(dissenting.) The counsel for the respondent now insists, that the defendant, deriving title from Parmenus Jackson subsequent to the mortgage given by him, under which the plaintiff makes title, is estopped from showing that title in, fee was not acquired by the foreclosure of that mortgage, and that, therefore, the plaintiff was entitled to recover the entire premises in fee as against him, irrespective of the validity of Ms title in other respects. It is true, that the defendant took the title from Jackson subject to all estoppels binding him at the time he parted with it.. The mortgage contains no covenants warranting the title. The statute (1 R. S., 739, § 141) provides that no covenant shall be implied in any conveyance of real estate, whether such conveyance contained special covenants or not. It thus appears that, there is no record evidence raising an estoppel against Jackson. Whether estopped or not, must depend upon his acts and representations as to the title at the time he gave the mortgage, and of the reliance placed thereon by the mortgagee. Ho inquiry as to these facts was gone into upon the tidal, and no claim of any estoppel upon the appellant was then made by the counsel for the respondent. That claim cannot now be successfully made in this court, unless it appears that no evidence which could have been given npon the trial would have furnished an answer thereto. The counsel for the appellant insists that the respondent’s title can derive no support , from the deed *88given "by Stephen C. Jackson, and other children of John Jackson, to Parmenus Jackson and Edward Jackson, who gave the mortgage under which the plaintiff deduces title, for the reason that the mortgage bears date prior to the date of the deed; and that although the mortgage was acknowledged subsequently thereto, still the presumption is that it was delivered and took effect at its date. It is unnecessary to determine the question sought to be thus raised for the reason that it was not in any way raised upon the trial. The deed was received in evidence as tending to show title in the plaintiff, without any objection, and the counsel for the defendant did not ask the court for any ruling as to the time of delivery. It is settled that no objection not raised upon the trial, can be made in this eomt, unless it clearly appears that no evidence which could have been given would have obviated it, if made. Had this objection been made upon the trial, for aught the court can see, the plaintiff might have proved that the mortgage was not delivered until after the delivery of the deed. It must, therefore, be assumed, in this court, that such was the fact; that the plaintiff is entitled to the full benefit of that deed in establishing his title. This brings us to an examination of the title of Parmenus and Edward Jackson, at the time of giving the mortgage to Beard, which is the basis of the plaintiff’s title. Samuel Jackson was the owner in fee in 1852. In that year he conveyed the premises, with other lands, to John Jackson, for and during his natural life, and after his decease, to his hens and their assigns, forever. This, at common law, would have given to John Jackson the entire fee. (1 Coke’s Rep., 93.) The rule settled in the above, and confirmed by numerous other cases, was abolished in this State by statute. (1 R. S., 725, § 28.) That section provides, that when 'a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate in the same premises shall be given, by the same conveyance, the person who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take, as pur*89chasers, by virtue of the remainder, so limited to them. Under this statute, it is clear that John Jackson took a life estate only. John Jackson conveyed the premises, and other lands embraced in the deed of Samuel to his children, eleven in number, prior to the execution of the mortgage. Under this conveyance from John, it is clear that the children acquired an estate for his life only. Having thus acquired the life estate of John Jackson, his children made partition of all the lands between themselves; and for this purpose, all the children of John, except Parmenus and Edward, the mortgagors, conveyed the premises in question in fee to the latter, by deed, containing a covenant for quiet enjoyment by the grantees, their heirs, &c. John Jackson was living at the time of the execution of the partition deed, and also at the time of the execution of the mortgage, but has since died. The question thus arises, as to what interest, if any, the children of John Jackson took, under the deed from Samuel to John, during the life of the latter. The counsel for the respondent insists, that by virtue of that deed,they acquired a vested remainder, giving them a fee upon the termination of the life estate of John, and, having acquired this life estate by the deed from John to them, were after that owners in fee. The counsel for the appellants insists, that inasmuch as it was entirely uncertain, during the life of John, who would be his heirs at the time of his death, that the remainder, limited to such heirs by the deed of Samuel, was contingent during the life of John, and did not vest as an estate in any one, for the reason that there was no known ascertained person of whom it could be predicated that he would be an heir of John Jackson at his decease. The counsel for the respondent insists, that inasmuch as the entire estate of Samuel would, by virtue of the deed, have passed from him and vested in John prior to the abolition of the rule in Shelly’s case by statute, the same effect, so far as respects his estate, should now be given to the deed, and that therefore it must be held that his entire estate passed from him, and that the statute precluding John Jackson from taking any but a life' estate, it follows that the remainder *90must vest immediately in others, and that the deed providing that this remainder should go to the heirs of John, it immediately vested in his apparent heirs.
