S. E. 710, 5 Am. St. Rep. 317; Summerfield v. White, 54 W. Va. 311, 46 S. E. 154.

6. Rawle, Covenants for Title (5th Ed.) Sec. 248, and the numerous cases there cited; Bigelow Estoppel, 465; 2 Smith, Lead. Cas. Amer. notes 838; 11 Am. & Eng. Enc. Law, 418.

7. 1 Stimson, Am. St. Law, Sec.

1454; Rawle, Covenants for Title (5th Ed.) Sec. 249.

8. Burton v. Reeds, 20 Ind. 87; Blanchard v. Ellis. 1 Gray (Mass.) 193; Resser v. Carney, 52 Minn. 397, 54 N. W. 89; Tucker v. Clark, 2 Sandf. Ch. (N. Y.) 96; Woods v. North, 6 Humph. (Tenn.) 309; Mclnnis v. Lyman, 62 Wis. 191, 22 N. W.

The view that the conveyance operates to transfer the after-acquired title is frequently based on the theory that circuity of action is thereby avoided, the title being given to the grantee instead of compelling him to sue on the grantor's covenant for the damage caused by the want of such title. But, as before indicated, so far as the estoppel of the grantor is concerned, the presence of a covenant for title is immaterial, it being sufficient if the intention to convey a certain estate appears from any part of the conveyance,9-10 and as shown by an able writer, even when there are such covenants, the estoppel frequently operates although there is no right of action on a covenant.11 The theory referred to, of avoidance of circuity of action, however satisfactory it may be in many cases, does not serve to explain the decisions as a whole, and as stated by the same authority,12 the only satisfactory theory in this connection is that the courts have merely applied, under common law forms, the equitable principle that, where one having no title or an imperfect title, purports to convey

405. Contra, King v. Gilson, 32 111. 355; Baxter v. Bradbury, 20 Me. 260; Reese v. Smith, 12 Mo. 344; Farmers' Bank v. Glenn, 68 N. C. 35; Knowles v. Kennedy, 82 Pa. 445; Boulter v. Hamilton, 15 U. C. C. P. 125.

9-10. Ante, Sec. 545(a), notes 4, 5.

11. Rawle, Covenants for Title (5th Ed.) Sec. 251, where the following cases in which the estoppel has been held to operate in the absence of any liability on the covenants are enumerated; (1) When the estoppel is sought to be enforced against a purchaser of the subsequently-acquired title, and not against the grantor himself; (2) when a married woman is estopped (in some states) to claim after-acquired property, though not liable on the covenant; (3) when the state is held to be estopped, though not liable on the covenant; (4) when the grantor is estopped, though exempt from liability on the covenant owing to a discharge in bankruptcy; and (5) when he is estopped, though the claim on the covenant is barred by limitations. See the cases there cited, and also citations in 11 Am. & E. Encyc. Law (2d Ed.) 413. But that there is no estoppel in case there is no liability upon the covenants for title see Smiley v. Fries 104 111. 416; Webber v. Webber, 6 Me. 127; Goodel v. Bennett 22 Wis. 565.

12. Rawle Covenants for Title (5th Ed.) Sec. 264.

- (b) Character of conveyance. Since the estoppel of the grantor to assert the after acquired title is based upon the consideration that by his conveyance he purported to convey some certain estate or interest, there can be no such estoppel when the conveyance undertakes to transfer merely such an estate or interest as the grantor has,14 and the fact that such a convey13. Taylor v. Debar 1 Ch. Cas. 274; Noel v. Bewley, 3 Simons, 103; Smith v. Baker, 1 Y. & Col. C. C. 223; Jones v. Kearney, 1 Dru. & W. 134, 159; In re Bridgewater's Settlement (1910), 2 Ch. 342; Holyrood v. Marshall, 10 H. L. Cas. 191, 211 per Lord Westbury; Wright v. Shumway, 1 Biss. 23; Goodson v. Beacham, 24 Ga. 150; Mississippi Sawmill Co. v. Douglas, 107 Miss. 678, 65 So. 885; Lewis v. Baird, Fed. Cas. No. 8,316, 3 Mclean, 80; Hannon v. Christopher, 34 N. J. Eq. 459; Buckingham v. Hanna, 2 Ohio St. 551, 558; Chew v. Barnet, 11 Serg. & R. 389; Jordan v. Chambers, 226 Pa. 573, 75 Atl. 956; Taylor v. Swafford, 122 Tenn. 303,

123 S. W. 350. See Judge Hare's note, 2 Smith's Leading Cas. (8th Am. Ed.) at p. 850.

14. Vary v. Smith, 162 Ala. 457, 50 So. 187; Quivey v. Baker, 37 Cal. 465; Dailey v. Springfield, 144 Ga. 395, 87 S. E. 479; Benneson v. Aiken, 102 111. 284, 40 Am. Rep. 592; Harriman v. Gray, 49 Me. 537; Fay v. Wood, 65 Mich. 390, 32 N. W. 614; Gibson v. Chouteau, 39 Mo. 536; Perrin v. Perrin, 62 Tex. 477; Jourdain v. Fox, 90 Wis. 99, 62 N. W. 936. But in South Carolina a conveyance of "all my right title and interest" in certain land has been regarded as creating the estoppel, on the theory, apparently, that such a conveyance is a quitclaim deed, ance contains covenants for title does not change its character in this respect.15

Likewise, if the conveyance purports to pass a limited or partial interest only, the estoppel extends only to such interest, even though the grantor subsequently acquires a greater interest.16 And, if a conveyance is in terms subject to a mortgage, the subsequent acquisition by the grantor of the mortgagee's interest does not enure to the grantee's benefit, provided the covenant for title expressly excepts the mortgage,17 and, it would seem, even though there is no such express exception, since the covenant may well be regarded as restricted by the character of the interest which the conveyance purports to convey.18 And so if a married woman joins in her husband's conveyance and a quitclaim deed is effectual as a conveyance. Blackwell v. Harrelson, 99 S. C. 264, 84 S. E. 33. See post, this section, notes 20-24.

15. Hanrick v. Patrick, 119 U. S. 156, 175, 30 L. Ed. 396; Kimball v. Semple, 25 Cal. 440; Hol-brook v. Debo, 99 111. 372; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331; Bennett v. Davis, 90 Me. 457, 38 Atl. 372; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Bogy v. Shoab, 13 Mo. 365; Bell v. Twilight, 26 N. H. 401; Coble v. Barringer, 171 N. C. 448, L. R. A. 1916E, 901, 88 S. E. 518; White v. Brocaw, 14 Ohio St. 339; Rawle, Covenants for Title, Sec. 250.