
    MALONY against HORAN.
    
      Court of Appeals.
    Estoppel in Pais, by Deed, and -oe Record.—Merger.—Eeeeot on Dower, op Judgment Setting Deed Aside.
    One of the elements of an estoppel in pais is, that the party setting up the estoppel should have relied on the statements made or acts done which are claimed to make an estoppel. Unless this appear affirmatively, a case of estoppel will not be made out.
    The rule that a judgment is final and conclusive upon the parties to it, as to all matters which might have been litigated and decided in the action, is applicable to such matters only as might have been used as a defense in that action, against an adverse claim therein.
    The release of dower which a married woman makes by joining with her husband in a conveyance of his land, operates against her only by estoppel, and can be taken advantage of only by those who claim under that conveyance.
    Where a husband, by a deed in which his wife joined to release dower, conveyed to a third person, who conveyed back to the wife, and subsequently both deeds were set aside as being fraudulent as against creditors,—Held, that the wife’s inchoate right of dower was not merged in the fee conveyed to her, so as to prevent her from claiming it, after the deed to her was set aside.
    Appeal from a judgment.
    Eliza Maloney, as widow of Patrick Maloney, deceased, brought an action in the supreme court to recover her dower interest in certain lands.
    Patrick Maloney, her husband, being the owner of the premises, had, on November 11, 1864, conveyed them to his brother, Michael Maloney, for a consideration of one dollar, and in this conveyance the plaintiff had joined, and released her dower in the usual form. On December 28, 1864, Michael Maloney conveyed the premises to plaintiff. Both these conveyances were duly acknowledged and recorded.
    Subsequently a judgment was obtained against Patrick Maloney, and in an action brought by a receiver, in which action Michael and Patrick Maloney and the present plaintiff were defendants, and appeared and answered, the above mentioned conveyances were all declared void as to the creditors of Patrick Maloney, and the premises were ordered to be sold. Under this order, the receiver sold the premises to John J. Conklin, for six thousand one hundred dollars, subject to a mortgage of seven hundred and fifty dollars ; and Conklin assigned his bid to Horan, the defendant in , the present action. On the morning of the sale, and prior to the property being offered for sale, the plaintiff called at Horan’s place of business and asked him to attend and bid, informing him that she had no claim upon the property. Conklin, the purchaser, was present at this time. The plaintiff, Horan and Conklin attended the sale, and were present when the terms of sale were read, in whch no mention was made of . plaintiff’s right of dower.
    The court having found these facts, decided that plaintiff had no estate of dower in the premises, and" dismissed her complaint.
    An appeal was taken from that decision to the to the court at general term (reported in 53 Barb., 29; S. C., 36 How. Pr., 260), where it was affirmed. Plaintiff appealed to the court of appeals.
    
      Samuel Hand and Amasa A. Redfield, for plaintiff, appellant.
    I. A doweress is favored in law, and proceedings to secure her dower should be encouraged (1 Story Eq. Jur., § 629; In re Slipperly, 44 Barb., 370). Ho act of the husband’s can prejudice the wife’s right to her dower (Denton v. Nanny, 8 Barb., 618; 1 Rev. Stat., 742, § 16).
    II. (1.) A release of dower can operate only as a release (Halstead v. Eldridge, 2 Halst., 372; Douglass v. McCoy, 5 Ohio, 527; Powell v. Morison, &c., Manfg. Co., 3 Mason, 347; Hall v. Savage, 4 Id., 273; Barker v. Parker, 17 Mass., 564). (2.) In this case, the deed being declared void, the release ceased to operate (Summers v. Babb, 13 Ill., 483; Blair v. Harrison, 11 Id., 384; Stinson v. Summers, 9 Mass., 143).
    III. The plaintiff is not estopped from claiming her dower by reason of her having joined in the fraudulent conveyance of her husband, because, 1. The defendant is a stranger to the release, and an estoppel must be mutual and reciprocal. A release of dower is binding only as against the releasee and his privies (Littlefreed v. Crocker, 30 Maine, 192; Harriman v. Gray, 49 Id., 537; Pixley v. Bennett, 11 Mass., 298; Blain v. Harrison, 11 Ill., 384; Robinson v. Bates, 3 Metc., 40; Taylor v. Fowler, 18 Ohio, 567; Woodward v. Paige, 5 Id., 70; Ketzmiller v. Van Rensselaer, 10 Id., 63; Summers v. Babb, 13 Ill., 483; Gore v. Cather, 23 Id., 634; Harrison v. Eldridge, 2 Halst., 392; Richard v. Talbird, Rice Eq. So. C., 158; Pierson v. Williams, 23 Miss., 64; Randolph v. Doss, 3 How. [Miss.] 205; Gray v. McCune, 23 Pa. St., 447-451). (2.) The defendant is not a privy to the deed or to plaintiff’s release (Ketzmiller v. Van Rensselaer, 10 Ohio, 63; Taylor v. Fowler, 18 Id., 567; Harrison v. Eldridge, 2 Halst, 392; Gore v. Cather, 23 Ill., 634; Robertson v. Bates, 3 Metc., 40). (3.) Even if defendant was a privy to the deed, plaintiff is not estopped, since she was not a party to the fraud, nor could she have been, since by her release she placed nothing beyond the reach of creditors, to which they were entitled, or could obtain by any process of law (Woodworth v. Paige, 5 Ohio, 70; Miller v. Wilson, 15 Id., 108)
    
