ESTOPPELS BY DEED-DESCRIPTION.

889

83

obtained possession under the agreement (t). But if "an heir apparent, having only the hope of succession, conveys, during the life of his ancestor, an estate, which afterwards descends upon him, although nothing passes at that time, yet, when the inheritance descends upon him, he is estopped to say that he had no interest at the time of the grant" (x). The distinction between these two cases appears to be this, that, in the former, the party not estopped was acting for the benefit of others; in the latter, the party estopped was sui juris.

§ 77. In regard to estoppels by deed, a party is not prevented from disputing the correctness of that which is not an essential averment, but is mere description; such, for instance, as the date of the deed; the quantity of land; its nature, whether arable or meadow; the amount of tonnage of a vessel, or the like; for these are but incidental and collateral to the principal matter, and may be supposed not to have received the deliberate attention of the parties (y). It seems, however, that, in this country, if a deed of conveyance distinctly state in the operative part that the consideration money has been received, the fact of payment, and the amount paid, are conclusively presumed (2); although a receipt endorsed upon the deed will not in itself amount to an estoppel (a). In America, though the party is estopped from denying the conveyance, and that it was for a valuable consideration, the weight of authority is in favour of treating the statement in the deed as only primâ facie evidence of the amount paid, in an action of covenant by the grantee to recover back the consideration, or in an action of

(t) Doe v. Glenn, 1 A. & E. 49 : 3 N. & M. 837, S. C. See also Middleton's case, 5 Rep. 21; Lyons v. Mulderry, Hayes R. 530; Kirwan v. Gorman, 9 Ir. Eq. R. 154.

(x) Hayne v. Maltby, 3 T. R. 441, per Lord Kenyon.

(y) Com. Di. Estoppel, A. 2; Yelv. 227 (by Metcalf), n. 1; Doddington's case, 2 Co. 33; Skipworth v. Green, 8 Mod. 311; 1 Stra. 610, S. C.

(2) Shelley v. Wright, Willes, 9; Cossens v. Cossens, id. 25; Rowntree . Jacob, 2 Taunt. 141, in which last case there were highly suspicious circumstances tending to show that the consideration money had not in fact been paid; Baker v. Dewey. 1 B. & C. 704; Lampon v. Corke, 5 B. & A. 606; Hill v. Manchester Waterworks Co., 2 B. & Ad. 544.

(a) Lampon v. Corke, 5 B. & A. 611, per Holroyd, J., 612, per Best, J.; Straton v. Rastall, 2 T. R. 366.

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ESTOPPEL-RECITALS IN DEEDS.

assumpsit by the grantor, to recover the price which is yet unpaid (c).

§ 78. The question how far parties are bound by recitals in deeds (d) has of late years been much discussed; and the doctrine of Lord Coke, that, "a recital doth not conclude, because it is no direct affirmation," (e) has been expressly overruled. The law on this subject has been ably expounded by Baron Parke in Carpenter v. Buller (f). "If a distinct statement of a particular fact is made in the recital of a bond, or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352 b; and a recital in instruments not under seal may be such as to be conclusive to the same

