House v. . McCormick

57 N.Y. 310

Opinion

Lott, Ch. C.

It is settled by the decisions of the Court of Appeals, that Bichard Jackson, as one of the heirs of John Jackson, his father, and by virtue of the grants in the partition deed executed to him by his brothers and his sisters, who survived the said John Jackson, acquired on his decease a perfect title to ten-elevenths of the lots and premises included in that deed, irrespective of the covenants contained therein; that the estate or interest of Fanny Baldwin, a sister, who was also a grantor therein, although vested, was determinable by her death before her father; that, by the occurrence of that event, it became divested, and that Fanning Baldwin, her son, as one of the heirs at law of the said John Jackson, on his death, became entitled, under the deed of Samuel Jackson, to one-eleventh of said lots and premises. (See Sheridan, v. House, 4 Keyes, 569; Moore v. Littel, 41 N. Y., 66; House v. Jackson, 50 id., 161; Jackson v. Sheridan, id., 660; Powers v. Wheeler, id., 660.)

It is also settled by the decision in Sheridan v. House (supra), that Mrs. House, the plaintiff in the present action (and who was the defendant in that), is entitled to ten-elevenths of the premises in question in this action, under and by virtue of. the deed from the sheriff, of the interest of Richard Jackson, on the sale under the execution on the judgment docketed against him, on the 25th of July, 1856. That decision was placed on the ground that he, as one of the heirs at law of the said John Jackson, and by virtue of the grants by his-brothers and sisters (except by Mrs. Baldwin), to him above referred to, had a vested estate to that extent at the time of the sheriff’s sale, on the 9th day of September, 1856,- and that such interest had become vested in her by a conveyance from the sheriff’s grantee. It is stated by Judge Woodruff (who delivered the prevailing opinion in that case), in speaking of the partition deed, with reference to its effect, that he should not consider “ whether it operated as an estoppel, so as to assure to Richard Jackson the fee, when in fact the grantors did survive John Jackson, and thus assured to her the title which they had proposed to convey,” but that he preferred to rest his “conclusions upon the answer which should be given to the question, whether the children of John Jackson had, before his decease, an alienable interest or estate in the premises, and, by this, to test the effect of the partition deed and the validity of the defendant’s title.” He then proceeded to consider that question, and reached the conclusion that the defendant was entitled to ten-elevenths of the premises, being all the interest therein which was claimed by her in that action. All of the judges (except Judge Grover, dissenting) concurred in the views of Judge Woodruff, and, the questions involved having been submitted in a ease made under the Code, judgment was ordered in accordance with, his conclusion.

