This is at present more frequently resorted to in practice than the former mode of estoppel; but it does not seem to demand, in a work like the present, a full exposition. The general rule may be thus illustrated. A party to a bond, or to an indenture, or to a deed of conveyance, can deny nothing which the bond in its condition, or the indenture or deed of conveyance in their recitals, aver. (i) But the seal has no longer the solemnity or pally, where former judgments, or some facte incidentally disposed of in or by a former judgment, is relied upon by a party, and the record is offered as evidence. We should say that the weight of American authority was in favor of the doctrine, that the record is evidence, but not conclusive evidence. See Robinson v. Jones, 8 Mass. 536;. Matey v. Shattuck, 3 Cranch, 458; Peters v. Warren Ins. Co. 3 Sumn. 389; Gelston v. Hoyt, 3 Wheat. 246; Beatty v. Randall, 3 Allen, 441. In England it is perhaps conclusive evidence. See Blad v. Bamfield, 3 Swanst. 604.

(hh) Plate v. Central R. R. Co. 37 N. T. 472.

(hi) Burlen v. Shannon, 99 Mass. 200; Lea v. Lea, id. 498.

(i) 1 Roll. Abr. 872, 80, 50; Jewell v.

-----, 1 Roll. R. 408; Rainsford v. Smith,

2 Dyer, 196 a. If a recital is a statement which all parties have agreed upon as true, it is conclusive on all. Goodtitle v. Bailey, 2 Cowp, 597; Right v. Proctor, 4

Burr. 2208; Wood v. Day, 7 Taunt. 646; Fairtitle v. Gilbert, 2 T. R. 169; Hill v. Manchester & S. W. Co. 2 B. & Ad. 544; Lainson v. Tremere, 1 A. & E. 792; Harding v. Ambler, 3 M. & W, 279; Doe v. Horne, 3 Q. B. 757; Stowe v. Wyse, 7 Conn. 214; Washington Co. Ins. Co. v. Colton, 26 id. 42; Jackson v. Parkhurst, 9 Wend. 209; Decker v. Judson, 16 N. Y. 439; Carver v. Jackson, 4 Pet. 1, 83. But even in an indenture, where a recital is intended as the statement of one party only, it is binding on him alone. Stroug hill v. Buck, 14 Q B. 781. If the condition contain a generality to be done, the party shall not be estopped to say there was not any such thing; but in all cases where the condition of a bond has reference to a particular thing, the obligor shall be estopped to say there is no such thing. Roll. Abr. Estoppel, P. 7; Strowd v. Willis, Cro. Eliz. 362; Shelley v. Wright, Willes, 9. Thus in Billingsley v. State, 14 Md. 369. it was heldt that a recital of a force which it once had; and while this principle is of great importance as a rule of evidence, or rather as strengthening the rule, that nothing outside of a written contract shall be permitted to come in and contradict or avoid the contract, as mere matter of estoppel it has little force, unless when it rests upon the equitable grounds to be mentioned in the next section.

A general rule has, however, been asserted which certainly rests upon reason and justice. It is, that where a party has accepted and made his own the benefit of a contract, he has estopped himself from denying in the courts the validity of the instrument by which those benefits came to him. (ii)1

The most important application of the rule of estoppel by deed, is this: if a grantor, or those claiming under him, come into a new title subsequently to the grant, which title is paramount to that which the grantor had, or the grantee has, he or they may enforce this title, and oust the grantee or those claiming under him, provided, that the grant was without warranty;2 but not if the grant were with warranty. The reason usually assigned being, that the grantee, if evicted, would turn round upon the evictors, on the covenants of warranty. (j) The rule * itself has been person's office, as collector, in the condition of an official bond for the faithful performance of the duties of the office, estopped the parties to the bond from denying that the principal obligor had been appointed collector. A general recital is not an estoppel, though the recital of a particular fact is. Salter v. Kidley, 1 Show. 58; Rainsford v. Smith, supra. In Right v. Bucknell, 2 B. & Ad. 278, a covenant that one was "legally or equitably" entitled, did not estop a subsequent mortgage on the legal estate which the covenantor afterwards acquired. In most American courts, the recital in a deed of the payment of money or consideration clause, may be denied, the object of the deed being to transfer the title, and not to state the terms of the purchase. The general operation of the deed being untouched, evidence varying the consideration may be received. M'Crea v. Purmort, 16 Wend. 460; White v. Miller, 22 Vt. 380; Wilkinson v. Scott, 17 Mass. 249;

Pritchard v. Brown, 4 N. H. 397 ; supra, vol. i. p. * 430, n. (j). But there is no estoppel which shall prevent a party from saying that a deed is inoperative and void. Doe v. Howells, 2 B. & Ad. 744; Doe v. Ford, 3 A. & E. 649; Blake v. Tucker, 12 Vt. 39; Kinsman v. Loomis, 11 Ohio, 475; Winsted Bank v. Spencer, 26 Conn. 195; Wallace v. Miner, 6 Ohio, 366; Kercheval v. Triplett, 1 A. K. Marsh. 493; People's Savings Bank v. Collins, 27 Conn. 142.

