
    
      Mary A. Pledger vs. William T. Ellerbe.
    
    Defendant in dower is estopped from denying seizin in demandant’s husband, if it appears that his title was derived from the husband: he cannot show that the deed of conveyance under which the husband held, and which is a link in his chain of title, is so inartificial and imperfect as not to have vested the title in the husband.
    Where husband mortgages land to secure the purchase money, and, under proceedings in the Common Pleas, the land is sold for foreclosure, his widow, claiming dower, is estopped by the record from denying the validity of the mortgage' — it having but one attesting witness.
    
      Before Frost, J., at Marlborough, Bpring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The plaintiff demanded dower in a tract of land in possession of the defendant. Her marriage to Wm. E. Pledger and his death were proved. To prove seizin, a deed from George Bruce, Commissioner in Equity, to William E. Pledger, was produced. The deed recited certain proceedings in the Court of Equity, by which the tract of land described in the deed, was ordered to be sold, the sale at public auction and the purchase by Wm. E. Pledger, for the sum stated as the consideration ; and without using the words bargain, grant, or convey or any term of the same signification, declared that Wm. E. Pledger was 'to have and to hold the said tract of land,’ to him, ‘ his heirs and assigns forever, as fully and effectually as by the said order, it could be conveyed.’ On motion for a non-suit, it was held that the deed was sufficient to convey the title to the land to Wm. E. Pledger, in fee simple.
    
    “The defendant produced in evidence a bond from Wm. E. Pledger to George Bruce, Commissioner in Equity, conditioned to pay $5,000, secured by a mortgage of the tract of land conveyed, all of which instruments bore date the 1st May, 1826. The defendant then showed that judgment had been recovered on the bond of Pledger, by G. W. Dargan, the successor in office of Bruce ; and on a suggestion, in the Court of Common Pleas, the land was ordered to be sold, for the foreclosure of the mortgage. Under the sale by the Sheriff, in pursuance of this order, and through several mesne conveyances, the defendant showed title to the land in himself. The defendant then insisted that, Pledger having mortgaged the land to secure the purchase money, and it having been sold under the order fox-foreclosure, the demandant could only claim dower in the excess of the value of the land over the mortgage debt. But it was objected that the deed of Pledger to Bruce, Commissioner in Equity, did not operate as a mortgage, it having been attested by only one subscribing witness. .It was decided that a mortmortgage of land could be made only by the same forms and solemnities as a deed for the conveyance of land ; and so the deed of Pledger was insufficient as a mortgage.
    
      “ Under this instruction the jury found for the demandant.”
    The defendant appealed and now moved this Court
    1. For a nonsuit. — -That the demandant, before closing her case, proved that her husband, William E. Pledger, had no legal seizin of the land wherein she demanded dower; inasmuch as the instrument introduced by her as a deed from George Bruce, Commissioner, to William E. Pledger, had in it no words of conveyance whatever, and so was ineffectual to vest the seizin in the said William E. Pledger.
    2. For a new trial. — That his Honor instructed the jury, that the instrument introduced on the part of the defendant, as a mortgage of the same land, executed by William E. Pledger to George Bruce, Commissioner, to secure the purchase money, under a foreclosure of which mortgage defendant derived title, was ineffectual as a mortgage, in consequence of its being attested by only one witness, which instruction it is, with the most respectful deference, submitted, was error.
    
      
      Thornwell, Inglis, for the appellant,
    cited Watk. on Conv. 238, 217; Pow. on Mort. 187; 2 Burr. 978; 5 N. H. R. 420; 1 Johns. R. 590; 11 Johns. R. 537; 2 Gall. R. 115; 4 Kent, 152 et seq.; 5 Stat. 168; 1 McC. Ch. 398; 4 McC. 340; 3 Denio, 234; 2 Geo. R. 80; 10 Geo. R. 73 ; Chev. 281; 5 Stat. 285 ; 4 Conn. R. 421; 7 Mass. R. 131; 19 Johns. R. 326; 2 Cowen, 231; 1 B. Monroe, 257 ; 2 Blanch. 244 ; 3 Paige, 515 ; Co. Litt. 224 ; 4 Green. Cruise, 7; 5 Stat. 311; 1 Bail. 148; 1 Hill, Ch. 340; 1 McM. 373.
    Dudley, contra,
    cited Sug. on Pow. 260; Toml. L. D. Mortgage ; Coote on Mortg. 8, 325, 331; 2 Cru. Dig. 78, 101; 1 Brev. 174; 4 McC. 55; 1 Brev. 174, note; 2 McC. 54; 4 McC. 351; 1 McC. 401; 2 Sp. 54.'
    
