
    *Burtners v. Keran.
    November Term, 1873,
    Richmond.
    i. Conveyances—General Warranty—Conditions—Records of Foreign Court.
      
      —K conveys land in Illinois to B. with general warranty. B conveys this land to his two infant children C and M, with general warranty. B afterwards removes to Virginia, and here conveys the same land to K with general warranty; and K then obtains a conveyance of the land from L the prior owner. K flies a bill in equity in the proper court in Illinois, which has both common law and equity jurisdiction, against B and C and M, to establish his claim to the land. A formal answer is filed by a guardian ad litem, for the infants, and B is proceeded against by publication, according to the laws of Illinois. Upon the hearing the court decides in favor of the infant children, G and M, and dismisses K’s bill. K then sues B in Virginia in covenant on the general warranty of title in the deed from B to him. The issues were upon the pleas of covenants performed, covenants not broken, and a general plea of non est factum. On the trial K offers in evidence the record of the suit in Illinois. Heed:
    1. Same—Same—Same— Same — As Evidence.—The fact that B had no notice of the suit, is not a valid objection to the record as evidence in the cause: it having been proceed ed in according to the laws of Illinois.
    2. Same—Same—Same—Same—Presumption as to Jurisdiction.—The Illinois court being a court of general jurisdiction, this court must presume that it had jurisdiction to try the cause in equity; and the record cannot be objected to on that ground.
    3. Same—Same.—In fires, feoffments and other common law recoveries, the warranty not only concluded the grantor or feoffer but actually transferred the after acquired estate or interest to the grantee or feoffee.
    
