the estate expires by its own limitation, the warranty depending on it, is determined." We do not understand by this, that a warranty does not bind as a covenant, unless the estate actually passes by the deed. Our understanding is, that no warranty, to operate as a rebutter, can be created, except by a deed executed in the form in which the law permits an estate to pass. We have looked in vain for such a warranty, in any other form than in a deed executed with the legal formalities. The practice of enforcing the ancient warranties, seems to show, that the vassal could not recover of his lord, unless he could establish a tenure either by copyhold, or by deed duly authenticated. (See H. & B. notes to Co. Lit. octavo edition, vol. 3, note 315.) Mr. Butler, (note 328,) deduces from Seymour's case, (10 Rep. 96,) that no warranty is a bar, unless the estate be divested or displaced during the continuance of the warranty. point seems to have passed under the adjudication of the Court, in Dean vs. Nor、 wich, (Brownlee, part 2, 165,) where Coke, Justice, in deciding that a personal covenant, in a void lease, may be enforced by action, takes occasion to distinguish it from the warranty of a freehold, and asserts, that "if a man make a feoffment with warranty of a freehold, non feoffavit is a good plea; for if the feoffment be avoided, the warranty is likewise avoided, as that depends on the feoffment." These authorities satisfy us, that this covenant does not possess the character of a warranty, because the instrument of writing that contains it, is not one by which the title to the land is passed.

This

Neither does this instrument work such an estoppel, as prevents the maker from asserting, in a Court of law, his legal title. Generally, no man is permitted to deny an admission made under his own seal. Where this duty can be enforced under the forms of pleading, it is called an estoppel. But the instrument itself, or the fact that the owner has attempted to convey land by an imperfect instrument, has never been held to bar him from setting up his title, unless it contains an effective clause of warranty. (Co. Lit. 365; a. 14 John. R. 193.) A simple personal covenant does not preclude him. To give it such effect, would subvert the well established principle, that an equitable title can neither support nor defeat a recovery in ejectment. It would, moreover, enable every one to dispense with the salutary forms which the law requires to attend the solemnity of passing title to real estate, and thus defeat the object of the statutes, which, from the commencement of titles in the territory, have from time to time been in force on this subject. It is an argument of irresistible force, that in the whole range of authorities within our reach, not one has been found to maintain that the legal title is transmitted by such a deed. The case of Sullivant's Heirs vs. Commissioners of Franklin county, (3 Ohio R. 89,) differs widely from this, inasmuch as that deed contained a direct permission to enter.

It is not necessary to go further to decide this case: but if we were required to determine whether the deed was void, upon the other ground taken, we should find it difficult to persuade ourselves, that the act of a man, whose wife was already a member of the Shaker community, and who sells land for the apparent and actual purpose of providing advancements to his minor children, was within the spirit, intention, or mischief of the statute. It would be equally difficult, to

persuade us, that a son, whose age exceeded thirty, at the time of the sale, who was pursuing his own means of livelihood separate from his father, has any rights which fairly fall within the protection of a statute made to enforce the duties of an husband and parent, towards those who depend upon him for support. Whatever might be our opinion upon this branch of the case, we are satisfied that the defendants cannot protect themselves at law against the plaintif's recovery, in this

action.

Judgment for plaintif.

RICHARD DOUGLAS, vs. THOMAS SCOTT.

Complainant in possession of, and having the latter legal title, may ask the aid of equity, under the Ohio statute, to quiet that title against those pretending to claim.

Where A having no grant, conveys to B by a defective deed and puts Lim in possession, and B conveys to C, by a deed duly executed, with covenant of warranty, and puts him in possession, and A subsequently obtains a grant, the title inures to C, by way of estoppel.

THIS cause came here for decision from the county of Ross. It was a bill in chancery, asserting that the complainant held the legal title to certain lands, and was in possession, and that the respondent pretended a claim to the same lands. The prayer was that the complainant might be quieted against the claim of the defendant. The facts material to the decision of the cause are set out in the opinion of the Court.

DOUGLAS and G. SWAN, for complainant.

SCOTT and LEONARD, for respondent.,

JUDGE LANE, delivered the opinion of the Court.

