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ON THE

LAW OF ESTOPPEL

AND

RES JUDICATA.

BY

HENRY M. HERMAN,

COUNSELLOR-AT-LAW,

AUTHOR OF THE "LAW OF EXECUTIONS," CHATTEL MORTGAGES," &C.

'Omne jus, quo, utimur, vel ad personas patinet vel ad res, vel actiones."

VOL. II.

JERSEY CITY, N. J.:

F. D. LINN & COMPANY.

L14190

APP 4 1938

COPYRIGHT, BY
HENRY M. HERMAN,

1886.

BOOK II.

CHAPTER VIII.

ESTOPPEL BY DEED OR MATTER IN WRITING.

Origin, nature and history-General doctrine as to estoppel by deedsMutuality of estoppels-Parties affected by-Married women, infants, etc.-Parties and privies, who are-Effect of deeds-Contracts in writing, etc.-Certificates of acknowledgment....

CHAPTER IV.

RECITALS.

§§ 573-605

General doctrine as to-Distinction between general and special recitalsRecital of title-Effect of recitals in deeds-Recital in bonds-Sureties, when bound by-Miscellaneous recitals.....

CHAPTER X.

TITLE BY ESTOPPEL.

........

$$ 606-639

How the interest when it accrues feeds the estoppel-After acquired title, when it inures by-Estoppel, doctrine in regard to-Quit-claim deeds -Covenants creating an estoppel-Deeds that do and do not convey an after acquired title-Dower, etc., bow affected by............. $$ 640-700

CHAPTER XI.

LEASES BY ESTOPPEL.

Doctrine of, lessor estopped to deny that interest passes-After acquired title when it passes in-Lessor estopped from denying title-Who affected by-When the estoppel runs with the land-Effect of words, 'Grant and Demise "-Recitals in-Dower, widow barred by-Parol assignments of dower....

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CHAPTER VIII.

ESTOPPEL BY DEED, OR MATTER IN WRITING.

SECTION 573. This branch of the law of estoppel, by matter in writing or by deed, is a branch of the law which does not allow or permit a sealed instrument to be controverted or contradicted by any evidence of less solemnity than its own. It is a well settled principle of law that a written contract cannot be varied by parol evidence, and this branch of the law of estoppel forbids any variation of the contract, and leaves all that lies beyond its variation to the ordinary means of proof. No mere written agreement or oral stipulation entered into between the parties to a deed, at the time of the making and execution thereof, can be given in evidence to control or qualify, or enlarge, or in any way alter or affect the express terms of the contract; nor can the operation of a deed be restricted, or the liability created by it, be lessened or discharged by an indorsement under hand only, or by any subsequent contract or agreement in writing, not under seal. But an indorsement on a deed may operate as a collateral and independent contract, and may add to the liabilities and obligations contained in the deed itself. Every deed takes effect in general from the time of its execution and not from the date inscribed in the body of the instrument. That date is to be taken prima facie as the true time of execution, but as soon as the contrary appears the apparent date is to be disregarded.

§ 574. The rule of law which estops a party from disputing or contradicting what he has affirmed or declared by deed does not extend to strangers to the contract.' Where the public, or third persons for example, have an interest in the real nature of a transaction under seal between two or more parties, they are not

'Goodell v. Bennett, 22 Wis. 563; Avery v. Judd, 21 Wis. 262; Winterfield v. Strauss, 24 Wis. 394; Wood

man v. Clapp, 21 Wis. 350; Sunderlin v. Strothers, 47 Pa. St. 411; Rex v. Scammonden, 3 T. R. 474.

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