had been given on the trial, and granted the] 4. Distinction. But where by the lease, certificate. Held, that there was no legal error; though perpetual, a substantial and adequate that the opinion of the jury was not material; annual rent was reserved during the whole that no legal inference as to the character of the term, with right of re-entry for non-payment assault could be drawn from the verdict; and of rent or non-performance of other conditions; that it rested in the discretion of the county-Held, that the relation of landlord and tenant court whether, or not, to allow further hearing. was thereby created, and this was properly a Robinson v. Wilson, 22 Vt. 35. lease only. White v. Fuller, 38 Vt. 193. 71. Whether a trespass to land was willful 5. Fee tail. A devise of lands in this State, and malicious, so as to entitle the plaintiff to by will dated in 1774 and approved in 1781, to full costs, must be determined by the court one "and to the lawful heirs of her body," before which the action is tried. Where the was held to create an estate tail in the devisee; county court refused such certificate, the and held, that the deed of such devisee and her supreme court refused to revise the decision. husband, executed in 1797, and after issue born Dodge v. Carpenter, 18 Vt. 509. of their marriage, which deed contained cov

72. If the county court were to grant a cer-enants of warranty, had no effect, by way of tificate of "willful and malicious" in a case estoppel or otherwise, to bar the issue in tail where, from the form of action, none could be after her death. Giddings v. Smith, 15 Vt. legally granted, or were to refuse one on the 344; and see 31 Vt. 300. ground that the form of action would not allow 6. A conveyance of lands was in this form : it, such decision would furnish ground for To said Almena and heirs of her body forexception or writ of error. But in cases where ever," &c., "to have and to hold," &c., "to the the court may grant the certificate upon proper said Almena and heirs aforesaid, their heirs and evidence, the allowance or refusal of it becomes assigns, to her and their own use and behoof necessarily a matter of fact and of discretion forever." Held, that this created an estate in which the supreme court cannot revise. Soule fee tail and not in fee simple. Haynes v. Bourn, v. Austin, 35 Vt. 515. 42 Vt. 686. 73. The decision of the county court, grant7. Estate for life with remainder over. ing a certificate under the statute that the cause A deed was to A B "for and during his natural of action arose from the willful and malicious life, and no longer, and in remainder to the act or neglect of the defendant, &c., is not revis- heirs of his the said A B's body, C B, son of able, so far as it proceeds upon matter of fact. If the said A B, excepted, forever." Held, that granted in an "improper case," it might be this did not create an estate tail in A B; that otherwise. Robinson v. Wilson, 22 Vt. 35. Whiting v. Dow, 42 Vt. 262. Langdon v. Bowen, 46 Vt. 512. Styles v. Shanks, 46 Vt. 612.

74. Criminal case. Before the Statute of 1856, No. 9, the allowance of exceptions in a criminal prosecution was matter of discretion, and could not be revised by the supreme court. State v. Hebert, 27 Vt. 595.

66

ESTATES.

he took only a life estate, and that the remainder in fee vested immediately in his children who would become his heirs, if they survived him, excluding CB; that they took as purchasers, and not by inheritance. Blake v. Stone, 27 Vt. 475.

8. A deed of land was made to one in trust, for the use of Mary, wife of William, during the lifetime of said Mary, "and at the decease of the said Mary, the said land and premises to be and become the property of the five children of the said William and Mary, and their legal representatives in equal shares. The said premises to be held by the said trustee until the 1. Definition. A devise of all the testator's decease of the said Mary." Four of said chil'estate, real and personal," does not pass land dren were living at the date of the deed, and of which the testator had but a naked posses- the son of one who had previously deceased. sion, without title, or color of title. This is no Held, that each child, and the son of the estate. Austin v. Rutland R. Co., 45 Vt. 215. deceased child, took a vested remainder in the 2. Fee simple in form of lease. A con-premises at the date of the deed. Gourley v. veyance, in the form of a lease to one and his Woodbury, 42 Vt. 395. heirs, but reserving no rent, and to continue "so long as wood grows and water runs," was held to convey a fee. Arms v. Burt, 1 Vt. 303. Stevens v. Dewing, 2 Vt. 411.

