Coe v. Talcott , 5 Day 88 ( 1811 )

Trumbull, J.

John Talcotl died seised in fee of the land novt' owned by the plaintiff, and also of another piece of land adjoining, through which run a small brook of water. His personal estate proved insufficient to pay all his debts. llezekiah Talcotl, one of his sons and heirs, took administration, and obtained from the General Assembly a power to sell so much of the real estate of said John, as would pay and satisfy the deficiency. In pursuance of that power, he sold to James Arnold in fee, by deed of bargain and sale, the land now owned by the plaintiff, together with a liberty of plowing or digging in said other piece of land, and thereby turning into said Arnold’s land one half of said brook; and for himself, his heirs, &c. covenanted with the said Arnold, his heirs and assigns, that he had good right so to bargain and sell the premises, and that the same were free from all incumbrances whatever.

In the settlement of the estate, the said other piece of land was distributed and set off to said Hcsekiah, as' one of the heirs of said deceased. Hcsekiah afterwards conveyed it to David Talcotl in fee, without any reservation in the deed of the privilege in said brook to Arnold, and his assigns. The title acquired by Arnold, ia legally vested ia the plaintiff, a ad ilio title oi David in tin* defendant.

On iiie trial of the cause, the court instructed and charged the jury, that the defendant was estopped to deny the right of Hesekiah to convey the said special privilege, in the man-nerset up in said deed. .. ..

The plaintiff obtained a verdict and judgment. The defendant now moves for a new trial, on the ground, that said charge is erroneous.

Hesekiah Talcolt, at the time when he executed the deed to Arnold, had not a right to grant this privilege. A power given to sell lands, carries with it no authority to carve out a privilege, or create an easement, upon any lands not sold by the trustee. The deed did not, of itself, convey the privilege ; it only gave to Arnold a rigid, of action against llcsc-kiah and his heirs, on the warranty.

A trustee acting within his powers, does not render himself liable on his contracts and conveyances ; but whenever he exceeds his powers, and undertakes to transfer and convey without authority, he becomes personally answerable to the grantee on his covenants. The land now owned by the defendant, in which this privilege of digging a channel and drawing off one half of the brook, is granted and warranted, by the deed, was afterwards distributed in fee to said Hesekiah, the grantor, towards his proportion, as one of the heirs of the estate of said John Talcolt, deceased.

By the clearest principles of law, from the moment that he became vested, in this manner, with the title of this land in fee, Hesekiah and his heirs were forever estopp'ed from denying his right to grant and convey the said privilege, in manner and form, as contained in said deed to Arnold. But a question is made, whether the defendant, who claims as purchaser of David’s title, and privy in estate only, is estop-ped also, by reason of the estoppel of David and Ms heirs, under whom he claims ? I think it is equally clear, that he is estopped ; that this estoppel runs with the land ; and that he can claim no other or better title, or more beneficial interest, than what his grantor had in the land ; and by copse quence, he had power to convey.

in Sir IV. Jones’ Rip. ¡99, it is holden, “ tliat estoppels ns fait. and !>y record by fine or recovery, shall bind not only the party to the estoppel, but also all privies who claim under him.” In Trevivan v. Lawrence & al. 6 Mod. Rep. 256. Holt, C. J. in delivering the opinion of the court, lay* down the principle, “ that if a man make a lease,by indenture, of land which is not his, and after purchase it, the lease shall hind him, his heirs and assigns, and an estoppel that affects the interest of the land, shall run with it, to whosoever takes it.” The same case is also reported in 2 Ld. Raym.i036, and 1048. and in 1 Salk. 276. and the same principles agreed to, by the whole court. The authority of these cases is admitted in the case of Goodtitle v. Morse, 3 Term Rep. 365. In that case, the estoppel claimed was not created by deed or warranty, but by surrender of a copyhold estate by an heir at law, in the life time of his ancestor. And although Lord Kenyon expressed some doubt, what the case would be with respect to freehold estates, and thought that all the cases relative to estoppels were not easily to be reconciled, his doubts arose merely from the rule in Litt. s. 446. p. 265. that a bare release of ail right, by the heir in the life time of the ancestor, creates no estoppel, because the heir had no right at the time of the release ; and from the comment on it by Coke, who notes a diversity between a release1, a feoffment and a warranty, as to their effect in creating a bar or an estoppel. None of these doubts affect the present question.

Lord Coke, in his commentary on Littleton, s. 667. p. 352. lays down the rule, that “ Privies in blood, as the heir ; pri\ irs in estate, as the feoffe, lessee, &c. ; privies in law, as the lords by escheat; tenant by curtesy ; tenant in -dower ; the incumbent of a benefice; and others that come under by act in law, or in the post, shall be bound, and take advantage of estoppels.” I hold this rule to be good law, and conclusive in the present case.

1 ant therefore of opinion, that the charge to the jury was right, and that no new trial ought to be advised.

The other Judges severally concurred in this opinion.

New trial not to be granted.