
    Drusilla Douglass vs. Joseph Dickson.
    
      Dower — Estoppel—Potoer—Executors— Transitory Seisin.
    
    Where one has possession under titles derived from demandant’s husband, he is estopped, it seems,irom showing that the husband’s title was bad, where it was more than twenty years old and had never been questioned..
    A contract by testator to sell a particular tract of land, does not revoke, so far as it relates to that tract, a power in his will giving his executors authority to sell his lands for division. The executors may carry out the contract and convey the tract to the purchaser.
    If the husband acquire title beneficially and for his own use, the right of dower attaches, although his seisin be but for an instant, as where he immediately conveys to another.
    BEFORE WARDLAW, J., AT ABBEVILLE, SPRING TERM, 1858.
    The report of Ms Honor, tbe presiding Judge, is as follows:
    “Dower demanded in three hundred and thirty-five acres. Issue upon the plea of nul seisin in the husband.
    “ The demandant showed that the defendant was in possession, under titles derived from Donald Douglass, her deceased husband; and that her said husband was legally seized by virtue of a conveyance made to him by the executors and executrix of John Burton, former owner of the land.
    The defendant insisted that Donald Douglass was’ never legally seised of any part of the land, because the executors and executrix aforementioned, had not power to convey; and that at any rate he had as to a portion of the land, only such instantaneous seisin as would not confer the right of dower, because according to previous agreement between the said executors and executrix, and the said Donald Douglass, a conveyance of the said portion from the said Donald Douglass to one of the said executors, was made immediately after the whole bad been conveyed to the said Donald Douglass.
    “ John Burton on the 9th July, 1836, by writing, bargained to convey the greater part of the land in question to Donald Douglass. On the same day, John Burton executed his will, whereby he devised a tract of land, adjoining that now in question to his wife, Caroline C. Burton, for life, and at her death to be divided amongst certain children named. To each of these children he had previously bequeathed certain articles, and “ an equal share in the balance of my estate,” and to other persons he had given pecuniary legacies. No special mention was made of the land bargained to Donald Douglass. The following clause closed the will: “ I will that all my estate, except that portion willed to my wife, be sold and divided as above directed. I leave my wife, Caroline C. Burton, John A. Burton, and my son, James Burton, my lawful and constituted executors, to manage and make settlement of my estate according to this will.”
    “The purchase money of the land bargained to D. Douglass, was payable in one, two, and three years, with interest after the first year.
    “ Eor a parcel consisting mainly of the residue of John Burton’s lands, and perhaps partly of some of that bargained to D. Douglass, the executors and D. Douglass wished John A. Burton to have title. The executors and executrix, after proper payments made or secured to them, conveyed the whole three hundred and thirty-five acres now in question, to Donald Douglass, and he instantly conveyed a portion thereof, being the parcel above mentioned, to John A. Burton.
    
