands pass with the land 298 Ancestor, acc^uiescence by estops her and her heirs 350 Answers to questions put inadvertantly create esti -^^ between equitable and the common law doctrme of estoppels .... 335 between equitable and legal estoppels in actions for the recovery of land ^'^ between courts conclusive and limited jurisdiction 153 between feofment and warranty ^°-' between general and particular recitals • -' " between judgments as used in civil and criminal cases l';6, 107 between judgments in rem- and in persomam ."■■.■■.■■ between judgments of courts of concurrent and conclusive juris- diction between participation and silence or acquiescence in regard to their effect as estoppels ' between proceeding strictly in rem. and in attachment and gar- nishment ■ between standing by without endeavoring to estop a sale or assisting in a sale • • between the application of estoppels to landlord and tenant and ^^^^ vendor and vendee 582 INDEX. Distinction between the conclusive effect of judgments and decrees of courts of exclusive and limited jurisdiction 141, 144 between the conclusive effect of foreign judgments in rem- and in perso77am 202 between the effect of a judgment in a state when rendered and in that of a sister state 221, 222, 223 between application of equitable estoppels in courts of law and courts of equity 438 Divorce, judgments in actions for, if conclusive in the state when ren- dered conclusive in every other 223, 224 Doctrine guarded with great strictness 11 if not legal and equitable 11 if not unjust ' 10 of American courts in regard to foreign judgments 204, 205 of merger, necessity of. 190 Doubtfully alleging a fact may estop 14 Dower, foundation of the application of estoppels to bar right of 330 widow, how barred from claiming 330, 331 Duchess of Kingston, case 35, 183 E. Early history of the law, its harsh enforcement 13 rule of feudal policy 365 Easement, what an easement is 494 Effect given to a grant or conveyance by bargain and sale in this country 279 given to foreign judgments in rem 194 of accepting a deed and taking possession under it 384 of accepting a lease from a stranger 314 of attempting to present matters in different and inconsistent aspects as equitable estoppels 465, 466 of a covenant of quiet enjoyment 294 of a covenant of warranty 292, 295 of a conveyance attended and fortified by possession in this coun- try 363 of a deed of simple relations 282 of a judgment in rem 110 of a judgment by confession on a judgment 64 of a judgment as a merger 189 of a judgment by default 191 of a lack of jurisdiction of the person or subject matter 180 of a probate 136, 137 of a subsequent ratification as estoppel 471 of an admission of title 376, 377 of an equitable estoppel 411 of an estoppel in pais 413 of an estate in privies 15 of findings and judgments upon parties or privies, what depend- ent on 92 of claiming title under a parties' deed 384, 385 of general recitals 275 INDEX. 5«3 Pajro. Effect of holding one's self out as a partner -r?Tr 470 of judgments of courts in the dominion of a neutral power 190 of jury proceedings when dependent on the principle of equitable estoppel ]Q7 of justice of the peace exercising their powers, the prescribed forms of law 149 of married woman's deed in binding future estate 235 of not pleading an estop])el 5-11 of payment of money in court as an estoppel 355 of recitals in deeds considered 263, 204 of sentence of condemnation 1 07 of submission by both parties to an arbitration 172 of submitting their matter in controversy to arbitrators 172 of taking the benefit of an instrument as an estoppel 463 of the record of a recovery 550 of want of jurisdiction in limited and inferior courts 147 of waiving an estoppel by deed • 557 of written instruments as estoppels 229, 130, 231 of want of precision in officer's return 63 Ejectment, action of, if brought to establish title and settle right of prop- erty, concludes all parties 61 at common law, no similarity to present action 64 by, maintained in a title to land by estoppel 247 in states where verdict is abolished, bar second action between same parties ; exception in Missouri 64 judgment in, conclusive in action for mesne profits.. . . 58, 60. 62, 66 judgment in, conclusive evidence of title 58 judgment in, conclusive right of possession in New Jersey 60 judgment in, by default is as conclusive as if by verdict 61 judgment in, limited only to right of possession and conclusive in record to that only, not reversed or set aside 66 judgment in, must be regularly entered to be efi'ectual in Penn. 60 judgment in, no bar where the party has a new title 61 judgment in, what it is conclusive of 60, 61 when judgment in, is in rem 116 Election, doctrine of extension of equitable estoppels 11 foundation of the principle 461 when parties precluded from reconsidering 462 End of litigation after judgment 29 England rule in regard to the sentences of foreign admiralty courts 195 Entering voluntarily into a lease and in possession, estops the party from disputing the lessor's title 324 Entire demand, what it is so as to bring within the reach of an estoppel. 76, 76 causes of action by defendant, judgment in one, conclusive on the whole "* Equitable rather than legal or technical estoppels, when applicable to es- toppel by record ^'° estoppels "*'** bind only parties and privies 336 are as effectual in courts of law as in equity 341 apply to infants, guardians, &c 461, 348 584 INDEX. Page; Equitable, are strictly construed, but not allowed as instruments of fraud, 346 as effecting the title to land 409 as effecting the title to land, are a means of preventing fraud. . . 410 are applied to prevent a party from being wronged 411 applied to instruments not under seal 442 as applied to principle and agent 461 as applied to married women 461 as applicable to railroad companies 528, 529 estoppels as applied to stockholders in corporations 534, 535, 536 537, 538 cannot be created without proof of wrong done or threatened. . . 339 doctrine of how applied 562 effecting the title to land, when a good defense at law 565 how called into existence 338 created by confirmation 459 matters of fact for a jury 562 estopples may be waived or enforced at the pleasure of the party who has acted on admission accredited them 340 when applicable to estoppel by record 107 they are created 335 always applicable 343 they may be used against a judgment 353 well founded 414 it will be binding on all who acquire title subsequently 431, 482 when properly applied between licensor and licensee 437, 438 applied to the plea of usury 454 they may be created by a principle or his agents 469, 470 they may be effectual upon married women 479, 480 what are 334 the estoppel in pais founded upon principles of equity and justice 336 the estoppel in pais cannot be pleaded, but are given ia evidence 337 Equity, bill in, necessary to relieve against fraudulent judgment 155 when it will compel a party to convey his property to a pur- chaser from one not the owner 417 when it will enjoin a party from interrupting the enjoyment of an easement '. 490 when it will grant relief against a' party holding the legal title to land 426 Essential elements of equitable estoppel effecting the title to land... 415, 416 Estate passes in conformity to the deed by estoppel 284 privies in, who are 42 Estoppel adopted by common consent from motives of public policy 9 against an estoppel states the matter at large 233, 241 another effect of 284, 285 apply to lease for years with greater force deeds poll 314 applies where the instrument contains definite and particular recitals 252 are applicable when between vendor and vendee and mortgagor and mortgagee how created 378 an exception to the rule requiring the investigation of the truth by convenient and expedient methods 335 INDEX. 585 Page. Estoppel, founded on the convenience and for the prevent i??hMf)f fraud.. 335 not applicable to mere descriptions in deeds 252 are not extended to objects which the parties did not have in view 2i;7 are not wholly confined to the lease to run with the land or bind parties under the parties 321 are odious only when misunderstood or misapplied 304 as applied to awards 486 boundares 480 adverse possession 48G corporations 509 dedication 480 easements 480 oral partition 486 as applicable to insurance companies 515, 516, 517, 518, 519 stockholders 534, 535, 536, 637, 538 sureties on official and other bonds; 272 the makers of instruments under seal 273, 274 at common law how created so as to eflfect a tenant 365 law like injunction at equity 12 by deed 229 extends to all persons claiming under the person estopped 232 Its efiect 233 when applied 233 unavailable to any but parties and privies 234 a mode of preserving rather than acquiring property 234 its limitation 234 not extended beyond the intention of the parties of deed,. 