
    GEORGE SIMMONS’ lessee vs. IRENE D. HENDRICKSON.
    The principle of Simmons vs. Logan, 1 vol. 110, re-affirmed.
    In a deed of partition of coparcenary property, the party accepting land as a part of the estate so held in coparcenary, was held to be estopped from denying that title, though the recital showed that the land was once vested in him by another title, the same recital showing that it had ever since that time leen held, considered and enjoyed as a part of the coparcenary estate.
    
    Ejectment. Question reserved by the Superior Court, New Castle county.
    Tried before Johns, Jr., Chancellor, and Judges Harrington, Lay-'ton and Milligan.
    The case was precisely similar to that of Simmons’ lessee vs. Logan, (which see, 1 Harr. Rep. 110;) being an action of ejectment for the same premises, by the same plaintiff, but against a different defendant.
    In that case the court decided that because Patrick 0‘Flinn and Sarah his wife, in a partition deed between themselves and Mary Huggins, of the estate of William Marshall, the father of Mrs. 0‘Flinn and Mrs. Huggins, devised to them “as coparceners in fee simple,” had taken to themselves- as a part of that estate a tract of land, the title to which, as the partition deed recited, was already in Patrick 0‘Flinn, “but which had ever since the purchase thereof as aforesaid, been held, considered and enjoyed by the aforesaid coparce-ners, as and for a part of the estate, so as aforesaid held by them in coparcenary,” 0‘Flinn and his heirs were estopped from claiming under his original title, against his partition deed.
    This action was brought to try that question over again; and the main ground taken for the plaintiff was, that because the partition deed showed the fact that this tract (No. 7,) was not a part of William Marshall’s estate, 0‘Flinn and his wife were not estopped from denying the fact either by their recital that No. 7, had always been held and considered as a part of Marshall’s estate, or by the fact that they accepted it as such in their partition with Mrs. Huggins.
    The point made was that “an estoppel does not run, if the truth appear by the deed that would otherwise work an estoppel.” (Co. Litt. 352, b. 352, a. n. 1; 4 Com. Digest, Estoppel E. (2) 8; 8 Cow. Rep. 58(5, Sinclair vs. Jackson.)
    
    
      Bayard and Clayton, for plaintiff.
    1st. The partition deed between 0‘Flinn and wife and Mary Huggins, shows that the land (No. 7,) was never William Marshall’s; this deed though treating it in the grant 
      as Marshall's estate, and taking it as such back to P. OFlinn and Sarah his wife, does not estop P. OFlinn from claiming it as of his old title. It only operates as a confirmation by Mary Huggins. If No. 7 had been assigned to Mary Huggins, it would be different, for this deed would convey the title out of Patrick OFlinn; but as he took No. 7 to himself and his wife, he is not estopped to deny that this was Marshall’s estate, because the deed shows the truth to be different from the implication on which the estoppel is founded. 2d. If the partition could operate as a declaration of trust by Patrick OFlinn, in favor of the coparceners, Mrs. O’Flinn and Mrs. Huggins, which it may (Cruise, tit. Trust, ch. 1, sec. 36,) then the acceptance of No. 7 under that partition, would amount to no mqre than a, conveyance of the trust estate only to 0‘Flinn and his wife, and he is not estopped from still setting up the legal title in himself. If any thing passes from the party there is no estoppel. (4 Com. Dig., Es-toppel, E. 8.) And in a court of law, even a trustee can recover in ejectment against his cestui que trust. (15 Petersd. Ah., tit.- Trustees, 213.)
    
