tington v. Havens, 5 John. Ch. 23.) The general recital here was of an intention which was inconsistent with the plain language of the instrument, and could not control the latter.

But a recital in a deed of a particular fact may estop the party. (Id.) Thus a recital in a patent of a prior patent, being a recital of a particular fact directly affirmed, estops one claiming under it from denying the existence of such prior patent. (Jackson v. Wilson, 9 John. 92.) So also, the recital of a lease in a deed of release is conclusive upon parties in privity of estate. (Carver v. Jackson, 4 Peters, 1. This comes within the general nature of estoppel as laid down by Lord Coke. (Co. Litt. 352 b.)

There was a time for many years when it was held in this state that the grantee of the husband could not deny the seisin of the latter so as to defeat the claim of dower interposed by his widow in an action against her husband's grantee. (Hitchcock v. Harrington, 6 John. 290. Same v. Carpenter, 9 id. 344. Collins v. Torry, 7 id. 278, 282. Davis v. Darrow, 12 Wend. 65.) The soundness of these decisions was strongly questioned by Cowen, J. in Sherwood v. Vandenburgh, (2 Hill, 308,) and by Bronson, J. in Osterhout v. Shoemaker, (3 id. 518,) and it was shown pretty clearly that the doctrine of estoppel had been misapplied in that and other kindred cases. It was shown that there was no mutuality between the grantee of the husband and the widow of the latter, that should estop the former from denying the seisin of the husband of such an estate as to entitle his widow to be endowed. But the supreme court felt themselves bound by the prior adjudications, and not at liberty to depart from them. At length the question came before the court of appeals in 1848, in the case of Sparrow v. Kingsman, (1 Comst. 242,) when the whole subject was fully and carefully considered by the whole court, and the doctrine of those cases was repudiated. In that case, it is true, the grantee held by quit-claim deed from the husband, and it was adjudged that he was not estopped by the grant from showing in an action of dower by the widow, that the grantor had not such an estate in the land as to entitle his widow to dower. The fact that the grantee held by quit-claim deed from the husband, does not seem to be important. For if he held under a warranty deed, he is under no obligation to surrender the land to the grantor or the widow. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.

As between landlord and tenant the general principle is that the latter cannot controvert the title of the former, under whom he holds, and which he has recognized. (Ingraham v. Baldwin, 12 Barb. 9; S. C. affirmed on appeal, 5 Seld. 45.) But this estoppel is not without its limitation. After the expiration of the lease, the lessee is no longer estopped by it to assert any right which he may have, though it be of such a character that he could not do so while the relation of landlord and tenant continued. (Child v. Chappel, 5 Seld. 246. Jackson v. Rowland, 6 Wend. 607.) 3. Estoppels in pais. An admission by the defendant intended to influence the conduct of the man with whom he is dealing, and actually leading him into a line of conduct which must be prejudicial to his interest, unless the defendant be cut off from the power of retraction, is the very definition of an estoppel in pais. (Per Cowen, J. in Dezell v. Odell, 3 Hill, 215.) But a man can be estopped from denying only what he has once admitted. (Despard v. Walbridge, 1 Smith, 377, per Selden, J.)

An estoppel in pais is to be resorted to solely as a measure to prevent injustice-always as a shield but never as a sword. (Pierrepont v. Barnard, 5 Barb. 364.)

Estoppels in pais are not pleaded, but are in general given in evidence, and will prima facie operate as effectually to estop the party under the direction of the court. (Welland Canal v. Hathaway, 8 Wend. 480. Reed v. Pratt, 2 Hill, 64. People v. Bristol and Rensselaer Turnpike Co. 23 Wend. 222.)

This species of estoppel is sometimes connected with the title to real property. If a person having a conveyance of land, looks on and suffers another to purchase and expend money on the land without making known his claim, he will not be permitted afterwards to assert his legal title against an innocent purchaser. (Wendell v. Van Rensselaer, 1 John. Ch. 344. Town v. Needham, 3 Paige, 545.) So, if having the legal title, he acquiesces in the sale of the land by another, claiming or having color of title to it, he is estopped from afterwards asserting his title against the purchaser; especially if he has advised and encouraged the parties to the sale to deal with each other. (Storrs v. Baker, 6 John. Ch. 166.)

The abrogation of the doctrine which formerly prevailed with respect to remedies, preserving a distinction between such as are to be asserted at law and such as can be enforced only in equity, and blending the whole in one form of proceeding by the same court,

necessarily leads to a modification of some of the doctrines which we find in the cases decided prior to the constitution of 1846. What was said by the learned judge in Levick v. Sears, (1 Hill, 17,) that a person who stands by, and not only sees another buy, but advises him to do so, without disclosing the title which he afterwards sets up, is not estopped from asserting such title at law, cannot be upheld at the present day. If equity would not have permitted him formerly, under such circumstances, to assert his legal title, as it clearly would not, the same defense can now be interposed in a court having jurisdiction in law and equity, and administering, it may be, both remedies together.

