There are other cases which support this side of the question, but they need not be presented. See Bivins v. Vinzant;1 Way v. Arnold;2 Faircloth v. Jordan;3 Jacocks v. Gilliam.* Let us then return to the consideration of the subject as it is presented in principle. We shall not attempt to show that the modern covenant of warranty (or that of seisin and title) is not an efficient instrument as a rebutter. There is no doubt that it may be employed to as good purpose against a grantor and his privies as could the old implied warranty of the feoffment. But that it has not the potency to directly transmit after-acquired interests can, we think, be satisfactorily shown. There is, however, as there was under the old warranty, a distinction between cases where the grantor, having no title, has a seisin (that is, by disseisin), and where he has not. We propose to devote the remainder of this article to the consideration of these two situations, taking first the case of a warranty in a bargain and sale by one having neither title nor seisin. Such a case clearly is not within the Statute of Uses; for there is no seisin out of which to serve a use. It is a familiar rule, that, to bring an estate within the operation of this statute, it is necessary that three things should concur: first, a person seised to a use; secondly, a cestui que use in esse; thirdly, a use in esse, either in possession, reversion, or remainder. 3 Washb. Real Prop. 376380; 1 Cruise, Dig. 349; Tudor's Lead. Cas. 258; Crabb, Real Prop. § 1646. It is essential that it should be an estate of which the grantor has, or is entitled to have, the seisin at the time of the grant; and it is accordingly held that no use can be raised by a covenant to stand seised of land of which the covenantor is not at the time seised. Ib.; Moore, 342; Croke, Eliz. 301; Sanders, Uses, 83. So, too, it is said that if a joint tenant covenant to stand seised of the moiety of his companion after his death, it is void, although the covenantor survive. 2 Rolle, Abr. 790, pl. 9. After an extensive examination of the authorities, we have been unable to find a single statement that the Statute of Uses operates upon interests acquired after the grant, when the conveyance was made by one having no title. It is distinctly laid down that 1 15 Ga. 521. 3 18 Ga. 350. 2 18 Ga. 181. 4 3 Murph. 47; s. c. 4 Hawks, 310. there must be a seisin in esse, to pass simultaneously with the use, in order to bring the conveyance within the terms of the statute. 1 Cruise, Dig. 353. And the only instance in which a use is said to enure to another after a conveyance, and with it a seisin, so as to constitute a legal estate under the statute, occurs in the case of springing and shifting uses. But, as the examples all show, it is as essential to a conveyance containing such executory limitations that the grantor have himself a seisin out of which to serve the several uses, as in other conveyances. See 2 Touchstone, 529, note; 1 Spence, Equity, 483, 484, note. And it is clear that a contingent use cannot be executed by the statute while the contingency remains suspended. 1 Sanders, Uses, 231. If the case supposed does not come within the statute, it must stand, apart from the warranty, as at common law. But we have seen that at common law a bargain and sale was void, both at law and in equity, without possession in one of the parties; and that the presence of a warranty could not aid the case, since it would be void for want of an estate, and since equity proceeded independently of the warranty. That is, at common law there would not be even a rebutter in such case. It would probably be carrying the case too far to assert the same rule of such a conveyance at the present time. That the modern covenant of warranty is not to be confined in its operation within the narrow limits of the common-law warranty is universally conceded; and there is no good reason, in principle, why the covenant should not now be as efficient without as with an estate. But we do not think that it could avail for any thing more (aside from giving the grantee a right of action in case of a breach) than a rebutter to the grantor and those in privity with him. Warranty, even in its palmy days, when collateral as well as lineal warranty flourished in all its vigor, never possessed the power of conveyance. See 2 Smith's L. C. 725 (6th Am. ed.). It was a well-established principle that it could not enlarge an estate, having no tortious effect; and therefore, when employed in aid of a wrongful alienation, it only operated against the alienor 1 See also the example given by Lord Hale, C. J., in Weule v. Lower, Pollex. 65: "If a feoffment be made to the use of C. and his heirs after the death of A. and B., this is no remainder, but a future use, and the feoffee is seised in fee-simple. . . . So, if the limitation of a use be that after two years, or after the death of John at Stiles, it shall be to the use of J. N. in fee, the feoffor hath the fee-simple remaining in him until this future use come in esse." and his representatives. It always took effect, if at all, in one of three ways, by rebutter, voucher, or warrantia charta. It cannot, we apprehend, do more now. If title could actually pass, when subsequently acquired, by the mere use of a warranty or other covenant, it would often be in the power of an heir to defeat the claims of the creditors of the ancestor. A conveyance with warranty, made before the ancestor's death, would, if not proved covinous, bring about this result. There is no need of extending the power of a warranty; it is sufficient for all proper purposes that it can be used effectually whenever the grantor or his privies attempt to defeat his expressed intention. Besides, if a covenant of warranty possessed such efficacy, it might well be asked, Why should the grantee in such a case be allowed to go into