incumbrance; otherwise as to a prior creditor who bona fide buys in a puisne incumbrance, though he did not give the full value for it (g); or in other words, unless from the particular character which a man fills with relation to the estate, he may enforce the whole of an incumbrance against an estate or the purchaser of it, without regard to the price at which he purchased it.

27. But it was thrown out in some early cases (h), that as against a purchaser without notice of an incumbrance, a stranger might not be allowed more than what he really paid for it. This, however, is a position which it would seem to be difficult to establish.

28. If a seller is bound to relieve the estate sold from incumbrances, and the purchaser buys them up, he ought not to charge more than he paid, as that is the amount of the damage which he sustains by the breach of the covenant to pay off the incumbrances (i) (1); although of course if a purchaser buy in an incumbrance to protect his estate, at an under sum, he may hold it till paid the whole charge (k).

29. Whatever interest the seller himself acquires in the estate subsequently to the conveyance, he will be compelled to convey to the purchaser, so as to make good the conveyance to him (1) (2).

(9) Morret v. Paske, 2 Atk. 52; Darcy v. Hall, 1 Vern. 49; Long v. Clopton, ib. 464.

(h) Philips v. Vaughan, 1 Vern. 336; Long . Clopton, ib. 464; and see Wil

liams v. Springfield, ib. 476.
(i) 2 Dow, 296.

(k) See ch. 22, post.

(1) Ascough v. Johnson, 2 Vern. 66.

(1) See Mayo v. Purscoll, 3 Munf. 243. So, if the vendee of lands, who has entered before the conveyance is perfected, purchases an adverse title, he cannot set it up against the vendor, but the vendor is entitled to have it upon reimbursing the purchaser. Morgan v. Boone, 4 Monroe, 291, 298; Harper v. Reno, 1 Freeman, Ch. 323, 333; Wood v. Perry, 1 Barbour, 115, 134. See Grundy v. Jackson, 1 Litt. 13.

(2) Graham v. Hachwith, 1 A. K. Marsh. 423.

A conveyance to the grantor, subsequent to his deed conveying to another with warranty, inures to the benefit of his grantee. Logan v. Steel, 4 Monroe, 433. The covenant of general warranty against all persons, if the grantor had no title at the time, estops him from afterwards claiming title to the land. The general principle, to be deduced from all the authorities, is, that an instrument which legally creates an estoppel to a party undertaking to convey real estate, he having nothing in the estate at the time of the conveyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor. Per Parker, Ch. J. in Somes v. Skinner, 3 Pick. 52, 60; Comstock v. Smith, 13 Pick. 116; Carver v. Astor, 4 Peters (S. C.) 83 et seq; Jackson v. Hoffman, 9 Cowen, 27; Sinclair v Jackson, 8 Cowen, 586; Fairbanks v. Williamson, 7 Greenl. 100; Allen v. Sayward, 5 Greenl. 231; Jackson v. Bull, 1 John. Cas. 81, 90; Jackson v. Matsdorf, 11 John. 91; Jackson v. Stevens, 16 John. 110, 115; 4 Kent, (6th ed.) 98; Brown v. M'Cormick, 6 Watts, 60; Logan v. Moore, 7 Dana, 76; Lewis v. Baird, 3 M'Lean, 56; Bank of Utica v. Mersereau, 3 Barbour Ch. R. 528; Bush v. Marshall, 6 Howard, (U. S.) 284; Warburton v. Mattox, 1 Morris, 367. A convey

