
    In Bank.
    Dec. Term, 1846.
    Lessee of Charlotte Barton and others vs. The Heirs of Thomas Morris.
    A Defendantln possession over twenty-one years, under a contract of purchase which has been fully complied .with, cannot be ousted in ejectment by the holder of a naked legal title, having no right of possession.
    A Trustee who conveys a naked legal title, under a defective power, by order of the cestui que trust, with the usual personal covenants of warranty, and whose conveyance passes no title by reason of the defects in his power, is, by his covenants, estopped from setting up title against his covenantee, acquired by subsequent conveyances, vesting in him the naked legal title.
    The 2d section of the act passed January 29, 1833, amendatory of the act providing for the acknowledgment of deeds, &c., is constitutional and of binding force, notwithstanding its retrospective operation.
    A deed conveying “ all right, title, interest or claim, to any land descended to me from A or B/' is sufficiently descriptive to pass title to any legal or e.quitable estate which the grantor inherited from A or B.
    The intention being plain, parol evidence is admissible to identify the land, but not to prove airintention different from the terms of the deed.
    A Magistrate's certificate of the acknowledgment of a married woman is sufficient, if it show a substantial compliance with the statute.
    A party to a fraudulent conveyance cannot set up his fraud to avoid the conveyance, nor can his grantee or his heir be heard to aver the existence of such fraud to prevent the operation of the doctrine of estoppel.
    This is an Action of Ejectment, reserved in the County of Clermont.
    The declaration counts on the several demises of John Jolliffe and of Charlotte Barton, under whom he claims title, and on the joint' devise. of both, &c. The land in controversy is part of F; Ó: -Neil’s survey, No. 913, of which the plaintiffs’ lessors claim* nine undivided seventeenth parts of 99 acres.— The. defendants, .or heirs of Thomas Morris, claim title to the whole interest in the land. Or if they have not the title, they then claim that they are in. possession, with a legal right to maintain it, as against the plaintiffs’ lessors. Both parties claim title under Amos Haines.
    To sustain the action, the plaintiffs’ lessors prove, first, that on the 1st September, 1817, Amos Haines, then the legal owner of the land, by title bond sold the same to Edward Barton, Sen.; that Barton went into possession at that, time, and remained in possession until his death, in'the year 1836.'' the day of.purchase he paid $ 1Í00, by note of Mr. Wilson, and was' to pay the balance in fifteen months, from 1st May, ' 1818;. and it is shown that, on the 30th May, 1823, the balance of the purchase money was paid to James T. Johfiston, administrator of ;Amos Haines, deceased, and,, on proving the ñames of the -heirs of Barton, he claims he shows a righf'tb recover. ’ ' . ' ■
    To. defeat, this title by-descent, the defendant shows that,.when.the balance of the purchase money was paid, Johnston, •; who was then administrator, and who was authorized to close up .the estate and to sell the property, by defective powers of attorney as it appears, deeded the title, by direction of Edward Barton, sen.,- to Edward Barton, jr., by'deed 'dated the 30th May, 1823.' ,. This deed is signed by James T. Johnston, attorney in-fact, for the heirs of Amos Haines. The deed-.contains the names of J. T. and Mary Johnston, a's grantors, and who, • for the. "consideration of $670.50, grant, bargain and sell the 'land in controversy, by metes and bounds, and covenant that, they áre the .true owners of the land;' that they have authority ■ to convey in fee simple, and that they will warrant and forever defend the title against .all claims'whatsoever.
    This deed was duly executed and' acknowledged before a justice of the peace, in May, 1823, and recorded on the 19th of November, 1823. Defendants also proved, that Amos Haines died in 1819, leaving Lafayette Haines, his sole heir, and his widow, Mary, who intermarried with James T. Johnston. That Lafayette Haines died in-- without issue; and that Margaret Canby, wife of Joseph Canby, Noah Haines,' Nathan Haines, Robert Haines, and Mary McKay, were the heirs of Lafayette Haines, in whom the naked legal title vested at his death.. Deeds, with covenants of warranty against the grantors of those claiming under them, were executed to James T. Johnston, in 1825, by Robert, Nathan, and Noah Haines, and also by Margaret and Joseph Canby. That Edward Barton, junior, claimed all the equity in- the land after the deed was executed in 1823, and that in 1837 he executed a deed to Thomas Morris, the ancestor of the defendant, in due form, conveying to him' the title -which he .had- acquired. .
    The • plaintiffs’ -lessors, to rebut .this, offered, pr.oof that, since the conveyances by the heirs of Lafayette,-Haines'to'James T. Johnston, the plaintiffs’ lessors Have procured them to execute conveyances, by which any title that remained in the heirs of Edward Barton, senior, and of Amos and Lafayette Haines, is claimed to be vested in the plaintiffs’ lessors'.
    Sundry records are also in evidence, which, with the other facts, will.be found noticed in the'opinion.of the Court.
    
      John Jolliffe, for Plaintiffs,
    First: ■ We -trace,, by direct evidence, the possession of the heirs, of Edward Barton, senior, and of the widow, down to May, 1836. Unless there be proof to the contrary,,the law will presume, that the possession continued until the twenty-one years were fulfilled.' Bayard’s Lessee v. • Cole/ax et al., 4 Wash. C. -C. Rep. 41; Phil. Ev. by Cow. and Hill, 295, and cases there collated; 1 Stark. Ev. 36; Greenl. Ev. 46; Lewis v. Paine, 4 Wend. Rep. 423, 529; Miller’s Lessee v. Porter, 4 Wend. Rep. 672. y
    Second: “ Where á patent, having, a possessory title to land, í dies in possession, leaving.several children, his heirs at law, { who succeed to such possession, it is not competent for one or ‘ more of such heirs, who, have obtained the exclusiye posses- ‘ sion of the whole premises, to defeat a recovery by the co- ‘ h'eirs of their proportional parts or shares, by setting up ft title c acquired from the owners of the land. To avail themselves ‘ of such title; they must first surrender possession to the co- ‘ heirs and then bring ejectment.” Philan ét ux. v. Kelly, 24 Wendt Rep. 389; see, also, 7 Cowen 637 ; 3 Ádol. and Ellis. 188; 2 Ibid.; 5 Johns. Ch. Rep. 407. * ■
    
