estate was held

the lands from(r) his landlord, a purchaser of the bound by the contract, though he had no notice of it. Where premises are unoccupied, the purchaser is not bound to inquire of the last occupier(s) what was the nature of his title, and will not be held bound by implied notice of the information, which might have been obtained by the inquiry; and if an occupying tenant, at the time of the purchase, hold under a derivative lease, and has no knowledge of the covenants contained in the original lease, a purchaser cannot be fixed with constructive notice in consequence(t) of not pursuing his inquiries through every derivative lessee, until he arrives at the person entitled to the original lease, which can alone give him information of the covenant.

However, there must be actual notice of the existence of a lease, or other encumbrance, in order to avoid the effect of registry, and although the conveyance to a purchaser recite(u) that the lands are in possession of J. S., as tenant, the lease, if it exceed twenty-one years, and be unregistered, cannot be suffered to prevail against the registered deed. Neither constructive notice nor gross negligence on the part of the purchaser, will be sufficient to postpone his prior registry.

301; Powell v. Dillon, 2 Ball & B. 416; Crofton v. Ormsby, 2 Sch. & Lef. 583; Tanner v. Florence, 1 Cases in Chan. 259; Daniels v. Davison, 16 Vesey, 249; 17 Ves. 433; Meux v. Maltby, 2 Swa. 281; Hall v. Smith, 14 Vesey, 426.

(r) Allen v. Anthony, 1 Meriv. 282.

(s) Miles v. Langley, 1 Russ. & M. 39; 2 Russ. & M. 626, on appeal.

(t) Hanbury v. Litchfield, 2 My. & Keen. 633.

(u) Popham v. Baldwin, 2 Jones, 320; Wyatt v. Barwell, 19 Vesey, 435.

1. AN estoppel arises where a person is concluded, by his own(a) act, or acceptance, from controverting his own formal admission of a fact, and is created, according to Lord Coke, either(b) by matter of record, as by letters-patent, fine, judgement, &c., or by indenture, or deed-poll, or by matter in päis, that is, either by matter of fact, or of

evidence.

Estoppels by record, not being within the limits of this treatise; the operation of indentures and deeds-poll, in binding the rights of landlord and tenant is, in the first instance, to be considered. Leases may be divided into those which pass an interest, and those which operate by estoppel. Leases which pass an interest, are derived from the ownership of the lessor, whilst those founded on estoppel are derived from persons who have no legal or vested estate, sufficient to enable them to pass an immediate estate in the lands.

If a person, by indenture, demise lands for years, in which he had no estate (c) whatever, or no estate by good legal title, at the time of

(a) Co. Litt. 352, A.; Com. Dig. Estoppel, A.; Rawlyns's case, 4 Rep. 53, A., and editor's note.

(b) Co. Litt. 352, A.

(c) Bac. Abr. Leases, O.; Edwards c. Rogers, W. Jones, 456; Cro. Car. 524

granting the lease, and the want of estate does not appear by the deed, in case the lessor afterwards acquire those very lands, by purchase or otherwise, then the lease shall become good and unavoidable, because the lessor is estopped by his own act from saying he did not demise, and the lessee may take advantage of the indenture whenever the lessor comes to such an estate in those lands as is capable of sustaining the demise.

If a person accept a lease, by indenture, of his own lands, of which he is himself in the actual(d) seisin and possession, he is estopped, during the term, from saying the lessor had nothing in the lands at the time of granting the lease, for by acceptance of the indenture, he is, for the time, as perfect a lessee for years, as if the lessor had been seised of the lands in fee at the time of making the demise, and both parties are concluded by the indenture (e) from denying, either that the lessor had the land in possession to pass, or that it passed in possession, according to the tenor of the lease.

