effect; showing that courts of equity act upon the same principle, in cases not within the letter of the act, and which remarks are approved by our supreme court, in Humbert v. Trinity Church, (24 Wend. 607.)

3. Of title by occupancy, very little need be said, as it has ceased to exist in this state.

At common law, this right to real property extended only to a single case, namely, where a man was tenant pur auter vie, or had an estate granted to himself only, without naming his heirs, for the life of another man, and died during the life of cestui que vie, or him by whose life it was holden; in this case, he that could first enter on the land might lawfully retain the possession so long as cestui que vie held by right of occupancy. (Co. Litt. 41b.) It was not applicable to things lying in grant, or incorporeal hereditaments, for of them there could be no occupant. It was an incident of real estate only, and it is the only instance, says Blackstone, in which a title to real estate could be acquired by occupancy.

But this estate, even in England, is reduced to almost nothing by force of two statutes, namely, that of 29 Charles 2, ch. 3, and 14 George 2, ch. 10. By the first of which, an estate pur auter vie is devisable by will, and if not devised, was chargeable in the hands of the heir, if he came to it by special occupancy, as assets by descent; and by the other, that the surplus, after paying debts, should be distributed in a course of administration.

In this state, by the laws of 1813, it was enacted that estates pur auter vie were devisable by will, duly executed, and if not so devised, should go to the executors or administrators of the party who had the estate to be applied and distributed as part of the personal estate. (1 R. L. 365, § 4.) The revised statutes contain the same provision so framed as to exclude the title by occupancy altogether. They enact that an estate during the life of a third person, whether limited to the heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real. (1 R. S. 722, § 6.) And in another statute, the executors or administrators of the tenant for life are required to insert in the inventory of the testator or intestate, as part of the assets, all estates held by him for the life of another. (2 R. S. 82, § 6.)

Tenant for his own life, or for that of another person, is a freeholder during his life, and while conveyance by fine was a common

assurance in this state, he might levy a fine which would bind the remainderman and other strangers. Such a fine, it was held, devested and displaced the reversion or remainder, leaving only a right of entry in the reversioner or remainderman. (Roseboom v. Van Vechten, 5 Den. 424.)

But this mode of assurance is now abolished in this state. (2 R.S. 343, § 24.) And it is now declared that no greater estate or interest shall be construed to pass by any grant or conveyance, thereafter executed, than the grantor possessed at the delivery of the deed, or could then lawfully convey, except that every grant should be conclusive against the grantor and his heirs claiming from him by descent. (1 R. S. 739, § 143.)

SECTION III.

Of Title by Election and by Estoppel.

The doctrine of election and estoppel sometimes becomes material in considering the title to real property. The first more frequently arises in equity than at law, and is founded upon the principle that where a person claims under an instrument he must give effect to that instrument in full. He cannot put himself in a capacity to take under an instrument without performing the conditions of it, expressed or implied. Election, says the chancellor in Broome v. Monck, (10 Ves. 609,) is when the testator gives what does not belong to him, but does belong to another person, and gives that person some estate of his own; by virtue of which gift a condition is implied, either that he shall part with his own estate, or shall not take the bounty.

The case of Smith v. Wyckoff, (11 Paige, 49, 57,) is an illustration of this same doctrine. In that case the chancellor held that the devisee who takes a farm under the provisions of a will must give effect to it. As the testator had specifically charged certain notes upon the farm, it was held that the devisee of the same farm could not raise the question whether or not the notes were given for debts which the devisee was bound in justice and equity to pay. For, said the chancellor, if he claims under the will, he must take it subject to the payment of such debts as the testator thinks proper to charge him with, as a condition of such devise.

Estoppel is a mode of preserving, rather than of acquiring, property, inasmuch as a person is concluded by his own act from disputing the title of another. Estoppel is defined to be a conclusion, because a man's own act or acceptance stops or closes up his mouth to allege or plead the truth. (Co. Litt. 352 a.)

There is an analogy between the doctrine of election and the doctrine of estoppel, and some of the cases are used indiscriminately, to support or illustrate both. The doctrine of estoppel is more frequently applied to the law of pleading than to that of estates. But it is also connected with the title to real property. We shall therefore briefly notice it in this place.

Estoppels are of three kinds, namely, by matter of record, by matter in writing, and by matter in pais.

1. By matter of record, as by letters patent, verdict and judgment in a former suit. The general principle of law is that a decision of a court of competent jurisdiction is conclusive and binding on all courts of concurrent jurisdiction. (Simpson v. Hart, 1 John. Ch. 91.) Or as it is elsewhere expressed, the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea in bar, or evidence conclusive between the same parties, upon the same matter directly in question in another court. (Gardner v. Buckbee, 3 Cowen, 120. Burt v. Sternberg, 4 id. 559.) It is final not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided. But to be a good bar, it must have been between the same parties, and for the same subject matter; and contingent remaindermen in esse are not bound by the decree, if they were not parties to the suit, though the owners of the particular estate were parties. (Bruen v. Hone, 2 Barb. 586. Vail v. Vail, 7 id. 226.)

sue.

