<p>The demandant claimed dower in certain real estate in Mercer, of which the late husband of the demandant, now deceased, was alleged in her writ to have been seised during the coverture. The plea was, that the husband was not seised during the covert-ure of such an estate, as would entitle the demandant to dower therein. In support of the action the demandant introduced an agreement for the sale and purchase of the land, signed by the demandant and tenant, dated August 4, 1832, in which are found these words: “ the reversion of the widow’s dower therein, subject to and expressly reserving her, the said Mary’s right of dower in the premises.” Also, a deed from the demandant to the tenant, dated August 6, 1832, as executrix of the will of her late husband, and conveying all the testator’s “ right, title and interest in the premises, if any,” c< reserving and excepting her right of dower in said real estate.” The demandant also gave in evidence the copy of a license from the Judge of Probate, to sell said estate. It was admitted that the demandant made a seasonable demand of her dower of the tenant. The tenant proved, that on the 10th of May, 1804, the husband conveyed the premises wherein dower is now demanded to one Curtis, taking back a mortgage to secure the consideration. It appeared that Curtis took possession of the land, being then wild and uncultivated, and while thus in possession, paid to the husband the sum for which the land was mortgaged. Subsequently to this the coverture took place. It was contended by the demandant, that upon this evidence the tenant was estopped to deny the seisin of the husband of an estate whereof the demandant was entitled to be endowed. A verdict was taken for the demandant, subject to the opinion of the Court. If in their opinion the tenant is thus estopped, judgment is to be rendered thereon ; otherwise the verdict is to be set aside, and the demandant become nonsuit.</p> <p>One point only is presented. Is the tenant estopped to deny the seisin of the demandant’s husband.</p> <p>The case shows, that the husband of the demandant had not the slightest pretence of title during the coverture. Long before the marriage, the estate had been conveyed, and a mortgage taken back; but the mortgage money had all been paid, and the mortgagee never entered under his mortgage ; nor was he in any way in possession. If she had been married before the conveyance to Curtis, still she would not have been entitled to dower, because it was then wild and uncultivated land.</p> <p>The doctrine of estoppel is not to be favoured, but carefully to be restricted. Leicester v. Rehoboth, 4 Mass. R. 180; Bridge-water v. Dartmouth, ibid. 273 ; 5 Dane, 380.</p> <p>Shall the demandant by her own act, as executrix, and because the tenant has received her writing and deed, have dower in land, wherein her husband never had the least interest during the coverture ?</p> <p>Nothing passed by that deed to the tenant, because the testator had before sold to Curtis; nor did he, or could he, take possession under it. There were no covenants of warranty in the deed giving him any remedy for the incumbrance of dower or for any defect of title. The deed was a mere naked release, and the description of the property was such, that if there had been covenants, they would have been useless, because, nothing but the testator’s right, if any, was conveyed. By such deed no relations would.arise between the parties, by which one is placed in subordination to the other. 4 Greenl. 214 ; 7 Wheat. 547. The principle on which estoppels are allowed is to avoid circuity of action ; and where there is no circuity, there is no estoppel. 4 Dane, 494; 1 Church’s Dig. 385. By allowing the estop-pel in' this case it will promote suits, for the demandant cannot hold against. Curtis’ claim. Allen v. Sayward, 5 Greenl. 227. One in possession has a right to purchase claims to secure his title without subjecting himself to any liabilities, 4 Greenl. 219.</p> <p>In Allen v. Sayward, 5 Greenl. 227, it was held, that one giving a release, with covenants of seisin, might set up an after acquired paramount title in himself. In this case she sells, as executrix, and reserves to the widow. If she had any right to dower, the executrix could not sell it. Anything reserved in a deed must be from what would otherwise have passed by the deed. For that reason it cannot operate as an estoppel. Nothing but his interest would pass, if any, by the deed, for nothing more was described, as conveyed. But dower is not reserved, but the mere right to dower, which in this case was nothing. '■</p> <p>The tenant discloses no title, but under the husband of the de-mandant, and the case is to be considered, as it would have stood, if the husband had conveyed before his death, instead of his executrix afterwards. If the tenant had shewn a paramount title from another source, perhaps the case might have been different.</p> <p>The tenant is estopped by the agreement to purchase, in which dower is reserved. It is said, that the words, if any, shew doubt of title in the demandant’s husband. But when he takes a title under it by which he holds the land, for he shews no other, he cannot dispute the title of the testator. The reservation in the agreement shows, that the tenant so understood the title. Johns v. Church, 12 Pide, 557 ; Willard v. Nason, 5 Mass. R. 240.</p> <p>But the tenant is conclusively estopped by the deed. 2 Greenl. 226 ; 6 Greenl. 243 ; 1 Fair/. 383 ; 6 Johns. R. 290; 10 Johns. R. 292; 17 Mass. R. 162. As it respects estoppel, there is no distinction between deeds of warranty and of quitclaim. The tenant is estopped to deny the seisin of the husband by accepting the deed equally, whether the deed be warranty, or quitclaim. Hains v. Gardner, 1 Fairf. 383; Fairbanks v. Williamson, 7 Greenl. 96.</p>
