author: Gardiner, J.

text:
    Brady, Appellant, vs. McCosker, Respondent.
    A Court of Equity will not entertain jurisdiction to set aside a will of real estate for fraud, or on the ground of the testator’s incompetency, where there is a perfect remedy at law, and the objection to the jurisdiction is taken in due season.
    But where the party claiming in hostility to the will is not in possession, and an impediment exists which would prevent a recovery at law of the whole or. any part of the estate devised, a bill in equity will be entertained to have the will declared void and delivered up to be cancelled.
    Accordingly, where a bill was filed for the purpose of setting aside a will on the ground of fraud and' undue influence, and it appeared that at the filing of the bill the complainant was not in the actual possession of the estate, and that a trust term in such estate, which vested the legal title in trustees, was yet unexpired, so that no recovery could be had in ejectment; held, that a demurrer to the bill for want of jurisdiction was properly overruled.
    So also it is a good answer to an objection for want of jurisdiction, that a part cf the estate devised is subject to an unexpired lease, under which the lessee or his assignee is in possession.
    And where the bill distinctly shewed the existence of an unexpired trust term, and that a part of the estate was occupied by the assignee of an unexpired lease, and the other parts were occupied by persons under an agent, who had assumed the control and management of the property for the benefit of such party as should be entitled thereto, when the question upon the validity of the will should be settled; held, that an objection for want of jurisdiction would not lie, although the bill in another place alleged that the complainant was entitled to the whole estate by inheritance in fee simple, and that he “ held and was in lawful possession thereof,” this allegation being regarded as a formal legal conclusion from the facts specifically set forth in the other parts of the bill.
    The complainant claimed half of (he estate by inheritance from his father, and the other half by inheritance from his brother, and alleged that the will of his brother was void for fraud, &c.; but in case the will should be adjudged valid, then he still claimed one-half of the estate, and insisted that he was entitled to a partition; and the prayer of the bill was, that the will might be declared void, or that a partition might be had; held, that the bill did not make a case for partition, and therefore that it was not liable to objection for multifariousness.
    Where a party, claiming an estate by inheritance, files a bill for the purpose of setting aside a will, and dies pending the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement, and if his right as devisee be admitted or established, he will be entitled to the benefit of the proceedings in the original suit.

      •\ person, who is charged with fraudulently procuring the execution of a will in favor of an infant, is a proper party to a bill filed for the purpose of setting aside such will, although he has no interest. He may be charged with the costs.

      Appeal from the decree of the Chancellor affirming that of the Vice Chancellor of the First Circuit. The case was this: John McCosker, the elder, died on the 26th of March, 1839, seized of certain real estate in the city of New York, leaving his s'ons, John and Thomas,, his only children and heirs. By his wi'll, (among other things) he directed his executors to take possession of his real and personal estate, and to receive the rents and profits of the real estate for the term of five years, and apply the same to the payment of his debts, also to pay to John an annuity of $200, during the five years, and a like annuity to Thomas, and to pay the balance over to John at the expiration of the five years. He then devised the real estate, after the expiration of the five years, to John during his natural life, and the remainder to his issue in fee, and directed that John and his heirs, after the expiration of the five years, should continue the annuity to Thomas during his natural life. One of the executors named in the will died before the testator, and the other two declined to accept the .trust. John died in 1843 without issue and unmarried.
    In March, 1844, Thomas, the surviving son of the testator, filed his bill against his son, John Andrew McCosker, the complainant in this suit, and against Maria L. Brady, J. R. Brady, and J. T. Brady, the defendants in this suit, setting forth the above facts, and claiming that on the death of John, he (Thomas) was entitled to one-half of the said real estate as heir of his father, and to the other half as heir to his brother John. That bill also stated that soon after the death of John, the younger, the defendant, J. T. Brady, propounded to the Surrogate of New York, for proof, a paper purporting to be his will, whereby he gave one or two legacies and annuities, a,nd all the rest and residue of his estate to the defendants, Maria L. and J. R. Brady. That bill also charged, that the execution of such will was fraudulently and improperly procured by the defendant, J. T. Brady, and that the same was null and void, so that the said John died intestate ; that he (Thomas) opposed the proof of the will before the Surrogate, and the question of its validity was still pending in the Surrogate’s Court; that the will was a cloud upon his title, and should be declared void by a decree of the Court of Chancery. It appeared also from that bill that in the absence of the complainant therein, and without his knowledge or consent, his friends had entered into an arrangement with J. T. Brady, who assumed to act for Maria L. and J. R. Brady, whereby R. Martin was to take the control and management of the property, and receive the rents and profits as agent for whoever might be entitled thereto; that the said real estate, which consisted of houses and lots, was in the hands of numerous occupants as tenants, and that one lot was yet under an unexpired lease given by John, the younger, in his life time, to C. Maas, whose assignee (Piper) was in possession under that lease. . '
    That bill contained an allegation, that the complainant therein was entitled by inheritance as aforesaid, to all of the said real estate in fee simple, and he “ then held and was in lawful possession thereof.” In case the will of John, the younger, should be held valid, that bill insisted that he (Thomas) was still seized of an undivided half of the said real estate by descent from his father, and that-he was therefore entitled to a partition of the same. The prayer of the bill was, that the will of John .McCosker, the younger, might be declared void; or in case it should be held valid;, that a partition might be made, and for general relief.
    The several defendants in that bill appeared thereto. John Andrew McCosker and Maria L. Brady, being infants, put in general answers by their respective guardians. J. R. Brady also answered the bill, and J. T. Brady demurred. A replication to the answer of J. R. Brady was filed, and then Thomas McCosker, the complainant in that suit, died.
    In October, 1844, John Andrew McCosker filed the bill in this cause by his next friend, in which he set forth the filing of the said bill by his father Thomas, the allegations therein contained, the proceedings in that suit, and the death of his father, averring also that the matters stated in the said bill of Thomas were true. The bill in this suit further states, that the said Thomas McCosker devised all his real estate to the present complainant, including the lands in question;" that the former suit had abated by the death óf Thomas, and it insists that the present complainant'is entitled to the benefit and advantage of the said original suit, and it prays the relief claimed in that bill. The defendants, J. T. Brady and J. B. Brady, put in separate demurrers to the bill, assigning several spécial causes of demurrer. Their demurrers were overruled by the Vice Chancellor, and on appeal his decision was affirmed by the Chancellor. J. T. Brady appeals to this Court.

      PI Sanford, for appellant.

      .Charles O’Connor, for respondent.
   Gardiner, J.

It is the established doctrine of a Court of Equity, that it will not assume jurisdiction to set aside a will for fraud, or on the ground of the testator’s incompeteney, where there is a perfect remedy at law, .and where the objection to the jurisdiction is taken in proper season. (2 Paige 399; Br. P. C. 358; 7 Price 663; Jacob R. 466; 1 Mad. Ch. 85.)

As the jurisdiction of the Court of Chancery, according to the rule above mentioned, depends upon the inadequacy of the legal remedy, the bill must, state the impediment to'relief in a Court of law. (Pemberton vs. Pemberton, 13 Ves.; Jones vs. Jones, 3 Meriv. 166 and note.) If the impediment relates only to a part of the "real estate embraced in the will, it would seem to be sufficient to confer jurisdiction. As to the part thus incumbered, the complainant would have an undoubted right to the aid of a Court of Equity, (Story’s Eq. Jurisdic. § 33,) and the jurisdiction thus acquired would upon general principles bo retained, in order to prevent a multiplicity of suits, and to afford complete relief to the parties. (2 John. Cas. 424; 10 J. R. 587; 17 do. 384; 1 Wheaton 197.)

In the second place, the form of the negative plea to th"e jurisdiction of the Court, and of the order for an injunction in those cuk*3 where an issue of devisavit vel non is proper to be awarded, leads to the same conclusion.

The allegation of the plea is general, that the obstruction to the legal remedy charged in the bill, applies to “ none of the real estates which are subjects of controversy. (Armitage vs. Wadsworth, 1 Mad. 111.) And the usual order for injunction, restrains the defendant from setting up any lease, outstanding term, &c., to defeat the plaintiff’s claim,, in any issue or action directed by the Court for the recovery of any of the real estate, or the rents and profits thereof. (3 Merivale 172.)

The complainant alleges that at the time of filing the original bill by Thomas McCosker, the whole premises were subject to the uneXpired trust term created by the will of John McCosker, the elder, and part of thprn to an unexpired lease executed by John McCosker, the younger, on the 28th of February, 1842, to Carston Maas, for three years from the first day of May following, which lease had been duly assigned to Julius Piper, one of the defendants. The trust established by the will of John McCosker, the elder, for the payment of an annuity of $200 to Thomas McCosker during his natural life, was a valid trust under the third subdivision of the 55th section R. S., 1 vol., page 729. The language of which is that express trusts may be created to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term.” By the 60th section, the whole estate in law and equity is vested in the trustees. If the trust was invalid, then the lease passed the interest of John McCosker, the younger, to Casston Maas, who was in actual possession at the filing of the bill, paying rent according to said demise to Robert Martin, as agent for the parties who might be entitled to the same. These facts are distinctly alledged in the bill, and admitted by the demurrer, and prima facie they present an insuperable obstacle to a recovery at law. If the trust was within the statute, ejectment would not lie for any part of the premises; if it was not, then it could not be maintained against the assignee of Maas by the complainant, who claims as to all the interest in controversy, through John McCosker, the lessor. No suit could be sustained against Martin because he received the rents as a receiver, constituted with the assent of both parties, for whoever might ultimately be entitled to it. He was a mere stake-holder, and if sued, could compel the parties to interplead and settle the right by the decree of a competent tribunal.

