The question whether one to whom the grantor, after his subsequent acquisition of title, undertakes to make a conveyance, is estopped, as was the grantor, to assert such subsequently acquired title, is one of considerable difficulty. It has been frequently said that an estoppel by deed binds not only parties but also privies,53 and a like statement is ordinarily made in regard to estoppel by misrepresentation.54 Strictly applying such a rule, the estoppel would operate against a subsequent grantee although he is a purchaser for value without notice of the prior conveyance by his grantor. And there are a considerable number of cases which appear to adopt such a view, that the subsequent grantee is estopped to assert the aftern. Car. 215, 11 L. R. A. 722, 23 Am. St. Rep. 57, 12 S. E. 993; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520.

51. French v. Spencer, 21 How. (U. S.) 228, 16 L. Ed. 97; Perry v. Kline, 12 Cush. (Mass.) 118; Russ v. Alpaugh, 118 Mass. 369, 19 Am. Rep. 464; Wark v. Wil-lard, 13 N. H. 3S9; Tefft v. Mun-son, 57 N. Y. 97; Du Bose v. Kell, 90 S. C. 196, 71 S. E. 371. See Chace v. Gregg, 88 Tex. 552, 32 S. W. 520.

52. Zimmerman Mfg. Co. v. Wilson, 147 Ala. 275, 40 So. 515; Ebey v. Adams, 135 111. 80, 10 L.

R. A. 162, 25 N. E. 1013; Galladay v. Knock, 235 111. 412, 85 N. E. 649; Wilson v. Godfrey, 145 Iowa, 696, 124 N. W. 875; Russ v. Alpaugh, 118 Mass. 369, 19 Am. Rep. 464; Gorton v. Roach, 46 Mich. 294, 9 N. W. 422; Wm. D. Cleveland & Sons v. Smith, - Tex. Civ. App - , 113 S. W. 547. See editorial note, 10 Columbia Law Rev. 483.

53. See cases cited 16 Cyclopedia Law & Proc. 715; Bigelow, Estoppel (6th Ed.) 372.

54. See 16 Cyclopedia Law & Proc. 778; Bigelow, Estoppel, 629.

Acquired title of his grantor, as against a prior grantee of the latter, without reference to whether such subsequent grantee has or has not notice of the prior conveyance.55 In some cases, however, a contrary view is asserted, expressly or by implication, that the subsequent grantee is not bound by the estoppel unless he had notice of the prior conveyance by his grantor.56 In several of these latter cases the question chiefly discussed is whether the subsequent grantee is charged with notice by the record of the prior conveyance, this occurring before his grantor acquired title. This question has ordinarily been answered in the negative, that is, the purchaser was regarded as under no obligation to search the records for conveyances by his

55. Letson v. Roach, 5 Kan. App. 57, 47 Pac. 321; Morrison v. Caldwell, 5 T. B. Mon. (Ky.) 426, 17 Am. Dec. 84; Powers v. Patten, 71 Me. 583; White v. Patten, 24 Pick (Mass.) 324; Knight v. Thayer, 125 Mass. 25; Ayer v. Philadelphia & B. Face Brick Co., 159 Mass. 84, 34 N. E. 177; Philly v. Sanders, 11 Ohio St. 490, 78 Am. Dec. 316; Mccusker v. Mcevey, 9 R. I. 528, 10 R. I. 606, 11 Am. Rep. 295; Jarvis v. Aikens, 25 Vt. 635. See Owen v. Brookfort, 208 111. 35, 69 N. E. 952; Colonial & (J. S. Mtge. Co. v. Lee. 95 Ark. 253, 129 S. W. 84; Organ v. Bunnell - Mo. - , 184 S. W. 102.

A like doctrine has been in one case applied, as against a purchaser of land to which an casement appertained, in favor of one to whom the servient tenement had previously been con veyed, with a covenant of warranty, it being held that the grantor of the servient tenement was estopped to assert the easement against his grantee, upon acquiring the dominant tenement, and that one to whom he conveyed the latter was also estopped. Hodges v. Goodspeed, 20 R. I. 537, 40 Atl. 373. See 12 Harv. Law Rev. at p. 219.

