
    John Clee v. Ezra C. Seaman.
    
      Estoppel: Land contract: Possession: Covenant for summary removal. The vendee in a contract for the quit-claim of all the right, title and interest of the vendor in a parcel of land, — the contract not asserting any possession on the part of the vendor, and it not appearing that any actual possession was transferred by the vendor to the vendee, — will not be estopped in an action of ejectment by the vendor to deny the title of the plaintiff.
    In a contract for the conveyance of any interest in land which the vendor may have, an agreement by him that the vendee may enter on the land and cultivate the same, is not an agreement to convey and transfer the possession of the land.
    And if, in such a contract, the vendee agrees that if he violate any of its provisions, he shall forfeit all right under it, and may be removed in the manner provided by law for the removal of a tenant holding over, — while this might estop him- to deny, in the particular proceeding specified, the right of the vendor to remove him, he will not be estopped, in an action of ejectment, to deny the plaintiff’s title.
    
      Heard July 8.
    
    
      Decided October 4.
    
    Error to Wayne Circuit.
    This was an action of ejectment brought by Ezra C. Seaman in tbe Circuit Court for tbe County of Wayne, against John Olee, for the recovery of the possession of a parcel of land, which the plaintiff claimed by his declaration to own in fee.
    On the trial, the plaintiff gave in evidence a contract bearing date November 1, 1853, executed by himself, as the party of the first part, and by one Thomas Guilfoil as the party of the seSond part, by which he agreed “ to sell to the said party of the second part, all the right, title, and interest of the said party of the first part, of, in and to the” land in controversy; and upon the faithful performance by the said party of the 'second part of the covenants and agreements by him to be performed, to “execute and deliver ,a good and sufficient quit-claim deed to the said party of the second part, his heirs and assigns.”
    It was further agreed “that the said party of the second part may immediately enter on the said land and remain thereon, and cultivate the same as long as he shall fulfill and perform all the agreements hereinbefore mentioned on his part to be fulfilled and performed, and no longer, and that if he shall at any time hereafter violate or neglect to fulfill any of said agreements, he shall forfeit all right or claim under this contract, and be liable to the said party of the first part for damages, and shall also be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease.” And further, — “said Seaman is only to quit claim and convey to said Guilfoil the right, title, and interest now held by said Seaman, in and of said premises.”
    It was further shown that Guilfoil admitted that he took such a contract of the plaintiff, and had paid part of the purchase money, and that he was in 1857 in possession of a poi’tion of the land. The death of Thomas Guilfoil, and a conveyance by his widow and his heirs-at-law of the premises to the defendant, and the possession of the defendant under such conveyance was proved.
    The plaintiff further offered in evidence Auditor General’s deed, dated the 9th day of February, A. D. 1854, which among other parcels purported to convey to the plaintiff the land in controversy. But upon the introduction by the defendant, in evidence of the tax assessment roll of Brownstown for the year 1847, the records of the proceedings of the electors and town board of said town, the sales book and records of the treasurer of Wayne County, the counsel for the plaintiff admitted that the tax for which said land was sold, and the deed given, was illegal, and the sale was void.
    The counsel for the plaintiff requested the Circuit Judge to charge the jury:
    Second. That said Guilfoil was estopped to deny the plaintiff’s right to the possession of the premises mentioned in the land contract upon his, said Guilfoil’s, failure to comply with the terms of said agreement, unless Guilfoil was in possession under a claim of title before he executed said agreement, or there was fraud, or mistake, or imposition in its execution. Which said charge and instruction was given to the jury by said Judge as follows: That is so, gentlemen of the jury. You will see that that charge meets ono of the main questions in the case, the question of possession before the contract was entered into. I will read the latter part of it again. The point is that he is estopped, from setting up a title unless Guilfoil was .in possession under claim of title before he executed such agreement, or there was fraud, mistake, or imposition in executing it.
    Third. That as the defendant in this cause claims through the heirs of Thomas Guilfoil, he stands in the same relation to the plaintiff as said Guilfoil did. Which said •charge was given as requested.
    