      “ I overruled the defence, and the demandant had a verdict.”
    The defendant appealed and now moved this Court for a new trial:
    1. Because his Honor, the presiding Judge, erred in ruling tbat tbe deed of Donald Douglass was an estoppel, preventing investigation of actual title.
    2. Because bis Honor ruled, tbat under tbe will of Jobn Burton, bis executor and executrix could convey tbe legal interest in tbe land, sold to Donald Douglass by tbe testator bimself.
    3. Because bis Honor ruled, tbat an instantaneous and transitory seisin of Donald Douglass vested in tbe demandant tbe right to dower.
    Thomson, for appellant,
    Hnder tbe second ground of appeal, submitted for defendant. 1st. Tbat tbe executors and executrix bad only a power to sell tbe property embraced in tbe will, and until sale made, tbe title was in tbe beirs of testator. Thompson & Smith vs. Gaillard, 3 Eicb. 418; Executors of Ware vs. Murph, Eice 54. 2d. Tbat as a question of fact, tbe testator executed bis will and sold tbe land to Donald Douglass on tbe samS day; but bad these acts in bis mind as separate transactions, and did not intend by bis will to confer a power to sell land wbicb be expected to sell bimself. 3d. Tbat as a question of fact and law, tbe sale of tbe land to D. Douglass was subsequent to tbe making of tbe will; and was pro tanto, a revocation of the power to sell. 1 Williams on Executors, 112; 2 Crabb’s Law, Eeal Property, sec. 2068; Walton vs. Walton, 7 Johns. Cb. 258; King vs. Sheffey, 8 Leigh, 614. 4th. Tbat under a power to sell and divide proceeds, tbe executors and executrix bad no power to convey where tbe testator bad sold himself. Pickys. Pick, 9 Yerg. 301. Hnder tbe third ground be submitted; 1. Tbat a wife is not entitled to dower if her husband’s seizin has been only for an instant, and not beneficially for bis own use. 2 Crabb on Eeal Property, sec. 1124; Preston on Estates, 546, et seg.; Holbrook vs. Finney, 4 Mass. 566; Clarke vs. Monroe, 14 lb. 851; Frazier vs. Center, 1 McO. Ob. 279. 2. That D. Douglass was a mere instrument; the executors and executrix through him intending to make title to one of their number. 2 Crabb on Eeal Property, sec. 1172 ; 4 Kent 39, and note ; Sneyd vs. Sneyd., 1 Atk. 442. He further cited Qillam vs. Moore, 4 Leigh, 30; McCauley vs. Grimes, 2 Grill. & Johns. 324; 15 Johns. R. 459; Jatclcson vs. Dewitt, 6 Cow. 316; 1 Johns-. Gas. 90.
    Wilson, contra.
    As to all questions except the transitory seizin defendant cannot make them. He is estopped. Pledger vs. Fllerbe, 6 Rich. 269; Gale vs. Price, 5 Rich. 526; 2 Hill N. Y. 304; Brown vs. Potter, 17 Wend. 164. The doctrine which exempts the estate from dower in cases of transitory seisin is not applicable to this case. Stanwood vs. Dundee, 14 Maine, 290; Nash vs. Preston, Oro. Oar. 191. There was no evidence that there was any previous agreement to convey. If husband takes not for his own use but only to convey to another, then the right of dower does not attach. But where he takes for himself the land is bound for dower even though , he immediately convey to another. The céfses of mortgage proceed upon the principle that the title passed subject to the lien. The previous agreement constituted the lien and the mortgage is but the legal evidence of it.
    Thomson, in reply.
    The doctrine of estoppel does not apply to this case. The defendant may not dispute the title under which he entered, but he may show that the title is bad. Sug. on PoAvers, 243 ; 2 Orabb § 1993.'
   The opinion of the Court was delivered by

WhitNER, J.

Two objections 'are presented by this appeal to demandant’s recovery. First, that the deed of conveyance to demandant’s husband, conferred no title because made by certain executors who, it is contended, had no power to convey. The defendant himself claims through the husband and the inquiry is suggested whether he is not estopped from denying title in one under whom he has entered. Nelson, C. J., in Browne vs. Potter, 17 Wend. 164, so held and cited as authority on which he relied, Cruise, 148-9; 2 Bac. Abr. 333-371 n; 1 Co. Litt. 665, n. g; Park on Dower 44, and Taylor's case, Sir. W. Jones, 317 — with other cases in the same State and elsewhere.

In this State, whilst it is understood, the general doctrine is held that one who enters under another may not deny the title thus admitted, yet exceptions have been recognized in peculiar cases, and the inquiry will be extended whether any good reason is here found for extending the favor of such denial.

