7 Me. 96 | Me. | 1830
The opinion of the Court was delivei'ed in Cumberland, at the-adjournment of May term, in August following, by
It is insisted that the instrument, executed by Ebenezer Weston to Ebenezer Webster, in December, 1818, was not a conveyance of land, but a contract to convey. It has, however, all the formalities necessary bylaw, for the conveyance of real estate-. It was signed, sealed, delivered, acknowledged and recorded 3 and contains apt and proper words, to pass an estate in fee
At the time of the execution of this deed, the grantor had entitled himself to a conveyance of the land, from the authorized agents of the Commonwealth of Massachusetts ; but the conveyance was not actually made, and his title thereby perfected, until June 1820. And it is contended that nothing passed by Weston’s deed to Webster, he having then no estate or interest in the land. In the deed to Webster, Weston covenants that neither he nor his heirs, shall or will make any claim to the land conveyed. This, although not technically a warranty, is a covenant real, which runs with the land, and estops the grantor and his heirs to make claim or set up any title
In Somes v. Skinner, Parker C. J. says, after reviewing the authorities, “ the general principle to be deduced from all these is, that an instrument, which legally creates an estoppel to a party undertaking to convey real estate, he having nothing in tire estate at the time of the conveyance, but acquiring a tide afterwards by descent or purchase., does in fact pass an interest and a tide from the moment such estate comes to the grantor.” It is true, he subsequently states, that warranty has been regarded an essential feature in the doctrine ; yet we apprehend that general warranty, is not necessary to create an estoppel. In the case before us, it seems very clear that Weston would be estopped, by the covenant in his deed, to claim the land against Webster ; and the tenant, holding subsequently under him, is privy in estate and equally bound by the estoppel. Co. Lit. 352, a. 4 Com. Dig. Estoppel B. As if A demises the manor of P by indenture for years, and afterwards purchases the manor, gnd sells it to B, die vendee shall be bound by the estoppel, and cannot say that' A had not any thing in the manor at the time of the lease. 1 Salk. 276.
Coke puts a case where the father is bound by an estoppel and the son is not; as if there be grandfather, father and son, and the father disseises the grandfather, and makes a feoffment in fee, and the grandfather dies, the father against his own feoffment shall not enter; but if he dies his own son shall enter. Co. Lit. 265, b. The reason is, the son claims, not as heir to the father but to the grandfather., who was the disseisee, and last actually and. rightfully
In Varnum v. Abbot, 12 Mass. 474, it was stated by Jackson J. that the levy of an execution on real estate, raised an estoppel against the judgment debtor, as much as if he had given a deed underhand and seal; and yet in such a case he could be bound neither by covenant nor warranty.
The covenant in Weston’s deed to Webster being one which runs with the land, the demandant, his assignee, may avail himself of it. Weston, by his deed and covenant, is estopped to make claim or title to the land ; and the tenant, claiming subsequently under Weston, is privy in estate, and bound by the estoppel.
Judgment for the demandant.