
    Ewing against Desilver.
    By accept-conveying ground and court, to-the use of the alley, in the grantor, nan'll and oTcupin-s of the ground,!"as algrantort{t,ie other ground bounding on the said court ” the grantee is es-topped from denying the right of way through the alley,to the occupiers of íugThé court'" but not adjoining the alicy; though at the deed, the nought to of passage^1 through the alley, as appurtenant to ground adjoining the urt,°batnot abl™n"1?Vmie aithough the grantor and grantee could rightofway through the alley asappurtenant, to any foinln- ;’ot ac,_ without the owners of the land on the posite side of the alley, yet the estoppel operates on one who, with full notice on the face deed, purchases land on that side of the alley, oí the grantee, who, after the execution of the first mentioned deed, became the owner of the land on both sides of the alley.
    . * - ACTION on the case for disturbing the plaintiff's right way ™ an alley running in a southern direction from the side of Walnut street in the city of Philadelphia. The title of the plaintiff was as follows. Arthur Stotesbury and Frederic Shinkel were each the owner of a lot containing twenty-two feet two inches on the south side of Walnut street, and extending one hundred and eighty-five feet in c,ePth- These lots were contiguous; and on the 2d of February, 1796, the owners entered into an agreement to open an alley eight feet wide, running from Walnut street, south> one hundred and forty-eight feet, to which each lot contributed an equal proportion, by four feet being taken from each. This alley was for the accommodation of the parties, each of whom retained the right of soil in his own four feet, and the right of building over the alley, provided sufficient head way were left for carriages. Stotesbury owned the ground to the east of the alley, and Shinkel, that to the west. On the 30th of April, 1796, Stotesbury conveyed to Benjamin Morris the whole of his lot, including one half of the alley, together with the free use of the alley. *On the 25th of . * u ■"j&wA 1808, Morns conveyed to the defendant part or his twenty'“two feet two inches, front on Walnut street,. including' half the alley, and running back from the street bixty-four feet, together with the free use of the alley. On t^le °f May, 1808, Morris conveyed- tothe defendant another part of the same lot, immediately in the rear of that which he had conveyed before, eighteen feet two inches in breadth, and thirty feet in depth, bounded on the west by the alley ; together with -the free use of the alley. On the 13th of August, 1808, Morris conveyed to the defendant another, part of the same lot, immediately- in the rear of that 1 ’• J . . last conveyed, containing eighteen feet two inches m breadth., and fifty-four feet in depth, bounded on the west by the alley, and on the south by a court twenty-six feet in width, “together <■> . , ,, -i i with the rree use or the said alley and ol the said court, and the; right of ingress, egress, and regress, of, into, and out of the same, in common with the said Morris, and his tenants and occupiers of the adjoining ground, as also of his other 
      
      ground, bounding on the said court.” On these words in the deed of the 13th of August, 1808, the cause turned ; for the plaintiff, who was the owner of another lot of ground adjoining the court, but not adjoining the alley, purchased from Morris on the 19th of September, 1808, by J. W. Condy, under whom she claimed, contended, that the defendant having accepted the indenture of the 13th of August, 1808, was estopped from saying that the right of passage through the alley into Walnut street, was not appurtenant to all the ground held by Morris, adjoining the court, at the time of the execution of the indenture. At that time, the defendant was the owner of all the ground adjoining the alley on the east, and John Kinnan, who had purchased of F. Shinkel, was owner of all adjoining it on the west, together with half the alley, and the free use of the whole alley. But on the lfth of December, 1811, the defendant "purchased the whole of Kinnan’s property, so that he was then the owner of the soil of the whole alley, except that part which remained in Morris, and of the ground adjoining it on both sides. On the 28th of January, 1813, Desilver, the'defendant, conveyed to George Shaw, by an indenture reciting all the former conveyances, all the ground on both sides of the alley; and on the 16th of June, 1813, Shaw re-conveyed to the defendant all the ground on the east side of the alley. The accompanying diagram exhibits the relative situations of the alley, the court, and the adjoining grounds:
    
      
    
    
      It was agreed that Shaw should be considered ás a de~ fencJant jn the cause.
    Judge Duncan, before whom the trial took place at Nisi pr¡us^ having instructed the jury, that the defendant was prevented by the deed of the 13th of August, 1808, from* denying the plaintiff’s right of way through the alley, they found a verdict in conformity with the charge ; and the case now came before the Court, on a motion by the defendant for a new trial. . ;
    
