619; Pelletreau v. Jackson, 11 Wend, no; Jackson v. Waldron, 13 Wend. 178. And it may be considered as opposed by the cases of Jackson v. Bull, 1 Johns. Cas. 81, and Jackson v. Murray, 12 Johns. R. 201. If they be so considered, they were overruled by the case of Pelletreau v. Jackson. In Ohio it is sustained by the case of Kinsman v. Loomis, II Ohio, 475.
The only suitable inquiry to be entertained in this State is, whether our own case of Fairbanks v. Williamson, although the doctrine asserted in it may have been approved elsewhere, as well as in the case of White v. Erskine, can, upon sound principles, be sustained. The deed in that case, contained no covenant but that of non-claim. The ground, upon which it was decided that a title subsequently acquired inured to the vendee appears to have been that the covenant of non-claim was "a covenant real, which runs with the land and estops the grantor and his heirs to make claim, or set up any title thereto."
Covenants which relate to the land, are said to run with the land. Sale v. Kitchingam, 10 Mod. 158; Norman v. Wells, 17 Wend. 136. But a covenant, which may run with the land, can do so only when the land is conveyed. It can only run, when attached to the land, as its vehicle of conveyance. Spencer's Case, 5 Coke, 17 b; Lucy v. Levingston, 2 Lev. 26; Lewes v. Ridge, Cro. Eliz. 863; Bickford v. Page, 2 Mass. 460; Slater v. Rawson, 1 Metc. 456; White v. Whitney, 3 Metc. 81; Clark v. Swift, 3 Metc. 390; Chase v. Weston, 12 N. H. 413; Garfield v. Williams, 2 Verm. 327; Beardsley v. Knight, 4 Verm. 471; Mitchell v. Warner, 5 Conn. 497: Kane v. Sanger, 14 Johns. 89; Beddoe v Wadsworth, 21 Wend. 120; Garrison v. Sandford, 7 Halst. 261; Randolph v. Kinney, 3 Rand. 394; Backus v. McCoy, 3 Ham. 211; Allen v. Wooley, 1 Blackf. 149. The cases of Kingdon v. Nottle, 1 M. & S. 353, and 4 M. & S. 53, are denied to have been correctly decided in Mitchell v. Warner, 5 Conn. 497, and in Clark v. Swift, 3 Metc. 390. Kent, also, in speaking of covenants which run with the land, says: "They cannot be separated from the land and transferred without it, but they go with the land, as being annexed to the estate." 4 Kent's Com. 472, note b.
Admitting the covenant in the deed alluded to in Fairbanks v. Williamson, to be a covenant that might run with the land, it could not run or be transferred by law to the assignee of the grantee, so as to enable him to derive any benefit from it. Nor could it operate in his favor by way of estoppel to prevent circuity of action, for he could maintain no action on that covenant. Nor could it so operate in any other mode, unless there had been found some allegation in the deed by which the releasor had asserted some matter to be true, which he must necessarily contradict, and deny to have been true, if he would claim to be the owner of the land. In such case he would have been estopped, because the law will not permit one who has in such a solemn manner admitted a matter to be true, to allege it to be false. "This," says Kent, "is the reason and foundation of the doctrine of estoppels." 4 Kent's Com. 261, note d.; where he also says, "A release or other deed, when the releasor or grantor has no right at the time, passes nothing, and will not carry a title subsequently acquired, unless it contains a clause of warranty; and then it operates by way of estoppel, and not otherwise." The covenant of non-claim asserts nothing respecting the past or the present. It is only an engagement respecting future conduct.
One who acquires no title by a release without covenants respecting the title cannot recover back the purchase money which he paid for it. Emerson v. The County of Washington, 9 Greenl. 88. To permit him to acquire a title subsequently purchased by his releasor would often enable him to obtain in another and less direct mode property of more value than the purchase money.
The conclusion is that the doctrine asserted in the case of Fairbanks v. Williamson cannot, upon sound principles, be admitted, and that the decided cases in this and other States are opposed to it.
When Jellison made his deed of release to the demandant, he was in possession in submission to the title of Ward, and was but a tenant at will to him. Not being seised of a fee simple, he could not convey it. The demandant must have known, when he received that deed, that Jellison had no title and could convey none, for he at the same time took an assignment of Jellison's contract to purchase that land of Ward. He subsequently acted as an appraiser to make a levy and to pass the title to a part of that land from a grantee of Jellison to a creditor of that grantee. There is no allegation in the deed of Jellison to the demandant respecting the title which it would be necessary for Jellison or his grantee to deny or contradict by setting up a title subsequently acquired.
2. Estoppel in pais - Equitable Estoppel.
71 Hun, 412. - 1893.
ACTION to recover real estate.
MERWIN, J. - Upon the trial of this action it was shown on the part of the plaintiff that Havilla D. Blakeslee, by deeds dated September 25, 1834, ami September 22, 1838, became the owner of a quantity of land, and thereafter, by deed dated December 3, 1880, and duly recorded December 4, 1880, he, with his wife, conveyed the same to the plaintiff, excepting sixteen acres theretofore conveyed to the plaintiff. The premises in dispute are a part of the lands described in these deeds. The consideration of the deed of December 3, 1880, as stated in the deed is the sum of one dollar and the maintenance and support of the parties of the first part during their natural lives. It was then shown on the part of the defendant, that Havilla D. Blakeslee and wife, by warranty deed dated December 1, 1882, and recorded December 5, 1882, conveyed the premises in dispute to the defendant for the consideration therein named of $680, which defendant at the time paid to the grantor or the person acting for him. Havilla D. Blakeslee was the grandfather of plaintiff, and evidence was given tending to show that plaintiff at this time lived with his grandparents, on the farm of which the premises in question were a part; that he knew of the negotiations for the purchase by defendant of the grandfather; that during these negotiations the defendant saw the plaintiff, told him he was talking about buying a piece of land of his grandfather, and had heard that he, the plaintiff, had an interest in it, and asked him whether that was so, and whether he had any deed or mortgage against it; and he, the plaintiff, replied that he had no deed or mortgage against it, and had no interest in his grandfather's premises; that the plaintiff at the time knew that he was the legal owner of the property, and made the statement to defendant with intent to deceive him and induce him to buy of his grandfather; that the defendant thereupon, in reliance upon the truth of the plaintiff's statement, and in ignorance of the true state of the title, made the purchase of the grandfather.