ance, by husband and wife, of the wife's land, with covenants of warranty by both, estops the wife as well as the husband, to deny her title to the land at the time of the conveyance. Nash v. Spofford, 10 Metcalf, 192. See Wadleigh v. Glines, 6 N. Hamp. 17; Hill v. West, 8 Ham. (Ohio), 222. But in Carpenter v. Schermerhorn, 2 Barbour Ch. Rep. 314, it was held that a covenant of warranty, in a deed by husband and wife, of land held in the right of the wife, will not operate by way of estoppel, so as to vest in the grantee in the deed an interest subsequently acquired by her. The principle of estoppel equally extends to the heirs of the grantor and all others claiming in privity with him, 4 Kent (6th ed.) 98; Coe v. Talcott, 5 Day, 88: Jackson v. Stevens, 13 John. 316; White v. Patten, 24 Pick. 324; Lawry v. Williams, 13 Maine, 281; Kimball v. Blaisdell, 5 N. Hamp. 533; Wark v. Willard, 13 N. Hamp. 389; McKendrie v. Lexington, 4 Dana, 129; Phelps v. Blount, 2 Dev. 177; Fairbanks v. Williamson, 7 Greenl. 96. In Fairbanks v. Williamson, 7 Greenl. 96, it was held that a covenant in a deed of land that neither the grantor nor his heirs shall make any claim to the land conveyed, though not technically a warranty, is a covenant real, which runs with the land, and estops the grantor. And wherever the grantor is estopped, all claiming under him are estopped also. See to the same effect, Trull v. Eastman, 3 Metcalf, 121. And the levy of an execution on real estate, raises an estoppel against the judgment debtor, as much as if he had given a deed under his hand and seal. Fairbanks v. Williamson, 7 Greenl. 96; Varnum v. Abbot, 12 Mass. 474. But a covenant in a deed of land, that the grantor will warrant the land against all persons claiming under him, does not estop him from setting up a title subsequently acquired by him by purchase or otherwise. Comstock v. Smith, 13 Pick. 116; Jackson v. Winslow, 9 Cowen, 13; Kinsman v. Loomis, 11 Ohio, 475; Jackson v. Hubble, 1 Cowen, 616. See Doswell v. Buchanan, 3 Leigh, 365; 4 Kent, (6th ed.) 98, 99. So a covenant of lawful seisin in fee, and good right in the grantor to convey, does not estop him from setting up an after-acquired title in himself, against the grantee. Allen v. Sayward, 5 Greenl. 227. But if the estate that comes to the grantor is as trustee to convey to a bona fide purchaser, the estoppel does not apply. Burchard v. Hubbard, 11 Ohio, 316.

*CHAPTER XIII.

OF THE CONVEYANCE AND COVENANTS FOR TITLE.

SECTION I.

OF THE CONVEYANCE.

1. Expense where incumbrancers join | 13. Expense of re-investing settled money.

thrown on seller.

2. Satement of objection to title.

3. Mistake in conveyance corrected.

4. Alteration in draft should be communi-
cated.

5. When conveyance may be prepared.
6. Discovery of defect before engrossment.
7. Eviction before execution.

14. Seller to convey or surrender, not by

attorney.

16. Seller not bound to appoint attorney.
17. Draft belongs to purchaser.
18. So deed imperfectly executed.
19. Or deed executed by seller where con-
tract is rescinded, as parchments.

21. But it may be cancelled.

8. Preparation of conveyance relying 22. Purchaser's lien on deeds.

upon a promise by seller.

9. Bad title, no conveyance need be prepared.

10. Conveyance to lessee determines covenants in lease.

11. Expense of conveyance falls on purchaser of execution on seller.

12. Purchaser pays for surrender and admittance.

23. Seller's attorney has no lien on convey

ance.

24. Jointress releasing, her remedies on
fund to answer her jointure.
Conveyance should be registered.

25.
27. Consequences of neglect.
28. Short statute conveyance.

1. THE strict rule seems to be, that the vendor must procure the fee to be vested either in himself, or a trustee for him; and that a purchaser is not compellable to bear the expense of a long conveyance, on account of the legal estate having been outstanding for a length of time, or of the estate being subject to incumbrances which are to be paid off (a). It is not, however, very usual to insist upon this, unless the title cannot be perfected without a private act of parliament; in which case, the expense of ob

(a) See 1 H. Blackst. 280.

VOL. II.

18

[*690]

taining it is always borne by the vendor. But where the length of the conveyance is increased by the junction of incumbrances, it is not unusual to require the seller to pay the extra expense. *In a case (b) where a man agreed to demise to another at a peppercorn for a sum in gross-being in effect a sale-and the seller could not make a valid lease without the concurrence of person entitled to an equity of redemption in the property, it was held, that the seller had a right to refuse to procure a release by a separate 'deed, but that he might insist upon the incumbrancer being made a party to the deed to the purchaser, he (the seller) paying the extra expense occasioned by that person's concurrence in the deed.

2. If a person concur in a conveyance in order to remove an objection to the title, the objection should be so stated as to convey full information to the party concurring (c).