The error in this reasoning (if any) is in assuming that the entire estate at once passed from Samuel, by virtue of his deed. True, it would have done so prior to the abolition of the rule in Shelly’s case, for then the entire estate would have vested in John, and of course nothing would have remained in Samuel; but when the statute changed the rule by providing that John should take a life estate only, the remainder of the estate remained in Samuel, unless granted by the deed to known, ascertained persons capable of taking it. The statute did not change the rule, that to make a grant effectual in passing an estate, there must be a known grantee specified in the deed, in the absence of which nothing passed, and the estate remained as before. In the present case, the remainder passed from Samuel, in case it is held that it vested in such persons as would have been the heirs of John had he died presently; and if not so held, the remainder continued in Samuel and his heirs, until, by the death of John, his heirs were ascertained. The counsel for the respondent also insists, that John Jackson, having twelve children at the time he received the deed from Samuel, who were the apparent heirs of the former, and who, by form of the statute, abolishing the rule in Shelly’s case, would, in case of the death of their father, take the estate as purchasers, must be assumed to be the persons designated by the word heirs; and that, therefore, the remainder at once vested in them. This position is sustained in part by § 13 of the statute (1 R. S., 123), and in part by the common law. So far as it rests upon the statute, it will be hereafter considered. The counsel cites a number of cases, principally arising upon wills, in which, looking at the entire contents of the will, it has been held that the testator designed, by the term heirs, to designate the class of persons who would be such, in cose the person whose heirs were designated was dead; and in those cases, the courts have held that such persons were des*91ignated and ascertained "by the term heirs, and being so ascertained, the estate at once vested in such persons irrespective of whether they ever became heirs in the ordinary sense of the term. Doe v. Perrin (3 Term., 484); Turner v. Livingstone (12 Wend., 83), are cases of this class. Humerous cases of the same class will be found cited and reviewed in Sisson v. Seabury (1 Sumner, 235). It will be readily seen that these cases have no application to the present. In the present case, there is nothing showing that the word heirs was used in the deed from Samuel Jackson in any other than the ordinary sense, or that there was any design that any persons should enjoy the remainder, except such as answered the description of heirs to John at the time of his death. Having arrived at the conclusion, that, the persons who were heirs of John Jackson, at the time of his death, were the only persons entitled to the remainder, it remains to consider whether these persons, either at the common law or by statute, had any interest in the estate during the life of John, which they could alien; and if no such interest, whether the possibility of their acquiring the estate could be transferred by them. The legal and well understood meaning of the word heir, is, the one upon whom the law casts an estate of inheritance, upon the death of the owner. It follows, from the very nature of the thing, that this person is uncertain, until death occurs ; for, .until that event, it can never be known to whom the estate will fall. Hence the maxim, nemo est haeres viventis. (Brown’s Max., p. 503.) Fearne, in his work on remainders, divides contingent remainders into four classes, and, in the fourth, includes the cases where the person to whom the remainder is limited, is not yet ascertained, or not yet in being. (Fearne on Rem., 5, p. 9.) By way of illustration he puts the case of a lease for life to one, remainder to the right heir of J. G., and adds: “How, there can be no such person as the right heir of J. G., until his death, for nemo est haeres viventis.” Although Fearne’s classification of contingent remainders has been somewhat criticized, yet no dissent'has been expressed from his conclusion in the above case. The *92same doctrine is laid down by Kent. (4 Com. 206, 208.) In Morris v. Stephens (46 Penn., 200), it was held that a deed, purporting to convey an estate to the heirs of a living person, was invalid for want of specifying a grantee. The same doctrine was held in Hall v. Leonard (1 Pick., 27), and in some subsequent cases. In Beinley v. Carter (17 Weekly Reporter), it was held by the lords justices of Appeals in Chancery, that the children of a person to whose heirs a remainder was limited, after the death of such person, had no interest in the estate during the life of such person. In Campbell v. Rawdon (18 N. Y., 412), this court assumed that such was the rule. Without any further examination of authorities, I think it may be safely assumed, that during the life of John Jackson, his children, by the common law, had no interest in the estate, by virtue of the deed of Samuel. It must still be considered, whether the statute gave them any such interest under that deed. It is claimed by the counsel for the respondent, that the remainder vested in the children, by § 13, 1 R. S., 723. That section provides, that future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the termination of the precedent estate. They are contingent whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. Section 9 defines a future estate as one commencing at a future day. It is argued, that inasmuch as the children of John Jackson were in being, and, in case of his death, would have been his heirs, to whom the remainder was limited in the deed of Samuel Jackson, and would have an immediate right to the possession of the land upon the termination of the life estate of their father, by his death, they