      Third: The lessors of the plaintiff hold the legal title to the several shares for which they sue.
    1. We then claim that we ought to recover upon an notorious and adverse possession, for upwards of twenty-one years before the commencement of this suit.
    2. As parceners, whose right to recover the defendant cannot dispute, until he shall have previously established his legal title to the whole land, by a verdict and judgment in ejectment in his favor upon that legal title.
    3. Because we hold the legal title under the deeds of such of Edward Barton, senior’s heirs, under whom we claim, who, before they conveyed to the lessors of the plaintiff, had got in the legal title of all of Haines’ heirs, except Madison McKay. But if these deeds passed nothing to us by reason of previous deeds to Johnston, then, under the deed from Johnston, united with the deeds from Barton’s heirs, we claim the legal title in the same manner as if Johnston had conveyed it to Barton’s heirs before they conveyed to the lessors of the plaintiff.
    4. Even the possession of Mrs. Barton and her children, after the death, of her husband, claiming, as they did claim, title to their respective shares, would be sufficient to enable the plaintiffs to recover, unless the defendants have shown a better title; 3 Ohio Rep. 240, 388. The possession of one or more coparceners is the possession of all.
    Either of these grounds is sufficient to enable the plaintiff to recover.
    Fourth: The defendant claims his title under the deed from James T. Johnston and wife, made to Edward Barton, Jr.
    1. This deed passed nothing more than the interest of Johnston and his wife. It did not pass any part of the interest of Haines’ heirs. See Combs’ case, 6 Co. 18; Strange, 705; Frontín v. Small, Paley on Agency, 152; Wilks v. Pack, 2 East 142; 4 Mass. Rep. 595; Fowler v. Shearer, 7 Mass. Rep. 14; Sumner v. Williams, 8 Mass. Rep. 162; 1 Ohio Rep. 349; 2 Wheat. 56.
    
