
    John C. Trolan, Appl’t, v. Leroy S. Rogers, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1. Estoppel — Ancestor’s Warranty.
    The heirs of a grantor a- e not estopped from asserting claim to lands co iveyed by him with warranty of title, where they do not hold under the ancestor, hut by an independent title, accruing before the deed.
    3. Warranty — Collateral.
    ’ The ancient doctrine of collateral warranty does not exist in our law.
    3. Same.
    Sections 1843 et seq of the Code were not designed to affect the interests , of remaindermen, nor to continue in such case the doctrine of collateral warranty.
    
      Henry Purcell, for app’lt; Rogers & Atwell, for resp’t.
   Merwin, J.

— The property in question was owned by William Gill, at the time of his death, on the 2d January, 1857. He left, a widow, Hannah Gill, and two children, Julius Gill and Julia Wiggins, the wife of Sullivan G. Wiggins. By his will, as construed by this court, his widow had a life estate in the whole property. At her death the two children had each, the use during life of the one-half in severalty, and at the death of either the half that the party dying was entitled, to the use. of passed absolutely to his or her children. It-was said that the-fee vested in the grandchildren at the testator’s death. On the 23d May, 1857, the widow and Julius Gill executed to Julia .Wiggins a quitclaim deed of the property in question with other propérty. On April 8,1875, Julia Wiggins, with her husband, executed to the defendant a warranty deed of the premises’in-question for the consideration of $800; and defendant went into possession. The form of the covenant in the deed is as> follows :

“And the sajd.- Julia-.Wiggins and .SoJJivan., G. Wiggins do hereby covenant and agree to and with the said party, of the.second part, his.heirs and assigns, that the. premises thus.conveyed in,.the quiet and peaceable possession of-the said party of the second part, his heirs and assigns,-they will forever, warrant .and defend against any person whomsoever lawfully claiming-the same, or, any part thereof.” *

Hannah Gill died Octob.er 25, 1875.. Julia Wiggins died intestate on the.,21st May-,- 188.1, leaving four children, one of whom, Ada E., became the wife, of the plaintiff on the 20th May, 1875-, and died February 21, 1884, intestate', and’.leaving two children, the issue, of. the marriage. Julia-Gill is still living. The plaintiff claims, as tenant by the curtsey, to, be entitled to the use during his life of the share given to his- wife by the will of her grandfather, and of which she. was., entitled to the possession, on,the death of her mother. Upon the motion for a. nonsuit several grounds were stated, but, in view of our former decision, the eighth ground is the only one now relied on by. the respondent to sustain the nonsuit.. That is as follows:

“(8) That it appears that the heirs of-Julia Gill have inherited from her real estate in excess of the value of the land in question, and to that extent they are bound by her warranty deed to the defendant, and are estopped from committing a breach of their own covenant to the extent of the property inherited by them of the deceased, Julia Wiggins.”

It was shown that Julia Wiggins, at her death, left real estate that descended to her heirs to the value of about $2,500. The value now of the land deeded to defendant was shown to be about $3,000. The claim of the defendant is that the heirs at law of Mrs. Wiggins, including the plaintiff and his wife, are bound by the covenant of warranty in the deed to defendant, and are estopped from claiming title. Undoubtedly the heirs are. bound by the covenant to the extent that they are liable under the statute (Code, § 1843, et seq.),bj,. reason .of. property descending to them from the decedent. If Mrs. Wiggins,, after the conveyance to defendant, had acquired,the fee, her heirs, seeking to claim it under her, would be estopped, Tefft v. Munson, 57 N. Y. "97. But here a different question is presented, The heirs of Mrs. Wiggins do not take this property by descent from her, or. claim under her, but by independent title that vested at the death of their grandfather. As to this property, there was no privity between Mrs. Wiggins and her heirs. “The term- ‘privity’ denotes, mutual- or successive relationship to the same rights of property.” 1 Greenl, Ev. § 189. The doctrine of estoppel, as applicable to the different classes of privities, “applies to them under, one and the same principle, namely, that a party, claiming through another is estopped<by that which estopped that other respecting, the subject matter.” Stacy v. Thrasher, 6 How. 59. In 1 Freem. Judgm. § 162, it is said that:

“Except to the extent which one person had succeeded to an estate or interest formerly had by. another, there .can be no privity between them, no mqttev w.hat were or are their, relations, to each other, or to the same piece of property. * * * Kinship, whether by affinity or consanguinity, does not create privity, except when it results in the descent of an estate from one to another.”