234 cannot be created by interment or application 234 what necessary to create 235 held applicable to married women in Oregon 236 prevents multiplicity of suits 287 how made available 556 when equitable rather than legal 259 by lease must estop both parties or none 325 matter of writing may be created by instruments not of record 271 record not limited to facts admitted or proved 84 recitals in deeds when as eficctual as any actual warranty. . . . 260 being created for the suppression of, will be suppressed when they create fraud 267 between vendor and vendee and mortgagor and mortgagee, how created 378 constitute title 292 derivation and definition of the word 7 eflfect of when it api)ears from the pleadings 548 founded on a grant or contract cease when the instrument ceases to operate 323, 325 how extended so as to reach third parties 47 they dilfer from evidence 232, 233 acquires the power to confer title 277 created 290 586 INDEX. Page. Estoppels, how made available 541 impose silence only when in conscience and honesty a party should not be made to speak 291, 292 in rem. when they partake of the nature of estoppels in pais .... 130 in order to have full effect must frequently pass title 289 in pais 334 what are 334 may be conclusive in a civil action, but not in a criminal one 336 must be reciprocal 341 its application to the relation of landlord and tenant 358 may be created by payment of rent 359 depends npon the tenant's obligation to surrender possession 359 between landlord and tenant, what designed for 359, 360 applied to mortgages 396, 397 its effect a beneficial operation 507, 508 may be relied on as conclusive in evidence 560 applied to mercantile transactions, how taken advantage of . 564 generally given in evidence 565 Estoppel is created by the matter alleged on which the recovery pro- ceeds, not the recovery 102 is no infringement on the rule of law requiring best evidence ... 9 limited to parties and privies 238 must be certain by their intent, application of this rule 87 reciprocal 238 neither give or divest an estate 233 no infringement on cause requiring best evidence 9 nor by an admission or assertion of a conclusion of law 245 not regarded as a distinct mode of acquiring real estate 280 not ordinarily applicable to the United States government, excep- tions to this rule 135, 243 none, once interest passes 293 of a former adjudication, how far it will be extended 103 conveyance extends beyond the parties and enures in favor, derive title from the grantor 288 conveyance, of what founded 283 warranty should be moulded so as not to defeat that which it was intended to secure 292 warranty, how may be limited 307 lease arises out of an implied contract 31 8 of an election, how created 466, 467 principle of, founded on the doctrine that a man shall not defeat his ovra act to the prejudice of another 232 of landlord and tenant, to whom extends 369 Estoppels, taking effect on an after acquired title estops third persons. . 238 that cannot be taken advantage of by a grantor, cannot be by his grantee 262 the doctrine of, founded upon the higlier principles of morality . 291 to be available against more than one party must be mutual 559 under the earlier practice 326 what it is 7 when may be made out bj' evidence 09 INDEX. 587 Estoppels, when applicable to deeds made under duress . . . TTT. 344 will be extended to the date of a deed Iitj6- applicable to a state 243 will be considered as odious 2'Jl not applicable to bar an equity of redemption 393 regarded as odious 442 conclusive in evidence 641 may be insisted on 5'>0 waived 651 their application will be suppressed 243, 559 works upon the state and binds an after acquired title as be- tween parties and privies 291 Every man bound to speak and act the truth 8 allegation at issue concluded by the judgment 165 Evidence and judgment is conclusive when opportunity appears to plead it 182 admissible to show that matters which mi Judgment is conclusive to showtliat matters in controvcraj^iiavc i)aHsi;d in rem. jurisdiction |83 no estoppel can be drawn from anything that lies beyond it 83 not conclusive in a subse(nient suit unless founded on the same contract or transaction litigated in the first 71 of a court-martial what required to be conclusive 1 70 upon a citizen of another state when valid 2l!0 state court upon a constitutional question when conclusive in the United States supreme court 210 in demurrer, effect of. 90 justices of the ])eace when relied on as justification must show.. 110 of necessity no estoppel 71 the highest court in the state as to the legality of municipal bonds is conclusive in all subsequent tribunals 524 on a bond or contract extinguishes liability of the instrument 189 the plea of statute of limitations may not be conclusive 98 former; how may be defeated 79 when it may be conclusive 644 pronounced in the forum rei aistae ; effect of. 199 that a bankrui)tcy discharge was fraudulently obtained is conclu- sive 07 to render conclusive; how it should be pleaded o-]5 be effectual and binding as estoppel; what it must show 180 upon questions of la\^e(iually conclusive with judgments of fact 84 validity of cannot bo collaterally questioned 98 •what it implies 1 06 must show to be conclusive 71, 90, 92, 97, 98, 101, 105 •when conclusive against the arrest of creditors 97 on a declaration containing several causes of action 72 inadmissible in another action 547 it is admissible in evidence, but cannot be used as an estoppel 1 07 may be evidence to establish a collateral fact lt>l necessary to be averred in order to be conclusive 514 pleading may avail which did not relate to the same property or transaction 08 presumed to cover the whole of several causes of action.. . . 79 there is no difterence in pleading it or giving it in evidence 548 title is in controversy is conclusive in any after controversy in any litigations between the same parties 64 ■wherever it cannot be rendered without testing specific issues is final on those issues in future litigation on same parties 67 when used in pleading as a technical estoppel or by way of evi- dence what it must show ^ against ancestor binds privies 60 one joint maker of a note a bar to suit against both 61, 68 railroad company when conclusive on another 629 tenant when it binds a defendant in another action 50 are records ' ' prima facie final determinations 31 divided and defined '^- 596 INDEX. Page. Judgment, excluded from being used against strangers 30 and verdicts always admissible to prove their existence 166 cannot be impeached by parties or privies 159 if conclusive in the state where rendered, conclusive everywhere 211 import absolute verity 23 in courts when they will be set aside 167 criminal proceedings are in the nature of judgments in rem... . 168 ejectment have the same conclusive effect as other judgments. 61 what conclusive of 60, 62 in personam, principles of, conclusive 34 in quo warranto conclusive on successive officers 56 in rem. and in personam 32 distinction between 33 conclusive on the whole world 58 sureties 51 trespass or trover pleadable in bar of an action by same plaintiif 57 trover or replevin against bailee, bars another action against him by bailor for same goods 57 kind included within the constitutional provision of domestic judgments 218 may be conclusive evidence and still no bar 44 estoppel 26 merges original cause of action 30 not binding on assignee of mortgagor unless party to the suit. . . 57 not impeached by parties or privies 159 of court martials 170 courts of common law, when they may be estopped in courts of admiralty 178 courts of deriner resort, principles of conclusiveness 34 general jurisdiction, when treated like those of Hmi- ted and inferior courts 159 quasi of record 170 foreign courts, conclusive of their own existence 196 inferior courts when not valid or conclusive 150 when they may be impeached 159 justices of the peace, when and where conclusive 149 limited jurisdiction, how made available 552 tribunals, when they may be impeached 143 •other states 192 are conclusive of every fact except that of jurisdic- tion, when not apparent in the record 215 other states, full faith and credit accorded to them by the con- stitution 207 other states, how applied 209, 210 how far liable to be attacked 225, 226 other states, operation by way of merger 209 probate and other courts, when unimpeachable 148 the U. S. are regarded as domestic 217 U. S. courts defined 146 visitors, how regarded by courts 170 what courts are in rem 113 INDEX. 