      Johnston, at the -time he'made.this, deed,' had..a power of attorney from'1 pari only', of the; heirs of • Amos Haines. ■ It is signed, by Joseph-Canby and'.’wife, NOali Haines," Nathan Haines and Robert Haines, and is'dated-21'st May, 1823.
    The acknowledgment of Mrs. Gnnby is not sufficient; 2. Chase’s Stat-.. 1139, sec.' 2, 1140, sec.' 6;' 6 Ohio Rép. 358. There .is no acknowledgment by Robert. Haines;; 2 Chase’s '■ Stat;. 1Á40,' seel.6. -The- poWer.of attorney has never been recorded' in-. Clermont,, ,'cduñty, where ■ the. land is ' situated; 2 •Chase’s Stat. 1140,>ec.. 7; Taylor v. McDonald’s heirs, .2 Bibb, 423.- It.has.jnever been signed by Mrs. McKay, or any of her.heirs. -It has. but-one- 'subscribing' witness; Lessee of Patterson' y.. Pease arid others,- 4 Ohio. Rep. T90; Cóurcier v; [Gfrahim, !1- Ohio'Rép.. 330. 1. •
    . The deed from Johnston and wife -to E. Barton', Jr., was a mere nullity', except' so' .fa'r as it'conveyed the interest of Johnston and :his wife. - Allvthe title of Haines’ heirs.remained as it was before it vyas.made-.
    Fifth; '' The defendant'- contends that by the deedof.Noa,h Haines and' wife, Nathan -Haines and wife,'.and Margaret H, Canby and her husband, dated .April 5, 1825,, and the deed, of Robert Haines,-dated-9th Of. June, 1824, the parties conveyed to James T. Johnston, their interest, title, &c., to the land sold by Amos Flames to.Edward Barton, sen. ' ' " .
    ' These deeds convey 'no title to the ■ Barton farm, and were not intended by the parties' in. any manner to affect that farm.,
    1. The deed from Robert, Haines is of “ the estate, real or ‘ personal, of which Amos Haines was possessed at his de- ‘ cease — to have .and to hold the above estate or estates, with f all the privileges'and appurtenances, he and his heirs and ‘‘ assigns for ever.”
    Both, the grantor and grantee had actual personal and positive notice that'E. Barton, sen., was in actual pdsséssion of the farm in question ; that he had'bought and paid for it, and, therefore, held it by title adverse to Haines; and this deed applies only to land of which " Amos Haines had the possession at his death, either actual or constructive..'. ’ •
    2. The deed from, Canby and Wife, Nóah', Haines and Na- • than Haines, does not pass the legal title of Mrs.' Canby, because .the statute (2 Chase’s-'Stat. 1139, sec. 2,)--required, that upon the private examination^ the wife, should acknowledge the signing.ahd'sealing of the,deed. . • ■ ■■ ' .
    - Here the certificate dpes .not state -that she acknowledges the “sealing” of the 'deed, ' nor-is. there equivalent words.! In Connell v. Connell, 6 Ohio Rep. 358, it is held, “ that before ‘ the rights of the wife to lands áre affected, the second section ‘ requires an acknowledgment that she vpluntarily sealed and' ‘ delivered’! the deed., .As .this is not done, her title did not pass... .She had'but a naked legal title’, unaccompanied with the right of possession. Her ,husband had no intérest; his only right being to take the.-rents, issues and profits — none of ' which- could exist in this case. ‘ '
    ' 3. As,to.Nathan and Noah Haines,'the certificate to the ácknówledgmént has no seal. • It is dated June 6, 1825, and governed by- the act of February 24, 1820; 2'Chas.e’s Stat. 1139.' The first sectión of this act requires the justice to subscribe hih name and affix his seal to, the certificate of acknowledgment.' The act of. December 28, 1825, first .page- of the third" volume- of Chase’s Statute,' provides, that it “ shall not be ‘ necessary to the validity of any deed or. other instrument of ‘ writing hereafter to be executed,- that a seal shall be affixed 1 to the - certificate of office before whom the .'acknowledgment 6 shall be taken.;’* ’. '
    1 From. May, 1818, until the act just quoted, 'a seal was' required to the acknowledgments of all.'deeds in;Ohio; "see, Paine and others v..-Fr.ench, 4 Ohio Rep.,318; Swan’s-.Stat. 269, note a..: At the time this deé.d-was mádé, it ..did, not pássthe legal title of Noah and Nathan Haines in the land in' disputé. 'Johnston took nothing.-by it in. that land.-' . The case comes within ' the- rule ip Good v.;. Zercher,- Í2 .Qhip Rép. 366.
    Independently of. .the constitutional guaranty, ip is béypnd the compass of legislative powers to take the title of one and confer it upon another, without trial, process or compensation ; Fletcher v. Peck, 6 Cran. Rep. 78; Bowman v. Middleton, 1 Bay. 252; 1 Kent’s Com. 4th ed. 451; Vanhorne v. Bórreme, 2 Dali. Rep. 204; Colder et ux. v. Bull et ux., 3 Dali. Rep. 386; 1 Kent’s Com. 451.
    The deeds described no land — no location is given to it. They are, therefore, void for uncertainty; Boardman et al. v. Lessees of Beed and Ford et al., 6 Pet. Rep. 345; McChesney’s Lessee v. Wainwright, 5 Ohio Rep. 452; Blake v. Boherty, 5 Wheat. Rep. 359; 3 East Rep. 171; Brown v. Jackson, 3 Wheat. Rep. 449 ; Shobe’s Ex. v. Carr et ux., 3 Munf. 10; Adams v. Caddy, 13 Pick. Rep. 460; James’ Lessee v. Avis, 4 T. Rep. 321 ; Bor ex. dem, Spearing v. Buckner, 6 T. Rep. 610; Crosswright v. Hutchinson, 2 Bibb, 410; Sandford v. Baiker, 1 Meri. Rep. 644; Breckenridge et ux. v. Human et al., 2 Marsh. Ky. Rep. 51; Cooke v. Oakley, 1 Peere Williams, 302; Baniel’s Lessee v. Miles, 6 East Rep. 494; Runington on Eject. 309; 13 Johns. Rep. 313 ; Crawford v. Jarrit’s Admr., 2 Leigh’s Rep. 633; Barkley v. Barkley, 3 M’Cord’s Rep. 269; 3 Johns. Rep. 388; Livingston v. Ten Brouck, 16 Johns. Rep. 14.
    The estate conveyed was that of which Amos Haines was possessed at the time of his death, and the parties to the deed could not have intended to convey more than they supposed he possessed at that time. Subsequent development of facts, unknown to the parties at the time of the conveyance, cannot affect the construction of the deed. 8 Johns. Rep. 495; Van Wick v. Wright, 18 Wend. Rep. 157; Moore v. Jackson, 4 Wend. Rep. 52; Corbin v. Jackson, 14 Wend. Rep. 619; Jackson v. Hudson, 3 Johns. Rep. 375; Jackson v. Van Antwerp, 8 Cowen’s Rep. 273 ; Jackson v. Blodett, 16 Johns. Rep. 172; Austin v. Sawyer, 9 Cowen’s Rep. 39; Jackson v. Bodle, 20 Johns. Rep. 184; Hunt’s Lessee v. McNeál, 1 Wash. C. C. Rep. 70.
    