Nathaniel Massie was the proprietor of survey No. 2462, entered January 9, 1795.

In the same year, he contracted to sell 188 acres of this land to H. Montgomery, who entered claiming this title, and died in possession, 1802; these are the tenements in dispute.

November 18, 1805, Massie, by a deed containing a covenant of general warranty, but executed in the presence of one witness only, conveyed these lands to the heirs of Montgomery. This deed, after giving boundaries, describes the land, as "part of a survey patented to N. Massie."

November 16, 1811, the heirs of Montgomery, and grantees of the above deed, conveyed the same lands to Joseph Kerr. This deed is well executed, in the presence of two witnesses, with warranty; and contains the recital, "that it was part of survey No. , patented to Nathaniel Massie, and by him conveyed to them," the heirs of Montgomery.

Under this deed, Kerr took possession. August 30, 1813, Hughey recovered

judgment against him for $601. December 21, 1815, Byxbe recovered judgment for $220.

In December 30, 1814, in the interval between the rendition of the two judgments, the land was patented to the heirs of Massie, he being dead.

Sundry executions were taken out upon the judgments, which were at no time dormant. In 1821, the land was sold, purchased by Douglas, sale confirmed, and deed made. If Kerr had a legal title to the land, at the time of the judgment, that title passed.

On the 29th of January, 1816, Kerr remaining in possession, mortgaged to the Bank of Chillicothe 150 acres, by a deed, containing the same recitals, viz: that the land was patented to Massie, conveyed to him by the heirs of Montgomery, and by them conveyed to Kerr.

In June, 1822, sci. fa. was issued on the mortgage, judgment was had in 1823, by which, on the 18th of April, the land was sold and purchased by Scott; the sale was confirmed and deed made; Kerr released to Scott.

In August, 1823, Cadwallader Wallace, Trustee of the heirs of Massie, created by the act of the Legislature, conveyed the title remaining in Massie's heirs to Scott.

In 1827, Montgomery's heirs brought their bill in Chancery in Common Pleas of Ross county, and by a decree of that Court, the deficiency in the deed from Massie to them was supplied.

Actions of ejectment have been prosecuted by Douglas, possession of the land been recovered, and still remains in him. He now brings this bill, against all persons claiming under Kerr, to quiet his title, and to enjoin them from ever disturbing it.

It is first to be inquired, whether he has the remedy in Chancery. We do not feel it to be necessary to inquire under what circumstances, a bill of peace, properly so called, is sustainable; or whether the English Chancellor, in a case like the present, would find the plaintif's right satisfactorily established, and restrain further litigation as vexatious. We believe our own statute extends the English, remedy by bill quia timet, and in providing, that he who is in possession of land, and having the legal title, may call any pretending a claim, to come forward and assert it, has rendered plain the right of the plaintif to pursue the present remedy.

The right to file this bill depends upon the existence of a legal title, at the time the bill is brought; the whole case which the plaintif can make, is embraced in the proposition that he had a legal title, superior to any in the claim of the defendant.

The transaction has become of a pretty complicated character, and a great variety of points have been submitted to our consideration. Among others, there have been argued the following questions:

First. Whether Massie's heirs take by descent or purchase, under the patent to them, issuing on a survey by their ancestor?

Second. Whether the want of a witness in the deed from Massie to Montgomery's heirs is cured by the statute of 1826, it having been executed prior to

1808?

Third. Whether the statute of uses was in force in Ohio; and if it would raise a use and pass a legal estate in a deed attested by a single witness?

Fourth. Whether a warranty in a deed from Montgomery's heirs to Kerr, estops all persons claiming through that deed?

Fifth. Whether the statute of limitation acts on land held by survey before patent, so that the adverse possessor acquires title against all except the government? Sixth. Whether a descent cast, takes away the action of ejectment in Ohio? These questions have been argued with much learning, and an unsparing industry: but we have been relieved from the necessity of adjudicating them, from finding the legal title established in Douglas, without tracing it through them: my object in this enumeration is to show, that we have not disregarded the bearing they have upon the case.