51)7 I'llt'C. Judgment, prior to conveyance for or against grantor, "conclusive on grantoe 00 rendered without jurisdiction, effect of 166 should be pleaded if there be an opportunity 182 that goods are enemies' property, is binding upon all courts and persons 198, 199 under rule to show cause conclusive 32 what a judgment is 19 is not one 19 when conclusive between the insured and underwriters 196 of all judicial tribunals 643 when conclusive 27, 02 on bail 51 no evidence against another -0 not conclusive on strangers 20 only prima facie evidence 47 when the presumption is irresistible that it covers all matters that might have been litigated .' 105 when they may be aided by extrinsic evidence in order to make them conclusive 188 when used as means of evidence not conclusive 20 void 90, 97 while admissible and conclusive of its rendition in a criminal case has no effect in a civil one 107 Juries, why bound by estoppel 542, 643 Jury when bound Uy admissions in pleading 533 Jurisdiction, conditions of its exercise, what dependent on 158 how obtained to render a judgment of another state conclusive. . . 220 how waived 652, 453 limitation of not necessarily implies inferiority 146 maritine vested exclusively in United States courts 1-0 must be obtained in order to make a valid judgment in rem 119 necessary to a valid award 1"4 make a judgment in foreign attachment conclusive. . 202 render decree conclusive in probate, &c 133 the conclusive elTect of a domestic judgment in another state 211 of a court always examinable 1 93 visitor 169 arbitrator is made conclusive when 172 court-martials who are amenable to 1"1 inferior courts necessary and when attached its effect li'. 1 no particular form necessary to show it 147 limited and inferior courts when must be shown 147 the admiralty and prize courts exclusively in the United States courts ^ ^^ old rule of • '^f' once shown in proceedings of limited courts, its eU'oct 150 question of when decided by the court when final 158 want of in limited and inferior ccmrts, ellect of 14r., 117 598 INDEX. Page; Jurisdiction, want of may always be set up in an action in 'a judg- ment of another state 218 to what courts applicable 156 when apparent in a record will not be set aside for irregularities.. 158 disproved its effect 150 not necessary to be shown in the record 154 obtained under a particular state of fivcts must be substan- tially averred 158 presumed 1 54 the want of may be pleaded 150 why necessary to make a record importing absolute verity 217 Justice an advantage of certainty and conclusiveness in judicial deter- minations 155 of estoppels by deed 286 requires estoppels : . • • . 24 Justification of proceedings may be proved by judgment 20 Justices of the peace necessity of showing jurisdiction 143 E. Kinds of estoppels 7 judgment included within the article of the constitution of the United States 218 L. Land covenants when they run with deed 284 purchased for a specific purpose cannot be diverted from that purpose. 247 set apart for a public or private use when such setting apart is conclusive 488 Landlord and tenant, the application of equitable estoppels to 358 estoppel between prevents the tenant from disputing his landlord's title 317 title when a tenant may dispute it " 360 when bound by the same estoppel as the tenant 371 Lapse of time conclusive as to the location of boundaries 486, 487 Law of both equitable and legal 11 estoppel as laid down by Story. J 253, 254, 255 rule which estops a party from contradicting a deed does not extend to strangers 229 Lease by estoppel when it becomes a lease in interest 318 indenture estops both parties from saying that the lessor had notliing at the time the lease was made 320 when lessee not estopped from denying his landlord's title after the expiration of the term 325 Leases by estoppel 313 how they become operative by way of estoppel 313 Legal consequences of acting within the limitation of judicial authority, 169 INDEX. fy'J'J Legal process— money paid iindcr cannot bo recovered irTilTi action for "*"'"' money had and received j-- Legislative acts— ipso facto, binding when .'..'.".'....'." 1 51 Legislature, when it may be concluded by a grant and corporation ..... 512 Length of time necessary for the conclusive presumption of a grant. 507 Lessee may show that his lessor's title has expired, but not that it never existed o- 1 paying rent to the assignees is estopped from denying that they are the lessor's assignees 3]^ when estopped from taking advantage of a tax sale 3G6 to take advantage of a tax deed 377 when permitted to deny the lessor's title 305 Lessor, if plaintiff in ejectment when concluded 55 when estopped to recover for use and occupation 370 Lessors not permitted to contradict or avoid their deeds 315 Letters patent conclusive of recitals therein 270 Liability created by written contract, how lessened or discharged 229 of corporations qqq License, where it cannot be withdrawn on account of the operation of estoppels ^g-" Licensor, when estopped from revoking a license 437 Limited and superior courts, distinction between their powers ]57 Limitation of estoppel by deed 234 267 guardianship, when and of what conclusive 133 the application of estoppels in pais 379 doctrine of the doctrine of conclusiveness as to foreign judgments 200 201 the effect of proceedings in rem., when the recovery of ti- tle to land is in question Ill the estoppel by the record of another state 227 of an election 4G4 , the extension of equitable estoppels 420 operation of equitable estoppels to instruments not un- der seal 442 principle of conclusiveness of foreign judgments in personam 202 proof of proceedings in foreign attacliment 129 recitals contained in the deed of a married woman 235 of to points actually decided 20 principal one to tiia conclusiveness of records 19 proceedings in rem 1 29 statute of— foreign corporations, when estopped from pleading 5'JO, ftJO to the conclusive effect of a record 17 Location of boundary line through mistaken impression, when conclusive 488 M. Maker of a note, when estopped from taking advanfflcjc of a dofenRo against it '14(; Making or accepting of a bill or note, of what it is conclusive 447 Man is estopped when 7 600 * INDEX. Page. Man not bound by proceedings to wbich he was no party 8 Manner of pleading an estoppel by deed 558 Maritime jurisdiction vested exclusively in U. S. courts 120 Mariot & Harrington, case of 30 Marriage, principles applicable to 206 Married woman deed, limitation of the recitals contained in it 235 deed of, when no estoppel 235 operates as estoppel to the title granted by it 235 how barred from claiming homestead right 238 she may be estopped by mortgage 407 not estopped by a covenant from setting up an after ac- quired interest conveyed jointly with her husband 235, 236 representing that sole does not estop her 236 when not held estopped by warranty of deeds with her husband 236 Master, when in privity 48 Material facts recited in, does estop the grantor from denying them 258 Matter in issue, what is effect or meaning of the rule 184, 185 Matter in writing 229 does not allow a sealed instrument to be controverted 229 neither material, &c. , in record, 18 not precisely alleged no estoppel 559 Matters alleged consistent with the record no estoppel 18 becoming collateral questions of such a nature that they must be passed upon in order to render a judgment, are matters in issue 187 168 directly in issue in a former suit are generally concluded by the judgment 1 81 incident to or essentially connected conclusively settled by a judg- judgment 165 necessarily within the jurisdiction of a court are not affected by failure to show jurisdiction in the record 154 not heard or determined, cannot be brought within the reach of an estoppel 100 once settled cannot again be drawn into controversy 31 finally settled 31 put in issue by the pleadings are settled by the decree in equity 154 that other courts have exclusive jurisdiction conclusive in all other courts 36 that might have been litigated when presumed to have been 165 which might have been litigated when may be shown to be ex- cluded • 80, 83 whole of in dispute covered by judgment 26 Maxims 10, 11, 34, 38. 45, 48, 74, 106, 115, 116, 119, 126, 181, 199, 202, 220 230, 236, 354, 355, 404, 412, 470, 471, 643, 545 applicable to the law of estoppel, interest respublicie 10, 11 the foundation of the rule of conclusiveness, nemo debel 23 upon which equitable estoppels are founded 412 Meaning of a judgment directly in point 184 Means to set aside verdict, when conclusive • 86 Mechanics' lien vidgment, conclusive on parties and privies 35 INDEX. 