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required to be made before the court which tried the cause, the proof before the ordinary being ex parte, the heir at law having no opportunity to cross-examine the witnesses, and the same solemnities not being required to admit the will to probate, which are indispensable to give it validity as a devise of real property. And the court added that the law of Maryland, with regard to the evidence of a devise in ejectment, was the common law of England, and had been so recognized in decisions of the courts of that state. 10 Wheat. 468, 469.
The first of these cases shows that the probate of a will of real property in one state is of no force in establishing the validity of the will in another state. That must be determined by the laws of the state where the property is situated. The second case shows that the proof of a devise of land in ejectment in Maryland (and its law obtains in this district) must be made by the production of the will in court, and evidence of its execution by the subscribing witnesses; or, if the will be lost, or cannot be produced, the proof must be made by secondary evidence of its execution and contents.
The plaintiffs contend that they can use the record of the hustings court in Virginia as proof of the genuineness of the instrument, and then supplement that proof by parol evidence that the original was executed by three witnesses, and thus establish it as a will sufficient to pass real estate in the District of Columbia. But in this contention they overlook a material circumstance. It is not sufficient to give effect to an instrument as a will of real property that its genuineness merely be established. Its genuineness must be shown by the witnesses, if they are living, who attested its execution and heard the declaration of the testator as to its character; and, if dead, their handwriting must be proved, as already stated. No other proof will answer; certainly not the probate of the will on ex parte testimony by a tribunal of another state or country.
When the record of the will and probate were excluded, the plaintiffs offered parol evidence to show that the copy of the will in the record was a true copy of the original now on file in the hustings court. Upon objection, the evidence was excluded, and we think properly 80. The proof of such copy would not have established the validity of the original instrument as a will to pass real property in the District of Columbia. The law of Maryland of 1785, upon which the plaintiff relies, assuming that it is still in force, which may be doubted, was not designed to change the formalities required by the local law for the validity of wills of real property executed in other states, but to give to authenticated copies of such instruments, when recorded or filed with the register there, the same force and efficacy which would attend the originals if produced.
Failing to secure the introduction of the record of the nustings court and the parol evidence mentioned, the plaintiffs insisted that the defendants were estopped from asserting an adverse title against them. To support their position they introduced a deed by one Robertson and his wife, Maria, executed in 1839, to one Samuel Redfern, conveying the premises for the life of the said Maria, and then showed conveyances in fee of the property from Redfern to one Fraser, and from Fraser to one John Pickrell, then a devise of the property by him to Anna Pickrell, and by her to the defendants; and that the plaintiffs are heirs of Robertson and wife, who are dead, Maria having died in 1873; and they contended that the conveyance by Robertson and wife of a life estate to the grantor of parties through whom the defendants trace their interest, precluded them from asserting any* title against the right of the plaintiffs to the reversion as heirs of Robertson and wife. This position was assumed upon the notion that a party who receives a deed of a life estate, and all persons taking a subsequent conveyance in fee from him or his grantees, or deriving title by devise from such grantees, are estopped to deny that the reversion
the termination of the life estate is vested in the grantor or his heirs.
There was here, of course, no estoppel by deed against Redfern, the grantee of the life estate, for he did not join in the execution of the instrument, nor is his seal annexed to it. If any estoppel was created against his acquisition of the reversion from other parties than his grantors, or persons claiming under them, it was one in pais; and that can arise as between grantor and grantee only where from the relation of the parties there is implied in the acceptance of possession under the deed an obligation to restore the possession on the happening of certain events, or to hold the property for the grantor's benefit or persons designated by him, such as exists from the relation of landlord and tenant, of mortgagor and mortgagee, or the creator of a trust and trustee. Gardner v. Greene, 5 R. I. 110.
The doctrine that a lessee entering into possession under a lease is estopped, while retaining possession, to deny his landlord's title, is familiar. That arises from the nature of the contract of lease, which is for the possession and use, for a prescribed period, of the lessor's property, upon considerations to him by way of rent or otherwise. It implies an obligation to surrender the premises to the lessor on the termination of the lease; that is, at the expiration of the time during which the owner has stipulated that the lessee may have the use and possession of his property. As said by this court in Blight's Lessee v. Rochester:
"The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his position. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor without disparaging his own, and he cannot set up the title of another without violating that contract by which he obtained and holds possession, and breaking that faith
which he has pledged, and the obligation of which is still continuing and in full operation."
And in speaking, in the same case, of the relation between vendeeand vendor, the court added :
"The vendee acquires the property for himself, and his faith is not pledged. to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this, nor is either the letter or the spirit of the contract violated by it.” 7 Wheat. 547, 548.
See, also, Willison v. Watkins, 3 Pet. 43; Watkins v. Holman, 16 Pet. 54; and Tayl. Landl. & Ten. § 14.
