General considerations.


Character of conveyance.


Necessity and character of covenants.


Cases to which doctrine inapplicable.


Persons bound by the estoppel.


Estoppel by representation.


Improvements by oral grantee.

Sec. 545. Assertion of after acquired title - (a) General considerations

At common law, a transfer of land by feoffment, fine, or common recovery operated to transfer any estate or interest which might be subsequently acquired by the transferor, in case he did not, at the time of making the assurance, have such an estate as he purported to transfer.1 A lease by indenture had a partially similar effect, in thav, if the lessor did not have any interest in the land at the time of making the lease, an interest subsequently acquired by him became subject thereto, though this was not always the case if the lessor had some interest at the date of the lease.2 Conveyances other than those named had no such effect of passing an after acquired interost or title at common law, nor have they in England at the present day.3

1. Bigelow, Estoppel (6th Ed.) 419, 450-456; Rawle, Covenants for Title (5th Ed.) Sec. 243; Doe d. Christmas v. Oliver, 10 Barn. & C. 181; Sturgeon v. Wingfield, 15 Mees. & W. 224.

2. Co. Litt. 47b; Williams, Real Prop. (21st Ed.) 507; Tiffany, Landlord & Tenant, Sec. 76;

A good title to another, and afterwards acquires the land under another title, he may he compelled to convey to such other the title so acquired. That is, if an attempted conveyance of a certain estate or interest in land is ineffective by reason of the fact that the grantor has not title to the land at the time of the conveyance, equity will regard the attempted conveyance as a contract to convey, and will compel specific performance thereof upon his subsequent acquisition of title.13 And the courts of this country, in so far as they regard the after acquired title as actually passing to the grantee, have merely taken the further step of regarding as done what equity would compel to be done.

Doe d. Strode v. Seaton, 2 Cromp., M. & R. 728; Trevivan v. Lawrence, 1 Salk. 276.

3. Williams, Real Prop. (21st Ed.) 507; Rawle, Covenants for Title (5th Ed.) Sec.Sec. 244, 246, 262; Bigelow, Estoppel, 459 et seq; 2 Smith, Lead. Cas. Amer. notes 839; Right v. Bucknell, 2 Barn.

It has been recognized in England,4 as it has in numerous jurisdictions in this country,5 that if a conveyance purports to transfer a certain estate, whether this appears from recitals, covenants, or any other part of the instrument, the grantor is estopped thereafter to assert that, by reason of lack of title in him at the time, such an estate did not pass by the conveyance, to assert, in other words, that he acquired title after and not before the conveyance. This latter view is ordinarily referred to as involving merely an application of the common law doctrine of estoppel by deed, precluding a party to a deed from contradicting or disproving any declaration or averment therein. Frequently, however, it might as well be regarded as involving an application of the modern doctrine of estoppel by misrepresentation, the grantor, that is, having induced a change of position on the part of the grantee, the payment of purchase money, by his representation that he has an estate of a certain character,

& Adol. 278; General Finance, Mortgage & Discount Co. v. Liberator Permanent Benefit Efldg. Soc. 10 Ch. Div. 15.

4. See Right v. Bucknell, 2 B. & Ad. 278; Heath v. Crealock, L. R. 10 Ch. 30; Bensley v. Burdon, 2 Sim. & S. 524, 8 L. J. Ch. 85; General Finance, etc., Co. v. Liberator, etc., Society, 10 Ch. Div. 15; Poulton v. Moore (1915), 1 K. B. 400.

5. Van Rennsselaer v. Kearney, 11 How. (U. S.) 297, 13 L. Ed. 703; Diaz v. Sanchez, 226 U. S. 234, 57 L. Ed. 201 (sem-ble); Molina v. Ramirez, 15 Ariz. 249, 138 Pac. 17; Clark v. Baker, 14 Cal. 629, 76 Am. Dec. 449; Doe dem Potts v. Dowdall. 3 Houst. (Del.) 369; Habig v. Dodge, 127 Ind. 31, 25 N. E. 182; Pring v. Swarm, 176 Iowa, 153,

157 N. W. 734; Fitzhugh v. Tyler, 9 B. Mon. (Ky.) 561; Cornelius v. Kinnard, 157 Ky. 50, 162 S. W. 524 (semble); Wells v. Blackman, 121 La. 324, 46 So. 437 (semble); Pendill v. Marquette County Agricultural Soc, 95 Mich. 491, 55 N. W. 384; Mc-innes v. Pickett, 65 Miss. 354, 3 So. 660; Hagensick v Castor, 53 Neb. 495, 73 N. W. 932; Han-non v. Christopher, 34 N. J. Eq. 465; Northrup v. Ackerman, 84 N. J. Eq. 117, 92 Atl. 802, 309; Hallyburton v. Slagle, 132 N. C. 947, 44 S. E. 655; Keady v. Martin, 69 Ore. 299, Ann. Cas. 1916A, 796, 137 Pac. 856; Root v. Crock, 7 Pa. 378; Lindsay v. Freeman, 83 Tex. 259, 263, 18 S. W. 727; Breen v. Morehead, 104 Tex. 254, 126 S. W. 650; Reynolds v. Cook, 83 Va. 817, 3 is thereafter estopped to deny that he had such an estate at the time of the payment. Whichever theory be adopted, there is no necessity of regarding the after acquired title as actually passing to the grantee. In this country, however, there are decisions and numerous dicta to the effect, not only that the grantor in a conveyance is estopped to deny that it passed the estate which it purported to pass, but also that the conveyance actually passes, by way of estoppel, any estate or title which the grantor may thereafter acquire in the land, if this is within its apparent scope, and especially if it contains certain covenants of title.6 There are, moreover, in a number of states, statutory provisions to this effect.7

For most purposes, the question whether there is merely an estoppel on the grantor to assert the after-acquired title, or whether such title actually passes under the conveyance, is immaterial. The distinction between the two views is, however, important in that, as between the grantor and grantee, the effect of the application of the rule, without exception, that a conveyance containing a covenant of title operates to pass an after-acquired estate, would be that the grantee would be compelled to take such an estate, and would not have the option of refusing so to do, and of recovering full damages on the covenant. Recognizing the injustice of such a result, it has occasionally been held that the grantee has such an option, and is not compelled to accept the after-acquired estate in partial or total satisfaction of the covenant.8