      Parol .evidence is admissible to prove whether a deed was delivered, and whether it was accepted by the grantee. 12 Wend. Rep. 105; 6 Cowen’sRep. 617; 12 Johns. Rep. 418; 5 Mason’s C. C. Rep. 60; 1 Johns. Cases, 114; 4 Ohio Rep. 157; 1 Wend. Rep. 478; 2 Wend. Rep. 308.
    Sixth: But if the title did not pass under these deeds to Dr. Johnston, then, under the deed from him to the lessors of the plaintiff, they hold the legal title.
    The doctrine of estoppel does not apply to this case. Green-leaf’s Evidence, 30 ; Jackson v. Mills, 13 Johns. Rep. 463 ; 2 N. H. Rep. 167.
    Where a person without title conveys by deed with warranty, and afterwards receives title as trustee from the rightful owner, for the purpose of transmitting it to a bona fide purchaser, the doctrine of estoppel does not defeat the trust estate. Burchard v. Hubbard et al., 11 Ohio Rep. 316; 1 Sug. on Vend. 211; Avery v. Dufrees, 9 Ohio Rep. 145 ; House v. Beatty, 7 Ohio Rep. 84, part II; Buckingham et al. v. Smith and Dille, 10 Ohio Rep. 288.
    It is the right to recover back the same land, in the event of eviction, that works the estoppel; where that right does not exist, there can be no estoppel. Allen’s Lessee v. Parrish, 3 Ohio Rep. 116; Patterson v. Pease et al., 5 Ohio Rep. 190; 2 Ohio Rep. 269; Thallhimer v. Brinkerhoof, 6 Cow. Rep, 90; Douglass v. Scott, 5 Ohio Rep. 194; 4 Kent’s Com. 4th ed. 261, note b; Co. Litt. sec. 446; 14 Johns. Rep. 193.
    It is wholly by operation of law, in cases of estoppel, that the after acquired title inures to the benefit of the grantee. It is not the act of the parties. Brown v. Swearingen, 1 Ohio Rep. 412; Cruise’s Dig., Tit. 5, chap. 1, sec. 27; 2 Hovenden on Frauds, 100; Nellis v. Clark, 20 Wend. Rep. 25.
    If there was fraud in procuring the deed to be made to young Barton, the law will not lend itself to aid either party, but will leave them as they are. Smith v. Hubbs, 1 Fair. Maine Rep. 71; Ferris v. Norris, 9 Dana’s Rep. 317; Raguet v. Roll, 
      7 Ohio Rep. 76, part I-,' Allen et al. v. Little, 6 Ohio Rep. ’ • °7.
    Seventh: ' Where any interest whatsoever passes from the .party making a deed, there can be no estoppel against him. The' reason that a man is estopped, is, that he is not permitted to. assert that he had no interest in the land, where he made his deed with warranty.. Coke Litt-. 55; a ; 4‘Kent’s Com. 98.
    Estoppels must be certain in every intent, for no one shall be denied setting ,up the truth, unless it is in plain and clear contradiction of his former obligations and acts. Greenleaf’s Ev. 26; 4 Kent’s Com. 261'.
    Eighth: The defendant,- at the trial, contended that the statute of limitations operated in his favor. This cannot possibly be so; for the proof is, that Edward Barton, senior, occupied the farm until his death, in May, 1836, taking to his own use all the profits of it, paying all the taxes,, and three times demanded of Edward the deed from Johnston to him. At his death', Charlotte Barton, and five of the children, were on the farm, and remained upon it for some time thereafter, when the defendant obtained the possession. In Paine’s Lessee v. Skinner et al., 8 Ohio Rep. 166, the Court decided, that “the £ possession under which a person claims to be protected by the ‘ act of limitations, must be continued, exclusive and adverse.” Here Edward Barton, junior, had no -.possession of any kind, till after May, 1836.
    A trustee of the legal title cannot urge the lapse of time against his cestui que trust. Trustees of Lexington v. Heirs of. Lindsey, 2 Marsh. Ky. ■ Rep. 445; 'Redwood v. Riddick and Ex., 4 Munf. Va.-Rep. 222; Cholmondely v. Clinton etal., 2 Meriv. Rep. 350; West v. Randall, 2 Marsh. Rep. 213 ; Kane v. Blood good, -2 Johns. Ch. Rep. 122; Executors of Hunter v. Spotswood,- 1 Wash. 146; Thomas v. White et al., "3 Litt. 177, 181; Lessee of Bell v. Levers, 3 Yeats. Rep. 26.
    Ninth: The deed first registered must prevail at law. Roberts v. Stanton,.2 Munf. 129; Jackson v. Nwge£i,.10Johns. Rep. 457,' 462; Jackson v. Hubbard, 1 Caine’s Rep. 82; 
      Jackson v. Gioen, 8 Johns. Rep. 105,2d ed.; Sugd. on Vend. -255,,9th edN..- ' -. '.
    . Tenth; If, however,' I am mistaken in the views I have already, presented, stijl the question 'left undecided in Les.see of. Avery, v. Rufréeset aL, 9. Ohio Rep. 145,-remains: • • '
    The defence is,; that the present defendant holds the title of part of Haines’ heirs, through Edward .Barton, jr.-' By the contract of. .sale .and the payment 'of ■ the .purchase money, Haines’ right'to the land itself was divested. He'held; after that, but a naked legal title. .1 ask the ¿tterition óf dlie Court to the remarks of Ch. J. Marshall in Blight’s Lessee v. RoChester, 7 Wheat. Rep. 535. Robert Haines,' the agent of the owner, knew that Barton' 'went 'into the possession about the time'of the purchase, and no opposition to his'taking possession appears to have been made by any person. He took pos-. session, at least, by the acquiescence, of the owner, (see 7'Ohio Rep. part II, 99); and, after full payment of the purchase money qnd acquiescence for upwards of twenty-one years, by the vendor,' his heirs, Widow and administrator, surely a person claiming under the vendor cannot be permitted to enter and avail himself of. that titlp against the purchaser and those claiming under him. The vendee, even, under a parol contract, may maintain trespass against the vendor, where he has .the possession ; 1 Ohio Rep. 252,- and ■ cases there referred fo by the Court. ■ The vendee has surely a right of immediate possession,. that is, of. entry. See 2 Wend. 109, 134; 6 Munf: Virginia Rep. 37.' . .'
    Edward Barton, jr. never had thé possession,.
    ' In every case of mixed possession, the-legal seizin.is according to the title. 10. Mass. Rep. 151; Ibid. 408; '2 Harr. &l Johns. Rep; 87, 94, 112, 115, 3 ; .Serg.' & R, Rep. 509'; 3 Harr.-& McKen..Rep., 621; -4 Serg. & R. Rep. 46.5; -1. Salk. 245.;' '6,-Johns'. Rep. 218; 3 Mass. Rep, 219:But, even if he-had, he voluntarily abandoned it'. ' 7 Cowen’s Rep;;637.' ’ ".
    
