Baker v. Austin

Clark, C. J.

The defendant contends that this is a case of “feeding an estoj)pel.” The plaintiff conveyed “all of my entire interest in my father’s land . . . where my mother Frances Baker now lives, the land known as the Robert Baker land,” giving the boundaries. The reference to “my father’s land” was merely descriptive of the land and was not restricted to the interest which' he bad acquired from bis father. But to put the matter beyond all doubt be conveys the land in fee simple, with covenant of seisin in fee, covenant against encumbrances, covenant of right to convey, and adds, “I will warrant and defend the same against the lawful claims and demands of all persons.” The conveyance was of bis entire interest in that tract of land, and though be mistakenly described it as bis father’s land, that did not change the fact that be conveyed “all of my entire interest” in that land, whose identity is fixed beyond question by stating that it is the place on which bis mother then lived; that it was known as the Robert Baker land, and giving the boundaries. Though at the time be bad no interest in the land when the title to the 53/147 was afterwards devised to him, this fed the estoppel, and be cannot now recover against bis deed, with warranty, of said land.

This is well settled: “Where a deed is sufficient in form to convey the grantor’s whole interest, an interest afterwards acquired passes by way of estoppel to tbe grantee.”

Buchanan v. Harrington, 141 N. C., 39 ;

*435 Hallyburton v. Slagle, 132 N. C., 947 ;

Foster v. Hackett, 112 N. C., 546 ;

Bell v. Adams, 81 N. C., 118 ;

Wellborn v. Finley, 52 N. C., 228 ;

Armfield v. Moore, 44 N. C., 162 ;

Taylor v. Shufford, 11 N. C., 116 .

The general rule is thus stated 16 Oyc., 689, with full citations in the notes: “If a grantor having no title, a defective title, or an estate less than that which he assumed to grant, conveys with warranty or covenants of like import, and subsequently acquires the title or estate which he purported to convey, or perfects his title, such after-acquired or perfected title will inure to the grantee or to his benefit by way of estoppel.”

In Olds v. Cedar Works, 173 N. C., 164 -166, in a very interesting discussion, Allen, J., cites the authorities and points out the distinction between an estoppel, which may exist without a covenant of warranty, and a rebutter, which is dependent upon a warranty.

Weeks v. Wilkins, 139 N. C., 217 , and adds: “Where there is a covenant of warranty, the deed not only destroys the right of action in the grantor and his heirs to the after-acquired estate by rebutter, but it also passes the title to the grantee by estoppel by warranty.” We can add nothing to what is there so well said.

The judgment of nonsuit is Affirmed.