      4. Same—Same—Under Statute of Uses.—Conveyances under the statute of uses only pass such estate as the grantor had at the time: the warranty merelyserving as a remedy, or operating to estop the grantor from denying the ownership of the estate at the time of the conveyance executed-
    *5- Same—Same—Same—Effect of Warranty.—If a person conveys land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the beneflt of the grantee, because the grantor is estopped to deny, against the terms of his own warranty, that he had the title in question; but it does not operate actually to transfer the estate subsequently acquired.
    6. Same—Same—Same—Same.—Though, therefore, the deed from B to K enured to the benefit of C and M under the operation of K’s warranty, and estops him from claiming the land against them, it does not pass the interest in K, or operate as a conveyance.
    7. Same—Same—Same—Same—As to Third Parties.— Though the estoppel of K’s warranty operates in favour of C and M, B can derive no benefit from it. He can not say that his deed vested no beneficial interest in K.
    8. Same—Same—Same.—Though an assignee can only take advantage of the covenant of warranty when an estate passes by the deed, yet it is, in favour of the grantee, a covenant in gross, and binds the warrantor though no estate passes by the deed.
    9. Same—Same—Fraud—Effect.—Though the d.eed from B to K was fraudulent in its intent as to C and M, it was valid between the parties, and K may maintain an action against B upon the covenant of warranty.
    10. Same—Same—Same—Same.—The motives influencing K to take the deed from B, cannot be the subject of enquiry before the jury to defeat or vary its legal operation and effect.
    n. Same—Same—Same—Same.—Under the issues in this case, K is entitled to recover, though the jury may believe that the covenant in B’s deed to K was executed by B, induced by the fraudulent misrepresentations of K as to the effect of said covenant.
    12. Same — Same — Same — By Statute.—Where a deed is procured by fraudulent misrepresentations, the defence can only be made at law, in the mode provided by the statute; Code of 1860, ch. 172, § 5; and the defendant should file a special plea averring the fraud, or special circumstances which entitle him to relief in equity. And the facts should be set forth with sufficient precision and certainty to apprise the plaintiff of the character of the defence intended to be made; and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief.
    *13. Same— Same — Same — Instructions. — As the question of fraud was not in issue before the jury, though the evidence of the fraudulent misrepresentation was introduced without objection, the court, on the motion of the plaintiff, properly instructed the jury to disregard it.
    This case was argued at the last term of the court at Staunton, and was decided in Richmond at its present term.
    This was an action of covenant in the Circuit court of the county of Rockingham, brought in March 1860, by Eli Reran against Ezra and Solomon Burtner. The covenant sued on is a covenant of general warranty, in a deed bearing date the 21st day of January 1858, by which Ezra and Solomon Burtner and their wives, in consideration of $2,000, conveyed to Eli Reran, a tract of land of one hundred and twenty acres, lying in Edgar county, in the State of Illinois; it being “the same land formerly conveyed to the said Eli Reran by James Rilley, by his deed duly admitted to record in said county. ’ ’
    By deed bearing date the 25th day of March 1854, Eli Reran and his wife, in consideration of one dollar, conveyed with general warranty, to Ezra Burtner, who was his son-in-law, a tract of land in the county of Edgar in , the State of Illinois, containing one hundred and twenty acres, “it being the same land which was formerly conveyed to the said Eli Reran by James Rilley, by his deed duly admitted to record in said county.” This deed was duly recorded on the 27th of Eebruary 1855.
    By deed dated the 28th of November 1855, Ezra Burtner, in consideration, as stated in the deed, of $1,500, conveyed with general warranty, this land with the same description, to his two infant children, Cornelius A. and Mary M. Burtner. This deed was executed *in Illinois, and was admitted to record on the 2d of January 1856. And by deed bearing date the 18th of December 1855, the same Ezra Burtner and his wife conveyed the same land, with general warranty, to Solomon Burtner. This deed was executed in the county of Rockingham. It was acknowledged before a notary on the day of its date; and was admitted to record in Edgar county, Illinois, on the 21st of December 1855.
    Although the deeds from Reran to Ezra Burtner, and from Ezra and Solomon Burtner to Reran, describe the land conveyed' in them as “the same land formerly convej’ed to the said Eli Reran by James Rilley by his deed duly admitted to record in said county,” no such deed from Rilley of prior date to these deeds, is to be found in the record; but by a deed dated the 26th of May, 1857, Rilley and wife, in consideration, as stated in the deed, of one dollar, grant to Eli Reran, with special warranty of title, all their right, title, interest and claim to the land. And this deed was admitted to record November 9th, 1857.
    In July 1858 Eli Reran instituted a suit in equity in the Circuit court of Edgar county, in the State of Illinois, against Ezra and Solomon Burtner and Cornelius A. and Mary M. Burtner, the infant children of Ezra Burtner. In his bill he set out the deed from Ezra Burtner to Cornelius A. and Mary M. Burtner; the deeds from Ezra to Solomon, and from both of them to himself; and he refers to the fact that though the deed to Cornelius A. and Mary M. Burtner was executed before the deed to Solomon Burtner, the last was first recorded; and he charges that Solomon had full and complete notice at the date of his conveyance, of the previous conveyance to the said children ; but by vigilant caution and speedy travel he had procured the recording of the deed to him, before that of the deed to the children. He says that though he was aware of the *deed to the children, it was only on taking steps for the recording of the deed to him, that he was apprised that the said Solomon was a purchaser with full notice of the title of said children. He says he is in possession of said land, but by reason of the situation of his title, as before set out, he is unable to dispose of the same, whilst he is deterred from enjoying and improving it. The prayer of the bill is, that his title to the land may be quieted and confirmed as against the claim, as well of the said Cornelius A. and Mary M. Burtner, as against that of Ezra and Solomon-Burtner and their heirs ; and for general relief.
    A guardian ad litem was appointed for the infant defendants; who filed an answer for them, submitting their rights to the protection of the court. Ezra and Solomon Burtner were proceeded against as absent defendants, by publication, according to the Illinois statute; which appears to be much the same as that of Virginia.
    The cause came on to be heard on the 24th of May, when the bill was taken for confessed as to Ezra and Solomon Burtner; and the court held that the deed from Ezra Burtner to Solomon Burtner, and their deed to Eli Reran were fraudulent and void in law and equity, as affecting the prior title of the infant defendants; and that the prayer of the bill be refused; and that the bill be dismissed. And Cornelius A. and Mary M. Burtner were decreed to be seized of the said land, and lawfully entitled to the quiet and undisturbed possession thereof, free from all claims made or to be made under the said fraudulent conveyances to Solomon Burtner and Eli Reran.
    In this a.ction Solomon Burtner filed a plea of non est factum; and both the defendants filed the pleas of covenants performed, and covenants not broken; and issues were made up upon them.
    *On the trial of the cause, after the plaintiff had introduced in evidence the deed from Ezra and Solomon Burtner to himself, and proved the execution of said deed, he offered in evidence an official copy of the record of the case in the Circuit court of Edgar county, and with it he introduced a witness, who stated that he was a lawyer, and had practised law in the State of Illinois for some years, and during the years of 1858 and 1859. He referred to the two volumes containing a compilation of the general laws of the State, and which he said were in force in 1858, 1859, and read the provisions of the law regulating proceedings in chancery causes, and in relation to conveyances; by which it appeared that the case had been proceeded in according to the provisions of the statute of that State; and that conveyances by parties, of land in the adverse possession of another were valid; and that the grantee had the same right of action for the recovery thereof, as if the grantor had been in actual possession.
    The defendants objected to this mode of proving the laws of Illinois; and also objected to the admission of said record with or without proof in relation to the laws of Illinois. But the court overruled the objections, and admitted the evidence; and the defendants excepted.
    After all the evidence had been introduced, including the deeds herein before referred to, and it had been proved that Reran had never got possession of the land in Edgar county, Illinois, but the same had been in possession of the guardian of Cornelius A. and Mary M. Burtner, and that Reran knew of the conveyance to them by Ezra Burtner, before he received or contracted for the deed from Ezra and Solomon Burtner to him, the defendants moved the court to give to the jury the following instruction:
    If the jury shall believe from the evidence, that the ^plaintiff by deed with a covenant of general warranty, conveyed the tract of one hundred and twenty acres of land, in Edgar county, in the State of Illinois, to the defendant Ezra Burtner; and that afterwards the said defendant conveyed the said tract of land by deed with like warranty, to Cornelius Burtner and Mary Burtner; and that afterwards the said Ezra Burtner conveyed the same tract of land to defendant Solomon Burtner; and that afterwards, and whilst the said Cornelius and Mary still held such title as had been so conveyed to them, the said defendants united in a deed, with a covenant of general warranty, such as is described in the declaration, to the plaintiff Eli Reran; the latter conveyance could not confer upon the plaintiff any beneficial interest to vest in him, in conflict with his warranty which had passed to and rested with Cornelius and Mary Burtner; but could only operate in favor of the said Cornelius and Mary, by bringing in to them an outstanding, conflicting claim to said land; and that the deed of defendants to plaintiff failing to take effect in favor of the plaintiffs, the covenants therein also failed to take effect. To the giving of this instruction the plaintiff objected; and the court refused to give it. And the defendants excepted.
    The defendants then moved the court to give the following instructions:
    If the jury shall believe from the evidence in the cause, that the plaintiff conveyed the tract of one hundred and twenty acres of land in Edgar county, Illinois, to the defendant Ezra Burtner, and that the latter afterwards conveyed the same to Cornelius Burtner and Mary Burtner; and that the defendant Ezra, without any reconveyance to him, and without being in any way reinvested with the title in said tract of land; but the title thereto then remaining in the said Cornelius and Mary; Conveyed the same tract to the defendant Solomon; the said Solomon and Ezra then well knowing the rights of said Cornelius and Mary; and that the said Ezra and Solomon the said rights of the said Cornelius and Mary still subsisting, and the said Solomon and Ezra having acquired no other title to said tract of land, made the deeds upon a covenant in which this action is founded, to the plaintiff, who well knew the facts above supposed: And if the jury shall also believe it was the purpose of the said Eli Keran, when he took said supposed deed and covenant, to secure the said land to himself, as against the said Cornelius and Mary, then the covenant was so far tainted with fraud that the plaintiff can not recover upon it in this action.
    And if the jury shall believe from the evidence, the above facts, hypothetically supposed, except as to the intent with which Keran took the said grant and covenant to him from the defendants; and that it was the intent of the said Eli Keran thereby merely to remove a cloud upon the title of Cornelius and Mary, who were his grandchildren; and the object has been accomplished; then there has been no breach of said covenant. These instructions the court1 refused to give; and the defendants again excepted.
    The plaintiff then asked the court to instruct the jury as follows:
    If the jury believe from the evidence, that the defendants did, in fact, voluntarily execute the deed of the 21st day of January 1858, to the plaintiff, knowing what were the covenants in said deed, they are to regard the covenants as binding upon said defendants, though they may believe the execution of said covenants by them was induced by the fraudulent misrepresentations of the plaintiff, of the effect of said covenants between said parties, varying the written contract *sued upon. The court gave the instruction; and the defendants again excepted.
    The jury found that the writing obligatory, in the declaration mentioned, was the deed of the defendants; and upon the issues joined, upon the pleas of covenants performed and covenants not broken, they found for the plaintiff, and' assessed his damages at the sum of sixteen hundred and twenty-five dollars, with interest thereon from the 24th of May 1859 until paid: And the court rendered a judgment according to the verdict. The defendants thereupon applied to a judge of this court for a writ of error and supersedeas; which was awarded.
    Robert Johnston and Harris, for the appellants.
    We think it perfectly clear that the record of the Illinois court ought not to have gone before the jury:
    1st. Because it is clearly fraudulent upon its face, as the bill and whole proceedings show the real object of the suit was to have the title in the children confirmed, and the title of himself, Keran, of whom he speaks as “one Keran,” pronounced bad. This is inevitable, because upon his own statement of the case he puts himself out of court, and is careful to so state it as to secure that result. If the decree in this case had been procured by fraud not appearing upon the face of the papers, then it would have been passed upon by the jury; but the whole proceedings bearing upon their face fraud plain and palpable as the sun, it was the duty of the court to have rejected it as evidence and not have allowed a jury to act upon a record thus obtained. See Beale v. Sievely, 8 Leigh 658.
    2d. It ought to have been rejected, because at the time of the institution of this suit the decree was not final, as three years had not elapsed between its rendition and the institution of this suit; in fact, less than one year. *See sec. 15, page 29 of the Illinois law, which gives nonresident defendants, on whom process has not been served, three years in which to appear and answer the bill; “and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made.” Thus showing clearly that the decree did not become final and binding on the parties until the expiration of the three years.
    3d. It ought not to have been admitted, because no notice of the suit was served on Solomon and Ezra.
    The doctrine that “full faith and credit shall be given in each State to the judicial proceedings of every other State,” is too well established to be controverted; yet that law has its exceptions, one of which is, when no personal notice has been served on a defendant, the said proceedings cannot be used against him beyond the prime and immediate object of the suit. See D’Arcy v. Ketchum, 11 How. U. S. R. 175.
    The cases referred to on this point by the appellee’s counsel, all concede the doctrine that a judgment or decree obtained without personal notice, cannot be used for any other than the immediate object of the suit. See Rootes v. Tompkins, 3 Gratt. 98; Wilson v. Bank of Mount Pleasant, 6 Leigh 570 ; Mankin v. Chandler & Co., 2 Brock. R. 125; Magee v. Beirne, 39 Penn. St. R. 50; Woodruff v. Taylor, 20 Verm. R. 65; The Bold Buccleugh, 7 Moore P. C. 267, 282.
    The appellee’s counsel insist that “eviction need not be by process of law; that the grantee may surrender possession to a superior title. ”
    Admit this to be true, it cannot avail the appellee in this suit, for he declared eviction by the record of the Circuit court of Edgar county, Ill., and in his declaration claims his right to recover solely on that ground and none other.
    *Suppose the record of that case had not sustained the appellee on the trial before the jury, would he have been permitted, without amending his declaration, to prove an entirely different case? We think not. Hence, if the law be as he claims, he cannot get the benefit of it in this case.
    4. We do not doubt the general jurisdiction of the Circuit court of Illinois, over the property in question; but we deny the court had jurisdiction in equity to try the question of title raised by the bill of Keran. The right of courts of equity to “cancel deeds” and other contracts under given circumstances, as claimed by the appellee’s counsel, no one denies, but we do deny that a vendee (as Keran) has a right to come into a court of equity to have his own deed cancelled, or pronounced fraudulent. The jurisdiction is given to plaintiffs to cancel deeds and titles against them, surely not to cancel those in their favor, in order that they may sue upon their breach of covenant and then use the record so obtained as conclusive on the subject. Stuart’s heirs v. Coalter, 4 Rand. 74; Range v. Jones, 5 Leigh 192; Carrington v. Otis, 4 Gratt. 235.
    3d. The first instruction should have been given. The propositions upon which the defendants rested their first instruction are,
    1st. That as Ezra had previously conveyed the land by deed, with general warranty, to Cornelius and Mary Burtner, he was estopped by his general warranty; and that Solomon, and Keran, as subsequent purchaser under and from him, were also estopped. The estoppel of purchasers in such cases is an ancient as well as a modern doctrine
    “Privies in blood as the heir; privies in estate as the feoffee, lessee, &c. ; privies in law, the lords by escheat; tenant by the curtesy, tenant in dower, &c., that come in by the act of the law or in the post, shall be bound and *take advantage of estoppels.” 3 Coke on Litt. 431, 352 a. “If the conveyance be with general warranty, (says C. Kent. 4 Com. 98,) not only the subsequent title acquired by the grantor will enure by estoppel to the benefit of the grantee, but a subsequent purchaser from the grantor, under his after acquired title, is equally estopped, and the estoppel runs with the land.”
    Judge Story, Carver v. Jackson, 4 Peters R. 86, in speaking of what was said by the court in the case of Trevivan v. Lawrance, 1 Salkeld R. 276, says: “In the next place, it shows that such estoppel binds all persons claiming the same land, not only under the same deed but under any subsequent conveyance from the same party; that is to say, it binds not merely privies in blood but privies in estate, as subsequent grantees and alienees. In the next place it shows that an estoppel which (as the phrase is) works on the interest of the land, runs with it into whosoever’s hands the land comes,” &c. As to the estoppel of a subsequent purchaser, see also Smith v. Sheeley, 12 Wall. U. S. R. 358; Myers v. Croft, 13 Wall. U. S. R. 391.
    2. Eli Keran was estopped or rebutted by his own general warranty, which ran with the land and descended to Cornelius and Mary Burtner, through Ezra’s conveyance of the land to them. Eor if Keran should, by after acquired title, recover the land from Cornelius and Mary, then they could recover its value from him on his warranty ; and to prevent multiplicity of suits Keran is rebutted.
    3. Eli Keran was concluded by the recital of his deed to Ezra Burtner. It not only recited a good title in himself, but purported to convey the same. There was some discussion upon this subject in Doswell v. Buchanan, in 3 Leigh 394, but the doctrine is well settled. Van Renssalaer v. Kearney, 11 How. U. S. R. 297.
    *That, inasmuch as the deed of Ezra and Solomon Burtner to Keran could not take effect beneficially to Keran, there could be no recovery on the covenant, there may be cited what is said by Judge Moncure in Dickinson v. Hoomes, 8 Gratt. from 395 to 406; 2 Lomax Digest, 242, chap. 21, § 4; note p. 2; Thomas Coke, Litt., top 301; Randolph v. Kinney, 3 Rand. 394, Munday v. Vawter, 3 Gratt. 518.
    The covenant for quiet enjoyment is more extensive than, though similar to, the covenant of general warranty. The former [see Code of Virginia, chap. 117, § 14, and Platt on Covenants, § 3 of chap. 11,] guarantees that it shall and may be lawful to and for the purchaser to enter into and upon, use, occupy and enjoy the said messuages, &c. ; and may be perhaps broken before entry of the grantee, if that entry should be unlawful. But the covenant of general warranty cannot have a separate existence; it is a parasite, it is inherent in the land, runs with it, and, if for any reason the deed in which it is found, cannot take effect, the breath of life is never breathed into its nostrils.
    The deed of Ezra and Solomon to Keran conveyed nothing, because there was nothing in them. There was not even a contingent right of dower in the wife of Ezra when she united with her husband in his deeds to Solomon and Keran. Ezra was apparently not seized of the land during the coverture, but had conveyed it to his children by a former marriage, before he became the husband of Eliza. At least there is no evidence of a contingent right of dower in Eliza, the wife of Ezra; and, if such right existed in her, it was not the subject of a grant, as it was mere possibility ; nor of a release, except to the owner of the land. The only operation of the deed, with privy examination of the wife of Ezra Burtner, would be by estoppel, in favor of the owners of *the land with which it runs, when the contingency upon which the right of dower depends happened.
    
