delivered the opinion of the Court, at the ensuing term in Cumberland.
In order to determine whether the defendant is estopped to claim the land in question by reason of the former conveyance, it becomes important to ascertain what covenants he entered into by that deed. The covenants, whatever they are, must be deemed his own; as he had no authority thus to bind the estate of his testator.
By the use of the word “ give,” in the deed of the executors, it is insisted a cbvenant of warranty arises by implication of law, during the Jives of the grantors. The legal effect of the term dedi is derived from feudal times. So long as a tenure was created, by the use of .this term, and .the feoffee and his heirs held of the feoffor and his heirs, by certain services, the law held the latter to warrant and defend the land, which was the consideration for these services. But after subinfeudations were abolished by the statute of quia emptores, and the feoffee, instead of holding of the feoffor, held of the chief lord of the fee; by the word “give,” (dedi,) the feoffor only was bound to warranty, and not his heirs. But ibis covenant, thus raised by implication of law in a feoffment, does not arise from the use of the same term, in instruments which derive their efficacy from the statute of uses. 2. Bl. Com. 301. Of this description are conveyances in this State. , That in most general use, is a deed of bargain and sale. It is true that, to effectuate the intentions of the parties., courts may and do construe a deed in this form to be a feoffment, a covenant to stand seised, or any ottier instrument known to the law, for the conveyance of real estate. The deed in question, is a deed of bargain and sale. It was a mode apt, appropriate and effectual, for the purpose intended. No other end is to be answered by regarding it as a feoffment; except that of. raising by implication of law a covenant of warranty against the executors; a covenant, which they were under no obligation to make ; and which they cannot be presumed to have intended. And after all it would be questionable, whether they would be bound by any other than express covenants.
The only covenant expressed is, that they had good right and lawful authority, under and by the will, and as.executors thereto, to sell *231and convoy the premises. It is certainly far from being clear that-any tiling more was intended than that they were duly qualified as executors ; and that they derived from the will sufficient authority to sell the real estate of their testator. Beyond that, neither the duty of their office, nor common prudence required them to go. Whether any, aud what estate, whether defeasible or indefeasible, the deceased had in the premises, the purchaser liad the means of being satisfied from other sources. Aud to inquiries of this sort, he would be impelled by the common principle of caveat emptor, which has its chief application in the purchase of real estate. In the case of Sumner v. Williams, the majority of the court, who decided in favor of charging the administrators upon the covenant of warranty, did so upon tile ground that a covenant of this sort was clearly and fully expressed by the terms of the deed ; although there was much reason to doubt whether they intended to bind themselves personally. But as they alone could be hound, there was no other alternative but to hold them, or reject the covenant as altogether inoperative. Taking this covenant however in its utmost latitude, it may be construed to mean that the testator died seised, and that there was then no adverse seisin. This may have been true, and is not necessarily inconsistent with an after acquired title on the part of the defendant. Where a party has given a. deed with a warranty of land, of which he had not a sufficient title, ii’lie afterwards acquire a good title, it enures to his grantee by way of estoppel; mid this to avoid circuity of ¡action. But a covenant of seisin, or what is equivalent, that the party has good right to convey, does not thus operate upon an after acquired title. The party may have been seised, aud may have conveyed his seisin to his grantee, by which these covenants are supported and verified; the seisin of the grantee may afterwards be de-vested upon elder and better title, and this may he subsequently lawfully purchased by the grantor, for his own use and benefit, and it will not enure to the grantee, who in such case can have no claim whatever for breach of covenant. The opinion of the court therefore is, that the deed given by the defendant and his co-executor, does not estop him from adducing in evidence and maintaining a paramount title, by him subsequently acquired.
*232It has been insisted that to permit him to do so, would be to enable him to commit a fraud upon the plaintiff. If this title had vested in him before the date of his deed as executor, either that transaction, or his attempt afterwards to defeat the conveyance, by a prior title, of his own, would have been a fraud upon the plaintiff; in which case, if he could sustain his own title, vyhich he-would certainly not be suffered to do in chancery, and possibly not at law, he would at least be holden to refund to the ‘plaintiff the purchase money, thus fraudulently obtained. But he was at liberty afterwards to acquire a title of a party having lawful authority to convey ; and the enforcement of rights accruing .subsequently, would be no fraud upon -the plaintiff. But it is urged that his grantor, not being seised, had no right to convey. That is a question not presented in the report, of the judge. If the deed, under which the defendant claims, is liable to this objection, it may avail the plaintiff hereafter.
JVew trial granted.