among other things, the said George and Mary B., his intended wife, conveyed and transferred all the title and interest of the said Mary B., in the said tract of three hundred acres, together with other property, to the said Mary Wormley her mother, upon certain trusts in the said settlement set forth and declared; and among other things, in trust for the use of the said 321 Mary B. and the children of the *said Mary B.; and in case the said Mary B. should depart this life without children, then to the use and interest of John C. Wormley and Hugh W. Wormley and their heirs."

a deed is not estopped in equity from aver-
ring against, or offering evidence to con-
trovert, a recital therein contrary to the
fact which has been introduced into the deed
by mistake of fact, and not through fraud
or deception on his part. In delivering his
opinion in this case, Lord Romilly, M. R.,
said: "There was simply a mistake of fact
common to all the parties; and under these
circumstances I am inclined to think there
would be no estoppel at law, and certainly
there is none in equity. Although an ex-
ecutor may execute a solemn deed saying:
"I have paid all the legacy duty on certain
bequests,'
"amounting to a sum named,
still, if he shows clearly that there is a
mistake in the amount, and there is no
fraud or deception in the case, I am of the
opinion that in equity he is entitled to re-
cover any further sum which he may have
been properly called on to pay." Brooke
v. Haynes, 6 Eq. Cases, L. R. 1868, p. 24.

In Stoughton v. Lynch, 2 John Ch. R. 209, it was held that a recital in a deed founded on a mistake and untrue in fact, will not be allowed to operate by way of estoppel to exclude the truth satisfactorily shown to

The claim of the plaintiffs (enforced by much ingenuity and learning of their able counsel) is this: that the defendants in possession hold the land in controversy under Castleman and McCormick, who were parties to an agreement and deed, both of which recited an ante-nuptial deed of settlement, by which the land sold to them was settled upon the mother of the plaintiffs, (Mary B. Carter), during her life, with remainder in fee to her children; and that being parties to that deed they took the land subject to the provisions of said marriage settlement, so recited; and that 323 they are therefore estopped, either from showing that no such marriage settlement was ever executed, or that the real and true marriage settlement was different from the one recited, and was never executed by Mary B. Carter.

the court.

*In the case before us it is easy to show that the unperfected deed of marriage settlement of the 3d of October 1812, is the deed of settlement referred to in the recitals contained in the deed of September 1813, conveying the land in controversy to Castleman and McCormick; and that this was the only attempt at a marriage settlement made by the parties.

The doctrine of estoppel, once tortured into a variety of absurd refinements, has, in a great measure, been reduced to consonancy But it is objected by one of the learned with common sense and justice. In the counsel for the appellants, that the deed language of Judge Gaston, in Jones v. produced, known as the Winchester deed, is Sassee, 1 Dev. & Bat. R. 464, "all estoppels, not properly proved in the cause. This whether estoppels at common law or equi-objection was not taken in the court below; table estoppels, are founded upon the great but the deed was received and acted upon, principles of morality and public policy. by the court and the parties, as a paper Their purpose is to prevent that which properly received in evidence. The objecdeals in duplicity and inconsistency, and tion to its reception in evidence is made for to establish some evidence as so conclusive the first time in this court. a test of truth, that it shall not be gainsaid. We are of opinion that the deed produced But as the effect of an estoppel may be to is sufficiently proved for the purposes for shut out the real truth by its artificial rep-which it is used. 1st: There is found upon resentative estoppels whether legal or equitable, are not to be extended by construction. No man is to be precluded from showing the truth of his claim or defence unless it be forbidden by a positive rule of law." 322 *There is certainly no positive rule of law growing out of the doctrine of estoppel, that would prevent either party to this deed of September 1813, or those claiming under either party, to offer in evidence the deed of marriage settlement referred to in that deed; and if it can be shown that the deed of settlement of October 3d is the deed referred to in the recitals, though by mistake inaccurately described, that deed may be offered in evidence. Whatever may be the effect at law of such a recital as the one relied upon, it is clear that in equity the party may show that the recital was a mistake, and set up the true deed intended to be referred to. In a recent English case decided in 1868, it was held that a party to

