Lewis v. Coxe

5 Del. 401

• Court: Superior Court of Delaware
• Decided: July 5, 1852
• Status: Published

Opinion

The Court

said they could find nothing in any of the old statutes authorizing a married woman, contrary to the principle of the common law, to execute a letter of attorney; and the act of 1811 expressly requires that the wife, on conveying her husband’s lands, as well as her oavu, should be privately examined, in order to bar her dower.

These instruments, executed by the Grilpins, both the letter of attorney and the deed, were subsequent to this act. They could gather nothing from the act of 1829, to favor the construction that prior to that time a married woman might execute a letter of attorney. The expression that “ nothing herein contained shall be construed to allow a married woman to make a power of attorney,” has reference to the form of acknowledgment prescribed in that act and the provision for a power of attorney; and is designed to exclude the conclusion that any thing therein contained should imply that a married woman could make such a power. Being of opinion, therefore, that the wife'of Joshua Gilpin did not by her letter of attorney and deed, bar her right of dower; the title which the plaintiff offered was not “ clear of incumbrances,” and the defendant was not bound to convey the farm according to the terms of the contract.

Bayard and Bates, for plaintiff. Wales and Wales, for defendant.

But it was alledged that as Doctor Coxe, or his counsel were aware of this encumbrance at the time Mr. Lewis tendered the deed, he was bound to have made the objection and disclosed the defect in the title at that time, or that he was estopped or prevented now from making it. This is called an estoppel in pais, which is a principle of morals as well as law, that a man shall not act so as to mislead another, and induce him by an assertion of a fact, or the withholding a statement he was bound to make, to act in a way that would be prejudicial to himself. (22 Com. Law. Rep., 268.)

thought that was not this case. The plaintiff was bound to know his own title, and had all the means of knowledge that the defendant had; he had covenanted to convey a clear title, and he was therefore bound to make or to tender the deed for such a title, before he could require a conveyance of the defendant.

Under the will of Thomas Gilpin, his sons, Joshua and Thomas, took as tenants in common the property referred to, and the wife of Joshua Gilpin was dowable out of it; she had not barred herself of this right of dower by the conveyance to Chandler; and the plaintiff having offered only a title, subject to this incumbrance, the court charged that he had not complied with his obligation, and was, therefore, not entitled to recover.

When the jury returned to render a verdict, the plaintiff did not answer and was

Nonsuited.