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Jackson v. Brinckerhoff.

when repair was so practicable, ought to be deemed a waiver of any further compensation.

The plaintiff's claim, upon the defendant, for ratable freight, is reduced, therefore, to the time the vessel ceased to earn freight by reason of the peril; and the great difficulty upon this point is, that the case contains no just and accurate data, by which this average freight can be ascertained. From this omission to furnish the requisite proof, and the neglect to repair or offer to go on, I am, upon the whole, of opinion, that the plaintiff is not entitled to his motion for a new trial.

Lewis, Ch. J. and LIVINGSTON, J. were of the same opinion.

THOMPSON, J. not having heard the argument, gave no opinion.

Judgment for the defendant.(a)(6)

(*101] *Jackson, er dem. JONES AND OTHERS, against


By the common law, a conveyance of land by a person against whom there

is an adverse possession at the time, to a third person, is void ; but the title of the grantor is not thereby extinguished or divested; nor will such con. veyance enure, by way of estoppel, for the benefit of the defendant in pos

session. A stranger or third person cannot avail himself of an estoppel by a mere wri.

ting or a matter in pais. No person can be technically estopped by a conveyance under the statute of


This was an action of ejectment, brought to recover 500

(a) (Old note.) See Griswold v. The New York Insurance Company, (1 Johns. Rep. 204, and S. C. 3 Johns. Rep. 321.)

(6) See Supra, 44-2, 3, 45, 45-1, note to Abbott v. Sebor ; 2 Phillips on Ing. ed. 1840, p. 349, el. seq.

Jackson v. Brinckerhoff.

acres of lot No. 85. in the town of Aurelius, in the county of Onondaga.

On the trial, the plaintiff gave in evidence a patent for the lot, granted to Jacob Jones, a soldier in the New York line of this state, and proved, that the said Jacob Jones died about 14 years since, without issue, leaving six brothers and five sisters, his heirs at law; that Phebe, one of the sisters, married Isaac Smith, who, together with her husband, on the 10th September, 1796, conveyed, or executed a deed purporting to convey, one sixth part of the lot in question to Peter Talman, one of the lessors; that Margaret, aliother of the sisters, married Thomas Ellison, who, with her husband, on the 10th November, 1796, in like manner, conveyed one sixth part of the same lot to Talman; that the defendant was in possession of the premises, and had been so from the 10th June, 1795, claiming them as his own.

Upon this evidence, the defendant moved for a nonsuit, on the ground that the deeds to Talman were executed while the defendant was in possession, holding the premises adversely, and, were, therefore, illegal and void, and that they operated to extinguish the claim of the grantors, and would enure to the benefit of the defendant, who was in possession.

This motion was overruled by the judge; and the defendant proved, that previous to the execution of the above-mentioned deed, from Isaac Smith and his wife to Peter Talman, the same Isaac Smith had executed another deed to one Abraham Jones, releasing to him all his right and tiile to the real and personal estate of his *brother-in- [*102] law, the said Jacob Jones, deceased. Several other deeds were also read in evidence on the part of the defendant, of which it is unnecessary to take notice, as they did not present any question between the parties, except what arose from the consideration, that the defendant claimed to hold the premises under them, and under the deed from Isaac Smith, last mentioned, by all of which he derived his title from the same source as the plaintiff, that is, from the heirs of the soldier who was the original patentee.

Jackson v. Brinckerhoff.

The judge

The plaintiff, at the trial, objected to the introduction of the last-mentioned deed from Sinith to Jones, because it had not been deposited in the office of the clerk of the county of Albany, pursuant to the statute of the 8th January, 1794, and was therefore void, as against P. Talman, the subsequent purchaser, for a valuable consideration. overruled this objection, on the ground that the defendant was in possession of the premises, claiming them as his own, at the time of executing the deed to Talman, which possession was sufficient notice to every subsequent purchaser, and took the case out of the statute. The propriety of this opinion was not controverted on the argument, nor made a quiestion in the cause. The judge, at the trial, charged the jury that the plaintiff was entitled to recover one fourth part of the premises, and they found a verdict accordingly.

A motion was made to set aside the verdict, and for a new trial.

Van Vechten, for the defendant.
Emott, for the plaintiff.
RADCLIFF, J. The question litigated between the parties,

respects the validity or operation of the deed from [*103] Ellison and his wife to Talman. It is contended *on

the principles on which the motion for a nonsuit was founded, that this deed, being executed while the defendant was in possession of the premises, claiming them in his own right, was not only illegal and void, but estops Ellison and his wise from setting up their title against any person, and extinguishes it forever.