(c) The principal cases are:-In Massachusetts, Wilkinson v. Scott, 17 Mass. 249; Clapp v. Tirrell, 20 Pick. 247;-in Maine, Schilenger v. McCann, 6 Greenl. 364; Tyler v. Carleton, 7 Greenl. 175; Emmons v. Littlefield, 1 Shepl. 233; Burbank v. Gould, 3 Shepl. 118;-in New Hampshire, Morse v. Shattuck, 4 New Hamp. 229; Pritchard v. Brown, ib. 397;-in Connecticut, Belden v. Seymour, 8 Conn. 304 :-in New York, Shepherd v. Little, 14 Johns. 210; Bowen v. Bell, 20 Johns. 388; Whitbeck v. Whitbeck, 9 Cowen, 266; M'Crea v. Purmort, 16 Wend. 460 ;-in Pennsylvania, Weigley v. Weir, 7 Serg. & Raw. 311; Watson v. Blaine, 12 Serg. & Raw. 131; Jack v. Dougherty, 3 Watts, 151;-in Maryland, Higdon v. Thomas, 1 Har. & Gill, 139; Lingan v. Henderson, 1 Bland. Ch. 236, 249;—in Virginia, Duval v. Bibb, 4 Hen. & Munf. 113; Harvey v. Alexander, 1 Randolph, 219;-in South Carolina, Curry v. Lyles, 2 Hill, 404; Garret v. Stuart, 1 M'Cord, 514;—in Alabama, Mead v. Steger, 5 Porter, 498, 507 ;—in Tennessee, Jones v. Ward, 10 Yerger, 160, 166;—in Kentucky, Hutchinson v. Sinclair, 7 Monroe, 291, 293; Gully v. Grubbs, 1 J. J. Marsh. 389. The courts in North Carolina seem still to hold the recital of payment as conclusive. Brocket v. Foscue, 1 Hawks, 64; Spiers v. Clay, 4 Hawks, 22; Jones v. Sasser, 1 Dever. & Batt. 452. And in Louisiana it is made so by legislative enactment. Civil Code of Louisiana, Art. 2234; Forrest v. Shores, 11 Louis. 416. The earlier cases, to the contrary, together with a farther examination of this subject may be found in Cowen's notes to 1 Phil. Evid. p. 108, n. 194, and p. 549, n. 964. See also Steele v. Worthington, 2 Ohio, R. 350.

(d) As to the recital of a lease for a year in a deed of release, see § 59, ante, and 4 & 5 Vict. c. 21, § 2. (e) Co. Lit. 352 b.

(ƒ) 8 M. & Wels. 212. As to other cases where a recital has been held conclusive, see Bowman v. Taylor, 2 A. & E. 278; Lainson v. Tremere, 1 A. & E. 792; 3 N. & Man. 603, S. C.; R. v. Stamper, 1 Q. B. 123; Hill v. Manchester and Salford Waterworks Co. 2 B. & Ad. 544; Pargeter v. Harris, 7 Q. B. 708.

WHEN RECITALS OPERATE AS ESTOPPELS.

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extent.

A strong instance as to a recital in a deed, is found in the case of Lainson v. Tremere (g), where, in a bond to secure the payment of rent under a lease stated, it was recited that the lease was at a rent of 1707., and the defendant was estopped from pleading that it was 1407. only, and that such amount had been paid. So, where other particular facts are mentioned in a condition to a bond, as that the obligor and his wife should appear, the obligor cannot plead that he appeared himself, and deny that he is married, in an action on the bond (i). All the instances given in Com. Dig., Estoppel, (A. 2), under the head of "Estoppel by Matter of Writing," (except one which relates to a release), are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be estopped, in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence; for instance, in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of 1707. in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less would matter alleged in the instrument, wholly immaterial to the contract therein contained; as, for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties as assignee of a bankrupt, overseer of the poor, or as filling any other character, it could not be contended that such statement would be conclusive on the other party, in any other proceeding between them."

§ 79. From this passage it would appear that, to make a recital operate as an estoppel, there must be, first, a distinct statement of some material (k), particular (1) fact; secondly, a contract made

(g) 1 A. & E. 792; 3 Nev. & M. 603, S.C. (2) 1 Roll. Abr. 873, c. 25. (4) In Carpenter v. Buller, 8 M. & Wels. 213, the court were strongly inclined to think that, in a deed relating to an adit, a recital that certain neighbouring lands, through which the adit did not pass, belonged to A. B., was an immaterial matter, which a party to the deed was not estopped from denying. The point, however, was not directly decided, as the admission was held inconclusive on other grounds. (7) As to the distinction between generality and particularity, see Com. Dig. Estoppel, A. 2, and notes to Rainsford v. Smith, Dyer, 196 a.

86

ESTOPPELS MUST BE RECIPROCAL.

with reference to such statement; and, thirdly, an action founded on the instrument containing the recital. In the event of these requisites being satisfied, it would further seem, that the doctrine may, in some cases, be extended to instruments not under seal. In all cases of estoppel by recital, the matter recited requires no proof; since the recital is not offered as secondary, but as primary evidence, which cannot be controverted, and which forms a muniment of title. This rule, however, only applies to so much of a deed as is actually recited; and therefore if it becomes necessary to rely on any other part of such deed, it must be produced and proved in the regular way (m).