answer precisely the description of persons in whom, by § 13, the remainder is declared to vest. But this, when read in connection with what in the last clause is declared to be a contingent remainder, does not vary from a vested remainder at common law. The latter clause declares that remainders are contingent, whilst the person to whom, *93or the event upon which they are limited to take effect, remains uncertain. Now, we have already seen that a limitation to the heirs of a living person is uncertain, as to the person in whose favor the limitation is made, until the death of such person, for the reason, that until that event,it is uncertain who will be his heir. Thus it will be seen that the remainder in question is declared' by the latter clause a contingent remainder during the life of John Jackson, for the reason, that until the happening of that event, the persons to whom it was limited are unknown. But it cannot be both. It must be either vested or contingent. All confusion is removed by referring to the common law. That required an ascertained known person in being who would have an immediate right of possession upon the termination of the precedent estate, to make the remainder vest in him. The latter clause of the section shows clearly that in this respect there was no intention to change the law. It is manifest that the remainder was no more vested in the children of John Jackson than it would have been in others who were presumptive heirs in case he had no children. Any presumptive heir would be equally entitled to possession at his death. The vesting of the remainder does not depend upon nearness in blood to him. My conclusion is, that the remainder did not vest in the children of John Jackson by § 13, but is by that section continued contingent as at common law. But it is claimed that this remainder was an expectant estate in the children during the life of John Jackson. If this be so, it goes far to show that the remainder had in some sense vested, for it is difficult to conceive of an estate in a person without his having some vested interest. The term estate, when applied to a person in respect to lands, implies that he has some vested interest therein. The first section of the statute, page 722, declares that estates in lands are divided into estates of inheritance for life, and for years, &c. Blackstone Com., 2d vol., 103, says: An estate in lands, &c., signifies such interest as the tenant has therein, so that if a man grants all his estate in Dale to A, and his heirs every *94thing that he can possibly grant, shall pass thereby. He further adds: That in Latin it is called status, it signifying the condition or circumstances in which the owner stands to his property. It is, I think, clear, that if the children of John Jackson had no vested remainder by virtue of the deed of Samuel Jackson, during the life of John, they had no estate in the land under it during that time. The 7th section of the statute enacts, that estates, as respects the time of their enjoyment, are divided into estates in' possession, and estates in expectancy. Section 8 declares that an estate in possession, is where the owner has an immediate right to the possession of the land. That an estate in expectancy is where the right to the possession is postponed to a future period. The right, last spoken of, is a present right or estate in the land, as much as the first, but which does not entitle its owner to possession until some future period. This present right and estate in the land, giving the right of possession, at some future period, is the expectant estate, defined by statute; and the estates that are made descendible, devisable and alienable by § 35, in the same manner as estates in possession. I say, made so by § 35, although such estates possessed the same qualities, for the most part, at common law,and this section, ismainly declaratory; yet doubts, in some respects, had been entertained, as will be seen in Miller v. Emans (19 N. Y., 384), to remove which, the section in question was enacted. This section does not make the possi-1 bility of acquiring an estate in future alienable, any moré thanf such possibilities were at common law. The children of John I Jackson had no estate in the land, under the deed of Samuel Jackson, during the life of John, expectant or otherwise, but only the possibility of acquiring such estate, in case they were his heirs at the time óf his 'death. It follows, that §35 has S no bearing upon the present case. Thus far, the plaintiff failed to show any title derived under the mortgage given by Parmenus and Edward Jackson to Beard.' I have examined the cases cited by the counsel for the respondent, for the purpose of showing that the children had an estate in expectancy *95within § 352; and think they fail to establish that proposition. The effect of the deed given by the eight other surviving children to Parmcnus and Edward, remains to be considered. As remarked above, this deed was given upon a partition of the premises, made by the children after they had acquired the life estate by conveyance from John Jackson, and contains a covenant for quiet enjoyment by the grantees and their heirs. This deed was given during the lifetime of John Jackson, and, consequently, at a time when the only estate of the children in the land, was for the life of their father. The question is, whether, by virtue of this covenant, the interest in the fee, subsequently acquired by the grantors, as heirs of John, upon his death, under the deed from Samuel Jackson, inured to the benefit of the grantees, by estoppel or otherwise, and, consequently, to the mortgagee of the grantees. If it did, the plaintiff was entitled to nearly eight-twelfths of the premises. If not, nothing therein. ¡No question is made but that if it inured h i the grantees, it did to their mortgagee. The general rule is conceded that a title, subsequently acquired by one who has