Heighway v. Pendleton. IN BANK. and the bill is dismissed on the failure of the plaintiff to redeem Dec. Term, within the time limited. 4 Kent's Com. 186. 1846. 20. Estoppel in pais.—To constitute an estoppel in pais, there must be a representation of a matter of fact, intended to influence the conduct of another party, who, believing the statement and acting upon it, would be defrauded by a retraction. An admission, by mistake, that the legal title to lands has passed by certain proceedings and conveyances, the particulars of which are known to the party claiming the benefit of the admission, does not constitute an estoppel. An admission by a party of what the law is, has no effect. Strangers cannot avail themselves of an estoppel by writing, or matter in pais. There is an estoppel only between the parties to the transaction; the statement of the matter of fact must be made to the party claiming an estoppel. The following facts do not constitute an estoppel: The legal owner of land held adversely by another person, supposing him to be the owner by virtue of certain conveyances, spoke of him as the owner, and described him as such in transactions with third parties. The occupier improved the property, and the real owner made no claim; no facts were concealed or misrepresented; the title depended entirely upon conveyances held by the adverse possessor. Acts amounting to a contract to convey lands or perfect the title thereto, form no defence to an action of ejectment; the remedy is in equity, to enforce performance of the contract. Such a contract could not be inferred from the above facts. w 21. Married Woman When bound by her own acts during coverture.-A married woman's conveyance of her lands, not made according to law, is void, not voidable. She cannot bind herself by a submission to arbitration, nor is she bound by the submission of her husband. She is not bound by any statements made by her husband respecting her lands. She is not estopped after the coverture has ceased, by any Heighway u. Pendleton. allegations made by her husband in a bill in chancery filed by IN BANK. him in their joint names and dismissed. 22. Confirmation of Conveyance.- A void conveyance cannot be confirmed-there must be a new conveyance to pass the legal title. Acts of recognition, and express declarations of the sufficiency of the conveyance, are unavailing. The redelivery of a void deed is futile. In England (even since the statute of frauds) a deed does not require a signature, nor attesting witnesses, nor, any acknowledgment the mere delivery is sufficient; See, per Lord Eldon, 17 Ves. 459. Therefore, although a deed executed by a married woman is void, yet if she deliver it after the coverture has ceased, it is sufficient as a new conveyance; and circumstances may amount to a delivery. But in this State the legal title to lands does not pass by a deed, unless it is signed, attested and acknowledged; the mere delivery of a deed is not a valid conveyance. 23. Conveyance of freehold lands by administrator.— An administrator cannot convey an estate of inheritance which belonged to the decedent without an order of Court for that. purpose, under the statute. Thomas Corwin, Charles Fox, and S. Fales, for Defendant, argued : That the mortgage of 1798 was executed agreeably to the law of 1795, and was valid as to all persons, and, if not so, was valid as between the parties and privies; that the administrator of John Mercer was properly made a party to the scire facias on the mortgages, agreeably to the law of 1795; that the judicial proceedings on those mortgages were substantially conformable to that law, as were, also, the executions issued on the judgments rendered upon those mortgages; that it was not necessary the return on the vendi's should state the sale of the premises and to whom sold, but that those facts might be shown aliunde; that the misrecitals in the sheriff's deed, by Dec. Term, 1346. Heighway . Pendleton. Dec. Term, IN BANK. which the premises in dispute were conveyed to Jesse Hunt, might be explained and were fully explained by testimony produced on the trial. 1816. They also argued, that the sheriff's deed was properly executed, and that Jesse Hunt had a good legal title, by virtue of that deed, but that, if it was invalid, the defendant would be protected by the mortgages to Hunt; and, that if the compromises and settlements that had been made between the parties should be disturbed by the plaintiff, it necessarily followed that the defendant was in the condition of mortgagees in possession, after condition broken and the mortgages unsatisfied. It was further urged for the defendant, that the plaintiff was concluded by the decree of the Court of Common Pleas of Hamilton county, at the April term, 1824, that, by that decree the plaintiff's equity of redemption, if he previously had any, was foreclosed; that the plaintiff was estopped from maintaining her action by the compromise and award established by that decree; that the plaintiff being a party, although a feme covert, was bound by the decree, her husband being also a party, and that the acts of the plaintiff, since the death of her husband, amounted, in