      IV. There was no estoppel in pais, since it did not appear that plaintiff’s statements to defendant were intended to mislead. This is necessary (Lawrence v. Brown, 5 N. Y. [1 Seld.], 394; Chatauqua Co. Bank v. White 6 Id., 236: Jewett v. Miller, 10 Id., 402). (2.) The defendant was not misled. (3.) He did not act upon her statements.
    
      J. J. Armstrong, for defendant, respondent.
   Folger, J.

The plaintiff shows that she was the wife of Patrick Maloney in his lifetime; that during coverture, he was seized in fee of the premises, in which she now demands dower; and that before the commencement of her action he departed this life. She thus makes aprima facie case for a judgment in her favor.

The defendants rely upon four grounds to defeat the case made by her :

1. An estoppel in pais / which is claimed to arise, from the plaintiff calling on the defendant Horan, and asking him to attend and bid at the receiver’s sale of the premises, taking place after the death of her husband ; stating that she had no claim thereon, or nothing therein ; and from her afterwards attending at' the sale with Horan, and with Conklin, the purchaser thereat, and being present at the reading of the terms of sale, in which no mention is made of any right in her.

In the finding of fact, in which it is sought to rest this estoppel in pais, there fails to appear, at least one material element of that kind of estoppel. It it not shown, nor is it necessarily to be inferred from what is found, that the declaration, acts, or omissions of the plaintiff, influenced the conduct of Horan or Conklin, or that they took any action in the matter in reliance thereon.

This ground, therefore, cannot avail the defendants.

2. An estoppel by record, which is claimed to arise from the judgment in the action in behalf of the creditors of the husband of the plaintiff, setting aside the deed from him and her of the premises, and the deed of the same to her from their grantee, and directing a sale of the premises in the action in which the judgment was rendered, she being a defendant and appearing and answering; in which judgment, there was no recognition of her dower right, nor any provision in regard to it, nor anything to show .that she claimed its existence. She is bound by that judgment, whatever may be its legitimate effect. The judgment is final and conclusive upon her, as to all matters put in issue and litigated in the action (Clemens v. Clemens, 37 N. Y., 59). But as stated above, the matter of her inchoate right of dower was not put in issue and litigated therein.

It is claimed that the rule goes further; and that the judgment is'final and conclusive upon the parties to it, upon all matters which might have been litigated and determined therein. It is asserted (Le Guen v. Gouverneur, 1 Johns. Cas., 436, and note to Sheppard’s ed.). The plaintiff in this action might have raised in that action, the question that she had a right of dower, as yet inchoate, but which might become complete; and might have asked that if it should be found to exist, the judgment should make provision therefor (Vartie v. Underwood, 18 Barb., 561). But was she bound to do so ? This would not have been matter in direct opposition to the action, in defense of the claim made by the plaintiff therein; it w'ould have been a quasi admission of the cause of action -set up, and a seeking for relief, in the judgment which must follow. And when the authorities say, that a judgment is final and conclusive upon the parties to it, as to all matters which might have been litigated and decided in the action, the expression must be limited, as applicable to such matters only, as might • have been used as a defense in that action, against an adverse claim therein; such matters as if now considered, would involve an inquiry into the merits of the former judgment (Whitcomb v. Williams, 4 Pick., 228; King v. Chase, 15 N. H., 13). The existence of inchoate right of dower in the plaintiff, would not have been a defense to the action of the receiver, for a sale of the premises, and a satisfaction from the avails of the sale, of the. judgment debt which he represented. It could not, if pleaded and shown, have prevented a judgment substantially such as that which was rendered. The most which could have been effected, would have been to have secured in the judgment, an ancillary provision recognizing and protecting the contingent right. And again: It was a right pre-existent to the claims and defenses there litigated, and paramount to any right of the plaintiff’s in that action there sought to be enforced. It is also to be remarked, that the printed case does not show what were the allegations in the complaint, in the action brought by the receiver, and that what is here said is upon the presumption, that there were no averments there, raising' the question of the right of dower in the present plaintiff, nor do the findings of fact show that the right of dower was at all called in question, nor that any issue made by the pleadings affected it, nor that any circumstances of the' action or of the trial made it necessary to insist upon it (see Lewis v. Smith, 5 Seld. [9 N. Y.], 502; Yates v. Fassett, 5 Den., 21).