Assuming that the impediments to the legal remedy were such as to entitle Thomas McCosker to relief in equity, when he filed the original bill, it cannot be seriously .questioned that the complainant succeeded to his rights in this respect, and is entitled to continue the suit, if it was properly commenced. (Barbour, Ch. P. 82.)

The complainant claims as devisee through his father. Not succeeding to the rights of the decedent by mere operation of law, he could not file a bill of revivor, but could only have the benefit of the original proceedings, and’ avail himself of the new facts necessary to be stated by an original bill, in the nature of a bill of revivor and supplement. (Welford, Ch. Pr. 220, 222; Barbour Ch. Pr. 64 and 82.)

This has been done, but it is alleged that the complainant being a defendant in the original suit, could not revive it until after a decree giving him an interest in its continuance. (1 Barbour 41.)

This would be true if the complainant sought to revive as a defendant, or as the representative of a defendant. But he has succeeded to the right of his father the plaintiff in the original suit, and claims the benefit of that suit by virtue of such succession. This distinction is sufficiently obvious, and is recognised in Soullard vs. Dias, 9 Paige 394, to which we have been referred by the counsel of the defendant.

The main question is whether the present and former complainants, have not precluded themselves by their own allegations, from any relief whatever in Chancery. Thomas McCosker by the original bill, “ claimed to be and charged that he was (Fol. 72) entitled by inheritance as aforesaid, to all the lands, tenements, and hereditaments, and every part and parcel thereof, in fee simple, and that he then held and was in. lawful possession thereof.” I thought upon the argument that this statement was an insuperable obstacle to any relief in Chancery, unless indeed the aid of that Court could be invoked in order to remove a cloud from the title of the complainant. But upon a more particular examination of the bill, I am satisfied that my first' impressions were erroneous. The bill alleges that the premises in question consisted of two lots of land, with several dwelling houses thereon, in which before, and at the time of .the death of. John McCosker the younger, and at all times since, there were, and at the time of filing the said original bill still- were, numerous occupants in humble condition, &e., from whom little or nothing could be obtained, unless "some one with the right and powers of a landlord, and standing in that relation should collect the rents, &c.; that Julius Piper was in possession of the property devised to Maas at the filing of . the bill, paying.rent to Martin, &c. It is further stated, that in consideration of the importance of securing some immediate control over said property,-in order to prevent waste, and secure the collection of rents, some friends of the complainant without his knowledge of consent, united with J. T. Brady, acting in behalf of those claiming under the will of John McCosker the younger, in a request to Martin to assume the control of the property and receive the rents as agent- for whoever might be entitled to them, that Martin did so, that the uncertain nature of his power, produced great embarrassment. It is further alleged that the complainant Thomas McCosker was destitute of any means, or property, except what he might be entitled to from the estates of his father and brother. That no fart of his annuity had been faid to him since his brother’s death, although he had received an equal sum from Martin. The bill then denies that the defendants are in the receipt of the rents and profits of said premises or any part thereof (Fol. 71) or are in the occupation thereof; but that the same are in the occupation of persons residing thereon. Now these allegations are utterly inconsistent with the statement that the complainant “ then held and was in the lawful possession of said premises,” if by.that we are to understand any thing more than a legal seizure. The bill informs us that the whole legal and equitable estate was vested in trustees, or in the Court of Chancery, that the assignee of Maas was in possession of the house demised to him, and who were the actual occupants of other parts of the real estate; the person that was actually in the receipt of the rents and profits, and the nature of his authority, which was' to receive them as agent for whoever might be entitled to them. The effect of .the averment under consideration, read jn connection with what has been quoted from other parts of the bill, is only that the complainant Thomas. McCosker was then entitled by inheritance as aforesaid, to all the lands, tenements, and hereditaments, in fee simple, and that he therefore held and was in lawful possession thereof. In other words it is a formal legal conclusion from the facts previously stated.

It is also objected that the bill is multifarious. Mulfcifaridusness-, as the term is generally understood, applies to bills in which there is a misjoinder of distinct and independent causes of action. ' Or secondly, where the party has no interest in the subject in litigation; and lastly, where one or a part of the defendants, is able to say that he is brought as a party upon a record, with a large portion of which, and the case made thereby, he has no connection whatever. (1st Mylne & Craig, 603.)

The two first propositions refer to cases of misjoinder. The last to multifariousness, strictly so called. (Mylne vs. Craig, 603, Jac. R. 141; Harrison vs. Hogg, 2 Vesey 323, Story’s Eq. § 271, 279, 280.)

There is no misjoinder of actions in this case; for the' bill is not properly framed for partition. The plaintiff alleges, that he is entitled to all the real estate by inheritance from his father, and John McCosker the younger, and that the will through which alone the defendants claim title to any part of the property is null and void.

Partition implies an interest in different persons in the property to be divided. When a complainant not only claims the whole, but negatives the title of .the defendant to any part, the bill may be defective, but is certainly not obnoxious to the objection, that a case for partition as a distinct and independent cause of action is thereby established. Whatever therefore may have been.the intention of the pleader, the bill must be treated as single. (Story Eq. § 288, 1 Sim, and Stuart 61.)

There is no misjoinder of parties. James T. Brady was a proper party to the bill, for the reason suggested by the Chancellor. In Boule vs. Stewart, 1 Schoale and Lefroy 227, a Solicitor was made a party for assisting his client in obtaining a release. He had no interest in the matters in controversy. It was insisted, that he acted merely in his capacity as Solicitor. Lord Redesdale said he was properly made a party, and ought to be chargeable with costs so far as they related to the release, in case they could not be recovered of his client. (Story Eq. § 232.)

Assuming the truth of the facts charged in the bill, as we must for the purpose of this decision, the infant defendant Maria L. Brady ought not to be charged with costs in any event. She had no agemjy in procuring the Will, and is incapable of ratifying or confirming the acts of others.

The demurrer of the defendant Brady, is to the whole bill, and can only be sustained by establishing a misjoinder of actions, or parties, to which species of multifariousness it is alone adapted. ( Story Eq. Pl. § 284, 1 Mylne and Craig, 603; 2 Anstr. 469.)

If the bill is defective in praying for a partition, or contains irrelevant matter unconnected with the case properly presented, the demurrer should be confined to the parts really objectionable and not extended to the whole bill. It was therefore properly overruled by the Chancellor, and the decree should be affirmed.

Ruggles, Jones, Johnson and Weight, Js., concurred.

Bronson, J. and Gray, J., delivered opinions in favor if reversing the decree, with whom Jewett, O. J., concurred.

Decree affirmed.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    Cornes vs. Harris.
    In the Common Law action by writ of nuisance, as retained and regulated by the Revised Statutes, it seems that the declaration must shew that the plaintiff has a freehold estate in'the premises affected by the nuisance. This is a real action. But in an action on the case for damages merely, sustained' in consequence of the erection of a nuisance, it is enough that the plaintiff is in possession of the premises affected thereby.
    The form of an action is determined by the matter set forth in the declaration, and not by the n&me which the plaintiff" may give it. Ifj therefore, the pleader, in the commencement of a declaration, gives the action a wrong name, it will do no harm.
    The plaintiff" commenced his action by writ of nuisance pursuant to the statute. (2 5. S. 332.). The formal commencement of the declaration was appropriate to that action and referred to the writ; but the declaration contained no averment that the plaintiff had a freehold estate in the premises affected by the nuisance. It shewed, however, a good cause of action on the case, and concluded thus, “to the nuisance of said dwelling house and premises of the plaintiff and to his damage of five thousand dollars”; held, that it was a good declaration in an action on the case, although it shewed no ground of recovery in the action of nuisance proper; and therefore, that the Supreme Court was right in denying amotion made after verdict in arrest of the judgment.
    Harris commenced an action against Cornes in the Supreme Court by writ of nuisance in the form prescribed by "2 B. S. 332, § 3. The declaration afterwards put in commenced thus: “ Oneida County, ss. George Cornes was summoned by writ according to the form of the statute in such case provided, to answer Oliver Harris in a plea of nuisance, wherefore he hath raised a certain slaughter house, and divers cattle pens, hog pens, &c.; and thereupon the said Oliver Harris by, &c., complains of the said. George Cornes : For that,” &c. The declaration then went on to state that the plaintiff was possessed of a certain dwelling house and premises at Sangersfied, Oneida county, which he inhabited with his family; that the defendant was also possessed of certain premises contiguous to those of the plaintiff, and contriving,- &c., on &c., and on divers other days erected on his premises a slaughter house, and cattle pens, hog pens, &c., and kept therein and slaughtered large numbers of cattle, hogs, &c., thereby causing noxious and offensive smells, and loud and offensive noises, and tainting and corrupting the atmosphere, so as to render the dwelling house and premises of the plaintiff unfit for habitation. There was no averment in either of the 'counts that the plaintiff was seized in fee of the premises occupied by him, or that he had a freehold estate therein. The conclusion was in these words: “ to the nuisance of the said dwelling house and premises of the said plaintiff, and to his damage, of five thousand dollars, and therefore he brings suit, &c.”
    The defendant pleaded not guilty, and oh trial at the Circuit a verdict was had for the plaintiff for two hundred and. fifty dollars damages. The defendant moved in the Supremo Court to arrest the judgment, which motion was denied and judgment rendered for the plaintiff for the above sum as damages, and the costs of suit. There was no -judgment that the nuisance be removed. The defendant removed the record to this court by writ of- error, and upon an allegation of diminution in the record and writ of certiorari, caused the writ of nuisance by which the suit was commenced, and the rule of the Supreme Court denying the motion in arrest to be certified to this court.