9. A deed of lands was "to Asenath Ford during her life time, and to her eldest son which shall be living at her decease, and to his eldest son, and to his eldest son at his decease, and so 3. So, where, in like case, the reservation on from the eldest son to the eldest son to the of rent was one barley corn annually, if latest generation." Habendum-"Unto her, demanded." Propagation Soc'y. v. Sharon, 28 the said Asenath Ford, and to her heirs, as Vt. 603, aforesaid, to her and their own use and behoof

66

forever." Held, that the deed did not create an facie such children were then in existence, and estate tail; that it created an estate for life only that a valid trust was created. Flint v. Steadin Asenath Ford with a remainder to her eldest man, 36 Vt. 210. son living at her decease; that the words in the 15. Curtesy. By the statute of 1823 habendum, “heirs as aforesaid," refer to the (Slade's Stat. 359,) (G. S. c. 55, s. 15) curtesy is specific designation in the granting part of the given in lands of which “any man and his wife deed, and do not enlarge the grant, but are used shall be seized in her right in fee simple," &c. as descriptio personarum, and such eldest son Held, that the surviving husband does not betakes not by inheritance, but as by purchase come tenant by the curtesy of the land of his under the deed; and hence, that such remainder deceased wife, held by her in tail. Giddings v. man was not barred of his right in the remain- Cox, 31 Vt. 607. Haynes v. Bourn, 42 Vt. 686. der, by any deed of Asenath Ford. Ford v. 16. Relation of tenure. There is no such Flint, 40 Vt. 382. relation of tenure between life tenants and 10. Shelley's case-The word "heirs." remainder men under a will or grant, as that a The rule in Shelley's case is of no special force partition between the life tenants will bind the in this State, except as one of construction and remainder men. Austin v. Rutland R. Co., 45 intention; and the term "heirs" will be con- Vt. 215.

strued as a word of purchase, where such was 17. Limitations. The statute of limitathe plain intent of the grantor. Smith v. Hast- tions does not commence to run against the ings, 29 Vt. 240. Blake v. Stone, 27 Vt. 475. issue in tail until at the death of the donee in 11. Quære, whether under our system of tail. Giddings v. Smith, 15 Vt. 344. conveyancing, we should make any distinction between a covenant to convey, a will or devise, and a deed, in regard to the necessity of the use of the word "heirs," to create a fee simple, or fee tail. Redfield, C. J., in Blake v. Stone.

12. A lease was made to a married woman for 800 years, and at her decease the premises to pass to "the legal heirs" of her husband by her, and to D S. Held, that the word "heirs, the parties being then in existence, was a term of purchase; and that here was an estate in remainder to such "heirs" and D S, which the husband and wife could not convey. Sawyer v. Little, 4 Vt. 414.

ESTOPPEL.

1. General rule. One who claims to do 13. A deed to a daughter for love and affec- an act in one right shall not afterwards be pertion, granted to her " during her natural life mitted to refer the act to another right, and for all the use and profits" of certain lands, haben- a different object. Panton Turnpike Co. v. dum unto the said Diana during her natural Bishop, 11 Vt. 198.

life, and then to her heirs forever"--with a con- 2. Instances. An absolute refusal by the dition that she should keep the buildings and defendant to surrender to the plaintiff on his fences in repair, pay the taxes, cut no wood or demand a note belonging to the plaintiff, untimber except for the use of the farm, and accompanied by any intimation that he would reserving to the grantor the privilege of cutting ever comply, was held to preclude the defendtimber as he should please; and upon failure of ant from setting up, on the trial, the excuse any of the conditions, the deed to be void. that he was away from home and had not the Held, that the deed conveyed an estate for life note with him when the demand was made, only to the daughter; that her husband sur- and so had not had reasonable time and opporviving her was not entitled to curtesy; and that tunity to comply with the demand before the her children, under the term "heirs," took a commencement of the suit. Albee v. Cole, 39 fee simple as purchasers under the deed. Smith Vt. 319; and see Whitcomb v. Hutchinson, 48 v. Hastings, 29 Vt. 240. Vt. 310.

14. A deed of lands was made to A "in 3. As payment of the note in suit, the plaintrust for the heirs of B, to be deeded to them tiff took another note with different signers when requested by said B, and to said heirs, executed and payable in New York, embracing heirs and assigns forever"-habendum, "to said usurious interest. In answer to the defense of A in trust for B's heirs and their assigns, to their payment;-Held, that the plaintiff was estopped own use and behoof forever - covenanting from setting up the illegality of the second note "with the said A and the children of said as being void by the laws of New York. B, their heirs and assigns." Held, that it Austin v. Chittenden, 33 Vt. 553. Ib. 620. 36 appeared on the face of the deed, that by "heirs" Vt. 306. See Austin v. Dorwin, 21 Vt. 38. of B was intended his children, and that prima 4. S sold a quantity of wool to H, and