      The case is in this regard very different from Dickinson v. Hoomes; thus, John Hoomes’ deed passed the base fee in the land, and Richard’s the possibility; though they united in the same deed and covenants. Here nothing whatever passed by the deed of January, 1858, to Keran.
    Woodson & Compton and Higgett & Hays, for appellees.
    It is claimed by appellant’s counsel, that the record of the suit is not evidence in this cause, and that it was inadmissible for any purpose, as the defendants were all non-residents of Illinois, and the Circuit court of Edgar county had no jurisdiction over them. This court being a court of general jurisdiction, it must be presumed that it had jurisdiction of the case, and that the proceedings were all according to the laws of Illinois. This land being situated in the State of Illinois, the courts of that State alone had jurisdiction over it; and no matter where the parties reside, the decision of the Circuit court of Edgar county is conclusive as to the title; and this is not only so by the statutes of Illinois, especially by sec. 1, chapter 18, but is so upon general principles of law. Freeman on Judgment, p. 463; Story’s Conflict of Laws, (seventh edition,) p. 731 to 766, chap. 15. Real property is governed by the lex rei sitae, and contracts representing it must be made and dissolved according to the laws of the county where it is situated. Story’s Conflict, sec. 364, 367, 424, 463, and the case of Mills v. Duryee, and notes to it in 2d American Heading Cases, p. 778, &c.; fifth edition. Independently of any statute or judicial regulation of the State of Illinois, the Chancery court had unquestioned jurisdiction to decree the cancellation or invalidity of the deed from Ezra Burtner to his children, *or the deed from Ezra to Solomon, or the deed from Ezra and Solomon Burtner to Eli Keran, on account of the fraudulent conduct by which Solomon got his deed; and with notice of the prior legal and equitable right of the children of Ezra Burtner, attempted to make it effective against them. See 2d Story’s Eq., chap. 17, title “Cancellation of Deeds;” 2d U. S. Eq. Digest, p. 526 to 528; also Chitty’s Eq. Digest, p. 663-664.
    As is stated in the notes to Mills v. Duryee, 2d American Heading Cases, p. 778, “judicial proceedings may be either in rem or in personam. In the one case the object is to establish an obligation against the defendant personally; in the other, to bind the title to some specific thing.” Boswell’s Lessee v. Otis, 9 How. U. S. R. 336; Hall v. Williams, 6 Pick. R. 332; Green v. Van Buskerk, 7 Wall. U. S. R. 139.
    We think, therefore, it is clear that the proceedings in Illinois were legal and regular, and that the title to the land was and is finally settled against Keran, and is in law equivalent to eviction: and while the record from Illinois might be impeached for fraud or want of jurisdiction, this has not been successfully attempted; and the legal presumption continues, that the proceedings there were legal and regular. 2 American Leading Cases, p. 632, &c. ; 10 Peters R. 742; 2 How. U. S. R. 219. The cases from the Va. Reports do not claim a different doctrine. See also 2 Wall. U. S. R., p. 328; and other cases cited in 2d American Leading Cases, p. 647-8. The cases cited, on the other side, and most of those referred to in the Books, are cases in which a suit was brought to enforce a debt or demand evidenced by a foreign judgment, in a suit in a foreign State; but the rule may be very different when the record of the foreign judgment is not the cause of action, but is collateral, and *is introduced to show the decision of the foreign court in regard to the title to the land, as in this case: a question as to which the foreign court has exclusive jurisdiction. Wharton’s Conflict of Laws, sec . 828, 830, 835; Freeman on Judgment, sec. 592-3; Bigelow on Estoppel, p. 164 to 264.
    This record was then clearly admissible to prove the judgment in rem: the loss of the land to Eli Keran ; and under the decree of the Circuit court of Illinois, taking the bill for confessed, as to Solomon and Ezra Burtner, under the laws of the State, (of which that court was the judge,) everything is established necessary for the recovery by ' the plaintiff in the court below.
    An eviction need not be by process of law; the grantee may surrender possession to a superior title; but in that case, he assumes the burden of proving the superiority of the title to which he surrenders. Sedgwick on the Measure of Damages, p. 158, 173-5; Hill, 590; 4 Mass. R. 349; 2 Mass. R. 433; 17 Mass. R. 586; Winslow v. McCall, 32 Barb. R. 241; 2 Greenl. Ev. p. 235, sec. 244; 2 Lomax, 274; 11 Leigh, p. 88. And it is proven in this cause, that the title of Solomon Burtner and Ezra Burtner was worthless, because they both knew, when Solomon took his deed and hastened to Illinois to have it recorded, that the land belonged to the children.
    2d. The Circuit court did not err in refusing to give the instruction asked by the defendants, set forth in their 2d exception.
    It assumes as a legal proposition, that as Eli Keran had sold the land to Ezra Burtner, who then sold it to his children, Cornelius and Mary Burtner, and afterwards sold it to Solomon Burtner, and then Solomon and Ezra Burtner sold to Keran, then this latter conveyance operated only in favor of Cornelius and Mary *Burtner, by virtue of the warranty of Keran to Ezra Burtner, and passing no title to Keran, the covenant of warranty to Keran never took effect. If it is true at common law that a warranty did not take effect, and was void, when the grantor was out of possession, or when there was an adverse possession, this was because of the policy of the common law, as expressed and confirmed by statute of 27, Henry VIII; which made such conveyances void; and until the revision of 1849, we had such a statute against pretended titles; but that statute was repealed; and by our Code a deed is valid and effec-
    