      
      Charles Fox, for Defendants.
    I claim, on the part of the defendants, that, as to any claim set up by plaintiffs, under the heirs of Lafayette Haines, no recovery can be had, for the following reasons —
    First: Because Edward Barton, the purchaser, went into possession with the assent of Amos Haines, the owner; that he complied with his contract by paying up the purchase money, and that, therefore, he had a right to retain that possession, and was not a wrongdoer; that no ejectment could be brought by Haines, the vendor, to terminate the purchaser’s right of possession, until the latter had made default in his contract, and possession had been demanded by the vendor; that the vendee had a license to enter, which is sufficient in an action of ejectment.' And such appears to be the opinion of Mr. Jolliffe, in his argument.
    Second: I claim, they cannot recover because barred by the statute of limitations. The elder Barton, under whom we claim, and under whom the lessors of the plaintiff also claim, took possession of this property, in 18 IT, as his own. That the statute had commenced running against Haines and his son, and, of course, did not afterwards gtop for any subsequent disabilities, and had run out before the 3d of August, 1843, when this suit was brought.' It is true, the administrator, Johnston, claimed there was a'balance of about $50 due in 1823, when he made the deed, but that was denied by Barton, although he paid the balance rather than not have the deed made. If I recollect aright, the land was sold by the acre, and Johnston contended that, at that rate, there was this balance due. I claim, therefore, that the possession was, in fact, adverse, before that deed was made, and that it ought to be held, and, if the Court think so, the statute is a bar.
    In the next place I claim, that whatever title was vested in the heirs of Haines was passed to James T. Johnston by their deed made in 1824 and 1825, and being so conveyed to Johnston, operated to the benefit of Edward Barton, the younger, and those claiming under him, by the doctrine of estoppel; and that the subsequent deed made by Johnston to Jolliffe and Charlotte Barton, in 1838, conveyed nothing, because the moment the heirs of Haines conveyed to Johnston the title vested in the persons to whom he had previously conveyed it.
    The deed from Johnston purports to convey a fee simple estate. Johnston covenants he has a title to the property and that he will warrant that title. He, therefore, could not recover against his own solemn deed, and if he could not, it is clear Jolliffe and Charlotte Barton, who claim under him; cannot recover.
    It is claimed by Mr. Jolliffe, that the deeds from the heirs of Haines and Johnston do not cover this land, and that they were not intended to convey it. He claims he has a right to show that the parties did not intend to convey this land.
    Although the deeds purport to convey all the right, title, interest, property and demand which the parties have in and to the real or personal estate, as legal heirs of M. de Lafayette Haines, minor, &c., or to the estate, real or personal, of which Amos Haines was possessed at his decease,' yet, Mr. Jolliffe says, the deeds do not cover this land. Again, the grantors warrant that they will not claim or demand any right or title to any of the estate of the said M. de Lafayette Haines, or of the estate of his father, Amos Haines. See' Robert Haines’ deed.
    Canby and wife, Noah Haines and Nathan Haines convey all their right, title, claim, interest, property and demand in and to all real estate which has fallen or may fall to us, or either of us, as heirs- and legal representatives of M. de Lafayette Haines, deceased, or of Amos Haines, to have and hold all such landst tenements and real estate, as we could or might claim title to as heirs, &c., and in this deed is a covenant to defend all persons claiming under them.
    But Mr. Jolliffe claims, that Johnston’s deed will not estop him, or those claiming under him, because, in the first place. Johnston made a mistake in inserting- a clause of warranty. TT . • Jde supposes it was an unnecessary warranty. Hut it appears to me, it was necessary to insert this warranty, and, I. presume,Barton thought so • at the time, for he had paid a good price, and Was entitled to a warranty deed.. If we look at the real transaction, we shall see the parties really intended to convey a good title. Johnston had a power of attorney which,-he thought, authorized hinn to- make-a deed. ■’ He made- one, and it appears his-title was not then perfect. But the heirs afterwards.vesteda good title in him. Now, this is .the very case to-which the ■ doctrine of estoppel -is intended to apply.' -The party intended ■ to convey the whole title, but-he did not carry his intention info effect. He afterwards acquired a perfect title, and the láw steps in and says, it shall accrue to the benefit of the grantee, and thus carry into effect the original intention Of the parties. 'The' doctrine of estoppel is a- part of the moral policy of the law., -intended to promote justice.. -It is not just that a man' who has-conveyed .a title should be permitted to say, he had no title to convey.. ' •
    Mr. Jo'Iliffe also.claims the.deed cannot operate' by estoppel, because a very small interest passed, viz: the interest of Johnston’s wife, as widow of Amos Haines, deceased.' He'seems to think, that if' a man sells the whole of an estate, as his own, and-covenants to defend the title, and he subsequently finds he only owned one-seventh part of what he conveyed, he can then ,go and buy' up the six-seventh parts and recover of his own gran tée against his own deed. This proposition'cannot-be met by argument." The cases cited by Mr. Jolliffe,-so far as I have examined them,.give no- countenance to his proposition'. In the case in 11 Ohio Rep. 332, the Court admit- the doctrine I -contend -for,' although they say, in that case,-a prior equity attached, Which, in equity, would overreach a legal title. .
    •I admit,, the. vendor or his. heirs were, implied trustees of the title for the benefit' pf the purchaser or'his assigns.' ' But in this case, -Johnston actually, conveyed to the person selected by the purchaser ;• hé had? .therefore, executed- the. trust according "to the directions of the .purchaser. There was no breach of trust., The question- of-’.notice of no notice, therefore, about which Mr. Jolliffe has sáid-'so 'much,’ has nothing to do with the case.
    - Upon the'whole, therefore, I claim the' plaintiff has made out nó title, under-.the heirs of Haines.' Can he recover on the title set up under the heirs of Barton ?. I think not. ■ ;
    .First, because Barton himself never had a legal title. He had a good equitable title, which might’have ripened into a ...legal, title; but. the elder Barton- died before the title . had so 'ripened. He had, not, therefore, a. legal title to vest in'his 'heirs., ' ' - . y ' ' .
    And, in the next place, Í claim that this, question has'been so settled,'' by the decrees rendered between the younger Barton and his brothers and sisters, . In those casés, ihe very point and-pith of the controversy -in the first case, .was, as to’ whether .tjie complainant had any equitable-right; for as to the legal title, they then admitted it was in Edward Barton, jr: In the ' last-, case;, however, i't-.was asserted' the legal title had been outstanding. ;in the .heirs, of Haines;' that the complainants had ' purchased that title,.-and, being-in possession, and having the legal title, 'they .sought , to be quieted! -.'The only question in. litigation was, whether-- .the complainants had the legal title. ■ That question -was,decided against those under whom- these . lessors claim,'and I maintain .it is a-final determination of-the question' as to the legal title, and cannot be again litigated between the same parties, or. those claiming under them, either at law or equity. The statute has authorized, a party in possession, claiming title; tq.havé the validity of that title determined . in a-particular way.' If he -is not willing to wait until his adversary.asserts a claim in Cpurt, he may, by becoming a plaintiff, compel a decision on his title merely. After having selected .the tribunal thus pointed out to determine, the question, I claim the decision of the Court on. that question is conclusive. It certainly would be, if the decree had been-for the complainant; it must be equally conclusive oh the part of the defendants. If I am right in this position, it shows that the plaintiff cannot recover under either title which he has set up.
    The plaintiff, however, insists that this deed was made by Johnston to the younger Barton, at the request of the elder Barton, in order to defraud the creditors of the latter, and that it is, therefore, void. There are two answers to this objection :
    First: We do not know that there were any creditors to defeat; none have complained of the transfer as affecting their interests, and I suppose the heirs cannot complain on that account. 1 Ohio Rep. 469.
    In the next place, the grantor, Johnston, did not make the deed to cheat his creditors. And, I take it, none but the creditors of the grantor could insist upon the deed being absolutely void. Suppose Barton had assigned his title-bond without consideration, this might have been avoided in equity by the creditors; but surely Barton and his heirs could not avoid it on that account, any more than they could set aside a will made by their ancestors. There is nothing, therefore, in this objection.
    Upon the whole, I claim the plaintiff has shown no title to recover in this action.
   Birchard, J.

