McCusker v. McEvey

This is an action of trespass and ejectment, in which the plaintiff and defendant both derive title, through intermediate grantees, from one George Weeden. In May, 1845, Weeden, having then no title, conveyed the land in dispute to the plaintiff's predecessor, and afterwards, in November, 1845, acquired title to the same. In 1847, he conveyed to the predecessor of the defendant. The conveyances through which the plaintiff claims contain full covenants of title and warranty, and all the deeds on both sides were recorded in the order of their respective dates.

The plaintiff contends that the title acquired by Weeden in November, 1845, enured to the benefit of the prior grantee and his assigns, and entitles him to recover of the defendant.

At common law, where a person having no title, conveyed by feoffment, fine, recovery, or lease by indenture, and afterwards acquired title, it was held that the after-acquired title would feed the estoppel created by the conveyance, and convert the same to an interest in the grantee, so as to conclude the grantor and all persons claiming under him. In this country, where the common law modes of conveyance have never prevailed to any considerable extent, the same rule has been applied to conveyances with warranty under the statute of uses, the warranty being deemed to have the same efficacy, by way of estoppel, as a feoffment, fine, recovery, or lease by indenture. The American cases are very fully collected in 2 Smith's Lead. Cas. (6th ed.) 723, et seq., and in the ninth chapter of Rawle on Covenants. The doctrine of these cases, or of the major part of them, however, has been impugned by the American annotator of Smith's Leading Cases, and by Mr. Rawle, as based on a misconception of the English-authorities and as erroneous in principle, — the warranty being, in their view, effectual only by way of estoppel or rebutter against the warrantor and his heirs, but inoperative on the after-acquired estate, — and also, as inconsistent, where applied to the prejudice of a bona fide purchaser for value without notice, with the spirit and purpose of the recording acts of the several states. The argument in support of these views is certainly very strong, if not theoretically unanswerable; but the doctrine impugned has been so often and so fully recognized in the courts, and repeated in the text-books, that we feel bound, out of regard for the security of titles, to follow the precedents. The argument derived from the recording acts was particularly urged in White v. Patten, 24 Pick. 324, and inJarvis v. Aikens, 25 Vt. 635, and in both cases disregarded; and it may be remarked that the doctrine, however much it may be at variance with the spirit, does not violate the letter of the recording acts. And see Baxter v. Bradbury, 20 Maine, 260;Mack v. Willard, 13 N.H. 389; Dudley v. Caldwell,19 Conn. 218, 226; Mickles v. Townsend, 18 N.Y. 575; 428;Somes v. Skinner, 3 Pick. 52; The Bank of Utica v.Mersereau, 3 Barb. Ch. 528; Greenl. Cruise, vol. iv. p. 460, note; Kent, vol. iv. p. 98 (side page) and notes. We think the rule, notwithstanding some adverse and some doubting decisions, has been too uniformly recognized by the American courts to be now repudiated or modified without the authority of a statute, and we are free to say, we think a statute is called for in view of this state of the law, in order to carry into full effect the policy of our recording act, and to prevent its operating, in cases of this kind, as a snare rather than as a protection to purchasers.

This view of the law furnishes an answer to the defendant's first point, to wit.: that the plaintiff can recover only on the strength of his own title, not on the weakness of his adversary's. Trevivan v. Lawrence, 1 Salk. 276; Palmer v.Ekins, 2 Ld. Raym. 1550, 1554.

The defendant contends that the plaintiff, by admitting in the agreed statement that Weeden had no title when he conveyed to the plaintiff's predecessor, has lost his right to insist upon the estoppel.

