
    Nason vs. Allen.
    Where one seised of a remainder expectant upon an estate for life, mortgaged tha premises in l'ee, and died ; and his widow brought an action of dower against the mortgagee ; it was held that the latter was estopped to deny the seisin of the husband.
    In this caso the plaintiff, as the widow of Thomas Nason, demanded her reasonable dower in two parcels of land. In a case stated by the parties it appeared that the husband, and his mother Joanna Nason, were tenants in common of both parcels; — that in 1804, the mother, who is still living, conveyed one of the parcels, called the six-acre-tract, to Thomas in fee; receiving from Mm, at the same time, a lease of that tract during her life; — that on the 21st day of October 1809, the mother and son both joined in a mortgage of both parcels to the defendant in fee ; — that the plaintiff’s marriage with Thomas took place Feb. 17,1813; — that on the 31st day of March 1815, the defendant, by bis deed of release and quitclaim ;u common form, conveyed to Thomas Nason, all Ms right title and interest in the premises as mortgagee ; — and that on the 6th day of May 1824, Thomas Nason mortgaged the premises in fee to the defendant, who, in May 1827, recovered judgment for possession of the same, in an action upon the mortgage.
    Before the commencement of this action, the defendant had assigned to the plaintiff her dower in one moiety of all the premises, except the six acres.
    It was further agreed by the parties that -if the court should be of opinion that the defendant, by holding the premises under Thomas Nason’s deed of May 6, 1824, was estopped to deny Ms seisin, then die facts relative to the mother’s estate for life in the six acres were to bo disregarded, and considered as not admitted; and that the oourt should render such judgment, upon the case thus stated, as ¡night conform to the principles on which the case should be decided.
    
      IK Goodenow, for the defendant,
    contended that the dead and lease of 1801 being one transaction, the husband was nem seised .except of an estate in remainder; and of this the wife is not dowa-ble. Eldridge & al. v. Forrestal & ux. 7 Mass. 253 ; Co. Lit. 35 ; 4 Land’s Abr. ch. 130, art. 4, sec. 4.
    
    
      Nov ought the defendant to be estopped by the mortgage to him in 1824. Though the warrantor may not aver against his own deed, yet the warrantee may. Porter v. Hill, 9 Mass. 36. There is a wide difference, on this point, between a lessee and a grantee in fee. In the case of the former, there are relations still subsisting, which he is very properly forbidden to impair, by any averment inconsistent with his character of lessee. But no such relations subsist between grantor and grantee in fee ; and the latter may therefore protect himself by the acquisition of any outstanding or paramount title. Fox v. Widgery 4 Greenl. 2 IS. It is only where the principle of subordination exists, and a duty is still due, that the reason of the doctrine of estoppel applies. But even a lessee, if he admits that some interest passed by the lease, is not estopped to show what that interest was. 5 Dane’s Abr. ch. 160, art. 1, sec. 22 ; Co. Lit. 47 j 8 D. & E. 487; 2 Saund. 418.
    
      Appleton, for the plaintiff,
    cited Bancroft v. White, 1 Caines IS5 j Hitchcock ¶. Harrington, 6 Johns. 291; Collins v. Torrey, 7 Johns. 278 ; Embree v. Ellis, 2 Johns. 119 ; Kimball v. Kimball, 2 Greenl. 226 ; Hitchcock v. Carpenter, 9 Johns. 344 ; King v. Stacy, 1 L. & E. 4; 3 Com. Dig. Estoppel D.; 5 Dane’s Abr. ch. 160, art. 1 ; 4.Bac. Abr. 107.
   Mellen C. J.

delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following.

The plaintiff demands her dower in two tracts of land; one of the tracts contains six acres; of which she has not been endowed. As to the other tract, she has had her dower assigned to her in one moiety of the same ; and, unless upon the principle of estoppel, she is not entitled to dower except in one moiety of this tract; nor in any part of the six acres ; because Thomas Mason was not seised of the freehold, but only the inheritance of the tract of six acres, during the coverture ; nor of more than one moiety of ihe other tract. St appears that although such was the seisin of Thomas Nason, still, on the 6th of May 1824, by his deed of that date, he conveyed both the lots in fee and in mortgage to Allen the tenant, who afterwards commenced ati action, counting on the mortgage deed, and recovered judgment for the premises, that is, both tracts. And the counsel for the plaintiff contends that as the defendant claims the premises under the deed of her husband, with the usual covenants of seisin and warranty, and also under the judgment he has recovered, he is on legal principles estopped to deny the seisin of the husband as alleged in the writ. If he is so estopped, then the facts set forth in the statement, shewing that the husband was not so seised during the cover-ture, are to be considered as out of the case, aud so arc not to be re - garded. We place the cause on this ground, because we do not perceive that the release from the tenant to Thomas ,Nason, bearing date March 31, 1815, can have any bearing in the decision of it. The question then is, whether the tenant is estopped to deny the alleged seisin of the husband ?

In the case of Taylor, 54 Eliz. (cited in Sir W. Jones, 357) it was held that if a tenant at will, or for years, made a feoffment in fee and died, and his wife brought dower against the feoffee, he could not plead that the husband was not seised. In that case it was evident that, independent of the estoppel, there was no estate in the husband, whereof the wife was dowable. In Bancroft v. White, 1 Caines 185, the same principle was urged by counsel and admitted by the court. In Hitchcock & ux. v. Harrington, 6 Johns. 290, the facts were, that the former husband of Ann Hitchcock, one of the plaintiffs, was .Moses JYorthop ; and the defendant claimed under a conveyance from the son and heir of JYorthop. Kent C. J. in delivering the opinion of the court says, “ The objection of the want of seisin in the husband cannot be received from the defendant, as he holds under the husband, by a conveyance from his son and heir. In Collins v. Torrey, 7 Johns. 278, the same principle was recognized and applied. Tn Hitchcock & ux. v. Carpenter, 9 Johns. 344, it appears the wife’s former husband was one Ferris, and the defendant claimed to hold under the heirs of Ferris. The court say, “ as he defendant claims under the heirs of Ferris, ho is estopped from denying the seisin and death of the former husband of the demandant.” In Kimball v. Kimball, 2 Greenl. 226, the same principle was adopted by this court. In that case the defendant claimed under the deed of the demandant’s husband. A similar case came before us in the county of Kennebec, and was decided in the same manner. The decision was not reported. In the cases above mentioned, the defendants claimed and held by virtue of absolute conveyances ; whereas, in the present case, the defendant claims and holds as mortgagee, and under a judgment on the mortgage ; but we are not aware that the difference in fact makes any in principle. The defendant claims title under it, and he may avail himself of the covenants in the deed, after his title shall have become absolute, and dower been assigned to the plaintiff, "and. recover such damages as he may sustain in consequence of the assignment of dower. Porter v. Noyes, 2 Greenl. 22. And if the estate should never be redeemed, then the defendant could never suffer any injury by reason of such assignment. There must be dower assigned to the demandant in the six acres, and in one moiety of the other tract; her dower in one moiety of the same having already been assigned to her $ and judgment be entered accordingly j and for such damages as may be asssessed by the person appointed by the court for that purpose.  