1. No person can rely on an estoppel growing out of a
transaction to which he was neither a party nor a privy and which
in no manner touches his rights.
Hence, where a plaintiff claims under A. and his deed,
defendants who do not claim under it cannot set up its recitals as
2. Where an heir conveys both as heir and also as executor under
a power in a will which his deed recites, the fact that his deed
thus acknowledges a will does not estop a party claiming under the
deed to assert that the grantor inherited as heir.
3. Where numerous leading facts point to the conclusion that
every part of a large tract of land (an old manor) divided into
several parts has been held under an ancient deed (one of the year
1785), from the date of the deed till the present time, the fact
that every link of the title in a
Page 72 U. S. 796
part of the tract cannot now be specifically shown is not enough
to avoid the presumption that the tract is held under such
4. The presumption being established, recitals in the deed
consistent with the other evidence in the case may be used as proof
against persons who are not parties to the deed and who claim no
right under it.
5. A certificate by the proper officers that a feme
being "privately examined apart from and out of the
hearing of her husband," acknowledged &c., is a sufficient
compliance with the Maryland statute of 1807, which requires the
examination to be "out of the presence" of the husband. The
expressions are equivalent.
6. When it is sought to apply the rule that a court of error
will not reverse where an error works no injury, it must appear
beyond doubt that the error complained of neither did prejudice nor
could have prejudiced the party against whom the error was
Hence where by an error of the court below a plaintiff had not
been allowed to introduce the first item of her testimony, and had
no interest therefore to show anything which might avoid the proof
of the other side -- proof which, though apparently fatal to her
case, even though the error had not been made, she might possibly
have avoided if the court bad not committed the error, but had
given her a standing in the case which would have made it avail her
to avoid such opposite proof -- the judgment was reversed.
This was an action of ejectment brought in the Circuit Court for
the District of Maryland, by Eliza C. Deery, to recover an
undivided third part of a tract of land called Kent Fort Manor, on
Kent Island, in Queen Anne's County, Maryland. The defendants were
Cray, Bright, and others, occupying different parts of the
Miss Deery, the plaintiff, was the daughter of Elizabeth Chew,
who married William Deery, and afterwards, in second marriage, Eli
Beatty. The Elizabeth Chew thus married was the daughter of Samuel
Lloyd Chew the younger, who died about the year 1796 intestate,
leaving the said Elizabeth Chew, and also three others, his
children and heirs-at-law. The effort of the plaintiff was to trace
title, from the original patentee of Kent Fort Manor to her
grandfather, Samuel Lloyd Chew, from whom she claimed through her
mother, who died the wife of Eli Beatty in 1838. Title was shown
regularly enough down to a certain William Brent, of Virginia.
In the progress of the trial she took six bills of exception to
rulings of the court on the admissibility of evidence.
Page 72 U. S. 797
It is only necessary to refer to the fourth and sixth
exceptions, those being the only ones considered by this Court,
because, as the court said, the fourth referred to and embodied all
that was contained in the three previous bills of exception on the
same subject, and because the conclusions of the court on the
question raised by that bill of exceptions rendered the matter
involved in the fifth unimportant.
As regarded this fourth and this sixth exception, the case was
1. As to the fourth.
Having read to the jury without
objection evidence tending to show title and possession of the land
in the above-mentioned William Brent from the year 1767, the
plaintiff offered to read a copy of a deed, certified from the
proper recording office, purporting to be made by Elinor Brent,
executrix, and Daniel Carroll Brent and William Brent, acting
executors, [Footnote 1
] of the
last will and testament of the William Brent first mentioned,
conveying the manor to Samuel Chew. This deed recited that William
Brent, Sr., deceased, by his last will and testament, bearing date
January 7, 1782, constituted the persons aforesaid executors of the
said will, and authorized them to sell and convey in fee simple the
land and premises described in the said deed, and that William
Brent, who united in the conveyance as executor, was also
heir-at-law of the said William Brent, senior. The deed then
undertook by apt language, to convey by virtue of the will, and
William Brent also conveyed as heir-at-law, and they jointly and
severally covenanted to warrant the title. The plaintiff
offered no evidence of the existence of the will
the executors professed to act, nor of the heirship of William
one of the grantors, other than what was contained
in the recitals of the deed;
and for want of such proof the
court rejected the deed. Proof had been made of fruitless search
among title papers and records for the will recited.