      W. Tracy, for plaintiff in error insisted:
    (1.) The action is the Common Lawassize of nuisance as modified by the provisions of the Revised Statutes, but not modified by any other statute, or rules of pleading or practice. (2.) The writ of nuisance could only be maintained by the owner of the freehold affected by the nuisance, and the Revised Statutes have made no change in the action in this respect. (3Bl. Comm. 220, 221, 222 ; 1 Com. Dig. Assize, B. 4 B. 5 ; 1 Rolle 271.) (3.) The declaration is bad therefore in substance, for not averring that the plaintiff owned the premises affected by the nuisance as Ms freehold, and that the defendant erected the nuisance to its injury; and the defect is not'cured by the verdict. (2 Cowper 825; Graham Pr. 2d Pd. 657 and the cases there cited; 1 Term. Rep. 470; 5 Barn & Adol 27; 1 Johns. 380; 10 Do. 369.) (4.) Each of the counts in the" declaration being defective in substance, and showing no title to recover, the Supreme Court erred in denying the motion, in arrest. (Graham Pr. 641,and the cases there cited.) (5.) Our conclusion cannot be avoided by calling the action any thing else than a writ of nuisance. It.is that or nothing. It is commenced by the writ provided by the statute. The declaration recites. the original as a declaration in that' action should, and it concludes as well as commences in nuisance. The difficulty is that if the declaration be true in every particular it does not authorize a recovery in that action. It is not an action on the ease for a nuisance, which could only be commenced by capias or by declaration. It is a real action, as such known to the Common Law and expressly retained by the Revised Statutes, and being so regarded, the fatal defect is, that the plaintiff in his declaration shows no interest in the premises, which authorizes him to maintain it. (6.) The plea of the defendant taking issue upon the.declaration did not cure its defects. If the declaration be bad in substance, the plea cannot make it good.

      C. P. Kirkland, for defendant in error insisted:
    (1.) The declaration in this cause is in case .for nuisance, a mere personal action. (2 Chit. pl. 769 to 776, Phil. Ed. 1828.) (2.) It can not be in the real action of nuisance, as it omits the distinguishing and vital feature of that action, viz: the averment of freehold or seizin in fee in plaintiff and. defendant. (Rast. Ent. 441; Yates Pl. 520, 521; 2 R. S. 257, § 3; 3 Christ Bl. 220 ; 16 Vin. Ab. 22, Nuisance D; Fitz : N. B. 183, 4, 5 ; 2 Saund Pl. and Ev. 229, (686 ;) 1 Com. Dig. 306, (D. 1;) 3 Ch. Bl. 222 ; 16 Vin. 33, Nuisance, (K. 2 ;) 2 R. S. 256,7, § 7). (3.) The plea is the proper plea in the personal action, not in the real. (Jacks. Tr. Real Prop. : app. 360 362.) (4.) The statement in the prefatory part of the declaration, as to the manner in which the defendant below was brought into court, is perfectly immaterial. It may have been good ground of special demurrer, but nothing more. (5.) The only mode of taking advantage of a variance between the writ and declaration, as not being in the same action, was by motion to set aside the declaration for irregularity. (1 Wend 305 ; 4 J. R. 484 ; 12 Wend. 271.) (6.) It is not pretended that in this action, as stated in the declaration, the plaintiff is or possibly could be entitled to the judgment of removal given by the statute in the real action of nuisance. No such judgment has been asked for or rendered: but the plaintiff was entitled to his judgment' on the verdict for his damages with costs as in any other personal action: and this is the judgment and the only judgment that has been rendered. (7.) The plaintiff in error neither has nor pretends to any merits—his ground is purely and merely technical; and he could have availed himself of it only as a matter of practice by motion to set aside the declaration for a technical variance. (2 R. S. 344, S. 7, sub. 4, (2d ed.)

   Bronson, J.

If this is the old assise of nuisance, there is no doubt But that the declaration is insufficient and the judgment erroneous. But if it is an action on the case, it is equally clear that the declaration is sufficient and the judgment right. On the motion in arrest of judgment the Supreme Court held, and we think very properly, that it ivas an action on the case. The defendant insists that it is a writ of nuisance because the plaintiff has given the action that name in the commencement of the declaration; and because a writ of nuisance seems to have been issued to bring the defendant into court.

It is not necessary to mention the form of the action in the commencement of the declaration; and if the pleader gives it a wrong name it will do no harm. The form of the action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. (Seneca Road Comp. vs. Auburn R. R. Comp. 5 Hill 177 ; Ander son vs. Thomas, 9 Bing. 678 ; Lord vs. Houston, 11 East 62; 2 Chit. Pl. 12 note (e.) Ed. of ’37 Grah. Prac. 202.) Disregarding, as we must, the misnomer, this is a very good declaration in an action on the case.

Now as to the writ. It is not a matter of any importance how the defendant came into court—whether he was served with a writ, capias, or declaration; or whether he appeared voluntarily without process of any kind. It is enough that he appeared and pleaded to the declaration in an action of which the court had jurisdiction. He cannot afterwards object, not even by motion, that he was not regularly brought into court, or that the declaration varies from the process. The principle is a familiar one. If the defendant had moved, be fore pleading, to set aside the declaration for variance from the original, the motion would probably have been denied. (Mc Farland vs. Townsend, 17 Wend. 440.) And clearly the Supreme Court had nothing to do after verdict, .when the motion in arrest was made, with the manner in which the defendant was brought into court, or with any supposed variance between the writ and the declaration. '

We are all of opinion that the judgment should be affirmed.

Judgment affirmed.


text:
    Gracie, Appellant, vs. Freeland and others Respondents.
    An appeal will not lie to the Court of Appeals from a decision made in the Su preme Court by one Justice at a special term.
    A party complaining of any order made at a special term, has a right to have the matter ré-heard and passed upon by the Supreme Court, at a general term.
    The appellant, Gracie, who was complainant in the Supreme Court, appealed to this Court from an order in an equity cause, made by one of the Justices of the Supreme Court while holding a special t^rm. FTo re-hearing of the matter had been had or applied for at a general term of the Supreme Court.

      A. L. Jordan, Attorney General, for the respondents,
    moved to dismiss the appeal on the ground, among others, that an appeal to this Court would only lie from a decree or order made by the Supreme Court at a general term.

      R. W. Peckham, for the appellant.
   Bronson, J.

• This is an appeal from an order in an equity cause, made by one of the Justices of the Supreme Court while holding a special term; and there has been no re-hearing and order upon the matter by the Supreme Court in general term. A motion is made to dismiss the appeal, on the ground that an appeal will only lie from the decrees and orders of the Supreme Court, in equity causes, made at the general term.

It is difficult to suppose that the Legislature, if.it has the constitutional power to do so, has provided that all equity causes shall be first heard at a special term before a single Judge; and has then given an appeal to this Court, before the matter has been heard and determined by the Supreme Court in general term, where there must be three Judges. It is not to be presumed that the Legislature intended the parties should go to the Court of last resort, before they had obtained the judgment of the full bench in the Court where the proceedings were instituted. We ought to find unequivocal words to that effect, before we give such a construction to the statute. But so far from finding such words, I -think the Legislature evidently intended there should be a re-hearing at the general term, before there could be an appeal to this Court.

The judiciary act authorizes appeals to this Court from the orders and decrees of the Supreme Court organized by this act,” without expressly specifying either branch of that Court. (Stat. 1847, p. 321, §§ 10, 11.) But the 20th section prescribes the manner in which the causes shall be disposed of in the Supreme Court, which is as follows: “ All suits and proceedings in equity, in said Supreme Court, shall be first heard and determined at a special term of said Court, unless the Justice, holding such special term, shall direct the same to be heard at a general term and when “ heard and determined at a special term, either party may apply at a general term for a re-hearing.” It will be seen that two things are here mentioned; first, a hearing and determination at a special term, and then an application for a re-hearing at a general term. Both of these things must be done before the Supreme Court has got through with the cause, and'put it in a condition to be carried to an Appellate Court. If this be not so; if the cause may go by appeal from the special term directly to the Court of Appeals, then there may be an application to the Supreme Court, at general term, for a re-hearing, after the cause has gone to the Court of Appeals; and, indeed, after that Court has heard and decided the case. No one can suppose that such was the intention of the Legislature.

Although the statute only says, the party ‘fraay apply at a general term for a re-hearing,” I think he has the right to have his cause heard and decided there; ana that he cannot be turned away by simply denying the motion, nor by ordering a re-hearing at the special term.

The application for a re-hearing for which the statute provides, is not precisely the same thing in the attending circumstances as a motion for a re-hearing in Chancery. ' In that Court, the motion is almost invariably addressed to the same officer who made the decree, and. who-is consequently prepared to decide at once, and without any extended discussion or examination upon the .propriety of granting the application. But under the present judiciary system, the motion is not to be heard at the special term, where the decree was made, but at the general term, where a majority, at the least, of the Judges, will be strangers to the cause, and consequently cannot be prepared to make a proper disposition of the motion, without hearing and examining the matter about as fully as they would for the purpose of making a decree. From this consideration it may be inferred, that, the re-hearing for which the statute provides, is a hearing of the cause by the full bench, at the general term. If the Legislature had contemplated a re-hearing at the special term, they would have directed the application to be made there; or rather, they would have said nothing about it. The officer who has power to hear and determine equity causes, has power to grant a re-hearing. It is a part of the general common law jurisdiction of a Court of Equity, which need not be conferred by statute. • And besides, it is almost absurd to suppose that the Legislature intended the cause should be heard by three Judges, for the purpose of enabling them to decide whether it should be referred back to one of their number, or to some other single Judge, for a re-hearing. If sent back to the special term on the ground that the decree was erroneous, the special term Judge might be of a different opinion; and then the original decree would stand, although a majority of the Judges deemed it erroneous. If it be said that the special term Judge should follow the opinion of tjie full bench, then clearly it would be but an idle ceremony, to send the cause back to the special term. The full bench should enter the proper decree at once, instead of sending the cause away, to have its judgment registered in another place, with the loss of both time and expense.