To make a record in a former suit conclusive evidence on any point, it should appear from the record that such point was in isOther evidence cannot be received to show that a particular matter not in issue on the record came in question, or was taken into consideration by the jury. This rule, it will be seen hereafter, admits of qualification, in the case of general pleadings. Indeed, the verdict and judgment are not evidence, unless it be on the same point and between the same parties. (Manny v. Harris, 2 John. 24. Maybee v. Avery, 18 id. 352.)

But the same point may be said to arise collaterally as well as directly. In Kingsland v. Spalding, (3 Barb. Ch. 343,) the chan

cellor said that the rule on this subject is, that a decree, sentence or judgment, of a court of competent jurisdiction, is conclusive upon the parties, in any future litigation of the same question between the parties to such decree, sentence or judgment, or those claiming under them; whether the question arises directly or collaterally in such subsequent litigation; provided the question is brought before the court in the proper form. When, says the chancellor, the former decision of the same matter can be set up in pleading as an estoppel, the party who wishes to avail himself of it must plead it in bar of the future litigation of the same matter. But in those cases where the forms of proceeding do not allow of special pleading, it may be given in evidence; and is conclusive upon the parties, the court and jury. (Wright v. Butler, 6 Wend. 284. Young v. Black, 7 Cranch, 565.)

It seems, however, to be well settled, that the former judgment is not conclusive except upon the matters directly in question in the former suit; but is not evidence of matter incidentally cognizable, or to be inferred only by argument or construction from the judgment. In Wood v. Jackson, (8 Wend. 9,) the chancellor said that the former verdict, in order to operate as an estoppel, must be pleaded; and that when it is not pleaded, but merely relied on as evidence, it is not conclusive, but only prima facie evidence, which may be repelled by the party against whom it is urged. In the same case it seems to have been settled, that if it does not appear from the record that the verdict and judgment in the former suit were directly upon the point or matters which are attempted to be again litigated in the second action, the fact may be shown aliunde, provided the pleadings in the first suit were such as to justify the evidence of those matters, and that it also appeared that when approved, the verdict or judgment must necessarily have involved their consideration and determination by the jury. (Lawrence v. Hunt, 10 Wend. 84, per Nelson, J.)

The reversal of a judgment destroys its efficacy as an estoppel as between the parties to it. (Wood v. Jackson, supra.) But an estoppel by record cannot be countervailed by argument, however conclusive. (Mersereau v. Pearsall, 5 Smith, 108.)

2. Estoppels by matter in writing arise under wills in some cases, but more frequently under deeds. 1. Under wills it has been held that an heir cannot take under and in hostility to the will. If he claim under the will, he must give effect to it so far as in his power.

(Hawley v. James, 16 Wend. 61.) A party claiming through deeds which recite a will is estopped from denying its validity and genuineness. (Jackson v. Thompson, 6 Cowen, 178.)

So, it was held in Jackson v. Ireland, (3 Wend. 99,) that by accepting a grant confirmatory of a will devising him a remainder, the grantee was estopped from setting up any title inconsistent with the will. And in another case, it was held that a recital in a will that a 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. (Smith v. Wait, 4 Barb. 28.)

But this doctrine of estoppel is confined within some reasonable bounds. A party is not estopped by his admission or assertion of a conclusion of law upon undisputed facts. Thus, where there had been a partition of real estate among devisees by action, and occupying under it, claiming as owners in fee, it was held that no estoppel was created, as against one of the devisees in favor of his judgment creditor, who purchased the share of such devisee, at a sale under his own execution, so as to prevent such devisee from showing, in order to defeat such purchaser's action of ejectment, that by the devise the legal estate was vested in the executors and not in the devisees, at the time of the docketing of such judgment, and, therefore, that such judgment was not a lien on the share of such devisee, and the purchaser acquired no right or title by his purchase at said sale. (Brewster v. Striker, 2 Comst. 19.)

2. Estoppels under deeds are more frequent than under wills. The general rule appears to be well settled, that recitals in a deed estop parties and privies. (Jackson v. Parkhurst, 9 Wend. 209. Chautauque Co. Bank v. Risley, 4 Denio, 480.) The grantor is estopped by a recital in his deed. (Dennison v. Ely, 1 Barb. 610.)

But a mere general recital cannot control the plain words of the granting part of a deed. Thus, where a deed of assignment by a debtor in trust for his 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 benefit 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 surplus to be 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 proportion to their demands, out of the proceeds of the property assigned. (Hun