Charles Harding, Adm'r, vs. Moses Springer, 14 Me. 407

The action was continued for advisement, and the opinion of the Court was, at a subsequent term, drawn up by Shepley J. On the seventh day of March, 1808, Joseph Torrey, and Azubah, his wife, acquired title to the premises demanded, by a deed conveying the same to them and their heirs in fee. Joseph Torrey died about the year 1816, and Azubah, the wife, in 1833. Husband and wife, being regarded as one person in law, are not in such cases seised of moieties, but of the entirety of the estate ; and the survivor takes the whole. 5 Mass. R. 521, Shaw v. Hearsey; 2 Kent’s Com. 132.

The widow, being sole owner of the estate, on the ninth day of February, 1830, took a deed of mortgage of the same from their son, with covenants of warranty ; and this suit is brought by her administrator, on that mortgage, to recover possession. The defendant claims by virtue of a levy of an execution upon the premises after the estate had descended in part to the same son, as one of her heirs at law. It is quite obvious, that the mother acquired nothing by the deed from her son.

But it is said, that the son was estopped by his deed to deny, that she did acquire title by it, and that so is the defendant, claiming under him as a privy in estate. And this would be so, if he had mortgaged with warranty to a stranger to the title, and had afterward acquired the title. 3 Pick. 51, Somes v. Skinner. The title which he acquired after his deed, was not from a third person, but from the same person to whom he had conveyed. Neither she nor her representative can deny, that her own title was good, because she had taken a conveyance from one having no title.

The ground upon which the grantee recovers upon his warranty, is, that he has lost the land by an elder and better title than that of the grantor, and is therefore entitled to other lands of like value. Co. Lit. 365, a. And if the warrantor has since acquired the title to the lands, his grantee shall hold those lands by way of estoppel, instead of allowing the grantor to recover them from him, and then render to him other lands of equal value. Co. Lit. 265, b.

In this case, the grantee, having before a perfect title, could never recover against her grantor other lands, because she could never prove the loss of the title to the land which the deed purpolled to convey. The foundation, upon which the doctrine of estoppels in such cases is built, foils, and the law of estoppels lias no place. The intestate acquired no title by the deed, and her representative can claim nothing by estoppel; and cannot, therefore, maintain this suit. Exceptions overruled, and nonsuit confirmed.