law, to a redelivery of the defective deed of 1815, enuring as a new grant. It was further argued, that the plaintiff was bound by the statute of limitations, inasmuch as if that deed only passed a life estate, such an interest was never accepted by Jesse Hunt, and that inasmuch as Mrs. Mercer, the administratrix of John Mercer, deceased, was one of the grantors in the deed of 1815, that operated as a release of the equity of redemption in the premises in dispute to Jesse Hunt. It was further argued, that plaintiff should not be allowed to maintain her action, because, by her own acts, she was unable to restore defendant to his original position; that the consider ation of the release of 1827, which was given upon a final settlement of all matters in dispute, might be shown, and that the evidence was conclusive that the premises in dispute formed a part of that consideration. Heighway v. Pendleton. It was also argued, that the plaintiff was estopped from IN BANK. Dec. Term, maintaining her action, because of the large improvements and 1846. expenditures made on the premises in dispute by Jesse Hunt and the defendant, with her knowledge, in connection with other facts and circumstances, such as uniting with Hunt, in 1832, in directing the city surveyor to run the division line through lot twenty-eight, according to the terms of the compromise of 1815, &c. WOOD, C. J. This is an action of ejectment, tried to a jury in the Supreme Court of Hamilton county, at the April term, 1845, a verdict rendered for the defendants, and reserved for decision in this Court, on motion for a new trial. On this motion, the whole case has been opened and spread out before us with ability and zeal. The magnitude of the controversy, from the immense value of the property in dispute, makes it one of exciting interest, and it is creditable to the learned counsel, and to the profession to which they belong, that their efforts have been conducted with a becoming spirit of fairness and liberality, designed to the abridgement of our labors and to enlighten, not to throw shadows in our path. The Court has not been unmindful of its responsibility in approaching this litigation. We have proceeded slowly, and devoted to it our best energies, so far as has been consistent with other important functions, and are not, therefore, responsible for the result. I will take this occasion to say a word in reference to an allusion thrown out in the argument. Fear is entertained that the feelings of this Court are hostile to the disturbance of titles long enjoyed, and that unwarranted prejudices may defeat a recovery. For one, I must admit, that it is always, with me, a matter of serious regret when I see litigation springing up that is so often attended with such disastrous results to innocent occupants. It is only in those cases, however, where the spoil is to be divided with some mousing speculator, and when, from the state of the law, the Court may be forced to Heighway v. Pendleton. Dec. Term, 1846. IN BANK. aid in that result, that it feels itself called upon to give judgment in that spirit of disapprobation which tends to discourage a course that adds nothing to the character of a profession, in other respects, proverbial for integrity and correct sentiment throughout the civilized world. Now, let me say to the counsel for the plaintiff, if prejudice and not stern duty were to control the judgment of this Court, she might receive more than even handed justice. This would be the only danger. She is a female, claiming to have been unjustifiably stripped of the property in her youth, which is now an immense estate, and calls on this Court to aid her to acquire its repossession. The very nature of such a claim, urged with force, by honorable counsel, though it may not be supported by proof, is calculated to fill an abiding place in the bosom of human nature herself, which it is difficult to resist. Let me not be understood as imputing to the counsel, in the case at bar, the setting in motion the engine of the law for the purpose to which I have before alluded. This Court would resist, in their behalf, any intimation of the kind; for, even in this exciting case, every thing has been conducted with the most honorable and scrupulous integrity. The facts of the case are, so far as it becomes necessary to state them, substantially these: On the 10th day of June, 1796, John Mercer was seized of the following lands, in Cincinnati: One lot in the fractional part, No. 201, containing sixty square rods of ground; one other lot, in the fractional part of the town, now city, No. 409, of the like quantity; also, of a four acre lot adjoining said town, No. 29; a fractional part of an out-lot on the north of No. 29, supposed to contain three acres; also, out-lot No. 28. The title of John Mercer to the above described lots and fractional part of lot north of No. 29, was admitted on the trial in the Supreme Court for the county. The plaintiff also proved, that John Mercer died in the year 1906, leaving a widow, Susan Mercer, who administered on his estate, and that the lessor of the plaintiff was his only child and heir at law. The plaintiff's |