78

PRESUMPTIONS AS TO ANCIENT DOCUMENTS-ESTOPPELS.

negative, as will hereafter be more fully explained (k). It is also questionable whether the rule applies to an instrument bearing the seal of a court or a corporation; "because, although the witnesses to a private deed, or persons acquainted with a private seal, may be supposed to be dead, or not capable of being accounted for after such a lapse of time, yet the seals of courts and corporations, being of a permanent character, may be proved by persons at any distance of time from the date of the instrument to which they are affixed" (1).

§ 71. This rule is not confined to deeds, and wills, but extends equally to letters (m), entries (n), receipts (o), settlement certificates (p), and indeed to all other written documents; and provided that these purport to be thirty years old, and come from the proper custody, the signatures and handwriting need not be proved. In Wynne v. Tyrwhitt the court observed, that this rule was founded "on the great difficulty, nay impossibility, of proving the handwriting of the party after such a lapse of time" (g).

§ 72. Estoppels may be ranked in this class of presumptions. A man is said to be estopped, when he has done or permitted some act, which the policy of the law will not allow him to gainsay or deny. "The law of estoppel is not so unjust or absurd, as it has been too much the custom to represent "(r). Its foundation is laid in the obligation, which every man is under, to speak and act according to the truth of the case, and in the policy of the law, to prevent the great mischiefs resulting from uncertainty, confusion, and want of confidence, in the intercourse of men, if they were permitted to deny that which they have deliberately and solemnly asserted and received as true. The doctrine of estoppels has, how

(k) See post, Chapter on Ancient Possession.

(1) Per Lord Tenterden, C. J., in R. v. Bathwick, 2 B. & Ad. 648.

(m) Doe v. Beynon, 12 A. & E. 431; 4 P. & D. 193, S. C., recognising Bere v. Ward, 2 Ph. Ev. 204. (n) Wynne v. Tyrwhitt, 4 B. & Al. 376.

(0) Bertie v. Beaumont, 2 Price, 308. (p) R. v. Ryton, 5 T. R. 259; R. v. Netherthong, 2 M. & Sel. 337. In these cases no proof of the custody was given in evidence, but the court held this immaterial.

(q) 4 B. & Al. 377.

(r) Per Taunton, J., 2 A. & E. 291.

ESTOPPELS BIND PARTIES AND PRIVIES.

79

ever, been guarded with great strictness; not because the party enforcing it necessarily wishes to exclude the truth; for it is rather to be supposed, that that is true, which the opposite party has already solemnly recited; but because the estoppel may exclude the truth. Hence estoppels must be certain to every intent; for no one shall be prevented from setting up the truth, unless it be in plain contradiction to his former allegations and acts (s).

§ 73. These last words extend, not only to a man's own allegations and acts, but also to those of all persons through whom he claims (t); or, to express the same sentiment in the technical language of the law, estoppels are equally binding upon parties and privies (u). Lord Coke has divided privies into three classes; first, privies in blood, as heirs; secondly, privies by estate, as feoffees, lessees, assignees, &c.; and, thirdly, privies in law, "as the lord by escheat, the tenant by the courtesy, the tenant in dower, the incumbent of a benefice "(v), husbands suing or defending in right of their wives (x), executors and administrators (y). In all these and the like cases, the law, acting upon the wise principle, qui sentit commodum, sentire debet et onus, provides that the privy shall stand in no better position than the party through whom he derives his title; but that, if the latter is not at liberty to contradict what he has formerly said or done, the former shall be subject to a like disability (z). One exception, however, to this rule, is admitted in favour of those privies, who would themselves be aggrieved or defrauded by the conduct of the party through whom they claim. For instance, where a man executed a deed with the fraudulent intent of defeating the statutes of mortmain, the court held that his heir-at-law was not estopped from questioning the validity of the indenture, since his claim to the lands was founded, not on the deed, but on his title by descent (a).

(s) Bowman v. Taylor, 4 N. & Man. 264, and 2 A. & E. 278, 289, per Lord Denman; Ib. 291, per Taunton, J.; Lainson v. Tremere, 1 A. & E. 792; 3 N. & Man. 603, S. C.; Pelletreau v. Jackson, 11 Wend. 117; 4 Kent, Com. 261, n. ; Carver v. Jackson, 4 Peters, 83. (t) B. N. P. 233.