The plaintiff then offered a mass of testimony designed to show
that the possession of the land had passed with the
Page 72 U. S. 798
said deed, and had been held under it, and in consistency with
it, for such a length of time as to raise a presumption of the
truth of one or both of the recitals above mentioned.
To understand this testimony the better, it may be stated that
the whole tract is divided first into two parts by a line, below
which lies a part called "the lowermost half part," now claimed by
the defendant Cray. The upper half is divided into three parts, one
to the east called Long Point farm, another next westwardly called
the Indian Point (or Green's Creek) farm, and a third, more
westerly yet, about which there was no dispute. The three together
make up the northern half.
The evidence thus offered in support of the deed was partly
documentary and partly parol. Taking the former chronologically, it
1. The will of Samuel Chew, the grantee, in the deed dated
November 24, 1785, about six months after the date of that
conveyance to him. He died the succeeding year. By this will he
devised Kent Fort Manor to his wife, Elizabeth Chew, for life, and
after her death to his son, Samuel Lloyd Chew.
2. A mortgage of Kent Fort Manor by Samuel Lloyd Chew to Charles
Carroll of Carrollton, dated February 20, 1789, shortly after the
death of his father.
3. A deed from Philip Barton Key to Arthur Bryan, dated May 7,
"all that moiety or half-part of Kent Fort Manor, on Kent
Island, in Queen Anne's County, being the lowermost half-part of
said tract of land called Kent Fort Manor, and is the same land and
half-part of which Mrs. Chew was heretofore seized."
This deed had a full covenant of warranty.
4. An agreement of counsel that the land thus conveyed to Arthur
Bryan was partitioned among his heirs in 1802 by the Chancery Court
of Maryland and allotted to Susanna Tait, sister of said
5. A deed from Samuel A. Chew, son of Samuel Lloyd
Page 72 U. S. 799
Chew, dated March 6, 1838, conveying to Thomas Murphy Long Point
farm, a part of Kent Fort Manor.
6. A deed from said Samuel A. Chew to James Bright, Jr., dated
January 4, 1840, conveying Indian Point farm, another part of said
These two farms, as already said, were on the north half of the
manor, and form no part of the land conveyed by Key to Bryan.
All these documents were copies, properly certified to come from
the recording offices where such deeds should rightfully be
The parol evidence showed that Samuel Chew, first of the name
and grantee in the deed, died in 1786; that his son, Samuel Lloyd
Chew, second of the name, died in 1796, leaving as his heirs Samuel
A. Chew, third of the name, Bennett Chew, Henrietta Chew, and
Elizabeth Chew. The plaintiff, as already said, was daughter of the
last-named person, and in that right claimed the property in
controversy. Elizabeth Chew, widow of the first Samuel Chew and his
devisee for life of the property, died in 1807. It was further
shown that one William Bryan, who in 1802 resided on Long Point
farm and Indian Point farm, and who had resided there for several
years previous, stated repeatedly that he held his possession under
the Chews; that in 1825, Samuel A. Chew, third of the name and
uncle to plaintiff, took possession of about five hundred acres of
the north part of said manor, west of Long Point and Indian Point
farms, which he held until his death, in 1843, and that the same
was not held under that title; that Robert Tait, son and heir of
Susanna Tait, was in 1825 in possession of the southern half of the
manor, and sold it to Richard Cray, his son-in-law, and that
possession was now held under that title.
All this being finally offered with the deed, they were rejected
by the court, to which rejection an exception -- the fourth one in
the case -- was taken.
2. As to the sixth exception.
In the further progress
of the trial some of the defendants offered in evidence a deed from
the plaintiff's mother, then married to Beatty, to Samuel A.