In the case under review, judgment was ordered for the entire estate, on the ground, as stated by the judge in his third conclusion of law, that when Parmenus Jackson, under the judgment in the partition suit, acquired title to the one-eleventh of the premises described in the deed to Bichard Jackson, which had become divested by the death of Fanny Baldwin, it became vested in the plaintiff by virtue of the covenants in the partition deed, and by the sheriff’s deed under which she held title, and that Parmenus Jackson and his grantee are estopped from denying the plaintiff’s title to such one-eleventh. This was right. It evidently was the object and intention of the parties to that'partition deed to vest in the different grantees in severalty, the title to the lots and premises conveyed to .them, free and discharged from all right, claim and demand which the grantors then had, and which they might thereafter' acquire or be entitled to on the death of John Jackson. The parties knew, or are presumed to have known, that the several estates of each of them in remainder, whether vested or contingent, were determinable by his or her death in the lifetime of their father, or might be partially defeated by the birth of afterborn children, who might be his heirs at the termination of his life estate, and consequently be entitled to a portion of the property partitioned; and they intended, so far as they could, to protect each other against such contingencies. Either event would or might affect the partition. They, therefore, made a division or partition not "only of their interest and estate during the life of their father, acquired" from him, but of those in remainder under and by virtue of the deed from Samuel Jackson, allotting and conveying, to each certain specific and designated portions of the property to be divided, and they, for the purpose of preventing a claim by any or either of them in the land allotted, set apart and ■conveyed to the other or others of them, after entering into covenants against incumbrances created or suffered by them respectively at that time, .further separately for themselves and their respective heirs, covenanted with each grantee, his heirs and assigns, that he and they should and might at all times thereafter, peaceably hold and enjoy the same without any let, suit, trouble, entry, disturbance or interruption of or by the grantors, or either of them, or of their heirs or assigns, or of any person or persons lawfully claiming or to claim the same by, from or under them, or any or either of them. This covenant is so full and comprehensive as to preclude all and every claim by either of the grantors that might or could at any time interfere with, or in any manner prevent the full and uninterrupted possession and enjoyment by the several grantees respectively of an absolute and entire estate in severalty in the premises described in their respective deeds, and every part thereof. The entire estate was intended to be vested and secured. The intention to accomplish and effect that result, is indicated by a recital in the partition deed of the terms of the deed from Samuel Jackson to John Jackson, the conveyances by John Jackson of his interest to his children living at the time they were executed, the agreement of the parties to the partition deed to divide the property between them, according to a subdivision thereof, into lots, as represented on a map made, and intended to be filed in the office of the clerk of Kings county, and to execute the necessary conveyances thereof, so that each party should hold his or her share or parcel thereof in severalty, free and discharged .from all claim and liability, interest and estate of any other of the parties, and by the declaration, after such recitals, that the said deed was executed for the purpose of carrying out and effecting the partition of the premises among the parties, so that each might so hold his or her share thereof in severalty. Those recitals and declarations, and the said deed clearly show that all of the parties thereto, fully understood and intended that none of them should at any time thereafter, claim as against any other or others of them, any claim or demand, under or by virtue of any right or interest then held, or that might be acquired under or by virtue of the said deed from Samuel Jackson to John Jackson. The conveyances mutually executed by and between them were a good and sufficient consideration for their respective covenants, and being, therefore, valid and operative, it would have been incompetent for Parmenus Jackson to have taken and held possession of the lots, sought to be recovered in this action, as against and in hostility to Richard Jackson. This would have been a violation and a breach of his special and full covenant of quiet enjoyment, above set forth, and he would have been estopped, under the well settled rule of law, that a title subsequently acquired by a party who has granted land with covenant of warranty inures to the benefit of his grantee, from setting up his title to justify such possession, and to prevent the occupancy and enjoyment thereof by Richard; and his grantee, the defendant, has no greater or better right. There is no ground for the claim of the appellant, that the partition deeds “ only profess to convey, in partition, the vested interest of the parties.” The conveyances are absolute, and make no limitation of the grant to any particular estate or interest, but the entire estate is absolutely granted in fee simple. Such was the object and intention of the grant, and the covenant of quiet enjoyment was intended to effectuate that intention, and to prevent any claim in hostility thereto, or in contravention thereof, as has already been shown. It may, therefore, be conceded, as is also claimed on behalf of the appellant, that “ covenants are always confined in their interpretation and scope to the very title and interest which the deed purports to convey, and never estop the grantor as to any other title or interest subsequently acquired,” or, in other words, that they are restricted and limited in their operation to the qucmtum of interest intended to be granted. In this case, the grant was absolute and of the entire estate, and, therefore, the views above expressed are in accordance with that principle.

