5 N.H. 533 | Superior Court of New Hampshire | 1831
delivered the opinion of the court.
John Brown had nothing in the land, when lie con-⅛* veyed to the denflndant, and it is clear, that the de-,J *%lhndant cannot recover in this action, unless he can avail himself of the title, which Brown subsequently acquired.
If the tenant had been apprised of the fact, that the money paid to Burley was the money of the demandant, and paid on his account, before he extended his execution upon the land, it would be a fraud in him now to claim the land against the demandant. The resulting trust would have constituted a good title to the land as against this tenant. 3 N. H. Rep. 170, Scoby v. Blanchard; 4 ditto, 397, Pritchard v. Brown.
But it does not appear, that the tenant had notice of the trust in any way, and the demandant cannot recover on the ground that there was a resulting trust, of which the tenant had notice.
The only ground, on which the demandant can now
We shall, in the first place, consider, whether John Brown himself is estopped by that deed to claim the land ?
There are cases, in which an estoppel binds the land, and creates an estate and interest in it. If A convey lands to which he has no title, to B, with warranty, any title which A may subsequently acquire, will enure to the benefit of B, and A cannot claim the land against his deed. 16 Johns. 110, Jackson v. Stevens; 13 ditto, 316, Same v. Same ; 1 Johns. Cases, 81, Jackson v. Bull; Plowden, 434 ; 9 Cranch, 53 ; Co. Litt. 47, b, and 265, a ; 3 Pick. 52, Somes v. Skinner; 13 Johns. 201, Jackson v. Murray ; 2 D. & E. 171 ; Com. Dig. "Estoppel,” E. 10 ; 1 Starkie’s Ev. 301 ; 5 Greenl. 227, Allen v. Sayward.
But it is otherwise, where one conveys by mere release, land to which he has no title. In that case, a title subsequently acquired by him will not enure to the benefit of him to whom he released. 1 Cowcn, 613, Jackson v. Hubble; 14 Johns. 193, Jackson v. Wright.
In this case, the warranty of Brown was not general, but limited to any title to be derived from, by, or under him. But we are of opinion, that this warranty, under the circumstances of lids case, has the same eifect to create an estoppel, that it would have had, liad it been a general warranty, and that if this suit had been against Brown, he would have been estopped to set up any title under the conveyance made by Burley to him. .
The next question is, whether this tenant is estopped to set up that title ?
The general rule is, that all privies in blood, privies in estate, and privies in law, are bound by an estoppel. 1 Starkie’s Ev. 305; 4 Peter’s S. C. R. 84 — 88; 2 B. & A. 242, Helps v. Hereford ; 3 D. & E. 371 ; 4 Coke, 53.
This tenant has the estate of Brown, if any thing,
Judgment for the demandant.
