Stephen White versus William Patten, 24 Pick. 324

Putnam J. afterward drew up the opinion of the Court. If the controversy were between Thayer and White, it would be perfectly clear that Thayer could not prevail, notwithstanding the legal title were in Perry, at the time when Thayer conveyed to White. Thayer having subsequently acquired the legal title, would be estopped to say that he was not seised in fee of the estate which he had conveyed with warranty to White. Somes v. Skinner, 3 Pick. 60.

It is then to be considered, whether the tenant, who claims the same estate as the grantee of Thayer, by a subsequent conveyance of the same, is estopped to say that Thayer was not seised, inasmuch as Thayer himself would be clearly so estopped, if he were a party. In 1 Salk. 276, Trevivan v.

Lawrence et al., it was held, that parties and all claiming under them were bound by estoppels ; “ as if a man makes, a lease by indenture of D., in which he hath nothing, and afterwards purchases D. in fee, and afterwards bargains and sells it to A. and his heirs, A. shall be bound by the estoppel; and that where the estoppel works on the interest in the land, it runs with the land into whose hands soever the land comes.” So in 6 Mod. 258, S.

C., Lord Chief Justice Holt states the case thus : “If a man by deed indented make a lease of Dale, reserving rent, in which at that time he has nothing, and afterwards he purchases Dale, and bargains and sells it to a stranger, the bargainee shall hold it liable to the first lease, and coming under him who made the lease shall be estopped to say that the bargainor had nothing to let in the premises at the time of the lease made ; for this estoppel runs upon the land and alters the interest of it.” The case of Fairbanks et al. v. Williamson, 7 Greenleaf, 96, is in point.

On the 15th of December, 1818, Weston made a deed to Webster. The demandants levied an execution upon the demanded premises as belonging to Webster, in July 1827, and Webster released to the demandants on the 27th of August following. When Weston made his deed to Webster, he (Weston) had no title, but it was in the Commonwealth. But in June 1820, the committee for the sale of eastern lands conveyed the title of the Commonwealth to Weston. Weston, on the 10th of May, 1821, conveyed the demanded premises to the tenant in fee.

And it was held that Weston, by his deed and covenant (although it was not of general warranty, as is the case at bar) was estopped to make any claim or title to the land, and that the tenant, claiming subsequently under Weston, was privy in estate and bound by the estoppel. The case of Weale v. Lower, Pollexfen, 60, is to the same point.

Where one conveyed by a fine an estate which at the time was contingent, yet the party conveying was bound by estoppel, and when the contingency happened, that “ which at the beginning was only good against him by estoppel would then have been turned into a good estate and term in interest.” And p. 66, per Lord Chief Justice Hale : “ The estate which cometh to the heir upon the happening of the contingency, feeds his estoppel, and the estate by estoppel becometh an estate in interest, and shall be of the same effect as if the contingency had happened before the fine levied.” So in the case at bar, Thayer and his heirs and assigns are bound by his deed with warranty to White.

The tenant claims the same estate as the assignee or grantee of Thayer Ipy a subsequent conveyance, and the tenant is concluded, as his grantor was concluded, to aver that Thayer had no title when he conveyed to White. The tenant is privy in estate. Co. Lit. 352 a. Privies in blood, as the heir, privies in estate, as the feoffee, lessee, &c., privies in law, comprehending those who come in by act in law or in the post, shall be bound and take advantage of estoppels.

Termes de la Ley, Privy. “The lessees or feoffees are called privies in estate, and so are their heirs.” The conveyance of the title by the deed of Perry to Thayer, after his deed to White, turned the estoppel which bound Thayer and his heirs and assigns, into a good estate in interest. So that by the operation of law the interest should be considered as vested in him in the same manner as if it had been conveyed to Thayer before he conveyed to White. And if that had been the case there could be no question between these parties now before the Court.

For White procured his deed from Thayer to be recorded before the tenant obtained his deed from Thayer. It would be very easy to multiply authorities in support of the principle upon which this case is decided, but it is not necessary. The Court are of opinion, for the reasons and upon the authorities before referred to, and cited by the counsel for the demandant, that "he is entitled to recover.