It is further claimed, on behalf of the appellant, that there is no estoppel created by the deed of Parmenus Jackson, because another exception, well recognized in the doctrine of estoppel, is thus stated by Chancellor Kent (4 Cowen, 98): “ If the lease takes effect by passing an interest, it cannot operate by way of estoppel, even though it cannot operate by way of interest to the full extent of the intention of the parties. If any interest, however small, passes by a deed, it creates no estoppel.” This claim is untenable. Although the last remark in the statement apparently applies to a deed as well as lease, it is evident, from the connection in which it is used, that it was intended to apply to a lease only. It is, therefore, unnecessary, now, to call it in question. It is to be construed as having application to leasehold interests only; and it is said by Mr. Williams in his treatise on real property (p. 378), that “ the circumstance that a lease for years was, anciently, nothing more than a mere contract, explains a curious point of law relating to the nature of leases for years, which does not hold with respect to the creation of a greater interest in land. If a man should, by indenture, lease lands, in which he has no legal interest, for a term of years, both lessor and lessee will be estopped, during the term, or forbidden to deny the validity of the lease. This might have been expected. But the law goes further, and holds that if the lessor should at any time during the lease acquire the lands he has so let, the lease, which before operated only by estoppel, shall now take effect out of the newly acquired estate of the lessor, and shall become, for all purposes, a regular estate for a term of years. If, however, the lessor, has at the time of making the lease, any interest in the land he lets,, such interest only will pass, and the lease will have no further effect by way of estoppel, though the interest purported to he granted be really greater than the lessor had at the time of the grant * * * but if in such case, the lease was made for valuable consideration, equity would oblige the lessor to make it good out of the interest he has acquired.” (See, also, notes to Walton v. Waterhouse, 2 Saund., 415 [by Williams, ed. of 1846].)

It may, also, be conceded that there will not be-an estoppel so as to give a grantee the benefit of a subsequently acquired estate, where any interest passes under a deed of bargain and sale, or quitclaim, or, by any conveyance containing no covenants; but the rule or exception claimed does not apply where the deed by which the. premises conveyed contains express covenants of warranty or quiet enjoyment. The question in such cases, as in all other cases arising out of the construction of deeds, is one of intention; and where it appears to have been the object of the covenant to assure to the grantee, or covenantee, the full and absolute enjoyment of the property, without any right of the grantor to divest or interfere with the possession at any time thereafter, there is no reason or principle why it should not operate as an estoppel to avoid circuity of action against a claim of the grantor to a subsequently acquired estate, where a present right or interest, in fact, passed at the time the grant was made as well as when nothing whatever passed.

It is proper to notice a further point of the appellant’s counsel. It is said that there can be no question whatever, that Fanning Baldwin could, after the death of his grandfather, John Jackson, have asserted and maintained title in himself, against the plaintiff, to the one-eleventh of the premises that had been acquired by her through the, sheriff’s sale on the execution against ¡Richard Jackson, on the ground that such one-eleventh, by the death of Fanny Baldwin, in the lifetime of her father, became vested, on his death, in Fanning Baldwin, and it is claimed that it, with other property, was transferred from Fanning Baldwin to Parmenus Jackson, by the judicial proceedings in partition, and that he afterward conveyed it to the defendant. This is an erroneous construction of the effect of those proceedings. It is true that Fanning Baldwin, on the death of John Jackson, became entitled to the eleventh of the lands and premises that had been conveyed to Bichard Jackson by the partition deed, and it may be assumed that he could- have maintained an action of ejectment therefor, but the operation of the judgment in partition, was to divest him of all claim and demand in and right to the lands and premises so conveyed, except the particular and specific portions thereof, which were allotted and set off to him, in severalty, by the said judgment, and it-is found by the judge who tried the issues in this action, that none of the lots mentioned in the complaint were included in such allotment, hut that they were all allotted and set apart to the said Parmenus Jackson, which allotment to Parmenus inured, by way of estoppel, to Richard Jackson, as before shown. Such an estoppel runs in favor of and against the privies in estate of the immediate parties to it, as well as for and against the parties personally; and the plaintiff, by its operation was, as properly adjudged by the court below, entitled to the said eleventh, to which it applied, as well as the other ten-elevenths of the premises in question. (See Sweet v. Green, 1 Paige, 473; Kellogg v. Wood, 4 id., 578; Wood v. Seely, 32 N. Y., 116.)

It follows,that the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.