      Fourth. That if after entering into said agreement said Guilfoil or his representatives repudiated said agreement and plaintiff's rights thereunder, and set up a title in themselves, then said plaintiff might maintain ejectment against him or them for the recovery of the possession of said premises, without first giving notice to quit. Which said charge was given to the jury as requested.
    Fifth. If the jury find Thomas Guilfoil was not in possession of the land in question, claiming title before he took the contract from Seaman, but merely cut and sold wood thereon or cultivated it, such acts without a claim of title were mere trespasses, and gave him no title. Which said instruction and charge was by the said Judge delivered to the jury as follows: That is so, gentlemen of the jury. That is to say, if he was not in possession claiming title; if he was only in possession as a trespasser, only in possession cutting trees or anything of that kind, not claiming he had any title at all, he would be merely a trespasser, and that would give him no title.
    Sixth. Unless the jury find fraud or mistake in the inception or execution of the land contract, or that Thomas Guilfoil was in possession, claiming title, before he took the land contract, defendants are estopped to deny plaintiff's title. The evidence of the invalidity of the Auditor General’s deed is inadmissible, and they must not consider it. Which said instructions and charge the said Judge gave to the jury as follows, viz:
    I have already charged that, gentlemen of the jury, as-to the other part. That I charge as requested. If you find Thomas Guilfoil was not in possession claiming title it would not be admissible under the circumstances charged before, that there was no fraud or mistake. If you find he was in possession claiming title, then it would be admissible, but if you find that he was not in possession claiming title, then the other question comes in referring to fraud or mistake, then if you find there was no fraud or mistake, —it is not admissible.
    To which several requests to charge, and to each of the specified opinions, charges and instructions, so given to the jury by the said Judge as above set forth, the defendant excepted.
    The counsel for the defendant requested the Circuit Judge to charge the jury:
    Third. The proofs in this case show no legal title to the premises whatever, in the plaintiff at the commencement of suit. Which the Judge refused to give.
    Fourth. The contract of sale offered in evidence in this case being neither for the land described in the declaration nor for any definite or expressed estate therein, cannot of itself work such an estoppel as to entitle the plaintiffs to a verdict without proving what the plaintiff’s estate was, and that Guilfoil took possession under it. As to which request the Court charged and instructed the jury as follows, viz:
    That is very nearly true. You must find from the evidence not only that this contract existed, but you must find that he took possession under it in order to create estoppel. If that is all that is asked, that is true. You must find a contract, and also that he took possession under it. There might not be estoppel if he had possession before. The contract would not show estoppel necessarily. The contract and taking possession under it might, but not the contract alone. The charge is given with that explanation.
    To which refusals to charge as requested, and to the charge and instructions as given, the defendant excepted.
    Under the charge of the Court the jury found a verdict for the plaintiff, and the judgment entered thereon, the defendant brings into this Court by writ of error.
    
      
      E. Hall, for plaintiff in error.
    I. In this case plaintiff is not entitled to a verdict without proving affirmatively a valid subsisting interest in the premises and a right to recover. The plaintiff’s case must be proved not presumed. The defendant’s case stands good by presumption till overthrown by proof.—Comp. L., § 4556.
    
    II. The plaintiff’s proof must be of such definite character, that a verdict may specify the estate or right established by plaintiff, whether in fee, or for life, or a term of years, etc.—Comp. L., § 4582.
    