Page 72 U. S. 800
Chew, her uncle, purporting to convey all her interest in Kent
Fort Manor. As the plaintiff claimed as heir-at-law of her mother,
this deed, if admitted, was apparently destructive of her claim.
Her counsel objected to the admission of the deed on the ground
that it was defectively acknowledged.
By statutes in Maryland, femes covert
can convey their
lands by deed acknowledged before two justices of the county court,
such acknowledgment being made by the woman "out of the
and hearing of her husband;" the clerk of the court
certifying that they were the "justices of the said court." In the
case of the deed from the plaintiff's mother, now offered, the
acknowledgment in that part relating to the presence of the
husband, ran thus:
STATE OF MARYLAND, to-wit:
"Be it remembered, that on this 26th of October, 1821,
personally appeared before us, two justices of the peace of the
State of Maryland for Washington County,
the above-named Eli
Beatty and Elizabeth his wife, and Henry C. Schnebly and Henrietta
Maria his wife, party grantors in the foregoing instrument of
writing, and severally acknowledged the same to be their and each
of their act and deed &c., and the said Elizabeth C. Beatty,
wife of Eli Beatty &c., being by us, two justices of the peace
as aforesaid, respectively, privately examined apart from and
out of the hearing of their and each of their husbands,
whether they and each of them doth make their acknowledgment of the
said instrument of writing willingly and freely &c."
The certificate of the clerk under the court's seal was:
"STATE OF MARYLAND, WASHINGTON COUNTY, ss:
"I hereby certify that &c., whose names are signed to the
above acknowledgment, were, at the time of signing thereof, and
still are, justices of the peace for the county aforesaid, duly
commissioned and qualified, and to all their acts as such full
faith and credit is, and ought to be, given, as well in courts of
justice as thereout.
The objections made by the plaintiff to this certificate of
Page 72 U. S. 801
1. That it did not show that the justices who took the
acknowledgment had been sworn into office; nor
2. That they were justices of the county for which they took the
3. That Mrs. Beatty had been examined "out of the presence of
But the court overruled the objections, and an exception -- the
sixth in number on the record -- was taken.
The case was now here on the exceptions.
Page 72 U. S. 802
MR. JUSTICE MILLER delivered the opinion of the Court, and --
having stated the facts of the offer of the copy of the deed from
the executors of W. Brent and of the offer of the mass of testimony
designed to show that possession had so passed with the deed, and
had been held under and in consistency with it for such a length of
time as to raise a presumption of the truth of one or both the
recitals in it -- went on as follows:
Before we proceed to examine the sufficiency of this evidence
for the purpose for which it was offered, we shall notice a
criticism of defendants' counsel in regard to the matter in the
recitals, of which proof can be received. It is said that by the
recital of the existence of a will which authorizes
Page 72 U. S. 803
the executors of William Brent, Sr., to convey the land, William
Brent, Jr., and Samuel Chew, the grantee, and all persons claiming
under them, are estopped from denying the existence of such a will
and from claiming any benefit from the fact that William Brent,
Jr., was heir-at-law, and conveyed as such heir, as well as
executor. The proposition does not seem to us to be well founded.
It may be very true that William Brent and the other grantors in
that deed were estopped as against Samuel Chew to deny the truth of
anything recited in the deed. And if any controversy growing out of
that transaction had ever arisen, in which Samuel Chew or any
person claiming under him was adversary to William Brent or any
person claiming in his right, the person claiming under the latter
would have been estopped from denying the existence of such a will
as that described in the deed, or that said Brent was heir to
William Brent, Sr. But suppose that William Brent, some years after
the execution of this deed, had brought an action of ejectment
against a person who derived no right under the deed, but who
claimed adversely to the title of both Brent and Chew, would
William Brent, in that case, have been estopped from claiming as
heir of his father by the recital of the will in his deed to Chew?
Clearly not, for the simple reason that no person can rely upon
estoppel growing out of a transaction to which he was not a party
nor a privy, and which in no manner touches his rights. There is no
mutuality, which is a requisite of all estoppels. That is precisely
the case before us. The plaintiff claims under Brent and his deed.