The statute does not command the Court to hear the application. But I need not cite authorities to prove, that when an individual has the right to apply to a Court for anything in the course of the administration of justice, it is the duty of the Court to hear and decide. It is said, however, that the applicant must make out a case before the Court is bound to hear him; and that is very true. But what kind of a case ? He must shew himself a party to a decree or order made at a special term. The statute requires nothing more; and when such a case is presented, it is the duty of the Court to hear and decide. And as the full bench cannot be prepared to determine the motion which it is required to hear, without something like a full discussion and examination of the whole matter, I think that bench should decide the cause. It should do so, either by ordering a re-hearing as a matter of course, and then hearing the cause; or by hearing the matter at large in the first instance. The case should not be disposed of by simply denying the motion, nor by sending the cause, back to the special term for a re-hearing; but it should ba decided, by making what the full bench may deem the proper decree or order in the premises. When the statute is read with reference to the nature of the case for which it provides, I cannot entertain a doubt on the subject. I think the Legislature intended that every party who should be dissatisfied with a decision made at the special term, should be entitled to have his case heard and determined by the full bench.

If the party has the right to a hearing at the general term, then of course he should go there from the special term, instead of taking an appeal. The Legislature could not have intended that there should be an appeal to this Court before the matter had been finally disposed of in the Court of original jurisdiction. The appeal must be from the decision at the general term.

The amendatory act passed by the same Legislature, (Stat. 1847, p- 641, §§ 21, 22, 23.) goes to confirm the construction which I have given to the original statute.-

I am of opinion that the appeal should be dismissed.

Gardiner, J. The constitution has provided a Supreme Court, having general jurisdiction in law and equity, with eight branches, one in each judicial district; (Art 6, Sections 3, 4, 16.) The fourth section of article 6, declares, that there shall be four Justices of the Supreme Court in each district. The sixth section, that the general terms of'said Court for each district, may be holden by any three or more of said Justices, of whom a presiding Judge to be designated by law shall be one. And that special terms and ' Circuit Courts may be holden by any one or more of said Justices, arid that any one of them might preside in Courts of Oyer and Terminer.

The constitution distinguishes, between the general and special terms. Thie distinction does not consist in the number of Judges by which" the terms may be holden respectively; although that circumstance may have been, and probably was, the occasion of the distinction. The constitutional authority of a decision of a spécial term, like that of a Circuit Court, would bo the same whether made by one or four judges.

In the second place all concede that the entire jurisdiction in law and equity, secured‘by the constitution to the Supreme Court, can be exercised at a general term by three or more Judges. It follows that an authority subordinate in some respect, must be administered at a special term, or there is no difference between them. The words general and special import this distinction.

Tho meaning of “general” is that which comprehends all, the whole. (Web. Dict) “Special,” something designed for a particular purpose. Applied to jurisdiction, they indicate the difference between a legal authority extending to the whole of a particular subject, and one limited to a part, and when applied to the terms of Court, the occasions upon which these powers can be respectively exercised. Such I apprehend was the legal import of the words, “ general and special” when applied to the terms of the “ Supreme Court,” as settled'by the Courts and the Legislature; and the understanding of the legal profession at the formation of the present constitution. (13 Wend. 672, 655; 12 Wend. 230 ; 2 R. S. 259 ; §§ 2, 6, 9, 10, 11, 51; 3d Ed.; Id 229, § 25.)

It has been said that by the 5th section of the above article, the Legislature possesses the same power as formerly, to alter and regulate the jurisdiction and proceedings in law and equity, and that this enables them to confer such jurisdiction as they may deem expedient, upon the Supreme Court, to be exercised- at a general or special term, by one, or three, or more Judges.

To this suggestion it may be answered, that if by the constitution a distinction exists between these terms, it cannot be rightfully annulled either by legislative power or judicial construction.

In the second place, if there is no limit to their authority, in this respect, the Legislature may direct that all cases in law or equity, shall be determined at a special term, and that the decision shall be the final judgment of the Supreme Court. This of course would abolish the general terms.which the constitution expressly recognizes. For it will scarcely be claimed that the right of three or more Judges to assemble, without the power of transacting business, satisfies the constitutional requirement for a general term. • The same result would be produced, if the Legislature can direct that the same authority in all respects, shall be exercised at a special as a general term. The distinction between the two, studiously indicated in the constitution would be abrogated; and that instrument would in effect be made to declare, that all the business of the Supreme Court might be transacted at any term thereof, by one or more Judges, as the Legislature should by law provide.

Its language is, however, very different. It ordains that one Judge may hold a special and three a general term; unlike the constitution of' 1821 in this respect, which provided that the Supreme Court should consist of three Judges, any one of whom might hold the Court.

If we are bound to give effect if possible to every word in a statute, the organic law is certainly entitled to equal consideration, and to determine, that the power to hold the" Supreme Court at any term, which has the authority of a Judge under the former constitution, and the power to hold a special term, are identical, or that the phrase general and special mean the same thing, is equivalent to a declaration that the constitution imposes no restrictions upon Legislative power whatever.

I assume, therefore, that there is a constitutional difference between the special and general terms. This difference may consist, and it is the slightest that occurs to my mind, in this, that the .decisions at the general term, are the only final determination of the Supreme Court, while those of the special term, are in -all cases affecting the merits of the controversy, subject to review in the same Court, at a general term, at the election of the party aggrieved.

This distinction in the authority to be administered at the respective terms, will satisfy the language of the constitution, which demands a difference of jurisdiction, but does not define precisely in what that difference shall consist. It leaves the Legislature at liberty to confer such judicial power as the exigencies of the public may require, subject only to the restriction above mentioned, and relieves us from the necessity of resorting to the precise powers exercised at the special terms of the old Courts—which varied at different times, and in different Courts,—with a view to establish a constitutional limitation upon tho authority of the Legislature. This construction is strengthened by the provisions of the 25tli section of article 6, which • declares—among other things—that the Legislature shall provide for the allowance of writs of error and appeals to the Court of Appeals, frdm the judgments and decrees óf the Courts that may be organized under the constitution. - ,

The Supreme Court possessing general jurisdiction in law and equity, was- one of these; and when the constitution speaks of writs of error and appeals from -this Court, I cannot but think that its authors referred to decisions made by a tribunal clothed with general jurisdiction in law and equity, and not .merely a special authority, with all, and not with a part of the powers of the Supreme Court of the constitution. Decisions made at a special "term by virtue of an authority however extensive yet less than that above mentioned, an aúthority granted by the Legislature and not given directly by the constitution, cannot with propriety be considered as the judgments and decrees of a Supreme Court within the meaning of the 25th section.

If this view is erroneous, then we have a Supreme Court with twenty-eight, instead of eight branches, and the uniformity of decision which the framers of the constitution supposed might be attained by the system as it came from their hands, is rendered impracticable. (See Delates, Croswell’s Ed. 372; 4th and 6th prop. of Mr. Ruggles; Remarks of Mr. Jordan, 508, 513; Mr. Kirkland’s prop., 376.)

The judiciary act accords with this construction of the constitution. It was the manifest intention of the Legislature by that statute to afford to every suitor aggrieved by a decision at a special term, the opportunity of a re-hearing in the nature of an appeal in the same Court and before other Judges. (Laws of 1847, 325, § 20; act to amend, ib. 638, §§ 21, 22 and 23.)

The statute, it will be observed, confines the original hearing to the special term. Litigants therefore cannot elect their forum. If a review in the same Court is not a matter of right, every case must be heard, and can be finally determined by a single Judge, unless in the exercise of a discretion yyhich cannot be questioned elsewhere, he should transmit it to the general term. In the second place, the right of either party to apply for a re-hearing, is absolute and unqualified, and coextensive with the authority of the Judge at a special term to hear and determine. The authority to refuse the application is not granted to the Court by the terms of the statute, nor does it al’ise by any fair implication.

Thirdly, the technical re-hearing of the Court of Chancery, is not the re-hearing mentioned in the judiciary act. The former is provided for by the 16th section, which vests in the Supreme Court the jurisdiction possessed and exercised by the Court of Chancery, and the Judges, with the powers of the Chancellor. The right to grant a re-hearing, was one of the ordinary powers of a Court of Chancery.

Fourthly, the re-hearing of Chancery does net extend to orders obtained upon motion, but is confined to decisions made upon the merits, and to a certain class of decretal orders. (1 Barbour Ch. Pr. 353.) But the right to a rehearing under the statute, applies “to every suit and proceedings that shall be heard and determined at a special term.”

Fifthly, because by the practice of the Court the technical re-hearing must be sought from the same officer who originally heard and decided the cause. (Fox vs. Mc Keath, 2 Cox R. 159; 8 Ves. 564 ; 1 Paige 57.) The exceptions to the rule are, 1st, where the Judge who made the decree is not in office at the time of the application for a re-hearing. (Gresley’s Ev. 410 ;) and 2d, those cases in which the re-hearing is in the nature of an appeal.

