CH. 7, s. 10. PT.III. T.12, dower, and others who come in by act of law or "in the post," shall be bound and take advantage of estoppels by deed (a). But regularly, a stranger, or a femme covert, or an infant, shall not take advantage of an estoppel, for want of mutuality (6). And where a person sues, not in his own right, but in right of another, he must be deemed a stranger, so as not to be bound by estoppel by a deed executed by him in his own right (c). Strangers, however, shall both take the benefit of and be concluded by a record relating to the disability or legitimation of a person (d). 2547. Interest created by estoppel under an indenture. Where by deed indented a man directly and unequivocally recites that he is owner of an estate, and affects to convey it for valuable consideration, when in reality he has only an interest under a limitation in favour of a person not yet ascertained, or a mere hope or chance of succession as heir apparent, or no interest whatever, there, if by any means he afterwards acquires an interest in the estate, he is estopped, in any legal proceedings founded on that deed, from saying, as against the other party to the indenture, contrary to his averment in that recital, that he had not such interest at the time of its execution (e). But the covenants for title in a mortgage of a freehold estate, that the mortgagor has full power to grant and convey, etc., do not create any estoppel, that the mortgagor has the legal estate, but only create a liability to pay if he has (a) Co. Litt. 352 a; 4 Cruise T. 32. c. 19, § 60; 1 Pres. Shep. T. 53; Board v. Board, L. R. 9 Q. B. 48. (b) Co. Litt. 352 a; 9 Jarm. & Byth. by Sweet, 81; 2 Pres. Shep. T. 276, n.; 4 Cruise T. 32, c. 19, § 60. (c) Metters v. Brown, 1 Hurl. & (d) Best on Evid. 3rd ed. 655. not the legal estate (ƒ). & Byth. by Sweet, 125-128; 9 Jarm. & Byth. by Sweet, 81, 82: Bensley v. Burdon, 2 S. & S. 519, affirmed on appeal, 8 L. J. 85. But see Stackpoole v. Stackpoole, 4 Dru. & War. 347; and Lloyd v. Lloyd, 4 Dru. & War. 354. (f) General Finance, etc. Co. v. Liberator, etc. Building Society, L. R. 10 Ch. D. 15. CH. 7, s. 10. If a lease is made by indenture by a person who at the PT. HIT, time had no interest in the property, but that fact does not appear on the face of the deed, it is a good demise by way of estoppel; and a reversion in the lessor by estoppel is thereby created, which may be conveyed to another person. And if a lease for a longer term is afterwards made to the lessor by the real owner, the first lease thereupon becomes a lease in interest; the estoppel created by the first lease being fed by the interest created by the second lease of the real owner (a). But if a deed operates to any extent actually to pass an interest from the lessor, it shall not afterwards operate by estoppel, though the interest purported to be granted be really greater than the lessor at that time had power to grant: as if A., lessee for the life of B., makes a lease for years by indenture, and afterwards purchases the reversion in fee, and then B. dies, A. shall avoid his own lease, though the years expressed in the lease be not expired (b). 2548. deed poll. A deed poll cannot create an estoppel in point of estate. Estoppel by But if a deed poll of A. recites that A. by bond did, etc., A. cannot say that there is not any such bond (c). 2549. The doctrine of estoppel does not prevent a deed from Frand or being impeachable for fraud or illegality (d). 2550. SECTION XI. Of Cancelling Deeds. illegality. CH. 7, s. 11. Mode of cancelling. To cancel a deed, it may either be delivered up for P11. T.12, that purpose to the party who is bound by it, and cancelled by him accordingly, by tearing off the seals or otherwise defacing it, or the person who has the deed may cancel it by agreement with the other party (e). If (a) Sturgeon v. Wingfield, 15 M. Co. Litt. 45 a; Burton, § 850; 1 & W. 224; Co. Litt. 47 b; 2 Pres. Pres. Shep. T. 53. Shep. T. 53, 320, 321; 4 Jarm. & Byth. by Sweet, 122, 123, 126; Burton, § 850. (b) 4 Cruise T. 32, c. 19, § 58; VOL. II. (c) 1 Pres. Shep. T. 53. (d) Broom's Com. 2nd ed. 283. (e) 2 Bl. Com. 308; 4 Cruise T. 32, c. 26, § 18. U CH. 7, s. 11. Pr. III.T.12, the seal, etc., were broken or destroyed by accident, or by a stranger, or by the obligor, the deed would remain in force, on proof that it was sealed and delivered, and accidentally or wrongfully cancelled. To destroy the deed, there must be a cancellation eo animo (a). 