Estoppel. (a) In this connection, it is proper to say a word on the subject of estoppel. By estoppel is meant that a party is not allowed to contradict what he has agreed to under seal. The doctrine of estoppel is confined to instruments under seal, on account of the theoretical solemnity attending their execution. By the effect of estoppel, if a man who has no interest at the time, or only an equitable interest, makes a conveyance, and afterwards obtains the legal title, this relates back to supply the prior conveyance, and enures to the benefit of the grantor or his assigns. For though the original deed conveyed nothing at the time, the grantor is estopped from averring that fact; and so are his heirs. and all persons claiming under him. The case would be the same, if the legal title had been acquired after the death of the grantor. But the estoppel of the heirs, and other representatives of the grantor, depends upon the fact whether the deed contains covenants of title. If the heirs should recover against their ances

(a) On the general subject of estoppel, see 2 Black. Com. 295; 4 Kent, Com. 97, 254, 440; 2 Parsons, Cont. 340; Merritt v. Horne, 5 Ohio State, 307; Buckingham v. Hanna, 2 id. 551; Coakley v. Perry, 3 id. 344; Hamilton v. Zimmerman, 5 Sneed, 39. Estoppels are not favored by courts of law, and still less by courts of chancery. Leiby v. Parks, 4 Ohio, 469. A deed not legally attested does not work an estoppel. Wallace v. Miner, 6 Ohio, 366; Patterson v. Pease, 5 id. 190. But see Douglas r. Scott, 5 Ohio, 194. Where a patent issues to the heir, on the entry and survey of his ancestor, he is estopped from denying his ancestor's title. Bond v. Swearingen, 1 Ohio, 395; Douglass v. McCoy, 5 id. 522; Jackson v. Williams, 10 id. 69. Where the grantor had only an equitable title, and afterwards obtains the legal title, if there was a warranty, his heirs are estopped. Allen v. Parish, 3 Ohio, 107; Moore v. Rake, 2 Dutcher, 574; Lindsey v. Ramsey, 22 Ga. 627; Robertson v. Wilson, 38 N. H. 48; Hayes v. Tabor, 41 N. H. 521; Philly v. Sanders, 11 Ohio State, 490; Carbrey v. Willis, 7 Allen, 364; Ross v. Adams, 4 Dutcher, 160; Goodman v. Beacham, 24 Ga. 150. He is estopped also, if there was a covenant, for further assur ance. Bennett v. Waller, 23 Ill. 97. Where a deed is in the ordinary form of a release, purporting only to convey all the right, title, and interest of the grantors, it conveys only the vested interest of the grantors in the premises at the time, and the covenant of warranty is only coextensive with the grant, and does not therefore estop from the assertion of an after-acquired title. White v. Brocaw, 14 Ohio State, 339; Ballard v. Child, 46 Maine, 152; Lownsdale v. Portland, 1 Oregon, 381. In ejectment, where both parties claim under the same chain of title, the defendant is estopped from denying its validity. Hart v. Johnson, 6 Ohio, 87. Recitals work an estoppel, even in the deed of a remote grantor. Kinsman v. Loomis, 11 Ohio, 475. A recital in a deed, that the grantor has a certain interest in the land, which interest the deed purports to convey, estops the grantor, and all persons in privity with him, to deny that fact, and therefore prevents them from asserting any subsequently acquired title inconsistent therewith. French v. Spencer, 21 How. 228. But recitals can only affect parties and privies. Miller v. Holman, 1 Grant's Cases, 243; Moore v. Littel, 40 Barb. 488. Those covenants only work an estoppel which run with the land and contain an express warranty. Boyd v. Longworth, 11 Ohio, 235. Such covenants will estop a wife who unites with her husband. Hill v. West, 8 Ohio, 222. For something like an equitable estoppel, see Reily v. Miami, 5 Ohio, 333. If a man stands by and suffers another to purchase land to which he has a title, without making it known to the purchaser, he will be estopped in equity from exercising his legal right. Cochran v. Harrow, 22 Ill. 345; McAfferty v. Conover, 7 Ohio State, 99. But a mortgagee, under a duly recorded mortgage, is not estopped from asserting his claim under the mortgage by the fact that he was present at a sheriff's sale of the land under a judgment against the mortgagor, and did not mention his mortgage, in the absence of evidence of actual fraud on his part. Fisher v. Mossman, 11 Ohio State, 42. To create an estoppel, in pais, the acts relied upon must have been done with a design to induce the party setting up the estoppel to act upon them. Andrews v. Lyons, 11 Allen, 349; Morgan v. Spangler, 14 Ohio State, 102; Beardsley v. Foot, 14 Ohio State, 414.