Defendants claim nothing under that deed, and deny all connection
with the title it purports to give. They are strangers to it, and
have no right to set up its recitals as estoppels.
There is another reason why there can be no such estoppel. It
was the manifest intent of all the parties to the deed that it
should convey such title as might be conveyed under the will, and
if that should be invalid, convey such title as William Brent had
as heir-at-law. These purposes did not necessarily defeat each
other. There might have been a will,
Page 72 U. S. 804
and it might have been doubtful whether it had been executed
with the formalities necessary to transmit title to land in
Maryland, or to authorize the executors to do so. In such case the
purchaser had a right to take, also, for his security, a conveyance
from the heir-at-law. If he could do this by a separate instrument,
there is no reason why he could not do it in the same instrument
which professed to convey by authority of the will. The very nature
of the case, therefore, precludes the idea of estoppel, for, to say
that a party claiming under that deed is estopped to assert that
William Brent inherited the land as heir-at-law, is to deprive him
of a right conferred by the deed, and which was one of the
essential conditions of its acceptance.
If, then, the testimony offered by plaintiff was sufficient to
raise the presumption that William Brent was heir-at-law of the
party who died seized, or that such a will existed as that recited
in the deed, then that instrument should have been read to the
The evidence offered in support of the deed may be divided into
that which is documentary and that which is parol.
It is not necessary that we should go into a minute examination
of the effect of this testimony. We are satisfied that it affords a
reasonable and fair presumption that every part of Kent Fort Manor
has been held under the deed from William Brent and his
co-executors to Samuel Chew, from its date in 1785 till the present
time. In reference to the north half of the manor, there can be no
reasonable doubt of this proposition, for no one is in possession
of any part of it who does not hold under Samuel Chew, grandson of
the grantee, and son of Samuel Lloyd Chew, to whom the manor was
devised by that grantee. It is maintained, however, that in
reference to the southern half of the manor, which is proved to
have been held under the deed from Philip Barton Key to Arthur
Bryan, from the date of that deed in 1798 to the present time,
there is a hiatus which can be filled by no presumption. If,
however, we recall the statement in Key's deed to Bryan, that the
land which he is
Page 72 U. S. 805
conveying "is the same land and half-part of Kent Fort Manor of
which Mrs. Chew was heretofore seized," we can have no difficulty
in presuming that in some way Key had become the owner of Mrs.
Chew's title. The lapse of time and the reference to her seizin
would be sufficient to authorize a jury to presume a conveyance by
Mrs. Chew to Key, or to someone from whom he derived title. This
consideration is strengthened by the fact that Key covenants to
warrant the title to the land against all persons whomsoever. It is
unreasonable to believe that in the very deed in which he makes
this covenant he would admit Mrs. Chew's former seizin and point to
her title, unless he had in some way become invested with that
title, especially as she was still living and could have asserted
her right against Key's grantee, if she had not in some manner
parted with it.
Is it requiring too much to presume from these facts that one or
both the recitals in the rejected deed, and on which its power to
convey this land depends, are true? Not a single circumstance is to
be found inconsistent with the fact that William Brent, one of the
grantees in that deed, was son and heir to William Brent, Sr. Nor
is there anything except the failure to find it inconsistent with
the existence of such a will as is recited in that deed. When we
consider that William Brent, Sr., died in Virginia; that all the
grantees in the deed resided there; that the system of recording
and proving wills had not then become so general and so well
understood as it has since, and that for eighty years no occasion
has arisen for the production of that will, the failure to find it
by parties who have no other relations with the Brents than this
one transaction of their ancestors does not argue so forcibly
against its existence at that time, as to overthrow the presumption
arising from long possession of this manor, held under the
supposition of the existence of such will.
That recitals of this kind in an ancient deed may be proved as
against persons who are not parties to the deed and who claim no
right under it is too well settled to admit now of controversy.
Such is the doctrine of this Court in Carver v.
Page 72 U. S. 806
] and in Crane v. Astor and Morris.
] The only question is whether the
facts justify such a presumption, and we must say that if they can
do so in any case, we do not see how the inference can be resisted
in the case before us.
