by the lessee, it was competent for him to produce the demising part of the indenture, for the purpose of shewing it had only been executed by two of the lessors, and that a nonsuit was properly directed, because the declaration alleged that four persons demised by indenture, which imported that they demised by an operative indenture, sealed, and delivered by all the lessors, and that the word "indenture" comprehended all the parts constituting the entire deed. In an action for breach of covenant upon a lease between the original parties, the lessee is estopped by his deed from controverting the validity of the lease, and will be bound by the terms of his express covenant; as where a lease was granted for lives to commence at a future day, with covenant for payment of the reserved rent, it was determined by the House of Lords(v), that although the lease was void by the common law, being a freehold made to commence in futuro, yet the covenant was binding, for otherwise the tenant might enjoy the land without paying any rent: so where a lessee enjoyed demised premises under a lease, during the time in which breaches(w) of covenant were committed, Bayley, Justice, said, that even if the lease were void, he should have been much disposed to consider that the lessee was liable on his covenant, as an independent covenant. However, where tenant in tail male by indenture demised for ninety-nine years, and covenanted he had good right to demise, and that the lessee and his assigns should quietly enjoy during the term: in the year 1792 the lessee assigned to John Bennett, who in the year 1801 assigned to Christopher Andrew, and upon the death of the lessor without issue in 1794, the estate tail ceased and determined before the expiration of the term. It was decided(x) that Andrew, who was assignee of the lessee's interest, could not maintain an action for breach of the covenant for quiet enjoyment against the executors of the lessor, because Bennett had no estate in the premises when he assigned to Andrew, as the lease became absolutely void on the lessor's death without heirs male, and the assignment could have no operation, as a right of action could not be made the subject of legal transfer, and that there was no estoppel binding the personal representatives of the lessor, be 1418; Doidge v. Bowers, 2 Mees. & W. East, 350; Cook v. Loxley, 2 T. R. 749. (w) Hodson v. Sharpe, 10 East, 354, by Bayley, J. (x) Andrew v. Pearce, 1 New Rep. 158; and see Noke v. Awder, Cro. Eliz. 436; Moor, 419. cause an immediate interest had passed by the lease for so many years as the lessor lived. 13. A party is not estopped by words introduced for the purpose of describing the parcels of land included in an indenture of lease. If a party by indenture demise lands(y), describing some to be arable, some meadow, and some pasture, and especially "two closes known by the name of Lane's meadows," and covenant to pay an increased rent of five pounds for every acre of meadow which shall be ploughed during the continuance of the lease. In an action for breach of covenant in ploughing "Lane's meadows," the lessee pleaded that the closes known by that name, were time out of mind arable lands, and traversed their being meadow lands at the time of the demise; and upon demurrer it was objected that the lessee was estopped from averring that the land called "meadow" by the lease was of a different quality; but the Court held that the covenant was only against ploughing what was really meadow, and that the name in the lease was only descriptive of the land by reputation, and no direct allegation of its being meadow, and that it would be contrary to the intent of the parties to construe such words to work an estoppel. So where premises were conveyed under the description of "all that messuage and all such plot or part as is of the nature or tenure of freehold," it was ruled(z) that the grantee was not estopped from shewing the real nature of the estate by proving it to be leasehold. 