      tual to convey all the rights of the grantor, whether in possession or not. See 2d Lomax’s Digest, p. 9, 10 and 11; 2d Matthew’s Digest, p. 27, notes to sec. 5; and the notes to the Report of the Revisors of the Code, p. 602-3. These statutory regulations, taken in connection with the statute in regard to covenants for title—1st Matthew’s Digest, p. 530, 531, 535—were intended to remove such difficulties as these, and to get rid of the absurdity that a grantee who had obtained his deed with general warranty, and paid his money, could not recover upon the warranty in his deed, because some squatter in a distant State had possession of the land at the time of the deed. Moreover, the Illinois statutes, which must govern this case, as the land lies there, authorizes such a conveyance, and establishes the doctrine here contended for. See also Wead v. Larkin, 54, Illinois Reports, found at p. 149 of American Reports. This instruction also involves the doctrine of Estoppel, as to which doctrine and the exceptions to it, we refer the court to Bigelow on Estoppel, p. 269 to 363. The doctrine of estoppel does not apply to this case; and if it did, the title of Cornelius and Mary Burtner has not been disturbed. The title which Solomon and Ezra Burtner made to Keran, was adjudged fraudulent and void, because of the act of Solomon Burtner *in attempting to get a good title to the land, when he knew it belonged to Cornelius and Mary Burtner. Of this guilty knowledge on the part of Solomon Burtner, Keran was ignorant, as set forth in his bill, until he was taking steps to record his deed. Solomon’s title was prima facie good, having been recorded before the deed to Cornelius and Mary; and Keran had a right to buy that title by the record. It was not until the decree of Bdgar Circuit court against Keran, that Solomon’s title failed. Keran was not estopped by the deed to the children, from purchasing the alleged title of Solomon. If Solomon had gotten a title from Lzra Burtner, after the deed to the children, and had made it a superior title by reason of superior diligence in having his deed first recorded, Keran could not be liable upon his warranty to Ezra Burtner, because the title was perfect which Keran conveyed, and the defect has only occurred from the failure of the children to have their deed promptly recorded; and it was under these circumstances that Keran purchased the title of Solomon Burtner, which was at the time the superior legal title.
    3. The instruction in the 3d exceptions was properly refused, because there was no evidence upon which to predicate it, and it was not sound as a legal proposition.
    4. The instructions asked for by the plaintiff were properly given.
    