    III. The proofs in this case show no legal title to the premises whatever, in the plaintiff at the commencement of suit.
    IV. The contract of sale offered in evidence in this case being neither for the land described in the declaration nor for any definite or expressed estate therein, cannot of itself work such an estoppel as to entitle the plaintiffs to a verdict without proving what the plaintiff’s estate was, and that Guilfoil took possession under it.
    As to the general question of estoppel we add: 1st. Estoppels are not to be favored.—Taylor’s L. & T, § 87. 2d. They must be definite in' terms and free from fraud or mistake, and mutual in their operation.—Taylor’s L. & T, §§ 87, 90, 707, 92. 3d. By reason of want of mutuality a quit-claim deed or a deed poll cannot work an estoppel.—2 Hil. on Real Prop., p. 423; 2 Hil. on Vendors, p. 49. 4th. It follows that an agreement for a quit-claim deed works no. estoppel. 5th. An agreement to quit-claim whatever interest a party may have on a particular day, is too indefinite for an estoppel. Seaman could fulfill such an agreement if his interest was a reversion, a mortgage interest, an undivided part of the title, or a title to some unascertained acre. This contract lacks all the above requirements of an estoppel, and therefore cannot alone afford a basis of recovery. 6th. If this instrument is not to be used as a basis of title and right of possession independently, but is only to be used to estop the defendant from denying whatever title and possession he actually received from Seaman under it, then it must be held entirely inoperative until the plaintiff shows affirmatively what title and interest he did at that time have, and what Guilfoil took possession of under the contract.
    
      H. M. Cheever, for defendant in error.
    We insist the second charge was correct, and Guilfoil would have been estopped, because, by this agreement he had, a. Recognized Seaman’s right to the possession of the premises in controversy, which were those mentioned - in such agreement, b. Covenanted and agreed to hold possession thereafter under Seaman, c. That his right to remain in possession, as against Seaman, should terminate upon default on his (Guilfoil’s) part to comply with the terms of su^h agreement, d. That whenever his right to possession should terminate, Seaman might recover possession, as stated in the agreement.
    It was insisted, however, in the Court below, that there was no estoppel; because, 1st. No interest passed from Seaman to Guilfoil. 3d. The estoppel was not mutual. As to the first objection: No interest need pass to the party. Under estoppel by record, no interest ever passes. Under estoppel by deed, the party from whom the interest passes, is estopped.
    What is the meaning of the expression “the interest feeds the estoppel?” — 2 Smith’s Leading Cases, 568.
    
    
      Counsel insists that if Seaman had no interest at the time he made the contract, there could be no estoppel, as no interest then passed. This is not the true meaning of this term. If A conveys to B, and at the time of conveyance has no interest in the premises conveyed, no interest passes; but if subsequent to said eonve3ance A acquires an interest, the title so acquired by A enures to B, and the interest passes and feeds the estoppel.
    As to the second objection, that the estoppel is not mutual. We insist it is. a. Seaman was estopped from treating Guilfoil as a trespasser. b. Or from denying his right to possession during the continuance of the agreement. But this element of mutuality does not apply in every case. It is always applicable to estoppels by record— but not always to estoppel by deed, and never to estoppel in pais.
    
    What is the nature of the estoppel in this case ? 1st. By Deed. At common law a seal estops.—14 Johns., 226; 12 Ib., 362. And in the absence of our statutory provision, no question could be made as to the consideratioh of the contract.—C. L., § 3, 180. But this contract is equivalent to a lease. It is, in legal effect, a demise. It gives the vendee possession until default.—10 Cush., 250; 8 Mich., 315. 2d. In Pais. Seaman acted upon the faith of Guilfoil’s admission, by the execution of the agreement, of a tenancy. Hence, he gave possession to Guilfoil, and Guilfoil is estopped, to deny that the right to the possession passed from. Seaman to him, to revert to Seaman upon his (Guilfoil’s) failure to comply with the conditions upon which he entered. Hence we say this charge correctly stated the laxo, and left to the jury to say whether Guilfoil did or did not enter under this contract, or, if he did, whether there was such fraud, or místate in its inception as would vitiate it, and prevent an estoppel. And the Court fully and clearly explained this request to the jury in the comments he made after giving it.
    The third request was a simple application of this doctrine to the defendant, for the reason that he stood in the same relation to the plaintiff as did Thomas Guilfoil, because he claimed through the heirs of Thomas Guilfoil. It will be claimed that the deed does not show this fact. The evidence shows this fact conclusively.
    
