Lessee of Barton and others v. The Heirs of Morris. IN BANK. 7 Ohio Rep. 76, part I; Allen et al. v. Little, 6 Ohio Rep. Dec. Term, 1846. 67. Seventh: Where any interest whatsoever passes from the party making a deed, there can be no estoppel against him. The reason that a man is estopped, is, that he is not permitted to assert that he had no interest in the land, where he made his deed with warranty. Coke Litt. 55, a; 4 Kent's Com. 98. Estoppels must be certain in every intent, for no one shall be denied setting up the truth, unless it is in plain and clear contradiction of his former obligations and acts. Greenleaf's Ev. 26; 4 Kent's Com. 261. Eighth The defendant, at the trial, contended that the statute of limitations operated in his favor. This cannot possibly be so; for the proof is, that Edward Barton, senior, occupied the farm until his death, in May, 1836, taking to his own use all the profits of it, paying all the taxes, and three times demanded of Edward the deed from Johnston to him. At his death, Charlotte Barton, and five of the children, were on the farm, and remained upon it for some time thereafter, when the defendant obtained the possession. In Paine's Lessee v. Skinner et al., 8 Ohio Rep. 166, the Court decided, that "the 'possession under which a person claims to be protected by the ' act of limitations, must be continued, exclusive and adverse." Here Edward Barton, junior, had no possession of any kind, till after May, 1836. A trustee of the legal title cannot urge the lapse of time against his cestui que trust. Trustees of Lexington v. Heirs of Lindsey, 2 Marsh. Ky. Rep. 445; Redwood v. Riddick and Ex., 4 Munf. Va. Rep. 222; Cholmondely v. Clinton et al., 2 Meriv. Rep. 350; West v. Randall, 2 Marsh. Rep. 213; Kane v. Bloodgood, 2 Johns. Ch. Rep. 122; Executors of Hunter v. Spotswood, 1 Wash. 146; Thomas v. White et al., 3 Litt. 177, 181; Lessee of Bell v. Levers, 3 Yeats. Rep. 26. Ninth The deed first registered must prevail at law. Roberts v. Stanton, 2 Munf. 129; Jackson v. Burgett, 10 Johns. Rep. 457, 462; Jackson v. Hubbard, 1 Caine's Rep. 82; Lessee of Barton and others v. The Heirs of Morris. Jackson v. Gioen, 8 Johns. Rep. 105, 2d ed.; Sugd. on Vend. IN BANK. 255, 9th ed. Tenth: If, however, I am mistaken in the views I have already presented, still the question left undecided in Lessee of Avery v. Dufrees et al., 9 Ohio Rep. 145, remains. The defence is, that the present defendant holds the title of part of Haines' heirs, through Edward Barton, jr. By the contract of sale and the payment of the purchase money, Haines' right to the land itself was divested. He held, after that, but a naked legal title. I ask the attention of the Court to the remarks of Ch. J. Marshall in Blight's Lessee v. Rochester, 7 Wheat. Rep. 535. Robert Haines, the agent of the owner, knew that Barton went into the possession about the time of the purchase, and no opposition to his taking possession appears to have been made by any person. He took possession, at least, by the acquiescence of the owner, (see 7 Ohio Rep. part II, 99); and, after full payment of the purchase money and acquiescence for upwards of twenty-one years, by the vendor, his heirs, widow and administrator, surely a person claiming under the vendor cannot be permitted to enter and avail himself of that title against the purchaser and those claiming under him. The vendee, even under a parol contract, may maintain trespass against the vendor, where he has the possession; 1 Ohio Rep. 252, and cases there referred to by the Court. The vendee has surely a right of immediate possession, that is, of ENTRY. See 2 Wend. 109, 134; 6 Munf. Virginia Rep. 37. Edward Barton, jr. never had the possession. In every case of mixed possession, the legal seizin is according to the title. 10 Mass. Rep. 151; Ibid. 408; 2 Harr. & Johns. Rep. 87, 94, 112, 115, 3; Serg. & R. Rep. 509; 3 Harr. & McKen. Rep. 621; 4 Serg. & R. Rep. 465; 1 Salk. 245; 6 Johns. Rep. 218; 3 Mass. Rep. 219. But, even if he had, he voluntarily abandoned it. 7 Cowen's Rep. 637. Dec. Term, 1846. IN BANK. Dec. Term, 1846. Lessee of Barton and others v. The Heirs of Morris. Charles Fox, for Defendants. I claim, on the part of the defendants, that, as to any claim set up by plaintiffs, under the heirs of Lafayette Haines, no recovery can be had, for the following reasons First: Because Edward Barton, the purchaser, went into possession with the assent of Amos Haines, the owner; that he complied with his contract by paying up the purchase money, and that, therefore, he had a right to retain that possession, and was not a wrongdoer; that no ejectment could be brought by Haines, the vendor, to terminate the purchaser's right of possession, until the latter had made default in his contract, and possession had been demanded by the vendor; that the vendee had a license to enter, which is sufficient in an action of ejectment. And such appears to be the opinion of Mr. Jolliffe, in his argument. Second: I claim, they cannot recover because barred by the statute of limitations. The elder Barton, under whom we claim, and under whom the lessors of the plaintiff also claim, took possession of this property, in 1817, as his own. That the statute had commenced running against