Enough has been said to illustrate the principles applicable to this class of cases. It remains to be added that every estoppel ought to be reciprocal, that is, to bind both parties. It is for this reason that a stranger can take no advantage of estoppels, and is not bound by them. Estoppels bind only the parties to them, and privies. Of these there are three kinds: privies in blood, as the heir; privies in estate, as the feoffee, lessee, &c.; and privies in law, as the lord by escheat; tenant by the curtesy, tenant in dower, &c., who come under act of law, or in the post. (Co. Litt. 352 b. Lansing v. Montgomery, 2 John. 382.)

Again, every estoppel, because it concludes a man to allege the truth, must be certain to every intent, and not be taken by argument or inference. (Co. Litt. 352 b.)

No instrument in writing not under seal can be pleaded as an estoppel. The form of pleading an estoppel, is to rely on the deed as an estoppel, and pray judgment that the party be estopped, or not admitted to deny the facts which the deed purports, without demanding judgment, si actio, &c. (Davis v. Tyler, 18 John. 492.)

SECTION IV.

Of Title by Alienation.

The last mode of acquiring and losing property, which we shall notice, is alienation. This is the most usual mode of exercising dominion over it; and it comprises every method whereby estates are voluntarily resigned by one person, and accepted by another. It embraces, also, such transfers of property as may be made by order of the appropriate tribunal, or under judgment and execution, against the owner.

WILL.-24

In this state, especially since the abolition of entails, there has never been any restriction upon the power of alienation. The owner, having the jus disponendi, as incident of his dominion, has been permitted to transfer that ownership to others, at his pleasure.

The statute of quia emptores, 18 Edw. 1, which established in England the free right of alienation by the sub-vassal without the consent of his lord, was brought by our ancestors to the colony of New York, and became a part of its law and of the law of the state, independent of the statute of tenures enacted in 1787, which we have already noticed. (Van Rensselaer v. Hays, 19 N. Y. R. 68.) The owner, on parting with the fee, and retaining no reversion or possibility of reversion therein, could not at any time annex any condition to his conveyance, that would prevent his alienee from the disposition of the property. It was only where he retained some reversion in himself that he could annex a condition in restraint of alienation. (De Peyster v. Michael, 2 Seld. 467.)

It does not fall within the scope of this treatise to give a historical sketch of the law of alienation, as it has existed in England at various times, or as it exists in that country at this time.

In a former chapter (Part 1, ch. 1, § 11,) we treated, to a certain extent, of the persons capable of holding and conveying land. It may be added, that in general, all persons capable of holding real estate, may freely alienate the same, unless he is under some disability; such as idiocy, lunacy, infancy, or coverture. With respect to persons under disability at common law, to deal with their estates, we shall see, in its proper place, that wise and provident provisions are made by the statutes of the state, by which the real property of such persons may be sold or incumbered.

The only restriction which exists against the sale and purchase of real property is our statute, which declares void every grant of land, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. (1 R. S. 739, § 147.) But this provision does not prevent the person having a just title to lands, of which there shall be an adverse possession, from executing a mortgage on such lands. And such mortgage, if duly recorded, binds the lands from the time the possession thereof shall be obtained, by the mortgagor or his representatives. The mortgage has preference over any judgment or other instrument, subsequent to the recording thereof; and if there are several mortgages, they have preference

severally according to the time of recording the same respectively. (Id. § 148.)

In addition to the provision avoiding the conveyance of lands held adversely, the statute has made it a misdemeanor, punishable by fine and imprisonment, for any officer, judicial or ministerial, or other person, to take a conveyance of any lands or tenements, or of any interest or estate therein, from any person not being in possession thereof, while such lands or tenements shall be the subject of controversy by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands and tenements. (2 R. S. 691, § 5.) This section, it has been held, does not apply where the person in possession does not hold adversely to the grantor; and, therefore, it is not forbidden to take a conveyance from a party in possession of lands, although they be the subject of controversy by suit in court. (Webb v. Bindon, 21 Wend. 98.)

The subsequent section of the same statute goes further, and forbids the buying or selling, or in any manner procuring, or making or taking any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant, shall have been in possession, or he, and those by whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, or have taken the rents and profits thereof for the space of one year before such grant, conveyance, sale, promise or covenant made; and it makes the violation thereof a misdemeanor. But the two last sections do not apply to any mortgage executed by a person not in possession, allowed to be given by the statute before cited, nor to any conveyance of lands and tenements to any person in the lawful possession thereof. (Pepper v. Haight, 20 Barb. 429) Maintenance is no longer an offense here, except as to buying and selling pretended titles, and falsely suing and maintaining suits. (Small v. Mott, 22 Wend. 403, affirming previous case, 20 id. 212.) The party in possession may quiet his title by purchasing in any outstanding claims.

But these statutes against selling pretended titles, or lands held adversely, have no application to judicial sales nor to decrees. (Tuttle v. Jackson, 6 Wend. 213. Truax v. Thorne, 2 Barb. 156. Varick v. Jackson, 2 Wend. 166, affirming 7 Cowen, 238.)

With regard to the kind of conveyances, which are recognized by the law, it may be remarked that some are made by the parties