6

America 2. Banks, 101 U. S. 240. Compare Dukes v. Spangler, 35 Ohio St. 119; Hill 7. West, 8 Ohio, 222; King v. Rea, 56 Ind. 19; Massie . Sebastian, 4 Bibb (Ky.), 433. The rule is changed greatly by statute. Knight . Thayer, 125 Mass. 25. See note on "Married Women under "Title by Estoppel," post. And at common law she might join with her husband in conveying her land, while not liable on the covenants. Doane v. Willcutt, 5 Gray (Mass.), 328; Powell 7. Monson, etc., Co., 3 Mason (U.S.), 347. See also Littell v. Hoagland, 106 Ind. 320.

With regard to her separate estate, a married woman is practically sui juris and may be estopped. Jones v. Reese, 65 Ala. 134; Howell v. Hale, 5 Lea (Tenn.), 405; Powell's Appeal, 98 Pa. St. 403.

A woman living under her maiden name, apart from her husband, under a void decree of divorce, and acting and representing herself as a single woman, binds herself by her acknowledgment of a deed as a single woman. Reis . Lawrence, 63 Cal. 129; s. c., 49 Am. Rep. 83.

1. Non est factum. Of course there can be no estoppel by a recital in a deed against pleading non est factum. Manufacturing Co. v. Elizabeth, 42 N. J. 249.

2. Mason v. Mason, 140 Mass. 63; James 2. Wilder, 25 Minn. 305; Sherlen v. Whelan, 41 Wis. 88; Fairtitle v. Gilbert, 2 T. R. 169 Compare Stockton v. Williams, 1 Doug. (Mich.) 546. But a grantor may be estopped by a deed not properly witnessed and acknowledged. Wilson v. Hicks, 40 Ohio St. 418. Of course this rule does not apply to a conveyance of land before the grantor acquired the title. See "Title by Estoppel."

A deed given in contravention of a statute works no estoppel. Merriam v. Boston, etc., Rd. 117 Mass. 241; Chandler v. Ford, 3 Ad. & E. 649. But it may when executed in violation of an injunction. Wilson v. Western Land Co., 77 N. Car. 445. The officers of a corporation are not estopped to deny their authority to execute a deed which the corporation had no power to make. Fairtitle v. Gilbert, 2 T. R. 169.

A grantee procuring a deed by fraud cannot claim an estoppel against the grantor. Partridge v. Messer, 14 Gray (Mass.), 180; Cunningham v. Cunningham, 20 S. Car.

nor can he

317. But an innocent purchaser from the grantee may. McNeil v. Jordan, 28 Kan. 7. Deed Void in Part.- A deed void as to some grantors may work an estoppel against others. Chapman v. Abrahams, 61 Ala. 108; Wellborn v. Finley, 7 Jones (N. Car.) 228; North v. Henneberry, 44 Wis. 306. A deed in part bad may create an estoppel as to the good part. Daniels v. Tearney, 102 U. S. 415; United States v. Hodson, 10 Wall. (U. S.) 395.

3. Norris v. Norton, 1 Ark. 319; Bank of America v. Banks, 101 U. S. 240; Carpenter v. Buller, 8 M. & W. 209. See also, Francis v. Boston, etc., Corp. 4 Pick. (Mass.) 365; McCullough v. Dashiell, 78 Va. 634. But if the proceeding, though not upon the deed, grows out of it, it is not collateral. Wiles v. Woodward, 5 Ex. 557. And the estoppel is restricted to the interest which the deed undertakes to transfer. Fisher v. Mining Co., 94 N. Car. 397.

Way of Necessity. A covenant of warranty does not estop the grantor to claim a way of necessity. Brigham v. Smith, 4 Gray (Mass.), 297.

4. Wheelock ข. Henshaw, 19 Pick. (Mass.) 341; Pelletreau v. Jackson, II Wend. (N. Y.) 110; Pargeter v. Harris, 7 Q. B. 708.

Or if the truth appears by some other instrument expressly referred to for that purpose, there is no estoppel. Hannon v. Christopher, 34 N. J. Eq. 459.