Comyn says: " A man shall not be estopped when the truth appears by the same record." Com. Dig. Estoppel, E. 2. And again, " If the jury find the truth of the fact, the court will give judgment accordingly without regard to the estoppel," Com. Dig. Estoppel, E. 10. In Wheelock v. Henshaw, 19 Pick. 341, 345, the court, citing Comyn, says: " The same principle applies where the parties agree to submit a case to the decision of the court upon certain facts agreed; " and refused, in that case, to allow the plaintiff the benefit of an estoppel against his own admission of the truth. The rule, however, is not without its qualifications; and Comyn says, " Where an estoppel binds the estate and converts it to an interest, the court will adjudge accordingly; as if A. leases land to B. for six years, in which he has nothing, and then purchases a lease of the same for twenty-one years, and afterwards leases to C. for ten years, and all this is found by verdict, the court will adjudge the lease to B. good, though it was so only by conclusion." And so, also, the law is expressly decided in Rawlyn's case, 4 Co. 52; and inWeale v. Lower, Pol. 54, which latter case overrules Iseham v. Morrice, Cro. Car. 109, in which a different view obtained. In Weale v. Lower, in answer to this objection made on the authority of Iseham v. Morrice, it was said, "that the law is so in cases of obligations, covenants, or personal contracts, which cannot be turned into an estate, but in other cases where the estate is bound by the conclusion and converted into an interest, although the jury find the matter at large, yet the court shall judge according to law that the estate is good by reason of the estoppel." This case, as well as Rawlyn's case, was decided after mature consideration, and is of high authority. And see Webb v. Austen, 8 Scott, N.R. 419; 2 Wms Saunders, 418 c; McLaughland v. Wood, 1 Rol. Abr. 474; and Bacon's Abr. Leases, O. cited in 8 Scott, N.R. 444, 445; Doe v.Oliver, 5 M. R. 202. Indeed, the rule that the estoppel will not avail where the truth appears, would not seem to be so inflexible that it may not be disregarded, even where no estate is subsequently acquired, if justice requires. Outhbertson v.Irving, 4 H. N. 620, 742; 2 Smith's Lead. Cas. (6th ed.) 712.

In Wheelock v. Henshaw, 19 Pick. 341, where the estoppel was disallowed because the facts were admitted, no estate was acquired to feed the estoppel after the making of the deed relied on as creating the same. In the later case of White v.Patten, 24 Pick. 324, which was also tried on an agreed statement disclosing the facts, and apparently without reserve, the court held that if one having no title to land conveys the same with warranty, by a deed which is duly recorded, and afterward acquires a title and conveys to a stranger, the second grantee is estopped to aver that the grantor was not seized at the time of his conveyance to the first grantee, thus giving effect to the estoppel notwithstanding the admission.

We think if an estoppel by warranty is to have any effect at law beyond the warrantor and his heirs, we ought to follow out the analogies of an estoppel by the common law modes of assurance, and to hold that the title which accrues to the grantee or his assigns, when the estate is subsequently acquired, cannot be prejudiced by any admission of the truth. We know of no case which, while recognizing the estoppel as binding on a second grantee, intimates that in a case of this kind the party setting up the estoppel will lose the benefit thereof by admitting the truth, or not objecting to its being proved. We therefore decide, that the plaintiff's right to insist on the estoppel is not impaired by his admission.

The defendant also contends that the deed from Weeden to the plaintiff, being a deed-poll, does not create an estoppel, because estoppels must be mutual, and a deed-poll will not estop the grantee. The case of Gardner v. Greene, 5 R.I. 104, contains a dictum which is relied on in support of this position; but being in this respect merely obiter dictum, we do not regard it as binding authority. Of all the cases in which an estoppel by warranty has been applied, no one is pointed out in which its applicability was questioned on this ground; and yet we cannot suppose that in all, if even in the greater part of them, the conveyance was by deed indented. The warrantor is equally liable to suit, whether the warranty is contained in a deed-poll or an indenture, and therefore in so far as the estoppel is applied to avoid circuity of action, the reason for it is the same in either case. We think Mr. Hare presents the correct view in his note to Doe v. Olivier, 2 Smith Lead. Cas. (6th ed.) 713. He says: " Whether an estoppel shall conclude both parties or be limited to one, depends upon the intention as collected from the whole deed. There is no rule of law which prevents a man binding himself, while leaving others free."

We do not find, among the objections which are made to the plaintiff's claim, any sufficient reason to prevent the recovery. We give judgment for the plaintiff.

POTTER, J. dissented.