To sustain an action of ejectment, it is generally necessary for the plaintif to show a perfect legal title in himself; a proof of title in another will usually furnish a sufficient defence. Yet there are exceptions to this rule, and the well known cases of those holding interests in lands inferior to others, as vendees, tenants, mortgagees, are examples, of persons, who stand in that relation to the persons having the superior interest, that they are not permitted to contest their title, when seeking to enforce their lawful rights. The reason is, that the title of the tenant is derivative only, and if he from whom it comes has no right, the title of the tenant suits with it. The same principle has been extended to cases where the title of both parties springs from the same source; it seems well established in New York and Pennsylvania, that where the title of both parties is disclosed, and found to have a common origin, it is not permitted to either party, to go behind the person from whom they hold, or show that his claim is not good. (10 Johns. Rep. 292; 17 do. 165; Ser. and Raw. 339.)

A majority of the judges who sit in this case would be willing to hold, if necessary, that as Kerr is shown to be the common source of title to both parties, it is not competent to either to deny the right of him, from whom alone his own claim arises.

But we unite in the opinion, that the facts offer more satisfactory proof of a legal title, by giving effect to another principle.

The admission of a fact, however made, is always evidence of the fact against the party making the admission; but the effect of the admission depends upon the manner and purpose for which it is made. It may be presumptive evidence only of the truth, and liable to be denied or disproved. But if made for the purpose of influencing the conduct, or of deriving a benefit to another, so that it cannot be denied without a breach of good faith, the law enforces the rule of good words as a rule of policy, and precludes the party, from repudiating his representations, and denying the truth of his admissions; and an admission of record, or made for the purpose of superseding proof, or deliberately made under the seal of the party, is of such binding efficacy, that under no circumstances is the party permitted to disprove it. Such an admission, under the seal of the party, not only prevents him from disputing not the truth of the deed itself, but the truth of any fact which it states. For a deed is a solemn act, to any part of which the law

gives effect, as the deliberate admission of the maker: it stands to him for truth; and in every situation that he may be placed in, to him it is true.

The obligation created by estoppel not only binds the party making it, but all persons privy to him: the legal representative of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead, and are subjected to all the consequences which accrue to him. It adheres to the land; is transmitted with the estate: it becomes 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.

These principles had their origin at a very early period in the common law, and have been adopted in the most respectable Courts in our own country.

If the condition of a bond recites there are divers suits, the obligor is estopped, to say there are no suits. (Croke's Eli. 756.)

If a condition be to perform the covenants of an indenture, he is estopped to say there is no indenture. (1 Roll. 872.)

If a condition be, that he and his wife shall do an act, he is estopped to say he has no wife. (1 Roll. 873.)

The above are only examples to which a long list may be added. The case which is most usually presented is the recital of a lease or deed: that such recital is evidence of the existence of the lease, has been repeatedly adjudged. (1 Salk. 285; 1 Peer. W. 432; Willis 9.)

The law seems to be summed up in Com. Dig. Estoppel, 77. A. 2. "In all cases, where the condition of a deed has reference to any particular thing, the obligor shall be estopped to say there is no such thing."

That the estoppel extends to all persons subsequently acquiring title, has at all times been the doctrine of the books. In Trevinan vs, Lawrence, the Court say, "where the estoppel works on the interest in the land, it runs with the land, into whose hands it may come;" and Justice Story, in the case in 4 Peters, 85, reviewing the authorities, says, "such estoppel binds all persons claiming the land, not only in the same deed, but under any subsequent conveyance from the same party; that such an admission in a recital, by the same person transmitting the title, is a muniment of title, and travels with the land, into whomsoever's hands it may come.

The application of these principles seem to us to invest the plaintif with a legal title. His title depends upon the fact, whether Kerr had a legal title, to which the judgment lien could attach.

He was in possession, claiming title, derived through Montgomery from Massie. Although the deed from Massie to Montgomery contains the recital that the land was patented to Massie, it is doubtful whether the incidents and consequences of a perfect deed attach to it, in consequence of the imperfections in its attestation. We have decided, the present term, that the estoppel is not raised on a covenant of warranty, contained in such a deed. (Patterson vs. Sharpe and others, ante.)

The deed from Montgomery's heirs to Kerr, is the one on which the plaintif may insist, as investing Kerr with the title necessary to support a levy at law.