3. Although the purchaser's attorney prepare the conveyance, yet if by mistake he draw it contrary to the written agreement, it will be corrected in favor of his client, the purchaser (d).

4. If a draft of a conveyance be altered by either party, although the alteration be such as would be supported by the Court, yet the draft, as altered, should not be engrossed without a communication being first made to the other party (e).

5. The conveyance should not be prepared before the purchaser is satisfied with the title, and has inspected the title-deeds; for if the purchase were to go off, because, for example, the deeds could not be produced, the purchaser would not be able to recover the expense of the conveyance; nor is it material that the seller has adopted the conveyance and actully executed it (f); but if any of the parties refuse to execute the conveyance, and the contract is rescinded, the purchaser may recover the expenses as part of the damages (g).

6. And if a defect of title is discovered after the conveyance is engrossed, the Court will inquire into the validity of the objection (h).

7. We have already seen in what cases an eviction, before the conveyance is executed by all parties, enables a purchaser to recover his purchase-money, if he have paid it (i).

(b) Reeves v. Gill, 1 Beav. 375.

(c) Lord Braybroke v. Inskip, 8 Ves. jun. 417; post, ch. 22.

(d) Rob v. Butterwick, 2 Price, 190; sup. p. 185.

(e) See Staines v. Morris, 1 Ves. & Bea. 15.

(f) Jarmain v. Egelstone, 5 Carr. & Payn. 172; vide supra, p. 14, 427, and

qu.

(9) See 3 Barn. & Cress. 231.

(h) Const. v. Barr, 2 Mer. 57; the order by consent.

(i) Supra, ch. 12, s. 2, p. 680.

8. We have also seen that if a purchaser prepare and engross his conveyance, which is executed, yet he will not be bound to proceed, if he relied upon a previous promise by the seller to produce, *if required, the deeds which were in the custody of a third person, and the seller fail to produce them (k).

9. Where a bad title is produced, or the vendor has resold the estate, the purchaser may maintain an action for his deposit, or for damages, without preparing a conveyance (1).

10. If a lessee is the purchaser, the conveyance, we have seen, puts an end to the covenants in the lease (m).

as

11. Unless there be an express stipulation to the contrary, the expense of the conveyance falls on the purchaser (n); who, before stated, must prepare and tender the conveyance (o). The expense attending the execution of the conveyance is, however, always borne by the vendor, who is bound to procure the execution of the conveyance by all necessary parties, and if any of them refuse to execute, the contract may be considered as rescinded (p). But of course the vendor does not pay the costs of the purchaser's attorney (1).

12. If the estate be copyhold, the purchaser must bear the expense both of the surrender to him and of his admission (q); and a vendor is not obliged to pay the fine due on the admission of the vendee, although he covenant to surrender and assure the copyholds at his own costs and charges (r); because, it is said, the title is perfected by the admittance, and the fine is not due till after (s).

13. The expense of reinvesting the purchase-money of a settled estate in another estate will not fall upon the purchaser of the settled estate, although he has agreed to pay all the expenses of the owners of that estate, in consequence of the sale, or arising out

(k) Jarmain v. Egelstone, 5 Carr. & Payn. 172.

(1) Seward v. Willock, East, 198; Knight v. Crockford, 1 Esp. Ca. 189; Wilmot v. Wilkinson, 6 Barn. & Cress. 506; vide supra, p. 263.

(m) See 1 Bligh, 69; supra, p. 193. (n) See 2 Ves. jun. 155; and note, this is the universal practice of the Profession.

(0) Supra, p. 262.

(p) See 3 Barn. & Cress. 229.

(9) Drury v. Man, 1 Atk. 95, Sander's edition.

(r) Graham v. Sime, 1 East, 632.

(s) Dalton v. Hammond, 4 Co. 28 a; Rex v. Lord of the Manor of Hendon, 2 Term Rep. 484; and see Fisher. Rogers, 1 Rol. Abr. 506, (A.) pl. 1; 3 Burr. 1543; Lex Cust. p. 163; Wood's Inst. p. 137; Gilb. Ten. 205; 1 Watk. Copy. 286; sed qu. and sec Dalton v. Hammond, Cro. Eliz. 779; Mo. 622, pl. 851; and supp. to Co. Copy. s. 10; and Parkins v. Titus, MS.

(1) Ante, 262, 263, in notes.