Osborne

Mr. Justice Terry concurred.

The opinion of the Court below is based upon two propositions; first, that plaintiff is estopped by the recital of his deed to the defendant; and second, that the trust sought to be established is within the Statute of Frauds.

The general rule of law is, that recitals in a deed bind all persons who are parties or privies thereto; but this rule does not extend to that which is mere description, or an averment which is not essential. The doctrine of estoppels has always been construed with great strictness, because loose statements or recitals may often, so far from expressing the truth, (which no one should be permitted to deny,) exclude the party from setting it up.

Testing the present case by this rule, the correctness of which I apprehend no one will deny, how can it be said that the plaintiff is es-topped by the recital in his deed to Endicott “ that he hold the lot in question for him.” The recital was not necessary for the purposes of the conveyance; the exact facts of the case were within the knowledge of the party taking it; no new parties have intervened to change the character of the transaction; no surprise, fraud, or imposition has been…