5. Co. Litt. 352 b; Branson v. Wirth, 17 Wall. (U. S.) 32. So a grantee who had bound himself to discharge a mortgage on the land could not maintain an action on the covenants of warranty of the grantor by reason of having been deprived of the land by virtue of the mortgage. Brown v. Staples, 28 Me. 497. The other deed must not be collateral to the question raised. Lamson v. Tremere, I Ad. & E. 792.

6. Watts v. Welman, 2 N. H. 458; Platt v. Squire, 12 Met. (Mass.) 494.

A mortgage given by a vendee stipulated that it should not be foreclosed until the mortgagee had removed all clouds from the title; but the mortgagor was estopped from setting up this stipulation where he had himself prevented the removal of a cloud. Haney v. Roy, 54 Mich. 635.

7. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35.

2. Long v. Wilkinson, 57 Ala. 259; Keith v. Keith, 104 Ill. 397; Hasselman v. U. S. Mtge. Co., 97 Ind. 365; Woburn 7. Henshaw, 101 Mass. 193; Wilcoxon v. Osborn, 77 Mo. 621; Huntington v. Prichard, II Sm. & M. (Miss.) 327; Kinsman v. Loomis, 11 Ohio, 475; Curlee v. Smith, 91 N. Car. 172; Riddle v. Murphy, 7 S. & R. (Pa.) 235; Wilkins v. May, 3 Head (Tenn.), 173: Bolling v. Teal, 76 Va. 487; Robertson v. Pickrell, 109 U. S. 608; McCusker v. McEvery, 9 R. I. 528; s. c., 11 Am. Rep. 295.

It has been held in California, that, for the purpose of enabling an ousted cotenant to regain possession, the other co-tenant cannot set up an outstanding title; but that, possession having been regained, either may proceed against the other under a paramount title. Olney v. Sawyer, 54 Cal. 379.

3. Collins. Bartlett, 45 Cal. 371; Hubbard v. Norton, 10 Conn. 422; Gwinn v. Smith, 55 Ga. 145; Graves v. Colwell, 90 Ill. 612; Patterson v. Johnson, 113 Ill. 570; Winlock v. Hardy, 4 Litt. (Ky.) 272; Wilcoxon v. Osborn, 77 Mo. 621; Sands v. Davis, 40 Mich. 14; Kidder z. Blaisdell, 45 Me. 461; Brown v. Staples, 28 Me. 497; Norton v. Norton, 5 Cush. (Mass.) 524; Huntington v. Pritchard, 11 Sm. & M. (Miss.) 327; Gaylord v. Repass, 92 N. Car. 553; Averill v. Wilson, 4 Barb. (N. Y.) 180; Sparrow v. Kingman, 12 Barb. (N. Y.) 208; s. c., I Const. 245; Haynes v. Stevens, II N. H. 28; Kan. Pac. Ry. v. Dunmeyer, 24 Kan. 725; Riddle v. Murphy, 7 S. & R. (Pa.) 235; Kerbourgh v. Vance, 6 Baxt. (Tenn.) 110; Whitmire v. Wright, 22 S. Car. 416; s. c., 53 Am. Rep. 724; Green Bay Canal Co. v. Hewitt, 62 Wis. 316; Blight 7. Rochester, 7 Wheat. (U. S.) 513. But see Skinner v. Grace Church, 54 Mich. 543.

But a grantee cannot accept a deed with covenants of seisin, and claim that they are broken by reason of the fact that the title was in the grantee himself at the time. Furness v. Williams, 11 Ill. 229; Fitch v. Baldwin, 17 Johns. (N. Y.) 161.

The acceptance of a conveyance was held not to estop the grantee to show that

The acceptance of a deed with covenants of general warranty of upland on a shore, and at the same time of another deed from the same grantor, of flats in front thereof, with a limited covenant of warranty, was held not to estop the grantee to claim title to the latter tract. Porter v. Sullivan, 7 Gray (Mass.), 441. See also Craig ✨. Lewis, 110 Mass. 377.