It follows that the circuit court erred in refusing to admit the
deed offered by plaintiff as set out in the fourth bill of
2. In the further progress of the trial, some of the defendants
offered in evidence a deed from the plaintiff's mother to Samuel A.
Chew, her uncle, purporting to convey all her interest in Kent Fort
Manor. As plaintiff's efforts, as far as developed, had been to
establish a title as heir-at-law of her mother, of course this
deed, if admitted, was fatal prima facie
to her claim. Her
counsel objected to the admission of the deed, and his objection
being overruled, he took his sixth bill of exceptions, which we now
proceed to examine.
All the objections made to this deed relate to the certificate
of acknowledgment. The first two are unimportant. They are that it
does not appear that the justices of the peace who took the
acknowledgment were sworn into office, or that they took the
acknowledgment in the county of which they were justices. We think
that it is a presumption of law from the facts stated in the
certificate of the justices, and of the clerk of the county court,
that both these requirements were complied with.
But it is also strenuously urged that the deed is void because
the certificate does not show a compliance with the law of Maryland
then in force concerning the privy examination of married women.
The act of 1807, which was in force at that time, required this
examination to be conducted out of the presence and hearing of the
husband, and the point is made that it does not appear from the
certificate that Mrs. Beatty, the mother of plaintiff, was examined
out of the presence of her husband,
with whom she joined
in the conveyance. The certificate recites
"that the said Elizabeth
Page 72 U. S. 807
C. Beatty, wife of Eli Beatty, and Henrietta Schnebly, wife of
Henry Schnebly, being by us, justices of the peace as aforesaid,
respectively, privately examined apart from, and out of the hearing
of their, and each of their husbands, did,"
&c. Now, although the words "out of the presence" are not
used here, we are of opinion that the words which are used show
necessarily and conclusively that the examination was had out of
the presence of the husband.
In the first place, it was had privately.
As the object
of the statute was not to provide for strict privacy from all
persons, but only privacy from the husband, it is to be supposed
that it was in this sense the justices used the word. It is also
stated that she was examined apart
from her husband. This
expression is still stronger, and can mean nothing less than that
the husband was not present when she was examined, and, to make it
still clearer that this examination, private and apart from her
husband, was out of his presence, it is further certified that it
was out of his hearing.
Some decisions of the Supreme Court of Maryland have been cited
to show that the rule there is a strict one as to the agreement
between the certificate and the statute, but none which overturns
the doctrine recognized by that court, as it has been by all
others, that equivalent words, or words which convey the same
meaning, may be used instead of those to be found in the statute.
We are satisfied that within this principle the certificate in this
case is a compliance with the act of 1807, and that there was no
error in admitting the deed to be read to the jury.
It is claimed that, if we shall find this deed to be valid, we
must affirm the judgment, although we may find error in the
previous rulings of the court, upon the ground that this conveyance
shows that plaintiff has no title to the land, and that therefore
such error is without prejudice to her rights. We concede that it
is a sound principle that no judgment should be reversed in a court
of error when the error complained of works no injury to the party
against whom the ruling was made. But whenever the application
Page 72 U. S. 808
of this rule is sought, it must appear so clear as to be beyond
doubt that the error did not and could not have prejudiced the
party's rights. In the case before us, this is not so clear. The
plaintiff, by reason of the error of the court, had never been
permitted to introduce the first step in the proof of her case. She
had no interest in offering to show anything which might avoid the
force of the deed read by defendants. If she could have proved it a
forgery it would have done her no good in this suit, because she
had failed, under the erroneous ruling of the court, to make out a
case for herself. We cannot assume here that
she might not have successfully avoided the effect of that deed, if
the court had given her a standing in the case which would have
made it avail her to do so.
The judgment of the circuit court must therefore be
reversed, and the case remanded, with directions to award a new
Described in the deed like their testator as "of Virginia."
29 U. S. 4
31 U. S. 6
598. See also Raymond v. Dennis,
4 Binney 314; Stokes
4 Mason 248.