601 Men presumed to speak and act accordinjijto tnitli, and ise:Stt;ppcd from contradicting so reasonable a presumption 23 Merger, doctrine of conclusive to pass a repose 100 of a judgment cannot be prevented 189 Mere error or irregularities, unless amounting to want of jurisdiction, no cause for settting aside judgments of probate and other courts 148 concealment of facts when not regarded as fraud 1 02 silence or acquiescence when it creates no estoppel 412 Mesne profits in an action for the judgment in ejectment is conclusive 62, G6 Military and naval courts are limited and inferior tribunals 171 extent of their jurisdiction 171 Misrepresentation respecting civil and criminal law, no estoppel 350 when it is an estoppel 8 when they will be void as a mortgage as to third persons 403 Mistakes of a judge form no exception to the rule of conclusiveness . . 97 of law or fact when they become estoppels 420 Modification of the common law estoppel to sealed instruments 441 doctrine of modern courts 13 Money paid under legal process cannot be recovered 177 Mortgage by husband and wife, its eflfect as an estoppel 392 execution, how a second mortgage when an estoppel to the re- demption of a prior one 394 how a party may be estopped from denying its existence 258 recital of in a deed does not estop the grantee from setting up its invalidity 262 , recital of in a deed is conclusive of its existence 258 when a foreclosure of will bar a foreclosure of another 393 it will be void as to third persons 403 recitals of in a conveyance estops its denial 406 Mortgagee how estopped from foreclosing his mortgage — 396, 398, 404, 405 when will acquire title by estoppel 391 not allowed to dispute mortgagor's title 3M Mortgagor and mortgagee judgment concludes assignee 42 assignee of and when not concluded 67 executing a purchase money mortgage how estopped 396 when estopped to deny his own title 395, 406 plead payment against assignee 395 Must be mutual or reciprocal ^^, 37 Mutuality a necessary ingredient of an estoppel K'7, 251 essential to the existence of an estoppel, reason therefor 387 necessary in a lease by estoppel 313 Nature of the jurisdiction of probate and other courts of like nature.. . . 148 principle of equitable estoppel as eftecting the title to land 409 question in dispute may be shown by oral evidence 27 Naval and military courts, extent of their jurisdiction 171 602 INDEX. Page. Necessity for showing in records of inferior and limited tribunals 147 judgment of no estoppel '1 of a patent to pass title of government lands 283, 284 estoppel being reciprocal or mutual 167 going back the record to ascertain what is there by a judgment 69 jurisdiction being apparent in the record of a judgment in another state 211 not confounding matters which were not determined with those which were 1°° preparation in the trial of causes 31 separating issues of law from issues of fact 25 surrendering possession before a tenant can avail himself of a new action against his landlord's title 368 Negligence, one not guilty of when not concluded 51 Negligent and culpable silence when it creates an equitable estoppel.... 412 Neither title nor possession in a landlord can concbide a tenant 375 New deed of title is a new cause of action in ejectment 6 lease and gi-ant when necessary to terminate estoppel 380 title when it enures to the grantee 286 trial states at large the estoppel 106 New York rule in regard to the conclusiveness of judgments of inferior courts . 164 Nil debit not a good plea to an action on a judgment of another state. . . 213 not a proper plea ^^* No allegation or averment is allowed against an official bond 271 distinction between judgment by default and verdict 61 estoppel by interment or implication 234 lease when it pass an interest 319 can be founded upon an admission to object to the per- formance of a lawful act, nor from refusing to do an illegal act 345 in tax deed 310 to immaterial questions 35 where not mutual 37 foundation in the common law for estopping a tenant from dis- puting his landlord's title 365 man can adopt part of a transaction transferable to him and reject the residue to the injury of those from whom he derived the benefit 348 man permitted to deny the title of his landlord 359 to take advantage of his own wrong 336 one allowed to claim in opposition to his deed 295 concluded unless he has his day in court 55 to be put in jeopardy twice, &c 168 person who is party or privy can impeach a judgment 159 principle to estop a grantee showing that the grantor had no title . . 301 Non claim, covenant of, and its effects 286 est factum judgment on plea of what it is conclusive of 101, 102 Not favored where their technicality cannot be subservient to its equity 13 Note, maker of, how precluded from setting up defense against 446 Notes, constructive, necessary to the validity of judgments in rem 111 INDEX. G03 Notes, negotiable, why tliey cannnot be properly made the STfKjcct of an attacliment 12a, 1 26- Nothing taken by inference in a plea of estoppel 555, 550 Notice by a corporation to a party to defend concludes such party 57 to a tenant by a city in an action concludes him, 55 defend makes a stranger a party 4G defend, purpose of 46 what it must state in order to be effectual 48 railroad company, when it binds them 54 surety to defend concludes him, when 54 who are effected with in equity during the pending of a bill 58 Notification to parties, good service, when 40 when concluded bj^ it 40 Number and kinds of estoppels 7, 15 0. Object of making persons parties to cause 163 of seizure and proceedings in rem 116, 117 Objection, if not made before judgment, estops the party from setting up fraud or want of service 1"^ to jurisdiction in an action on a judgment, how made available.. 552 Obligation to restore possession to the lessor creates an estoppel 383 made under duress, how brought within the reach of an estoppel 244 Obligor, a joint, or joint and several, when he may aver that he is surety 276 Obligors, when estopped by their admissions in bonds 271 Obscurity of the origin of the rule by which a tenant is estopped from denying his landlord's title 366 Odious, estoppels are said to be, when 1 1 when it may debar the truth 1- Of the rule that the interest when it accrues feeds the estoppel 277 Office of the estoppels at law 1 - Officer, party who indemnifies him and defends an action against him, is concluded '*' return in replevin when not conclusive on surety 52 when it cannot be contradicted •'-' Officers of corporations, how bound by their acts 532, 533 estoppels, how they operate in favor of and against 535_ 536 return, conclusive of 1 ' _ Old rule of law in regard to estoppel by deed 280 One, part owner, when bound and others not "^^ not a party, privy or purchaser, pe7i dente lites, not concluded .... 55 Operation of a judgment as a merger of a cause of action 189 every judgment depends on the power of the court to ren- der it ;•••:••••.• 337 equitable estoppels, when given m evidence <*->' on the title to land 116 words as estoppels ; • ■ '^ Opportunity where none is had to plead a judgment, which is conclusive ^^^ in evidence 604 INDEX. Page. Ordinary and extraordinary effect attached to an estoppel 279 effect of an estoppel 277 method of establishing a privity in a suit 361 Origin of estoppels in pais at common law 358 the doctrine of estoppels in pais, or equitab'e estoppels 334 of res adjudicata 20 the word conclusion 7 estoppel 7 Other classes and kinds of proceedings in rem 131 Ouster, judgment of concludes all claiming under the party ousted .... 66 Owner of property, how precluded with regard to boundaries 467 of a servient fraud when he will be estopped from denying dedi- cation 497 P. Pais, principle of 15 Parol, adjustment of boundaries, when conclusive 488 agreement in regard to the sale of land when they be enforced . . 410 evidence inadmissible to contradict otficers return 23, 52 written instruments 229 the declarations of parties to a public act 244 when admissible to explain a record 59 inadmissible against equitable estoppels .... 663, 664 necessary to create an estoppel 27 why inadmissible to contradict written instruments .... 229 promises, how they have acquired the conclusive force of estop- pels » 441 Part performance, when estoppels are applicable to 457 Particular facts efiecting title, when on whom conclusive ., 260 Partition by parol, when effected by equitable estoppels 499 judgment in effect of in New York 164 when is conclusive 93, 94 Partner, how concluded from denying partnership 477 judgment against one bars subsequent action against copartners . 91 judgment against one is an estoppel to a judgment against all ... 