Jackson, exdem. E. Stevens, against T. Stevens.
banderesensed jure uxoris, by deed duly executed and acknowledge ed, convey land to a third' reconveys "'to the husband toXe^andln his own right. cutedbya/eme binding upon kno’wledged, quentaclnswnouXteback thetheacknow-f thfaTd. of So, vvhere a husband and wife execute a deed for land of the wife, does not then andXhi^fusafterwarfs'excute another deed of the same land, knowledge^ and the wife’ ledges3 the * title tothe'iand is vested in the grantee in the second deed. Whereaperr
son seised of three undivided fourth parts of a farm, conveys one equal moiety of the farm, describing it by metes and bounds, together with all the estate, right, title, §c which he, the grantor, hath to the above described premises; these general words are not lo be construed as extending the grant beyond the one moiety of the premises.
Where a person has conveyed land, he will not be permitted afterwards to claim it, in opposition to b«s own deed, although the deed may not amount to an estoppel.
When land is conveyed to a man and his wife, they take neither as joint tenants, nor as tenants in common; but being one person in law, they are both seised of the entirety; neither of them can dispose of any part without the assent of the other; and the whole goes to the survivor, on the death of cither; the statute (Osess, ch. 12. s. 6. 1 N. R. L. 52.) does not apply to such a case.
THIS was an action of ejectment, for the undivided half 0f a farm in Dover, in Dutchess county, containing about 174 acres, and which is called the Hunt farm. The cause was tried before Mr. J. Van Ness, at the Dutchess circuit, . A ^ ^ « ID. &pr%l^ 1818.
The premises in question formerly belonged to Lewis Hunt, who died about the year 1777. The will of L. Hunt, by which he devised one third part of his estate to his wife for Jjfe and the remainder of all his estate, real and personal, to his daughters, Susannah Briggs, and Mary Stevens, in fee, was read in evidence on the part of the plaintiff; and also, a deed from Elkanah Briggs, and Susannah Briggs, his wife, the devisee óf L. Hunt, dated the 4th of April, 1814, to the plaintiff’s lessor in fee, and duly acknowledged, on the same day, by both the grantors, before a Master in Chancery.
The defendant produced in evidence the following deeds : 1 °
e j. A quit claim deed from Samuel Stevens, and Marti ¡ rT ; Stevens, the other devisee oi Hunt, his wiie, dated the 19th of February, 1784, to Samuel Shelden, for all the lands devised to Mary Stevens, by her father L. Hunt, which was duly acknowledged by the grantors, on the 25th of February, «q a * *
c¿ nuit-claim deed for the same premises, from Samuel Shelden to Samuel Stevens, dated the 21st of February, If 84, and acknowledged on the 25th of February, 1784.
3. A deed with warranty from Elkanah Briggs, and Susannah Briggs, to Samuel Stevens, dated the 24th of Decern*111
her, 1795, of the undivided half of the Hunt farm, which was acknowledged by Susannah Briggs, the wife, on the 20th of October, 1814. 4. A quit-claim deed from Justus Blanchard, and Mary his wife, formerly Mary Stevens, who married Blanchard after the death of her former husband, Samuel Stevens, to Philo Buggies, for the undivided half of the Hunt farm, dated the 25th of April, 1812, and duly acknowledged.
5. A quit-claim deed from Philo Buggies and wife, to Justus Blanchard, and Mary his wife, for the same piece of land, dated the 25th of April, 1812, and duly acknowledged.
6. A deed from Ebenezer Stevens, the lessor of the plaintiff, and who was the devisee of Samuel Stevens and wife, to Jus~ tus Blanchard, dated the 15th of July, 1813, of the one equal undivided half of a certain farm, or tract of land, (being the Hunt farm before mentioned,) situate, &c. bounded, &c. together with “ all the estate, right, title, interest, claim, and demand whatsoever, which he, the said E. Stevens, hath to the above described premises, either in law or equity, from the last will and testament of Samuel Stevens, late of the said town of Dover, deceased,” &c. with covenant of warranty.
7. A deed from Justus Blanchard, and Mary his wife, (Mary formerly the wife of Samuel Stevens, who married Blanchard, being since dead, and Blanchard having married another woman, whose name was Mary) to Thomas Stevens, the defendant, dated the 21st of April, 1814, for the whole of the Hunt farm.
, The plaintiff produced in evidence the will of Samuel Stevens, dated the 25th of November, 1809, by which he de-^ vised one half of the Hunt farm to his wife Mary, in fee, and the other half to the lessor of the plaintiff, in fee.
Elkanah Briggs died before the commencement of this suit, and after the death of Samuel Stevens.
A verdict was taken for the plaintiff, subject to the opinion of the Court, on a case. Vide S. C. vol. 13. p. 316.
