it confers, may make it more or less persuasive evidere against a grantee, by whom it was not sealed; it cannot be made his deed, or estop him from showing that nothing passed by its operation from the grantor, and when the deed is sealed by the grantor alone, the grantee may question his title.' A deed poll estops the grantor, but not the grantee, and the question as to whether both are to be estopped by a deed, or only one, must be ascertained from the whole deed. There is no principle of law which prevents a man from binding himself while leaving others free. A conveyance, by bargain and sale, or lease and release, without warranty or covenants for title, does not ordinarily estop the grantor, but this arises from the generality of the words employed, and is equally applicable and true, whether the grant be by deed poll or by an indenture, executed by the grantee. Therefore, when both parties put their seals to the deed, it may still be a question whether the words of a covenant or recital, by which one of them is alleged to be estopped, are his, or should be regarded as proceeding solely from the other." A deed executed by one party only, but containing an express covenant on the part of the other to perform certain acts, binds the latter, if he accepts the deed and takes possession under it, as effectually as if he had signed it, although it may be otherwise with a naked condition unaccompanied by any covenant on the part of the grantee.' Thus, where land is conveyed by deed poll, with a reservation that the grantee shall maintain suitable fences upon the lines of the premises, and the grantee accepts the deed, he is bound to perform the service. A covenant entered into between owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected on such lots shall be set back a specified distance from the line of the street on which the lots front, is a covenant which equity will enforce between 1 Sparrow v. Kingman, 1 N. Y. 242; Blanchard v. Ellis, 1 Gray, 195; Massure v. Noble, 11 Ill. 531; Longwell v. Bentley, 3 Grant Cas. 177; Miles v. Miles, 8 W. & S. 135; Griffin v. Richardson, 11 Ired. 437; Langston v. McKinne, 2 Murph. 67; Schuirman v. Garratt, 16 Cal. 100; Langer v. Felton, 1 Rawle, 141; Worcester v. 2 Stronghill v. Buck, 14 Q. B. 781. 3 204. • Harriman v. Park, 55 N. H. 471. the parties to it, in favor of one against the other, or in favor of and against any subsequent grantee of either lot.' § 590. Acceptance of an indenture binds the grantee without execution. A covenant or stipulation inserted in a deed poll binds the grantee, his heirs and assigns, where such stipulation directly relates to the premises conveyed, or the adjoining premises, as a fence, easement, &c. A deed poll may run in the third person as well as in the first, and an indenture in the first as well as in the third. The only real difference in form is, that an indenture purports to be the deed of both or all parties to it, and a deed poll the deed of the grantor only. So of old an indenture was written in counterparts, one for each party, all correspond 1 Roberts v. Levy, 3 Abb. Pr. N. S. 311. Finley v. Simpson, 22 N. J. L. 311; Vilas v. Dickenson, 13 Wis. 488; Bronson v. Coffin, 108 Mass. 175; Blair v. Taylor, 19 Abb. Pr. 228; Bishop v. Douglas, 25 Wis. 696; McClellan v. Sanford, 26 Wis. 595; Hazlett v. Sinclair, 76 Ind. 488; Green v. Horan, 1 Salk. 197; Halsey v. Reed, 9 Paige, 446; Lowber v. Connit, 36 Wis. 176; Hutchinson v. R. R., 37 Wis. 601; Easter v. R. R., 14 Ohio St. 48; Boyle v. Tamlyn, 6 B. & C. 329; Torrey v. Bank, 9 Paige, 660; Brett v. Cumberland, Cro. Jac. 522; Phelps v. Townsend, 8 Pick. 394; Gale v. Nixon, 6 Cow. 448; Flagg v. Flagg, 11 Pick. 375; Trotter v Hughes, 12 N. Y. 474; Burbank v. Pillsbury, 48 N. H. 475; Dow v. Harrahan, 108 Mass. 398; Thorn v. Keokuk, 48 N. Y. 353; Maule v. Weaver, 7 Pa. St. 39; Belmont v. Coman, 22 N. Y. 438; Murphy v. Barnett, 1 Law R. 106; Burnett v. Lynch, 5 B. & C. 589; Maynard v. Maynard, 4 Edw. Ch. 711; Curtis v. Tyler, 9 Paige, 443; King v. Whitely, 10 Paige, 465; Rosenkrans v. Snover, 19 N. J. E. 420; Sheppard v. Hunt, 4 N. J. E. 277; Staines v. Morris, 1 Ves. & B. 14; Rogers v. Ins. Co., 