      
      Conveyances—General Warranty.—As to the operation of a general warranty, by way of estoppel, on after acquired property, see Raines v. Walker, 77 Va. 95; Baugh’s Ex’or v. Walker, 77 Va. 102; Gregory v. Peoples, 80 Va. 357, and Young v. Young, 89 Va. 678, 17 S. E. Rep. 470, all citing the principal case. And see Reynolds v. Cook, 83 Va. 817, 3 S. E. Rep. 710. And this .estoppel will operate though there is no general warranty if the deed of conveyance recites or affirms that the grantor is seized of a particular estate which the deed purports to convey and upon the faith of which the sale was made. Nye v. Lovitt, 92 Va. 710, 24 S. E. Rep. 345. But see, Reynolds v. Cook, 83 Va. 817, 3 S. E. Rep. 710. Though the grantor have an equitable estate at the time of the conveyance, if there be no general warranty and no recital in the deed that grantor has a legal estate, such deed only gives a lien on the equitable estate and does not operate by way of estoppel as to the after acquired legal estate. Doswell v. Buchanan’s Ex’ors, 3 Leigh. 365.
    
    
      
      Same—Same—As to Third Parties.—Recitals in deeds do not operate as estoppels in favor of strangers that have not acted on or been misled by them; and formal statements and admissions, not acted upon, are not conclusive. McCullough v. Dashiell et al., 78 Va. 640.
    
    
      
      Same—Fraud—By Statute.—At law the defence of fraud in the indictment can only be made by virtue of a statute allowing it and the statute should be followed. Va. Code 1887, § 3299. As to what constitutes fraud, see monographic note appended to Perry & Co. v. Shen. National Bank et als., 27 Gratt. 755.
    
   Staples, J.

The first question to be considered is, whether the court below erred in admitting as evidence the record of the proceedings and decree of the Circuit court of Edgar county, Illinois. It is insisted that this record was not competent evidence for any purpose; for the reason, that the defendants in that suit were not residents of the State of Illinois, were not served with process, or otherwise notified of the institution of the 'x'suit. It is true that none of the defendants lived in that State; but the land is located there, and that is sufficient to give the court jurisdiction. It is the settled doctrine of the common law, that the lex rei sitae governs exclusively, in respect to the rights of parties, the modes of transfer and alienation, and the nature and extent of the interest to be alienated. And, although property within a country does not make the owner generally a subject of the sovereign, it subjects him to the jurisdiction secundum quid et aliquo modo. And as immovable property is to be held “according to the laws of the country where it is located, controversies relating to such property can only be decided in the State where it belongs.” Story, Conflict of Laws. S. p. 552, 557, 592.