P. Buggies, for the plaintiff. As the deed from E. Briggs and his wife, of the 24th of December, 1795, was not ac*112Icnowledged by her, according to the statute, no estate passed from her to the grantee in that deed; and she had a right to make the subsequent conveyance, in 1814, to E. Stevens.
There could be no adverse possession, for though the deed, for want of the wife’s acknowledgment, did not convey her right, yet it transferred all the estate which B. had, which was an estate for life. Where there is an outstanding particular estate, there can be no right of entry; and so the statute of limitations can have no operation. (Jackson v. Schoonmaker, 4 Johns. Rep. 390. Jackson v. Sears; 10 Johns. Rep. 435.)
The lessor under the devise of Samuel Stevens, took one fourth of the farm ; and the deed of E. and S. Briggs, the lessor, conveyed to him the moiety, so that the lessor was seised of three-fourths of the farm ; and Mary S., who afterwards conveyed, with her husband, to P. R., was entitled to. one fourth.
The deed of the lessor of the plaintiff to Justus Blanchard, in 1813, conveys only that portion of the farm which he derived from the will of Samuel Stevens, or an undivided moiety; and the lessor now claims all that part which was not conveyed by that deed.
By the conveyance by J. Blanchard and his wife, to P. Ruggles, and his reconveyance to them, they became seised as tenants in common; for the statute, (1 N. R. L. 52.9th sess. ch. 12. s. 6.) declares thatno estate in joint tenancy can be held under any grant, devise, or conveyance, unless it is expressly declared in the conveyance, to pass in joint tenancy, and not in tenancy of common, J. B. then could not take the whole by survivorship. The deed from the lessor to J. B. cannot operate as an estoppel. (Co. Lilt. 45. a. 47. b. 4 Corny ris Dig. Estoppel, (E. 8.) Cro. Eliz. 700.)
The lessor of the plaintiff, then, is entitled to recover, at least three-eighths.
*118form of law, at which day, to wit, on the said third Monday Qf September, then next, being the 19th day of September, in the year 1814, the said S. Fleet, returned that Swann was not found in his bailiwick.
*112
J. Tallmadge, contra, contended, that the deed from E. Stevens to Justus Blanchard, conveyed two distinct interests ; an undivided moiety of the farm, and, also, all the *113estate and interest which he derived under the will of Samud S.
Justus B. having survived his wife, became entitled, by virtue of that survivorship, to the whole of the estate derived to her from the will of Samuel S.
It is the settled rule of law, that if an estate in fee be conveyed to a man and his wife, they are neither joint tenants, nor tenants in common, for both are seised of an entirety ; for the husband and wife being considered as one person in law, they cannot take the estate by moieties ; so that neither husband nor wife can dispose of a part without the assent of the other; and the whole remains to the survivor, (2 Bl. Com. 182. Co. Lift. 107. Litt. s. 291. s. 665. 3 Bac. Abr. 673. JointTenants. (B.) 2 Cruise. Joint Tenants, ch. 1. s. 35. 38.) The statute relative to joint tenants, does not apply to the case ; for it is not a case of joint tenancy. The common law doctrine must prevail. As to the doctrine of estoppel, he cited 10 Vin. Abr. Estoppel, (2.) 8 Mod. 311.
Oakley, in reply, said, that the statute was intended to alter the common law, and the whole doctrine as to survivorship, in cases of joint tenancy. It ought, therefore, to have full operation, and should control the common law, in this case, as in every other of an estate conveyed to two persons, without express words, declaring it to be an estate in joint tenancy, and not an estate in common.
Spencer, J. delivered the opinion of the Court.
Samuel Stevens acquired a complete title, by his and his wife’s deed to Sheldon and the reconveyance back from him to Samuel Stevens, to one half of the farm. He undoubtedly supposed he had a title to the whole farm, by his purchase in 1795, from Elkanah Briggs and his wife of their moiety; but as that deed was not acknowledged by Mrs. Briggs, until the 20th of October, 1814, and on the 4th of April, 1814, Briggs and his wife, by their deed, duly ackowledged, conveyed to Ebenezer Stevent the whole farm, he acquired no title to that moiety. It is contended, however, that the acknowledgment of the deed by Mrs. Briggs, in October 1814, re*114lated back to the date of the deed, and rendered it valid from the beginning. But although she signed and sealed the instrument, it was not her deed, until she had acknowledged it, according to the statute. It could not bind helas a contract; she was not confirming an inchoate and imperfect agreement. The deed took its efficacy from the period of her acknowledgment, -and there was nothing prior to which it could relate.
