Foss v. Strachn , 42 N.H. 40 ( 1860 )

Fowler, J.^*

The demurrer was properly sustained by the court below. Although the right of homestead was not extinguished by the deed of the defendant (Gunnison v. Twichel, 88 N. H. 62), the defendant is estopped by his deed from claiming any thing in the demanded premises.

A party who has executed a deed, is thereby estopped from denying not only the deed itself, but every fact it recites and every covenant it contains. The defendant, by his deed, among other things, covenanted that he had good right and lawful authority to convey the demanded premises to the plaintiff; he is, therefore, estopped to deny his title to those premises, as well as his grant thereof to the plaintiff'. Stow v. Wyse, 7 Conn. 214; Wilkinson v. Scott, 17 Mass. 249, 257; Kimball v. Blaisdell, 5 N. H. 533; Thorndike v. Norris, 24 N. H. 454; Wark v. Willard, 13 N. H. 389; Brown v. Manter, 21 N. H. 528; Jewell v. Porter, 31 N. H. 34; Johnson v. Goss, decided in Merrimack Adjourned Term, August, 1859, but not reported. The grantor, in a deed with general warranty acknowledging a consideration paid, is estopped thereby from showing a want of title in himself. Eveleth v. Crouch, 15 Mass. 307. A mortgagor is estopped from denying that he had title at the time of executing the same; nor can he set up title in a stranger. Barber v. Harris, 15 Wend. 615. In a court of law or equity, a party can not controvert the legal effect of his deed of record, and a grantor is estopped to deny the title of his grantee. Pennel v. Weyant, 2 Harr. 501; Currier v. Earl, 1 Shep. 216; White v. Patten, 24 Pick. 324; Blake v. Tucker, 12 Vt. 39.

But aside from the estoppel of the defendant by his own deed of the demanded premises, the right in the land which his plea sets up as existing in his minor children, and which is personal to them, even if pleaded by them, would be no bar to a writ of entry. The right of homestead, before the same has been set out and assigned, is not such an estate in land — such a subsisting legal title or interest — as will bar a writ of entry, but only an inchoate right, personal to the parties in whom it exists, and whose existence is no legal bar to such an action. Its existence in a particular individual gives him no controlling title to the land, as against the general owner, any more than the existence of a possible right of dower in a wife before the death of her husband gives her such title. Gunnison v. Twichel, 38 N. H. 62; Goss v. Johnson, Merrimack Adjourned Term, 1859, not reported.

If, then, the defendant were not estopped by his deed to set up title to the demanded premises in third persons, the existence of such a homestead right as is set forth in the plea, even if it could be made in any way available to minor children in the lifetime of their father, notwithstanding his conveyance of the premises with covenants of -warranty, would constitute no bar to the maintenance of the plaintiff’s action, since it would give them no valid title in those premises. Dunbar v. Mitchell, 12 Mass. 373.

The exceptions taken to the ruling of the court sustaining the demurrer, must, therefore, be overruled, and there must be j udgment for the plaintiff on the demurrer.

Exceptions overruled.

* Doe, J., did not sit.