Jackson ex dem. Thurman v. Bradford

By the Court, Marcy, J. The judgment eo instanti, the property descended became a lien upon it, and the title to it vested in the purchaser at the sheriff’s sale, unless the opeeration of the deeds to the defendant prevented it. When these deeds were executed, Price had no title or claim to the premises, and could therefore convey no right to them. Qui non hahet, Ule non dat. A grant by a person who has no estate, as an heir in the life time of his ancestor, will not pass any estate. (3 Preston on Abstract of Titles, 25, 6.) This position is well warranted by Sir Marmaduke Wivel's case, (Hob. 46.) In that case a tenant in tail of an advowson, [622] and. his son and heir joined in a grant of the next avoidance. ipjje tenant in tail died, and it was held that the grant was utterly void against the son and heir who had joined in the grant> because he had nothing in the advowson, neither in possession nor right, nor in actual possibility, at the time of the grant. It is said in the Touchstone, (239,) that a bare possibility of an interest which is uncertain is not grantable. The expectancy of an heir at law in the life of the ancestor, (and such was the defendant’s grantor in this case,) is less than a possibility. (Wright v. Wright, 1 Ves. sen. 409.) Where a son releases in the life time of his father, the release is void, because, as Lord Coke says, he has no right at the time of malting the release ; all the right is in the father and therefore, after the death of his father, the son may enter into the land against his own release. (Co. Lit. 265, a.) It is very clear, both from reason and authority, that no title passes by the deed of an heir apparent or presumptive, to lands that may afterwards descend to him on the death of his ancestor; yet the heir may be barred by his deed from recovering such lands. Where the deed is by warranty, the warranty will rebut and bar the grantor and his heirs of a future right. This is not because a title ever passes by such a grant,.but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title to the soundness of which he must answer on his warranty. (Co. Litt. 265, a.) This estoppel, however, exists only where there is a covenant of warranty. It is contended on the part of the defendant that there is an estoppel in this case, and that, it applies to the title set up by the plaintiff. There is no express warranty in either deed, nor any thing that, in my judgment, is equivalent to a warranty. That which seems to be most confidently relied upon as making the requisite warranty, is the part of the first deed which immediately follows the habendum. The premises are to be held by the grantee, his heirs and assigns forever, “ so that neither the. grantor, his heirs, executors or administrators shall, at any time after the execution of the deed,- challenge or demand any estate, right, title or interest therein, by any way or means whatsoever; [623] but shall be forever barred and precluded from all right, title, interest or estate in the same.” We are not called on to say what would be the effect of this clause in the deed under other circumstances ; but only to inquire how it would affect the grantor on the supposition that the plaintiff should recover in this suit. If the plaintiff should succeed, could the defendant recover against his grantor for the breach of any express or implied covenant? The estoppel is on the principle of avoiding circuity of action ; and if the grantor is not liable to an action, there can be no estoppel. But if the grantor, by reason of his deed, be estopped from setting up title to the premises, does the estoppel apply to the title of the plaintiff ? I apprehend it does not. An estoppel docs not bind strangers. (Co. Litt. 352, a.) The plaintiff here is a stranger in respect to the matter that is alleged as the estoppel—the deed. He is not a party to it; his title is in no way derived from it. He relies upon no act of the grantor, performed subsequent to the execution of the deeds, to give validity to Ms title. If the doctrine of estoppel does not apply to this case, (and it appears to me quite evident that it does not not,) all difficulty is at once rémoved. Judgment for the plaintiff