      a. — The contract was with “ Guilfoil <& Heirs.” b. — Margaret Guilfoil was the widow, and John and James Guilfoil were the heirs of Thomas Guilfoil. c. — Defendant admitted his purchase of these heirs aad the widow, d. — The deed under which defendant claimed was from these heirs and the widow as grantors, e. — There was some conflict of testimony as to whether Guilfoil entered under the Seaman contract or not. This question was submitted to the jury, and they found for the plaintiff. But upon the question whether Clee claimed through the heirs of Guilfoil or not there was no conflict of evidence. The record shows all the evidence given on the trial. Being no conflict on this point, there was no error in charging as requested.—Grand Trunk Railway v. Nichol, 18 Mich., 180.
    
    As to the' refusal of the Court to charge as requested hy plaintiff in error.
    The third was a request to charge that the evidence showed no legal title to the premises whatever, in the plaintiff. By “legal title” must be understood such title as would sustain ejectment. This is defined by statute as “ a valid subsisting interest in the premises, and a right to recover the possession.”—C. L., § 4556. Certainly, the evidence tended to show this, and the Court could not withdraw it from the jury.
    The fourth requested a charge that the contract was not for the land described in the declaration, or for any definite or expressed estate therein, and on this account, of itself could not work such an estoppel as to entitle the plaintiff to a verdict, without proof of what the plaintiff’s estate was, and that Guilfoil took posséssion under it.
    
    The latter portion of this request was given, — that is, that the contract and possession under it must both be proven. But what is claimed by the former portion of the request is this ; the contract does not show the quality or quantity of Seaman’s title, whereas the declaration claims a fee, and hence no estoppel could arise under the contract in the absence of proof of the nature of plaintiff’s title. We reply to this: a. — We did show this by the introduction of the tax deed, which was “prima facie evidence of a title in fee.” b. — There was also proof that Guilfoil was informed by Seaman of the nature of his (Seaman’s) title.
    But we insist that defendant could not dispute any title whatever that plaintiff claimed, without going out of possession, delivering up possession to plaintiff, and entering under claim of title in himself.
   Christiancy, J.

As a general rule, a defendant in ejectment is at liberty to controvert the plaintiff’s title. If the plaintiff' claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. ■ This the plaintiff undertook to do by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs.

It is not claimed that Guilfoil would be estopped by the contract alone from denying plaintiff’s title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means, and on the faith, of the contract» or by having placed himself in a position which estopped him from denying that he thns obtained the possession.

If he did thus obtain it, he would have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted or perhaps claimed by him in the contract.

The ground of this estoppel is, that the vendor gives up the possession to the vendee, and the latter obtains it, on the faith of the contract, and it would be a 'violation of good faith, and a fraud on the vendor, to allow the vendee, while he remains in the possession thus obtained, to deny such right or title of the vendor, as the latter by the contract claimed to have, or contracted to convey. Under such circumstances, the vendee, if he would contest such right or title, must first restore the possession to the vendor, and place him in statu quo, with all the advantages he had before he parted with the possession.

It is the obtaining the possession from the vendor, under and on the faith of the contract, and his obligation to restore the possession in case of a breach, which create the estoppel, if it exists. If the vendor have no possession, actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel.—Chettle v. Pound, 1 Ld. Rayd., 746. But as the vendee may estop himself from denying the title, so he may, doubtless,, under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of his having obtained it from him.

Thns, if A and B enter into a contract for the sale by the former to the latter of a piece of land, and A, by the contract, expressly or by fair implication, asserts a right to the possession and agrees to transfer it to B, and the latter, without any intimation of an intention to repudiate or give up the contract, goes into the possession, he would doubtless be estopped to deny that he obtained it from the vendor by means of the contract.

