Estoppel by Deed.

No one can be estopped by deed who has not power to make a valid deed.402 When title arises through estoppel by deed, the grantor is estopped to deny that he had the interest which he purports to convey by his deed.403 When the deed is by indenture, both parties may be estopped to deny, unless one of them has been induced to execute the deed by fraud,404 that the contract which arises from the conveyance is binding on them.405 So, too, in a.

18 Wall. 271; Davidson v. Young, 38 111. 145; Boggs v. Mining Co., 14 Cal. 279; Jewett v. Miller, 10 N. Y. 402; Andrews v. Lyons, 11 Allen (Mass.) 849. Contra, Maple v. Kussart, 53 Pa. St. 348.

400 Proctor v. Machine Co., 137 Mass. 159; Proprietors of Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Thayer v. Bacon, 3 Allen (Mass.) 163. But not after acquiescence for the period of the statute of limitations. Chew v Morton, 10 Watts (Pa.) 321.

401 Reed v. Farr, 35 N. Y. 113; Jackson v. Ogden, 7 Johns. (N. Y.) 238; Joyce v. Williams, 26 Mich. 332; Knowles v. Toothaker. 58 Me. 174.

402 Bank of America v. Banks, 101 U. S. 240, 247; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.

403 Logan v. Eaton (N. H.) 31 Atl. 13; Bank of U. S. v. Benning, 4 Cranch, C. C. 81, Fed. Cas. No. 908; Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130.

404 Jackson v. Ayers, 14 Johns. (N. Y.) 224; Alderson v. Miller, 15 Grat (Va.) 979.

405 Fort v. Allen, 110 N. C. 183, 14 S. E. 685; Raby v. Reeves, 112 N. C. 688, 16 S. E. 760; Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Acceptance of a devise may estop the devisee to set up a claim Inconsistent with th» will. Hyde v. Baldwin, 17 Pick. (Mass.) 303; Watson v. Watson, 128 Mass 152.

Deed poll, the grantee may, by his acceptance of the deed, be estopped to deny the contents of the deed.406 A quitclaim deed estops the grantee as to the grantor's capacity.407 The common-law conveyance by feoffment imposed an estoppel on the feoffor during his life, which prevented him from setting up a paramount title subsequently acquired.408 But deeds of release and quitclaim place no ppel on the grantor as to future-acquired interests,409 though they do as to rights existing at the time of the conveyance.410 Deeds operating under the statute of uses cause no estoppels as to either present or future titles, unless they contain covenants which so operate.411 Estoppel by deed may arise through recitals contained therein, such as recitals as to the origin of the title,412 or where the grantor recites that the land conveyed is bounded by a street.413 A recital, however, to be effectual as an estoppel, must be definite.414 Recitals in a will bind those claiming under the will as to particular facts stated therein.415 Deeds containing covenants of warranty estop

406 Comstock v. Smith, 26 Mich. 306; Chloupek v. Perotka, 89 Wis. 551, 62 N. W. 537. A compromise deed does not necessarily raise an estoppel. Strong v. Powell, 92 Ga. 591, 20 S. E. 6. A grantee may show that he was evicted under a title paramount to that of his grantor, and that he is holding as tenant under the owner of such paramount title. Moore v. Smead, 89 Wis. 558, 62 N. W. 426.

407 a grantee under a quitclaim deed from a county is estopped, as against a former grantee of the county, to deny the county's power to convey. Roberts v. Railroad Co., 158 U. S. 1, 15 Sup. Ct 756.

408 3 Washb. Real Prop. (5th Ed.) 103.

409 Frost v. Society, 56 Mich. 62, 22 N. W. 189; Wight t. Shaw, 5 Cush. (Mass.) 56; Miller v. Ewing, 6 Cusli. (Mass.) 34; Hanriek v. Patrick, 119 D. S. 156, 7 Sup. Ct. 147; Jourdain v. Fox (Wis.) 62 N. W. 936; Stephenson v. Boody, 132 Ind. 60, 38 N. E. 331; Brawford v. Wolfe, 103 Mo. 391, 15 S. W. 426; Kimmel v. Benna, 70 Mo. 52: Cbauvin v. Wagner, 18 Mo. 531.

