
    
      M. E. Gayle vs. Robert J. Price.
    
    Summons in dower: It appeared that demandant’s husband, during the coverture, sold and conveyed the land, in which dower was claimed, to the defendant; that he entered under that title, and possessed and claimed the land by no other: Held, that it was not admissible for the defendant, in order to prove want of seizin in the husband, to show that he, the husband, had bought the land at sheriff’s sale, but had never taken titles thereto from the sheriff.
    One who enters as a purchaser from demandant’s husband, and holds possession under his and no other title, cannot shew a defect in that title for the purpose of defeating the claim of dower.
    
      Before O’Neall, J. at Sumter, Spring Term, 1852.
    This was a summons in dower. It appeared in evidence, that the demandant’s husband, in his lifetime and during the coverture, sold and conveyed the land, in which she claimed dower, to the defendant; that he entered under that title, and, at the time of the trial, possessed the land under the same and claimed it by no other.
    In reply to this, the defendant offered to prove, that the demand-ant’s husband had bought the land at sheriff’s sale, but that the sheriff never made titles thereto to him. This proof his Honor overruled, and the demandant had a verdict.
    
      The defendant appealed, and now moved for a new trial, on the grounds.
    Because it is most respectfully submitted, that his Honor erred in overruling the testimony of the defendant to prove the want of seizin in the husband of demandant.
    Because it is most respectfully submitted that his Honor was in error, in holding the defendant estopped by his acceptance of the deed and estate from the husband of the demandant, from shewing the interest of the husband to be equitable and not legal.
    Because the demandant was not entitled to dower in the land, because her husband had never received from the sheriff a deed thereto.
    
      /Spain, for the motion,
    cited 7 Stat. 232; 3 Strob. 190; 2 BI. Com. 131; 2 Atk. 526 ; 2 McC. 54; Co. Litt. 263; 2 Hill, 439 ; 2 Bail. 319; 2 Smith L. C. 490, 589, 508, 539; 32 Eng. C. L. R. 42 ; 15 Mass. R. 499; 2 Mill, 59; 3 Hill, N. Y. 518; 4 McC. 346.
    
      Moses, contra,
    cited 1 N. & McC. 373; Car. L. J. 121; Dud. 177 ; 1 Bing. N. C. 380; 2 Saund. 418; Co. Litt, 363, b; 4 Rep. 4; Co. Litt. 252, a.
   The opinion of the Court was delivered by

O’Neall, J.

This Court is entirely satisfied with the ruling of the Judge below.

He who enters under the title of another, is, in general, estop-ped from denying it.

To this general rule, there are exceptions, such as where the title of the grantor, or lessor, is determined, as in cases of life estates, or leases: or where the allegation does not contest the legal estate, as in the case of a trustee conveying, and his widow claiming dower. There it may be shewn that his legal estate was not such an one as of which his widow was dowable. Or where one enters under a title supposed to be good, but subsequently finds it to be bad, and bona fide acquires the paramount title: there he is permitted to shew this, as an answer to the prima facie case made against him by his entry: or, where a tenant in possession disclaims the title of his landlord, or buys it by a mere parol contract, and holds in his own right for' the statutory period, he may shew these iacts as an answer to his landlord’s claim.

But that a man who enters under a title, holds possession under it, and claims no other title, should be allowed to shew that the title under which he entered is defective, is what, I think, no case can, has, or ever will confirm.

The whole matter is pretty well presented in a note to 2 Smith Lead. Ca. 458.

In dower, it would be monstrous to hold that a wife should not be endowed of land of which her husband had a seizin in fact, and which he, during coverture, had conveyed to another, because that person might be able to point out some defect in the paper title of the husband.

None of the cases, cited by the learned counsel for the motion, go that far.

His strongest case goes no further than to shew, that where, conceding the husband’s title and right of possession, yet it was such as could, by no possibility, confer a right of dower, the defendant might shew this. (Garret vs. Wainman, 32 Eng. C. L. R. 42).

How highly a widow is favored in a claim of dower is shewn by Smith vs. Paysenger, (2 Mill, 59). For that case shews, that she need not shew the deeds by which her husband acquired title. His possession in fact is evidence of seizin in law: .much more strongly does this inference arise against his alienee, who has his (the husband’s) possession and title, and claims by no other.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  