      
       The following is a copy of the deed from Bruce, Commissioner, to Pledger:
      STATE OP SOUTH-CAROLINA, ) CHERAW DISTRICT. S
      Know all men by these presents that I, George Bruce, Commissioner in Equity for Cheraw District, in consideration of the sum of Eive Thousand Dollars to me secured to he paid, and in obedience to an order of the Honorable Court of Equity aforesaid, made at Eebruary Term, 1826, in a case wherein Charles Gee el al. was complainants, and the administratrix of William C. Vernon, et al. respondents. The Court ordered the land described in said bill to be sold, and the same having been legally advertised, William E. Pledger was at public sale and outcry, tbe highest and best bidder for the same at and for the aforesaid sum of Eive Thousand Dollars, for all that plantation or tract of land situated in the District of Chesterfield, in the State aforesaid, bounded by the lands of William E. Ellerbe and John Terrell, and the Pee Dee river, supposed to contain Three Hundred and Eifty acres, it being all the land whereof William C. Vernon died, seized and possessed, at that particular place, he tbe same more or less, together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in any wise incident or appertaining: To have and to hold, all and singular the said premises with the appurtenances, unto the said William E. Pledger, his heirs and assigns forever, as fully and amply as I might or could sell and convey the same by virtue of tbe order aforesaid, and the authority in me vested. In testimony whereof, I> the said George Bruce, Commissioner of the Court of Equity aforesaid, have hereunto set my hand and seal, this first day of May, in the year of our Lord one thousand eight hundred and twenty-six, and in the fiftieth year of American Independence.
      GEORGE BRUCE, [l. s.] Commissioner in Equity,
      Signed, Sealed, and delivered in the presence of John D. McRae,
      John Crossland.
    
   The opinion of the Court \vas delivered by

Glover, J.

The grounds of appeal present two questions for the consideration and judgment of the Court:

1. Was there such a seizin of her husband in the land as will confer on the demandant a title to dower?

2. Was the instrument, introduced on the part of the defendant, effectual as a mortgage ?

1. An actual seizin, or seizin in deed, is not indispensable to sustain a widow’s title to dower. It is sufficient that her husband had, during the coverture, a seizin in law. In this, dower and curtesy differ; the reason assigned for the distinction being, that the husband has the power of procuring the actual seizin of his wife’s land; but the wife cannot compel her husband to enter upon his own land. (Co. Litt. 31 a.)

The widow cannot legally claim, nor is she by law presumed to have, the custody of the muniments ; and, therefore, proof of the possession of, or a conveyance to, her husband, without the production of the whole chain of title, will be prima facie evidence of his seizin. Consequently the deed executed by the Commissioner to William E. Pledger furnished presumptive evidence of a seizin in law and will sustain a verdict for the demandant, unless from the want of apt words a legal seizin will not be inferred, or unless the defendant has shown title paramount which will avail to defeat the claim of dower.

The reasons which have influenced the judgment of the Court and the ground on which their conclusion is placed, 'in respect to the motion for a non-suit, make it unnecessary to decide, whether there be such an omission of words, showing an intention to convey, as renders the deed from the Commissioner in Equity “ ineffectual to vest the seizin in William E. Pledger.”

To this deed, through several mesne conveyances, the defendant traces his title ; and on it he relies to defeat the demand-ant’s claim of dower. He, therefore, repudiates a link in the very chain of title by which he claims to hold and to be seized of this land. Shall he be permitted, in the same breath and by virtue of the same deed, to assert the seizin of Wm. E. Pledger, to sustain his title, and deny it for the purpose of defeating the demandant’s 1 Generally, a purchaser is concluded from impugning a title under which he has accepted and holds an estate.

“ Where parties, in an action relating to land, claim through the same person and rely on a title in him, they shall be obliged to admit the whole of such title as valid, and shall not be allowed to insist on that portion which makes in their own favor and reject the rest.”

