Shaw v. Galbraith

Rogers, J. In the text-books of the law, Co. Litt. 385 b; 1 Shep. T., Prest, ed. 182, it is thus laid down: “Neither lineal nor collateral warranty can enlarge an estate; and, therefore, if a lessor by deed release to his lessee for life, and warrant the land to him and his heirs, this doth not make his estate greater, neither will it bar titles of entry or actions in cases of mortmain, consent to a ravisher, (condition on a) mortgage, or dower.” Now, granting on this authority, that, in this deed, a life-estate only is granted, and that the subsequent warranty, or covenant, does not enlarge the estate, yet the question remains whether this covenant may not operate as an equitable rebutter; or, in other words, is Galbraith, and Shaw who claims under him, estopped from asserting a title to the land ? In this case, it matters but little whether the estoppel operates by the ordinary effect, whereby the parties are debarred from denying the passage of the estate, or as a transfer of the estate. On this point there is much learning in the books somewhat difficult to understand, but which we are relieved from examining, as, take it as you may, if an estoppel, it is an answer to the action of the grantor, or those claiming under him, even although the fee may not have been transferred so as to ena 113 ble tbe grantor to support an action against a stranger. On tbe authority above stated we will take it, and perhaps that is the better opinion, that the estate is not enlarged. Are, then, the parties debarred from denying that the estate passes ? By the habendum, in consequence of the omission of the word “heirs,” a life-estate only is conveyed to the grantee; but the deed contains a special warranty, whereby the estate is warranted to the grantee, his heirs and assigns, against the claim of the grantor and his heirs, and every person claiming lawfully the same. Now, although a warranty, in favour of the heirs, may not enlarge the estate, yet it would be against every principle of construction to reject it as surplusage. In the construction of a deed, or will, every word must have its own weight, and certainly a distinct covenant, as here, cannot be utterly disregarded. The deed contains a covenant that the grantor will not molest or disturb (that is its effect) either the grantee or his heirs, and if, contrary to his covenant, he recovers the land and dispossesses the grantee or his heirs, action accrues to recover its value from the grantor. The question then is, whether, to prevent circuity of' action, the defendants may not plead an equitable rebuttal, or estoppel, as against the grantor and those claiming under him. Circuity of action, as my Lord Coke says, Co. Litt. 265 a, is not favoured in law. The principle is founded on this consideration, that it would be against equity to allow the grantor to recover the land, thereby breaking his covenant and exposing himself to an action to recover its value. The principle is recognised in several analogous cases. Thus, in McCracken v. Wright, 14 Johns. 194, and in Jackson v. Bradford, 4 Wend. 622, it is ruled: That, in a deed of bargain and sale, no estate passes, except what is in esse at the time of the grant; but where title is afterwards acquired and there is a warranty in the deed, to avoid circuity of action it operates as an estoppel. Where there is a warranty in the deed, the warranty will rebut and bar the grantor and his heirs of a future right. This is not, as is there said, because the title ever passes by such grant; but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title, to the soundness of which he must answer’ on his warranty. The same principle is also recognised in Somes v. Skinner, 3 Pick. 61; and in McWilliams v. Nisly, 2 Serg. & Rawle, 516. Without then undertaking to determine’ whether the fee-simple is transferred, we are of opinion that the grantor and Shaw, the plaintiff, who claims under him, are estopped from denying the title. But the’ plaintiff contends that none but 114 parties and privies can take advantage of an estoppel, and this, in general, is true ; but it is extended yet further. For the lord by escheat, as is said, Co. Litt. 852 a, the tenant by the curtesy, the tenant in dower and the incumbent of a beneficiary, shall be barred by and shall take advantage of an estoppel. In this it appears that a tenant in dower may take advantage of an estoppel, and although dower here has not been assigned to the widow, yet, by our several intestate acts, she has such an interest in the land as entitles her to defend her possession by way of equitable rebutter. The only question which remains is, was the court right in excluding the deed of Galbraith to Shaw? We think they were. We cannot perceive in what way it bears on the construction of this deed, and, besides, it conveys nothing" to Shaw until after the death of Robert Galbraith, sr., who is still alive. It was then properly excluded, on the ground of irrelevancy, as it gives no present right of entry.' Judgment affirmed.