(dissenting.) The rule adopted in Shelley’s case would give John Jackson an estate in fee simple by virtue of the deed from his father. This fee would have passed to the children of John by his deed to them. The children having thus acquired the fee, the partition made by them, and the conveyances in pursuance thereof, would have given a perfect title to the land in question to Richard Jackson, and the sale made by the sheriff in 1856, and the conveyance by the sheriff to the purchaser would have vested this title in the purchaser, and thus made the title of the defendant complete. But the rule established in that case and subsequently followed, was abolished by the Revised Statutes (vol. 1, 725, § 28). This section made the estate of John Jackson one for his life only, and provided that his heirs should take as purchasers by virtue of the remainder limited to them by the deed. It follows that nothing but this life estate passed to his children by virtue of the deed from John Jackson to them at the time of the sale by the sheriff, under which the defendant claims title. This was all the estate any of the children of John Jackson had ever had in the premises, unless they acquired some title thereto under the deed from Samuel Jackson to John Jackson. This deed conveyed the premises to the heirs of John Jackson from and after his decease. It thus appears that no one acquired any vested interest in this remainder, because no one could be heir of John Jackson during his life. (Campbell v. Rawden, 18 N. Y. 412, and cases cited.) It was uncertain which, if any of the children would survive their father, and therefore uncertain which, if any, of the children would acquire any estate in the land. The remainder limited by the deed from Samuel to John, was therefore a contingent remainder, and could vest in no one until the death of John, by which event his heirs would be ascertained, and the remainder vest. This leads to an inquiry as to what maybe sold upon execution against the judgment debtor. The Code (§ 289) provides that the execution shall *591command the sheriff, that in case sufficient personal property cannot he found to satisfy the judgment, then to satisfy it out of the real property belonging to the judgment debtor on the day when the judgment was docketed in the county, or at any time thereafter. The Code (§ 462) provides that the words “real property,” as used in the act, are co-extensive with lands, tenements and hereditaments. This shows that the Code has made no change in the pre-existing law, as to what interests in or claims to real estate may be sold upon execution. It follows that nothing can be sold upon execution as real estate, except a legal estate therein. The children of John Jackson had no such title to any estate in the lands in question during his life-time, except his life estate conveyed by him to them, and consequently no greater estate could be sold upon execution against them or any of them. The question whether the possibility of the children acquiring title upon the death of their father could be conveyed by them has been discussed by counsel. However this may be, it is clear that it could not be sold upon execution, as it was not a legal estate in the land. This view, if correct, shows that nothing passed under the sale and conveyance made by the sheriff in 1856, except the life estate of John Jackson, unless the rights of the parties to this controversy have been changed by the conveyances made by the children of John to each other, pursuant to the partition made by them of the lands in question, together with other lands held by them under the same title in 1849. At this time all the children of John Jackson, except Bichard, conveyed to him the lands in question by deed containing a covenant for quiet enjoyment as against the grantors, their heirs and assigns. By the subsequent death of John Jackson in 1861, leaving Bichard Jackson and nine of his grantors him surviving, and an infant child of one of the grantors also surviving (the parent having in the meantime died) his heirs, the remainder created by the deed from Samuel to John vested in them as tenants in common, one-eleventh in each. Thus the title of nine-elevenths of the land in question became vested in the grantors of Bichard Jackson, who had conveyed the land in *592question to him with a covenant for quiet enjoyment as against themselves, their heirs and assigns.
it is clear that neither of these grantors, nor any person claiming under them, by title derived subsequent to their conveyance to Bichard, could assert, as against him or those claiming under him, any title to the land in question. • They would be precluded from so doing by the covenant of warranty in the deed to Bichard. The title they acquired upon the death of John Jackson by the operation of this covenant inured to and vested in Bichard Jackson and his grantees. This is the result of the application of the unquestioned rule, that a title subsequently acquired by one who has granted the land with covenant of warranty inures to the benefit of his grantee. Whether this principle is based upon an estoppel imposed upon the grantor by reason of his covenant, or a rule adopted to avoid circuity of action, has been discussed by counsel, but both concede the rule. I am unable to perceive any difference in the present case, whichever may be the true reason. This covenant of the children of John Jackson in the conveyance to Bichard, run with the land, and had not been broken in 1856, at the time of the sale and conveyance by the sheriff, under which the defendant claims. It then constituted a part of Bichard Jackson’s title to the land, and passed to the purchaser at a sale by the sheriff, upon an execution issued upon a judgment against him. (Sweet v. Green, 1 Paige, 473; Kellogg v. Wood, 4 id. 578.) This covenant, therefore, inures to the benefit of the defendant, and makes her title perfect to nine-elevenths of the land in question. As to the one-eleventh which vested in the infant child of the grantor that died, this reasoning will not apply. That child took the eleventh under the deed from Samuel to John Jackson, and not as heir1 of his mother,— consequently her warranty is not binding upon him. There is nothing to prevent his asserting his title to one-eleventh of the land in question; at any rate, the defendant has not acquired his interest. The further question must be determiu ed, whether the plaintiff has acquired it. It appears from the ■case that after the death of John Jackson, a partition was *593made by action between his heirs, to which this infant child was a party, by which the land in question was adjudged to Bichard Jackson. This judgment would, while in force, effect a transfer of the interest of this child in such lands to Bichard, and it, together with the eleventh, acquired by him upon the death of John Jackson, became vested in the plaintiff by virtue of the sheriff’s sale to him made after the happening of these events. It is claimed by the plaintiff’s counsel that the entire partition made by the children during the life of John Jackson, and the conveyances made to effectuate it, became void by reason of the death of one of the children during his life, and the acquisition of one-eleventh by the infant, who was not bound by such partition and the conveyances. It is true that the infant was not bound, but this did not at all impair the validity of the partition or the conveyances as to the others. They were bound, and none of them could claim any interest in any parcel previously conveyed with warranty. The right of each, acquired at the death of John, at once vested in the grantees. It follows, that the plaintiff is entitled to judgment for two-elevenths, and the defendant for nine-elevenths, of the land in question.
The judgment of the Supreme Court should be modified accordingly.
All the other judges concurring in the views of Wood-ruff, J.,
Judgment ordered accordingly.