9 Wend. 618: Maynard v. Moore, 76 N. C. 176; Dock Co. v. Leavitt, 54 N. Y. 35; Hathaway v. Payne, 34 N. Y. 92; Walsh v. Barton, 24 Ohio St. 28; Duffy v. R. R., 2 Hilt. 496; Rosselle v. Wickham, 36 Barb. 386; Wilkens v. Fry, 1 Me. 265; Earle v. Mayor, 38 N. J. L. 47; Pettee v. Haines, 13 Pick. 323; Dyer v. Sandford, 9 Met. 396; Houghton v. Carpenter, 40 Vt. 588; Linsley v. Lovely, 26 Vt. 123; Ford v. Yates, 40 E. C. L. 508; Manf. Co. v. Morse, 48 Vt. 322; Campbell v. Campbell, 3 Head, 328; Walls v. Ward, 2 Swan, 648; Spalding v. Hallenbeck, 35 N. Y. 206; Woburn v. Henshaw, 101 Mass. 193; Harriman v. Park, 55 N. H. 471; Porterfield v. Clark, 2 How. 109; Newell v. Hill, 2 Met. 281; Goodwin v. Gilbert, 9 Mass. 514; Nugent v. Riley, 1 Met. 117; Emerson v. Mooney, 50 N. H. 320; Hatch v. Crawford, 2 Port. 54; Parish V. Whitney, 8 Gray, 516; Plymouth v. Carver, 16 Pick. 183; Bayley v. McCoy, 8 Oreg. 259; Center v. Bank, 22 Ala. 143; Stines v. Dorman, 25 Ohio St. 580; Clark v. Martin, 49 Pa. St. 299; Seymour v. McDonald, 4 Sandf. Ch. 502; Kellogg v. Robinson, 6 Vt.. 276; Kimpton v. Walker, 9 Vt. 191. ingly indented for the purpose of identification, and a deed poll in one part only, cut evenly or polled, without indenture. The mechanical process was essential to an indenture, for "it may be an indenture without words, but not by words with out indenting." And it was held that an indenture was the deed of the grantee, though not executed by him, because he accepted it importing to be sealed by him; but that acceptance of a deed poll did not bind him, because it did not import to be sealed by him. There were once meaning and purpose in these distinctions, puerile as some of them now seem, bnt the names have long survived all useful sense. In our conveyancing these subtleties are practically obsolete. Our common deed of conveyance is never indented or executed in parts, and is not an indenture, though it so calls itself, and imports execution by both. parties. It is universally executed and dealt with as a deed poll, and sometimes a deed poll is substituted for it, without questions of difference in law, as there is none in fact. And the same effect is given to acceptance of deeds poll as to acceptance of indentures, without pausing to weigh the subtleties of distinction which died long ago out of the practical business of American life. § 591. As an illustration af the application of the doctrine of estoppel to what is known as deeds poll or instruments affecting the title to land, such as ordinary deeds of conveyance, signed and executed by the vendor or the vendor and his wife, and contracts to convey upon conditions, and deeds conveying property upon conditions or reservations which provide when and how the property conveyed may revert to the grantor or his heirs, the following cases may be cited: Where a condition in a deed of land provided that in case intoxicating liquors be sold in any place of public resort thereon, the deed shall become void; on breach of such condition the grantor has a right to treat the estate as having reverted, and can maintain ejectment without a previous entry or demand. In such action the grantee is estopped to deny the validity of the title conveyed by the deed whereunder he took possession.' So where a deed from a father 1 Co. Litt. 229 a. Co. Litt. 229 a, 230 b. Cowell v. Springs Co., 100 U. S. 55. to a son, "excepting and reserving to his three daughters the right of being on the farm and being supported from it as long as they remain single," the son accepting the deed is estopped to deny its conditions. The grantee of a deed inter partes is bound by the conditions, covenants and stipulations therein on his part, although the deed is only signed by the grantor. If they be such as are legally sufficient to create an easement in the premises granted, the grantee takes the land subject to that servitude. The most familiar example of the application of this principle is where a person accepts a lien upon or interest in premises, where the deed of conveyance is made subject to a mortgage for a sum specified in the deed, which deed contains a further recital that the grantee assumes the payment of