. ' ISTow the judiciary act directs that the application for the re-hearing shall be made to a tribunal, all of whose officers may be, and a majority of whom will be, different from the one who has heard the cause. The error imputed to the decree or order must be fully brought before them, and this cannot be done but by a proceeding which, however denominated, will in effect be a re-hearing in the nature of an appeal.

And lastly, the hypothesis that an appeal will lie from a decree at a special term, leads to a conflict of jurisdiction. From an interlocutory order for example, the complainant may appeal, and the defendant apply for a re-hearing. But an appeal properly made, stays all proceedings, a re-hearing with others, (2 R. S. 608, § 86,) adopted by the judiciary act, § 11. If not- stayed, in what Court are the errors of which both parties complain, to be corrected ? This absurdity is avoided if the right of appeal is confined to decisions made at a general term.

The above are some of the reasons which induce the belief that the Legislature used' the term re-hearing, not in a technical but in its popular sense, as equivalent to a second hearing. They could not with propriety provide for an appeal, because this is an application after a complete judgment, to a Superior Court having a right to review that judgment. The Judges, at the special and general terms, although exercising a different authority, administer justice in the same court. Hence a method was adopted by which the cause could be reviewed, analogous to a re-hearing, inasmuch as it was by the same court, and in the nature of an appeal, because that review must be had before different Judges. (Gresley’s Ev. 410.)

The order in question, not having been presented to the Supreme Court, at a general term, for review, is not therefore the subject of an appeal to this Court, according to the true intent and meaning o-f the constitution, and of the act in relation to the judiciary.

All the other Judges concurred in the result of the above opinions, and the appeal was accordingly dismissed.


author: The Court

text:
    Burkle vs. Luce.
    A defendant m error, who was prosecuted in the Court below for an act done by him as a public officer, is entitled to double costs in error, on the affirmance of the judgment.
    The Court of Appeals does not lose jurisdiction of a cause brought up by writ ot error, until*the remittitur is actually filed with the Clerk of the Court below.
    Double costs. The defendant in error was sued in the Supreme Court for an act done by him as a public officer. The judgment in that Court was in his favor, and was affirmed by this Court in January last. The usual entry of the judgment was made' by the Clerk, giving only single costs, and without any request for that purpose the Clerk also made out a remittitur and sent it by mail to.the. Attorney for the defendant in error. The Attorney seeing that only single costs were allowed, did not file the remittitur in the Supreme Court, hut kept it in his own hands, and now moved this Court that the entry of the judgment be so corrected as to give double costs.

      N. Hill, jr. for the motion, cited 2, R. S. 617, § 24; Murray vs. Blatchford, 2 Wend. 221.

      J. H. Carey, for plaintiff in error,
    insisted that as the remittitur had been sent to the Attorney for the defendant in error, who might file ‘it in the Supreme Court at pleasure, this Court had lost jurisdiction of the cause. (Delaplaine vs. Bergen, 7 Hill 591; Legg vs. Overbagh, 4 Wend. 188.) Also that the statue allowing double costs did not apply to a defendant in a writ of error.
   The Court

held, that the statue gives double costs to public officers on writ of error as well as in the Court of original jurisdiction. Also, that the Court did not lose jurisdiction until the remittitur should be filed in the Court below; and as that had not been done in this case, that the motion might be granted, on condition that the Attorney return the remittitur to the Clerk of this Court to be cancelled.

Rule accordingly.


text:
    Martin vs. Wilson.
    Where after affirmance of the judgment of the Court below, a remittitur has been sent to and filed with the Clerk of that' Court, this Court loses jurisdiction of the cause, so that it cannot open a default therein.

      O. W. Sturtevant, for the plaintiff in error moved to open a judgment of affirmance by default in this case at the last January term, and read affidavits' excusing the default.

      J. 3. Magher, for the defendant in error, read an affidavit showing.that a remittitur had been issued and duly filed in «the Supreme Court.
   The Court

held that it lost jurisdiction of the cause when the remittitur was filed in the Court below, and on that ground

Denied the motion.


text:
    Jewell vs. Schouten.
    Where the attorney for the plaintiff in error removed from the State, and notice had been given to the party to appoint another attorney pursuant to the statute (2 22. S. 287, § 67.) held nevertheless, that a motion to quash the writ of error could not be made, without notice thereof to the plaintiff" in error.
    - for defendant in error moved exparte to dismiss the writ of error in this'cause. It appeared from the affidavits on which the motion was made, that in the summer of 1846, the attorney for the plaintiff in error, removed out of the State to reside; that in October of that year, a notice was served upon the plaintiff in error to appoint another attorney, and that none had been appointed. 2 B. S. 287, § 67, and The Chautaque County Bank vs. Bisley, 6 Mill 375, were cited. •
   The Court

held that notice of the motion should have been • given to the plaintiff in error, and, therefore, that the motion should he denied without prejudice.

Ordered accordingly.


author: Weight, J. Jewett, Ch. J. Bronson, J.,

text:
    Sparrow vs. Kingman.
    In ejectment for dower against a grantee of tbs husband by quit claim deed, or a person holding under such grantee, the defendant is not estopped from shewing that the husband was not seized of such an estate in the premises as to entitle his widow to dowei.
    T-he cases of Sherwood vs. Vandenburgh, (2 Hill 303,) Bowne vs. Potter, (Í7 Wend 164,) and other similar cases in the Supreme Court, considered, and in this re» spect overruled.
    Error from the Supreme Court. Elizabeth Kingman brought ejectment in the Common Pleas of Erie County, against Erastus Sparrow to recover an undivided sixth part of certain premises as the widow of George G. Kingman, deceased. After issue joined, the cause was removed by certiorari into the Supreme Court, and was tried at the Erie Circuit, before Dayton, Circuit Judge, in January, .1846. On the trial, the marriage of the plaintiff, and the death of her husband, were admitted.
    The plaintiff proved that her husband, George G. Kingman, and Philo Durfee, were in possession of the. premises from 1887 to 1840 inclusive, claiming as owners, and built certain mills thereon called the “ Erie Millsthat in February, 1841, Kingman gave a quit claim deed of his interest in the premises to S. J. Holley, and that in August, 1841, Durfee also gave a quit claim deed of his interest in the premises, (declared in the deed to be an undivided half) to the defendant. That in April, 1842, the defendant and Holley united in a quit claim deed of the premises to Ira B. Carey, and that the defendant, at the commencement of the suit, was in possession under a lease from Carey. The defendant offered to shew that Kingman never had any estate in the premises of which his wife was dowable, but that his estate was a leasehold estate merely; also that he never had any title whatever to the premises._ The evidence so offered was objected to by the plaintiff, and excluded by the Circuit Judge on the ground, that as Kingman, when in possession, had, by his deed to Holley, assumed to convey a fee, and as the defendant held under that deed, he, the defendant, was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable. The defendant excepted. A verdict was had for the plaintiff, and the defendant, upon bill of exceptions, moved in the Supreme Court for a new trial, which motion was denied, and judgment rendered for the plaintiff. The defendant brings error.

      H. 8. Bodge, for plaintiff in error.
    I. - The Circuit Judge erred in excluding the evidence offered to show that Kingman never had any estate in the premises.
    1. The acceptance by Holley of Kingman s quit-claim deed-poll to him, did not estop him, or those claiming under him, from showing that Kingman had no title. An estoppel by acceptance of possession is only in pais, and therefore only applies to a lessee or other grantee, who is under obligation to restore the possession. (Co. Littleton, 352, a; Watkins vs. Holman, 16 Peters, 25 ; Small vs. Proctor, 15 Mass, R. 499 ; Osterhout vs. Shoemaker, 3 Hill, 518.)
    2. There can be no estoppel for want of mutuality; King-man himself would not have been estopped by his quit-claim deed from showing that no title passed by it. (Jackson vs. Hubbell, 1 Cowen. 616; Jackson vs. Bradford, 4 Wend., 622 ; Jackson vs. Waldron, 13 Wend., 178.)
    3. His widow would not be estopped, even if he had covenanted, and therefore she cannot estop the grantee. (2 Smith’s Leading Cases, p. 438 : Jewell vs. Harrington, 19 Wend., 471; Gaunt vs. Wainman, 3 Bing., N. C. 69.)
    II. The Circuit Judge erred in excluding the evidence offered to shew that Kingman had an estate for years, or some other estate not of inheritance.
    1. The cases relied upon on the other side, were cases where the offers were to shew no title in the husband, not to shew a less estate, and if they are conceded to be law, they do not determine this question.
    2. There is no estoppel where an interest passes; in other words, it may always be shewn that a less estate passed than the estate mentioned in the deed, although it be an indenture. (Treport’s Case, 6 Rep. 146; 2. William’s Saunder’s 418 note 1; 2 Smith’s Leading Cases 438, 457).
    III. But the foundation of the - argument to prove an estoppel, i. e. in the words of the Circuit Judge, that “ by the deed to Holley, Kingman assumed to convey afee,” wholly fails in the present case.
    1. The deed is a mere quit claim and release, and therefore only purports to convey the right that the grantor had, and for that reason never could operate as an estoppel. (Right vs. Bucknell, 2 B. and Ald. 278.) At most, the deed merely affirms that Kingman was entitled to a fee, or some other estate, and there could be no estoppel from such an uncertain recital if it had been made expressly. (Right vs. Bucknell, ubi supra.)

    2. If there ever were any doubt of this point, there can be none since the provisions of the Revised Statutes. (1 R. S. 738, 739, §§ 136, 140, 142, 143, 144, 145; also, 1 R. S. 748, § 1, 2).
    8. The deed, therefore, from Kingman to Holley, was intended and assumed to pass whatever estate and interest Kingman had without defining it, and must be read as if it had expressly so stated its object.

