#### DEN ON THE DEMISE OF WINFIELD S. COPELAND *v.*WARREN SAULS.

An unnaturalized foreigner cannot hold by courtesy such an interest in land as can be sold by a fi fa.

Although, it is true, that where both parties claim title under the same, person, each is estopped from denying that such person had title, yet this rule does not prevail where one of the parties can show a better title in HIMSELF.

(Paul v. Wahl, 4 Dev. R. 247. Love v. Gates, 4 Dev. and Bat. Rep. 303. Nouwood v. Mouuow, Ibid,442,- — cited and approved.)

Ejectment tried before his Honor, Judge Manly, at the .Fall Term, 1853, of Northampton Superior Court.

The land in question, it was .conceded, had been the property of Ann Eliza Bolton. She intermarried with one John MeAuliff, an unnaturalized foreigner, who resided in the county: a deed was exhibited from MeAuliff and wife to Mary Eliza Suter, properly authenticated; Mary E. Suter died, and there was a regular sale by the administrator to pay debts, and a deed from him under an order of the County Court, to the lessor of the plaintiff.

The defendant claimed under a sale of MeAuliff’s interest in this land, by virture of a *fieri facias,*bearing *test*prior to the date of the deed from MeAuliff and wife, to Mary E. Suter.

*71It was insisted by the plaintiff, that' McAuliff, being un-naturalised, could have no interest in the land which could be sold by a *fi fa.*

The defendant contended that the plaintiff, being privy in estate with Mrs. Suter, who had accepted a deed from McAuliff, was estopped to deny his title.

The Court being of opinion, that McAuliff, being an un-naturalised foreigner, could hold no interest in land subject to be sold, and that the' plaintiff was not estopped, so instructed the jury, who returned a verdict for the plaintiff.

Rule for a *venire de novo*for error in the instruction of the Court. Rule discharged and appeal to this Coiu’t.

*Bragg,*for plaintiff.

*Barnes,*for defendant,

argued as follows:

In an action of ejectment, lessor of the plaintiff must recover on the strength of his own title.

The judgment and execution, under which the landlord of defendant claimed, were prior in date to the deed from McAuliff and wife, to Mrs. Suter, and transferred the interest of McAuliff in the land to the defendant’s landlord. It is argued, that McAuliff, being an unnaturalised foreigner, could have no interest in land which was the subject of execution; and it is admitted that it has .been decided (Paul v. Ward, 4 Dev. 247,) that “ an alien cannot take by descent courtesy dower, or other title merely derived from the law.

The lessor of the plaintiff, however, cannot avail himself of this principle of law in the present action. Ho is privy in estate with Mrs. Suter, who accepted of a deed from McAuliff, claims title under that deed, and is therefore estopped from denying that McAuliff had title to the *locus in quo. “*Where both parties claim title under the same person, it is not competent to either, as such claimant, to deny that such person had title.” Ives v. Sawyer, 4 Dev. and Bat. 51. *“*When parties, by deed or solemn act, *in*
      *72
      *pais,*agree on *a*staife of facts, and act oh it, neither shall' ever afterwards be allowed to gainsay a fact so agreed on,- or be heard'to dispute it.” Armfield v. Moore, 1 Busbee 157. Privies in estate are Bound by estoppel. Coke upon Littleton, Butler and Hargrave notes, vol. 2, p. 352. Trevivan v. Lawrence, Smith’s Leading Cases, Law Library, No. 30, page 102 and notes.-

When one accepts of a deed,, it is-an admission that the party making the deed had title to the land conveyed, and while he claims title Under that instrument he cannot bn heard to allege the contrary,. It woiiM be absiu-d in the extreme, to permit a plaintiff in ejectment to offer in evidence a deed from A. and B. to himself, claim title alone through it, and then, in the face of such claim, deny that A., one of the parties thereto, had a shadow of title. It would be a violation of all principle, and would produce the very consequences which the wholesome doctrine of estoppel as applied in our time is intended to prevent.

Battle, J.

The defendant’s counsel admits that it is a W'ell settled principle-, that an alien cannot take land, by descent, courtesy, dower or other title, derived merely from the law. 7 Rep. 25. Paul v. Ward, 4 Dev. 247. Bell, on the property of Hubbard and vdfe, 151 (67 Law Lib. 114.) The defendant did not, therefore, acquire any interest in the land in controversy, by his purchase under the execution against McAuliff. But his counsel contends, that the plaintiff’s lessor claims under the same person, and is, therefore, estopped to deny his title, and that, as the defer.. dant purchased under a *fieri*facia), which bore *teste*prior to the date of the deed from the said McAuliff and wife, to the person under whom-the lessor claimed, the latter could not recover. The doctrine contended for, in the ingenious argument of the counsel, is, to a certain extent, undoubtedly true,*and is well supported by the cases to which he refers, as authority for it. That doctrine is, that as the lessor of *73the plaintiff, in an- action of ejectment, is bound to show -a good title in himself; the defendant' being in posáession, may generally show in his -defence a bettor title than that of the lessor, outstanding in a third person. But, if both parties claim title under the same person, it is not competent. to either, as such claimants, to deny that such person-had title. Murphy v. Barrett, 1 Car. Law. Reports 105. Ives v. Sawyer, 4 Dev. and Battle 51. That rule-must give way, however, when the party can show .a better title in *himself,*a3 is proved by the cases referred to by the plaintiff’s counsel. Love v. Gates, 4 Dev. and Bat. 363. Norwood v. Morrow, Ibid. 442. Brereton v. Evans, Cro. Eliz. 700.

In the present case, the lessor of the plaintiff has shown a perfect title in himself,. for the deed from McAuliff and' wife, to Mary E. Suter, was sufficient to pass the title of the wife, to her; the-same having been acknowledged, and the wife privately examined, as required by law.

It is true, that the execution of the deed by the husband had no effect to pass any interest from him, for the very good reason, that he had none; yet, he was a necessary party to enable his wife to convey her interest. If, then, the lessor, who claimed under Mary E. Suter, had been in possession, he could have defended' himself in an action of ejectment, brought by the present defendant, by showing *title in himself,*and we can see no good reason why that title may not be shown to avail him, in the same kind1 of action, brought by himself.

We have not adverted to the act'of 1848, ch. 41, which prohibits the sale of the husband’s interest, because the plaintiff’s counsel has not relied upon'it, and we think his-right to recover good, without it.

Per Curiaji. The judgment is affirmed.