2. Where an heir apparent, or presumptive, having only an expectation(ƒ) of succession, conveys lands, during his ancestor's life-time, by fine, or feoffment, although nothing passes at the time of the conveyance, yet if the inheritance afterwards descend to such heir, he is estopped from averring he had no interest in the lands at the time of making the assurance; but where an heir apparent grants (g) his expectancy in his father's life-time, while he has neither possession nor right in the matter granted, the deed is utterly void, and nothing passes. A covenant to settle estates which should descend to the covenantor, only gives a right under the contract, and not an interest in the land, and being personal to the covenantor(h), cannot be specifically enforced in equity against the succeeding heir.

3. It was expressly laid down by Sir John Leach, that estoppel is wrought by an indenture of release, as well as by any other indenture;

543; Hermitage v. Tomkins, 1 Ld. Raym. 729; Smith v. Baker, 1 Y. & Coll. in Chan. 223.

(d) James v. Landon, Cro. Eliz. 36; Moor, 181; London v. James, 1 And. 128, pl. 174; Co. Litt. 47, B.; Doe dem. Bullen v. Mills, 4 Nev. & M. 25; 2 Ad. & Ell. 17, S. C.; Moor, 20, Case 69.

(e) Smith v. Stapleton, Plowd. 434, A., by Plowd. Argo.

(f) Helps v. Hereford, 2 B. & Ald. 242; Goodtitle dem. Morse v. Faulkner, 3 T. R. 365; Morse v. Faulkner, 3 Swa. 429, note; 1 Anstr. 11; Hayne v. Malt

by, 3 T. R. 441; Smith v. Low, 1 Atk. 489; West, 669; Clayton v. The Duke of Newcastle, 2 Ca. in Chan. 112; Wright v. Wright, 1 Vez. S. 409; Smith v. Baker, 1 Yo. & Coll. in Cha. 223; Edwards v. Rogers, W. Jones, 456.

(g) Wivel's case, Hob. 45; Wivill v. Ewbanke, 1 Ro. Abr. 482; Confirmation S. pl. 2; Perk, sect. 25; Litt. sect. 446.

(h) Carleton v. Leighton, 3 Meriv. 671; Morse v. Faulkner, 3 Swa. 429; 1 Anstr. 11; and see Smith v. Baker, 1 Yo. & Coll. in Cha. 223.

and that where a person by deed indented(i) represents himself as the owner of an estate, and affects to convey it for valuable consideration, having, at the time, no possession or interest in the estate, and where nothing therefore can pass, whatever be the nature of the conveyance ; in such case, if by any means the grantor afterwards acquire an interest in the estate, he is estopped, in respect of the solemnity of the instrument, from saying, as against the other party to the indenture, contrary to his averment in that indenture, that he had not such interest at the time of its execution; as it can be of no importance to the general principle, whether the indenture, which operates this effect by its mere character as a solemn instrument, is an indenture of release, or an indenture of feoffment. The doctrine of estoppel stated in this case has not been acquiesced in to its full extent, and in conformity with(j) the earlier authorities, has been restrained to assurances of record, feoffments, and demises by indenture; for, as observed by Lord Kenyon(k), estoppels are only to be extended so far as positive rules have gone, their tendency being to prevent an investigation of the truth of the

case.

Thomas Jarvis, having an equitable fee in certain lands, and being in possession, by indented deeds of lease and release granted the premises in mortgage to Jefferys, and having afterwards acquired the legal estate in fee, the mortgagor conveyed the same premises in mortgage to Henry Bucknell, and it was decided(/) that the indenture of release to the first mortgagee did not operate as an estoppel, as nothing passed by that deed, except what the releasor lawfully had at the time of its execution; and that the persons deriving under the second mortgage, by a good title subsequently acquired, were at liberty to shew that Thomas Jarvis, the mortgagor, had no legal estate in the lands when the first mortgage was granted.

If a person make a feoffment by indenture of Blackacre, in which he hath nothing, to A, to the use of B, and the heirs of his body, with remainder to A, and his heirs, and the grantor(m) afterwards purchase Blackacre, B cannot avail himself of the estoppel, because he comes in by force of the Statute of Uses.