      IT. Sill, Jr., for defendant in error.
    I. The actual possession and use of the premises by the plaintiff’s husband, claiming to be owner, and building the “ Erie Mill’s” thereon, proved such an estate in the husband as entitles her to dower. (Bowne vs. Potter, 17 Wend. 164; Carpenter vs. Weeks, 2 Hill, 341; Sherwood vs. Vandenburgh, do. 303; Jackson vs. Walter, 5 Cow. 301.)
    II. The Circuit Judge correctly ruled that the defendant was estopped from denying the title of Kingman, the plaintiff’s husband, inasmuch as he was in possession of the whole estate under the deed from Kingman, and held by the same title that Kingman did. (Hitchcock vs. Harrington, 6 Johns. 290 ; Collins vs. Torrey, 7 do. 278; Hitchcock vs. Carpenter, 9 do. 344 ; Davis vs. Darrow, 12 Wend. 65; Bowne vs. Potter, 17 Wend. 164; Sherwood vs. Vandenburgh, 2 Hill 303.)
   Weight, J.

On the trial, at the Circuit, the marriage of the plaintiff below with George G. Kingman, and the death of the latter, were admitted; and when the plaintiff rested her cause, she had prima facie established a seizin in fee of her husband, in his lifetime, in the lands from which dower was demanded. For this purpose, it was sufficient to shew his actual possession of the premises, claiming as owner. This is presumptive evidence of seizin, and sufficient until the contrary appears. (2 Philips evidence 282 ; 2 John R. 123, 5 Cowen 301.) But she went further, shewing a quit claim or release of the premises from her husband to S. J. Holley, and from Holley and others by successive releases to the landlord of the defendant. To rebut the presumption of seizin', arising from this evidence, the defendant offered to shew affirmatively that Kingman never had any title to the premises, or that, at most, he had but a leasehold estate, of which his wife was not dowable. The Circuit Judge rejected this evidence, and decided that as Kingman, when in possession, had by his deed to Holley, assumed to convey a fee, and as the defendant held under that deed he was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable, and that upon the evidence given, the plaintiff "was entitled to a verdict.

I am of opinion that it will be difficult to rest this decision upon sound principle, or to reconcile it with the doctrine of estoppels, as generally understood and expounded by the Courts; although I am aware that there are several cases in our own Courts, that hold that a grantee of the husband, is estopped from denying his seizin in an action of dower brought by the widow. (6 John. R. 393; 7 J. R. 279; 12 Wend. R. 47 ; 17 Wend. 164; See 2 Hill; 3 Hill 518.) Perhaps, the case of Bovine vs. Potter, (17 Wend. 164) is the only one that may be said to entirely assimilate with the present. The error originated in. a dictum of- a Judge of the Supreme Court, in an early case, and has -been followed until the present time ; recently, not because the misapplication of the law of estoppels was not distinctly seen by the learned Judges who sat in thé Supreme Court, but for the reason that the rule had been conclusively settled for them by repeated adjudications of the predecessors. Here, however, the question is not res adjudicada,, and we shall be at liberty to reject the rule, if it shall be found, on examination, irreconcilable with the doctrine of estoppels in pais, and unsupported by principle or binding authority.

If the grantee, in fee is estopped from denying the seizin of his grantor, a uniform and invariable application should be given to the rules. Indeed, the reason is not so strong for applying it in dower cases (in which only it has been fully applied) as in cases arising immediately between grantor and grantee, or those claiming under conveyances from the grantor. If the grantee, therefore, is invariably estopped, the grantor, also, is concluded; for it is a -principle of the law of stoppels that they must be mutual. But, I am not aware that it has been latterly, doubted, that a grantor who conveys, or releases, without interest in the lands conveyed or released, may not show that he had no title to pass by his conveyance; unless, in the conveyance itself, by way of recital or otherwise, he represents himself to be the owner of the premises, or having some particular interest therein,. which it would be fraudulent to permit him to gainsay or deny. The recital, in a conveyance with certainty of a particular fact forming an inducement for the contract, will bind the grantor, but otherwise there is no estoppel. General words will not have this effect. When a grantor conveys, without title, but with covenant of warranty, he will be concluded, and an after acquired estate will pass to the grantee, not because the party conveying had a title at the execution of his deed, or that the law will presume such an absurdity, but by way of avoiding circuity of action. An equitable estoppel will be interposed. The' grantor has solemnly covenanted that he had title at the date of his conveyance, and has agreed to warrant and defend it; the law will not permit the grantee to be evicted, and put to his action against the grantor on the covenant; or in other words, it will, in an action by the latter to recover the possession of the premises, estop him from impeaching a title to the soundness of which he must answer on his warranty.” But the grantor is not concluded unless an action may be brought against him. A quit claim deed only purports to release and quit claim whatever interest the grantor may then have in the premises. If he have none in esse at its delivery, nothing passes; and not having covenanted to be answerable for the soundness of the title conveyed, should the grantor afterwards acquire a valid estate in the premises, he could not be chargeable with bad faith in attempting to enforce it. In such a case he could not bo met by any direct admission on his part, inconsistent with the title or claim he purposed to set up, and upon which the other party could have an action, and which would create 'an injury to such party by allowing it to be disproved. Kingman, the grantor in the present case, therefore, would not have been estopped by his quit claim deed to Holley from shewing cither that no title passed by it, or that the estate conveyed was less than a fee. (1 Cowen 616 ; 4 Wend. 622; 13 Wend. 178; 3 Hill 219.) The Circuit Judge grounded his decision upon the fact “ that Kingman, when in possession, had by his deed to Holley, assumed to convey a fee.” This, it seems to me, was an unwarrantable construction of the deed. It was an ordinary quit claim, that might be, and often is used, to pass an estate less than a fee. Kingman, by giving it, could assume nothing in relation to the extent or nature of the estate. The law fixes the force and effect to be given to the instrument. It could pass no greater estate or interest than the grantor' himself possessed at the delivery of it. Had Kingman been a tenant for life or years, or seized in fee, all his title, estate or interest would have passed to the grantee by the conveyance which he executed, and nothing more. (1 R. S. 739, §§ 142, 143, 145.) The deed, therefore, from Kingman to Holley, assumed to pass whatever estate and interest Kingman had without specifically defining it.

If. the grantor, then, might shew that no title passed by his quit claim, and recover the land in opposition to it, why should the mouth of his grantee be closed from denying that he received an estate in fee from him, or that, indeed, any title passed by his conveyance ? Apply the rule of mutuality, and it is impossible to assign a valid reason. Both parties must be bound, or intended to be, else neither is concluded. There can be no soundness in the principle of estopping a grantee from shewing that no interest passed to him by the deed of the grantor, while the latter is permitted to shew it. But, it may be further observed, that "this was an action for dower brought by Kingman’s widow, and had Kingman conveyed the premises to Holley, with covenant of warranty, and thereby, by the doctrine of equitable estoppel, concluded himself from denying that a title passed by his deed, the widow could not have been affected. His covenant could not have estopped her. She would have been neither a party nor privy, but a stranger to the conveyance, claiming by paramount title. She would not be concluded if the grantor was, and by the rule of mutuality, as against a stranger, the grantee should not be. In the case of Gaunt vs. Wainman, (3 Bing. N. C. 69,) the tenant was permitted to shew the land to be leasehold, although it was set forth as freehold in the deed to himself which was produced at the trial. Tindall, O. J. said, that “if an estoppel existed it must of necessity be mutual; but that it could not be contended that if a husband conveyed freehold as leasehold, his widow would be concluded from shewing the real nature of the estate;” and he therefore held that the same right existed in the tenant. In the case under consideration the defendant below proposed to show that Kingman had hut a leasehold estate, even, admitting that by his quit claim he assumed to convey a fee; and in this respect, the case of Gaunt vs. Wainman, is in direct conflict with the ruling of the Circuit Judge. It has, also, been held that if baron and feme join in a lease for years, by indenture, rendering rent, where the baron hath all the estate and the wife nothing; after the death of the baron the lessee, in action of debt brought by the feme, shall not be concluded to say that at the time of the lease made, the feme had nothing in the lands, because the feme being covert was not estopped, and, by consequence, neither shall the lessee, for the reason that all estoppels ought to be mutual. (Bacon’s Abrdg. Title Leases, (O.) and Cases cited.) To hold therefore, that the grantee is estopped, when sued by the widow, from shewing that his grantor had no estate in premises, or a less estate than his deed purported to convey, whilst the widow not being a party or privy to the conveyance, is not barred, is a violation of Lord' Coke’s first rule, viz: that “ estoppels ought to be reciprocal-”

