As I am unable to concur in the conclusions expressed by the majority of the Court, I will state briefly the reasons for my dissent. Under my view of the case it is not necessary to determine whether the interests which the Langs took under the will of their grandfather, Duncan McRae, were vested or contingent.
On the 15th of January, 1849, E.M. Boykin (husband of the plaintiff), Charlotte A. Boykin, K.L. Boykin and John A. Boykin, executed a conveyance in the usual form with a general covenant of warranty to Thomas Lang of the land in which dower is claimed. His Honor, the Circuit Judge, found as a fact (to which finding there was no exception) that "E.M. Boykin went into possession of the land out of which dower is demanded under the conveyance of August 1st, 1846, and cultivated the land, remaining in possession until the conveyance to Thomas Lang in January, 1849." The Circuit Judge also found as a fact (to which finding there was no exception) that "under the title derived by him from the Boykins, Thomas Lang went into possession of the land in 1849, and he and those holding under him, including Springs and Shannon, the defendants in this proceeding in dower, have held the land ever since."
In the case of Lessly v. Bowie, 27 S.C. at page 197, the Court uses this language: "In a sale of lands there is certainly no implied warranty as there may be in reference to personalty. There is no such thing as a failure of consideration arising out of a contract implied or, as it is sometimes expressed, the equitable condition of sale. A purchaser must protect himself, if at all, by covenants in writing, out of which all his rights of defense must come, except, perhaps, in the case of fraud. Mitchell v. Pinckney, 13 S.C. 204. This defendant did protect himself by a deed of general warranty, which since our act of 1795 has been interpreted to embrace all the covenants used in conveyances of land prior to that time, viz: that the vender is seized in fee; that he has a right to convey; that the vendee shall quietly enjoy, and that free from all encumbrances, and also *Page 373 it seems for further assurances, see Jeter v. Glenn, 9 Rich., 374." The Court also says that an outstanding claim of dower is in the nature of an encumbrance, and is covered and guarded against by the covenant "against encumbrances," embraced in the general warranty. The Court also decides that an outstanding paramount title is a breach of another covenant embraced in the warranty, to wit: that the vendor was seized in fee, and that it cannot be made the basis of relief as long as the purchaser remains in the quiet enjoyment of the land.
In 5 Am. Eng. Ency. Law, 1st ed., 435, the rule is thus stated: "If a deed with covenant of warranty is given conveying only a possibility, when the possibility becomes a vested estate, the grantor will be estopped from denying the title of his grantee to the land." In Reeder v. Craig, 3 McC., 411, the Court says: "If a man sell land to which he has no title and afterwards acquire a title, he is estopped by his first deed to say he had no title at the time he sold." InRobertson v. Sharpton, 17 S.C. 592, the proposition stated in Reeder v. Craig, supra, is reaffirmed ipsissimis verbis. InHarvey v. Harvey, 26 S.C. 609, the Court says: "Where parties hold title under another, they cannot deny that such person once had a title, but they can dispute any present title in him." See, also, Rhett v. Jenkins, 25 S.C. 458. InIrvine v. Irvine, 9 Wallace, 617, the Court uses this language: "When one makes a deed of land covenanting that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition enures to the grantee on the principle of estoppel." In Jenkins v.Collard, 145 U.S. 560, it is decided, where a grantor having no present estate in the premises made his deed containing the covenants of seizin and general warranty, the same legal effect must be given to such covenants upon future acquired interests as if at the time of warranty the warrantor had had such interests. That warranty estopped the grantor and all persons claiming under him from asserting title to the premises against the grantee or his heirs or assigns, and from *Page 374 conveying it to other parties. In Washabaugh v. Entriken, 34 Pa. St., 74, the Court said: "If a person without title sell a tract of land and subsequently acquire title to an undivided portion of it by devise from the real owner, such title will enure to the benefit of his grantee." To the same effect seeClark v. Baker, 14 Cal., 628, et seq.
These authorities show that Thomas Lang and those claiming under him are estopped, even as against E.M. Boykin, from interposing the objection that he was not seized in fee, as they have never been disturbed in their possession. For a stronger reason they are estopped as against the plaintiff, as a dower is a favored claim in law. Even conceding that E.M. Boykin was not seized in fee at the time the land was conveyed to Thomas Lang in 1849, nevertheless the fee thereafter was conveyed to him under judicial proceedings at the instance of E.M. Boykin and the other parties in interest. As he entered into possession under the deed of conveyance executed in 1849 by E.M. Boykin and others, and as his grantees have not been disturbed in their possession, they are not in a position to deny that E.M. Boykin was seized in fee, and, therefore, cannot dispute the claim of dower on that ground.
I, therefore, think the judgment of the Circuit Court should be affirmed.