"Where under the law there is an entire lack of power to do the act in question, it cannot be made good by estoppel. But if the power to do the act existed, and there was a way in which it could be lawfully exercised, and it purports to have been done in a law ful way, a person who has induced another to act upon the assumption that it was in fact done, may be estopped from questioning its validity." Mut. Life Ins. Co: v. Corey, 135 N. Y. 326, 334, 31 N. E. 1095.
A corporation accepting conveyance of a water works plant by deed describing cer tain mortgages thereon, and expressly de claring that the conveyance was made sub ject thereto, is thereby estopped from ques tioning the validity of the mortgages; Ameri can Waterworks Co. of Illinois v. Loan & Trust Co., 73 Fed. 956, 20 C. C. A. 133. So also a city taking property by eminent do main subject to liens is estopped to deny their validity; City Safe Deposit & Agency Co. v. City of Omaha, 79 Neb. 446, 112 N. W. 598, 23 L. R. A. (N. S.) 72. And a corpora tion may be estopped to deny the execution of a mortgage when the directors assented, but, by reason of the absence of some, there was no formal action of the board directing the signing and sealing by the officers ; Ne vada Nickel Syndicate v. Nickel Co., 96 Fed. 133.
To create an estoppel, the deed must be good and valid in its form and execution ; 2 Washb. R. P. 41; Alt v. Banholzer, 39 Minn. 511, 40 N, W. 830, 12 Am. St. Rep. 681; and must convey no title upon which the warranty can operate in case of a covenant ; Jackson v. Hoffman, 9 Cow. (N. Y.) 271; 2 Pres. Abs. 216.
Estoppels affect only parties and privies in blood, law, or estate; 6 Bing. N. C. 79; Corbett v. Norcross, 35 N. H. 99 ; Patterson's Lessee v. Pease, 5 Ohio 190 ; Phelps v. Blount, 13 N. C. 177 ; Wark v. Willard, 13 N. H. 389 ; Calhoun v. Pierson, 44 La. Ann. 584, 10 South. 880; Campbell v. Carruth, 32 Fla. 264, 13 South. 432. See Knight v. Thayer, 125 Mass. 25 ; Stockstill v. Bart, 47 Fed. 231. Estop gels, it Is said, must be reciprocal ; Co. Litt. 352 a; Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808. But see Winlock v. Hardy, 4 Litt. (Ky.) 272 ; Small v. Procter, 15 Mass. 499 ; Crittenden v, Woodruff, 11 Ark. 82 ; 2 Sm. L. C. 664. And see 2 Washb. R. P. 458.
The rule requiring mutuality is subject to exceptions which are discussed at large by Van Deventer, J., in Portland Gold Mining
Co. v. Stratton's Independence, 158 Fed. 63, 85 C. C. A. 393, 16 L. R. A. (N. S.) 677, and note. Persons claiming under a common source of title are mutually estopped to deny its validity ; Gilliam v. Bird, 30 N. C. 280, 49 Am. Dec. 379, and note in which the cases are collected.
An estoppel relating to an interest in land passes with the land, and an estoppel by deed creates what in law is termed a title by estoppel; Mutual Life Ins. Co. v. Corey, 135 N. Y. 326, 335, 31 N. E. 1095.
A grantor is not estopped by recitals in his deed of payment of consideration, from suing for the unpaid purchase money ; Smith v. Arthur, 110 N. C. 400, 15 S. E. 197 ; nor are recitals an estoppel when the deed con taining them is not operative ; Wallace's Les see v. Miner, 6 Ohio 366. But one who de fended his possession on the sole ground that one of the grantors in the series of deeds had no title was bound by the recitals of the deed to the same extent as if he were privy to the grantor; Kinsman's Lessee v. Loomis, 11 Ohio 475 ; and a ward after coming of age was held bound by the recitals of a deed made her guardian ; Esterbrook v. Savage, 21 Hun (N. Y.) 145. A recital in a bond that it was under seal estops the obligor from de nying that it was so executed ; Metropolitan Life Ins. Co. v. Bender, 124 N. Y. 47, 26 N. E. 345, 11 L. R. A. 708. A grantee cannot enter and hold under a deed and at the same time repudiate the title thereby conveyed ; Kelso v. Stigar, 75 Md. 376, 24 Atl. 18. See White v. R. Co., 156 Mass. 181, 30 N. E. 612 ; Raby v. Reeves, 112 N. C. 688, 16 S. E. 760; Ogles by v. Foley, 46 Ill. App. 119 ; Coward v. Clanton, 79 Cal. 23, 21 Pac. 359.
The doctrine of estoppel by deed did not at common law apply to a married woman, except as to her equitable separate estate ; Big. Est. 371, citing the cases ; Bank of America v. Banks, 101 U. S. 240, 25 L. Ed. 850 ; Jones v. Reese, 65 Ala. 134 ; but under the statutes enabling married women to deal with their own property, her liability to be estopped is doubtless coterminous with her capacity to contract ; Neal v. Bleckley, 36 S. C. 468, 478, 15 S. 733; Appeal of Pow ell, 98 Pa. 403, 413 ; Knight v. Thayer, 125 Mass. 25. Nor is an infant, estopped by his deed unless ratified after majority ; Cook v. Toumbs, 36 Miss. 685 ; Houston v. Turk, 7 Yerg. (Tenn.) 13.