shipped it to B, a forwarder in Burlington, Vt., | 11. Grant. A conveyance according to a subject to the order of H, and sent H a bill of lot line "as run out" by commissioners of the sale of the wool with advice of the shipment Legislature, was held to be such an acquicssubject to his order. H took possession of the cence in the accuracy of the lot line, as to conwool in Burlington and reshipped it, through clude the grantor from any claim by constructB, consigned to D, a commission merchant in ive possession beyond that line. Hull v. Fuller, Boston, Mass., taking B's receipt for the wool 7 Vt. 100. to be forwarded, and sent the receipt to D and 12. Parties having a special interest, as drew on D for the value of the wool, and D mortgagees, in certain machinery, joined in accepted and paid the drafts. While in transitu conveying their interest to a third person, but to D in Boston, the wool was attached by B for the benefit of the mortgagor, and the and others as the property of H and was put machinery was thereafter run, used and posback in the possession of B for custody. In sessed for his benefit. Held to be a release of trover by D against B for the wool;-Held, their special interest, and that they were that S, HI and B were each, by their acts and estopped from setting it up against a subsethe papers, estopped from setting up any title quent attaching creditor of the mortgagor. to the wool as against D. Davis v. Bradley, 24 Walworth v. Readsboro, 24 Vt. 252. Vt. 55. S. C., 28 Vt. 118. 45 Vt. 198.

13. Where a deed of the lands of a feme 5. Where an attempted reorganization of a cocert was not properly acknowledged by the school district by the selectmen was unauthor- feme;-Held, that as against the grantee it was ized and void;-Held, that the defendant was good by way of estoppel, as showing claim of not estopped from denying the legality of such title under the wife, and that his possession organization, by reason of having expressed his would not become adverse to the heirs of the assent thereto, and by having presided as mod-wife, until after their right of entry had accruerator of the district under such organization. ed, which could not be during the coverture, or There could not be one district as to him, and the husband's estate by the curtesy. Smith v. another as to others of the same territorial Perry, 26 Vt. 279. district. Thomas v. Gibson, 11 Vt. 607.

II. BY DEED.

6. Recital. A recital in a deed does not conclude as an estoppel, because it is no direct affirmation. Where the verity is apparent in the same instrument or record, there is no estoppel to allege the truth. Probate Court v. Matthews, 6 Vt. 269.

8. In order to an estoppel by deed, it is essential that it be a valid instrument. No estoppel by deed is created by a void deed. Abell v. Lothrop, 47 Vt. 375.

14. Where one of two adjoining proprietors took from the other a warranty deed of a strip of land off the edge of the grantor's farm where the two farms joined ;-Held, that this was in law a concession that the grantor was the owner of the strip so conveyed, and precluded the grantee from claiming that he was, at that time, holding by adverse possession to a boundary still farther upon the grantor's land. Hodges v. Eddy, 38 Vt. 327. See Shepherd v. Hayes, 16 Vt. 486.

7. The grantor in a deed poll, and, to some extent, all who claim title under him, are bound 15. E executed a deed of land to M, withby recitals in the deed; but they are bound by out M's knowledge or any understanding with a deed recited, only to the extent of its obliga-him in respect to it, and left it in the town tion, and are not precluded from producing it clerk's office with directions to have it filed but to the court, nor from proving that it is defect- not put upon the record, and to retain it until ive. Blake v. Tucker, 12 Vt. 39. he should pay M what he owed him, and then to return the deed to him, E. The town clerk afterwards, by mistake, recorded the deed, and E afterwards took the deed from the town elerk's office, and it was among his papers when 9. The recital in the defendant's deed of they were destroyed by fire. M never had the warranty, that the land so conveyed had been deed in his possession and never saw it. He deeded to him by a certain person named, was had no knowledge of it, until some six or eight held to be plenary evidence of that fact, and to months after it was executed, at which time E estop him from disputing the fact recited, and informed him of it, and at the same time told from setting up a title adverse to it as derived him it was recorded by mistake. E was indebtfrom such person. Green v. Clark, 13 Vt. 158. ed to M and others, and E's object in the tran10. Where the terms of an indenture were saction was to prevent his other creditors from recited in a bond conditioned for its perform- attaching the land. On a bill brought by E ance;-Held, that the signers of the bond, upon against M and certain creditors of M, who had general principles of estoppel, were concluded, levied their executions upon the lands as the and that other proof of the terms of the indent-property of M, praying a perpetual injunction ure was not needed. Fletcher v. Jackson, 23 against setting up title to the lands ;-Held, Vt. 581. that there had been no such delivery of the