The very point involved has been frequently decided in New-York. A grantee claiming under the husband is estopped from denying his seizin in an action for dower brought by the widow. (Sherwood vs. Vandenburg, 2 Hill, 303; Bowne vs. Potter, 17 Wend. 164; Davis vs. Darrow, 12 Wend. 65.) A feme who claims dower shall have advantage of an estoppel by deed between her baron and the tenant. (Co. Litt. 252 a.) He who claims the fee, under a deed from which others derive their rights, is concluded from denying the validity of such deed under the allegation that it is defective. If the Commissioner’s deed be sufficient to convey the fee in this land to William E. Pledger, from whom the defendant derives his title, it will furnish evidence of a legal seizin on which his widow’s title to dower will attach.

This Court, therefore, concurs with the Circuit Judge in refusing to grant a non-suit, and the motion is dismissed.

2. The next ground of appeal submits the question, whether the instrument introduced by the defendant is effectual as a mortgage ? The judgment of the Court on this question supersedes the necessity of expressing any opinion respecting the number of witnesses required for the legal' attestation of a mortgage of real estate.

The demandant offered in evidence the conveyance from George Bruce, Commissioner, to Wm. E. Pledger to prove the seizin of her late husband ; yet she insists, that the mortgage, executed by her husband at the same time to secure the payment of the purchase money, creates no lien on the land, because it was not legally attested, and that it cannot operate as an incumbrance or charge to abridge her right of dower. Such an objection would not have availed Wm. E. Pledger; and those claiming under him, quoad the subject matter, can be in no better situation; qui sentit commodum, sentire debet et onus. Proceedings were instituted after judgment, by suggestion in the Court of Common Pleas, to foreclose the mortgage; the land was sold by order of the Court, and Wm. E. Pledger’s right to redeem was barred. He was, therefore, estopped by this record from denying that the mortgage deed was ineffectual to create a lien for the want of attestation ; and the conclusion of an estoppel extends not only to the parties but to privies, embracing the lord by escheat, the tenant by the curtesy, the tenant in dower, and the incumbent of a benefice, who are bound by, and may take advantage of, estoppels. (Co. Litt. 352 b.) It is fit that judicial determinations should not be again drawn into controversy by those who were parties to the determination, or by privies in blood, in law, or by estate, otherwise there would never be an end of litigation.

If the demandant claim to be endowed of land by virtue of the seizin of her husband, under a title which is encumbered, she will be estopped from denying the incumbrance which would have concluded her husband in his lifetime. In Denn vs. Cornell, (3 Johns. Cases, 174,) a plaintiff, claiming as heir, was held to be estopped by the recital in the will of his ancestor, that he had conveyed the premises in question to a third person, and was not allowed to give parol evidence for the purpose of showing that such conveyance was but for life.

Where a plaintiff, ill a writ of entry against a mortgagee in possession, relied at the trial ou a title from the mortgagor and attempted to set aside the mortgage on the ground of usury, it was held that the defendant might give in evidence, as an estoppel, a former recovery against the mortgagor, in a suit wherein the same averment of usury had been unsuccessfully set up as a defence by the latter. (Adams vs. Barnes, 17 Mass. 370.)

William E. Pledger would have been estopped by Iiis deed and by the record from denying the validity of his mortgage, and the same estoppel will operate to conclude his widow from claiming the assignment of dower under her husband’s seizin, except in such surplus as shall remain after payment of the mortgage debt. A mere transitory seizin of the husband for the purpose of reconveying the land by way of mortgage will abridge the title of dower, and the demandant, in such a case, takes her dower cum onere. If there be any surplus, therefore, after satisfying thé mortgage security, she may be endowed of that.

A majority of this Court concurs in granting a new trial on the second ground of appeal, and that the writ do issue to ad-measure and ascertain her dower in any surplus which may remain after paying the mortgage incumbrance.

O’Neall, Wardlaw, Withers and Whitner, JJ., concurred.

Frost, J.

dissenting. Two points for the defendant were made at the trial; first, that a mortgage deed with one subscribing witness is a valid and effectual mortgage; and second, if it is not, that the demandant was estopped to deny the validity of the mortgage deed by the order for foreclosure against her husband. Both points were ruled against the defendant. Only the first is noticed in the report, because there was no appeal from the circuit decision on the second.