We are of opinion, that the plaintiff is not estopped by the record in the action brought by the receiver.

3. The third ground taken by the defendants, is, that by joining with her husband in the conveyance to Maloney, the plaintiff released all her right of dower in the premises. And, though it is suggested in answer thereto, that .the deed having been declared void as against the creditors of the husband, and adjudged to be cancelled of record thereby, the title is restored to the husband and the right of dower may again arise, it is replied thereto, that a deed, though fraudulent as against third persons, .and subject to be set aside as void therefor, is yet good and valid as -between the fraudulent parties to it, and that the fee of the lands has passed by it, so that the grantor cannot call it back. And if the grantor, the husband, cannot recall the fee, and it has passed from him, then, as it is claimed, has the wife, by joining in the conveyance, effectually and forever released her right of dower. If it should be conceded, that the wife, by such act, has effectually'released her right of dower, to the fraudulent grantee and his assigns, it is not yet determined that she is debarred of her right, as against one claiming the premises from a source other than him or- them, and indeed in hostility to him and to them. For what is the effect and operation of a release by a wife, of her inchoate right of dower % She cannot, nor can a widow until admeasurement, convey or assign her dower. The joining with the husband in his conveyance, is then but a release by the wife of a contingent future right, and operates against her but by way of estoppel (Tompkins v. Fonda, 4 Paige, 448). And it is said that she cannot execute any valid release of her dower in the real estate of her husband in any other way than .by joining with him in a conveyance to a third person (Carson v. Murray, 3 Paige, 483). The release must, at all events, accompany or be incident to, the conveyance of another. And the right of dower again attaches, upon a re-conveyance of the real estate to the husband, or upon his becoming in any other manner vested in his own right with the title thereto (76.). And inasmuch, as the release of dower, to be operative, must be in conjunction with a conveyance or other instrumént which transfers a title to the real estate, it follows, that if the conveyance or instrument is void or ceases for any reason to operate, and no title has passed or none remains, the release of dower does not, after that, operate against the wife, and she is again clothed with the right which she had released. Such is the familiar case of a wife joining with her husband in the execution of a mortgage, and thereby releasing her right of dower. On the satisfaction of the mortgage, her right is restored. And so when a deed has been executed by the husband, with full covenants, in which the wife has joined, releasing her dower, and after-wards, the grantee has sued for a breach of the covenants and has recovered full damages, it has been held, the husband dying, that the widow has a right of dower in the premises (Stinson v. Sumner, 9 Mass., 143). The ground upon which that decision is placed, comports with reason. It is, that the judgment in an action on the covenants in a deed, goes upon the ground that nothing has passed by it to the grantee. If nothing has passed by it to the grantee, then the grantor has retained all that which he had when he executed the deed. And the wife of the grantor retains with him all that she had. The principle which governs is this. The release of an inchoate right of dower which a married woman makes by joining in a conveyance with her husband, operates against her only by estoppel. An estoppel must be reciprocal, and binds only in favor of those who are privy thereto. A release of dower can be availed of, then, only by one who claims under that title which was created by the conveyance with which the release is joined. A release to a stranger to that title, does not extinguish the right of dower (Harriman v. Gray, 49 Maine, 537). It shows no privity of estate, or- connection of any kind between the doweress and the tenant (Pixley v. Bennett, 11 Mass., 298). But when a creditor of a husband pursues him to judg-: ment, and attacks as fraudulent, and sets aside as void, the deed from him, joining in which, the wife has released her right of dower, he does not connect himself with the title which that deed has created, and with which the release of dower is connected. He sets up the title of the husband as it existed, before the fraudulent conveyance, and stands in hostility to the title which it has given. Not being a party to the release or in privity with it, he may not set it up in bar of dower.

We are of the opinion that the defendants cannot successfully stand upon this ground.

The research of counsel has not furnished us with any decision of the courts in this State, directly upon this point. The Manhattan Co. v. Evertson (6 Paige, 457) is cited by the defendants. At first reading it seems to make for them. But look how the question came up there, and between what contestants it was to be determined, and it will be seen that the decision there may be maintained and not clash with our conclusion. That was.a contest for the distribution of surplus moneys arising upon the sale of lands on the foreclosure of a mortgage prior to all the claims in dispute. It was then in theory, a dispute as to the residue of land ; the same as if fifty acres having been taken from seventy-five to satisfy the mortgage, who shall have the balance which is left (Matthews v. Duryee, 45 Barb., 69). The only contestants as to the right of dower, were the widow on the one hand, and the grantee of the husband and wife to whom she had released her dower, and the mortgagee of that grantee, on the other.