56. Rozell v. Chicago Mill & Lumber Co., 76 Ark. 525, 89 S. W. 469; Wheeler v. Young, 76 Conn. 44, 55 Atl. 670; Way v. Arnold, 18 Ga. 181; Donahue v. Vosper, 189 Mich. 78, 155 N. W. 407; Ford v. Unity Church Soc, 120 Mo. 498, 23 L. R. A. 561. 41 Am. St. Rep. 711, 25 S. W. 394; Great Falls Co. v. Worster, 15 N. H. 452 (dictum); Bingham v. Kirkland, 34 N J. Eq. 221; Farmer's Loan & Trust Co. v Maltby, 8 Paige (N. Y.) 361; Doyle v. Petroleum Co., 44 Barb. (N. Y.) 240 (semble); Calder v Chapman, 52 Pa. St. 359. 91 Am. Dec. 163; Richardson v. Atlantic Coast Lumber Co., 93 S. C. 254, 75 S. E. 371; Bernanly v. Colonial, etc., Mortgage Co., K S. D. 637, 98 N. W. 166; Green grantor executed and recorded before the grantor had any title to convey, it being sufficient that he searches the records under his grantor in order to discover any conveyance made by the latter after acquiring title.56*1 A contrary view would impose on every purchaser the very serious burden of searching the records for conveyances made not only by his vendor, but also by his vendor's predecessors in title, for an indefinite time back of the date of his or their acquisition of title.57 The decisions above referred to, that a purchaser without notice of the previous conveyance by his grantor is not estopped to assert the title acquired by his srantor after the previous conveyance, appear ordinarily to be based upon the theory that a contrary view would to that extent defeat the purpose and spirit of the recording laws, in giving priority to a conveyance which, though first executed, was not recorded under such circumstances as to satisfy the statutory requirement of record. Another view which has been suggested in this regard is that, since the claim of a grantee as v. Morehead, 104 Tex. 254, 136 S. W. 1047, Ann. Cas. 1914A, 1285; See Doswell v. Buchanan, 3 Leigh (Va.) 365; Higgins v. Dennis, 104 Iowa, 605, 74 N. W. 9.

But a purchaser is charged with notice of a conveyance made by his vendor before the latter's acquisition of title, if such conveyance was recorded after such acquisition. Semon v. Terhune, 40 N. J. Eq. 364, 2 Atl. 18.

56a. The impropriety of requiring a search previous to the mortgagor's acquisition of title has in several cases been given as a reason for according priority to a purchase money mortgage as against a mortgage given previously by the same party. Ely v. Pingrey, 56 Kan. 17, 42 Pac. 330; Heffron v. Flanigan, 37

Mich. 274; Schoch v. Birdsall, 48 Minn. 441, 51 N. W. 382; Boyd v. Mundorf, 30 N. J. Eq. 545.

57. See 2 Pomeroy Eq. Jur. Sec. 658, p. 1134 note; Rawle, Covenants for Title. Sec.Sec. 259-261; note in 17 Harv. Law Rev. at 482.

But that the record of the earlier conveyance does in such case affect the subsequent purchaser with notice was decided in Tefft v. Munson, 57 N. Y. 97; (distinguished in Olipbant v. Burns, 146 N. Y. 218, 40 N. E. 980); Bernardy v. Colonial & U. S. Mortg. Co., 17 S. D. 637, 106 Am. St. Rep. 791, 98 N. W. 166; Hale v. Hollon, 14 Tex. Civ. App. 96, 35 S. W. 843, 36 S. W. 288; Balch v. Arnold, 9 Wyo. 17, 59 Pac. 434.

To the subsequently acquired title of his grantor is, properly regarded, equitable in its nature,58 it may, like other equitable claims, not be asserted as against subsequent purchasers for value without notice.

As against a subsequent purchaser from the same grantor who took with notice of the conveyance made by the latter before he acquired title,59a or who was not a purchaser for value,59b the prior grantee can no doubt assert the estoppel to the same extent as he could have asserted it against the grantee himself.

As regards the question whether the claim of the person to whom the conveyance is made before the grantor's acquisition of title takes priority over the claim under a judgment against the grantor, the cases are few in number and not entirely in harmony. Taking first the case of a judgment rendered before the making of the conveyance, it has been held in one state that, upon the acquisition of title by the grantor the land becomes subject to the lien of the judgment, in priority to the grantee's claim by way of estoppel,60 and there is also a decision to the contrary.61 It does not seem that, by reason of the grantor's lack of title at the time of his conveyance, the grantee should profit at the expense of the judgment creditor, and the former decision appears to be preferable. In the case of a judgment rendered against the grantor after the making of the conveyance and before his acquisition of the title, it has been held that the grantee takes free of the lien of the judgment, on the theory, apparently, that the grantor, in view of his conveyance, acquires at

58. Ante, Sec. 545(a), note 13.

59. See Editorial note, 22 Harv. Law Rev. 136; also the discussion by Mr. Ewart as to the somewhat analogous question of the incidence of the burden of an estoppel by misrepresentation. Ewart, Estoppel, 199 et seq.

59a. Edwards v. Hillier, 70 Miss. 803, 13 So. 692; Barker v.

Circle, 60 Mo. 258; Wark v. Willard, 13 N. H. 389; Mann v. Young, 1 Wash. Terr. 454.

59b. Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727; Mann v. Young, 1 Wash. Terr. 454.

60. Bliss v. Brown, 78 Kan. 467, 96 Pac. 945.

61. Watkins v. Wassell, 15 Ark. 73.

Most merely a legal title, the beneficial interest vesting immediately in the grantee.62 In the case of a judgment rendered against the grantor not only after his conveyance, but also after his acquisition of the title, the judgment creditor can, it would seem, for a like reason, have no lien upon the property, except as he may, in some states, be protected as a bona fide purchaser for value.63