Several questions of interest have been presented for our consideration in the argument at bar, and in the briefs of counsel. We shall notice them severally, especially those that seem to us conclusive of the rights of the parties.

One subject of great diversity of opinion among counsel, is presented by the deed of Canby and wife, executed in 1825. Plaintiffs’ counsel contend that it is defectively executed, inasmuch as the certificate of acknowledgment is insufficient. Were this so, it is difficult to see how it could affect this action. While Canby, the husband, lives, the right of possession to the lands of the wife is in him; and his deed, if valid, passed whatever right of possession the wife had. No proof of his decease has been adduced.

But we will notice the deed. The substantial portion of the certificate of acknowledgment, is in these words : “ Personally ‘ came Joseph Canby and Margaret H. Canby, the within gran- ‘ tors, and acknowledged, severally, the signing and sealing of ‘ the within deed of quit claim to be their voluntary act and c deed, for the uses and purposes therein contained. Arid the ‘ said Margaret being by me made known to the contents, and examined separate and apart from her said husband, declared that she signed the same without fear or coercion of her said husband, and of her own free will and accord.”

The statute required that on the separate examination, the wife should acknowledge the signing and sealing of the deedj and that this should be certified by the magistrate; 2 Chase’s Stat. 1139. Brown v. Farren, 3 Ohio Rep. 140, is an authority recognized iri Connell v. Connell, 6 Ohio Rep. 353, and is at this time the law of the State. The doctrine established there, is, that words used in the certificate of acknowledgment, which are equivalent to the words of the statute, are sufficient. Let us consider, then, whether this deed, and the certificate, do not show that every requisite of the statute has been complied with in substance and in fact.

The signing and sealing, and delivery, were all done at the same time. This appears from the testatum clause of the deed, and from the attestations of the subscribing witnesses. The signing and sealing are one act, done at the same time. The signature adopted the seal already prefixed, and made the same the seal of the grantor; so that, in point of fact, there could be no separation. If the signing was done voluntarily, it is impossible the sealing was not equally so. What does the certificate show ? That Mrs. Canby united with her husband and acknowledged both the signing and sealing. When separately examined, she said the act thus done was her voluntary act and deed.

It is easy to see how all this actually occurred and to understand what it all meant. No man unlearned in the law, if of sound sense, reasoning fairly, and untrammeled by technicalities, would ever1 come to the conclusion that Mrs. Canby * did not mean to acknowledge the execution of the deed, or that the magistrate had not so certified. Apart 'from legal subtleties, and guided by the '.lights of sound logic; every man would-:come to the same conclusion, and.would "assert, that by .no possibility coiild any evil arise from .holding such a certificate to be a full compliance with the statute ^ full' evidence' that the sealing, as - well as the signing, was acknowledged* We think the deed is well executed to "pass .the title of Mrs. Canby, and will next consider whether the descriptive words of the instrument embrace the land'in controversy.

The land.is thus'described: “All our right, title,"claim,.in? ‘ terest, property or demand, of,"'.in and to all real estate which"' ‘ had fallen^ or may- "fall" tp .us, hr either‘of us', as heirs of legal .‘representatives "of" Marquis- He Lafayette "Hajnes, deceased,’- ". ‘ pr of Amos ..Haines,- deceased.”' , -

' Numerous' authorities, have been" adduced,, in "the hope of. satisfying, us “ that this .deed is so" general,in its- terms, it, em- ‘ braces' nó land whatever," ".and .is, therefore void, for uncertain- - ‘ ty, and cannot be made to pass title to any lands, without ex- ‘ trinsic evidence-is. resorted to.” The-terms."of the deed are ample; They are such as may be readily comprehended, and speak an-intention pn the part of the grantor that admits of no doubt. Whatever title, legal of equitable, descended to the grantors, .or heirs of the two Haines, passed by the conveyance.' Plainer words, pr more apt to express that intention, could not be found. Extrinsic evidence in such a case can only be to-identify . the. land ■ embraced by- the description. It should show lands "to' which either of the decedents had an equity. The deed transferred’-it. So if the deceased had, as in this case, a naked legal title, that also passed. Right, title, claim, interest., or property, are words of -a most cqmprehensive meaning. Here they are disjunctively connected, and embrace every thirig that came by descent to the grantors.