The deeds which had been executed were held valid as to the trusts specified in them, but inoperative after that, as against the creditors of the husband. It is obvious that the only question arising on these facts, and between these litigants was, whether a deed valid as to a part of its purposes, and invalid' as to a part, should be held so effectual between the parties to it, as that the grantee therein and those in privity with him as such, could set up the release of right of dower therein contained against the wife who had executed it, when, as widow, she claimed dower. That question was solved by the consideration, that had the deed been absolutely void as against creditors, yet it transferred the legal title to the grantee as against the grantors; and that had it created a valid legal title subject to resulting trusts in the husband, the widow could not be endowed of a mere equity. The principle here involved was not considered, nor did it need to be considered. Meyer v. Mohr (19 Abb. Pr., 299; S. C., 1 Robt., 333) is also cited by the defendants. It is there held, that the wife having united with her husband in a fraudulent deed, had divested herself of her inchoate right of dower, and was not entitled to any protective provision, in a judment setting aside the deed as void against creditors, and ordering a sale The question does not appear to have been fully considered there. We are constrained to differ from the conclusion there reached. In Den ex dem. v. Johnson (3 Harrison [N. J.], 87) it was held that a wife was not incapacitated by interest from testifying as a witness that a deed which had been executed by her' and by her husband was fraudulent. The action was between one claiming the premises as a purchaser at sheriff’s sale, on a judgment against the husband prior to the deed, and one claiming under the deed alleged to be fraudulent.

If the wife by her testimony should sustain -the deed, her dower was barred by it. If she showed that the deed was fraudulent, then, if we are right, the grantee in it might be disposessed, and her right of dower restored to her, as against the purchaser at the sheriff’s sale. Her interest was to protect the deed. But it was held in that case, that the alleged fraudulent deed being good against the grantors, her dower was unquestionably gone, and that by showing it fraudulent as to creditors, she did not thereby restore her husband’s title to the land, nor her own right to dower. It will be perceived that the question presented to us was not raised, at least with distinctness, in the learned court which passed upon that case, as is evident from the citations with which the decision is sustained, which are all to the point, only, that as between parties to a deed both fraudulent the deed is valid (Osborne v. Morse, 7 Johns., 161; Jackson v. Garnsey, 16 Id., 189; Jackson v. King, 4 Cow., 207-216 ; 11 Wheat, 213, are cited). We feel obliged to yield to the greater force of authority upon the other side of the question, arrayed upon the points for the plaintiff, and drawn from the reports of many States.

4. In addition to the three grounds above noticed, taken upon the printed points of the defendants, another was suggested on the oral argument.

It appears that the grantee of the plaintiff and her husband, after the execution of the deed to him, conveyed in truth to the plaintiff so that as among them, she became the sole owner in fee of the whole premises. It is claimed, that by this, the inchoate right of dower became merged in the greater estate acquired by the last conveyance. But we. do not think that this, position will avail the defendants in this case. It may be conceded, that ordinarily where two such interests in lands meet in one person, the lesser sinks into the greater. And, as we have above admitted, the fraudulent conveyance from plaintiff and husband, and that back to plaintiff, were valid between the parties to them. But it has been held that this latter rule does not apply to work a merger of a lesser estate in a greater. The force of that rule is, that when one has sought to work wrong, the law will not aid him to trace back, when he seeks to reach again the property. But when both he and his conspirator have lost the property conveyed, and the deed has been avoided by the court, and the property restored for the benefit of creditors, ¿he further penalty will not be inflicted of the loss of another interest upon the ground of a merger (Roberts v. Jackson, 1 Wend., 478).

For these reasons, the judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event of the action.

Grover, J.,

dissented, upon the ground that all claim of the plaintiff of title to the land or of any interest therein, whether as dower or otherwise, was cut off by the judgment under which the defendant acquired title. That being a party to the action, she was bound to set up any defense she had to the relief demanded by the plaintiff therein, which was a sale of the land for the purpose of paying the debts of the grantor. Whether such defense was a bar to the entire action by showing a valid 'title to the whole land as against the claim made by the plaintiff, or partial only by showing title to part, or some lien or claim thereto, contingent or otherwise, not subject to the claim of the plaintiff. That Lewis v. Smith (5 Seld. 502), was not applicable to the facts of this case.  