      Frame, Booth and Wales, for defendant.
    This deed is as much the deed of Patrick 0‘Flinn as of Mary Huggins; and, whether he was grantee or grantor of this particular tract, he is equally bound by it. A deed inter partes, is the deed of the grantee as well as the grantor. (1 Shep. Touch. 52-3; Perkins on Conveyancing 71, s. 159; 3 Bac. Ah. 441-2; 4 Com. Dig. 76.) Estoppel is where a man is concluded by his own act or acceptance to say the truth. (Co. Liit. 352, a.) The acceptance under the deed is an estoppel. Patrick OFlinn accepted No. 7, as of the grant of Mary Huggins. But it is said that it appears by the deed that No. 7 belonged to Patrick 0‘Flinn, and that he is, therefore, not estopped to deny this. The recital is not that in September, 1811, the legal title to No. 7 was in Patrick 0‘Flinn, but that in 1792 he became lawfully seized of No. 7, by the deed of Woodcock and Carswell; not that he was now seized; on the contrary, the deed recites a matter inconsistent with that, to wit: that this No. 7 had always been held, considered and enjoyed by the copar-ceners as and for a part of the estate of William Marshall, so held in coparcenary. It is this statement that we say the heirs of Patrick 0‘Flinn are estopped to deny; and we say that the mere statement that the legal title was once in Patrick O’Flinn is not to be admitted to open his mouth to deny his own-admission that this was coparce-nary land, and that Mrs. Huggins had title as one of the coparceners, to convey it to him and his wife. [Co. Liit. 363-6, h. sec. 693, 170, 
      h.; 3 Johns. Rep. 331; 4 Comyn’s Dig. 79; 1 Salk.) Admitting that it is not the case of a strict technical estoppel, we contend that on other principles the heirs of Patrick O’Flinn cannot recover against this deed. The court will always give effect to a deed, if possible; and, admitting that the legal title to No. 7 was in P. O’Flinn, it is clear from the deed, that Patrick O’Flinn meant to convey his title to No. 7, to himself and his wife jointly. We agree that he could not convey by a deed directly to his wife; but Mrs. O’Flinn was not the only other party to this deed — -Mary Huggins was a party. Now the covenants are all mutual for all the purposes of the deed; the consideration upon which Mrs. O’Flinn conveyed a portion of her land to Mrs. Huggins, and another part to Patrick O’Flinn in a different estate — the consideration upon which Mrs. Huggins conveyed her land to O’Flinn and his wife — were, that this deed should all take effect according to the grants and covenants of the parties, and the court would be even astute in discovering the means of carrying it into effect. If, then, the court should not consider this a technical estoppel, it is clear that it must operate as a covenant on the part of O’Flinn, to stand seized to the use of himself and wife in relation to No. 7, in the same manner as he took with her the other coparcenary estate; or at least a covenant to stand seized to the use of Mary Huggins, whose grant then conveys it to O’Flinn and wife. (1 Shep. Touch. 82; 1 Cruise Dig. 272, 281; 4 Ibid. 96-8; 3 Law Lib. 69, 74 [151;] Cowp. Rep. 600; 7 Co. Rep. 133, Bedell’s case; Willes Rep. 675-6; 2 Wills. 77-8; 20 Johns. Rep. 86-7-8.)
    The covenant of Patrick O’Flinn on consideration that these lands shall be hereafter forever held in a particular manner, if it be not binding on him as an estoppel; nor as a grant; or covenant to stand seized to the use of another; is still operative thus to prevent a recovery. This is an ejectment: a possessory action. The plaintiff must recover on the strength of his own title, which must be the legal right to the immediate possession. Now, however it may be as to the title, the plaintiff cannot claim the possession, against his own express covenant that the defendants shall hold and enjoy the land. (2 Stark. Ev. 295, 294, n. a.; Cowp. Rep. 600-1, 473-4; 4 Burr. 2208; 3 East Rep. 15.) The deed of Woodcock et al., to P. 0‘Flinn for No. 7, was as far back as March, 1792; and the partition deed was acknowledged in April, 1812, more than twenty years after. It states that 0‘Flinn had bought the land of Woodcock; and this deed recites also, (which is a fact that they are all estopped from denying,) that ever since the purchase this land had been held, considered 
      