deed as to transfer any title to M; and that, as ed them of B to keep for him and to deliver on none of these claims were created upon the demand; Rejoinder,--that B brought his action faith of the title being in M, the orator was not of trespass against this defendant for the same estopped, and was entitled to the relief prayed. taking, and on issue joined as to B's title, judg Elmore v. Marks, 39 Vt. 538. ment was rendered for the defendant. On de16. Covenants of title. Where A con- murrer ;-Held, that such judgment was well veyed lands in mortgage with covenants of pleaded as an estoppel. Burton v. Wilkinson, title to J, A having no valid title at the time, 18 Vt. 186. and such mortgage was duly recorded, and 20. A sued B in trover for certain cloth, in afterwards A acquired a title from the rightful which suit the point litigated was, whether B owner, and thereupon conveyed with covenants had taken and carried away the cloth. B of warranty to M, which deed was duly record- obtained a verdict and judgment. Afterwards ed;-Held, that the estate of M was subordinate B sued A for slander in charging him with havto the mortgage to J; and, by Bennett, J., the ing stolen the cloth. A set up in justification, covenants in the mortgage bound A as an under a notice, the truth of the words spoken. estoppel until he acquired a title, and then the Held, that the judgment in the former action estate which devolved upon him fed the estop-was conclusive against the justification set up. pel, and ceased to be an estoppel only, and be- Perkins v. Walker, 19 Vt, 144. came an interest, and gave J precisely what he 21. Where there is an attempt to fix a would have had, if A had had such title when liability upon a party to a record in a new and he executed the mortgage. An estoppel which independent proceeding, he is not estopped runs with the land operates upon the title, so from showing the true relation in which he as actually to alter the interest in it in the stands to such record-as that he was a mere hands of the grantor, his heirs or assigns. Jar-nominal party. Catlin v. Allen, 17 Vt. 158. vis v. Aikens, 25 Vt. 635. Ross v. Fuller, 12 Vt. 265.

Small

17. Where an executor, who was sole de- 22. Justice's judgment. Held, arguendo, visee under the will, conveyed lands, describing that the judgment of a justice, not appealed himself as executor and as selling aud convey- from, in an action of trespass qua, clau. where ing by virtue of a license from the probate the title of land is brought in question and liticourt, but added personal covenants of title gated, is, like the judgment of the county court, and warranty, it was held, in an action of eject- conclusive of the title. Small v. Haskins, 26 ment against a stranger to the title, that it must Vt. 209. Redfield, C. J., contra. But see same be understood that the executor intended to judge in Reynolds v. Provan, 31 Vt. 638. convey all the title he had, and, although no 23. Collateral estoppels discussed. license to sell was shown, yet, as no claim of v. Haskins. creditors intervened, the defendant could not set up a title in the executor, or the estate he represented, in defense,-for that the covenants in the deed operated as an estoppel against both the executor and the defendant, and to convey the whole title of the executor to the plaintiff. Carbee v. Hopkins, 41 Vt. 250; and see Brown v. Edson, 23 Vt. 435. Middlebury College v. Cheney, 1 Vt. 336. Blake v. Tucker, 12 Vt. 39, and Smith v. Hall, 28 Vt. 364.

III. BY RECORD.

24. Mutuality. Estoppels must be mutual, and can only operate upon the parties to the issue, and those who stand in privity of estate, or descent. Wright v. Hazen, 24 Vt. 143.

25. A party not concluded by a record cannot insist that the other party shall be concluded thereby, for both must be bound or neither is. Knapp v. Marlboro, 31 Vt. 674. But see Austin v. Hall, 43 Vt. 110. Spencer v. Dearth, 43 Vt. 98.

26. Husband and wife, in a joint action against a town, had recovered final judgment for personal injury to the wife caused by the 18. Question adjudicated. Where a fact insufficiency of a highway. In a second action appearing to have been put directly in issue on by the husband to recover his damages for loss the face of the pleadings, is determined by a of service of the wife, medical attendance, &c; jury in one case, the verdict, when properly-Held, that the former judgment was conclupleaded in a subsequent suit between the same sive upon the town as to all the facts put parties, is conclusive as to the facts found by in issue and found against it in that suit. Lindthe verdict in the first case. This is by way of sey v. Danville, 46 Vt. 144. an estoppel. Isaacs v. Člark, 12 Vt. 692..