equity, and call for a further assurance from the grantor? And what is meant when it is said, in cases of admitted authority on this point, that the original deed is an agreement to convey the after-acquired interest, which equity will enforce? Whitfield v. Fausset;1 Wright v. Wright; 2 Taylor v. Dabar; Noel v. Bewley; Smith v. Baker;5 Goodson v. Beacham; Mc Williams v. Nisly;" Chew v. Barnet;8 Steiner v. Baugham.9 Some of the cases, however, stop short of asserting that the warranty operates as a conveyance. Thus the court of Ohio have said, in Douglass v. Scott, that the estoppel by warranty "adheres to the land, is transmitted with the estate; it becomes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact imposes upon it." If this means any thing more than that the covenant runs with the land into the hands of each succeeding grantee, it must mean that a conveyance with warranty, made before the grantor has a title, springs up in the nature of a lien upon the land the moment that title is acquired, so as to fall with any new conveyance as a burden upon the estate in the hands of the grantee. Now, it is apprehended that this is wholly at variance with the principle upon which liens are upheld against third persons. To effect this object, liens in the law of real property must be noto rious; it being an elementary principle that a purchaser of land without notice takes it free from its burdens. Conveyances by bargain and sale, not being accompanied by livery, have never been of a nature to affect the world with notice of their existence, except under the enrolment and registry laws. Before the English Enrolment Act they were resorted to because they were secret. 1 Stephen's Com. 534. And Mr. Rawle affirms that even under the American registry acts a grantee is not bound to take notice of a conveyance made by his grantor before he had a title. Rawle, Covenants, 428 (4th ed.). And there is much force in his position. But clearly there can be no necessary notice in the case of an unrecorded deed. Besides, it is difficult to see how the original conveyance can operate as a lien at all. The effect of the transaction is simply that of an agreement to make a conveyance when the title accrues, as was decided by Lord Hardwicke in Whitfield v. Fausset;1 and an agreement to convey is no more a lien than it is a conveyance. It may, however, be supposed, from the analogy of the relation of feoffor and feoffee, that there is a privity between the second grantee and his grantor, by which the former is precluded from claiming the land; and there is some color of authority for this position. Thus, in the case from Bacon's Abridgment (Leases, O), it is said that the reason why the feoffee takes subject to the lease is that, coming in under one who is estopped, he shall himself be estopped; and similar statements are sometimes made in cases of grantor and grantee. We apprehend that this is not an accurate view of the principle of privity; and we have seen that the case from Bacon's Abridgment may stand upon another and better foundation. It is true that in the old law a feoffee was said to be in privity with his feoffor (Coke, Litt. 352 a), but this was because the feoffee's tenure was subordinate to the right of the lord to fealty and service. The estoppel upon the feoffee was much like that upon a tenant now; and it may be doubted whether the estoppel continued long after the incidents of the feudal tenure became obsolete. But, however this may be, the relation of grantor and grantee has for most purposes been held antagonistic. Thus, in Osterhout v. Shoemaker,2 Bronson, J., says: "Although a tenant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor; and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel where the occupant is not under an obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. . . . He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.” And so it is held in Blight v. Rochester,1 Averill v. Wilson,2 and in other cases. See Bigelow, Estoppel, 290-293. 3 6 It is true that this doctrine applies to the case of the acquisition of an outstanding title on the part of the grantee, by which to fortify his position; and it is also true that where both parties to a contest for land claim from the same common title only, it is held that each will be estopped to deny the other's title. Murphy v. Barnett; Ives v. Sawyer; Den d. Love v. Gates; 5 Den d. Johnson v. Watts; Carver v. Jackson. But this rule prevails where the common title is identical, and where the grantee has no other to rely upon. Thus, in Ives v. Sawyer, the plaintiff brought ejectment against the defendant, the plaintiff claiming as devisee of one under whom she showed the defendant to claim by a defective deed; and the defendant, having no other title, was estopped from setting up the plea that the ancestor of the devisor had no title. And the case was similar in Douglass v. Scott, so often cited. The case under consideration is not parallel, because the parties, though claiming from a common source, do not claim by the same title; the first grantee claiming by a deed executed before the grantor had either title or seisin, and the second by a deed executed after he had acquired both. Besides, in Ives v. Sawyer the reason of the defendant's defeat was because his deed was defective; had his conveyance been perfect in form, he must have prevailed, without trying to impeach the ancestor's title. Nor in the present case does the second grantee seek to impeach the grantor's title; his own claim requires him to uphold it. He seeks to show that, as his grantor is admitted to have had no title when the first deed was executed, the first grantee took nothing under it. Again, if the second grantee is in privity with the common grantor, it should 17 Wheat. 535. 7 4 Peters, 1, 83. 2 4 Barb. 180. 5 Ib. 363. 3 1 Car. L. Rep. 106. |