But if A, by the contract, neither expressly or by implication asserts any possession, or right of possession, and does not assume to transfer it, I see no ground upon which the vendee can properly be said to have gone into the possession under the contract, or could be held estopped to deny the possession or the right of the possession, of the vendor at its date. His denial would not be inconsistent with the contract, or any right asserted by it.

And as to an estoppel of the vendee to deny the title of the vendor, if A, in the case just supposed, has by the contract asserted any claim to a particular title or interest, and agreed to convey the same, or his right or interest in it, to. the vendee, — such as an undivided interest or other portion, or his claim through some particular title or instrument mentioned, — the vendee, though entering under the contract and estopped to deny the vendor’s right of possession, and perhaps the particular title or interest claimed by the vendor, would not be estopped to deny any other title or interest of the vendor, except that which he had by the contract professed to claim.

But when the vendor, as in this case, does not by his contract set forth, allude to, or undertake to convey any particular estate, title, interest or claim, but merely agrees to quit-claim such right, title, and interest as he may at the date of the contract have in the premises, — a contract which will be fully satisfied by the execution and delivery of the deed, whether he had or convoys any interest or not, — the most he can be said to assert (and it is doubtful if he can be said to assert even this) is that he claims to have some right, title or interest, which, if he has it, is susceptible of being conveyed or transferred by such quitclaim.

And, as the vendee cannot be held conclusively to admit any other or greater title or interest in the vendor than by his contract he appears to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial; since no claim to any one of these was asserted, nor, therefore, admitted by the contract; and though each should be disproved, or the vendee should prove any title in himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that, by the contract, he claimed to have; and the vendee is, at most, only estopped from denying that he had none at all.—See Sparrow v. Kingman, 1 N. Y., 242; Bigelow v. Finch, 11 Barb., and authorities cited in these cases. Besides the want of mutuality, there is no such certainty as is required to sustain, an estoppel.—3 Coke Lit. (Thomas’ Ed.), 431; Right ex d. Jefferys v. Bucknell, 2 B. & Ad., 278; 2 Smith’s Lead. C., 457.

But to estop the defendant from denying the title of the plaintiff in any form, or to any extent, in the present case, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession, or the right of possession, before the contract, and that he did transfer it to the defendant and give him the possession; or that the defendant, under the circumstances, is estopped to deny his possessory rights.

There was no proof tending to show that the plaintiff ever had any actual possession, or that he actually delivered possession to G-uilfoil, but the whole tendency of the evidence was the other way. He might, if the premises were vacant at the date of the contract, have shown a con-structure possession, or right of possession, by showing title in himself, which would give him the right of possession, or possession in law. This he undertook to do by the introduction of his tax deed, but this being void, he failed to show any possession in himself, actual or constructive, and therefore necessarily failed to show that he had transferred the possession to Guilfoil through whom, defendant claimed.

He gave evidence, however, tending to show that Guilfoil, after the date of the contract, went. into the possession, claiming under it. And to determine whether the possession thus taken estopped him from denying the plaintiff’s possession or right of possession, we must consider the possession with reference to the provisions of the contract. The substance of the contract was this: that, upon the payment of sixty dollars and interest by Guilfoil at certain times, plaintiff agrees to sell and convey to Guilfoil, — not the land mentioned in the contract, — but only the right, title, and interest then held by him of, in, and to the said land, — not stating what such right, title or interest was or was claimed to be, or whether any right or interest whatever. But the' plaintiff further agrees that Guilfoil “ may immediately enter on the land and remain thereon and cultivate the same, so long as he shall fulfill and perform” the agreement on his part “and no longer.”