189 Partners, judgment on note made by one partner conclusive of the ex- istence of the partnership and of the right of the partner to bind the firm 67 Parties and privies bound by an estoppel as to an acquired estate 291 concluded by judgment against a grantee 123 how bound 30, 39 concluded by recitals in deeds 251 when estopped from the allegation at issue in former suit 166 binding themselves by instriunents under seal, not allowed to al- lege against them 271 claiming title from one person as a common source estops to deny such person's title 243 INDEX. G05 Parties claiming under a state, how estopped ' ^5^^ 389 conveying a precise or definite estate are estopped 292 deriving title by purchaso or descent, how concluded 363' estopped to deny any thing stated in any deed which has induced another party to accept and act under such deed 282 how creating an exclusive jurisdiction by arbitration 172 estopped by making deeds as agents, fee 257, 258 from the plea of limitation against negotiable pajM^r 453 left in same situation if judgment reversed as if none had been rendered 43 not allowed to contradict their own deeds 232 prove matters inconsistent with record 43 Partial evidence inadmissible to exempt matters from the estoppel of a judgment 73 Parties, how bound by judgments 51 of an action bound by an officer's return 230 or privies cannot impeach judgments 159 present at a levy and not objecting thereto, are concluded by it. . 362 under no disability, when concluded 163 when binding themselves with sufficient clearness in writing, can- not deny their eflect ^ 231 when concluded by their pleadings 542 from litigating matters submitted to arbitrators. 172 estopped from contesting illegal contracts 458 denying instruments upon which they have acted *19 estopped to deny husband's seasin in an action for dower. 331. 332 to deny their own acts 341 not required to disclose facts beneficial to other parties 163 precluded from denying boundary lines to be true when adopted ^^ protected by judicial acts 1"9 .Who are 3^- ^ in and privies cause ^9* to a judgment • • • ^ claim under the lessee are bound by the same estoppel which^ hinds him 317, 318 should sustain losses through the operation of equitable es- toppels 424,425 Party and privies bound by judgments in ejectment 62 are those who have a right to proceeding, &c 55 being estopped by judgment, all who since its rendition have ac- quired interest in the subject matter, are estoppid 59 binding himself by seal not allowed to dispute or contradict any declaration in the instrument essential to its purpose 281, 282 cannot defend a record in parts in different actions 74 defend a record in parts in ditterent actions, and reasons for the above '"* claiming under a will cannot deny its invalidity 263 defendant not regularly served cannot be concluded 166 entering in joint and several contract, how liable «>- GOG INDEX. Page Party entering into a contract without fraud presume to understand and assent to its terms 230 entitled to day in court 55 estopped from repudiating liis reparation, or denying admissions. 257 executing bonds cannot object to jurisdiction 175 having an interest and intervenes in a suit, is bound by it 57 holding an unrecorded deed, how he may be estopped 421, 422 how estopped from objecting to the jurisdiction of a court 552 from setting up forgery in an action on a bill or note 447 intending to make a defence in an action, is bound by the judg- ment and cannot sustain on a ground which they consider a de- fence to a former action 80, 81 ignorant of the facts constituting his defence, or if not, &c., forms an exception to the rule 81 indemnifying officer, and defends an action of trespass against him is conduced 56 making a deed as agent, is estopped to deny his agency 257 not allowed to take advantage of a fact admitted in an instrument 230 . to carve two suits out of the same cause of action. . . 73 not permitted to recover in violation of his covenant 286 ruUng of proceedings of inferior tribunals compelled to show ju- risdiction 148 seeking part of his claim, barred by a judgment to bring an action for the residue 74 to be bound by record, it need not be against him by name if against his interest 91 to a deed when not estopped from disputing the truth of facts re- cited therein 268 ■ to a deed estopped to deny anything stated in it which has en- dured part under it 282 when bound by an estoppel aeainst a foreign corporation 539 concluded by admissions 352 equitably estopped from enforcing a judgment 353 estopped from contesting the validity of bonds 456 denying the existence of a mortgage 258 disputing the title of a vendee at a foreclos- ure sale 397 estopped from showing a writ of error 552 that he is grantor 474 he will not be aided by a court of chancery 160 when not allowed to allege fraud, perjury or conspiracy in obtain- ing a judgment 109 not estopped from foreign jurisdiction 150 notice of a sale who makes any objection when estopped... 349 Patent judgment of estops patentee from setting up any adverse title.. . 2«7 necessary to grant title to lands 283, 284 when estopped to a future patent for the same invention 351 granted enures to grantee 284 Patenter and patentee, application of estoppels to 459, 460 Payment by garnishee when a good defence 124 INDEX. im Payment of money mto court is a conclusive admission of 'is*sy fact ne- cessary to prove in order to obtain the money 850 docs not make valid an invalid contract 356 to an executor obtuining probate of a ('urged will bars an action for the same debt 130 rent creates an estoppel in pais ;5ij'.) recitals of indeed conclusive upon parties in England 25:} under a judgment against garnishee an estoppel to what extent.. . 124 voluntarily made by garnishee no defence 123 Peace and quiet promoted by estoppels 9 Peculiar effect of the estoppel between landlord and tenant 317 Person, how precluded from denying that he is a partner 475 object of making him a party 103 representing another is a privy and concluded by judgment 50 Personal action, judgment in on the merits when a bar to another action 105 injuries, judgment for against city conclusive of defects in a sub- sequent suit 54 judgments 34 Person allowing improvements to be made under a contract with the city when concluded 521, 522 citizens of other states, how they may be bound 221 claiming under the person estopped are within the reach of the estoppel 232 dealing with corporations presumed to take notice of the law creating them 513 how brought within reach of the estoppel 4fj how made privies 175 in possession are privies when 239 represented by the parties are bound 39 when estopped to deny existence of a corporation 520 Plea of judgment recovered in a foreign court what must be shown 555 conclusive 35 res adjudicata to what applies 179 that the cause of action is not the same when an issue for the jury 649 former recovery may be defeated when 79, 80 Pleading a former recovery as an estoppel estops its being reversed or averring fraud 1 '8 admissions by cannot be concluded 353 an estoppel ^^^ does not preclude their confessing and avoiding the allegation of their adversary 649 ancient system of more conclusive 25 created by estoppel ^-^3 in an action on a judgment of another state how governed 555 is neither by traverse confession or avoidance 15 judgments of other states • • 209, 210 the general issue in an action by a corporation what conclusive of 639 party cannot be estoppid from 650 Point in issue must be the same in two actions to be within reach of the estoppel • Points directly involved in a case by a judgment are conclusively settled 59 608 INDEX. Page; Positions inconsistent are not maintainable 176 Positive acts tending to mislead when good grounds of an estoppel 418 Possession must be surrendered before a tenant dispute a landlord's title 360 when it may be obtained so as to create an estoppel in pais 365 Power exercised by Congress in regard to domestic judgments of other states •• 211 Practice in declaring on judgments o52 Presumptions are against rather than in favor of estoppels 234 of adverse possession when conclusive 501 Presumptions in favor of a record 554 estoppels in pais 3/1 the acts of corporations 524 of the binding operation of judgments 25 that the judgment covers several causes of action 79- Principal, acts of, when conclusive on surety 443 cannot adopt part of a contract and reject the balance 471 judgment against conclusive on bail 51 surety 50, 51 , 53 not bound by acts of his agent when in excess of his authority . . 261 party acting as, cannot deny his liability 473 receiving proceeds of a sale made bj» an agent is concluded by. .. 