Lessee of Simmons v. Logan

1 Del. 110

• Court: Superior Court of Delaware
• Decided: July 5, 1832
• Status: Published

Opinion

Mr. Justice Robinson delivered the opinion of the court.

Robinson, J.

—Mary Huggins and Sarah 0‘Flinn, being entitled to a fee simple estate in several tracts or parcels of land as devisees of Wm. Marshall their father, Patrick 0‘Flinn, the husband of Sarah, purchased a tract of land adjoining the same as conveyed to him in fee by deed dated the 12th day of March 1792. On the 13th day of September 1811, Patrick 0‘Flinn and Sarah his wife of the one part, and Mary Huggins of the other part, execúted and acknowledged a deed of partition, called an indenture, to which the said Sarah was privately examined before the Chief Justice of the Supreme Court ip proper form. In this deed it was recited that Mary Huggins and Sarah 0‘Flinn were seized of all the real estate of their father, as co-parceners in fee, and that the tract of land purchased by Patrick 0‘Flinn as aforesaid, had ever since the purchase thereof been held, considered and enjoyed by the said co-parceners as and for a part of the estate so as aforesaid held by them in co-parcenary. That the said co-parceners had concluded and agreed to have and hold their respective parts of the before mentioned lands and tenements in severalty: and it was therefore covenanted, granted and agreed by and between the said Mary Huggins and Patrick 0‘Flinn and Sarah his wife, for themselves and their heirs respectively, to and with each other, their heirs and assigns respectively, that a,partition and division of the same should be, and was thereby made and determined in manner and form following," to wit: First, That the said Mary Huggins, her heirs and assigns, should and might thenceforth forever have and enjoy in severalty, the land and premises allotted to her; and, after describing the same, Patrick 0‘Flinn and Sarah his wife granted, released and confirmed the same to the said Mary Huggins, her heirs and assigns, as and for her full share and proportion of the estate so as aforesaid held in co-parcenary, with a covenant of special warranty against themselves, their heirs and assigns. Secondly. That Patrick 0‘Flinn and Sarah his wife, their heirs and assigns, should and might from thenceforth have, hold, possess and enjoy in severalty the lands and premises allotted to them; and, after describing the same, Mary Huggins granted, released and confirmed the same to them, their heirs and assigns, as and for their full share and proportion of the real estate late of Wm. Marshall deceased, and so as aforesaid held in co-parcenary, with a covenant of special warrantry against her and her heirs. The tract of land in dispute, was purchased by Patrick 0‘Flinn as before stated, and was included in the share allotted and conveyed to him and his wife as aforesaid. Patrick 0‘Flinn died intestate in the month of July 1818, leaving to survive him Sarah his wife, and one child named Elizabeth, then the wife of Alexander Reynolds. After his death Reynolds and wife entered on this tract of land; and, being in possession, on the 26th day of June 1819, executed and acknowledged a mortgage deed for the same to George Simmons and others, which was recorded in time. Reynolds built a dwelling house on the same, and he and his wife continued to reside thereon until they died. After which Sarah 0‘Flinn claiming under the partition deed received the rents and profits, and acted as the owner thereof until her death, about the 8th December 1829. It was sold under the mortgage deed of Reynolds and wife by the sheriff of Newcastle county, and purchased by George Simmons the plff., and conveyed to him by the said sheriff.

It was insisted on behalf of the deft, that this deed of partition created a covenant by Patrick 0‘Flinn, to stand seized of the land in dispute to the use of his wife and Mary Huggins, and that the. grant from Mary Huggins to Patrick O ‘Flinn and his wife passed her moiety in fee, and that the other moiety vested in Sarah 0 ‘Flinn by the covenant to stand seized. It is true that if Patrick 0‘Flinn was seized in fee, he was the only party to this deed who could pass the estate or interest in this land by such a mode of conveyance. But neither in the recital of this deed, nor any other part of it, are there any words of covenant or any that can be construed to be such on the part of 0‘Flinn. Neither does it appear that it was his intention to convey by deed any estate from himself. In all deeds of partition, it is said to be necessary that the parties should, mutually convey to each other the several estates which they are to take in severalty under the partition. That was done by the parties to this deed, and the consideration was the mutual recompense each took in their respective shares of the estate divided, which cannot, consistently with the recital in the deed of this land, having been held as part of the co-parcenary estate of Mary and Sarah, be averred as a consideration for a covenant to stand seized contrary to the plain intention of the parties. As a covenant to stand seized, as insisted upon, it would have vested one moiety in Mary Huggins in fee, and the other in Sarah O‘Flinn, and as Mary Huggins conveyed all her interest to Patrick O ‘Flinn and Sarah his wife in fee, then Patrick O‘Flinn and Sarah his wife would have taken one .moiety by entireties, which in the event of the death of Sarah before her husband would have belonged to him, whilst the other moiety would have belonged 1o the heirs of Sarah. This never could have been the intention of the parties. But this deed is the indenture of all the parties, by which Mary Huggins granted the land in dispute to Patrick O‘Flinn and Sarah his wife, and their heirs and assigns: to have and to hold the same to them, their heirs and assigns, to his, her and their only use, benefit and behoof forever. Patrick O‘Flinn and his wife accepted this grant, and they also accepted this tract of land as a portion of their share of the lands divided. No interest passed in this land from Mary Huggins by her conveyance, but it operates as an estoppel against all persons claiming under Patrick O‘Flinn and his heirs. They are concluded by it from claiming the lands under the deed to him of the 12th of March 1792. This view of the case is strengthened by the recital, which admits that Patrick 0‘Flinn had purchased this land and had become seized thereof in fee by that deed. Thus if a man takes a lease by indenture of his own land, whereof he is in actual possession, this estops him to say the lessor hath nothing in the land, for by acceptance thereof by indenture he is as perfect a lessee as if the lessor had an absolute fee. 4 Bac. Ab. 187. So if the disseizor by deed indented make a feoffment in fee whereunto livery of seizin is requisite, yet the indented deed shall' not suffer the livery made to work a remitter to the disseizee, but shall estop him to claim his former estate; and the reason is, that the deed indented is the deed of both parties, and therefore the taker as well as the giver is concluded. Co. Litt. 363-6. And if two make partition in a court of record, where one of them have no right, he thereby shall gain a moiety by estoppel. Id. 170 b. note (3.) In 3 Johns. Rep. 331, it was decided in New-York, that a partition deed operates as an estoppel as to the parties and all claiming under them. Previous to the statute of frauds in England, partition between co-parceners might be made by paroi, and the acceptance of an estate under such partition made an estoppel. Thus if J. S. seized of land in fee had issue two daughters, Rose a bastard, and Ann born in wedlock, and J. S. died: Rose and Ann both entered and made partition: Ann and her heirs were concluded forever. Co. Litt. 170, b. If such was the effect of a partition by paroi, a partition made by a solemn deed makes the case much stronger. Patrick 0‘Flinn and Sarah his wife being but one person in law, they did not take separate estates in this land but each the entirety; after his death the same so continued to belong to her, she being seized of the whole by estoppel. For as was said by the court in the case of Trevivan against Lawrence, 1 Salk. 276, that where an estoppel works on the interest of the land it runs with it into whose hands soever the land comes and an ejectment is maintainable on the estoppel: it must of course be sufficient to defend in a case where the plff. must recover on the strength of his own title.

Rogers for plff. Booth and Wales for deft.

Judgment must therefore be entered for the defendant.