This is the entire agreement on the part of the plaintiff. And, at a superficial glance, it might seem that the plaintiff had undertaken to convey and transfer the possession of the land. A little reflection, however, will show that this is not the effect of the contract. Suppose, upon the attempt of Guilfoil to go into the possession, he had been opposed by some person in possession, or having the right to it as against the plaintiff, and that he had been thereby prevented from obtaining possession, would the plaintiff have been liable, under this contract, for damages ? Certainly not. It is quite clear that the provision allowing Guilfoil to go into possession was intended to be co-extensive only with that in respect to the conveyance of the title, — a mere quit-claim of any right of possession the plaintiff might have, — and like that in reference to the title, on condition that he should turn out to have had such possession or right. He merely says to Guilfoil, “Bo far as I am concerned you shall be at liberty to take the possession. If I have a right to it, it is yours. If I have none, you get none.”

This certainly cannot be held equivalent to transferring the possession or putting Guilfoil in possession, nor is there any such mutuality as to create an estoppel.

So far as these provisions on the part of the plaintiff are concerned, I cannot see that there would have been any impropriety or inconsistency in Guilfoil’s taking any number of separate contracts of the same kind, from as many different parties, or how the provisions of, or the obligations under, one of them would conflict with those of the others.

There is nothing, therefore, in the provisions of the plaintiff’s agreement amounting to an assertion of possession, or right of possession, or the transfer of either to Guilfoil, without some evidence that he had such right to transfer, and nothing therefore to estop him from denying such right of possession in the plaintiff.

But the contract contains certain stipulations on the part of Guilfoil, and we are to see whether these estopped him upon the question of possession.

In immediate connection with the provision by which plaintiff asserts that Guilfoil may enter on the land and cultivate the same as long as he shall fulfill and perform the contract, and no longer, Guilfoil agrees that, “if he shall at any time hereafter violate or neglect to fulfill any of said agreements, he shall forfeit all right or claim under this contract, and be liable to the party of the first part for damages, and shall also bo liable to be removed from said land in the same manner as is provided by law for the removal of ^ tenant that holds over after the expiration of a term specified in his lease.” This is all the provision on the part of Guilfoil which affects the question I am discussing. No general right of re-entry is reserved, and there is no covenant to take the possession unless this can be so construed; and there being no other estoppel to the denial of the plaintiff’s title or right of possession, and no evidence showing or tending to show that the plaintiff either had or conveyed any interest in the land whatever, there is nothing tending to establish the relation of landlord and tenant before or after the breach, unless the covenant just quoted has that effect.

The plaintiff’s right, therefore, to recover in this action depends upon this covenant alone, and he must be confined to such remedy as this covenant gives him; if this is defective there is nothing upon which he can fall back to help out its deficiencies. ■

We think it clear from the language of this covenant that it refers to, and was intended to provide only for the statute remedy by summary proceedings, by which landlords aro authorized to recover possession of lands “held over by tenants after the time for which they arc demised or let,” as expressly provided by the statute for the particular species of case or state of facts mentioned in the covenant. See Chapter 150, Compiled Laws, §§ 12 to 18, especially the first subdivision of section twelve, to which we think the covenant evidently refers.

In a proceeding under this statute against Guilfoil, after the breach of the agreement, this covenant, if valid, would estop him from denying the plaintiff’s right of possession, or rather his right to recover it in such proceeding only, for this is the extent of the covenant; and we think it has no application, and cannot properly be extended to an action of ejectment.

The result is, therefore, that if this covenant is valid (of which, there may be room for doubt when applied to such a state of facts as is here shown), it does not help the plaintiff in this action of ejectment; if not valid it would not help him in this or any other case. In either event he has failed to show any thing which tends to establish a title or right of possession upon which he can maintain ejectment, or any state of facts which estops the defendant from denying his title or right of possession. He, therefore, made no case upon the evidence upon which, it would have been competent for the jury to find a verdict in his favor.

The charge of the Court, so far as it was in conflict with the principles or the result above stated, was erroneous.

The judgment must be reversed with costs and a new trial awarded.

The other Justices concurred.  