14. Where a valid indenture made between private individuals contains a special(a) recital of an act which is perfect and not executory, and no fraud is alleged, and neither the statute law nor public policy is contravened, the parties are estopped from controverting their own solemn acknowledgement, under hand and seal, of the truth of such statement or assertion. An underlessee having covenanted to perform all the covenants on the tenant's part in the original lease contained, in an action against the underlessee by his immediate (b) lessor for nonpayment of the rent reserved by the original lease, the underlessee was held to be estopped, (y) Skipwith v. Green, 1 Stra. 610; 8 Mod. 311, S. C. (z) Gaunt v. Wainman, 3 Bing. N. C. 69; 3 Scott, 413. (a) Carr v. Huntingfield, Year Book, 49 Edw. III. 14, B. pl. 8; Jewell's case, 1 Ro. Rep. 408; Strowd v. Willis, Cro. Eliz. 362; Shelley v. Wright, Willes, 9; Hosier v. Searle, 2 Bos. & P. 299; Doughty v. Neal, 1 Saund. 215, note 2; (b) Atkinson v. Coatsworth, 8 Mod. 33; 1 Stra. 512; Ford v. Grey, 1 Salk. 285; 6 Mod. 44; Bringloe v. Goodson, 5 Bing. N. C. 738; 8 Scott, 71, S. C. by the recital of the original lease in the underlease, from denying the execution of the original lease by the first lessee. So where a bond was passed for £1000, with a condition annexed, reciting an indenture of lease, by which certain premises were demised to the defendant, Tremeere, at a yearly rent of £170, and stipulating for its payment and for the performance of all the covenants contained in the lease on the tenant's part to be performed: in an action of debt on the bond for nonpayment of the rent of £170, it appeared that the rent(c) actually reserved by the lease itself was only £140, and the King's Bench reluctantly decided on demurrer, that the obligor was estopped from shewing that the rent reserved by the lease was really £140, because it was, in effect, the same as saying there was no lease at £170, as recited in the condition of the bond. A party to a deed, however, is not estopped(d) in an action brought by another party, not founded on, and wholly collateral to the instrument, from disputing facts admitted by the deed, and evidence is admissible to shew that such statement was inconsiderately made. 15. Although parties are estopped by the recital of a particular fact under hand and seal, a general recital will not have any such effect, because an estoppel should be certain(e) to every intent, free from ambiguity, and is not to be raised merely by argument or inference, but in order to conclude the parties must amount to a precise and direct affirmation. By deed, after reciting that the defendant Corke had agreed to pay the plaintiff, Thomas Lampon, £40 for giving up possession of certain premises, he the said Thomas Lampon, in consideration of the sum of £40, being then so paid to him as thereinbefore mentioned(f), the receipt whereof was thereby acknowledged, released the defendant Corke from all demands: a receipt for the consideration was indorsed on the deed, and in an action by Lampon for recovery of the amount, the defendant relied on the estoppel in evidence. On giving judgement in this case it was observed, that the receipt endorsed, not being under seal, was merely evidence capable of being rebutted, and with respect to the deed, if payment of the consideration had been absolutely stated, unaccompanied by words of refe (c) Lainson v. Tremeere, 1 Ad. & Ell. 792; 3 Nev. & M. 603; Bowman v. Taylor, 2 Ad. & Ell. 290; 4 Nev. & M. 264, S. C. (d) Carpenter v. Buller, 8 Mees. & W. 209. (e) Co. Litt. 352, A.; Com. Dig. Estoppel, E. 4; Shelley v. Wright, Willes, 9. (f) Lampon v. Corke, 5 B. & Ald. 606; 1 D. & Rv. 211, S. C.; Bottrell v. Summers, 2 Yo. & J. 407; Baker v. Dewey, 1 B. & Ald. 704; Rowntree v. Jacob, 2 Taunt. 141; Taunton v. Pepler, 6 Madd. 166. rence to the prior part of the instrument, the acknowledgment under seal would have been an estoppel; but as the prior part of the deed, which was referred to, did not allege actual payment, and the words were ambiguous, no estoppel was created so as to exclude proof of the transaction, and the plaintiff was entitled to recover. In the contemplation of a Court of Equity, however, neither an acknowledgment of payment of the consideration in the body of a deed(g), nor the receipt endorsed on it, afford conclusive evidence of the fact, and the vendor or other party interested is at liberty to prove that the debt has not been satisfied. Thomas Jarvis, being entitled to an equitable fee, and being in actual possession, by indented deeds of lease and release, after reciting he was legally or equitably entitled, conveyed the premises by way of mortgage, and thereby covenanted he was lawfully or equitably seised in his demesne as of fee. Thomas Jarvis, having afterwards procured the legal estate in fee, then conveyed the same premises in mortgage to Henry Bucknell, who had no notice of the prior mortgage, and it was decided(h) that the recital in the first mortgage, not containing any certain and precise averment of any seisin in Thomas Jarvis, did not operate by estoppel, so as to prevent the second mortgagee from setting up the legal estate which he had subsequently acquired. 