(u) See post, § 558, et seq. as to admissions by privies.

(e) Co. Lit. 352 (a).

(y) R. v. Hebden, And. 389.

(x) Outram v. Morewood, 3 East, 346. (2) Taylor v. Needham, 2 Taunt. 278.

(a) Doe v. Lloyd, 5 Bing N. C. 741. See Smyth v. Wilson, 2 Jebb & Symes, 660.

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ESTOPPELS WHEN CONCLUSIVE.

§ 74. Estoppels are usually divided into three classes; namely, those by matter of record, those by deed, and those in pais (a). The first class will be more conveniently treated, when we come to discuss the admissibility and effect of judgments (6), which, being the most extensive species of records, usually give rise to questions of this nature; but it may be here observed, that a judgment inter partes, or a deed, would seem to be now only conclusive as an estoppel, where the matter of estoppel appears on the record, and is met by a demurrer (c), or where it has been expressly pleaded, by way of estoppel, or, perhaps, where there is no opportunity of so pleading it (d). If a party, having such an opportunity, does not avail himself of it, the court will conclusively presume that he has intended to waive all benefit derivable from the estoppel, and will leave the jury to form their own conclusion from the facts presented to them in evidence (e). The general adoption of this rule renders it unnecessary to treat the doctrine of estoppels at any great length in the present treatise.

§ 75. Whether a party is estopped from avoiding his deed by proving that it was executed for a fraudulent purpose, is not perfectly clear upon the authorities. In one case (f), where a man, in order to give his brother a colourable qualification to kill game, conveyed some lands to him, the court held that his widow could not avoid this conveyance in an action of ejectment brought against her by the brother; and in the subsequent case of Prole

(a) Co. Lit. 352 a ; 2 Smith's Lead. C. 437.

(b) See post, §§ 1207, 1216, et seq.

(c) Bradley v. Beckett, 7 M. & Gr. 994. (d) 2 Smith's Lead. C. 443-445 and 57. The whole of Mr. Smith's note, from p. 436 to 460, should be carefully perused. It contains an elaborate exposition of a very difficult branch of the law. See also Trevivan v. Lawrence, 1 Salk. 276; 2 Smith's L. C. 435, S. C.; Magrath v. Hardy, 4 Bing. N. C. 782. In America, a judgment is conclusive when offered in evidence, if there has been no opportunity of pleading the matter of estoppel in bar. See Howard v. Mitchell, 14 Mass. 241; Adams v. Barnes, 17 Mass. 365.

(e) Outram v. Morewood, 3 East, 346, 365; Vooght . Winch, 2 B. & A. 662; Doe v. Huddart, 2 C. M. & R. 316; 5 Tyrwh. 846, S. C.; Doe v. Seaton, 2 C M. & R. 732, per Parke, B.; Doe v. Wright, 10 A. & E. 763; 1 P. & D. 673, S. C. ; Magrath v. Hardy, 4 Bing. N. C. 782; 6 Scott, 627, S. C., as to estoppels by matter of record; Wilson v. Butler, 4 Bing. N. C. 748; Bowman v. Rostron, 2 A. & F. 295; 4 N. & M. 452, S. C.; Carpenter v. Buller, 8 M. & W. 212, as to estoppels by deed. (f) Doe v. Roberts, 2 B. & A. 367.

v. Wiggins, Sir Nicholas Tindal observed that that decision rested on the fact, that "the defence set up was inconsistent with the deed" (g). The case, however, can scarcely be supported by this circumstance, for in an action of ejectment by the grantee of an annuity, to recover premises on which it was secured, the grantor was allowed to show that the premises were of less value than the annuity, and consequently that the deed required enrolment, although he had expressly covenanted in the deed that the premises were of greater value (h). So, also, where a bond has been given, or a covenant made, for an illegal consideration, the obligor or covenantor is not debarred from avoiding the instrument by pleading and proving the illegality (i); and this too, though a legal, but untrue consideration, is stated on the face of the deed (k). Indeed, the better opinion seems to be, that where both parties to an indenture either know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of a statute, or of public policy, neither of them will be estopped from proving these facts which render the instrument void ab initio (7): for although a party will thus, in certain cases, be enabled to take advantage of his own wrong (n), yet this evil is of a trifling nature in comparison with the flagrant evasion of the

(g) 3 Bing N. C. 235.