      and enjoyed by the coparceners as and for a part of the coparcenary estate. This holding under a claim of right is an adverse possession; and being for twenty years, is a good legal title not only for defence, but for recovery.
    As to the point last made for plaintiff, the whole difference between us is whether this deed for partition declares a use, or only shows a trust estate. This will depend on the distinctions, as they are to be found in the books, between such trusts as the statute of uses will not execute, and such uses as it will execute. Grant that Patrick O'Flinn had the legal estate under Woodcock’s deed, is not the declaration in the partition deed such a declaration of use as the statute would exe-ecute? Patrick O'Flinn was no trustee under the Woodcock deed; he had the legal title. He then declares by deed that the land has ever since the purchase been “held, considered and enjoyed” by these two ladies, as property of their father; and accepts the conveyance of the land from Mary Huggins, as one of the coparceners, to himself and his wife, as and for their full share, part and proportion of her father’s estate so held in coparcenary. Is this such a declaration of use as the statute will execute? If it is not, it would be difficult to say what kind of use would be executed. Even in case of a declaration that he held for the separate use of a married woman, during coverture, which would be technically a trust, such a declaration would be executed by the statute. Why, if Patrick O'Flinn were a naked trustee, he could convey to the cestuis que trust; and he has, by this very partition deed, attempted and endeavored to convey this land in fee. It is no attempt to divide trust estates; it was a partition of legal estates; of all the estate that they had to divide; and whatever estate Mary Huggins or Patrick O'Flinn had in No. 7, she has granted to O'Flinn and wife, their heirs and assigns; and he has accepted the whole title to No. 7 to himself and wife.
    
      J. M. Clayton, in reply.
    The estoppel is at an end. Our denial that the partition deed conveyed the legal estate to O'Flinn and wife is consistent with our taking a grant of the trust estate from Mary Huggins. The legal estate was in Patrick O'Flinn; how has it been conveyed out of him? It cannot be done but by a deed — by grant or feoffment: but Patrick O'Flinn grants no part of No. 7 to Mary Huggins; he receives from her whatever interest she had in No. 7, which was her trust estate. The words admitting that No. 7 had been held, considered and enjojmd in a particular manner, are not words of conveyance, and nothing short of words of conveyance would avail them, as divesting the legal title. This then is a declaration of trust and no use executed.
    
   The chancellor delivered the opinion of the court:

Johks, Jr., Chancellor.

