This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
34. Allen v. Sayward, 5 Me. 227, 17 Am. Dec. 221; Doane v. Willcutt, 5 Gray (Mass.) 333, 66 Am. Dec. 369; Chauvin v. Wagner, 18 Mo. 531. Contra, Wight-man v. Reynolds, 24 Miss. 675. And see Irvine v. Irvine, 9 Wall. (U. S.) 617, 19 L. Ed. 800; Van-derheyden v. Crandall, 2 Den. (N. Y.) 9.
Short, - Tex. Civ. App. - , 151 S. W. 633.
35. Ante, this section, note 5.
36. Kimball v. Blaisdell, 5 N. H. 533; Gibbs v. Thayer, 6 Cush. (Mass.) 30; Coal Creek Min. & Mfg. Co. v. Ross, 12 Lea (Tenn.) 1. Compare, Bennett v. Davis. 90 Me. 457, 38 Atl. 372.
37. Condit v. Bigalow, 64 N. J. Eq. 504, 54 Atl. 160.
38. Erwin v. Morris, 26 Kan. 664; Rauch v. Dech, 116 Pa. 157. 2 Am. St. Rep. 598, 9 Atl. 180; Goode v. Bryant, 118 Va. 314, 87
S. E. 588
Adverse possession,39 tax sale,40 or otherwise.41 In such a case the grantor asserts, not that the conveyance failed to pass the interest which it purported to pass, but merely that, after such interest had, by the conveyance, become vested in the grantee, it was diverted out of him and vested in the grantor. Nor is the grantor . estopped to assert that, under the circumstances of the case, while the legal title was by the conveyance vested in the grantee, the beneficial interest was vested in another.42
If one who has conveyed land in his own right subsequently acquires a title thereto, not in his own right but as trustee for another, the doctrine here under discussion does not apply. One cannot thus affect the interest of another by purporting to convey more than he has.43 But one may, it seems, by a conveyance in an official or representative capacity, by which he purports to convey a certain interest or estate, be estopped to assert a title subsequently acquired by him in his
39. Abbett v. Page, 92 Ala. 571, 9 So. 332; Doolittle v. Robertson, 109 Ala. 412, 19 So. 851; Garibaldi v. Shattuck, 70 Cal. 511, 11 Pac. 778; Berthelemy v. Johnson, 3 B. Mon. (Ky.) 90, 38 Am. Dec. 179; Hines v. Robinson, 57 Me. 324, 99 Am. Dec. 772; Stearns v. Hendersass, 9 Cush. (Mass.) 497, 57 Am. Dec. 65; Horbach v. Boyd, 64 Neb. 129, 89 N. W. 644; Tilton v. Emery, 17 N. H. 536; Sherman v. Kane, 86 N. Y. 57; Johnson v. Farlow, 13 Ired, L. (35 N. C.) 84; Chatham v. Lonsford. 149 N. C. 363, 63 S. E. 81; Harn v. Smith, 79 Tex. 310, 23 Am. St. Rep. 340, 15 S. W. 240.
40. Erwin v. Morris, 26 Kan. 664; Foster v. Johnson, 89 Tex. 640, 36 S. W. 67. But only if the sale was for taxes which came due after the conveyance.
Hannah v. Collins, 94 Ind. 201; Porter v. Lafferty, 33 Iowa, 254; Gardner v. Gerrish, 23 Me. 46 Frank v. Caruthers, 108 Mo. 569, 18 S. W. 927.
41. Thielen v. Richardson, 35 Minn. 509, 29 N. W. 677.
42. Harrold v. Morgan, 66 Ga. 398; Condit v. Bigalow, 64 N. J. Eq. 504, 54 Atl. 160.
43. Dewhurst v. Wright, 29 Fla. 223, 10 So. 682; Phillippi v. Leet, 19 Colo. 246, 35 Pac. 540; Kelley v. Jenness, 50 Me. 455, 79 Am. Dec. 623; Harlan v. Jordan, 104 Me. 49, 70 Atl. 1066; Runlet v. Otis, 2 N. H. 167: Wark v. Willard, 13 N. H. 389; Jackson v. Mills, 13 Johns. (N. Y.) 463; Buckingham v. Hanna, 2 Ohio St. 551; Burchard v. Hubbard, 11 Ohio, 316; Fre-telliere v. Hindes, 57 Tex. 392; Newton v. Easterwood, Tex. Civ.
Own right,44 particularly if the instrument contains a personal covenant by him for title,45 it being recognized that he may by such a conveyance be estopped to assert a title which he actually has at the time thereof.46
In the case of a purchase money mortgage, the mortgage is properly to be construed as purporting to convey or charge such interest only as the mortgagor acquired by the conveyance from the mortgagee, and consequently, if he acquired no title or an imperfect title thereby, the mortgagee cannot claim the benefit of a title subsequently acquired by the mortgagor, the purchaser.47 And so, it would seem, when cotenants claiming under a single title make voluntary partition, the mutual conveyances executed by them to carry the partition into effect may properly be regarded as purporting to convey only such title as they all have, and if one subsequently acquires a paramount title, he should not be estopped to assert it as against the others,48 a result wmich might also be attained on the theory49 that the purpose and effect of such conveyances is not to transfer interests in land but merely to designate the share of each of the parties.50
App. - , 154 S. W. 646; Gregory v. Peoples, 80 Va. 355.
44. Molina v. Ramirez, 15 Ariz. 249, 138 Pac. 17; Mountain Home Lumber Co. v. Swartwout, 30 Idaho, 559, 166 Pac. 271.
45. Prouty v. Mather, 49 Vt. 425; See Morris v. Wheat, 8 App. D. C. 379; Hitchcock v. Southern Iron & Timber Co., -Tenn - , 38 S. W. 588; Ver-meule v. Vermeule, 113 Me. 74, 93 Atl. 37.
46. Rannels v. Howe, 145 Fed. 296, 74 C. C. A. 376; Poor v. Robinson, 10 Mass. 131; Wells v. Steckelberg, 52 Neb. 597, 66 Am. St. Rep. 529, 72 N. W. 865; Kellerman v. Miller, 5 Pa. Super. Ct. 443; Corzine's Heirs v. Williams, 85 Tex. 499, 22 S. W. 399; Carbee v. Hopkins, 41 Vt. 250.
47. Randall v. Lower, 98 Ind. 255; Brown v. Phillips, 40 Mich. 264. And see Butterfield v. Lane, 114 Me. 333, 96 Atl. 233. Contra, Hitchcock v. Fortier, 65 111. 239. The latter case is disapproved in Rawle, Covenants for Title, Sec. 267; Bigelow, Estoppel (6th Ed.) 448.
48. See Rector v. Waugh, 17 Mo. 26; Pendill v. Marquette County Agric. Soc. 95 Mich. 491, 55 N. W. 384; Carson v. Carson, 122 N. C. 645, 30 S. E. 4; Doane v. Willicutt, 5 Gray (Mass.) 328.
49. Ante, Sec. 203.
50. See Harrison v. Ray, 108
- (e) Persons bound by the estoppel. If, after executing the conveyance, the grantor acquires an estate in the land and then dies, his heir is precluded, to the same extent as was the grantor himself, from asserting that such after-acquired title did not enure to the benefit of the grantee.51 But while the heir is estopped to assert a title subsequently acquired by the grantor, the heir is not estopped to assert a title subsequently acquired by him from a source other than his ancestor, the grantor.52