Row, it is clear that if Cornelius and Mary Burtner had been before the Illinois court by appearance or the service of process upon them personally, the record of the suit, so far as it tended to establish the eviction of the plaintiff, would have been competent evidence in the present action.

The land being in Illinois, the non-residence of Cornelius and Mary Burtner could not deprive the plaintiff of his right to institute his suit there, provided the statutes of Illinois conferred upon the courts authority, in proper cases, to proceed against absent defendants. That these statutes do authorize proceedings and decrees against non-residents, is unquestioned. The practice in such cases is substantially the same as that in Virginia.

The plaintiff has, therefore, done no more nor less than was his clear right to do. He brought his suit in the courts of the country where the land is situate, and he has perfected it according to the laws of that country. Decrees and judgments rendered in such suits are *treated, to a certain extent, as proceedings in rem; they bind the property which is the subject of the suit; though they create no personal charge against the defendants. Whether they are of a conclusive character, it is not material to enquire, as no such question arises in this case. Conceding that they are examinable when introduced collaterally in foreign courts, they are certainly prima facie evidence, so far as they affect the title or status of the property which is the subject of adjudication. Cochran v. Fitch, 1 Sandf. Ch. R. 142; Rootes’ ex’or v. Tompkins’ trustees, 3 Gratt. 98; Boswell’s lessee v. Otis, 9 How. U. S. R. 336; Green v. Van Buskerk, 7 Wall. U. S. R. 139; Cooper v. Reynolds, 10 Wall. U. S. R. 308. See especially Freeman Judgments, sec. 607, 611, 612.

There is no difficulty in applying these principles to a controversy between vendor and vendee. When the vendee sues upon the covenant of warranty, it devolves upon him to show an eviction, or what is equivalent to it, under a paramount title. This fact may be established by the production of the record of the recovery in ejectment or other real action, brought by the adverse claimant, in connection with evidence^of a change of possession. If the vendee has given the vendor proper notice of the pendency of the ejectment, and required him to defend it, in the action upon the covenant, the judgment in ejectment is evidence, not only of the recovery, but of the existence of a valid paramount title. The vendee is, however, not compelled to give the notice. When he omits it, the vendor is not regarded as a party or privy to the adverse proceeding ; and as against him, the record cannot be relied on to show a paramount title. It is, however, prima facie evidence of a recovery and of the eviction; the vendee being then required to establish, by independent evidence, that the recovery was by lawful *right and paramount title. Rawle on Covenants for Title, 225 to 232; 2 Barb. R. 171.

According to this view, the plaintiff might have given defendants notice of the Illinois suit; it would have been better that he should have given it, but it was not essential to the maintenance of this action, or to the admissibility of the record as evidence. Having failed to do so, the record is evidence of a recovery and eviction only, open to examination by defendants for fraud or collusion and want of jurisdiction in the court.

The rule is not varied by the fact that the plaintiff himself was the party suing in the courts of Illinois, and thereby seeking an adjudication of the validity of his title; for whether the vendee yields the possession to the rightful owner, or is evicted by him, or brings his suit ineffectually to recover the possession, the result is the same. In either case there is a breach of the covenant.

The authorities are not entirely agreed whether a mere recovery sufficiently establishes an eviction without some evidence of a disturbance or cessation of the possession. The decision of this point is not necessary in this case, inasmuch as evidence was adduced tending to show that the plaintiff was at no time in possession of the land which was the subject of controversy. It is to be observed that the plaintiff did not offer the record as conclusive of any question. There is nothing to show it was so treated by the court or by the jury. No complaint is made that defendants were not permitted to impeach it for want of jurisdiction in the court, or for fraud in obtaining it; or even that they were precluded from showing it was erroneous, or against equity and conscience. For aught that appears to the contrary, each and all these defences were open to the defendants. All that appears in connection with this record is, that the defendants objected to it as evidence, and the objection was overruled by the court. The ruling was clearly correct, unless there is more weight in defendant’s other objections.

One of these is, that the Circuit court of Edgar county, sitting in chancery, is not authorized to adjudicate questions of title to land; and the plaintiff’s remedy was by action of ejectment. The Circuit court of Edgar county is a court of general jurisdiction, exercising both common law and equity powers vested in the same judge. Thus constituted, the court had plenary jurisdiction of the subject-matter of the suit. Whether this jurisdiction belonged to the common law or equity side of the court, depends upon the course of practice and precedent in the State of Illinois. The jurisdiction of equity, as distinguished from common law, in a large majority of cases is not defined or fixed by any statute. It depends upon principles and precedents announced by equity judges and by learned commentators. The practice varies in different States and at different eras, according to an infinite variety of circumstances. It may be, that in Virginia equity has no jurisdiction to settle the title or bounds of land between adverse claimants. But even here there are well established modifications of this rule. I shall not stoji to enumerate them. They may be found in the reports and in the works on equity jurisprudence. When the decree of a sister State court is offered here as evidence, is the judge to look into the bill and proceedings to determine whether the case comes within the rule, or some qualification or exception to it; and if he is of opinion the jurisdiction appertained to the common law rather than the equity side of the foreign court, is he to declare the decree null and void? No case has gone that far. It is impossible to foresee the mischiefs and confusion that would arise *in the administration of justice, if this was the established doctrine of the courts.

If a court of general jurisdiction may, under some circumstances, on its equity side, settle a controversy concerning the title to land, it is the province of the court in which the controversy is pending, to determine for itself whether those circumstances exist which justify the adjudication ; and however erroneous the decision may be, it is of universal obligation, until reversed by the proper appellate tribunal. This, I think, is a well settled principle. It is fully sustained by the case of Cox et als. v. Thomas, 9 Gratt. 312; where the whole question is fully considered, and all the principal authorities reviewed by Judge Allen. In the course of his opinion, he declares: ‘ ‘If the jurisdiction of the court extended over that class of cases, it was the province of the court to determine for itself, whether the particular case was one within its jurisdiction. And the correctness of such judgment can be enquired into only by some appellate court." The same rule must be applied to the Circuit court of Edgar county, in the exercise of its chancery powers. It was the province of that court to determine whether the case before it was within its jurisdiction; and until reversed, its decree must be deemed valid to the same extent as if pronounced in a case of acknowledged equity jurisdiction.