It is contended that the grantee is concluded by acceptance of the deed. . But, waiving the doctrine of mutuality, this cannot lie, unless there be an estate which has actually passed to the grantee by it, co-extensive with its description in the conveyance. The mere acceptance of a deed-poll, when no interest actually passes by it, surely cannot conclude the party accepting. Such a conclusion would be totally irreconcilable with every principle of the law of estoppel in pais. Lord Coke, in treating of estoppels in pais, includes that by acceptance of an estate,” but he distinctly illustrates his meaning, by an example which he gives of a case put by Littleton, viz: of a common law assurance by feoffment without writing accompanying it. Such an assurance operated on the possession, and if correctly pursued always passed a freehold or fee simple to the feoffee. But in the case of a conveyance by grant, bargain and sale or release, in which it" is never necessary that actual possession should accompany the deed, the very point is whether an estate existed in "the grantor, and has passed, to be accepted. In Taylor's case 34 Eliz. (cited in Sir W. Jones 317) which has been relied on to sustain the doctrine that a grantee is estopped in dower cases to deny the seizin of the husband, it was held that if a tenant at will or for years make a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seized. This is the case of a tortious feoffment, in which the feoffee has obtained and retains the actual seizin of the lands by a wrong, in which he is in some degree a willing participant. It is to be remembered that to make a valid feoffment, nothing was wanting but possession, and when the feoffor, had possession, though a mere naked one, a freehold or fee simple passed to the feoffee by reason of the livery. This livery of seizin was the investiture or delivery of corporal possession of the land to the feoffee, and was absolutely necessary to complete the gift. It was a corporal transfer of the soil from one man to another taking effect in presentí- or not .at all. The feoffee was a principal actor in the transfer, and passed at once into the full enjoyment of the fee. (Litt. § 595, 599, 611, 698; Co. Litt. 366, 367 a ; 2 Black Com. 310, 313.) The feoffment, which could not be made without an acceptance of the possession by the feoffee, whether tortious or not, operated as a disseisin of the owner, and although he had a right of entry by action in the case of a tortious disseisin, that right might be tolled by a descent cast. Consequently, it will be seen that, the acceptance of an estate passed by feoffment and livery of seizin differs widely from the acceptance of a modern conveyance by. grant in which it is never necessary to give it validity, to enter and take corporal possession of the land, and by which the grantor may obtain a fee, or a less estate, or no estate a.t all. The former was one of those solemn notorious acts in pais to which the common law attaches peculiar and extraordinary efficacy and importance; as much so as to matters shown by record or writing un.der seal. Hence, Lord Coke in enumerating estoppels in pais includes such an acceptance. But who ever heard, at common law, that where an interest in lands was attempted to be conveyed by deed-poll, without livery, that the grantee who accepted the deed was estopped from controverting the seizin of the grantor, or in other words from shewing that nothing, or a less estate than a fee, passed by such deed ? Even in the case of a lessee by deed-poll it was formerly held that he might dispute his lessors title. (Co. Litt. 47 b.; Litt. Sec. 58; 1 Ld. Raymond 746.) A conveyance by feoffment, with livery of seizin, has long fallen into disuse even in England, and, at least with us, a grant without the ceremony of livery is made competent to convey and pass all the estate and interest which the grantor can lawfully convey. Indeed, a grant never passed any thing more. (Litt. § 608.) The grant not operating directly upon the possession as in the case of a feoffment, but simply on the estate and interest which the grantor had in the premises granted, if nothing actually passes, it is obvious there can be no acceptance of an estate; or if the grantor have a less estate than he conveys, only the estate which he has passes, and the acceptance must necessarily be of the estate passed. So that in the conveyance of lands by deed, the question whether there has been, an acceptance of an.estate by the grantee, and the extent of it, depends on the solution of the prior question whether the grantor had any estate to convey, and if he had, what is its real nature. A point which must be determined by prodf aliunde. In the present case the opportunity was denied to the defendant below of solving the question whether Kingman had any estate or interest to pass by his deed; and if he had, the nature and extent of it; and the Judge assumed that the mere acceptance of the instrument, whether it passed any thing or not, was sufficient to. estop the defendant from controverting Kingman’s seizin.

It was intimated in the case of Springstein vs. Schermerhorn, (12 John R. 363) that Coke Litt. 47, b. was an authority to shew that a grantee generally, under any form of conveyance, was concluded from denying the title of his grantor. But the doctrine is far from being sustained by the authority. It is this, “ that if a man takes a lease for years by indenture of his own lands, whereof he himself is in actual seizin and possession, this estops him during the time to say that the lessor had nothing in the lands at the time of the lease made, but that he himself, or such other person, was then in actual seizin or possession thereof; for, by acceptance thereof by indenture. he is, for the time,- as perfect a lessee for years, as if the lessor had at the time of the making thereof an absolute fee and inheritance in him.” The remarks of the learned text writer are limited to a lease indented in which the grantee is estopped by his own contract under seal, and not by an act in pais. The extent of the authority is that the lessee is concluded by his own deed, for it is .immediately said, but if such lease for years were made by deed-poll of lands wherein the lessor had nothing, this would not estop the lessee to aver that the lessor had nothing in those lands at the time of the lease made; because the deed-poll is only the deed of the lessor, whereas the indenture is the deed of both parties, and both are as it were put in and shut up by the indenture, that is where both seal and execute it, as they may and ought.” (Co. Litt. 47, b. Bacon’s Abrg. “ Leases.” (O)). It is not law now, that a lessee even by deed-poll, who retains possession under his lease, may dispute the title of his lessor, but it was in the time of Lord Coke, and hence the illustration is pertinent and conclusive in limiting and defining the extent of the authority cited. Again, it has been repeatedly held that it may be shewn that a less estate passed than the estate mentioned in the deed, although it be an indenture ; which could not be, if the rule was universal that a grantee is concluded by an acceptance of the conveyance. (3 Wms. Saunders 418, note a; 2 Smith’s Leading Cases, 457; 4 Kent’s Com. 98.) No proposition can be more undoubted, than that the grantee in a deed-poll is never' estopped by. the terms of the grant, for it is not his deed,. not having sealed and executed it; and it seems a sheer absurdity to say that he is concluded by acceptance of a con veyancc, by which no estate actually passed to him, for the reason that the grantor had none to convey. Such a doctrine is entirely irreconcilable with the system of modern conveyancing and transfer of lands, and if carried out would lead to innumerable and perplexing difficulties. Actions on covenants of seizin, or warranty, or for quiet enjoyment are of daily occurrence, but how would it be possible ever to maintain them, if a grantee by an acceptance of the deed of his grantor, is barred from showing a paramount title, or a defect in the estate of the latter ? If this rule prevailed, these covenants in our modern conveyances might be inserted as ornaments, but would be of little practical utility.

Chief Justice Nelson, in the case of the Welland Canal Company vs. Hathaway, (8 Wend. 483,) defined the doctrine of an estoppel in pais as follows: “Asa general rule, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of tlie latter.” He adds that the party will be concluded “ when in good conscience and honest dealing he ought'not to be permitted to giansay” his acts or admissions. Bronson, J., in Dezell vs. Odell, (3 Hill 225) adopts this definition with approbation, and adds, “ A party is only concluded against shewing the truth, or asserting his legal right, when that would have the effect of doing a wrong through his means to some third person.” Under such circumstances, Justice Cowen remarks, in the latter case, “ for the prevention of fraud, the law holds the act or admission to be conclusive.” It must, however, have been acted upon by the other party. The party who accepts the deed in fee of a grantor having no title or a less estate than he conveys, performs no act expressly designed to influence and influencing the conduct of the latter to his injury; nor does he make, any admission which, “ in good conscience and honest dealing, he ought not to be permitted to gainsay.” The fraud, if any there be, is on the part of the grantor, and the injury will fall solely upon the grantee, unless he be permitted to shew the truth. There is no relation existing between the grantee in fee and his grantor, as will raise even an implied obligation on the part of the former against a denial of the title and estate of the latter. In Osterhout vs. Shoemaker, (3 Hill 518) the Court undoubtedly lays down the true rule. Bronson, T., in delivering the opinion of the Court, says: “Although a te| nant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor, and there can be ncJ good reason why he should not be at liberty to deny that' the grantor had any title. There is no estoppel where the occupant is not under an obligation, express or implied, that he will at some time or in some event, surrender the possession The grantee in fee is under no such obligation. He does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at his pleasure. He owes no faith or allegiance to'the grantor, and he does him' no wrong when he treats him as an utter stranger to the title.” [See also 15 Mass. R. 499.) The reason of the rule is readily seen why a tenant in possession may not question his landlord’s title, or a vendee, under an agreement to purchase, that of the vendor. He has obtained the possession which he would not otherwise have had, “ Under an obligation, express or implied, that he will, at some time or in some event, surrender it.”' The law will hold him to his obligation. But even in the case of a tenant or vendee, should he first restore the possession, there would be no obstacle in the way of controverting the landlord or vendor’s title.- Originally, at common law, as we have seen, the lessee by deed poll might always dispute the estate of the lessor; and he is now permitted to shew that the landlord had- a less interest than he demised. In Doe vs. Barton, (11 Adol. and Ellis 315,) it was held that in ejectment the tenant may protect his possession against his landlord by shewing that the title of the latter was defeasible under a prior mortgage, at the time the lease was made, and that he has since been compelled to pay rent to the mortgagee, and put him in constructive possession of the premises. Thus, even in the case of a lessee where there has been a constructive eviction, as in Doe vs. Barton, he may she rf a' state of facts in the protection of his possession, inconsistent with the claim or title of his lessor. Where there has been an actual eviction by title paramount, this right has never been doubted. It would, therefore, be strange indeed, if a grantee in fee, who is never under any obligation to restore the possession, and who may have been compelled to purchase in for his protection an outstanding valid title, should be concluded from shewing that no title passed by the deed of his grantor, or that the estate or' interest which passed was less than that mentioned in the deed.

I am of the opinion that the judgment of the Supreme Court should be reversed, and am content to place my vote for reversal on the distinct ground, that in an action for dower the grantee in fee of the husband is not concluded from affirmatively controverting the seizin of the latter. This is the law of England and of Massachusetts, and if an opposite rule has heretofore prevailed in this State, it is not too late to correct the error. Where property has been acquired, or rights matured, and exist, under an erroneous decision of the Courts, insomuch that irreparable mischief and injury must necessarily result from its overthrow, the maxim- of stare decisis should prevail. But this is not one of those errors, from the correction of which injurious-consequences may follow.

Jewett, Ch. J.