One more objection to this deed remains to be disposed of. It is said the magistrate, in taking the acknowledgment of Noah and Nathan Haines, has not affixed his seal. If this were so, the deed would be well executed under the- existing state of the law. The second section of the statute (Swan’s Stat. 269) declares, that the deed shall be held sufficient to pass the legal title, notwithstanding the omission. The words are, “ shall be good and valid in law and equity.” The statute purports to act retrospectively — not to create title where none existed before, but to make that a good title which the parties themselves meant to make good, by dispensing with a part of the form required of the officer, and by him carelessly and negligently omitted. This statute has been repeatedly under the examination of this Court upon the circuit, and has received the sanction of all its members, as a law of binding force. It violates the obligation of no contract, divests no vested right; but on the contrary supports a contract fairly and honestly made, and such an one as a court of chancery would have enforced.

Again: does this question of law arise upon this deed? The magistrate commences the certificate of acknowledgment thus:

The State op Ohio, v £ Warren County, ss. > £ [seal.] ' Personally,” &c.

And at the conclusion signs his name. ' The law has not made it the duty of the officer to place his seal at the end of the certificate, immediately after his signature ; and, I take it, the seal placed as this is, is his seal, so that, in point of fact, no such question as the one last disposed of could have been forced upon us, or would have been decided, but for the desire of the parties to have settled every question which, by possibility, can be raised upon plausible grounds, touching this title. It has been much litigated already, and they have no reason to expect peace until they have a decided opinion upon every question agitated in the cause. The deed of Robert Haines is not objected to, except so far as the description is concerned. In this respect, it is like the deed of Noah and Nathan Haines, and of Can by and wife. Four-fifths of the legal title, then, by by these deeds, became vested in James T. Johnston. Before the title so vested, he had conveyed to Edward Barton, jr., with the usual covenants of warranty. Upon principles of established law it would be held, under ordinary circumstances, that this after acquired title would inure to the benefit of the prior grantee, and vest in Edward Barton, jr. a good title by the doctrine of estoppel. Johnston could not recover against him and defeat a title that he had covenanted to defend against all claims whatsoever; and, if he could not, neither can the plaintiffs’ lessors, claiming under subsequent deeds from him. We must, then, look to the arguments relied upon to exempt this case from the operation of the general rule. In the first place, it is said Johnston undertook to convey as the attorney of Haines’ heirs, and the warranty was made by mistake. The mistake consisted in this only: He supposed the. authority executed to him by the heirs of Haines, placed the title in him, and the dower estate of his wife being in him, that he had the power to vest in Barton, jr. a sufficient title in fee, and that his deed effected that object. He was mistaken in supposing that an invalid instrument was good for something — mistaken in the legal effect of his conveyance. He was under no mistake in supposing Barton- entitled to a good and sufficient warranty deed. This is shown by the title bond of .the elder Haines, .upon which full payment had then been made, and by-the direction of the elder Barton, to make the deed to his son. If the deed, thérefore, by operation of law, under the circumstances, passes the title and vests it in Barton the younger, it only 'carries into effect'the intention of the parties, including grantor, grantee and the owners of the legal as well as of the equitable title. The mistake, for- this reason, must be laid out ■ of view. Again, it is said that the doctrine of estoppel does not apply, because the after acquired title of.-James T. Johnston was received by him as trustee for the heirs of the elder Barton, and that the case is. within -the principle of the decision in Birchard v. Hubbard et al., 11 Ohio Rep. 316. Now, I admit, that after a contract of sale and the payment of the purchase money, the holder of the legal title holds it as trustee for him who is entitled to the deed in fee. That person was Edward Barton, jr. The case in 11 Ohio Rep. is, also, admitted to be good law. But their application to the state of facts now before us is not so very palpable as plaintiffs’ lessor, in his argument, professes to believe. Barton, the elder, was the original contractor for the land; he purchased and paid for it, and, when his right to a deed was perfect, directed the conveyance to be made to the son, Barton, jr., and it was so made, in execution of the trust, by order of the cestui que trust. Now, in all soberness, wherein was there a violation of the trust ? Had not the real owner of the land a right to order the deed to be made to the son, or to any one else ? When his order or his request has been complied with, does it lie in his power or in the power of his heirs to complain that the trustee has violated the trust ? The heirs, and those claiming under them, could take no greater or other equitable or legal right than their ancestor proposed. He possessed none, for he had, in 1823, given up his bond for the use of his son. The statement of the proposition is sufficiently plain to show what must be the law of the case. It needs no other illustration.

The next objection shall be stated in the words of plaintiffs’ lessor:

“ If E. Barton, jr., obtained any interest, however small, un- der this deed, there is no estoppel.
“For the present argument, then, I assume that nothing £ passed to E. Barton, jr., under the deed from Johnston and ‘ wife to him. That deed is dated 30th of May, 1823. Under ‘ that, Edward Barton, jr., obtained no interest whatever in the £ land. On the 19th of June, 1824, Robert Haines made the £ deed to James T. Johnston. Here, then, for upwards of a £ year after the making of the deed, Edward Barton, jr., held no interest whatever in the land. The deed, during all that £ time, was inoperative as a conveyance. The proof is — and £ on this subject there is no dispute, and never has been — that £ the deed was made to defraud the creditors of Edward Bar-* c ton, sen.
“ And the question now is, does the doctrine of estoppel apc ply so as that the law will give life and power to such a deed, £ by £perfecting ’ the title of the grantee, or 'will the law leave £ the parties where it found them ?”

To this point a vast number of authorities have been referred to and read. Without controverting the authority of any one of the cases, we will give a direct answer to the question here propounded; and one that is consistent with every case of sound law to be found in the books of reports, as well those cited, as others that might, have been. Wherever a conveyance has been made to defraud creditors, of either an equitable interest in lands or of a legal estate in lands, the law will leave the parties just where they have placed themselves. It will not permit either to be heard, to avoid the fraudulent act, by showing his own fraud; nor will it permit the heir to avoid the act of his ancestor, by proving the fraud of the ancestor, under whom he claims.