472 when bound by the acts of his agents 470, 472, 473, 474 unauthorized transactions of his agent 471 concluded by the representation of his agent 470 estopped from alleging illegality or want of consideration in a bond '. 180 estopped to allege that he is surety in privity 48 not concluded by recitals in his a^fent's deed 261 , 262 Principles applicable to a decree of any competent tribunal in regard to proceedings in rem 114 applicable to courts of original general jurisdiction 153 judgments, also apply to decrees in chancery 161 marriage 206, 207 governing the operations of judgments of other states 227, 228 of conclusiveness and their reasons 139, 140, 141 election, rule of 466 estoppel administers strict and even justice 287 between landlord and tenant, who applicable to. 383, 384 bj' record and in pais 15 deduced from equity 290 equitable estoppel as affecting the title to land 409, 410 estoppel in pais when applicable to estoppel by record .... .. 107 applied to estoppel in rem 130 law well settled 1- title by estoppel 289 upon which conclusiveness of foreign judgments are founded — 193 Privies are as much bound by equitable as by legal estoppels 341 concluded by sheriff's return ^3 description of ^" entitled to one day in court 55 estopped from litigating that which concludes parties 43, 59 INDEX. m) T» • • u I'UffC. Privies, how affected by the deed of those under whom tlntj^cliiiin .... 809 estopped by recitals in deeds of parties under whom tboy claim 261 may be bound by judgments I75 kinds of 40 when entitled to the benefit of an estoppel 322 estopped by judgment on questions of title of real estate. . 108 who are 39, 50, 5G, 239 in judgment 63 within the reach of a lease by estoppel 321 Privity in a state, how ordinarily established 301 where it exists obviates the necessity of proving title 361 Privy, landlord assuming the defense for tenant becomes privy 03 Probate, &c., courts, decrees conclusive until reversed or set aside 138 why they are considered limited and inferior tri- bunals 138, 139 nature of their jurisdiction 148 of a will is conclusive as to what facts 135^ 143 when conclusive 132 not conclusive in another state , 137, 138 what is its effect of 136 Proceedings for the recovery of land when invested with the character of judgments i?i rem 1 20 in an action on a judgment of another state, how governed 655 in rem. conclusive unless set aside by appellate tribunal 119 upon personal chattels and effect of the judgment 112 of superior courts when presumed to be correct 155 Promise, retraction of, when it constitutes an equitable estoppel 411 Proof, burden of rests on those who rely on the estoppel 445, 553 of fraud must be satisfactory to obtain against a judgment 1 02 that a limited court has exceeded its powers founds its proceed- ings 157 when burden of rests on a tenant to show the termination of an estoppel 382 Properly understood and applied it estops truth to prevent falsehood . . 12 Property holder, when estopped as against municipal corporations 521 seized or to be seized must bo situated as to render it amenable to court before judgment will be conclusive 119 Protection afforded to parties by garnishee process 122 of title when it estops the taking advantage of an adverse or out- standing title 377 Public policy regards estoppels favorably 9 or third persons, when not bound by represental in written inst*-u- ments — ^ tranquility requires this law 21, 30 Purchaser at a judicial sale bound by every estoppel that could have been enforced against the party whose i)r(.perty is sold 239 from a tenant, how concluded by an estopi)el 1/1 pais 371 under a decree of probate, or courts of like nature— when protec- ted ?^2 under a judgment— when not bound 298 39 GIO INDEX. Page. Purchasing, borrowing money to secure a title cannot plead illegality of the purchaser 350 Qualification of the rule of conclusiveness of an award 173 to the doctrine of equitable estoppel 414 Quasi of record courts of and their judgments 170 Question of jurisdiction, the only one examinable of proceeding of limi- ted and iufe-rior courts 1 ^3 the only one allowed in an action on a judgment in another state, is that of jurisdiction 213 •whether a former judgment is a bar, depends upon its being a judgment on the whole merits 70 whether the same matters could have been litigated— how deter- mined 104 when litigated in a second suit, is the same test in the first, estop- pel will not be less biuding in a diflerent cause of action 70 within the exclusive jurisdiction or concurrent of equity — when conclusive at law 162 Questions are regarded as finally settled against the unsuccessful party 69 as to jurisdiction conferred on courts regarding judgments which are sued in other states 220 once adjudged, when not to be retried 181 passed upon finally settled 23 when raised by the evidence presented to the jury when definite- ly sustained, are in the reach of the estoppel 69 Quit-claim deed creates no estoppel 290 what title it conveys 305 Quo warranto, judgment in, is conclusive on claiming under the party. 58 B. Railroad company notified to defend is conclusive 64 Ratification before and after the act of the agent, is of the same conclu- sive eflcct 471 of olficial acts by a bank — when conclusive 514, 515 the acts of an agent, when they become conclusive on the prin- cipal 470 Reason for creating equitable estoppels 341, 342 maintaining the doctrine of estoppel between landlord and tenant 309,370,385,386 the extension of equitable estoppels 346 of the rule of res ad judicata, by Paulus 21, 28, 29 why strangers not bound -9, 37 Reasons for caution under the good system of the plea of res adjudicata 98 of conclusiveness of decrees of limited tribunals 139, 140, 141 for conclusiveness of judgments by confession in ejectment 04, 65 the application of estoppels in pais 507, 508 judgment in ejectment in western states. ..65, G6 jm)j:x. r,n Reasons for th.- c-n„.I„sivcnos, ,.f J,„lp„„.ntM of otJ.or mSio* 226 "^M not allowing n |,arl y to di-te..d « cjiunu of Acliun - 74 why a tax dcid 0 why parties not strangers aro e8lopi>cd from stating advt possession. 60G the whole worhl is bound by a 1 the receipt of the punh ise money when it may l^« rontnMliclwl 2«>7 that a grantor a i»articiil:ir estate or int-resi whirh ho «.nvoyii« esto|)s him from denying that fact 277 278 when it may be estopped for one purpose* and not another iW7, 268 Recitals -y^A distinction between general and particular ones 275 612 INDEX. Page. Recitals in a tax deed arc not conclusive ^^^ an instrument when evidence against the party making them.. . 261 officer's deed no evidence against those claiming adversely toit 267 bonds when conclusive 271 decrees of courts of limited jurisdiction presumed to be true or conclusive 1^ deeds bind all parties thereto by estoppel 251 do not operate on one not a party or privy to it 251 when as effectual as actual warranties 260 law in regard to as laid down by Story, J 253, 254, 255 of description or unessential averments are not within the estop- pel by deed 252 their conclusive effect is restricted 252 conclusiveness 251 Record matter alleged inconsistent, effect of. 18 may be explained by parol evidence, but not added to or contra- dicted 72 of matters not material or traversible no estoppel 18 not conclusive to immaterial questions 35 of a recovery when it will furnish a good estoppel 300 state court when not conclusive in another state 226 an acquittal or conviction when pleadable 163 truth appearing in same record, effect of 17 when conclusive on bail ^1 surety ^1 evidence of one fact and not another 20 it may be admitted in the favor of a stranger 108 shows that it could not have been made without destroy- ing particular matters is conclusive of such matters in all future litigation 101 Recorded platts of cities, he, when conclusive of boundary lines 493 Records, conclusive effect of their own existence 50 coran non judiccB, effect of 17 import absolute verity and are conclusive 16, 17 of inferior courts when they import absolute verity 150, 157 superior courts when assailable 156 what they are • ^^ were in ancient practice 16 Rejection or admission of a decree must be entire or not at all 57 Relation of landlord and tenant when it must be dissolved 369 Release, deed of what passes by 282 distinction between in England and the United States 294 of dower in a mortgage works an estoppel 3.33 surety by creditor takes effect as an equitable estoppel 475 Reliance on a verbal contract when it does create an equitable estoppel. 