The judgment of the Court does not decide the first ground; but admitting that the mortgage deed is invalid to bar the demandant’s dower in the mortgaged land, decides that the demandant is estopped, by the order for foreclosure against her husband, from denying the validity of the mortgage deed.

The widow was no party to the proceeding. An estoppel binds only parties and their privies. The widow does not claim dower in privity from her husband, so as to be estopped of her claim by any act he rqay do or suffer. If she did, she would be estopped by his deed, conveying the land in fee, from claiming dower against the purchaser; and equally by a conveyance in fee on any condition, to pay money or any other condition. And, so, she must be estopped by a judgment against him from claiming dower against a purchaser under that judgment. Yet it is plain law that in neither of these cases is the widow estopped from demanding her dower. The principle on which the widow is barred of her dower in land mortgaged for the purchase money is, that the seizin of the husband is only instantaneous. If the mortgage deed is not executed in the presence of two witnesses, so as to be effectual to reconvey the .land to the seller, the seizin of the husband is complete and paramount.

Dower is the grant of the law; not the gift of the husband. The claim is paramount to the husband, not under him. It attaches, instantty, on the marriage, on all lands of which he is then seized, and upon all of which he may be seized at any time during the coverture. Of this right the widow cannot be barred by any act of her husband; not even by a devise to her of all his real and personal estate, and her acceptance and possession and enjoyment of the property devised, as was decided at the last term of this Court in Braxton vs. Freeman . Her consent is necessary to bar her dower in any land of which the husband was seized during the coverture. And this consent can be given only in the form and mode prescribed by law to-protect her against persuasion, intimidation, or force. The only mode of barring dower at law, heretofore known, is that prescribed by the Act of 1791 or 1731.

By this case a new mode of barring dower is introduced, viz : by a foreclosure of a mortgage against the husband. It is admitted by the judgment of the Court that the mortgage deed is invalid as a mortgage, and therefore does not divest the seizin of the husband. It is not valid against a subsequent purchaser from the husband. Against such a purchaser might the widow claim her dower ? If not, then a conveyance by the husband in fee, after an invalid or fictitious mortgage, presents a novel and convenient device to bar the widow of dower. But it is admitted that the demandant is not barred by the mortgage deed; which is invalid. She is barred by the order for foreclosure, operating as an estoppel. Is the estoppel to be confined to the case of a deed, invalid to bar the widow’s dower, because it is not subscribed by two attesting witnesses? Or must not an order for foreclosure equally operate, as an estoppel, in the case of every mortgage deed which for any other cause is invalid to bar the widow’s dower ? The order for foreclosure can only operate as an estoppel against the widow, on the ground of privity with her husband. Is that privity confined to the case of a mortgage deed with only one witness ? If it is not, then the widow is barred by privity, in every case of an order for foreclosure, though the mortgage foreclosed, for any other cause, may be invalid tobar her dower. As the husband, after a judgment for foreclosure, is estopped to aver fraud against the mortgage, by privity the widow must also be estopped. What distinction can be made between the privity of the wife to a judgment of foreclosure against her husband, and her privity in case of a judgment against her husband for the recovery of the land in air action of trespass to try title ? If none can be made, then, if the husband conveys, in fee, land subject to dower, and the purchaser, on that title, recovers the land against the husband, the widow is barred of her dower. And even more; as the widow is estopped in case of an invalid or fraudulent mortgage, so she must he estopped in case of an invalid or fraudulent conveyance in fee. If by an order for foreclosure, the widow is estopped from averring the invalidity of the mortgage deed because attested by only one witness, must she not be estopped from averring any other formal or substantial objection to the mortgage as a bar to her dower ? - Must she not be estopped to aver that the mortgage is no bar to her dower, because it was not given to secure the purchase money of the land, in which the dower is claimed ? In brief: is the privity and estoppel of the wife confined to the special case adjudged ? And if it is held to be so restricted, on what principle is it restricted?

The judgment of the Court manifests the danger of attempting to give equitable relief on common law principles. Against the imperfect execution of a deed, the parly injured may be relieved in a Court of Equity; but a common law Court can only enforce legal rights established in the manner prescribed by law. 
      
      
         Ante, p. 35.
     