#### Jackson, *ex dem.*E. Stevens, *against*F. Stevens.

Where a person.tóíanü, conveys afterwai-tis, purchases a title to the same land, from • maintain-mg an action subsequently11 to’the'be-tee abíimeEoni firaation -of bis ■ ' - •

THIS was an action of ejectment for álot of land in the town . pf *Dover,,*in the county .of *Dutchess,*which was tried before"Mr.J. *Vañ Ness,*at *the'Dutchess*circuit, in *AugiCsi,,*1.81-5.- . . / ., : ' , _ . . ‘ • . * , , _ y-\ . yr

Both' parties ultimately derived their title ifcom *Lewis Hunt*'*who lived on the farm in question, until'his-deaths in 1776 or . . *1*.. 7t *: Hunt*left two daughters; his heirs' at law; *Susannah,*who married. *Elkanáh^Bfi§gs}'*and. *Mary$*who married *Samuel, Stevens... Stevens*died about four years- before .the ..trial, and, after his death,- *Mary,*his- " widow, married *Justus, Blanchard.*f0i]Q-wmg deeds were given,in-evidence at the trial: .-

1. A deed,-•'with warranty, dated the 24tb of Hecemiei’,'179.-5, from *El/cánah-Briggs, amASusan,,*his *wife-,'to.-Samuel*Stevens,:-In -fee, for the consideration; of 9,30i. for an undivided half of-the -farm. - This deed Was. not acknowledged by *SusanBriggs:*-until. the 20th of *October,*.1815.. . ,. ■' .. -

- 2*. A deed,, with warranty^ from' *Ebenezer'*Stevens,the lessor of the plaintiff,.' and *Elizabeth,*his wife, to *Justus Blanchard,*in - fee., dated the l5thof *July,*1813, for the consideration ¿f 2,800i' dollars, for an undivided half of the farm. This deed, also, purported to convey “ all the estate, right,, title, interest, claim, -pr demand,, which the said *Ebenezep .Steveris.*had to the premises, either in law or equity, from the last will and testament of *'Somuel Stevens.,-*deceased.’? No will, however, was shown, nor-*317any other evidence of title in the lessor of the plaintiff as derived from *Samuel Stevens. "*■’

3. A deed, -without warranty, from *Blkanah Briggs,*and *Susannah,*his wife, to *Ebenezer Stevens,*the lessor, of the plaintiff, in fee, dated the 4th of *April,*1814,. and acknowledged the same day, for the consideration of 1,000 dollars for all the farm.

*\ 4.*A deed, with warranty, from *Justus Blanchard,*and *Mary,*his wife, to. *Thomas Stevens,*the defendant, in fee, dated, and duly acknowledged, on the 21st of *April,*1815, for the consideration of H',250 dollars, for the whole of the farm*

A verdict was taken for the plaintiff, subject to the opinion of the court on the facts stated. ■ '

*P. Buggies,*for the plaintiff,'

contended, that the conveyance from *E.*Briggs, and *Susannah,*his wife, to the lessor of the plaintiff, vested in him a legal right to an equal-and undivided moiety of the premises-in question ; and that the possession of *Samuel Steveris,*or of those claiming under him,- Could not be adverse, as the deed from *Briggs*and his- wife, of the' 24th of *December,*1795, though not acknowledged by her, vested in £. *Stevens*a particular estate in. the premises during their joint - ' liVGS*^

Again; the lessor of the plaintiff is not estoppedby his deed, ©f an undivided moiety of the premises' to *'.Blanchard,*from" claiming the other undivided moiety, by an after purchase, against, him, or those claiming under him. The case of *Jackson, ex dem. Danforth,*v. *Murray,**†***'does not proceed on the *† 12*Johns. Rep. 201. and *sec*Jackson v. Bull, 1 Johns. Cas. 90. person shall not be permitted to claim in opposition to his own deed, by alleging that he had no estate in the premises at the time of giving the deed.