Haines and his son, and, of course, did not afterwards stop for any subsequent disabilities, and had run out before the 3d of August, 1843, when this suit was brought. It is true, the administrator, Johnston, claimed there was a balance of about $50 due in 1823, when he made the deed, but that was denied by Barton, although he paid the balance rather than not have the deed made. If I recollect aright, the land was sold by the acre, and Johnston contended that, at that rate, there was this balance due. I claim, therefore, that the possession was, in fact, adverse, before that deed was made, and that it ought to be held, and, if the Court think so, the statute is a bar. In the next place I claim, that whatever title was vested in the heirs of Haines was passed to James T. Johnston by their deed made in 1824 and 1825, and being so conveyed to John Lessee of Barton and others v. The Heirs of Morris. Dec. Term, 1846. ston, operated to the benefit of Edward Barton, the younger, IN BANK. and those claiming under him, by the doctrine of estoppel; and that the subsequent deed made by Johnston to Jolliffe and Charlotte Barton, in 1838, conveyed nothing, because the moment the heirs of Haines conveyed to Johnston the title vested in the persons to whom he had previously conveyed it. The deed from Johnston purports to convey a fee simple es tate. Johnston covenants he has a title to the property and that he will warrant that title. He, therefore, could not recover against his own solemn deed, and if he could not, it is clear Jolliffe and Charlotte Barton, who claim under him, cannot re cover. It is claimed by Mr. Jolliffe, that the deeds from the heirs of Haines and Johnston do not cover this land, and that they were not intended to convey it. He claims he has a right to show that the parties did not intend to convey this land. Although the deeds purport to convey all the right, title, interest, property and demand which the parties have in and to the real or personal estate, as legal heirs of M. de Lafayette Haines, minor, &c., or to the estate, real or personal, of which Amos Haines was possessed at his decease, yet, Mr. Jolliffe says, the deeds do not cover this land. Again, the grantors warrant that they will not claim or demand any right or title to any of the estate of the said M. de Lafayette Haines, or of the estate of his father, Amos Haines. See Robert Haines' deed. Canby and wife, Noah Haines and Nathan Haines convey all their right, title, claim, interest, property and demand in and to all real estate which has fallen or may fall to us, or either of us, as heirs and legal representatives of M. de Lafayette Haines, deceased, or of Amos Haines, to have and hold all such lands, tenements and real estate, as we could or might claim title to as heirs, &c., and in this deed is a covenant to defend all persons claiming under them. But Mr. Jolliffe claims, that Johnston's deed will not estop him, or those claiming under him, because, in the first place, Dec. Term, 1846. Lessee of Barton and others v. The Heirs of Morris. IN BANK. Johnston made a mistake in inserting a clause of warranty. He supposes it was an unnecessary warranty. But it appears to me, it was necessary to insert this warranty, and, I presume, Barton thought so at the time, for he had paid a good price, and was entitled to a warranty deed. If we look at the real transaction, we shall see the parties really intended to convey a good title. Johnston had a power of attorney which, he thought, authorized him to make a deed. He made one, and it appears his title was not then perfect. But the heirs afterwards vested a good title in him. Now, this is the very case to which the doctrine of estoppel is intended to apply. The party intended to convey the whole title, but he did not carry his intention into effect. He afterwards acquired a perfect title, and the law steps in and says, it shall accrue to the benefit of the grantee, and thus carry into effect the original intention of the parties. The doctrine of estoppel is a part of the moral policy of the law, intended to promote justice. It is not just that a man who has conveyed a title should be permitted to say, he had no title to convey. Mr. Jolliffe also claims the deed cannot operate by estoppel, because a very small interest passed, viz: the interest of Johnston's wife, as widow of Amos Haines, deceased. He seems to think, that if a man sells the whole of an estate, as his own, and covenants to defend the title, and he subsequently finds he only owned one-seventh part of what he conveyed, he can then go and buy up the six-seventh parts and recover of his own grantee against his own deed. This proposition cannot be met by argument. The cases cited by Mr. Jolliffe, so far as I have examined them, give no countenance to his proposition. In the case in 11 Ohio Rep. 332, the Court admit the doctrine I contend for, although they say, in that case, a prior equity attached, which, in equity, would overreach a legal title. I admit, the vendor or his heirs were implied trustees of the title for the benefit of the purchaser or his assigns. But in this case, Johnston actually conveyed to the person selected by the purchaser; he had, therefore, executed the trust according to |