
    *Cornelius Coakley and Harriet Coakley v. Oliver H. Perry and Henry B. Payne.
    The rule of estoppel applies in cases only where the grantee receives and holds possession, by virtue of the conveyance from the grantor, and relies upon it as the source of his title; it does not apply where the grantee already held under a prior and independent conveyance.
    In case of a petition for dower, the grantee of a deceased husband, and those holding under him, are not estopped to deny that their grantor had title.
    A person in possession of real estate under a bona fide claim of title, has the right to buy in any title, real or pretended, with a view to quiet the enjoyment of his possession; and the purchase of the adversary title, if it does not strengthen, can not impair his title.
    
      Petition for dower; reserved in the district court of Cuyahoga county.
    This is a petition for the assignment of dower to the petitioner, Harriet Coakley, in the undivided fourth part of the original two-acre lot, number one hundred and seventy-four, in the city of Cleveland. It appears that petitioner, Harriet, was formerly the wife of Job Doan, since deceased, who, according to the allegations of the petition, was, during his marriage with the said Harriet, seized in fee simple of the real estate above mentioned, which, in December, 1825, he conveyed by deed duly executed, but in which said Harriet did not join, to Nathan Perry, who subsequently conveyed the same to the defendants. And the claim to the assignment of dower is predicated on the fact of the conveyance by J ob Doan in his lifetime, with covenant of warranty to Nathan Perry, under which it is alleged that the defendants derived title and occupy the premises. It is claimed that Job Doan acquired his title by inheritance from his father, Nathaniel Doan, deceased, who was said to have held the premises in his lifetime, by deed from Eben Hosmer, as collector of taxes, dated December 31, 1814.
    It further appears in the case, that Nathan Perry purchased the premises in controversy, together with two other lots, from the executors and heirs of Gideon Granger, deceased, and took a con-345] veyance therefor, in March, 1824, Sunder which he immediately took possession, and occupied until his sale and conveyance to the defendants, who have ever since occupied the promises. That Gideon Granger in his lifetime, and his legal representatives after his decease, were in possession of the lots, and the reputed owners thereof; and that neither Job Doan, nor his ancestor, Nathaniel Doan, were ever in possession of the premises. And Nathan Perry testifies, that some time after he had taken possession of the property, “Job Doan came into his store, and said that his father had a tax title for the lots which he had purchased from Granger’s heirs; that he did not consider the tax title of any value, but he had had some trouble with the matter, and that he would sell it for ten dollars, which he thought was no more than equitable for the trouble which he had been to, and the money he had expended. That witness asked him about the other heirs of his father, to which Doan replied, they had had no trouble, and did not claim anything. And that witness paid him the ten dollars, and took the deed of December, 1825, above mentioned. And further, that neither Nathaniel Doan nor Job Doan, ever had, or claimed any right to possession under this tax title; and that he, Perry, gave the ten dollars as a gratuity, and it was so regarded by Job Doan himself.
    
      Horace Foote, for the petitioner.
    
      Wilson & Wade, and S. J. Andrews, for defendants.
   Bartley, J.

The claim to dower in this cáse, is founded solely on the assumption that the grantee of the husband, and those holding under him, are estopped to deny that their grantor had title. ■ The petitioners have not sought to fortify their claim, by any proof tending to show the validity of the tax title out of which it originated ; and if the doctrine of estoppel fails them, their claim is without any legal foundation to rest upon.

It was formerly held in New York, and, perhaps, in several other states, that in an action for dower, brought by a widow against the 'grantee of her husband, or those holding *under him, such [346 grantee, and those deriving title from him, were estopped from denying the seizin of the husband. But this doctrine, after a very full examination, was overruled by the court of appeals in New York, in the case of Sparrow v. Kingman, 1 Comst. 242. And this adjudication has bo.en repeatedly affirmed and recognized in subsequent reported decisions in that state. The same subject came under review, in the Supreme Court of the United States, in the case of Blight’s Lessee v. Rochester, 12 Wheat. 535, in which it was held that the doctrine of estoppel, which forbids a party from denying the title under which he has received a conveyance, does not apply as between vendor and vendee, and, especially, where the latter has not received possession from the former. In this case, Chief Justice Marshall traces the origin of the doctrine on this subject, back to the feudal tenures, “ when the connection between landlord and tenant, was much more intimate than it is at present, when the latter was bound to the former by ties not much less strict, nor much less sacred, than those of allegiance itself.”

“The propriety,” says Chief Justice Marshall, “of applying the doctrines between lessor and lessee, to a vendor and vendee, may well be doubted. . The vendee acquires the property for himself, and his faith is not pledged to maintain the title of-the vendor: The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the salé the property of the vendee, he has a right to fortify that title by the purchase of any other, which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this, nor is either the letter or the spirit of the contract violated by it.”

It was held in the case of Watkins v. Holman, 16 Peters, 54, that the relation of landlord and tenant, in no sense, existed between 347] vendor and vendee. And Mr. ^Justice Story is reported to have said, in the case of The Society, etc. v. The Town of Pawlet, etc., 4 Peters, 506, that “A vendee in fee, derives his title from the vendor; but his title, although derivative, is adverse to that of the vendor. He enters and holds possession for himself, and not for the vendor.” This doctrine has been fully recognized in Massachusetts, in the case of Small v. Proctor, 15 Mass. 495. And it is now held in New York, that the doctrine of estoppel, which had been formerly improperly applied to an action of dower brought by a widow against the grantee of her husband, or those claiming under him, was wanting in the vital principle of estoppel, which consists in mutuality.

The decisions in this country, in which the grantee and those claiming under him were held to be estopped to deny the title of the grantor, were cases in which the grantee received and held possession under the conveyance, and relied upon it as his source of title, and not where the grantee held the title under a prior, and independent conveyance.

In the case before us Nathan Perry had purchased the land, received a conveyance, and was in possession prior to the conveyance from Job Doan, under a title upon which he, and those claiming under him, have relied since 1824. The conveyance from Doan was treated as of little or no value, and was plainly a mere measure of precaution on the part of Nathan Perry, by way of buying his peace and quieting his title. It would be the grossest absurdity to conclude that Nathan Perry, by taking the conveyance from Job Doan, for a trifling consideration, contemplated, instead of continuing seized of the whole premises, as he claimed to have been before, that he became seized of only an undivided part, in common with the other heirs of Job Doan’s ancestor.

It would seem to be just and reasonable that a person in the bona fide possession of land under a claim of title, should be allowed to buy in any title, real or pretended, with a view to quiet the enjoyment of his possessions, and that *the purchase of an adver- [348 sary title, if it does not strengthen, should certainly not have the effect to impair the title of the owner. It is not the policy of the law to deter persons from buying their peace, and compel them to submit to the expense and vexation of lawsuits, for fear of having their titles tainted by defects which they would gladly remedy by purchase, where it can be done with safety.

A claim to a dower estate in lands, upon a mere technicality, after a lapse of near thirty years, predicated on a tax title of the deceased husband, unsupported by any public record showing the validity or regularity of the tax sale, and under which the husband, in his lifetime, was not only never in possession, but never had asserted any right to the possession of the premises, is entitled to but little consideration in a court of justice. And my only surprise is, that I should have been induced myself, when presiding in .the court on the circuit, by the urgent request of the learned counsel for the petitioners, to reserve the question in this case for decision by the court of last resort.

Petition dismissed at the costs of the petitioners.  