      Pettit and J. R. Ingersoll, in support of the rule',
    insisted that the Judge erred in his opinion that there was an estoppel on Desilver,' on the face of the deed of the 13th of August, 1808. The intent was, that Desilver should have the use of the court, in common with those tenants of Morris, and occupiers Under him who lived adjoining it, and the use of the alley in common with all those who had á right to use it. When Morris gave that deed to Desilverj he had no right to the use of the alley for himself and his tenants on the court; and consequently could convey no right to Cpndy, under whom the plaintiff claims. The effect of establishing the right asserted by the plaintiff, would be to conclude third persons, by an arrangement to which they were not parties; for whatever might be the consequence to Desilver of accepting the deed of 13th of August, 1808, he could not thus convey to Morris the use of the alley for the occupiers of'land on the court,’ without the consent of the owners of the ground west of the alley; and although he'subsequently became the owner: of. the land on both sides, that was an accident which could not have been contemplated when the deed of the 13th of August, 1808, was executed. These considerations should have great weight in the construction of that deed, which is certainly expressed in ambiguous terms. The case does not come within the law of estoppels, by which a man is precluded from denying what he has asserted, or prevented by his act or acceptance, from speaking the truth. But an estoppel must be a precise affirmation of that which makes the estoppel. It must be certain, and is not be takesi by argument or inference. Co. Litt. 352. These requisites are not found in the present case. Desilver has asserted nothing, and the deed contains no precise affirmation ; but, at most, an implied and argumentative affirmation. ■ Besides, estoppels are confined to land, and do not extend to any thing. arising out of land. Co. Litt. 47, b. The case is very different from that of M'Williams v. Nisly, 2 Serg. & Rawle, 507, in which it was held that one who conveys laud to which he afterwards acquires title, is estopped from denying his title at the time he conveys.
    T. Sergeant and Bihney, contra,
    said that if the defendant, upon any principle of law or equity, was prevented from denying the plaintiff’s right of way through the alley, a new trial ought not to be granted. The obvious meaning of the deed, was a grant by Morris to Desilver of a right of pas-sage in the court and alley, in common with himself and his tenants who occupied ground adjoining the court! This deed, which was strictly speaking an indenture, was accepted by Desilver", who is therefore bound by it. He received an advantage in having a front on the court, and perhaps had some allowance in price, for granting the privilege now claimed. The plaintiff and defendant are therefore tenants in common of the way through both the court and the alley. When Desilver sold to Shaw, he was the owner of the ground on both sides of the alley, and as Shaw purchased with full notice on the face of his deed, he, is in no better situation than the defendant. When an estoppel can be used for an equitable purpose, instead of being odious in the eye of the law, it is favoured. They cited Watson v. Bioren, 1 Serg: & Rawle, 227. Litt. Sec. 666, 667. 10 Vin. 462. Rawling’s Case, 4 Rep. 54. Trevivan v. Lawrance, 1 Salk. 276. Shelby v. Wright, Willes Rep. 9. Shep. Touch. 52. 5 Bac. Ab. 429. 1 Madd. Ch. 313. Took v. Hoskins, 2 Vern. 97. 1 Bac. Ab. 463. Green v. Moody, Godb. 314. 10 Vin. 432, pl. 13. M'Williams v. Nisly, 2 Serg. & Rawle, 507.
   Tilghman C. J.

(After stating the case) delivered the opinion of the Court.

The main question is, what is ‘ the true meaning of the indenture of the 13th August, 1808 ? For, when that is ascertained, the decision of this cause will be matter of no great difficulty. I have no doubt that the meaning was, that the free use of both court, and alley should be appurtenant to the ground, conveyed by Morris to the defendant, and also to the grounds adjoining the court and not adjoining the alley held by Morris and others claiming under him. This, I say, was the meaning; but whether the deed was sufficient to carry that meaning into effect, is another question. It is contended by the defendant’s counsel, that the deed was not sufficient to'effecthate such an intent, because Morris had no right to grant a right of passage through the alley, as appurtenant to grounds not adjoining the alley. Neither could Morris and the defendant together, grant a right of passage through the alley as appurtenant to any ground not adjoining it, without the consent of John Kinnan. who owned all to the west of it. I agree with the defendant’s counsel, that on the 13th August, 1808, Morris had no right to grant •a right of.passage through the alley as appurtenant to ground adjoining the Court and not adjoining the alley. Neither, at that time, had the defendant a right to make Such a grant. But the defendant had a right to say, that he would never deny the right of passage through the alley, to the occupiers of ground adjoining the court, neither should, any person claiming under him deny such right. • This he did .say, and this would operate as an estoppel against him. But then we are to consider the case of Shaw, the owner of the ground west of the alley, for it is agreed between the parties to this-suit, that Shaw shall be considered as a defendant. As to Shaw, then, it is to be observed, that he claims under the defendant, who, after the indenture of the 13th August, 1808, became the owner of all the ground west of the alley, by his purchase from John Kinnan, 17th December, 1811. Now, immediately after that purchase, the estoppel created by the indenture of the 13th' August, 1808, operated on the ground west of the alley, which afterwards came to Shaw, by purchase from the defendant with full notice, as his deed contains a recital of the indenture of the 13th August, 1808. A good deal has been said about the law of estoppels, an' ancient and curious doctrine ; but I do not think it necessary to go deep into that subject on the present occasion ; because whether there was a strict estoppel or not, the case will be with the plaintiff, if under all circumstances, equity would enjoin the defendant from disputing the plaintiff’s right of way. 'And this, I think, it certainly would; because by the indenture of August1808, the defendant gained the free use of the court; an important privilege, which gave him a right to open doors and windows on the court, and for which no return was asked, but his consent to permit the occupiers of ground on the court, to have a passage through the alley. This right is essential to them, because they have no other way of passing with carriages into Walnut Street. If the plaintiff is deprived of it, her lot, which fronts on Walnut Street, and runs back to the court, will be greatly lessened in value. Now, what is the equity between the plaintiff and defendant ? The plaintiff derives her title under y. W. Condy, who purchased from Morris in September, 1808. When Condy purchased, he saw that the defendant, only a month before, had accepted an indenture, in which it was confessed, that the right of passage through the alley, was appurtenant to the ground which Morris sold to him, and no doubt, in consideration of this right of passage, he paid a higher price thán he would otherwise have done. The case of the plaintiff is stronger than Condy’s, for not only had she the indenture of August, 1808, before her eyes, but this important circumstance in addition, that the occupiers of ground adjoining the court, Were in the actual enjoyment of the use of the alley. Shall the defendant then, be permitted to hold out false colours to the injury of innocent purchasers ? Is not the case as strong against him, as against a prior mortgagee, who is privy to a second mortgage, and conceals his own ? Nor is Shaw, in point of equity, in a better situation than Desilver'-, for he purchased, with full notice of all that had passed. I am of opinion, therefore, that the verdict for the plaintiff, which was, given in con-, formity with the charge of the Court, was right, and .the rule to shew cause why there should ’ not be a new trial, should be discharged.'

Rule discharged.  