The grantee is estopped to show a defect in the grantor's title for the purpose of defeating the widow's claim to dower, if he claim by no paramount title. Wedge Moore, 6 Cush. (Mass.) 8; Gayle v. Price, 5 Rich. (S. Car.) 525; Dashiel v. Collier, 4 J. J. Marsh. (Ky.) 601. Nor in such a case can he be heard to say that the conveyance was made in fraud of the grantor's creditors. Kimball v. Kimball, 2 Greenl. (Me.) 226. But he is not estopped to defeat a widow's claim for dower by showing a defect in the grantor's title, if he claim by a paramount title. See cases supra. Mortgages. A grantee of land who reconveys in mortgage with covenants of warranty to secure the purchase-money, may show an outstanding title under which he has been evicted in an action against the grantor on his covenants of seisin, and against incumbrances. Hubbard v. Norton, 10 Conn. 422; Randall v. Lower, 98 Ind. 255; Brown 2. Staples, 28 Me. 497; Connor v. Eddy, 25 Mo. 72; Sumner 7. Barnard, 12 Met. (Mass.) 459; Lot v. Thomas, 2 N. J. 407; Haynes . Stevens, 11 N. H. 28. See also note, "Mortgages," under "Title by Estoppel," post.

4. See " Estoppel by Possession under Another," post.

5. Roach . White, 94 Ind. 510; Lothrop v. Foster, 51 Me. 367.

A wife who joins with a second husband in conveying land of a first husband is estopped to claim dower therein in right of the first marriage. Rosenthal v. Mayhugh, 33 Ohio St. 155; Usher v. Richardson, 29 Me. 415.

6. Farley v. Eller, 29 Ind. 322; Usher v.

2

Richardson, 29 Me. 415; Stearns v. Swift, 8 Pick. (Mass.) 532.

And an express release of dower creates no estoppel, if the husband's deed is inoperative. Blain v. Harrison, 11 Ill 387; Hoppin v. Hoppin, 96 Ill. 265. And her release creates no estoppel as against the grantee or a purchaser from him with notice, if the conveyance was in fraud of the husband's creditors. Woodworth v. Paige, 5 Ohio St. 70.

If a husband conveys his wife's land in his own name only, and she merely affixes her signature and seal to the deed without words expressing her formal participation in the granting part, she will not be estopped to claim the land after his death. Bruce v. Wood, 1 Met. (Mass.) 542; Raymond v. Holden, 2 Cush. (Mass.) 264.

1. The term "recital" as used in the law of estoppel applies to all material statements of fact contained in the instrument. Big, on Estop. (4th ed.) 354.

2. A particular recital states some fact definitely. Calkins v. Copley, 29 Minn. 471; Sutton v. Casselleggi, 5 Mo. App. III. It should clearly affirm or deny a past or present fact, or admit some liability. Zimmler 7 San Luis Water Co., 57 Cal. 221; Calkins v. Copley, 29 Minn. 471; School District v. Stone, 106 U. S. 183.

3. Immaterial statements work no estop pel. Walker v. Sioux City Co., 65 Ia. 563: Reed v. McCourt, 41 N. Y. 435.

The date of the instrument is often immaterial, and subject to contradiction. Dyer . Rich, 1 Met. (Mass.) 180; Kimbro v. Hamilton, 2 Swan (Tenn.), 190. (See DATE, vol. 5.) But when of the essence of the contract, it is binding. Kelley v. State, 25 O. St. 567. A recital that one of the bargainors in a deed was a feme covert was held not to conclude any of the parties from showing that she was in fact a feme sole. Brinegar v. Chaffin, 3 Dev. (N. Čar.)

108.

4. Usina v. Wilder, 58 Ga. 178; Lucas v. Beebe, 88 Ill. 427; Redwood v. Tower, 28 Minn. 45; Green's Appeal, 97 Pa. St. 342; School Dist. v. Stone, 106 Ú. S. 183; Bowman v. Taylor, 2 Ad. & E. 278. Particular Recitals. - The recital in a deed that a mortgage is a lien on land es tops the grantee to deny it. Kennedy v. Brown, 61 Ala. 296; Smith 2. Graham, 34 Mich. 302; Johnson . Thompson, 129 Mass. 398; Parkinson v. Sherman, 74 N. Y. 88; Freeman v. Auld, 44 N. Y. 50. Or to deny the corporate character of the mortgagee. Hasenritter. Kirchhoffer, 79 Mo. 239. But not, it is said, to show that there is no incumbrance in fact. Goodman

v. Randall, 44 Conn. 321. And a recital of a prior conveyance does not estop the grantee to claim under a paramount_title. Baldwin v. Thompson, 15 Iowa, 504; Crane v. Morris, 6 Pet. U. S. 598; Jackson v. Carver, 4 Pet. (U. S.) 183.