27. The defendant had agreed to pay all

19. Trespass for taking certain goods of the claims that might thereafter come up against plaintiff from his warehouse; Plea-that, the the plaintiff, as administrator of an estate. goods belonged to A, and that the defendant Such a claim was presented, and the defendtook them by legal process against A; Replica-ant, being notified of it, promised to take tion, that the goods were the property of B, care of it if sued, and was afterwards notified and not of A, and that the plaintiff had receiv-lof suit brought upon it. He had before offered

the plaintiff could recover the value of one-half the property. Lyman v. Dow, 25 Vt. 405.

to pay part of it. He neglected to attend the sideration; that the defendant could not, after suit, and judgment passed against the plaintiff, that, raise the question of priority; and that which the plaintiff paid. In an action to recover the sum so paid ;-Held, that upon these facts the defendant was precluded from objecting that this was not a claim against the plaintiff, as administrator. Randall v. Kelsey, 46 Vt. 158.

34. A sold a wagon to B, to remain A's property until paid for. B repaired it, adding four-fold to its value, and without paying for it, sold and delivered it to C. A sued B for this 28. A portion of the demanded premises and other indebtedness, and attached the waghad been decreed to the plaintiff in a former on in the possession of C, and sold it on execusuit in chancery in his favor against the defend- tion. In an action of trespass by C against the ant and others. During that suit, the defend-attaching officer;-Held, that he could defend, ant had obtained a deed of the premises, but under the general issue, as the servant of A, the the title under it was not in issue nor litigated, owner; and that the attachment was no estoppel although the defendant might have been per- as to A's title as owner. Child v. Allen, 33 Vt. mitted to set it up, on application to the court 476.

at any time before the final decree. Held, in 35. In scire facias upon a recognizance for ejectment, that the defendant was not estopped the prosecution of an appeal, where intervenby the decree from setting up his title under said deed. Wing v. Hall, 47 Vt. 182.

ing damages were claimed;-Held, that the defendant was not estopped by the sheriff's return of nulla bona on the execution, from showing the real condition of the debtor's property.

29. A party is not estopped by his bill in chancery, though sworn to by him, from explaining by his own and other testimony, the Green v. Shurtliff, 19 Vt. 592. circumstances and qualifications under which 36. The plaintiff, a mortgagee, brought a he was led to sign and swear to the bill, when trustee writ upon the mortgage debt, of which it is read in evidence against him in another the officer, without direction of the plaintiff, Whitcher v. Morey, 39 Vt. 459.

cause.

30. Case of an estoppel by rule of court. Stillman v. Barney, 4 Vt. 331.

See JUDGMENT.

made additional service by attaching the mortgaged premises. The plaintiff entered his suit and prosecuted it-as the fact was foundmerely to hold the trustee, and not with the in31. Attachment and sheriff's return. tention of holding the premises on the attach-. An officer was commanded by his writ to attach ment. Held, that this was not such a ratificathe goods and chattels of the defendant to the tion of the attachment of the land, as to estop amount of twenty dollars; and he made return the plaintiff from his right of entry on the thereon that, by direction of the plaintiff, he premises under his mortgage, although there had attached all the hay, grain, oats and peas was no notice given of any disclaimer of this in the defendant's barn.-Held, (1), that the unauthorized act of the officer. Mason v. Gray, officer was estopped from saying that there was 36 Vt. 208. no hay, grain, oats or peas in the barn; (2), that the writ and return were prima facie evidence that the property attached was of the value of twenty dollars. Barney v. Weeks, 4 Vt. 146.

IV. EQUITABLE ESTOPPEL.

37. Rules and instances. If one stands by and sees his own property sold, or dealt with 32. Where an officer, having an attachment by another, he is estopped from afterwards for service, represents to the creditor that he setting up his own title against persons thus has made a valid attachment of certain property, purchasing, or giving credit upon it, even and thereby induced the creditor to rely upon though his own conduct resulted from mere it and forego making any further attachment, carelessness or negligence, and with no real which he might then have done, the officer is bound by his representations, and estopped 598. from showing that in fact he made no legal attachment. Howes v. Spicer, 23 Vt. 508.

purpose to defraud. Oady v. Owen, 34 Vt.

38. The plaintiff was in fact the owner of certain sheep in the possession of the defendant. 33. The plaintiff and defendant, two officers, The defendant, being about to sell the sheep, made attachments of the same property at about inquired of the plaintiff if he owned them, and the same time, so as to make it doubtful which offered to give them up if he did. The plaintiff had the priority, and thereupon they agreed to replied that he had no claim to or interest in divide the property equally between them. The the sheep. Upon this understanding, the property was duly charged in execution by defendant sold them. Held, that the plaintiff both sets of creditors, when the defendant was estopped thereby from setting up any title seized and sold all the goods on the executions to the sheep. Downer v. Flint, 28 Vt. 527. committed to him. In an action of trover;- 39. Where the grantee of lands was present Held, that such agreement was upon good con- when his grantor re-sold them, witnessed the