Mary, the widow of Samuel Stevens, took as ample an estate under the will of her husband, as Ebenezer ; and the testator, in fact, owning but one half, they must be deemed to take that half between them, as devisees. Thus, then, Ebenezer Stevens acquired a right under the will of Samuel. Stevens, and under the deed from Elkanah Briggs, and Susan, his wife, to three-fourths of the farm, and Mary Stevens to one fourth.
By the deed of the 15th of July, 1813, Ebenezer Stevensdevested himself of one half of the farm, which he then conveyed to Justus Blanchard, leaving himself seised of only one-fourth of it. It cannot, I think, be" contended, with any propriety, that this deed operates as an estoppel upon Ebenezer Stevens, beyond the moiety of the farm. Upon a fair construction of it, it conveys only a moiety of the farm. The deed, at first, grants one equal undivided half part of the farm, and also all the estate, right, title, &e. “ which he, the said Ebenezer Stevens, hath to the above described premises either in law or in equity from the last will and testament of Samuel Stevens, of, &c. deceased.” Now, the described premises were one half of the farm. It is true, the boundaries of the whole farm are mentioned, but the entire, farm is not the premises described in the granting part. The one equal undivided half of the farm is .there described. It is a principle in the construction of releases, and the reason of the rule extend^ to grants and conveyances of lands, that a release in general words shall he restrained to the particular occasion; and that where there are general words alone in a deed of release, they shall be taken most strongly against the releasor ; but when there is a particular recital in a deed, and, then general words follow, the general, words shall be qualified by the *115particular recital. (Lord Ray. 668. Hob. 74. Dyer, 240.) Technically speaking, the deed contains no recital, but the special object of the deed was to convey one half of the farm, and the general words are thrown in to show how the right of the grantor was derived. It would be doing violence to the deed, and to the intention of the parties, to say, that it was meant to convey the whole farm. Although the grantor had not then a title even to one half the farm, he has covenanted that he had power to sell a moiety; and, he cannot now be permitted to recover, in the face of the deed, on the ground that he did not then own a moiety. It was decided by this Court, in the case of Jackson v. Bull, (1 Johns. Cas. 90.) that a person can never claim lands which he has conveyed, in opposition to his own deed, and this without regarding the deed as a technical estoppel.
The defendant has title under Justus Blanchard by the' deed of the 21st of April, 1815, which conveys to the defendant all the Hunt farm. The remaining inquiry is, what farther right Blanchard had to the farm, independently of the deed from Ebenezer Stevens for the one half? ¡We have, seen that Mary Stevens, the. widow of Samuel Stevens, took under, his will one half of the farm, but that half was reduced to one-fourth, by reason that the” devisor actually owned but a moiety. She married Justus Blanchard, and by their deed to Philo Ruggles, and his reconveyance to Blanchard, and Mary his wife, they became seised of her estate in the farm, under the will of Samuel Stevens. Blanchard survived his wife; and the question is, whether he became entitled to the whole of the estate which they both had in the farm, or only to a moiety of it. It appears to be well settled, that if an estate be given to a man and his wife, they take neither as joint tenants, nor as tenants in common ; for, being considered as one person in law, they cannot take by moieties, but both are seised of the entirety ; the consequence of which is, that neither of them can, dispose of any part, without the assent of the other, but the whole goes to the survivor. (2 Bl. Com. 183. Go. Litt. 187. 2 Fern. 120.) The statutory provision, that no estate in joint tenancy in lands, shall be held or claimed under any grant, devise, or conveyance, unless the premises there*116in mentioned shall expressly be declared to pass, not iñ tenancy jn common, but in joint tenancy, does not extend to this case, for the estate of the husband and wife is not a. joint tenancy.
It, then, follows, that Justus Blanchard having survived his wife, he became seised, as such survivor, of her estate under the will of Samuel Slevens; and, consequently, his deed of the 21st of April, 1814’, to the defendant, invested him with a good title to the one fourth part of the farm.
It was objected that the deed from Briggs and wife to Ebenezer Stevens was void, on the ground that Samuel Stevens held adversely. It will be observed, that he was dead when this deed was given, and that Ebenezer Stevens had succeeded, as a tenant in common with his widow, under the will, to an undivided portion of the estate ; and it may well be doubted, whether a deed which he took when actually entitled to a part of the estate can be said to be adverse. But there is another decisive answer: Samuel Stevens accepted a deed from Briggs and his wife, and he held under it such a right as the deed conveyed That right was only the interest which Briggs had in the premises, as his wife never acknowledged the deed, until several years after the death of Samuel Stevens ; Briggs’ interest was an estate for life, jure uxoris. The possession of Samuel Stevens was not then adverse to the right of Briggs’ wife. (10 Johns. Rep. 441.)
On the whole, the plaintiff is entitled to recover one fourth of the premises and no more.
Judgment for the plaintiff accordingly.