the records of the clerk's office of Frederick county a deed signed by George W. Carter and Mary Wormley, purporting to be a deed of marriage settlement between Geo. W. Carter, Mary B. Wormley and Mary Wormley, but signed only by George W. Carter and Mary Wormley. 2d: This deed was partly proven only; but it is conclusively shown that this deed is a copy of the original deed which was found among loose papers in the said clerk's office; and that the original is the same as that recorded, and is in the handwriting of Mr. Magill, and witnessed by Kercheval and Davidson, the witnesses to the recorded deed. The evidence of Gibbons, the clerk, of S. C. Moore, who found the original, and the affidavit of Sherrard, all of which was received without objection in the court below, are, we think, amply sufficient testimony upon which to found the introduction of the deed relied on. Regarding the deed as

The general description in the recitals, not purporting to be literal or accurate as if taken from a paper before the draughtsman at the time, showing many points of resemblance to the deed produced, and the failure to produce or prove the existence of another, creates of itself a strong presumption that this deed is the deed of settlement referred to and recited in the deed of September 13th, 1813. The appellants can only maintain their claim upon the theory that there was another and perfected deed of settlement. If there was, when was it executed? Before the Winchester deed? If so, why was it not put upon record? Why is it not referred to in the deed produced? Why, indeed, was the imperfect settlement made and put upon record at all, if before that time a perfect deed of settlement had already been *executed? It is clear from all the circumstances that no of marriage settlement was executed before the Winchester deed of October 3d, 1812.

326

deed

1st: This is the only deed produced. 2d: This deed answers the general description of the deed referred to in the recitals relied upon by the appellants. The recital in the deed to Castleman and McCormick refers to a deed of settlement made on the eve of the proposed marriage of Geo. W. Carter and Mary B. Wormley. The deed produced bears date the very day of the marriage. The parties recited as such are named as parties to the deed produced. The property is the same; the limitations if not technically the same, bear a close resemblance, and the ultimate remainders are the same. Both in the recitals and the deed produced, the property is settled upon Mrs. Carter during Was any deed of ante-nuptial settlement her life, with remainder in fee to her chil- executed after that? That there was, is dren; and if she died without issue, then almost a moral impossibility. The 3d day in remainder over to her brothers. It is of October 1812, was the very day of the martrue the deed produced was never signed by riage. The deed of settlement was written, Mrs. Carter; and it is therefore insisted that signed and witnessed in Winchester; a disthis is not the deed referred to in the re- tance of 16 miles from the intended bride's citals. The contract recites: "And whereas residence. It is proved that she was not in upon the proposed marriage of the said Winchester on that day, where the deed was George W. Carter and the said Mary B. written, signed by Geo. W. Carter and Wormley, all her property was by them con- Mary Wormley, and witnessed. That it veyed in strict marriage settlement," &c. was written and executed on the day it The deed recites a certain marriage con- purports to be, and that there was no time tract and settlement entered into between to execute another, is conclusively proved the same parties, "whereby the said George from the memorandum attached to the deed. and Mary B., his intended wife, conveyed That memorandum has reference to the and transferred all the title and interest conveyance upon the same trust declared in of the said Mary B. in the said tract of this deed, of a certain tract of land in the three hundred acres, with other property, county of Lancaster containing six hundred to the said Mary Wormley, her mother, acres. In the body of that memorandum is upon certain trusts," &c. It is said that the following statement: "It was intended the deed produced is not the deed to have been in the body of the deed, but 325 *referred to, because Mrs. Carter did by mistake not mentioned to the drawer, not execute it, and it could not be said, and the parties cannot delay until another as in the recitals, that she, with her hus- be drawn." band, conveyed the property. But the deed produced, known as the Winchester deed, upon its face purported to be a deed between Mary B. Wormley of the first part and the other parties; though she did not in fact sign it.

