FROM MERRIMACK CIRCUIT COURT. It appears from the case that the petitioner was, at the date of the deed from her and her husband to the defendant, the owner, by inheritance and purchase, of two third parts of the farm of her father, Levi Frazier, and also the owner of one undivided half of the reversion of her mother's dower. March 25, 1874, she conveyed to the defendant all the land they then owned in the town, including her reversionary right. The terms used in the description of the deed were, — "A certain tract of land situated in said town, being all the *Page 424 farm, pasture, and woodland used and occupied by us in said town, with the buildings thereon; also, all right, title, and interest which we now have, or which may hereafter accrue to us, in the dower or thirds of Sarah Frazier, except a certain piece of woodland, containing about twenty-five acres, situated on the road beyond the Langley saw-mill, meaning all the land we own in said town, excepting the above-named woodland; also, what reversionary rights may accrue to us from said Sarah Frazier's dower."
It is true, that the case finds that the farm, including the dower, was used and occupied by the petitioner and her husband and the dowager in common, and this might seem to lead to the inference that by "all the farm now used and occupied by us" was intended all their part and the dower besides. This construction is negatived by the fact that they go on afterwards, and expressly convey their interest in the land held as dower by Sarah Frazier, and all reversionary rights that shall accrue to them. These last words were probably suggested by the momentary doubt in the conveyancer, whether their interest in the reversion was a vested interest, or one which would accrue at the death of Sarah, and seem to have been used in reference to that idea. This, therefore, is the construction I incline to put upon the terms of that description. The word accrue was used to prevent the possibility of any doubt being raised by the suggestion, if it should be made, that they had no interest susceptible of being conveyed until it had accrued by the death of Sarah. This I believe to be the true construction of this deed, and that it conveyed and intended to convey the rights they then had, whether considered as vested or contingent, which might accrue at the death of Sarah.
If this be the true construction of the deed, the plaintiff will be entitled to hold to her own use all that part of the land which was inherited by the heirs of Jane Currier, and which she purchased of them.
It is undoubtedly true, that if this plaintiff really conveyed by her deed of warranty land which she did not own, and afterwards acquired a title to that land, she would be estopped to deny that she had the title at the time of her conveyance; or, in the quaint language of the common-law conveyancers, her conveyance with warranty would create against her an estoppel which would be practically barren and empty until the title afterwards acquired by her should "feed the estoppel."
If my construction of the deed is right, no such effect can be produced in this case, because, as her deed does not purport to convey the reversionary interest of Jane Currier and her heirs, there is no estoppel to be fed by it.
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