(36 Atl. Rep. 570). Particular devise held not to create a perpetuity. In re Well's Estate, 69 Vt. 388 (38 Atl. Rep. 83). For particular devise held to create a perpetuity, see Fargo v. Squiers, 154 N. Y. 250 (48 N. E. Rep. 509). For application of the rule to charitable bequests, see Ingraham v. Ingraham, 169 Ill. 432 (48 N. Rep. 561).

Sec. 307. Merger. A conveyance by the tenant by the curtesy to the tenant in reversion merges the life estate in the fee. Lineberger v. Newkirk, 179 Pa. St. 117 (36 Atl. Rep. 193). An absolute conveyance taken by a lienholder, will not operate as a merger to the injury of his rights as such, unless a clear intention on his part for it to do so is shown. Bemis v First Nat. Bank, 63 Ark. 625 (40 S. W. Rep. 127). A married woman may purchase or take the transfer of a debt secured by mortgage upon the real estate of her husband, and in which she may have inchoate rights, and hold the same against her husband, without a merger of the debt in any superior title of herself and husband. Dyer v. Dean, 69 Vt. 370 (37 Atl. Rep. 1113).

Sec. 308. Merger-Conveyance taken by lienholder. A mortgagor's conveyance of the mortgaged premises to the mortgagee does not create a merger of the mortgage as against a prior assignee thereof. Curtis v. Moore, 152 N. Y. 159 (46 N. E. Rep. 168). Where the holder of mortgages which have priority over a claim of homestead takes a conveyance of the fee, the mortgages will not be held to merge in the deed so as to make them subject to the intervening homestead lien. Davis v. Randall, 117 Cal. 12 (48 Pac. Rep. 906). Where property subject to two mortgages is conveyed by the mortgagor to the holder of the first mortgage, there is no merger, and the grantee has a right to be protected by his mortgage, against the junior mortgage. Hitchcock v. Nixon, 16 Wash. 281 (47 Pac. Rep. 412). Where, after reentry by a grantor, for breach of condition subsequent, a mortgagee of the grantee purchases such grantor's title, it is held that by a subsequent foreclosure of his mortgage with intent to perfect his title of record, his right under the mortgage did not become merged in the title acquired from the grantor. Gilchrist v. Foxen, 95 Wis. 428 (70 N. W. Rep. 585).

ESTOPPEL.

Sec. 309.

EPITOME OF CASES,

Estoppel by deed-Particular cases. One who, in a representative capacity, assumes to sell and convey to another the entire estate in the land, is estopped, as against the purchaser, from asserting an estate in his own right in the same land; and this although the first sale and deed were void. Wills v. Steckelberg, 52 Neb. 597 (72 N. W. Rep. 865; 66 Am. St. Rep. 529). If a trustee having the legal estate, diverts it by deed in due form, he cannot, in a court of law, deny the title so created. City of Perth Amboy v. Ramsay, 60 N. J. L. 1 (37 Atl. Rep. 446). A trustee who incorporates a personal covenant into a deed which he makes as trustee, estops himself to afterwards claim the land. Hitchcock, V. Southern Iron & Timber Co., Tenn. (38 S. W. Rep. 588). One claiming title to land under a county, is estopped to deny the power of the county to acquire title to land. Jefferson Co. v. Grafton, 74 Miss. 435 (21 So. Rep. 247; 60 Am. St. Rep. 516; 36 L. R. A. 798). One who, in dealing with a foreign corporation, borrows its money and secures the loan by a deed to realty containing a power of sale, is estopped from denying the right of such corporation to have this power conferred upon it or to exercise the same when conferred. Ray v. Home & Foreign Inv. & A. Co., 98 Ga. 122 (26 S. E. Rep. 56). The grantee of a mortgagor is not estopped by any covenant made by the latter to the mortgagee, and may connect himself with the paramount title and set up the same to defeat the mortgage. Preiner v. Meyer, 67 Minn. 197 (69 N. W. Rep. 887). A deed by a mortgagee of land, purchased by him at a void foreclosure sale, which purports to convey only the legal title to the land, estops him from claiming as against his grantee, that the mortgage did not pass by the deed, in a subsequent action by the mortgagor to set aside the decree of foreclosure and payment into court of

the sum due on the mortgage. Smithson Land Co. v. Brautigam, 16 Wash. 174 (47 Pac. Rep. 434). Where a grantor conveys premises upon which there is an existing mortgage, which the grantee assumes and agrees to pay, and the amount of which is deducted from the consideration, he is not estopped by his covenant of warranty, from subsequently taking an assignment of such mortgage and enforcing the same against the property. Hamill v. Inventors' Mfg. Co., 55 N. J. Eq. 649 (37 Atl. Rep. 773). Where one conveys land near the end of a street with reference to its extension over adjacent lands which he then owns, which extension all the parties at the time fully expect will be made, he and his privies will be estopped from subsequently denying to the grantee a right of way over the land which would be included in the extended street. Seibert v. Graff, N. J. Eq. (38 Atl. Rep.