Let us apply the above principle to the facts of this case. The elder Barton fraudulently gave over his contract, by which he held an. equitable title, and caused Johnston to convey the land to his son, by warranty deed; whereas; if ho had been an honest man, and taken the conveyance to himself, he now would have had a good title, by operation of law. Johnston was not a party to the fraud. He did as he was directed; and what the father should have received, the son, by his fraudulent directions, took. The law leaves both where it found them, and operates upon their acts the same as if good faith and honesty had governed their conduct throughout the iniquitous transaction. By so doing we do not sanction the fraud; we merely prohibit the heirs from taking advantage of the sins of their ancestor. The fraud was directed against creditors; they are not before us. Were we to permit the fraud to defeat the estoppel, then we should be liable to the charge of having interfered in aid of one of the parties, but not otherwise. Another ground taken by plaintiffs’ lessor, is, that a fraudulent conveyanee is void, under our statute, as between the parties. It is admitted, in argument, that this point has repeatedly been ruled to the contrary. It may be due to the counsel to notice it, however. Suppose, as he contends, that the settled rule of construction encourages the fraudulent grantee to cheat his grantor; the answer is, that, as between the parties, the deed must be held valid, for a contrary rule would enable the fraud1ulent grantor to come into Court to establish his own crime, in avoidance of the deed. Against which practice, we have seldom seen a stronger array of authorities and argument, than has been furnished us in this very case by the plaintiffs’ lessor.

It only remains for us to consider the nature of the title, by possession. Edward Barton, sen., was placed on the land in 1817, in virtue of a contract, which was complied with by pay•ment. Since that time his possession, and the possession of those who have claimed under him, has never been tortious. In 1825 he caused the conveyance, before spoken of, to be made to his son, Edward, jr. While living he treated him as the owner, as having succeeded to all of his rights, and recognized him as the landlord, himself as the tenant. To all of his rights the heirs of Morris have succeeded. This makes for them a possessory title of upwards of twenty-one years, prior to 1843, upon the principles claimed on behalf of the plaintiffs’ lessor. For it is in proof that Edward, jr., was on the land, and that his father recognized him as the owner of whatever rights he once had under the Haines contract, from the day that J. T. Johnston executed, pursuant to his directions, the defective conveyance, in 1823. This was established on the trial at law, and by the decree dismissing the bill, which was filed to enjoin Morris’ judgment in the action of ejectment. Shall the naked legal title, now outstanding in the' heirs of Mary McKay, be allowed to defeat this long possession of the equitable owners, and of those under whom they claim, even if the statute, of limitations is not a bar ? We answer in the negative. The possession taken under the title-bond was lawful, not tortious. Nothing has occurred to take away this right, which is in the heirs of Morris, and out of the plaintiffs7 lessors. They cannot recover upon a naked legal title, without a legal possessory right. To sustain this point the authorities cited are ample.

The plaintiffs7 lessors, however, claim that this last principle, properly applied to the facts before us, would entitle them to recover an undivided portion of the land in controversy, under the deeds from McKay’s heirs. We do not expect to be able, to convince them of their error at present; but in order that our view may be fairly understood, I make a brief restatement, which may enable them to see how far we go with them, and! to comprehend the points where, and the ground upon which we separate.

To this end we will examine, with some minuteness, thé extent of the equitable title held by the heirs of the elder Barton. He, in his lifetime, with a view to defraud his creditors, delivered over his contract, and directed a conveyance of the entire title, both legal and equitable, to be made to his son. This act bound him during life; though fraudulent as to creditors, it was good and binding between the parties. It said efficiently for him, I have transferred my equity in this land to my son ; and had he lived, he would never have been permitted to gainsay it. His residence upon the land afterwards, were there no other fact in the case, would be regarded as the occupancy of the son. As between the father and son, he must have been held the tenant of the son, occupying by his permission and sufferance, because this would be the result of such cionduct on their part, assuming that both acted honestly, and because the Court would not listen to proof offered by either to show that the transaction was fraudulent. As between the two Bartons, the father had done an act in his lifetime which estops both him and those holding under him as heirs, from denying that, at his death, all the equitable interest in the land was vested in the son. His heirs hold just as their ancestor held, and can claim nothing which he could not have claimed. The deeds from the heirs of McKay,- passed to them nothing more than a naked legal title, subject to the equities arising under the contract, and the long continued possession of those entitled to that equity, or who in law.represented it. It is very evident that the plaintiffs’ lessor has been under a great mistake in the application of the facts to the law of his case. While he states the latter generally with much accuracy, there is a strange misapplication of the former. He even assumes that the plaintiffs’ lessor, claiming under the heirs of the elder Barton, held a title by adverse possession since 1823, the date of Johnston’s deed, up, to the time the heirs were ejected by Morris-under the deed from the younger Barton, in 1836; and throughout his argument upon this part of the case, overlooks entirely the fact that, in 1823, Edward Barton, senior, gave up his contract to Johnston, surrendered thereby the equity to his son, treated his son as the owner, and, supposing Johnston authorized to convey the legal title, directed him to convey to the son; that he did convey; and the son, to the time of the father’s death, refused to release or' reconvey; although he permitted the father to remain on the land while he lived. He also assumes that all the equitable title remained in Edward Barton, senior, after-his fraudulent surrender, and the conveyance made by his direction, while we hold that he cannot show a particle of equity without showing the fraud; and, as a mat-of law, counsel admit, that to permit him to do that would be grossly erroneous.

I have endeavored to make our views known. They are satisfactory to ourselves, and with that we must be content.

Judgment for Defendants.

N. B. — An application for new trial and reargument, was made by Mr. Jolliffe, which was overruled.  