The next objection is, that the decree was obtained by fraud—fraud apparent on the face of the record; and this was still more manifest when the evidence came to be heard on the trial of the cause. This question of fraud in procuring the decree is, for the first time raised in this court. At any rate, it does not distinctly appear it was brought to the attention of the court below as a specific ground of objection to the record as evidence. Are we to assume that it was? I think not. The defendants 'x'may have preferred to take their chances upon that question before the jury. Whether they did or not, we have no means of determining, as the evidence is not before us; the judge having declined to give a certificate, in consequence of the contradictory character of the testimony. It is to be inferred, however, from the statement of counsel, that the question was brought to the consideration of the jury: for he tells us, that the plaintiff’s fraud in obtaining the decree was made more manifest when the evidence came to be heard on the trial. If we are permitted to consider this statement of counsel, it would seem that the whole matter was the subject of investigation before the jury; and they, by their verdict, have gone very far in relieving the plaintiff of the charge. In the face of this finding—in the uncertainty as to what occurred at the trial—it would be a very strong exercise of an appellate jurisdiction for this court to say that the record so conclusively shows frattd on its face as to require its exclusion from the jury, and to render a new trial of the cause as necessary and proper.

I admit that the record does not exhibit the plaintiff in a very favorable light; but the whole subject was peculiarly proper for the jury. It was more just to submit it to them, and thus afford the plaintiff an opportunity of explaining all the facts and circumstances connected with the institution and conduct of the Illinois suit, rather than for the court to cut off all investigation by arbitrarily rejecting the evidence.

After the evidence was concluded the defendants asked the court to give the jury three instructions; which were objected to by the plaintiff; and the instructions refused. To this ruling the defendants excepted.

The first instruction affirms substantially, that the plaintiff having first conveyed the land with general *warranty to Ezra Burtner, and Ezra Burtner having conveyed it with general warranty to Cornelius and Mary Burtner, the subsequent conveyance of the same land by the defendants to the plaintiff did not vest any beneficial interest in the plaintiff; but said conveyance enured to the benefit of Cornelius and Mary Burtner exclusively: and so the deed in favor of the plaintiff failing to take effect, the covenants of warranty therein contained also failed to take effect. The proposition here asserted is, that where a deed is executed containing a covenant of warranty, and the vendor afterwards acquires an estate which is within the scope of the covenant, such after acquired estate enures to, and is actually transferred to the purchaser, by operation of the doctrine of estoppel. In other words, the warranty creates an estoppel which takes effect on the subsequent interest, and passes it to the vendee.

Now, this proposition may be correct when applied to fines, feoffments and other common law recoveries. In this class of cases, it seems that the warranty not only concluded the grantor or feoffer, but it possessed the high function of actually transferring the after acquired estate or interest. But deeds of bargain and sale and other conveyances, operating under the statute of uses, have never had any such effect. They only pass such estate as the grantor has at the time; the warranty merely serving as a remedy, or operating to estop the party from denying the ownership of the estate at the time of the conveyance executed. In such cases the principle of the estoppel is, that if a person conveys land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee; because the grantor is estopped to deny, against the terms of his warranty, that he had the title in question; but it does *not operate actually to transfer the estate subsequently acquired. I admit that this view is not in accordance with a number of American decisions, which give to the estoppel the effect of passing an interest; but it is sustained by the English cases, by many well considered decisions in the United States, and by the most approved text writers of the present day. See Judge Carr’s opinion in Doswell v. Buchanan’s ex’ors, 3 Leigh 365, 407; 1 Smith Lead. Cases, marg. 626; Bigelow on Estoppel, 337, 360-3; Rawle on Covenants for Title, chap. 11, pages 375 to 456 inclusive.

According to this view, and it seems to be a sound one, the interest conveyed by defendants to plaintiff 'enures to the benefit of Cornelius and Mary Burtner, under operation of plaintiff’s warranty in their favor; and that warranty estops plaintiff to claim the estate against them; but it does not pass such interest, or operate as a conveyance. As against the plaintiff, the defendants are not bound by any such estoppel; and they can derive no benefit from it. It is not for them to say their deed vested no beneficial interest or title in the plaintiff. They cannot avoid the effect of their warranty by claiming the benefit of an estoppel created by the law solely for the benefit of Cornelius and Mary Burtner and those claiming under them.

But if it be conceded that defendants’ deed enures to the benefit of Cornelius and Mary Burtner exclusively, it does not therefore necessarily follow, that the plaintiff cannot maintain an action thereon. It may be true that an assignee can only take advantage of the covenant of warranty when an estate passes by the deed. This, however, is only because at common law a covenant, like every other chose in action, was incapable of assignment. It could only pass as an incident to an estate; *and if the grantee had no estate, his assignment could not transfer the covenant of warranty. In such case there was nothing to which the covenants could attach.

A very brief consideration will show that these principles do not apply to the original contracting parties. Warranty, as known to the earlier common law, was exclusively a covenant real, running with the land. The remedy for its breach was not in damages, but primarily in the recovery of other lands. In this sense, however, it has since been discontinued; and warranty is now considered a personal covenant, sounding merely in damages. Under our statutes and decisions it is treated as a covenant to warrant and defend, while it has also all the effect of a covenant for quiet enjoyment. Tabb’s adm’r v. Binford, 4 Leigh 132; 2 Rob. Prac. 86. It creates personal rights, wholly independent of the estate, and which may survive long after it is extinguished, for the benefit of the covenantee. When the deed containing the covenant of warranty passes no estate, it is considered a covenant in gross, to be enforced, and only enforced, by the covenantee or his representatives. The contract being made with him directly and in person, he takes the benefit of it by virtue of his contract, and not as incident to the estate. 2 Lomax Dig. 260-8; 1 Smith’s Lead. Cases 158.