To this general statement of the law there is this qualification : that a grantee cannot dispute his grantor's title at the time of conveyance 80 as to avoid payment of the purchase price of the property; nor can the grantee in a contest with another, while relying solely upon the title conveyed to him, question its validity when set up by the latter. In other words, he cannot assert that the title obtained from his grantor, or through him, is sufficient for his protection, and not. available to his contestant. Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed his conveyance. Sawyer, 4 Dev. & B. 51, and Gilliam v. Bird, 8 Ired. Law, 280. The case of Board v. Board, to which counsel refer, was decided upon similar grounds; there the defendant in ejectment, claiming as grantee under the devisee*of a life estate under a will, was held to be estopped from denying the validity of the will in an action by the grantees of the remainder-man. L. R. 9 Q. B. 48. With exceptions or limitations of this character it will be found, on examination of the authorities, particulary those of a modern date, that the doctrine of estoppel in pais, however it may have been applied formerly, cannot now be asserted to preclude the grantee from denying his grantor's title and acquiring a superior one, unless there exist such a relation of the parties to each other as would render the proceeding a breach of good faith and common honesty. No such relation exists between grantor and grantee in an absolute conveyance, without recital or covenant, whether it be of the fee or of an estate for life. The grantee does not recognize, by the acceptance of such a conveyance of an estate for the life of another, the possession of any greater estate in the grantor, or any obligation to hold the premises for him after the termination of the estate. So far as he is informed, by such a conveyance he takes the entire interest of the grantor in the property. He does him, therefore, no wrong by purchasing any adverse claims which may strengthen his own title, or which may give him a title after the
termination of the life estate. Covenants in the instrument intended for him, such as to restore and surrender the premises on the termination of the life estate, or recitals declaring the reversion to be in the grantor or others, would of course change the relations of the parties. Obligations from such covenants or recitals might arise which would control the action of the grantee. Atlantic Dock Co. v. Leavitt, 5+ N. Y. 39. Here, as already stated, there is nothing of the kind. The conveyance is for the life of Maria, and no longer, and without covenants or recitals as to any further interest of the grantors or of others. By taking a deed poll of this character, no obligation to the grantors could arise, and, consequently, no estoppel precluding the grantee, and those claiming under him, from accepting conveyances from other sources to strengthen their existing interests or to acquire the reversion, and thus securing to themselves the absolute fee. In Osterhout v. Shoemaker, 3 Hill, 518, the supreme court of New York held a similar doctrine as to the relation between grantor and grantee in fee. Speaking by Judge Bronson, it said:
"There is no estoppel where the occupant is not under an obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. IIe does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.”
This language was subsequently cited with approval by the court of appeals of the state in the case of Sparrow v. Kingman, 1 N. Y. 254, and there is no reason why it should not apply with equal force to a grantee of an estate for life as to a grantee in fee. There is nothing in the nature of the estate which necessarily implies that the grantor is the owner of the reversion. The absence in the deed here of any reference to a reversionary interest would rather seem to negative such ownership. Be that as it may, there was no implied obligation from any relation of the parties to each other which could estop the grantee of the life estate, or persons claiming under him, from denying the title of his grantors to any greater estate than the one conveyed, or from acquiring title to the reversion from other sources.
We have considered in this opinion that Redfern took possession of the premises in controversy under the deed to him of the life estate, because, on the argument, that fact was assumed as established; but there is no direct evidence on the point in the record. Judgment affirmed.
(109 U. S. 573)
YOUNG ». DUVALL and another.
(December 17, 1883.)
MARRIED WOMAN- EXECUTION OF DEED OF TRUST IN DISTRICT OF COLUMBIA
In a suit to set aside a deed of trust executed to secure the payment of a note signed
by husband and wife, and the acknowledgment of which was certified as required by law, it was in proof that the wife signed the note and the deed, hav. ing an opportunity to read both before signing them; she was before an oficer competent to take her acknowledgment, and he came into her presence, at the request of the husband, to take it; and she knew, or could have ascertained, while in the presence of the officer, as well to what property the deed referred as the object of its execution. Held, that the certificate must stand againsi a mere conflict of evidence as to whether she willingly signed, sealed, and deliv. ered the deed, or had its contents explained to her by the officer, or was examined privily and apart from her husband; and that even if it be only prima fucie evidence of the facts therein stated, it cannot be impeached, in respect to those facts, except upon proof which clearly and fully shows it to be false or fraud. ulent.
Appeal from the Supreme Court of the District of Columbia. Enoch Totten and F. W. Jones, for appellant. Jos. H. Bradley and A. B. Duvall, for appellees. *HARLAN, J. It is provided by the Revised Statutes of the United States, relating to the District of Columbia, that “when any married woman shall be a party executing a deed for the conveyance of real estate or interest therein, and shall only be relinquishing her right of dower, or when she shall be a party with her husband to any deed, it shall be the duty of the officer authorized to take acknowledgments, before whom she may appear, to examine her privily and apart from her husband, and to explain to her the deed fully;" further, “if upon such privy examination and explanation, she shall acknowledge the deed to be her act and deed, and shall declare that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it, the officer shall certify such examination, acknowledgment, and declaration, by a certificate annexed to the deed, and under his hand and seal,” to the effect indicated in the form prescribed by the statute. Rev. St. D. C. $ 450. It is also provided that “when a privy examination, acknowledgment, and declaration of a married woman is taken and certified and delivered to the recorder of deeds for record, in accordance with the provisions of this the fourteenth] chapter, the deed shall be as effectual in law as if she had been an unmarried woman; but no covenant contained in this deed shall in any manner operate upon her or her heirs, further than to convey effectu. ally her right of dower or other interest in the real estate which she may have at the date of the deed.” Id. § 452.
These statutory provisions being in force, there was placed upon record in the proper office in the District of Columbia, on the seventeenth day of November, 1875, a deed of trust purporting to have