A purchaser at a receiver's sale of property "subject to all legal liens and incumbrances thereon "is not estopped to contest the validity of a prior mortgage. Hackensack Water Co. v. De Kay, 36 N. J. Eq. 548.

The parties to a deed bounding land on a street are estopped to deny the existence of the street in an action concerning the boundary. Bell v. Todd, 51 Mich. 21; Bartlett v. Bangor, 67 Me. 460; Parker v. Smith, 17 Mass. 413; Donohoo v. Murray, 62 Wis. 100. So of a private way shown on a plat referred to by the deed. Sheen v. Stothert, 29 La. Ann. 630; Fox v. Union Sugar Refinery, 109 Mass. 292. But not, it is said, to deny the width of the street or way. Walker v. Worcester, 6 Gray (Mass.) 548.

A grantee who accepts a conveyance of an undivided interest in a tract of land which contains a recital that it is in lieu of a previous deed conveying specific portions of the same land is estopped to claim under the previous deed. Emeric z. Alvarado, 64 Cal. 529.

The recital of the grant of letters patent binds the assignee or licensee in an action for an accounting or payment. Cutler v. Bower, 11 Q. B. 973.

A recital that the grantor resides on land estops the grantee to deny that it is the homestead. Williams v. Swetland, 10 Iowa, 51.

A recital that property is personal estops the parties to say that it is real. Ballou v Jones, 37 Ill. 95.

It is said that the recital of a judgment is binding as to its validity. Blackburn z. Ball, 91 Ill. 434.

A recital that a party has delivered certain property estops him to deny the delivery. Nevett v. Berry, 5 Cranch, C. C. (U. S.) 291.

A widow styling herself widow and sole devisee is estopped to deny that she has elected to take under the will. Dundas v. Hitchcock, 12 How. (U. S.) 256.

Sureties on the bonds of administrators, guardians, agents, etc., are estopped to deny the due appointment of their principals. Gray v. State, 78 Ind. 68; s. c., 41 Am. Rep. 545; Phoenix Ins. Co. v. Findley, 59 Iowa, 591; Jones z. Gallatin, 78 Ky. 491; Norris 7. State, 22 Ark. 524; Cutler . Dickenson, 8 Pick. (Mass.) 386; Shroyer

v. Richmond, 16 Ohio St. 455; Williamson 7. Woodman, 73 Me. 163; Bruce v. United States, 17 How. (U. S.) 437.

The recital of a levy of execution in a delivery bond estops the parties to deny the levy in an action on the bond. Hundley v. Filbert, 73 Mo. 34.

In an action on a replevin bond, the obligors are bound by a specific recital that the property replevined was that of the defendant in an attachment. Michell v. Ingram, 38 Ala. 395; Dresbach v. Minnis, 45 Cal. 223; Gray v. McLean, 17 Ill. 404; Dewey v. Field, 4 Met. (Mass.) 381; Bursley v. Hamilton, 15 Pick. (Mass.) 40; Dezell v. Odell, Hill (N. Y.) 215. Compare Decherd v. Blanton, 3 Sneed. (Tenn.) 373. See estoppel " from possession under another," post.

The recital that parties signing a bond to the sheriff are deputies binds them. Cox v. Thomas, 9 Gratt. (Va.) 312.

A surety is estopped to deny that his principal was dead when the instrument was executed, Collins v. Mitchell, 5 Fla. 364, or that he did not sign as principal when it so appears, and the holder took the paper ignorant of his true character. Menaugh. Chandler, 89 Ind. 194. See I Pars. Notes and Bills, 233.

A statement of the power of a corporation, organized under public law to do certain acts, creates no estoppel. Northern Bank v. Porter, 110 U. S. 608.

But a corporation authorized by law is estopped by its recitals in deeds and bonds to say that the acts and conditions of its organization and subsequent action were not regularly performed. Cromwell v. Sac, 96 U. S. 51; School Dist. v. Stone, 106 U. S. 183; Webb v. Herne Bay Com., L. R. 5 Q. B. 642. Compare Starin v. Genoa, 23 N. Y. 439; Ontario v. Hill, 99 N. Y. 324.