970).

A husband who joins and authorizes his wife in the execution of a mortgage on her separate property is estopped to defend against the enforcement of the mortgage on account of the want of her authority to execute it. Joubert v. Sampson, 49 La. 1002 (22 So. Rep. 203). A husband mortgaging his wife's land as his own is estopped to deny his ownership as against the mortgagee, and so is his wife, where she joined in the mortgage knowing that her husband asserted ownership of her land therein. Holland v. Jones, 48 S. C. 267 (26 S. E. Rep. 606). Where a wife's conveyance of her land directly to her husband is void, she is not estopped to recover it by her joinder with him in a subsequent conveyance of it to a third person, who pays no consideration but acts as a mere conduit to transfer the title to another in fraud of the wife's rights. Connar v. Leach, 84 Md. 571 (36 Atl. Rep. 591).

Sec. 310. Title by estoppel-After acquired title— At what time it passes. A warranty deed passes an afteracquired title. Duffy v. White, 115 Mich. 264 (73 N. W. Rep. 363). One who by his mortgage has covenanted against the existence of prior incumbrances, is estopped, as against one claiming title under such mortgage, to enforce a prior mortgage subsequently acquired by him. Bradford v. Burgess, 20 R. I. 290 (38 Atl. Rep. 975). Ill. Rev. Stat., ch. 30,

7, providing that where one who has conveyed a fee simple estate in lands in which he held no such estate, subsequently acquires the fee, he shall hold the same in trust for his vendee, is held not to operate against the heirs of such a grantor so as to prevent them from asserting a title which they acquired by inheritance from another after his death and which was never vested in him. Whitson v. Grosvenor, 170 Ill. 271 (48 N. E. Rep. 1018.

Where an after-acquired title passes to a grantee on account of covenants of warranty in his deed, it passes the instant it is acquired by the grantor. Baldwin v. Root, 90 Tex. 546 (40 S. W. Rep. 3). The court say: "There is a considerable conflict in the authorities upon the question whether the title acquired by one who had previously conveyed the same land with covenants of warranty vests in the warrantee at the time that such title is subsequently acquired by the warrantor, or gives a right to the warrantee to have the subsequently acquired title transferred to him. This conflict grows largely out of the technical rules of the common law upon the subject of covenants in the different kinds of conveyances, which rules are in force in some jurisdictions, and in others they are not; and the decisions upon this question in the different courts depend largely upon whether the technical rules referred to are observed by the court, or disregarded. In ́this state the subject is regulated by statute so far as the covenants which the law implies from the use of certain language are concerned. The rule most consistent with our system of laws upon this subject is that when one conveys land by warranty of title, or in such manner as to be estopped to dispute the title of his grantee, a title subsequently acquired to that land by the grantor will pass eo instanti to his warrantee, binding both the warrantor and his heirs and subsequent purchasers from either. Robinson v. Douthit, 64 Tex. 101; Lindsay v. Freeman, 83 Tex. 259 (18 S. W. Rep. 727); King v. Gilson, 32 Ill. 348 (83 Am. Dec. 269); McCusker v. McEvey, 9 R. I. 528 (11 Am. Rep. 295); Knight v. Thayer, 125 Mass. 35; Baxter v. Bradbury, 20 Me. 260 (37 Am. Dec. 49); Douglass v. Scott, 5 Ohio 195; Carver v. Jackson, 4 Pet. 80; Clark v. Baker, 14 Cal. 612 (76 Am. Dec. 449); Gould v. West, 32 Tex. 354; Paxton v. Meyer, 67 Tex. 96 (2 S. W. Rep. 817)."

Sec. 311. Title by estoppel-After acquired titleSpecial covenants in quitclaim deeds. Under a quitclaim deed containing a covenant of special warranty "against the lawful claims and demands of all persons claiming by, through, or under" the grantor, a title or interest subsequently acquired by the grantor does not inure to the grantee. Bennett v. Davis, 90 Me. 457 (38 Atl. Rep. 372). Where the three children of one G. H. O., whom they presume to be dead on account of his absence, by quitclaim deeds partitioned his real estate among themselves, each deed reciting that the grantor "being one of the three heirs of H. G. O.” it is held that such recital was not a mere descriptio personae of the grantor, but an assertion by such grantor that he was then the heir at law of G. H. O., and the grantors in such deeds are estopped from asserting title to the land which they subsequently acquired by the death of G. H. O. Hagensick v. Castor, 53 Neb. 495 (73 N. W. Rep. 932). The court cites the case of Van Rensselaer v. Kearney, 11 How. 297, from which it quotes with approval as follows: "The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must neces sarily have influenced the grantee in making the purchase; and hence the grantor and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied upon the highest principles of morality, and recommends itself to the common sense and justice of every one. Although it debars the truth in the particular case, and therefore is not