§ 80. Returning from the limited question of recitals to the general doctrine of estoppels, it is important to bear in mind this rule: that every estoppel must be reciprocal; that is, it must bind both parties, since a stranger can neither take advantage of an estoppel, nor be bound by it (n). Thus, where a party, possessed of chambers in Lincoln's Inn, which he held as tenant-at-will under the benchers, recited in a deed, by which he conveyed his interest to A, that he was seised of these chambers for life, and subsequently surrendered them to the benchers, who admitted B as tenant, the court held that B, in defending an action of ejectment brought against him by A, was not estopped from denying that the surrenderor was seised for life (o). So, where a tenant took certain lands from the assignees of a bankrupt, by a deed in which they were described as freehold, he was held not estopped, as against the bankrupt's wife, who claimed dower, from proving that they were in fact leasehold (p). Again, the grantee, or lessee of a deed-poll, is not, in general, estopped from gainsaying anything mentioned in the deed; for it is the deed of the grantor or lessor only; yet if such grantee or lessee claim title under the deed, he is thereby estopped to deny the title of the grantor (r). An exception to this rule requiring reciprocity in estoppels would

(m) Gillett v. Abbott, 7 A. & E. 783; 3 N. & P. 24, S. C.

(n) Co. Lit. 352 a.

(0) Doe v. Errington, 6 Bing. N.C. 79.

(p) Gaunt v. Wainman, 3 Bing. N.C. 69.

(r) Co. Lit. 363 b; Goddard's case, 4 Co. 44.

ESTOPPELS BY DEED ESTOPPELS IN PAIS.

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perhaps, be recognised in the case of deed-polls, because in these instruments, only one party is intended to be bound, and as he has executed a deed with the same solemnities as an indenture, there appears to be no valid reason why the doctrine of estoppel should not apply to him (t).

§ 81. A further rule with respect to estoppels by deed is this, that a deed which can take effect by interest shall not be construed to take effect by estoppel (u). Thus, if a lessor has any interest in the demised premises, even though it be for a less period than he professes to grant, the lease shall not work by estoppel, but shall enure to the extent of the lessor's interest and no further (x). But if a person, having no title whatever, makes a lease by indenture, this will estop the parties to the deed from alleging the lessor's want of title during the continuance of the lease; and if the lessor subsequently purchases the land, or otherwise obtains an interest in it, the lease which was originally a lease by estoppel, will be converted into a lease in interest, and the heir or assignee of the lessor will be bound thereby, as well as the lessee and his assignees (y).

§ 82. The most ordinary instance of estoppel by matter in pais, is the well-established rule, that a tenant, during his possession of premises, shall not deny that the landlord, under whom he has entered, or from whom he has taken a renewal of his holding (≈), and to whom he has paid rent, had title at the time of his admission (a). Thus, whether the landlord brings ejectment, or an action for use and occupation, against his tenant, the defendant can neither set up the superior title of a third person (b), nor show that the landlord has no title; as for instance, if the plaintiff be an incumbent, by giving

(t) 2 Smith's Lead. C. 438; Bac. Ab. tit. Leases, O. (u) Doe v. Barton, 11 A. & E. 311, per Patteson, J.

(x) Id. in argument; Co. Lit. 45 a, 47 b; Doe v. Seaton, 2 C. M. & R. 730, per Parke, B.; Walton v. Waterhouse, 3 Wms. Saund. 417 a,

et seq.

(y) Webb v. Austin, 7 M. & Gr. 701; Sturgeon v. Wingfield, 15 M. & W. 224. (*) Doe v. Wiggins, 4 Q. B. 367.

(a) Doe v. Pegge, 1 T. R. 760 n., per Lord Mansfield; Doe v. Barton, 11 A. & E. 307, 312; 3 P. & D. 194, S.C.

(b) Doe v. Pegge, 1 T. R. 760 n., per Lord Mansfield.