A grantor cannot deny the corporate character of his grantee. Whitney v. Robinson, 53 Wis. 309. See sub-title, Estoppel "by assuming to act in particular capacities," post.

A recital that the grantee was about to divert the waters of a certain creek flowing through the grantor's land in a deed granting the right of way to conduct the water over his land was held not to estop the grantor to deny the grantee's right to divert the waters. Zimmler v. San Luis Water Co., 57 Cal. 221.

A party to a deed confirming a former one between other parties is not estopped

by the recitals of the former deed unless adopted by the language of the latter. Doe v. Shelton, 3 Ad. & E. 263.

Mistake. A recital founded on mistake works no estoppel in equity. Brooke v. Haynes, L. R. 6 Eq. 25; Jackson v. Allen, 120 Mass. 64.

1. Recitals must be certain to work an estoppel. Farrar v. Cooper, 34 Me. 394; Noble v. Cope, 50 Pa. St. 17; Muhlenberg v. Druckenmiller, 103 Pa. St. 631; Kepp v. Wiggett, 10 C. B. 35.

A recital that the grantor is legally or equitably seized creates no estoppel. Right v. Bucknell, 2 B. & Ad. 278.

A recital excepting lands from the conveyance must be as definite and descriptive as the description required by law in a deed of conveyance. McDonald v. Lusk, 9 Lea (Tenn.), 654.

A recital of the existence of a mill-site does not estop a grantee to dispute its occupancy. Farrar v. Cooper, 34 Me. 394.

An indefinite recital in a replevin bond as to the amount of property replevied does not prevent a surety from showing what property was in fact replevied. Miller . Moses, 56 Me. 128; State v. Menert, 2 Mo. App. 295.

An obligor may plead a set-off, although he has given a bond to secure the payment of the cause of action, not reserving the right of set-off. Van Sandt v. Dowe, 63 Iowa 594; s. c., 50 Am. Rep. 759.

But a recital in general terms may create an estoppel if the intention is clear. Southeastern Ry. v. Warton, 6 Hurl. & N. 520.

2. Either as to the amount received or the character of the consideration. Mobile, etc., Ry. v. Wilkinson, 72 Ala. 286; Irvine v. McKeon, 23 Cal. 472; Coles v. Soulsby, 21 Cal. 47; Wilkinson v. Scott, 17 Mass 249; Shephard v. Little, 14 Johns. (N. Y.) 210; McCrae v. Purmost, 16 Wend. (N. Y.) 460; Barter v. Greenleaf, 65 Me. 405.

But it is said that the consideration cannot be denied to establish a resulting trust. Mobile, etc., Ry. v. Wilkinson, 72 Ala. 286.

But a recital of the receipt of the consideration is binding as against_innocent purchasers from the vendee. Turner v. Flinn, 72 Ala. 632; Levering . Shockey, 100 Ind. 558; Chapman. Miller, 130 Mass. 289; McMullin . Glass, 27 Pa. St. 151; Waters's Appeal, 35 Pa. St. 523; s. c., 78 Am. Dec. 354.

A description of the land as so many

acres is not conclusive. Frank v. Coltraine, 61 Miss. 606.

Fraud. The grantor in a deed is estopped to say that the deed was in fraud of his creditors, and without consideration. Dobbins v. Cruger, 108 Ill. 188.

1. At the old common law, the feoffment, the fine, the common recovery, and the lease passed after acquired estates. Big. on Estop. (4 ed.) 377

2. What Covenants create this Estoppel. Covenants of general warranty estop the grantor to claim an after-acquired estate. A covenant for quiet enjoyment is as effective as words of conveyance. Smith v. Williams, 44 Mich. 240; Long Is. Rd. v. Conklin, 29 N. Y. 572. See cases cited in the following note.

Covenants for further assurance estop the grantor to set up an after-acquired title. Bennett v. Waller, 23 Ill. 183, Pierce v. Milwaukee, etc., Rd., 24 Wis. 553. See also. Hope v. Stone, 10 Minn. 141; Chauvin v. Wagner, 18 Mo. 531.