16. The parties to an indenture cannot, by any recital or declaration of their intention introduced into it, defeat or control the legal operation of the instrument; and where any interest passes by the deed, the parties are not estopped from insisting upon its legal effect. A tenant holding lands for three lives, having by indenture demised the premises for the same three lives, reserving a rent payable to the grantor(i), and containing a clause of re-entry, with the usual covenants between landlord and tenant, it was contended that the grantee was estopped from insisting that the deed operated as an assignment and not as an underlease, and it was ultimately decided(j) that any deed transferring the grantor's whole estate, without leaving any reversion, whatever might be its frame, must be construed as an assignment according to its legal effect, and not as an underlease; and even though the deed were to declare expressly that the grantor demised the premises as (g) Coppin v. Coppin, 2 P. Wms. 291; Hughes v. Kearney, 1 Sch. & Lef. 132; Grant v. Mills, 2 Ves. & B. 306. (h) Right dem. Jefferys v. Bucknell, 2 B. & Adol. 278. (i) Pluck v. Digges, 2 Huds. & Br. 1. (j) Pluck v. Digges, 5 Bligh. Parl. Ca. 31; 2 Dow. & Cl. 180; Thorn . Woolcombe, 3 B. & Adol. 586; Par,menter v. Webber, 8 Taunt. 593; 2 Moore, 656; but see Baker v. Gostling, 1 Bing. N. C. 19; 4 M. & Scott, 539, S. C. landlord, and that the grantee accepted the demise as tenant, neither party could be estopped from insisting on the legal operation of the instrument. 17. If an indenture of lease contain recitals, disclosing a true state of facts(k), from which it appears that the lessor had no estate in or valid title to the premises at the time of the demise, the lessee is not estopped from shewing that the lessor, according to the deed itself, had no title, and a subsequent(1) purchase of the estate by the lessor will not enure by way of estoppel or confirmation of the demise. 18. If the title of a party depend on an estoppel, of which advantage can be taken in pleading, and instead of relying on it, issue(m) shall be joined on a fact, the estoppel will be considered as waived, for in such case the jury are bound to find whether the plaintiff is entitled to recover on the merits, and not whether an estoppel has been created, by which inquiry is precluded. 19. Estoppels in païs or by matter of fact, arise from the acceptance of an interest in land, or by receipt or payment of rent, or by other acknowledgment of title. The rule of law is clear, that where a person, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces(n) him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. A lease for years by indenture creates an estoppel between the parties, which continues as long as the indenture remains in force; and on the expiration(o) of the term the tenant is at liberty to shew that his lessor's estate in the premises had determined, and in that event the tenant is not bound to restore the possession to the party whose interest in the lands had ceased. It was formerly considered that an estoppel arising by acceptance of possession from a lessor, without deed, continued not only during the demise, but until the possession(p) was restored to the (k) Doe dem. Barber v. Lawrence, 4 Taunt. 23; Doe dem. Barker v. Goldsmith, 2 Cro. & Jerv. 674; 2 Tyrw. 710, S. C.; Frontin v. Small, 2 Lord Raym. 1418; 1 Stra. 705; Ludford v. Barber, 1 T. R. 90; 8 Jarm. Conv. 55. (1) Hermitage v. Tomkins, 1 Lord Raym. 729; Partington v. Woodcock, 5 Nev. & M. 675, note B.; Co. Litt. 352. (m) Trevivan v. Lawrence, 1 Salk. 277; Vooght v. Winch, 2 B. & Ald. 662; Duggan v. O'Connor, 1 Huds. & Br. 459-463; Bowman v. Rostrow, 2 Ad. & son person from Ell. 295; 4 Nev. & M. 551, S. C.; Wilv. Butler, 4 Bing. N. C. 748; 6 Scott, 540, S. C.; and see Veale v. Warner, 1 Saund. 325, A., and the notes. (n) Pickard v. Sears, 2 Nev. & P. 488; 6 Ad. & Ell. 474, S. C. (0) Doe dem. Bullen v. Mills, 4 Nev. & M. 29, note B.; Doe dem. Jackson v. Ramsbotham, 3 M. & Selw. 516; Doe dem. Strode v. Seaton, Tyrw. & Gr. 19, 2 Cro. M. & Rosc. 768. (p) Balls v. Westwood, 2 Campb. N. P. Č. 11. |