(ii) Hathaway v. Payne, 34 N. T. 92.

(j) A grant, release, or bargain and sale, only operate as a conclusion between parties and privies, and do not bind or transfer future or contingent estates, but act only on that estate which the grantor actually had. Jackson v. Hubble, 1 Cowen, 613; Edwards v. Varick, 5 Denio, 664; Blanchard v. Brooks, 12 Pick. 47; Doane v. Willcutt, 5 Gray, 328, Ham v. Ham, 14 Me. 351; Kinsman v. Loomis, 11 Ohio, 475; Bell v. Twilight, 6 Foster, 401. But a feoffment, fine, or common recovery, carried so far as to hold, that one who, without title, but in possession of land, mortgages it with warranty, and afterwards acquires title, the title acquired by the mortgagor passes at once to the mortgagee by force of the warranty. (k) And some of our courts have even held, that the warranty in the deed of a married woman, has the same effect in transferring future interests, as if made by a feme sole. (l) In other courts this is denied. (m)

1 As where a city by its contract, not invalid, but in the making of which there is a defect of power, induces performance and the expenditure of money, it is liable. East St. Louis v. East St. Louis Gas, etc. Co. 98 Ill. 415.

2 As by a quitclaim deed. Holbrook v. Debo, 99 Ill. 372. Where, however, a grantor assumed to convey a title by a deed, in which the only covenant was that of quiet enjoyment, he was estopped from asserting an after-acquired title as against bis grantee. Smith v. Williams, 44 Mich. 240.

The authorities for the general rule are numerous and decisive; and we regard not the rule only, but the reason above assigned for the rule, as a part of our American common law. But this reason for the rule has been questioned, with great ability, although not, as we think, overthrown, in the notes to the American edition of Smith's Leading Cases. (n) The learned annotators prefer to place the rule, which, in itself, can hardly be questioned, "on the broader basis of giving effect to the intention of the parties as expressed in the deed." (o) We should admit that the rule rests on this foundation also; and that a grantor without warranty, should be considered as intending to grant only what he has; while a grantor with warranty, intends to grant what he has or may subsequently acquire, otherwise than by the grantee's act. But we do not see that this is necessarily inconsistent with the commonly received doctrine.

An application of the principle of estoppel by deed has been made where a railroad company executed a mortgage to secure 400 bonds, $1000 each, and by mistake issued and sold 420, the purchasers taking them in ignorance of the over-issue. The comfrom their great solemnity, always passed an estate and divested the feoffor of all his estate, present or afterwards acquired. Co. Litt. 9 a; Helps v. Hereford, 2 B. & Ald. 242; Rawle on Cov. 320, 321. But with warranty there is an estoppel, to prevent circuity of action, as has been said, though Mr. Rawle questions the sufficiency of the reason to sustain all the cases. Jackson v. Window, 9 Cowen, 13; Kellogg v. Wood, 4 Paige, 578; Dart v. Dart, 7 Conn. 250; Pike v. Galvin, 29 Me. 183; Kimball v. Blaisdell, 5 N. H. 533; Blake v. Tucker, 12 Vt. 39; Wade v. Lindsay, 6 Met 407; Bush v. Marshall, 6 How. 284, 291; Thorndike v. Norm, 4 Foster, 454.

(k) White v. Patten, 24 Pick. 234; Wark v. Willard, 13 N. H. 389; Baxter v. Bradbury, 20 Me. 260; Root v. Crock, 7 Barr, 378; and by statute in Arkansas. In England, such conduct seems to be regarded as creating a personal equity attaching to the conscience of the party, and not descending with the land. Sugden, quoted in Rawle on Covenants, 345; Morse v. Faulkner, 1 Austr. 11.

(l) Hill v. West, 8 Ohio, 222; Massie v. Sebastian, 4 Bibb, 433; Fowler v. Shearer, 7 Mass. 14, 21.

(m) Jackson v.Vanderheyden, 17 Johns. 167; Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Wadleigh v. Elines, 6 N. H. 17; Den v. Demarest, 1 N. J. 525, 541, and by statute in Virginia, Illinois, Michigan, and Wisconsin.

(n) 2 Smith, L. Cas. (Am. ed.) 625-642. See also Rawle on Covenants, c. ix.

(o) 2 Smith's L. Cas. (Am. ed.) p. 637, citing Jackson v. Bull, 1 Johns. Cas. 81; Jackson v. Murray, 12 Johns. 201; Jackson v. Stevens, 16 id. 110; Brown v. McCormick, 6 Watts, 60; Reeder v. Craig, 3 McCord, 411.

pany was held estopped from denying that the extra twenty were secured by the mortgage. (oo)

A deed does not work a conclusive estoppel as to facts which it recites, if they do not enter into the contract of conveyance; such as the date, the receipt of the price, or other consideration. (op) But as to facts which belong to the contract, they are conclusive. Thus, if one sells land bounded on a street, he is estopped from shutting it up from the use of the grantee, although it has not been dedicated to the public. (oq)