Admitting that the possession of the defendant was adverse to the title of the plaintiff, which, upon the whole evidence, I think, cannot be niaintained, still the doctrine of estoppels can have no application to the case. Estoppels are said to be odious, and are not favored in law.(a) (Co.

(a) Leicester v. Rehoboth, 4 Massachusetts, 180. Bridgewater v. Dartmouth, id. 273. Ewen v. Bartholomew, 9 Pickering, 520. La Joyce v. Por. neau, 3 Missouri, 529. Upou this subject, Mr. Smith remarks in his learned

Jackson v. Brinckerhoff.

Litt. 365.) They are extended only to certain specific cases, and are subject to precise rules. They are usually distinguished into three kinds; by matter of record, by writing, and in pais. (Co. Litt. 852.) Strangers as well as parties and privies may generally take advantage of estoppels by matter of record: but, I believe, in no instance, can strangers avail themselves of an estoppel by mere writing, or in pais. (Com. Dig. 80, 81. Gilb. Uses and Trusts, 100, 101.) Regularly, an estoppel must be reciprocal and bind both parties; and it is upon this principle of reciprocity, that it is confined

pote to Trevivian v. Lawrence, 2 Smith's Lead. Cas. 511. Contrary to the feeling which seems to have pervaded the courts with regard to other classes of estoppel, their inclination appears to have been to extend the list of estoppels in pais, especially in mercantile transactions, where men are obliged to trust much to appearances. Thus, it has often been laid down, that the ac. ceptor is precluded from disputing the drawer's ability, or, if after sight of the bill, hand writing ; the indorsee from disputing that of any antecedent party to the bill : (Jenys v. Fawler, Str. 946; Lambert v. Pack, Salk, 127, L. Raym. 443 ; Crichlow v. Parry, 2 Campb. 182;) the agent from questioning the title of his priocipal to the subject-matter of the agency ; (Gosling v. Birnie, 7 Bingh. 339; Holl v. Griffiin, 10 Bingh. 246; White v. Bartlett, 9 Bingh. 378; Kieran v. Saunders, 6 A. & E. 515.) And see the general rule laid down in Pickard v. Sears, 6 A. & E. 475. “The rule of law is clear," said Lord Denman, delivering the judgment of the court in that case, " that 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, 80 as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." (See the above principle affirmed in Gregg v. Wells, 2 P. & Dav. 296, 9 A. & E. 90; Coles v. Bank of England, 10 A. & E. 439; and see Sandys v. Hodgson, 2 P. & Dav. 433, 10 A. & E. 472.)

The truth is, that the courts have been, for some time, favorable to the utility of the doctrine of estoppel, hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding in cases where a mischief or injustice would be caused by treating their effect as revocable. At the same time, they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived or induced to alter his position. Such estoppels are still, as formerly, considered odivus.

Jackson v. Brinck heroff.

in its operation to parties and to privies in blood, or estate only. It extends no farther, in any case, except where it is created by matter of record. In the present instance, therefore, the defendant cannot protect himself on this ground, for, clearly, he is neither a party to the deed in question, nor a privy in blood or estate. Although the deed from Ellison and his wise be considered illegal, and therefore void, it does not estop them as against the present defendant, from asserting their previous title.

Neither can it annihilate or extinguish that title. The general maxim is, dormit aliquando jus, moritur nunquam. However they may be concluded as between them and other parties, their title cannot be extinct, and must prevail against

all who cannot rebut their claim by a technical es[*104) toppel. The title under such circumstances, *there

fore, remains, and is not forfeited. If it were, the grantors would suffer a double forfeiture; for by the statute of 32 Hen. VIII. adopted here, against buying and selling pretended titles, they are already subjected to a forfeiture of the full value in damages.

On another ground, I think this desence equally untenable. The conveyance by Ellison and his wife is founded on the statute of uses, and I conceive it to be a principle that no party is technically estopped by any such conveyance. A conveyance in pursuance of that statute operates upon the actual right of the grantor only. It transfers that right, whatever it may be, where he is in a capacity to convey, and it extends no farther. It is not subject to all the rules, built on feudal principles, which apply to conveyances at common law. Thus it is held not to work any discontinuance or forfeiture, as conveyances by particular tenants in certain cases are held to do; and from the principle that its operation is commensurate with the actual right of the party, and is governed by it, I think it follows that it cannot be affected by the doctrine of estoppels. It was accordingly so held, at an early period, by Saunders, J. (Freem. Rep. 475, case 651.)

On these general grounds, I am of opinion that the verdict

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