Instrument, and in an action upon it, it is not competent for the party bound to deny the recital (t). But an allegation *must, in order to operate as an estoppel, be clear, distinct, and definite (u). As where A. having an equitable estate in fee in certain lands, mortgaged them to B., reciting in the instrument of mortgage that he was legally or equitably entitled to them. He afterwards obtained the legal estate, and conveyed the latter to C. The Court of King's Bench held that, there being in the instrument of mortgage no certain and precise averment of any seisin in A., but merely a recital that he was legally or equitably entitled, C, who claimed under A., was not estopped from setting up against B. the legal estate so acquired by him (x). Such a recital is indeed the hypothesis upon which the contract is made by the parties; and therefore it would quite overthrow their mutual intention, if, in the absence of fraud, the recital could be denied. For the same reason, the estoppel has no effect in matters not depending upon that contract; thus even a *party to a deed is not estopped in an action by another party, not founded on the deed but wholly collateral to it, from disputing the facts so admitted therein (y). In such case evidence of the circumstances under which the admission was made, is receivable to show that it was inconsiderately made, and is not entitled to weight as a proof of the fact it is used to establish (z). For the same reason, if all the facts appear by the deed, a party thereto is not estopped from averring them although they are contradictory to some part of the deed (a). An instructive instance of an estoppel is afforded by the case of Wiles v. Woodward (b). In this case the plaintiff and defendant had been in partnership together as paper manufacturers and iron merchants. The partnership was dissolved by deed, by which it was recited that an agreement had been made that the defendant should have all the stock in'trade of the business of paper merchants, but that the plaintiff should receive paper out of that stock to the value of 898 4s. 11d., which was to remain in the paper mill for a year. *On the other hand the plaintiff was to have the stock in trade in the iron business. The deed further recited, that, in pursuance of that arrangement, paper of that value had been delivered to the plaintiff, and that the same then was in the paper mill, as the plaintiff thereby acknowledged. It then contained an assignment by the defendant to the plaintiff of all the stock in trade of the iron business, and by the plaintiff to the defendant of all the stock in trade of the paper making business, except the 898 4s. 11d. worth of paper delivered to the plaintiff, and mutual releases, and a dissolution of the old partnership. In fact no paper had been delivered or set apart; and in an action of trover for it, it was contended by the defendant, that

(t) Carpenter v. Buller, 8 M. & W. 209; Pilbrow v. Pilbrow's Atmospheric E. C., 5 C. B. (57 E. C. L. E.) 440; Young v. Raincock, 7 C. B. (62 E. C. L. E.) 310; Stronghill v. Buck, 19 L. J. (Q. B.) 209; 14 Q. B. (68 E. C. L. E.) 781. See per Wood, V. C, in Carter v. Carter, 3 Kay & J. 617, 645; 27 L. J. (Ch.) 74, 84.

(u) Eight d. Jeffereys v. Bucknell, 2 B. & Ad. (22 E. C. L. E.) 278; Lain-son v. Tremere, 1 A. & E. (28 E. C. L. E.) 792; Heath v. Crealock, L. E. 10 Ch. 22; 44 L. J. (Ch.) 157; General Finance, Mortgage, and Discount Co. v. Liberator Permanent Benefit Building Soc, 10 Ch. Div. 15.

(x) Eight v. Bucknell, 2 B. & Ad. (22 E. C. L. E.) 278, supra; Heath v. Crealock, L. R. 10 Ch. 22; 44 L. J. (Ch.) 157; General Finance, Mortgage, and Discount Co. v. Liberator Permanent Benefit Building Soc, 10 Ch. Div. 15.

(y) Carter v. Carter, supra; Fraser v. Pendlebury, 31 L. J. (C. P.) 1.


(z) Carpenter v. Buller, supra.

(a) Co. Litt. 352 b.; Pargeter v. Harris, 7 Q. B. (53 E. C. L. R.) 708; Dancer v. Hastings, 4 Bing. (13 E. C. L. R.) 2; Jolly v. Arbuthnot, 4 De G. & J. 224; Morton v. Woods, L. R. 3 Q. B. 658; 4 lb. 293 (Ex. Ch.); 37 L. J. (Q. B.) 242; 38 lb. 81; Rowbotham v. Wilson, 27 L. J. (Q. B.) 61, per Watson, B.; 8 E. & B. (92 E. C. L. R.) 123.

(6) 5 Exch. 557. ' no certain quantity having become the property of the plaintiff, no definite paper could be said to be his; and consequently, that an action of trover, not being an action on the deed, and which implies that the thing sued for is the plaintiff's, could not be supported. But the Court of Exchequer considered that the parties were estopped by the deed, not merely in an action thereon, but in this proceeding, which was to enforce the rights arising out of it. "A recital," said Parke, B., delivering the judgment of the Court, "when it is of a fact agreed upon by both, binds both; and the present claim is not collateral to the deed, as in Carpenter v. Buller. It is, therefore, an estoppel on both. The parties have agreed, with respect to *the stock in trade in the paper business, that they should stand precisely in the same situation as if the stock had been divided, and that part amounting to the stipulated sum had been delivered to the plaintiff; and, being in that situation, the question is what their respective rights are."1

1 One of the most frequent occurring instances of estoppel in pais, or, as it should be in this case more correctly termed, equitable estoppel, is the rule which, in its general application, prohibits the tenant from denying his landlord's title, and which, although it has been supposed to have been feudal in its origin, seems to have arisen in later times. See Judge Hare's note to Duchess of Kingston's case, 2 Smith's Lead. Cas., 8th ed.; Morris on Replevin, 121. "The principle was of necessity called into being by that feature of the action of ejectment which requires an absolute possessory title in the plaintiff, and makes, in its absence, the mere fact of possession decisive in favor of the defendant. The result of allowing the tenant to deny the right of the landlord, in an ejectment for the land, would therefore be to take the estate from the latter, and confer it on the former, whenever there was a defect, either in the title itself, or the proof brought forward to sustain it. This would obviously be equally inconsistent with public policy and private faith, and would prevent men from letting their property, even when they are unable to use it themselves. When, therefore, possession is obtained under a lease, the lessee is estopped from keeping the land in violation of the agreement under which it was acquired:" Note to Duchess of Kingston's case.