conveyed, with covenants of warranty, inures to the keneft of his grantee; as to which, see Vanderheyden v. Crandall (2 Denio, 9) ; same case (1 Comstock, 491) ; Jackson v. Murray (12 Johns., 201); Same v. Stevens (13 id., 316). As this rule is not disputed, a further citation of authorities would be superfluous. But it is insisted that the rule does not apply to this case, for the reason that the deed was given upon a partition of the estate. I know of no exception to the rule founded upon the purpose for which the deed was given, nor has the counsel cited any authority for making any; 2d, for the reason that there was no consideration for the covenant. Let us first inquire whether this is sustained by the facts before inquiring whether" it is valid in law. The consideration for the covenant was a deed with like covenant-given by the grantees to the grantors, of other lands, in all respects situated as to title like those in the present case, and to which the like estoppel applies in favor of the other parties. The consideration, was, therefore, ample, and there is no *96failure in respect to any of the surviving children of John Jackson, the estoppels operating in favor as well as against each. The counsel for the appellant insists that estoppels are confined in their operation to the very title and interest which the deed purports to convey, and cites numerous authorities in support of this position. The counsel.is right in point, of law. The warranty implied in the conveyance prior to the statute abolishing implied warranties in the absence of covenants, and the covenants of warranty when contained in the deed were always restricted in their operation to the quantum of interest which the deed purported to convey. But this does not aid the counsel in the present case, for the deed in question, so far from purporting to convey the life estate then owned by the parties, purports to convey the entire title absolutely; and by the principle of the above rule the covenant must be held to apply to the entire title. The counsel insists, that if the surviving children are held estopped by the covenant, as to each other, the like estoppel will apply as against them in favor of the son of Fanny Baldwin, who, as one of the children of John Jackson, united in the partition, and gave and received deeds with like covenants, conveying to her a portion of the lands partitioned in severally; and that if this be so, Fanny Baldwin having died in the lifetime of her father, John Jackson, and, consequently, never having been heir to him, acquired no portion of the remainder, and that her son taking his proportion of the remainder, as heir to John Jackson, and'the portion conveyed to his mother, as her heir, will have a double portion. The answer to this is, that the consideration of the covenant for quiet enjoyment in the deed from the other children to Fanny Baldwin, has failed. That consideration was the like covenant from her to the other children, for the quiet enjoyment of their respective portions. This is broken by her death, without ever having acquired title, and the successful assertions of title by her son, to the portion which she conveyed. The consideration for the covenants to her failing, they become null as estoppels, the same as for other purposes. *97The counsel also insists that covenants of warranty never operate as estoppels where any title or interest passes by the deed. I have examined the authorities cited in support of this position; Although some of the elementary works lay down this doctrine in unqualified terms, a close examination shows that it has its origin in the rule confining the operation of the covenant to the interest purported to be conveyed by the deed. (2 Washburn on Real Prop., 466, 467.) No well considered case has ever otherwise applied it. The reason assigned for applying the estoppel to cases only where nothing passes by the deed is unsound; that reason is, that the estoppel is applied to prevent the deeds being a nullity, and that where any interest passes, its application is unnecessary for this purpose. An examination will show that estoppels by deed are based upon other and sounder reasons. To hold where an estate for one year was owned by a grantor and passed by his deed purporting to convey the fee to his grantee, with covenants' of warranty; that the subsequent acquisition of the fee by such grantor would not inure to the benefit of the grantee, although such acquisition would so inure in case the grantor had no estate in the land, and nothing passed by the deed would be absurd. Such a distinction has no foundation in principle, and is not sustained by such authority as to require this court to uphold it. My conclusion is, that the title acquired by the grantors in the deed to Parmenus and Edward Jackson, upon the death of John Jackson, inured to the grantees by virtue of the covenant for quiet enjoyment. Such title, of course, inures to the benefit of their mortgagees. The plaintiff, therefore, showed title to eight-elevenths of the premises claimed. The judgment appealed from should be reversed, unless the plaintiff stipulates to take judgment for eight-elevenths of the premises, and of that proportion of the mesne profits, and in case he shall so stipulate, the judgment should be modified in accordance therewith, and affirmed as modified.
*98James also read an opinion for affirming the judgment on the ground that the children of John Jackson took a vested remainder under the statutes and which was alienable.
Lott, Mason and Murray concurred with Woodruff and James in holding the interest of the children a vested remainder. (Hunt, Ch. J., Daniels and Grover, JJ., dissented.)
Hunt, Ch. J., James, Lott, Marvin, Murray and Woodruff, JJ., concurred in holding that the children had an alienable interest in the lands which passed by virtue of the deeds in partition and the mortgages in question. (Grover dissented.)
Judgment affirmed.