(h) Doe v. Ford, 3 A. & E. 649. In this case a question was raised whether a covenant, under any circumstances, is such a declaration as to estop a party from afterwards disputing the fact covenanted for, but the point was left undecided. In America a party may, in some cases, be estopped by a covenant. Thus a covenant of warranty estops the grantor from setting up an after-acquired title against the grantee, for it is a perpetually operating covenant; Terrett v. Taylor, 9 Cranch, 43; Jackson v. Matsdorf, 11 Johns. 97; Jackson v. Wright, 14 Johns. 193; M'Williams v. Nisby, 2 Serg. & Raw. 515; Somes v. Skinner, 3 Pick. 52; but he is not estopped by a covenant, that he is seised in fee and has good right to convey; Allen v. Sayward, 5 Greenl. 227; for any seisin in fact, though by wrong, is sufficient to satisfy this covenant, its import being merely this, that he has the seisin in fact, at the time of conveyance, and thereby is qualified to transfer the estate to the grantee.

(i) Prole v. Wiggins, 3 Bing. N.C. 230; 3 Scott, 607, S.C.; Collins v. Blantern, 2 Wils. 341; Gas Light & Coke Co. v. Turner, 5 Bing. N.C. 666 ; judgt. aff. in Ex. Ch., 6 Bing. N.C. 324; Stratford & Moreton R. Co. v. Stratton, 2 B. & Ad. 518 ; Hill v. Manchester Waterworks Co. id. 552, 553.

(k) Paxton v. Popham, 9 East, 419.

(1) Id.

(n) Doe v Ford, 3 A. & E. 654, per Lord Denman; Doe v. Howells, 2 B. & Ad.

747.

G

82

ESTOPPELS BY DEED-TRUSTEES FOR THE PUBLIC.

law, that would result from the adoption of an opposite rule. It seems scarcely necessary to add that a party is not estopped by his deed, if he executed it while, from duress, infancy, or other cause, he was incapable of making a valid contract, or if he was deceived by the fraudulent misrepresentations or acts of other parties (o).

§ 76. It seems at one time to have been thought, that trustees acting for the benefit of the public would not be estopped from disputing the validity of their deeds, because, if they were, the innocent parties, on whose behalf they were acting, might be seriously injured (p). This doctrine, however, is now distinctly confined to those cases in which the trustees for the public have, in their dealings with another party, violated a public act, the contents of which are presumed to be known to such party. Therefore, where a bridge act authorised commissioners to mortgage the tolls, and enacted that the mortgagees should have no preference by reason of priority, the court held that, in an action of ejectment brought by a mortgagee of the tolls against the commissioners, the defendants were estopped from setting up the fact of an earlier mortgage to defeat the legal estate of the lessor of the plaintiff. In this case, no presumption could be made as to the mortgagee's knowledge of the fact that a previous mortgage had been made; and the judges considered that there was no authority for holding, that trustees for a public purpose were in any peculiar state of protection on such a point (r). It should be here noticed, that, though an estoppel may bind a person acting in one capacity, it does not necessarily follow that it will have a similar effect, when such party is sustaining a totally different character (s). Thus, where an executor de son tort verbally agreed with the landlord of the intestate to deliver up the premises demised and afterwards took out letters of administration, he was held not concluded from bringing an action of ejectment against the landlord, who had actually

(0) Hayne v. Maltby, 3 T. R. 438.

(p) Fairtitle v. Gilbert, 2 T. R. 169; Doe v. Hares, 4 B. & Ad. 440, per Littledale, J.

(r) Doe v. Horne, 3 Q. B. 757, 766, 767 ; R. v. White, 4 Q. B. 111, 112. (s) 2 Smith's Lead. C. 442; Robinson's case, 5 Rep. 32 b.; Com. Di. Estoppel,

C.; 2 Co. Lit. 365, (b.); Smyth v. Wilson, 2 Jebb. & Symes, 660.