The defendant has not only accepted the deed of the husband but entered, and yet holds under it, has never acquired any other title, has never in any way been disturbed in his possession, and though years have elapsed since the deed by the executors, no ground is suggested for reasonable apprehension that the title thus acquired ever will be called in question. In Gayle vs. Price, 5 Rich. 527, the judge in delivering the opinion in a case of dower, says, that such a defence, under such circumstances successfully maintained, had never yet been known amongst us — a branch of Pledger vs. Ellerbe, 6 Rich, 266, proceeds upon the same doctrine. We have in this case a deed which has proved good and effectual, subserving all the purposes of a perfect conveyance for more than twenty years. It is manifest, therefore, that under such circumstances the objection could not avail the defendant.

But in fact the executors of Burton were authorized by the will to sell and divide the estate of testator, except the portion willed to his wife, and' because the testator in his lifetime subsequently negotiated a sale, it is insisted the power was thereby revoked.

The force of the objection is not perceived. The power to sell confers also a power to convey, and even adopting tbe line of argument on wbicb tbe objection rests, wby maintain that tbe revocation was entire? Tbe object should be to effect and not defeat tbe intention of testator.

Tbe testator contemplated a sale for division, and bis inchoate act was adopted and consummated, and tbe division in fact made, and surely this furnishes no just cause of impeachment of their act. Tbe alleged sale was shown by a memorandum in writing on the same paper containing tbe will contemporaneously executed, without any corresponding obligation on tbe part of tbe purchaser, directory to bis executors, and whether binding or not, could not operate to defeat tbe scheme of tbe will, and make void tbe act of bis executors. The defendant at least cannot avail himself at this late day of such an objection.

The remaining question has proved a fruitful source of litigation, and at this day minute accuracy in laying down a general proposition covering the class of cases would be extremely difficult. In 3 Bae. Abr., Dower C., founded on Co. Litt. 31, the principle is announced, that “in some cases though the husband be seized in fact, yet bis wife shall not have dower, as of an instantaneous seisin,” — as shown in anote this proposition though broadly laid down is by no means regarded as general — a transcript of the note well expresses what is sustained by authority throughout. When the same act which gives the husband the estate conveys it out of him again; when he is the mere instrument of passing the estate, the transitory seisin does not in general seem sufficient to entitle the wife to dower. The mere duration of the seisin does not of itself constitute the exception In an ancient case Broughton vs. Randall, said to be in Cro. Eliz. 503-, a father and son who had been attainted of felony were executed together, and the widow of the survivor was endowed, though her right, depended "on the very brief seisin of her husband during the death struggle that intervened. Though this was an extreme case, tbe principle bas been recognized in modern times.

So, too, on tbe other band, where there bas been a transitory seizin as above enumerated, tbe authorities are abundant, and especially wherein tbe premises are mortgaged to secure the purchase money. Cro. Car. 191; 2 Bac. Abr. 373 ; 1 Tho. Coke, 576; 1 Bay. 312 ; 1 McC. Ob. 279; 14 Mass. 352; 12 S. & R. 70. The character of the seisin as well as the duration enter into the consideration.

But the facts disclosed in ■ the evidence are conclusive of this branch of the case, likewise. Without stopping to inquire whether in any view the case is brought within the exception, the deed from the husband establishes the distinction. Recurring to the note in 3 Bac. Abr. Dower 0., relying on 2 Black. Com. 132; Preston on Estates, Tit. Dower, 546 ; when the husband has a seisin for an instant, beneficially for his own use, the title to the dower shall arise in favor of the wife. The distinction has been recognized and maintained by modern text writers and judges. The deed referred to contains the following: “ It is also hereby understood and agreed on, between tbe said John, A. Burton and the said D. Douglass, that I the said D. Douglass reserve to myself, my heirs and assigns forever, the right to raise a mill-dam on Long Cane creek, and flow all the above mentioned lands that shall be considered necessary for the benefit of the said D. Douglass’ mills.” This was the benefit which doubtless moved the purchase, and furnishes the solution for this otherwise singular transaction.

. The motion for a new trial is dismissed.

O’Neall, Wardlaw, Glover, and Müííro, JJ., concurred.

Motion dismissed.  