An *estoppel*is whére a person is concluded by his own act, or. acceptance, to say the truth. An estoppel is reciprocal, and binds both.parties, and it ought to.be certain to every intent; and, therefore, if a thing is not directly and precisely alleged, .it will be no'estoppel. So, if an interest passes from, the party there shall be no estoppel. A party shall not be estopped to ayer a thing consistent with the record or deed.: A man cannot be estopped by accepting a deed of his own land.‡

*318The plain tiff, By‘his deed to *Blanchard,*can be concluded only, as to ’that moiety. ./ It wouldbe carryiñg the/doetrine,of *estoppel*very far tb Say; that a p.ersoh- whd has' convéyéd,Ori,é ' moiéty of.an estaté,; shptild be estopped astoithe ■othéifihqiqtysubsequently acquired by him,. The .party is notyestopped be,.yond the estafe ' he held.* The grantee must'resort to the epvenants of warranty, if.the .grantor,has no. title, Tenants in common,, in all' actions, real and mixed, must sever, because-, théif estates- are several,, and 'they, claim by several -titles. , There is no unity but that of possession.† If the plaintiff should . 1 now be. estopped' from recovering, the moiety subsequently purchased, his first deed would operate .to convey the whole estate,, instead of. a moiety. ■ : ■ • ' -" '■ ■

. *J, Talímadgé,.*Contra,

-contended,. 4»'That' there ..was ádádr Verse pbsséssióri for- 20 years.‡

2. That the lessor of the -plaintiff wás estopped by his deed *to-Blanchard.*A man.,is never allowed to: claim jn opposition to his own deed,, of tb say he. had no title; An- after-a^quifed title; is good, by relation', and establishes and rnalfes good áílintefniediáfe éoñve"yances>§ And, in *Jackson, px. derti. Bens*on,.v.-. Matsdorf,ǁ the chief-justice lays it'down, that,a deéd, with-warranty, is 'sufficient to' pass any title subsequently,- acquired by the grantor,.** . . ■ ■, '

■ 3, By th.e'Sth.-.s.ection -'Of the act concerning uses, (sess, 40. ch. 3'7.,-) it is declared,.'that every estate, feoffment, gift, release, grant, &e.,. by persons- of full age, &e., are good and effecWal against the‘seller, feoffor, donor; or grantor, and their-heirs, and all persons/ claiming under them. The.-statute’óf Uses/ comes in the place of livery of seisin ;• there'was a transmutation of.the possession’by the deed of *Briggs*.and his wife to *E,. Stevens.*-The'deed .was effectual, to pass.-an estate .in fee and if: not, the subsequent acknowledgment is,a' confirmation} by relation, ' -so. as to’ make, good /all intermediate acts' of the .grantee.- - ■ - ■’ ’

. 4i *.Briggs*and his' wife were .concluded by their deed from conveying to.the lessor of-the plaintiff. ’ *Samuel 'Stevens'hefd .*adversely} and any /subsequent conveyance- by Mrs. *.Briggs*would-be void. The grantor must’have power to deliver the possession, and actually deliver it.†† . ■ ¡ ■’

*£,*Again ; fh.e. deed' of *Briggs,*and Wife was á discontinuance, *319of the estate, and she must have entered before she could have power to convey. The statute* which declares, that no acts of the husband shall prejudice the wife or her heirs, saves only her right of. entry., according to her right or title, as if no such act of the husband had been doné, or suffered. '-'A conveyance by the husband, with warranty, worts á discontinuance. of; the wife’s estate, and’she must enter before she canconvey.† ‘

*Oakley,*in reply,

insisted, that the possession of *Samuel Sievens*was not adverse, because he must have taken possession according to his title.. His possession was that of Mrs. *Briggs,*and so continued throughout. -

Mrs. *Briggs*was estopped by her deed of the 4th of April, 1814, duly acknowledged, to set up the prior deed of • the 24th of . *December,*1.79.5, and her subsequent, acknowledgment of that deed', in *October,*1815-, cannot make it good by relation. In *Jaclcsón*v. Halloway,* it was decided that the wife, having joined her husband in executing a lease in 18.06, duly acknowledged by her, had put it out of her' power to affirm a prior lease by her husband, in 1795. .