Covenants of good right to convey, and for quiet enjoyment, create this estoppel. Wightman v. Reynolds, 24 Miss. 675; Foss v. Strachin, 42 N. H. 40; Trust and Loan Co. v. Ruttan, 1 Duval (Kan.) 564; Irvine v. Irvine, 9 Wall. (U. S.) 618.

In Maine, covenants of non-claim work no estoppel as to after-acquired interests. Pike v. Galvin, 29 Me. 185; Sweetser v. Lowell, 33 Me. 452. Compare Trull v. Eastman, 3 Met. (Mass.) 121; Rawle on Cov. for Title (5th ed.), sec. 253.

The statutory covenants implied from the words "grant, bargain, and sell," create this estoppel. D'Wolf v. Haydn, 24 Ill. 525; Pratt v. Pratt, 96 Ill. 184. Compare Chauvin v. Wagner, 18 Mo. 531; Butcher v. Rogers, 60 Mo. 138.

A covenant " "that if, at any time hereafter, I shall acquire any further or additional title to the said lot of land, the same shall ensue to [grantees] in proportion to the interests hereby conveyed," passed the after acquired title against a subsequent purchaser. Phelps. Kellogg, 19 Ill. 132

Limitations. Where the covenant has been extinguished, the doctrine does not apply. Goodel v. Bennett, 22 Wis. 565.

So, where a covenant for seisin is satisfied by the transfer of an actual, though tortious, seisin, no estoppel is created. Allen Sayward, 5 Greenl. (Me.) 231; Doane v. Willcutt, 5 Gray (Mass.), 333

Covenants of general warranty do not

preclude a husband from claiming a statutory homestead, existing at the time the deed was executed. Silloway v. Brown, 12 Allen (Mass.), 30; Doyle v. Coburn, 6 Allen (Mass.), 71.

Covenants of warranty do not estop the grantor from subsequently erecting a milldam below the land granted, and thereby flowing it under the mill statutes. Dean v. Colt, 99 Mass. 486.

So a covenant against claims from a certain source does not estop the grantor to set up a title obtained from a different source. Quivey v. Baker, 37 Cal. 471; Lamb v. Kamm, 1 Sawy. (U. S.) 238. See . also Comstock v. Smith, 13 Pick. (Mass.) 116.

A grantor will not be estopped to assert a title subsequently acquired by himself by disseisin of his grantee and adverse possession for the period of the statute of limitations. Stearns. Hendersass, 9 Cush (Mass.) 497; Tilton v. Emery, 17 N. H. 536; Sherman v. Kane, 46 Ñ. Y. Super. Ct. 310; Eddleman v. Carpenter, 7 Jones L. (Ň. Car.) 437; Smith v. Monter, 11 Tex. 24.

Married Women. Where a married woman joins in a deed of the husband's land merely to bar her dower, a title subsequently acquired by her will not enure to the benefit of the grantee. Strawn v. Strawn, 50 Ill. 33: Schaffner v. Grutzmacher, 6 Iowa, 137; O'Neil z. Vanderburg, 25 Iowa, 104; Raymond v. Holden, 2 Cush. (Mass.) 270; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.

Of course, a wife is not estopped by her husband's covenants to set up a title subsequently acquired. Thompson v. Merrill, 58 Iowa, 419.

In some States her covenants in a deed of her own land will not estop her to set up an after-acquired title. Gonzales 7'. Hukil, 49 Ala. 260; s. c., 20 Am. Rep. 282; Schumaker v. Johnson, 36 Ind. 33; Thomp. son v. Merrill, 58 Iowa, 419; Nunnally 2. White, 3 Met. (Ky.) 593; Hempstead . Easton, 33 Mo. 142; Wadleigh . Gliner, 6 N. H. 18; Hopper v. Demarest, 1 Zabr. (N. J.) 541; Grout . Townsend, 2 Hill (N. Y.), 557; Edwards v. Davenport, 4 McCrary (U. S.) 34. See also statutes to same effect in Delaware, Illinois, Indiana, Michigan, Missouri, Oregon and Virginia; Rawle on Cov. for Tit. (5th ed.) sec. 251 n. Compare Doane v. Willcutt, 5 Gray (Mass.), 332; Hill . West, 8 Ohio, 226; Powell z. Monson, etc., Co., 3 Mason (U. S.), 347.