25 Ill. 383 | Ill. | 1861
The important question in this case is, do the covenants of the defendant in error, in his deed to the ancestor of the plaintiffs, estop him from setting up title to the premises conveyed by the deed, and now in controversy.
It appears by the record that the deed executed by the defendant to the plaintiffs’ ancestor is a general warrantee deed. The habendum clause is as follows: “ To have and to hold the aforesaid tract of land or lot of ground, together with all and singular the appurtenances, etc., to the only proper use, benefit and behoof of the said Thomas C. King, his heirs and assigns forever.” This is conclusive as to the estate granted, (4 Kent’s Com. 468,) and is important to be inserted in a deed, if, in the premises, the quantity, or extent of the estate granted, is omitted. But if the premises, or granting part of the deed, describes the extent of the estate, the habendum is useless — it is of no importance whatever. A fee simple estate was granted by the deed, the title to which the defendant covenanted to warrant and defend, against the claims of all persons whomsoever, so that it is not now in his power to deny that the plaintiffs, the heirs at law of defendant’s grantee and warrantee, are not seized in fee of the lot of ground. We understand it to be a well settled principle of the common law, that if one conveys lands, or other real estate, with a covenant of general warranty against all lawful claims and demands, he cannot be allowed to set up, against his granted or those claiming under him, any title he himself may subsequently acquire from another, by purchase or otherwise. Such new title will enure, by way of estoppel, to the use and benefit of his grantee, his heirs or assigns. This principle is founded in equity and justice, for it is not just that a party should be permitted to hold, or recover an estate, in violation of his own covenant. And the policy is wise also, for it represses litigation. If the grantor could recover the premises on an after acquired title, the grantee, in his turn, would be entitled to an action against the grantor to recover back the purchase money and interest. By estopping him by his deed, a multiplicity of suits is prevented, and equal justice done.
We can conceive no position in which the defendant can place himself, in respect to these premises, by way of a valid claim to them, except by purchase or grant from the heirs of his grantee, the plaintiffs in this suit, unless it might be by judicial sale for taxes or otherwise. As the case stands, he is completely estopped. But it is said the parties to the deed, grantors and grantees, were not dealing with the fee in the land,, but the one was selling and the other buying a leasehold estate only, and that was all the plaintiffs’ ancestor took by the deed. This the defendant cannot aver against his deed. That deals with and conveys a fee. Though the estate be in fact for a term of years only, still the administrator is estopped from so averring, because he, as a grantor of the premises, has assumed to convey a fee, and he cannot now claim that the estate is less than a fee. It was sold and conveyed by him as a fee, the title to which as a fee he undertook to warrant and forever defend. Even if he sold the property as administrator of the ancestor of the plaintiffs, and conveyed a title to the purchaser, it was his duty to acquire the title to answer his own covenant, and if he did purchase it, such purchase would be presumed to have been made for such purpose, and the title he thus acquired, would enure to the benefit of the plaintiffs, the heirs at law of his grantee. He can never aver against his own deed, that the estate he conveyed to their ancestor was not a fee simple estate.
The authorities are full to these points. Trevivan v. Lawrence et al., 1 Salkeld, 276; White v. Potter, 24 Pick. 326; Somes v. Skinner, 3 ib. 51; 4 Kent’s Com. 98 ; Bush v. Person, Adm’r, 18 Howard, 82.
The judgment is reversed and the cause remanded, with directions to grant a new trial.
Judgment reversed.