It may fairly be presumed, from the fact that the recitals in the deed and the recitals in the articles of agreement are not the same in words, if indeed they are of the same legal effect, and the use also of the words "in substance," "upon certain trusts," "among other things," that the draughtsman of the deed of the 13th of September 1813 did not have before him the deed of marriage settlement referred to in the recitals; but it is most probable that the supposed settlement was described in the absence of any writing or memorandum, but merely from the recollection of the terms of settlement by the particular members of the Wormley family present at that settlement, who alone could know any thing about it.

All these circumstances show conclusively, that no other deed of marriage settlement was or could have been executed on that day, before the marriage, which occurred on the evening of the same day. If there was, why is it not produced? Why was it not recorded? Why was the perfected deed of settlement suffered to remain unrecorded, while an imperfect settlement remained upon record?

327

Now it must be borne in mind that there is not in the record any proof, or shadow of proof, that any other pre-nuptial settlement was ever made, or was ever heard of, except as such is established by the recitals in certain deeds and articles of agreement referred to. The plaintiffs rest their whole case upon these recitals, and insist that they must be taken as true, and that the defendants are estopped from denying them. It has been already shown that the recitals must refer to the Winchester deed, and that there was no other; and that these being the same parties, and the

same property, and the same ultimate remainders, that the deed is sufficiently identified as the deed referred to; and that the only material discrepancy of description is the fact that the deed produced was not executed by Mrs. Carter, while the recitals declare (not in terms) that she executed the deed, but that she, with her husband, conveyed the property upon certain trusts. And we have seen that upon reason and authority, a recital in a deed founded on a mistake, and untrue in fact, will not be allowed to operate by way of estoppel to exclude the truth satisfactorily shown to the court.

But we come now to consider the question how far Castleman and McCormick, and those under whom they claim, are to be bound by the recitals referred to. They are grantees in a deed in which there are numerous recitals of facts within the knowledge of the grantors only. There is not a particle of proof in the record that Castleman or McCormick ever knew of the existence of any contract, or deed of settlement, except at the date of the papers to which they were parties; and which they derived from the grantors.

The general rule, as often stated, that parties and privies are estopped from denying the recitals in a deed, when taken in its broad and literal sense, is not altogether

accurate.

328

The rule properly understood and more accurately stated, is this: where it can be collected from the deed that the parties to it have agreed upon a certain admitted state of facts, as the basis on which they contract, the statement of these facts, though but in the way of recitals, shall estop the parties to aver the contrary. See Toney v. Raincock, 7 Com. B. 336; Stoughell v. Buck, 68 Eng. C. L. R. 786; Borst v. Corey, 16 Barb. R. 136.

not to be taken as the admission or affirmation of all the parties, but only of the grantors.

A mere recital does not conclude all the parties; there must be a direct affirmation so intended by all the parties, in order to bind all; and this intention may be gathered from the whole instrument.

329

not

It was held in Borst v. Corey (supra) that "mere recital never concludes a party: there must be a direct affirmation. A recital by A. and B. will not estop or furnish evidence against C., even though the latter be a *party to the instrument containing the recital; provided the recital does purport to be of any fact within his knowledge, but relates to transactions between the other parties." This case is one directly in point. The recital in the deed signed by Corey, as well as the other parties, was in reference (as in the case before us) to a marriage settlement entered into by the grantors. The recital was in these words: "Whereas, a marriage has lately been solemnized between said Martin and Rachel, and it having been agreed before said marriage between said parties thereto, that the sum of thirteen hundred dollars, the gross amount of the said Rachel's right of dower in the real estate of her said former husband, now deceased, shall be secured to her separate use, in the manner hereinafter mentioned," &c. Corey signed this deed; but it was held he was not estopped for showing that there was no valid ante-nuptial settlement. The court says: "This recital does not purport to be of any fact within the knowledge of the said Corey, nor does he affirm the truth of it in any respect. It is language applicable only to the other two parties, and is probably obligatory on them. So far from being an estoppel, the recital is not even evidence, as against Corey, of the fact therein recited. There being no evidence of an anteIn Stoughell v. Buck, it was held, that nuptial agreement, Corey had the right to "where a recital is intended to be a state- apply the funds to the payment of Borst's ment which all the parties to a deed have honest debts, rather than apply them to a mutually admitted to be true, it is an estop-bond and warrant of attorney given in trust pel upon all. But where it is intended to be the statement of one party only, the estoppel is confined to that party; and the intention is to be gathered from construing the instrument." Looking to the deed to Castleman and McCormick, and in the absence of any proof, it is evident, upon a fair construction of the deed itself, that the recital of the existence of a marriage settlement between the grantors, was a recital of facts within the knowledge of the grantors, and in which they alone had an interest. And so, too, the recital that it was the purpose of the parties to annul and render void the ante-nuptial settlement and substitute another, conveying in lieu thereof other property upon the same trusts, referred to a matter in which the grantors alone were interested, and to which the grantees were not and could not be parties, and in which they had no interest. This is the fair construction to be gathered from the whole deed; and the recital relied upon is