411 Relief granted by a court of concurrent power bars another action IGO not granted against a judgment unless fraud is proven 162 when refused by courts of equity 564 Remedy against an officer for false return 179 for false return is by action against sheriff. 53 INHKX. r,13 li Vukv. lienicily vvli.'n jmlpmont oblainod by fraiui -rtT 166 Eemoval of a rt'ccid by writ of error docs not not imimir tho conclusive .. fll'ect of u jiidf^tiiciit jgQ Ruardiaii or adiiiininistrator cfuwlusivc 32 Renewal of a policy by an ii.Mirance coini)any when coiieliisivo nRiirmt tlieiu -. - Replevin bond, surety on when not bound by recitals. .... .... .... .. ..' 62 judgment iu although limited nmy bo protection against all the ^^■"'■'*^ 130 proceedings in rem. applicable to 131 Representations by parties to negotiable paper.s wlun thVv'bucome con- clusive ■ ,,Q . 44H made by married women no estoppel 23r, when conclusive as instruments not under seal 412 Requirements in order to take advantage of the estopj.el of a judgment. 653 Requisite necessary to create an estoppel in pais or equitable cstop- ^^^^ 313 814 neces.sary to make a foreign judgment conclusive 22"; Requisites necessary before a party is concluded by estoppel in pais.. '. '. 337 in a deed to create an estoppel 283 on the part of purchaser to create an equitable estoppel ^■^^ to a valid judgment in rem 119, 120 enable a party to set uji a title by cstojipel 421 make lease operate by estoppel 313 raise an admission from the rank of evidence to the dignity of an ostoj)pcl 414 of an in.strumcnt where a j.arty claims his right by estopi,el. .... 559 a judgment to constitute an estojjpel ' 540 the Kiench law in regard to contracts 0.30 to a plea of a judgment recovered 54,3 Res adjudiratu advantage of the doctrine ..1 how expressed in the civil law OQ made available o, illustration of doctrine of. ", origin of the doctrine ~^. plea of should be cautiously received under good system and reasons therefor qa to what ajjplicable ,__ what originally waa .,1 on when matters are ,y, inter alia.t aeta .", . Result of allowing a vendor or landh.rd's title to l>e denied 3G1 pleading a former recovery as estopi^l 178 Results if there was no estoppel .^ Return by a deputy in the sheriir's name concludes the sherilf. .,, 350 of a constable what conclusive of * .^-^ ministerial otllrer what eoncliisive ivideire of. ..^O ofliccr eonelusivoness of. . .. ~ ^.^ ii J when not conclusive on surety r,o property liable to taxation estops a parly frttnt dixpiiiing i(. . * 280 614 INDEX. Page. Return, official conclusiveness of 179 to an execution or any official return when and upon whom con- clusive 207 Reversal of a judgment states at large the estoppel 106 judgment leaves parties as if no judgment rendered 43 proves nothing but 43 Reversion may arise by estoj)pel : 323 Right of action, one only to each trespass, act or conversation, no mat- ter how names, or items, or wrongs, or damage may be 77 to impeach judgments to whom confined 159 Rights and the powers of guardians and administrators are local 216 fairly before a tribunal are concluded by its judgments 163 how lost or forfeited 413 of bona fide holders of municipal bonds 524, 525 Rule and its derivation, that whore an interest passes there can be no estoppel ♦ 280 applicable to courts in regard to the question of jurisdiction 157, 168 grantees 56 the elfect of domestic judgments in other states 227, 228 as to conclusiveness 44 estopping by deed in England 244 giving j)referoncc to written nioniorials its foundation 230 in England in n-gaid to tlie judgments in rem. of foreign courts of admiralty 195 Massachusetts, allowing evidence to contradict an award 172 regard to marriages 206 the admission as estoppels 415 the United States as to the power of guardians and adminis- trators 216 of conclusiveness inflexible 23 of an award, exception to 173 judgments in Illinois 181 judgments of other states, in Maine, Ohio, Massachusetts, Vermont. New York, Rhode Island, Connecticut and New Hamp- shire 215, 216 on what founded 23 distinction between limited and superior courts 157 law in regard to the variation of written contracts 230 the common law in regard to oral evidence 230 requiring iecii)rocity in case of estoppel involving the necessity for a lease by indenture 319 stated in regard to jurisdiction of limited and inferior courts 148 that estoppel must be certain applied to estoppel to record 87 the effect of what takes place in one judicial proceeding upon another, foundation of 178 parties shall not dispute the title of those under whom they claim 364 the tenant cannot deny his landlord's title, is an equitable one 365 to show cause, judgment made conclusive 32 INDEX. G15 S. -**^ Page. Sales made by virtue of proceedings in rem., how far conclusive 130 Seal, when not requisite to the conclusive etlect of recitals 259 Sealed instruments, when allowed to be contradicted 229 Second grantee, when entitled to the benefit of an estoppel 288 Seizing possession, when affirmed in a deed, estops the grantor and all privity with Inm, from denying that he was so seized and pos- sessed 281 Sentence of expulsion what conclusive of 1 69 on a question, forfeiture concludes the world 116 Servant, judgment against, when evidence against another 56 Service, necessary to bind parties 46 &c., 156 Sheriffs and sureties concluded by scire facias, except in judgment by default 54 deed when it transfers parties' title 176 return — conclusive 52 Silence of counsel, when estopped 354 Similarity between a covenant and warranty, and the recital of deed . . . 295 Scire facias on oflicial recognizance, what conclusive of. 64 Society requires that there should be an end of litigation 162 Solemn admissions by deed ore conclusive of every fact recited in it 260 decision made by courts of competent jurisdiction — conclusive.. . 45 Specific recital of good title estops the grantor from denying it 260, 261 recitals conclusive on parties when they do not bind the estate.. • 252 Stability and safety result from the operation of estoppel 29 when necessary to be given to adjudication 162, 163 Standing by silently — when it becomes an estoppel 419 State, when and how bound by an estopi)el 256 it may be estopped by its warranty 295 precluded in regard to boundaries by equitable estoppels 492 Statements alleged and denied in the same instrument, creates no es- toppel 241 in a deed, when not conclusive 234 States may be bound by estoppels 243 wherein estoppels are conclusive in evidence 547 Statute of California, its In passing after acquired titles 28 1 limitation and waiver — when operates as an estoppel 453 judgments on. may not be conclusive, wlien 98 Stipulating and agreeing to be bound creates privity, wliicli makes u judgment conclusive 50 Stipulation by an attorney, when an estoppel 355 Stockholders, when concluded by a judgment against the corporation 520, 521 Storv's J reasons for the conclusive effect of judgments of other states. 207 ^ 208, 209 Stranger can neither be b'.und or take advantage of an estoppel 327 when may take advantage of a record 108 Strangers claiming by title paramount to the deed, not bound by the cs- toppel -*'■ "•ivin"' credit or talcing a conveyance in reliance upon tliea<;kno\v- 616 INDEX. Pago. ledgraent of consideration, are protected by its recitals in the deed 269 Strangers, how brought witliin the reach of the estoppel 46, 61 neither benefited or prejudiced by an award 174 not bound by 18 or third parties cannot impeach an award 174 when not bound by a written contract '2'J9 proceedings in attachment 122 when permitted to set up fraud and collusion 156, 169 why not 28, 29 Submission of every matter in controversy — efllct of 172 to arbitrators, when done by both parties, conclusive of 172 when nmst be an estoppel 351 Subscriber for stock in a corporation, how concluded 6J9 Suitors must prepare case properly 31 Sureties estoiij)ed from denyin;; in bonds, &c 278 on bonds and corponilions, how concluded 518, 526, 536 when estopped 175 to deny the cliHractcr of their principals 272 Surety, discharge of, when dependent on princi])K-s of equitable estop- pels 474 how brought within the reach of an estoppel inpait, by executing bonds 454, 455 when a record against, may not be co:iclusive 60 concluded by judgment 51 , return of officer 52 the acts of his principal 443, 444 jointly and severally bound, not permitted to set up their suretyship 272 not concluded by judgnii-nts against their principal 32, 33 Superior court of the U. S. concluded by a judgment in a state court up- on a constitutional question 216 courts, judgments of, when they may be protection to one person and not another 15(j courts records, when gener.illy assailable 15 The conveyance of a man's right, title and interest does not estop "him from showing he had none 30q distinction between a feoffment and a warranty 282 expenditure of money or labor on the land of another when creates an estoppel ao-j husband when not estopped in an action to recover dower 329 prevention of injustice gives effect to the operation of equitable estoppels 439 proper course to take advantage of a judgment 553 rule that the interest when accrues feeds the estoppel ixirlicu- larly applicable to leases 313 two classes of oases by which an estate passes by estoppel under the old civil law 278 279 words grant it, bargain, sold and released in a deed do not amount to estoppels 307 Third parties when not bound by a M'rittcn instrument 229 persons taking part in a defence may be estopped 44, 46, 48, 54, 55, 57, 58 when not concluded by judgments 62 protected by fraudulent judgments 143 Title, a judgment involving when conclusive on vendor 58 failure to assent when it becomes an estoppel 421, 422 acquired after a conveyance by a warranty enures to the vendee.. 