4. If lands included in a mortgage be evicted by title paramount,

(i) Bensley v. Burdon, 2 Sim. & St. 519-526; affirmed on appeal.

(j) Wivel's case, Hob. 45; 1 Ro. Abr. 482; Confirmation, S. pl. 2; Perk, s. 65; and see 3 Sugd. Vendors, 423, note.

(A) The King v. Inhabitants of Lubbenham, 4 T. R. 254.

(1) Right dem. Jefferys v. Bucknell, 2 B. & Adol. 278; Doe dem. Oliver v. Powell, 3 Nev. & M. 616, and the notes; 1 Ad. & Ell. 531.

(m) Anon. Freem. K. B. 475, case 651, by Saunders, Ch. J.

any estate subsequently acquired by the mortgagor in the same lands, shall be bound by the mortgage. A person seised in fee of an undivided moiety, and possessed of the other moiety as a yearly tenant(n), granted the whole in mortgage: the landlord having recovered one moiety by ejectment, afterwards demised such moiety to the mortgagor for fourteen years; and upon an ejectment by the mortgagee, it was contended on behalf of the defendant, the mortgagor, that the interest created by the lease was a new estate, which did not pass by the mortgage; but it was ruled that the new lease was bound by the prior mortgage, and that the mortgagee was entitled to recover the whole of the premises.

5. A tenant is at liberty to controvert(o) the existence of any valid title in his lessor, prior to the commencement of the tenant's own holding, for the purpose of avoiding an assurance made by his landlord, inconsistent with the subsequent demise to himself. If a party seal an indenture purporting to demise lands in which he has no estate, or no estate by valid legal title, the lease will operate on, and take effect(p) out of any interest which he shall acquire in the premises during the continuance of the term, either by purchase or by descent; and the lease, which rested merely in estoppel, will, by such acquisition, become good(q) and unavoidable in interest, as the lessor shall be estopped by his own act, from disputing its validity. The estoppel runs with the land, and binds the lessor(), and all persons deriving under him, for where an estoppel works on the interest in lands, it binds them, into whose hands soever they come, and constitutes a title on which ejectment may be maintained.

6. An estoppel binding a party, extends to all persons deriving under him the same subject to which the estoppel is annexed. A mortgagor in possession, before breach of the condition for payment of the mortgage-money, made a lease for years(s) by indenture, and having afterwards performed the condition, then conveyed the premises to a

(n) Doe dem. Old v. Vickers, 6 Nev. & M. 437; Doe dem. Ogle v. Vickers, 4 Ad. & Ell. 782, S. C.

(0) Doe dem. Oliver v. Powell, 3 Nev. & M. 616; 1 Ad. & Ell. 531.

(p) Trevivan v. Lawrence, 1 Salk. 276; 6 Mod. 256; 2 Ld. Raym. 1048; Holt, 282; Hermitage v. Tomkins, 1 Ld. Raym. 729; Anon. 1 Ventr. 358; Walton v. Waterhouse, 2 Saund. 418, note 1.

(q) Co. Litt. 47; B. & Hargr. note 307; Walton v. Waterhouse, 2 Saund.

418, A., note B.

(r) Trevivan v. Lawrence, 1 Salk. 276; Palmer v. Ekins, 2 Stra. 817; 2 Ld. Raym. 1550; Parker v. Manning, 7 T. R. 537; Taylor v. Needham, 2 Taunt. 278; Weale v. Lower, Pollexf. 61; Carvick v. Blagrave, 1 Brod. & B. 535; 4 Moo. 303.

(s) Edwards v. O'Melaghlin, March, 64, pl. 99; O'Melaghlin v. Hood, 1 Ro, Abr. 874, Estoppel, Q. pl. 10, and V. pl. 5; Whaley v. Anderson, Thos. Raym. 122; 1 Keble, 876, by Wyndham, J.