Perkins v. Coleman

14 S.W. 640, 90 Ky. 611, 1890 Ky. LEXIS 132

• Court: Court of Appeals of Kentucky
• Decided: October 30, 1890
• Status: Published

Opinion

JUDGE BENNETT

delivered the opinion of the court.

N. Gr. Terry owned an undivided interest in the land in controversy, and, conveyed the whole of it to Horace Dunliam by deed of general warranty. Thereafter Terry inherited that part of the land that he did not own, and this action of ejectment is brought by Terry’s heirs to recover the possession of that part of the land thus inherited from the appellee. He resists the right of the appellants to recover the said, land upon the ground that the title that Terry inherited was transferred to his vendee by estoppel. The appellants contend that the doctrine of estoppel does not protect strangers to the transaction; but only the parties and privies are bound thereby; and as the appellee is neither party nor privy, he can not avail himself of the estoppel that would bar the appellants’ right as against Dunham or his privies.

It is true that where the estoppel merely affects the consciences of the parties, and not the title, it does not operate on strangers to the transaction; but where it “works an interest in the land” conveyed, “it runs with it, and is a title.” Where it clearly appears from the writing that the vendor has conveyed, or agrees to convey, a good and sufficient title, and not merely his present interest in the land, the agreement runs with the land, and repeats itself every day; and if the vendor, at the time of the conveyance, has not title to the land, but subsequently acquires the title, it, “eo instante,” inures to the benefit of the vendee and his privies. In other words, it is immediately transferred by the law of estoppel to the vendee and his privies, because by the contract, which daily repeats itself, the vendor’s title, whenever acquired, is transferred to the vendeee and his privies; consequently, a stranger to the transaction, in an action of ejectment by the vendor against Mm, where he must recover upon the strength of his title, and not npon the weakness of his adversary, may show that he has thns parted with his title.

The judgment is affirmed.