410 Prewitt v. Ashford, 90 Ala. 294, 7 South. 831.

411 Jackson v. Wright, 14 Johns. (N. Y.) 193.

412 Stone v. Fitts, 38 S. C. 393, 17 S. E. 136; Mitchell v. Kinnard (Ky.) 29 S. W. ::ot). And see Lindauer v. Younglove, 47 Minn. 62, 49 N. W. 384; Goodwin v. Folsom (N. H.) 32 Atl. 159. But cf. Frlck v. Fiscus, 164 Pa. St, 623, 30 Atl. 515.

413 But it may be shown that such a recital was inserted by mistake. Long t. Cruger (Tex. Civ. App.) 28 S. W. 508.

414 Onward Building Soc. v. Smithson [1893] 1 Ch. 1.

415 Denu v. Cornell 3 Johns. Cas. (N. Y.) 174; Katz v. Schnaier, 87 Hun,

§ 28) the grantor from setting up a subsequently acquired title against his grantee.416 When there is a conveyance by co-tenants of a joint estate, no estoppel is raised against any one tenant as to the shares of the others.417 Many cases hold that a married woman may be estopped by her deed which is made effectual by her husband joining with her,418 though other cases deny this to be the rule.419 It would seem that a married woman should be estopped by her deed whenever statutes have provided that such deed shall be effectual to pass her title to the property. A wife is not estopped, however, by joining in her husband's conveyance to release her right of dower through any recitals or covenants in such deed. Nor is a husband estopped by joining in his wife's conveyance to release his right of curtesy.420 Estoppels bind only parties and privies.421 They cannot be set up against strangers 422 or by them.423 All persons claiming under one who is estopped are estopped also if they have notice of the facts constituting the estoppel.424 The grantor, however, in a deed which would raise an estoppel against him, may acquire a new title against his grantee,425 as under a tax sale for taxes levied after his conveyance.426

343, 34 N. Y. Supp. 315. But see Hatch v. Ferguson, 15 C. C. A. 201, 68 Fed. 43.

416 Wadhams v. Swan, 109 111. 46; Smith v. Williams, 44 Mich. 240, 6 N. W. 662; Thomas v. Stickle, 32 Iowa, 72. But see Younts v. Starnes, 42 S. C. 22, 19 S. E. 1011. Those claiming under the grantor are estopped. White v. Patten, 24 Pick. (Mass.) 324. And see ante, p. 446. An estoppel to set up an after-acquired title is created by a covenant for further assurance. Bennett v. Waller, 23 111. 183. But the heirs of the grantor are not estopped unless they have received assets from him, Chauvin v. Wagner, 18 Mo. 531; or when they claim by purchase, and not by descent, Trolan v. Rogers, 88 Hun, 422, 34 N. Y. Supp. 836.

417 Weiser v. Weiser, 5 Watts (Pa.) 279; Walker v. Hall, 15 Ohio St. 355. But see Rountree v. Denson, 59 Wis. 522, 18 N. W. 518.

418 Guertin v. Mombleau, 144 111. 32, 33 N. E. 49; Knight v. Thayer, 123 Mass. 25; Sandwich Manuf'g Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379; Bailey v. Seymour, 42 S. C. 322, 20 S. E. 62. Her subsequent grantee may be estopped. Ramboz v. Stowell, 103 Cal. 588, 37 Pac. 519.

419 Thompson v. Merrill, 58 Iowa, 419, 10 N. W. 796; Hempstead v. Easton, 33 Mo. 142; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167; and see Miller v. Miller, 140 Ind. 174, 39 N. E. 547.

420 Raymond v. Holden, 2 Cush. (Mass.) 270; Strawn v. Strawn, 50 111. 33; O'xeil v. Yanderburg, 25 Iowa, 104.

421 Campbell v. Hall, 16 N. Y. 575; Bates v. Norcross, 17 Pick. (Mass.) 14; Graves v. Colwell, 90 111. 612; Broad well v. Merritt, 87 Mo. 95.

422 Right v. Bucknell, 2 Barn. & Adol. 278; Jackson v. Bradford, 4 Wend. (N. Y.) 619.

423 Sunderlin v. Struthers, 47 Pa. St. 411; Glasgow v. Baker, 72 Mo. 441.