The question to be decided in this case is, whether it was competent for the defendant to show, that Kingman never had any estate of inheritance in the premises. The Judge decided that as Kingman, when in possession had by his deed to Holley, assumed to convey in fee, and as the defendant held under that deed, he was hound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowable.

It cannot he denied, but that the decision of the Judge on the trial is in conformity with the principles settled by a series of cases determined by the Supreme Court, from Bancroft vs. White, (1 Caines 185) to Sherwood vs. Vandenburgh. (2 Hill 303.) In the latter case, however, the late Mr. Justice Cowen put his opinion upon the ground of the authorities. and not upon the ground, that the doctrine of escoppel had been in those cases correctly applied, and distinctly suggested that the question was a very fit one for review in the Court for the correction of errors. And Mr. Justice Bronson in Osterhout vs. Shoemaker, (3 Hill 513) remarked in reference to the cases which hold, that in dower the grantee of the husband is estopped to deny the grantor’s title, that they were to be followed because the rule had been so settled, and not because it rested on any sound principle.

As defined in the books, an estoppel is when a man is concluded by his own act or acceptance, to say the truth,” of which there are three kinds. By matter of record, by deed, and by matter of pais. The estoppel which the plaintiff claims in this case arises by matter in pais, if at all; that species arises, by livery, by entry, by acceptance of rent, by partition, and by acceptance of an estate. (Co. Litt. 666, 667.)

The principle in respect to that, which arises by an acceptance of an estate, is, that a man shall not be permitted, during his possession of premises, to dispute the- title of' the landlord under whom he entered, and applies only in cases where the party accepting the estate is under some obligation, express or implied, that he will at some time or in some event surrender the possession. “ The grantee in fee, is under no such obligation. He does not receive the possession under any contract express or implied that be will ever give it up. He takes the land to hold for himself, and to,.dispose of it at pleasure. He owes no faith or allegiance to the grantor, and does him no wrong when he treats him as an utter stranger to the' title.’ ’

The deed from Kingman to Holley was a mere quit claim, deed-poll, of one part, signed by Kingman only. Therefore, no one at common law, would be bound by it, but he, and it would not work an estoppel against the grantee, and I think not as against the grantor. (Co. Litt. 47, 61, Shep. Touch. 1 Am. Ed. 53, Right vs. Bucknell, 2 Barn and Adol. 278.) At the common law, all the parts of a deed indented in judgment of law made but one deed, and every part was of aa great force as all the parts together, and were esteemed the mutual deeds of either party, and either party might be bound by either part of the same, and the words of the indenture were the words of either party. It was stronger than a deed-poll, for it worked an estoppel against either party to say or except any thing against any thing contained in it. (1 Sheph. Touch. 53 Plow. 434.)

The argument on the side of the plaintiff is that Kingman assumed to convey a fee; and that as the defendant held under that deed, he was bound by that assumption. This, I think is founded upon a mistake of fact as well as of law. I have already remarked that the deed is merely a quit claim deed-poll; and therefore, upon its face and by its terms, it only purports to convey whatever interest in the premises the grantor then had. It does not affirm that he had any. How then can the grantor be supposed conclusively to admit that he had ? -If the admission should be co-extensive - with the grant, it would be but conditional; that is, that if the grantor had any right or interest, which passed by his deed it vested in Holley the grantee.

And now, by 1 R. S. 739, § 143, it is enacted .that no greater estate or interest shall be construed to pass by any grant or conveyance, thereafter executed, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant should be conclusive as against the grantor and his heirs claiming from him by descent ; and by § 145, it is declared that a conveyance made by a tenant for life or years, of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantor all the title, estate, or interest, which such tenant could lawfully convey.

And again, by 1 R. S. 748, § 1, it is declared that every grant or devise in real estate, or any interest therein, thereafter to be executed, shall pass all the estate, or interest of the grantor or testator; unless the intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant; and § 2 provides that in the construction of every instrument ere ating or conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of Courts of Justice, to carry into effect the intent of the parties, so far as it can be collected from the whole instrument, and is consistent with the rulés of law. ¡Now, I do not think that we are authorized to say that Kingman assumed by his deed to convey a fee; the clear intent, as well as expression of his deed, is to convey only what interest or estate he then had in the premises. But again. Qo. Litt. 352 a, shows, that every estoppel must be-reciprocal, that is to bind both parties, and that is the reason that, regularly, a stranger shall neither take advantage of, nor be bound *by, the- estoppel; but privies' in blood, as the heir, and privies in estate, as the feoffee, lessee, &c.; privies in law, as the lord by escheat,'tenant by the courtesy, tenant in dower, the incumbent of a benifiee, and others that come in under by act of law, or in the post, shall be bound by, and take advantage of estoppels.; and Coke, in his twenty-first reading on fines, says “-estoppel is reciprocal on both sides ; for he that shall not be concluded by a record or other matter of estoppel, shall not conclude another by it.” (Doe vs. Martin, 8. Barn, and Cress. 497.)

¡Now Kingman himself would not have been estopped by his deed to Holley from showing that no title passed by it, on the ground that it contains no covenant of warranty; an after acquired estate by a grantor passes to his previous grantee by the rule of estoppel, only when there are such covenants of warranty, and then to avoid circuity of action. (Jackson vs. Hubbell, 1 Cowen 616 ; Jackson vs. Bradford, 4 Wend. 622; Jackson vs. Waldron, 13 Wend. 178.)

The plaintiff could not claim any thing by the rule cf estoppel, in respect to the deed executed by her husband to Holley. She is a stranger to it; her right to dower rests upon the title or estate which her husband acquired'prior to his deed tojiolley, and is derivable under his grantor. This would be a sufficient reason -why she could not estop the grantee of her husband. There would be no mutuality, as she would not be bound by it. (Jewell vs. Harrington, 19 Wend. 471.)

The plaintiff' is not entitled to dower in any other lands than in which her husband, during the marriage, was seized of an estate of inheritance; and. I think it clear that when she claims dower, the defendant is at liberty to show in his defence that her husband was not, during the marriage, seized of such an estate. (Gaunt vs. Wainman, 3 Bing. N. C. 69.)

I am therefore of opinion that the judgment should be reversed, and that a venire de novo should be awarded by the Supreme Court, with costs, to abide the event.'

Buggles, Jones, John ¿on and Gray, Js.; concurred in the result of the preceding opinions.

Bronson, J.,

dissenting. As to one-half of the Erie Mills, the defendant derived his title and possession from George G. Kingman, the plaintiff’s husband; and still holds under that title. So long as he thus holds, he is estopped from denying the seizin of the husband, in an action brought by the widow to recover her dower. (Hitchcock v. Harrington, 6 John. 290; Collins v. Torry, 7 John. 278 ; Hitchcock v. Carpenter, 9 John. 344; Davis v. Darrow, 12 Wend. 65 ; Bowne v. Potter, 17 Wend. 164 ; Sherwood v. Vandenburgh, 2 Hill 303.) Questionable as I think this doctrine was at the. first, (2 Hill 308, 3 Hill 518, 519,) it has prevailed too long in this State to be now overturned by a judicial decision. If. there is any good reason for changing the rule, the change should be made by the Legislature, and not by the Courts.

In Maine and New Jersey the rule is the same as it is with us. (Kimball v. Kimball, 2 Greenl. 226 ; Nason v. Allen, 6 id. 243; Hains v. Gardner, 1 Fairf. 383; Hamblin v. Bank of Cumberland, 19 Maine, (1 Appleton) 66 ; English v. Wright, Coxe (N. J.)Rep. 437.) In Massachusetts it is the other way. (Small v. Procter, 15 Mass. 495.)

So long as those claiming under the husband have not been disturbed in the enjoyment of the property, there is no very good reason for allowing them to' defeat the widow’s claim to dower, by setting up an outstanding title, which may never be assorted; and the. current of adjudication in this State has not carried the estoppel beyond cases of that description. There is, I admit, no principle upon which the estoppel can be carried another step, and applied to a case where the husband’s grantee has been obliged to purchase in a good outstanding title for the-purpose of protecting his possession; and if the case of Bowne v. Potter, (17 Wend. 164,) must be considered as going that length, I agree that it cannot be supported. But there is no such question in this case.

This writ of error has, I presume, been brought in consequence of the opinion which had been expressed by Mr; Justice Cowen and myself, and which- opinion I still entertain, that originally the doctrine of estoppel was improperly applied to this class of cases. (Sherwood vs. Vandenburgh, 2 Hill 303-9 ; Osterhout v. Shoemaker, 3 id. 518-19.) But it will be seen that neither of us felt at liberty to depart from the,rule as it had been settled, nor do I feel so now. After an erroneous decision touching rights of property has been, followed thirty or. forty years, or even a much less time, the Courts cannot retrace their steps without committing a new error nearly as great as the one at the first.

The defendant’s counsel places great reliance upon a remark of Mr. Justice Cowen, to the effect, that although the point was too firmly established to be revised by the Supreme Court, it might still be a fit question for review in the Court of Errors. There was, I think, a good deal of irony in that remark. Surely the learned Judge did not intend to be understood that what was settled law in one Court, was not also good law in all the other Courts of the State; that a Justice of the Supreme Court, when sitting in his own Court, was bound to decide one way, and when sitting in the Court of' Errors, was at liberty to decide the. other way. The thing is preposterous. The remark in question was made concerning a Court which not only corrected erroneous decisions, but sometimes took the liberty of reforming the law itself, where it was supposed to need improvement. I claim no such prerogative. I am of opinion that the judgment of the Supreme Court should be affirmed.

Gardiner, J., having been engaged professionally in the Cause, gave no opinion.

Judgment reversed, and venire de novo awarded.