for his wife."

The principles settled in this case, and others above referred to, apply with peculiar force to the case before us. The recital in this case was of a fact of which the grantees had no knowledge, and in which they had no interest; but of facts in which the grantors were alone interested and peculiarly within their knowledge. Upon a true

330

construction of the recitals in the instruments relied upon, we are of opinion that there was no such solemn admission or distinct affirmation by the grantors as will operate as an estoppel upon them.

And we are further of opinion upon the evidence, that there never was but one deed of marriage settlement, and that was the imperfect deed not executed by Mrs. Carter, known in the record as the Winchester deed; and that that was the deed referred to in the recitals, though by mistake described as a deed by which Mrs. Carter, with her

A. Effect in Same Proceedings.

B. Effect on Appeal.

husband, conveyed the land in controversy; | V. Inconsistent Positions.
when, in point of fact, she had never signed
it. This mistake of recital may be shown;
and the parties, most certainly the grantees,
are not precluded from showing the true
deed, and only deed of settlement.

It would be carrying the doctrine of estoppel to an absurd extent, and would be a monstrous perversion of justice, to hold that a court of equity is bound to set up a false and fictitious deed, merely because it had been inserted in the recitals of a deed, against the real and true deed, proven to be the only one in existence; and that, too, against purchasers for full value, who have been in possession of the property for upwards of fifty years.

We are not willing to carry the doctrine of estoppel, which is founded upon the principles of morality and public policy, to that extent. The decree must be affirmed.

Decree affirmed.

ESTOPPEL.

I. Definition and General Nature.

II. Estoppel by Record.

A. In General.

B. Estoppel by Judgments or Decrees.

1. As between Parties and Privies.

a. In General.

b. Second Suit on Same Claim-Res Judicata. 2. As Affecting Strangers.

C. Admissibility of Parol Evidence.

III. Estoppel by Deed.

A. Grounds of Estoppel in General.

1. Recitals in Deeds.

2. Recitals in Mortgages.

3. Recitals in Bonds.

4. Covenants.

B. Effect of Invalid Deeds.

C. Estoppel against Estoppel.

D. Persons Affected by Estoppel.
E. Operation as to After-Acquired Title.

IV. Estoppel in Pais.

A. General Nature and Essentials.

B. Misrepresentation or Concealment of Facts. 1. In General.

2. Acquiescence, Silence and Negligence. a. In General.

b. Permitting Sale of Property.

c. Permitting Improvements or Expenditures. d. Assent to or Ratification of Acts of Others. e. Assent to or Participation in Judicial Proceedings.

f. Acceptance of Benefits.

C. Effect in Another Suit.

I. DEFINITION AND GENERAL NATURE. "An estoppel is that which prevents one from shewing the truth in defence of his rights; call it by what name we will, it is that which shuts out the evidence of the actual truth of the case. For this reason, estoppels have ever been held to be 'repug nant to reason, and odius in law.' They are tolerated in a very few cases, and only from absolute necessity. Even in these cases, judges have for ages been astute to unshackle the estopped by every means in their power." WHITE, J., in Baker v. Preston, Gilmer 300.