This rule of construing, the warranty as a covenant in gross for the protection of the covenantee, where no estate passes, attains substantial justice, and effectuates the intention of the parties. In Virginia the rule is absolutely necessary to prevent the gravest injustice and wrong. The covenant of warranty is almost universally the only covenant resorted to under our system of conveyancing. And in no other State has the government pursued to the same extent the policy of granting the same lands to successive grantees. As the first patent *confers both title and seizin, the second patent confers neither; and as a necessary consequence, the deed of the junior patentee in many instances passes no estate whatever. In all this class of cases, according to the theory of the learned counsel for defendants, as the deed does not operate to pass any estate the warranty fails to take effect. It is wholly valueless to the purchaser when most needed for his indemnity against a paramount title. As was said by Judge Moncure, in Dickinson v. Hoomes, 8 Gratt. 353, 399, “of what avail would be these covenants if an outstanding paramount title would render them ineffectual. They could only be broken by an eviction or ouster by title paramount; and yet the very existence of such an outstanding title would render the covenant ineffectual. So far from affording any protection to the assignee, they would afford none, even to the covenantee."

It follows from what has been said, the court did not err in refusing to give defendants’ first instruction.

The second instruction declares, that if the plaintiff, at the time of the execution of the deed by the defendants to them, had notice of the rights of Cornelius and Mary Burtner to the land in question, and it was his purpose, in taking the deed, to secure the land to himself, the defendants also being apprized of the title of Cornelius and Mary Burtner, the covenant was thereby so far tainted with fraud as to prevent a recovery in this action. This instruction was doubtless intended to assert the common law doctrine of ex turpi causa non oritur actio.

How far this doctrine applies to a case of this character, it is not material now to enquire, as the point involved may be disposed of upon other grounds, which do not admit of much controversy under the previous rulings of this court. In the case of Harris v. Harris’ *ex’ors, decided at the last Staunton term, 23 Gratt. 737, this court held that a bond executed by a debtor in fraud of his creditors, though void as to them, is nevertheless valid between the parties; and that the debtor will not be permitted to set up his own fraud in avoidance of the bond. The whole question is fully considered in that case, and all the authorities carefully examined by Judge Christian. The same principle applies to a grantor executing a deed in fraud of a previous purchaser from him. The deed from the defendants to the plaintiff, with all its covenants, is valid between the parties. Whatever fraud the plaintiff meditated they were privy to and participated in; and they cannot now rely upon their own turpitude to defeat the covenants contained in their deed.

The third instruction affirms that if the jury are satisfied that the plaintiff took the deed from the defendants with intent merely to remove a cloud upon the title of Cornelius and Mary Burtner, who were his grandchildren, and this object has been accomplished, there has been no breach of covenant. It does not appear there was any evidence whatever before the jury of the supposed intention of the plaintiffs in taking the deed. If the defendants desired to rely upon the point here, it was incumbent upon them to spread upon the record so much of the testimony as would show the relevancy of the instruction proposed. As they have failed to do so, this court cannot say there was any error in refusing it.

But the instruction is objectionable in itself. It proposes that the jury shall enter into an examination of the plaintiff’s private reasons for taking a deed, in order to vary and defeat the legal operation and effect of the most solemn covenants taken by him for his protection. This would be to substitute parol evidence, in its worst form, for the written contract of the parties. It would *be, indeed, to say that a plain covenant, express and unequivocal in its terms, is not a covenant. It is to be conclusively presumed that the plaintiff, in taking a deed with general warranty, intended the covenant for his own security against any and every paramount title; and no averment can be received to rebut this plain and very reasonable legal intendment.

The defendants also excepted to an instruction given at the instance of the plaintiff. This instruction is to the effect that the covenants in the defendants’ deed to plaintiff, are binding upon defendants, although the jury may believe the execution of said covenants was induced by the fraudulent misrepresentations of the plaintiff as to the effect of said covenants. The only question we are now to consider, is, whether this instruction was proper under the pleadings in the cause. It is very clear, according to the common law rule, that in a court of common law fraud may be given in evidence to vacate a deed, if the fraud relates to the execution of the instrument. But where the deed was procured by fraudulent misrepresentation, relief can be obtained only in a court of equity. Under the 5th section of chap. 172, Code of 1860, the defendant in any action is now permitted to allege and show any such fraud in the procurement of the contract as would entitle him to relief in a court of equity. In this case issue was joined upon the pleas of covenants performed, covenants not broken, and a general plea of non est factum. Reave was given the defendants to file a special plea of non est factum in writing; but it does not appear that any such plea was ever filed. And the question is, whether the defence contemplated by the statute, can be made under either of these pleas. It is very manifest from the whole scope and spirit of the statute, that a special plea should be filed, averring the fraud, or special circumstances, which entitle the defendant *to relief in equity. And it would seem that the facts should be set forth with sufficient precision and certainty to apprize the plaintiff of the character of the defence intended to be made, and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief. This is plainly to be inferred from the language of the 6th section, in which it is provided: “If any such plea be rejected by the court as bad, or adjudged insufficient on demurrer, or if when issue in fact is joined therein, such issue be found against the defendant, he shall be barred of all relief ill equity, upon the matters alleged in the plea.

These provisions plainly contemplate a plea stating the whole matter of defence with such particularity that if found against the defendant on demurrer, or by the jury, he shall be barred of all relief in equity upon the same ground. Whether the defendant is so barred, is to be determined, not by parol evidence of what occurred on the trial at law, but by a reference to the form and matter of the plea itself. The plea must, therefore, disclose the ground of the defence in all cases tinder this statute.

In this case no such plea having been filed, the jury was rightfully instructed that the defendants were bound by the covenant, notwithstanding it may have been executed under the influence of fraudulent misrepresentations on the part of the plaintiff.

The learned counsel insists, however, that the evidence establishing the fraudulent misrepresentations was admitted without objection; and it was the duty of the jury to base their finding upon the evidence before them. The question of fraud was not in issue. All testimony upon that point was, therefore, irrelevant; and it was competent for the plaintiff to object to its introduction, or to move to exclude it, or to ask the court to instruct *the jury to disregard it. The latter course was pursued; and it is not perceived that the defendants were in any manner prejudiced by this mode of raising the question. Kinchloe v. Tracewell, 11 Gratt. 600.

I have thus considered all the material points presented by this record; and am satisfied the judgment should be affirmed. This result is the more satisfactory because it is substantially just. The land which has been in controversy is in the possession of Cornelius and Mary Burtner, to whom it rightfully belongs; and the defendants have only been required to refund to the plaintiff a consideration to which they have no claim in law or equity, as the case is now exhibited by the record.

The other judges concurred in the opinion of Staples, J.

Judgment affirmed.  