such lien. He can neither question the consideration nor the validity of such mortgage, and if in the purchase price of said property the amount of such lien be deducted, the grantee thereby establishes its validity, and cannot thereafter question it in an action to foreclose it.' The deed becomes the deed of the grantee as well as the grantor, and he is bound by it. "A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and a stipulation on the part of the grantee, though it cannot be declared upon as his deed, yet by force of his acceptance is a valid contract on his part by which a right may be reserved or granted, or upon which a suit may be maintained." There is no distinction in favor of the party because the contract is executed by him alone. It is for that reason none the less mutual and binding on both parties; and the same rule applies as to admissibility of extrinsic evidence, as though both parties had signed it. The Supreme Court of Wisconsin, in a case of this nature, said, The grantee accepted the instrument, entered under it, and 1 Maynard ▾ Maynard, 4 Edw. Ch. 711. * Miller v. Winchell, 70 N. Y. 437; Graves v. Mumford, 26 Barb. 94; Sands v. Church, 6 N. Y. 347; Freeman v, Auld, 44 N. Y. 50; Barnes v. Mott, 64 N. Y. 397; Russell v. Pastor, 7 N. Y. 171; Hartley v. Harrison, 24 N. Y. 170; Ritter v. Phillips, 53 N. Y. 586; Ricard v. Sanderson, 41 N. Y. 179; Hardigree v. Mitchum, 51 Ala. 151; Major v. Bulkley, 51 Mo. 227; Kenedy v. Brown, 61 Ala. 296; Lawrence v. Fox, 20 N. Y. 268; Green v. Kemp, 13 Mass. 515; Jackson v. Thompson, 6 Cowen, 178; Lee v. Clark, 1 Hill, 56; Bank v. Martin, 1 Met. 294; Holmes v. Ferguson, 1 Oreg. 220; Cram v. Ingalls, 18 N. H. 613; Haile v. Nichols, 16 Hun, 37; Root v. Wright, 21 Hun, 534; Goodwin v. Keney, 49 Conn. 563; Post, ch. IX., Recitals. claims to have complied with its terms. This is, in effect, the grantee's answer. It would be strange if it could accept the grant freed from the provisions qualifying the grant; take the estate, without the limitations of the estate; claim under the contract, without being bound by its terms. The grantee took its right cum onere, and, by accepting the instrument, bound itself as much by the terms of the contract as if it had sealed it."" 592. Where husband and wife join in a deed of the premises, though not in such a form as to be in itself a release of the homestead, and then remove from the premises, and the purchaser enters upon the same and sells them, it works an estoppel upon the wife as to the claiming of a homestead right therein. But one taking a deed from a debtor, in which is a recital that the premises are those on which the grantor resides, is estopped to set up that the grantor has abandoned the premises as his residence.' But so far as a husband has an interest, independent of his wife and children, in a homestead estate, he is at liberty to convey it subject to their rights, and may enter into covenants in respect to the same which will bind and estop him, as in the conveyance of any other estate. But if he convey with covenants of warranty, he is estopped to claim it against his grantee or his assigns, nor is it any bar to an action by such grantee to recover possession of such estate, that the grantor's children are entitled to a homestead therein, unless the same has been set out and assigned as such. If such grantor attempts to have a homestead set out against a grantee, he is estopped in equity from so doing. Nor can his wife and minor children do this during the husband's life in proceedings against a purchaser with covenants. They are as much estopped thereby as the husband. While a conveyance by the husband of the homestead to which the wife is not a party, is inoperative to convey her homestead right, it estops the administrator of the deceased husband from asserting title as against those claiming under it. In Georgia it is held that the husband may waive the 1 Hutchinson v. R. R., 37 Wis. 602. ? Brown v. Coon, 36 Ill. 243; Wales v. Coffin, 13 Allen, 216. 3 Williams v. Swetland, 10 Iowa,51; Christy v. Dyer, 14 Iowa, 438. Foss v. Strachn, 42 N. H. 42, Williams v. Swetland, 10 Iowa, 51. Irion v. Mills, 41 Tex. 310. |