No doubt a disseisor may abandon the land, or surrender his possession by parol, to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible in evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title, obtained by a disseisin so long continued as to take away the right of entry, and bar an action for the land by limitation, cannot be conveyed by a parol abandonment or relinquishment, it must be transferred by deed. One having such title may go out of possession, declaring he abandons it to the former owner, and intending never again to make any claim to the land, and so may the person who holds an undisputed title by deed; but the law does not preclude them from reclaiming what they have abandoned in a manner not legally binding upon them. A parol conveyance of lands creates nothing more than an estate or lease at will. Stat., c. 91, § 30.
The exceptions are sustained, and a new trial granted.
VI. Title by estoppel.
1. Estoppel in Deed.
29 Maine, 183. - 1848.
Shepley, J. - The title of both parties to the demanded premises is derived from Artemas Ward, who, by his agent Robbins, made a contract in writing on October 26, 1820, to convey a tract of land including the premises to Theodore Jellison upon the performance of certain conditions therein stated. Jellison appears to have entered into possession, but does not appear to have performed the conditions. On July 7, 1823, Jellison assigned that contract to the demandant, and on the same day made a deed of release purporting to convey the same tract of land to the demandant. Artemas Ward, on October 27, 1825, by a deed containing covenants of warranty, conveyed a larger tract of land including the tract before named, to Jones Dyer, Jr., who, on July 11, 1829, conveyed to Theodore Jellison the tract of land described in his deed to the demandant. Jellison, on May 9, 1833, conveyed the premises demanded to Stephen Emerson. These conveyances were all duly recorded. The defendant is the tenant of Joseph Wyeth and Stephen G. Bass, who have exhibited a title derived from Stephen Emerson. The demandant has never been in possession of the land described in his deed from Jellison, but Jellison and those claiming title from Ward through Jellison have always been in possession.
As Jellison had no title when he made his deed on July 7, 1823, the demandant can have none, unless that acquired by Jellison on July 11, 1829, inured to him.
The deed from Jellison to the demandant contains no covenants but the following: " So that neither I, the said Jellison, nor my heirs or any other person or persons claiming from or under me or them, or in the name, right or stead of me or them, shall or will, by any way or means, have, claim or demand any right or title to the aforesaid premises or to any part or parcel thereof forever."
Without entering upon a discussion of the doctrine or the different aspects of it presented in the very numerous cases which have been decided respecting the effect of covenants contained in a conveyance of land to transfer to the vendee by inurement, estoppel, or otherwise, a title subsequently acquired, it will be sufficient for the present purpose to state a couple of positions which appear to have been asserted or admitted in many of them.
1. When one has made a conveyance of land by a deed containing a covenant of warranty, a title subsequently acquired will be transferred to the vendee, or the vendor and those claiming under him will be estopped to deny it. Such is the doctrine in this State. White v. Erskine, 1 Fairf. 306; Lawry v. Williams, 13 Maine R. 281; Baxter v. Bradbury, 20 Maine R. 260. In New Hampshire, Kimball v. Blaisdell, 5 N. H. R. 533. In Vermont, Middlebury College v. Cheney, 1 Vermont R. 336. In Massachusetts, Somes v. Skinner, 3 Pick. 52; White v. Patten, 24 Pick. 324. In New York, Jackson v. Matsdorf, 11 Johns. R 91; Jackson v. Bradford, 4 Wend. 619; Pel-tetreau v. Jackson, 11 Wend. no. In Ohio, Hill v. West, 8 Ham. 222. In the courts of the United States, Terrett v. Taylor, 9 Cranch, 53; Mason v. Muncaster, 9 Wheat. 455; Stoddard v. Gibbs, 1 Sum. 263.
Against these and other decisions to the same effect, it has been contended, that "the old common-law warranty has no practical operation under the system of conveyancing employed in this country, except in the single case of release with warranty to a party in adverse seisin of an estate, and of a subsequent descent of the right of entry or action to the warrantor." And that " the doctrine of estoppel in deeds cannot be based upon that of warranty." Doe v. Oliver, Smith's L. C. 460, in note. If the question could be considered as open to discussion, it might be worthy of deliberate consideration. But it would seem to be too late to entertain it.
2. Where one has made a conveyance of land by deed containing no covenant of warranty, an after-acquired title will not inure or be transferred to the vendee; nor will the vendor be estopped to set up his title subsequently acquired, unless by doing so he be obliged to deny or contradict some fact alleged in his former conveyance.
There is an irreconcilable difference in the decided cases respecting this proposition. It is believed, however, to be fully established by the better-considered opinions, and to be in accordance with well ablished principles.
It is sustained in this State by the cases of Allen v. Sayward, 5 Greenl. 227, and Ham v. Ham, 14 Maine R. 351; and opposed by the case of Fairbanks v. Williamson, 7 Greenl. 96. In New Hampshire it is sustained by the case of Kimball v. Blaidsdell, 5 N. H. R. 533. In Massachusetts it is sustained by the cases of Somes v. Skinner, 3 Pick. 61; Blanchard v. Brooks, 12 Pick. 47; Comstock v. Smith, 13 Pick. 116; and opposed by the case of Trull v. Eastman, 3 Metc. 121. In Connecticut it is sustained by the case of Dart v. Dart, 7 Conn. R. 250. In New York it is sustained by the cases of Jackson v. Wright, 14 Johns. R. 193; Jackson v. Bradford, 4 Wend.