day of

tor's grantee, on the ground that the ancestor had no title at the time of conveying, and that the deed contained a warranty, the grantee might immediately turn round and sue the heirs on the covenant; and it is to avoid this circuity of action, that the heirs. of the ancestor are estopped whenever the deed contains a covenant of warranty. But no deed will operate by estoppel, unless it be executed with all the legal formalities; and accordingly where an instrument, intended for a deed, and containing a covenant of title, had but one subscribing witness, it was held not to estop the heirs of the grantor under the laws of this State. Conclusion and Attestation. (a) The conclusion of the deed is in these words: "In witness whereof the said grantor has hereunto set his hand and seal, this in the year But I presume the signature and seal would be sufficient without any concluding words averring the fact. Their presence would speak for themselves. Whether the signatures of the two witnesses alone would be sufficient without any attesting words, is doubtful, for the statute requires the signing and sealing to be done or acknowledged "in the presence of two witnesses who shall attest such signing and sealing, and subscribe their names to such attestation." But the fact of delivery need not appear in the attestation, because the statute does not require it. If there be any erasures, alterations, or interlineations, a memorandum should be made of them in the attesting clause, to show that they were done with the consent of parties; for any material alteration of a deed by one party, after the execution, and without the consent of the other, destroys it. And the most convenient proof of the time and manner of making the alterations, is by this memorandum, though undoubtedly other proof would be admitted.

A mortgage follows in every respect the common form of a deed, with the addition of a clause of defeasance, immediately before the conclusion. This clause, when abbreviated according to the foregoing principles, may be in the following words: "Provided, nevertheless, that if the said mortgagor shall pay to the said mortgagee, the sum of dollars, on the day of in the year according to a promissory note of this date, then, this mortgage is to be void." If there be a power of attorney to sell, it is inserted immediately after this clause of defeasance. We have already seen that the construction put upon a mortgage is far different from what its language imports; and for this reason, its form ought to be so altered as to contain the precise stipulations which the law implies; but a still greater improvement would be to provide by law, that an instrument of the following form, duly executed and recorded, should have the force and effect of a mortgage: "I, A. B., do hereby mortgage

(a) Smith v. Crooker, 5 Mass. 538; Hurst v. Adams, 6 id. 519; Hatch v. Hatch, 9 id. 307; Courcier v. Graham, 1 id. 330; Patterson v. Pease, 5 id. 190.

to C. D. the following real estate, to which I warrant the title; viz., -, to secure the payment of

dollars, due on the according to my note of the same tenor and date. Witness my hand and seal," &c. Why would this not answer every purpose?

Certificate of Acknowledgment. The nature of an acknowledgment having been before considered, it only remains to consider the form of the certificate; which is usually as follows: "The State of -, county of Before me personally appeared

a

of said the above-named grantor, and acknowledged the signing and sealing of the above deed, as his voluntary act. Witness my hand," &c. But where the wife joins her husband, the following addition must be made: "And the said, wife of the said being examined by me separate and apart from her husband, and the contents of the above deed being explained to her, declared that she did voluntarily sign, seal, and acknowledge the same, and is still satisfied there with. Witness my hand," &c.

In concluding my remarks on the form of deeds, I will merely observe that there are three arguments in favor of observing set forms. First, the legal effect of words is thereby settled; secondly, the instrument is more readily drawn, and with less liability to mistake; and thirdly, we can more readily refer to any particular part. For these reasons, I am in favor of established forms; but every consideration shows that these forms ought to be as concise as possible; and I hope that the somewhat minute examination I have given establishes the fact that the customary prolixity which I have exposed, in the common form of deeds, is an abuse worth reforming. And when we consider the whole number of deeds made annually in the United States, and all required to be recorded, it will be conceded that this single reform would produce in the aggregate an immense saving of time, material, and expense. What, then, would be the result, if a similar reform were effected in regard to all legal forms and instruments? But it is time to leave the subject of title by purchase. I have made the lecture a very long one, on account of its great practical importance. I trust I have sufficiently proved the truth of the remark made in the beginning, that much improvement has been made in this branch of law, and that there is room for much more. In a matter of such universal interest as the transfer of property, whether real or personal, there is peculiar reason for endeavoring to attain the utmost degree of simplicity and brevity. We have improved our law in both these respects; but wise legislation might go much further. With regard to transfers of realty, the two great points to be regarded are certainty and notoriety. Whatever forms and ceremonies conduce to these ends are salutary, and ought to be retained; all beyond are worse than useless, and ought to be abolished. On the subject of personalty there is less fault to find. This

part of the law is simple enough. If it be defective in any respect, it is in the want of certainty, with the single exception of a ship or steamboat; but I reserve remarks on this subject till we come to the contract of sale.

LECTURE XXXII.

