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Effect of Sale & Warranty of Chattels where Vender subsequently [?] better title
Case Stated by Mr E. [?] Ey, of Nottaway [CH.?] June 2. 1838.
Dr James Jones, late of the county of [Nottoway?], died in 1848m and on the 6' day of July of that year, his will was admitted to probate.
He left the whole of his estate real & personal, to h is wife, Mrs Catharine Jones, for her life, with a [?] to give "to any of one friends or relations, any of one slaves she may see fit to dispose of either in her life-time, or at her death, by will", with the exception of one slave by name.
He gave his lands, after his wife's death, to his brother, Richard Jones for life, remainder to Richard's son Joseph Addison Jones in fee, provided he should be alive at his father's death, [?] [?] mind, but if not alive, or any other circumstance should render if improper for him to have the property in [judgment?] of his father, with [?] to the latter to give it to any other of his children.
All the slaves not [disp?] of by his wife, in pursuance of the [puns?] given her, (with certain exceptions), he gave to his bother Richard for life, remained to Richard's son, Joseph Addison Jones, [?] to the same restiutions & contingencies as in the case of the lands.
Richard Jones seems to have died after the [testates?], [?] [?] any one to take the remainder in either lands or slaves, in place of his low, Joseph Addison. The widow, Ms Catharine Jones, yet [?].
On the 19' day of December 1855, in considera tion of $14000, Joseph Addison Jones, by dead reciting the precisions of the will, converged to Thomas H. Campbell, with general warranty, the lands to which he was entitled in remainder, under his uncle's will, and also
"all right title and interest which he has in and to all of the slaves, money, and perishable estate to him be- queathed by the said will of the said James Jones, and all rights which he has acquired to said slaves and pers onal property, perishable estate & money, and all of the said slaves and money and perishable estate, the _Jo seph A. Jones doth hereby convey to the said Thomas A. Campbell, subject only to the life-estate of the said Catha rine Jones in the same".
"All the said Joseph A. Jones doth by these presents
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covenant to [faith?] the said Thomas H. Campbell, that he, then said Joseph A. Jones, will warrant specially, title to all of the slaves, and perishable estate held by the said James Jones upon the day of his death, & bequeathed to his widow, Mrs Catharine Jones for life, with remainder one, as in the said will set forth."
The question submitted to me is, whether if Mrs Catharine Jones should by will, in pursuance of the power vested in her, give any of her husband's slaves to Joseph A. Jones, the benefit of the disposition would enure to Campbell?
A deed with general warranty, it is universally agreed, estops the grantor turn claiming the property thereby converged, by any title which he may afterwards acquire, notwithstanding he may {afterwar} have had nothing in the subject at the time of the conveyance, and that upon the principle of [avoiding?] circuity of action. Some authorities, indeed, held that upon the subsequent acquisition of the better title, the same passes by the mere effect of the original conveyance, to the granter. But without giving into that controversy, it is sufficient to [observe that it is undisputed law that the granter in such case, cannot efficiently claim the property, by virtue of his subsequently obtained title.
2 Th [?] Lit. 416, [?] (I); [Id?] 457 Rawlins' Case 4 Co. 53. 2 Lim. [?ig]. 356, 2 Smith's lead. Cas. 474, 507, 571, [&?]. Wells & Austin Tullann. & [?]. 707. Somes' [?] v Skinner 3 [?] 52 Jackson v [?] [?] Johns. 102, 108. Jackson v [Wight?] 14 Johns. 193 Jackson v Stevens 16 Johns. 110 Jackson v Bradford 4 Wend. 619 Blanchard v Brooks 12 [?], 47
It seems also pretty well established that a conveyance with special warranty against the granter only, and all persons claiming under him, or even with general warranty, if nothing be conveyed but the exist- ing title or claim, does not at Law a estop a grantor from setting up another title subsequently acquired.
2 [?] Dig 356-7 Wynn v Harman's [?] 5 [?]. 163 Blanchard v Brooks 12 [?] 67
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Comstock v [VERSUS] Smith 13 Pub. 116 Wheelock v [VERSUS] Henshaw 19 Pub. 341 Jackson v [VERSUS] Winslow 9 [Civ?]. 13 In Equity, however, a different rule prevails In that forum, a vendor will be constrained to make good, out of any after-[acquired?] interest, whatevr he has professed to sell. It is a clearly established if not very familiar [strike]side[/strike] Equitable doctrine, that if a man contracts to sell an estate which he has not at the time [strike]such contract is entered into,[/strike] and he afterwards acquires such an interest as will enable him to make good his contract, he will be compelled to perform his engagement. And it should be observed that Equity regards every assignment or transfer which cannot operate as an executed conveyance, as an execution, contract, and will give it effect in one capacity, if it fail in the other. Rawle's [Civ't?] of Title 347 Goodtitle v [VERSUS] Bailey [Civp?] Vol. Whitfield v [VERSUS] Faussett 1 ves [?] 391 Knight v [VERSUS] Knight 1 ves [?] 411 Berkley v [VERSUS] Newman 2 P Wms 182 Hobun v [VERSUS] [TREVES?] 2 P Wms 191 Mitchell v [VERSUS] Winslow 2 Story's Rep 630 [Woodsworth?] v [VERSUS] Sherman 3 Story's Rep. 175 Breckenridge v [VERSUS] Churchill 399 Marsh 13 1 Madd Chan 437 2 White & Tud. Lead. Cus. (Pt. 2) 224 2 Smith's L. C. 528 So far is this doctrine carried, that although according to the more recent, as well as the earlier authorities, the right of property in chattels personal cannot pass by grant (at law) under actually, or potentially owned, when granted. 2 White & Tud. L. C. (Pt. 2) 225 Patch v [VERSUS] Tutin 15 M & W 110 Lunn v [VERSUS] Thornton 1 C B. 379 Winslow v [VERSUS] Merchants' Insur. Co. 4 Met. 306 Imes v [VERSUS] Richardsen 102d, 481; Yet in Equity an Executive right in such case is acquired, which will be enforced, although no present or actual interest at law vested. 2 White & Tud L C (Pt 2), 228 2 [Stor?] [Ep?]. [?] 1040-'41. The question, therefore, to be determined in the case under consideation, is substantially, what [J. A. Imes'?] deed purports to convey. If it purports to [?con-?]
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[?]vey only the existing interest in the slaves, which the granter had at the time of making the conveyance, any future title which might [desvlve?] upon him would not ensue to Camphill's benefit, but if, [acending?] to a [put?] interpretation, the convenance undertaken to transfer the slaves themselves, & not merely his then claim & interest, Equity would oblige him to give effect to his grant out of any interest which might afterwards [??] to him.
At first view, I was inclined to regard the conveyance as applying only to the existing claim of the grantor, in consequence of the [???] "right, title and interest which he has" & but upon further reflection I think that, taking the whole instrument together, it is a grant of the slaves themselves. Their the granting part, after conveying all right & in the slaves [?] bequeathed by the will, & all rights in them which he has acquired, ( a phraseology which countenances my first impression), proceed to declare that all fo the sd claves the P Johnes [???] hereby convey to the sd Camphill, [??] only to the life estate of [??] C lines. And the warrant is not of the right, interest & [??] [?] of the [?] (which might have been [????] to refer to the existing title first, perhaps, alluded to) , but of title to the slaves &.
I cannot profess to be perfectly satisfied that this last is the construction of the conveyance which the Courts would adopt, but it seems to me the most probable construciton, even independently of the