2551. Effect of cancelling. So far as regards the operation of an assurance in vesting an estate or interest in real or personal property, as distinguished from those operations of the assurance which are merely accessory or incidental, it is immaterial, except as to the evidence of original validity, whether the deeds continue in force or not: for, their whole effect as regards this purpose is instantaneous, and the estate which has once passed cannot be recalled (b). And hence an estate or interest in real or personal property which has once vested by a deed, cannot be devested by cancelling the deed; because, once vested, it exists, independently of the deed, in the person in whose favour it was created or to whom it was transferred (c). So that any freehold estate or a money fund once absolutely vested by a settlement cannot be devested by merely cancelling the deed creating or transferring it; nor can a lease for years be surrendered by cancelling the indenture of lease; nor can a lease for years assigned be revested in the assignor by cancelling the assignment. To accomplish the purposes intended, the freehold estate must be conveyed, the benefit of the settlement must be released, the lease for years must be surrendered, and the leasehold estate must be assigned. But a mere contract or obligation, of which the deed is the essence, may be extinguished by destroying the deed with that intent (d). 2552. (a) 1 Pres. Shep. T. 69; Burton, § 443. (b) Burton, § 444; 2 Jarm. & Byth. by Sweet, 285; Co. Litt. 225 b, n. (1). (r) 2 J: rm. & Pyth. by Sweet, 285; 4 Cruise T. 32, c. 26, § 18- 285. TITLE XIII. OF ALIENATION BY MATTER OF RECORD (a). ASSURANCES by matter of record are such as do not Pr. III.T.13. entirely depend on the act or consent of the parties themselves, but the sanction of a Court of record is called in to substantiate, preserve, and be a perpetuai testimony of the transfer of property, or of its establishment, when already transferred. Of this nature are, I. Private Acts of Parliament. II. Royal Grants. III. Fines. IV. Common recoveries. 2553. CHAPTER I. OF PRIVATE ACTS AND ROYAL GRANTS. I. Of Private Acts. CH. 1. Where they PRIVATE ACTS are frequently resorted to as a mode of PT. III.T.13, assurance, in cases where the object of parties can be effected in no other way: as to unfetter an estate, to are used, give its tenant reasonable powers, or to assure it to a purchaser against the remote or latent claims of persons under legal disability (a). 2554. to avoid in Acts of this kind are not passed without great care to Care taken avoid any injustice. Nothing is done without the consent justice and expressly given, of all parties in being and capable of mode of a (a) See 2 Bl. Cʊm. 344-5. abuse of this surance. CH. 1. PT. III.T.13, consent, who have the remotest interest in the matter ; unless such consent appears to be perversely and without any reason withheld. And an equivalent in money or other property is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the Act. And a general saving is constantly added, at the close of the Act, of the right and interest of all persons whatsoever, except those whose consent is so given or purchased, and who are therein particularly named; though even if such saving is omitted, the Act will bind none but the parties (a). 2555. Light in which pri A law thus made, though it binds all parties to the vate Acts are Acts, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature (b). Hence regarded. Construc tion of private Acts. Title, mar ginal notes, and punctuation. Repugnancy. Time of private Acts are construed in the same manner as conveyances that derive their effect from the common law (c). 2556. The title, marginal notes, and punctuation of an Act of Parliament form no part of it, and on principle it appears doubtful how far even the title ought to be taken into consideration in the construction of it (d). 2557. If two sections of an Act are absolutely repugnant, the last shall prevail (e). 2558. Before the stat. 33 Geo. 3, c. 13, an Act took effect from (a) 2 Bl. Com. 345; 5 Cruise T. (e) 5 Cruise T. 33, § 39. addition to the Act, and are either not the work of the draftsman, or allowed to remain without any regard to subsequent alterations. It is disgraceful that such appendages should exist. That any use should be made of them for interpreting the Act would be highly objectionable, until they are properly framed and revised. But see Sutton v. Sutton, L. R. 22 Ch. D. (Ap.) 513, where Jessel, M. R., reversed this dictum. (e) Keating, J.. in Wood v. Riley, L. R. 3 C. P. 27. |