CONTRACTS IN GENERAL. (a)

Even

§ 174. What constitutes a Contract. To complete our view of the law of property, it only remains that we examine the law of contracts. I have already spoken of the constitutional guaranty which secures existing contracts against being impaired by legislation; and on this important provision, I have nothing now to add to the views then presented, though hardly any language would be too strong in commendation of its utility. In this lecture, I am to consider the general law of contracts; and in the next, the law regulating particular classes of contracts; and I desire, at the outset, to impress you strongly with a feeling of the practical importance of this division of law, not merely to the professional man, but to every citizen. Nearly all the business transactions of life have some connection with contracts. our currency is chiefly made up of contracts in the shape of bank-notes. A large proportion of the wealth of every man consists of contracts. In short, few of us pass a single day without having something to do with contracts. The outline, therefore, of the law of contracts should be in the mind of every person pretending to business qualifications; and this is all I shall undertake to exhibit. Writers have given various definitions of a contract, of which I shall quote but three. Blackstone says it is "an agreement, upon sufficient consideration, to do or not to do a particular thing." (b) Powell says it is "a transaction in which each party comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other." (c) The French definition, taken from the civil law is,

(a) See 2 Black. Com. ch. 30; 2 Kent, Com. lec. 38, 39, 40; 1 Dane's Abr. ch. 1; the treatises of W. W. Story, Addison, Smith, Comyn, Powell, Chitty, Pothier, and Newland, the latter on Contracts as regarded in equity. See also, title Contracts, in any of the Digests or Abridgments. Very recently has appeared the very learned work of Parsons, in two volumes. Metcalf on Contracts. All kinds of written contracts now require a stamp; contracts not otherwise specified requiring a stamp of five cents on each sheet of paper on which it is written. Under the act of 1864, an unstamped instrument was not invalid unless the stamp was omitted with intent to evade the provisions of the act. Harper v. Clark, 17 Ohio State, 191. The act of June 6, 1872, statutes at large, session of 1871–2, p. 230, 256, § 36, repealed the stamp duties on all instruments except bank checks, to take effect Oct. 1, 1872.

(b) 2 Black. Com. 442.

(c) 1 Powell on Contracts, p. 6.

"a convention by which one or more persons obligate themselves to one or more other persons, to give, or to do, or not to do something." (a) It makes little difference which of these definitions we adopt. The effect of every valid contract is to create reciprocal rights and obligations. A distinction is, however, made between executed and executory contracts. Thus if I agree to deliver property to you, and forthwith deliver it, this is an executed contract on my part; and the effect is to convey to you something in possession. But if you do not, at the time, pay the price agreed, the contract so to do is executory on your part; and as I may be compelled to resort to an action against you to enforce payment, the effect is to give me a right of action. Hence, the interest of a party in an executory contract is technically called a thing or chose in action. (b) The remedy which a party has, in case of non-performance by the other party, is twofold. By a suit at law, he may in all cases recover damages; and by a suit in chancery, he may in many cases compel specific performance. But these points are explained elsewhere. In thus describing the effect of a contract, I have presupposed its legal sufficiency or validity; but according to the foregoing definitions, this must depend upon three things; namely, the consideration, the parties, and the subject-matter. I shall speak of these in their order.

§ 175. Consideration. We have seen that Blackstone makes a sufficient consideration" part of the definition of a contract. (c) In fact, this is what distinguishes a contract in legal contemplation from a mere promise. An agreement without any consideration is called, in law language, a nudum pactum, or naked promise, which the law will not recognize. (d) But what is meant by a consideration, in this technical sense, will be best understood by an illustration. Thus, if I promise to do something for you, without your having done or promising to do anything for me in return, there is no motive or consideration for my promise. The benefit is all on your side, and the burden all on mine, without any mutuality or reciprocity. If I fail to perform,

(a) "A contract is an agreement in which a party undertakes to do, or not to do, a particular thing." Marshall, C. J., Sturges v. Crowninshield, 4 Wheat. 197. This definition, omitting the element of consideration, is preferred by Metcalf, J., the learned contributor to the American Jurist on the subject of Contracts, vol. 20, p. 1. Whether the term " agreement,' as used in the statute of frauds, includes the consideration, has been a disputed point. Wain v. Walters, 5 East, 16; Saunders v. Wakefield, 4 B. & Ald. 595; Packard v. Richardson, 17 Mass. 122.

(b) 2 Black. Com. 443. A grant is an executed contract. Fletcher v. Peck, 6 Cranch, 136.

(c) 2 Kent, Com. 463; 2 Black. Com. 443. For an admirable essay on this subject, see Am. Law Reg. for March, May, and June, 1854, by Mr. E. L. Pierce.

(d) 2 Black. Com. 445. The nudum pactum of the civil law and the gratuitous promise of the common law are now distinguished from each other. 1 Fonb. Eq. bk. 1, ch. 5, § 1, Art. Nudum pactum, English Law Review, May, 1849. The policy of the rule, requiring a consideration to uphold a contract, has been maintained by some jurists, and assailed by others. Eastwood v. Kenyon, 11 Ad. & El. 438; s. c. 2 P. & D. 276; Story on Bailm. § 169; 1 Fonb. Eq. 337, note; Fitch v. Redding, 4 Sandf. 130, per Duer, J