All estoppels, whether estoppels at common law,

or equitable estoppels, are founded upon the great principles of morality and public policy. Their purpose is to prevent that which deals in duplicity and inconsistency, and to establish some evidence as so conclusive a test of truth that it shall not be gainsaid. But estoppels, whether legal or equitable, are not to be extended by construction. Bower v. McCormick, 23 Gratt. 310.

It is of the essence of an estoppel that the act relied upon as such should have been injurious and prejudicial to him who relies upon it as an estoppel. Smith v. Powell, 98 Va. 431, 36 S. E. Rep. 522.

Must Be Certain.-"According to Coke, an estoppel must be 'certain to every intent'; and if upon the face of a record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence." Chrisman v. Harman, 29 Gratt. 494. See also, Bolling v. Petersburg, 3 Rand. 563; Taylor v. Cussen, 90 Va. 40, 17 S. E. Rep. 721.

"The doctrine of estoppel is never applied, in any of its branches, upon an uncertain and speculative state of facts." Bargamin v. Clarke, 20 Gratt. 544: Repass v. Richmond (decided June 27, 1901), 99 Va. —.

Must Be Reciprocal.-"Estoppel must be reciprocal and mutual, and is founded upon the idea that the acts of the party estopped must result in injury to the other party, and generally that it would be a fraud if the right asserted be maintained." Montague v. Massey, 76 Va. 307. See also, Bolling v. Petersburg, 3 Rand. 563.

Does Not Apply between State and Citizen.-No question of estoppel can arise between a citizen and the state owing him money for services rendered. Montague v. Massey, 76 Va. 307.

The

The doctrine of estoppel is not applicable to the commonwealth in a criminal prosecution. maxim, "No one shall be twice put in jeopardy for the same offence," rests upon technical notions of jeopardy, and not upon the principle of res judicata.

g. Where Surety in Bond Estopped to Set Up But the doctrine of estoppel has been held applicaDefence.

3. The Intent or Design.

4. Knowledge of Facts or Title.

5. Reliance upon Act or Representation.

C. Acceptance of Conveyance or Possession.

D. Estoppel in Insurance Contracts.

E. Estoppel in Contracts of Agency.

F. Estoppel in Partnership Contracts.

ble to the accused. Justice v. Com., 81 Va. 209.

II. ESTOPPEL BY RECORD.

A. In General.-The record of a court imparts such absolute verity that, as a general rule, no person against whom it is producible is allowed in collateral proceedings to aver or prove as error in fact a matter contrary thereto. 11 Am. & Eng. Enc. Law

G. Estoppel in Contracts of Municipal Corpora- (2d Ed.) 389. As to the conclusiveness of judgments tions.

in general, see Cox v. Thomas, 9 Gratt. 312; Ballard

H. Estoppel in Contracts of Private Corporations. v. Thomas, 19 Gratt. 14; Cline v. Catron, 2 Gratt. I. Pleading and Evidence. 378; Lancaster v. Wilson, 27 Gratt. 624: Withers

v. Fuller, 30 Gratt. 547; Nulton V. Isaacs, 30 | involved the consideration and determination of Gratt. 726; Gray v. Stuart, 33 Gratt. 351; Neale the matter. Withers v. Sims, 80 Va. 659.

But it is not necessary to the conclusiveness of the former judgment that the issue should have been taken upon the precise point which it is pro-and growing upon it. The case as to the crops is the posed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. Every point which has been specifically decided, or by necessary implication an issue which must have been decided, in order to support the judgment or decree, is concluded. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the ground-work upon which it must have been founded. It is accordable to reason back from the judgment to the basis upon which it rests, upon the obvious principle that when a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. Diehl v. Marchant, 87 Va. 447, 12 S. E Rep. 803.

The general rule with respect to the conclusiveness of a verdict and judgment in a former suit-Where the matters involved in a second action between the same parties, when the judgment is used in pleading as an estoppel, or is relied upon as evidence, is substantially this: that, to render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried or determined, that is, that the verdict could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence consistent with the record, that the verdict and judgment necessarily