The questions which have been agitated by counsel in the argument of the points presented, if considered, would require of the court to determine as well the matter of estop-pel, as whether, by reason of-what is contained in the recital of the partition deed relative to the derivation of title by 0‘Flinn, under the deed of 1792, from Woodcock and others, the effect of what otherwise would be an estoppel, is avoided. In the case.of Simmons' lessee vs. Logan, (1 Harr. Rep. 110,) the general question, exclusive of the effect and operation of the recital as being matter of avoidence, was decided; and this same, partition deed, by the opinion and judgment of the Superior Court, considered, and held to be conclusive upon the parties, on the ground of estoppel. The point presented by the plaintiff’s counsel and now relied on, is the new matter of avoidance, but for the appearance of which, in the same deed, it iá admitted, the decision of the Superior Court would not be impeached. To arrive at the correct position, it is only requisite to consider the effect and operation of the partition deed of 18l'l, without the recital referring to the Woodcock deed of 1792: takeffrom it that declaration respecting the origin and vesting of the fee simple title in 0‘Flinn, and there is no pretence of any thing else appearing- on the face of the instrument inconsistent with the capacity of the respective parties mutually to grant and convey to each other the land and estate which was the subject of partition; in all other respects the recital stands well with and affirms the title of the respective grantors as coparceners. In the absence, therefore, of this reference to the deed of 1792, accounting for the origin of 0‘Flinn’s title, one of the parties conveying, we have the plain case of a partition deed, and thé parties thereto subsequently entering upon, and severally holding and occupying their distinct and separate parts according to the grant, and 0‘Flinn until his death acquiescing, and never in his lifetime finding fault with or attempting to invalidate what he had done and admitted under his own hand and seal as his act and deed. Patrick 0‘Flinn having thus during his life, held, occupied and enjoyed the title, with the chance of the entire fee simple, had he survived his wife, it would seem independent of the deed, that such a partition, holding and possession as this, if made in pursuance of a parol agreement, ought to be held conclusive upon the ground of long acquiescence. Such was the decision iu Carter's ex’r. vs. Carter, (5 Munf. 108,) in which case it was held that a partition which had been long acquiesced in, and acted upon by the parties generally, ought not to be disturbed on the ground of irregularity only; though, if it be unjust or illegal, it may be impeached by a party who has never acquiesced. And where the agreement for partition was entered into by parol only; yet after it has been actually executed and the enjoyment in severalty has for a length of time gone in conformity thereto, a Court of Chancery will not allow such an agreement so acted upon to be disturbed, provided the parties agreeing were competent to bind the inheritance. (2 Vesey, Jr. 570.) In the case under consideration, the agreement is under seal, made by parties competent, according to their own admission, to bind the inheritance; it has been fully executed, and the enjoyment in severalty has for a length of time gone in conformity thereto. If in a case of acquiescence under a parol agreement a party is concluded, how much more strongly does the estoppel apply when you have additionally the solemn act of the party under hand and seal, executed as his deed, together with the acknowledgment thereof a year after the execution. The reason upon which the law of estoppel is founded, is not the truth of the fact, but that the party either by his act or by matter of record is concluded. Hence it is, that if a man take a lease by indenture of his own land, whereof he is in actual possession, this estops him to say the lessor had nothing in the land; for.by acceptance thereof by indenture, he is as perfect a lessee as if the lessor had an absolute fee. (4 Bac. Mb. 187.) So if the disseisor by deed indented make a feoffment in fee whereunto livery is requisite; yet the indented deed shall not suffer the livery made to work a remitter to the disseisee, but shall estop him t.o claim his own estate; the deed indented being the deed of both parties, the taker as well as the giver is concluded. (Co. Litt. 363, b.) If two make partition in a court of record, where one of them have no right, he thereby shall gain a moiety by estoppel. (Co. Litt. 170, b. note 3.) It may, therefore, be considered, and we are of opinion, that the partition deed of 1811, as to the parties and all claiming under them as privies, is an estoppel, unless the effect thereof is avoided by the recital referring to the acquisition of the title to part of the land by 0‘Flinn from' Woodcock, by deed dated 1792. This reference to the inception of Patrick 0‘Flinn’s title, as derived from Woodcock in 1792, is not subsequently stated to have remained unchanged in him, but is immediately followed by a recital that ever since the year 1792, all the land had been held by the parties as coparceners. How this title as to that part of the land purchased by OFlinn from Woodcock accrued, or by what conveyance the parties effected it, they have not disclosed; but they have unequivocally stated and admitted the fact, that ever since the year 1792, down to the year 1811, the date of the partition deed, No. 7 hath been held, considered and enjoyed by the aforesaid coparceners, as and for a pa.rt of the estate so as aforesaid held by them in coparcenary. The parties after thus distinctly stating and admitting that they respectively had an estate in coparcenary as well in No. 7 as the other land, proceed to recite that as coparceners they have concluded and agreed to have, hold and enjoy their respective parts and shares of and in the before mentioned lands in severalty; following this recital with a covenant mutually to and with each other for partition. It is to obviate the effect of the deed as an estoppel that the recital of the origin of 0‘Flinn’s title as derived from Woodcock has been relied on, for it is insisted that there is nothing to show how the fee simple title was conveyed from Patrick OFlinn, so as to account for and explain the manner in which, or the mode by which, the parties became copar-ceners in No. 7. if the recital had fully explained this, or if it was-not for the difficulty resulting from the omission of the parties, there would be no necessity for relying upon the estoppel. As they have stated the existence of the title among themselves as coparceners, we must consider they knew and considered as done and existing, all acts necessary to vest them with the title as stated to be in them and actually subsisting when they by deed indented made partition. The declaration contained in the recital'that OFlinn purchased No. 7 from Woodcock in 1792, does not contradict nor necessarily render it impossible for the title of coparcenaiy subsequently to have arisen, for it may have been conveyed to Marshall immediately after the purchase and by descent vested with the land devised, so as to have produced the title according to the recital. But in this deed it is not the recital alone which works the estoppel, it is the acceptance of title; the recital of the title and then the Acceptance under the grant from Mary Huggins must conclude Patrick OFlinn and all claiming under him; for as these admissions and solemn acts of his were long after he had acquired title to No. 7; and done when he was fully competent to bind the inheritance; it does seem impossible to impeach or invalidate them by reason of his having recited in the deed of partition that he had purchased No. 7 from Woodcock, unless the existence of this fact in 1792, necessarily precludes the title from ever having passed out of him, as we cannot from the fact or matter relied on discover any such necessary or inevitable effect, we cannot consider such a recital to operate so as to preclude the estoppel, or so to make the truth appear by the deed as to prevent that being an estoppel which would otherwise be so considered.

Bayard and Clayton, for plaintiff.

Wales, Booth and Frame, for defendants.  