As to advere possession, it must have been so from the beginning, otherwise, it cannot avail.

The wife could not join in any warranty,, Or make a personal covenant, and a deed, with a warranty by the husband, cannot affect her rights,, or work a discontinuance of her estate. There can be no discontinuance,: unless it creates an adverse possession, so as to render an actual entry necessary, which was clearly not the case here. When the statute says the wife may enter, it means that her right of entry is saved, and she may enforce it by an action of ejectment. The notion of an actual entry by her is obsolete. ,

As to the principal point raised in the cause,, whether the deed to *Blanchard*is an estoppel, we contend that the cases cited do not rest on the strict doctrine of estoppels,' The principle is, that a party háving no interest át the time Of his conveyance, but acquiring a title afterwards, shall not be allowed to say he had no title when he first conveyed.. It does not appear how the tide was vested in *Samuel Stevens.*

The deed from *E. Stevens*to *j. Blanchard,*purports to be a conveyance of all the estate acquired under the will *oí Samuel Stevens.*When *Blanchard*professes to take such an interest,. *320can. he ever allege-that the estate, was-acquired in a'different ¿tanner ? ' . ' ' ;

*

*Jackson*v. *Sears,*10 *Johns. Rep. 435. Jackson v. Schoonmaker, 4 Johns. Rep. 390.*

†

 112 *Johns. Rep.*SOI. JUKI *see, Jackson*v. *b«u. \ Johns. Cds.*90.

‡

*Com. Dig. Estoppel, (A.*1.) (B.) (E. 3.) (E. 4.) (E. 8.) *Co. Litt.*352. a. 352. b. 4 *Bac.*Abr. 139. *Leases for years,*(O.) 1 *Roll. Abr.*877 pl. 3, *Co. Litt.*45, *a.*

*

*10 Johns. Rep.*292. 358.

†

*Jackson*v. Bradt, 2 Caines Rep. 174, 175, 176.

‡

*Jackson,*v. Seers, 10 *Johns. Rep*435.

§

*Jackson v. Bull, 1 Johns. Cas.*90. 12 *Johns. Rep.*201.

ǁ

11 *Johns, Rep.*91.

**

*Co. Litt.*265. a. Vin Abr. *Estoppel,*(2.) pl. 9. (A. a.) pl. 6. (B. a.) pl. 8. pl. 15. *Co Litt*47. b. 1 *Salk*"276. 2 Lord *Raym.*1551.

††

9 *Johns. Rep.*' 57,. '

*

 1 N. R. L. 162 sess. 2d. ch. 169. s. 2.

†

*Co. Litt.*325. a. *330. n.*284. *2*Bac. Abr. Discontinuance,

*

7 *Johns. Rep. 81.*

*Per Curiam.*

_ The deed from *Blanchard*and his wife, of the 21st of. *April,*1814, unquestionably conveyed to' the plaintiff a good title for an undivided half of; the farm, *Mary*never having executed any .other deed. * The question' is, whether the plaintiff shqws. á title to the other half; ' ; ...

it appears that,the lessor of thé.plaintiff, in 18.13, having'no title from any source, executed a deed with warranty to *Jusfus Blanchard,*for an undivided moiety of the farm, and also all his-interest Under the will *oL Samuel Stevens,.-*for ". the, consideration of 2,800 dollars; and that, on the 4th of *April,*1814, about nine .months; afterwards, he obtained,; for the consideration óf 1,000 dollars, a conveyance, without warránty, of the whole farm from *Briggs*and his wife; . ' ;',

• There appears, to be, nothing to hinder the application of the j’ule of estoppel. *-Ebenezer Stevens,*professedly conveyed ap un- ' divided half -of the farm, and' all his Other interest under.the. will, without showing-what it was, to *Blanchard-,*who convened to. the defendant, .Now, in the absence of all other prooffit nTOSt be intended that the subsequent purchase made by *Ehenez'er Stevens,*from *Briggs*and his wife, was designed to confirm' thedeed which, he had-¡before executed to *Blanchard.*

Judgment for defendant.