Jackson v. Brinckerhoff.

The plaintiff, at the trial, objected to the introduction of the last-mentioned deed from Smith 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. The judge 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 question 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 wife 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 maintained, 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. Porneau, 3 Missouri, 529. Upon 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

note 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 acceptor 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 principal 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, so 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 odious.

Jackson v. Brinckheroff.

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 wife 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 defence 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

Jackson v. Brinckerhoff.

was proper, and that there ought to be judgment for the plaintiff.

KENT, J.. A motion was made, on the part of the defendant, for a new trial, on two grounds:

1st. That the deeds to Talman were void, in respect to him, by reason of an adverse possession at the time.

2d. That they enure, however, by way of extinguishment, and in favor of the defendant in possession.

1. There is no doubt but that by the common law, (Co. Litt. 214. a; Plowd. 88,) a conveyance to a third person, of lands held adversely at the time, was void, as an act of maintenance. Before a person could convey *lands [*105] in the adverse possession of another, he was under the necessity of reducing his right into possession by suit. This rule of the common law has never been altered. It is the law still, and, consequently, the deeds to Talman transferred no right to him, as the defendant was, at the time, in possession, claiming the lands as his own. The right of the grantors was reduced to a mere right of entry or an action.

2. The second question is, whether, in consequence of those conveyances, the right of Smith and Ellison, and their wives, or either of them, was extinguished for the benefit of the defendant.

I am satisfied, upon a consideration of the question, that no such conclusion results. It would be a conclusion rigorous and highly inconvenient with us, considering the facility with which real property circulates, and the distance at which it is often placed from the owner. This was a bona fide sale on the part of the heirs. It was not a sale of a pretended title, as a matter of speculation, but of a valid right. If the position contended for by the defendant was correct, there would have been no need of the statute punishment for selling a pretended title, which inflicts on the seller a forfeiture of the value of the lands sold. This doctrine would have been equally effectual, by forfeiting the land to the possessor, instead of a common informer. I am not for extending the punishment contained in the act against buying or selling VOL. III. 18

Jackson v. Brinckerhoff.

pretended titles, beyond its express provisions. Although, in judgment of law, the possession of land may be notice to the owner, yet as a matter of fact, it is very probable, considering how thinly scattered the settlements are in a great part of the country, that lands may be sold by the true owner, unconscious of any adverse possession. In the case of Fitzherbert v. Fitzherbert, (Cro. Car. 484,) one point moved was, that if A. after a disseisin, and not knowing of it, levy

a fine to a stranger, whether that fine would bar his [*106] right, and enure to the benefit of the disseisor, accor

ding to the doctrine in Buckler's Case. (2 Co. 56. a.) The court gave no opinion, but two of the judges, feeling the mischievous consequence of the doctrine, agreed that the fine should not enure to the benefit of the disseisor, but to the use of the conusor himself; for otherwise, a disseisin being secret, may be the cause of disinherison of any one. who intends to levy a fine for his own benefit. The mischiefs apprehended at that time in England would, if the defendant's doctrine be good, be felt here with increased force, owing to the peculiar circumstances of our country which I have suggested. It would become a serious check upon the necessary transfer of real property, or would lead to great fraud and injustice. I am clearly, therefore, of opinion, that the defendant ought to take nothing by his motion.

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

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

Motion denied.(a)(b)(c)

(a) [Old note] In Williams v. Jackson, ex dem. Tibbets and others, in the court of errors, (5 Johns. Rep. 300,) the decision in the above cause was recognized and sanctioned.

(b) See auth. cited supra, 103, n. (a),

(c) The doctrine that parties and privies alone can take advantage of an estoppel seems to be recognized without contradiction. (Lansing v. Montgomery, 2 Johnson, 382. Wood v. Jackson, 8 Wendell, 9. Miles v. Miles, 8 Watts & Sergeant, 135. Braintree v. Hingham, 17 Massachusetts, 432. Worcester v. Green, 2 Pickering, 425. Sanger v. Felton, 1 Rawle, 141.