284 by estoppel how created 232, 277, 278 judgment in an action of ejectment is conclusive for mesne profits 58 estoppel principle of. 289 what is a 232 618 INDEX. Pago. Title, estoppel when conclusive without being pleaded 556 it enures to the mortgagee of a chattel mortgage 397, 398 how it may be lost by fraudulently allowing another party to mortgage it. 408 may be constituted by a judgment 20 of a husband cannot be disputed after her acceptance of dower... 332 p:irtics how extinguished or transferred by sheriff's deed 17^ of plaintilf when it cannot be controverted by tenant 66 property under proceedings in rem. good against the world.. . 130 the landlord does not atl'ect the tenant as long as he retains possession ^23 when recorded — notice to all the world, and cannot be affected by estoppels 426 the proof of when unmccssary by use of an estoppel 658 to land.s. judfrinents on are conclusive on whom 108 what conveyed by a quit-claim deed 805 when admitted to exist — effect of 377 claimed by ditferent parties from one person, estops them from denying his title 243, 259, 260 in controversy, &tc 64 it cannot be set up by parties in possession 373 it enures to mortgagee by estoppel 391, 392 which passes by a warranty 287 To be ellectual nmst be within what principles 15 l)rove its own existence judgment is conclu.sive 33 Tort each or each trespass. &x;., gives but one right of action 77 recovery in an act ion of — its effect 101 Transactions between two jiarties not binding on a third 34 Treating an instrument as conclusive for one purpose estops a denial of its validity for another 4G7 Trespass, judgment for defendant no bar In an action of trover for same taking ^-^ judgment in, when admissible in action of ejectment 107 or tort judgments in, are conclusive of points directly in issue. . . 101 trover judgment does not transfer title 37 Trial when temporarily precluded by a suspension of the right of habeas corpus 1 < 1 Trover, judgment for defendant in, bars an action for money had and re- ceived 93, 106 or trespass, judgment in, when no estoppel 89. 106 True test to decide a plea of antrc pais acquit or autre pois convict. . .. 172 Truth appearing in same record — etlect of 17 no one denies setting it up, when ' 11 when apparent on the face of an instrument, waives the estoppel. 240 Two classes of judgments 33 or more are jointly liable — ^judgment against one is a bar to action against the other 57 u. Underwriters bound by decrees in prize or admiralty courts 196 Uniformity of decisions result from estoppel 28 INDEX. 619 United States courts and their judgments rtr. 36 are not inferior 36 powerless after rendition of judgment 37 government of not ordinarily bound by an estoppel 243 how affected by estoppel in pais 351 when precluded by an estoppel as applied to boundaries . 488 Universal doctrine, that a judgment rendered without jurisdiction is void, and applicable to all judgments 219 effect of a judgment in rem 118 Unqualified assurances, &c 443 Use of as a defense or to avoid a defense 15 equitable or estoppels in pais S38 Usurious contract, how party may be estopped from, ollect of by fore- closure of mortgage 392 Usury, equitable estoj)pels when they may be m.ide available against .. 454 pleaded as a defense is barred in another action 42 when a debtor is estopped from showing 392 Y. Validity of a corporation, when it cannot be questioned 537 Vague, general or ambiguous statements no estoppel 234 Vagueness and want of precision in officer's return, effect of 53 Vendee, how estopped by an agreement to purchase from denying land- lord's title 361 when he occupies the position and is concluded in the same man- ner as a tenant 388 Vendor and vendee, when bound 53, 58 not bound 58 having no title, but acquiring one after conveyance, it enures to his vendee 284 when estopped to deny acts done in violation of his contract 386 Verbal admissions, when held conclusive, no evidence permissible against them 336 sale of land when enforced by equitable estoppels 410 Verdict and judgment on demurrer, difference between 99 on an issue in chancery when not conclusive 190 Vested interest, when it passes 297 Visitor, judgments of, how regarded by courts 170 partakes of a judgment in rem 169 reviewable in Massachusetts 170 when conclusive 169 Void, when acts of courts are 45 Voidable contracts, how brought within the reach of an estoppel by affirmance 457, 458 Voluntary conveyance binds parties and privies 246 payment by guardian no defense 123 w. Waiver of demand, when an estoppel as on an endorser 449 "Want of jurisdiction in inferior or limited courts, its eflect 147 620 INDEX. Page. "Want of jurisdiction, when applicable 156 precision in iffic.r's fL-turu. eflect of 53 Warranty against a particular outstanding title passes that title by estoppel 305 an estoppel of, how it may be restricted 306 binds the grantor and transfers subsequent interest to the grantee 285 creates an estopptfl 290 deed by husband when no estoppel of the wife 238 distinction between that and fcurtment 282 estoppel of is intindt-d as no protection of the parties 292 necessary to create estoppel 285 of a graiitor, its eflict 277 what passis by at the time of its execution 287 when coextensive with it, estate which the deed purports to con- vey ortsets no after acquired title 306 a title by estoppel is 232 an award decides 173 cannot be pleaded to an action on a judgment 554 is meant by estoppel being mutual 71 the declaration that a man who accepts or goes under a deed cannot dispute it 248 in the reach of an estoppel by deed 266 required by law of a ten.mt 867 of a i>arly jdeading an equitable estopjx'l 660 to be shown by a party setting up an estoppel in paix 665 sufficient to nuke an equitable estopped applicable 446 understood to cnate an estoppel by record 71 matters are excepted from the conclusive eflect of written instru- ments 231 the ductrine is when when properly understood 12 payment of money into court admits 355, 356 waives the question of jurisdiction 652 When a confession of judgment by a married woman does not preclude her 481 court and jury are not bound by an estoppel 656 grantee may deny the title of his grantor 387 judgment is no estoppel 648, 649 landlord and tenant may be estopped from insisting on their riglits 318 landlord's estate becomes an estate in interest 318 mortgagee may acquire title by estoppel 391 party may give an estoppel by in evidence as conclusive fact as if plead 659 statement in a scaled instrument will not render it conclusive.. 234 tenant is not estopped to assert any right" in opposition to his landlord 367, 368 tenant may dispute his landlord's title 360, 377 title or decree cannot be impeached 466 warranty will be confined to the estate vested 306 acts by which others have acquired rights will not be permitted to be contradicted 413 INDEX. 621 Wher. -e r-i^ 240 439 :able 273 304 - f'T'vf^ 372 .'. 201 >pel 280 .3 eU'ect of taking possession of proj>erty under 4G1 party claiming under — estopped from denying its validity 203 probate of, instance of a judgment ii rem ■ 112 when conclusive 135 recital in is estoppel to parties claiming under it 274 Within what principles estoppels must bo to be eHeclual 606 Without prejudice, when a bill or suit is dismissed, no bar to another aetion 162 Word " wilfully," how to be understood g Words grant and demise are equivalent to covenants and (juiet enjoj-- ment 823 Writ of error does not weaken the force of an estoppel 100 Written agreement inadmissible to alter or vary the terms of a contract 229 7i\ 000 784 802 ^ ^ % tp <9. r AW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES '^^