When an heir represents the ancestor, and continues his estate, an estoppel may arise. Bigelow, Estop. (2d ed.) 337. That is not the case here, as the heirs do not hold under the ancestor, but by an independent title, accruing before the deed. We are referred to no case in this state where an heir in such a situation was estoppel from claiming the land. In Tefft v. Munson, supra, and Mygatt v. Coe, 142 N. Y. 78; 58 St. Rep. 408, the question here involved did not arise. Nor does Thompson v. Simpson, 128 N. Y. 270; 40 St. Rep. 164, help the defendant. There the heirs at law of a tenant by the curtesy, who had given a warranty deed purporting to convey the fee, were held to be precluded from asserting their title, because, with full knowledge of the facts, they had received the proceeds of the sale. In Van Rensselaer v. Kearney, 11 How. 297, the life tenant, after the deed, and before his death, became the owner of the fee. So his heirs were held to be barred. In Carbrey v. Willis, 7 Allen, 364, 368, the rule laid down was that a convejmnce with full covenants of warranty would es-top the grantor, and those claiming under a title subsequently derived from him, from claiming any interest in the premises. The defendant in effect seeks to apply here the accident doctrine of collateral warranty. That was where the heir’s title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor, and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. 4 Kent, Comm. 469 ; 2 Greenl. Cruise, 738. This kind of warranty was deemed a grievous one. Rawle, Oov. (4th ed.) 382,. and does not exist in our law. Section 141, 4 Rev. St. (8th ed.). 2452, is as follows:

“Sec. 141. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who have made any covenant or agreement, shall be answerable upon such covenant or agreement to the extent of the lands descended or devise'd to them, in the cases, and in the manner, prescribed by law.”

Of this, and the provision of the statute that no covenant shall be implied in any conveyance'of real estate, it is said in 4 Kent, Comm. 470:

“These provisions leave the indemnity of the purchaser for failure of title, in cases free from fraud, t,o rest upon the express covenants in the deed, and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions.”

The remedy referred to in section 141 was regulated by other provisions of the statute, which have been in substance incorporated in the Code of Civil Procedure (section 1843 et seq.) Section 143, 4 Rev. St. (8th ed.) 2452, is as follows:

“Sec. 143. No greaier estate or interest shall be construed to pass by any grant or conveyance, hereafter executed than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor" and his heirs claiming from him by descent.”

The last clause of this section the defendant claims the benefit of, but it does not seem to apply here, as the plaintiff and the children of Mrs. Wiggins do not claim the property by descent from Mrs. Wiggins, defendant’s grantor. The effect to be given, to this section is considered in the Thompson Case, page 285, 128 N. Y., and 40 St. Rep. 164, and it is quite evident that the interests of remaindermen were designed to be affected, .nor was it designed to continue in such a case the doctrine of collateral warranty. In the Thompson Case, the claimants were in a position of heirs to an ancestor who had given a warranty deed. Still it does not seem to have been suggested that an estoppel could be based on the warranty in such a case, the heirs taking from an independent source. It is claimed on the part of the defendant that the case of Carson v. Cemetery Co., 104 Pa. St. 575, is in this point. There it was held that a warranty by a tenant by the curtesy is a bar to the heir taking by descent from his warranting ancestor assets of equal value to the land warranted. There seems to be in Pennsylvania no statute like the one in this state, and above referred to. In Indiana there is a statute similar to ours, and it was there held, in Hartman v. Lee, 30 Ind. 281, that a warranty deed by a tenant by the curtesy did not bind the heirs, and that the remedy of the grantee was for damages for breach of the covenant.

We are of the opinion that the plaintiff is not, by reason of the warranty deed to defendant, estopped from asserting his rights. It is hardly claimed that the defendant is in a position in this action to get the benefit of the statutory provisions making heirs and devisees liable for the debts of the decedent. Code, § 1843, et seq.; Selover v. Coe, 63 N. Y. 438. Such action must be against all the heirs (section 1846), and certain conditions must exist (section 1848), which are not shown here; and the amount recoverable depends on the amount of the assets and other claims are to be taken into account. It follows that the nonsuit was improperly granted.

Judgment and order reversed, and new trial ordered ; costs to abide the event. All concur.  