dissenting.
I do not concur in the opinion that the conveyance of the equitable title to Duncan enures to the benefit of Langham. The statute on the subject applies only to legal estates, and there is no foundation in the common law for the idea that a deed of conveyance will pass a subsequently acquired title. The distinction between legal and equitable estates is as broad as that between light and darkness, and we cannot suppose that any legislator, in a country where the common law prevails, would be unapprized of it. Statutes which cover the ground previously occupied by the common law, must be construed in reference to it. The doctrine of the common law was, that no right passed by a conveyance but that which the party had at. the time of its execution. JVemo dat quod non habet. But if there was a warranty in the conveyance, then the conveyance operated. For, albeit, the conveyance cannot bar the right for the cause aforesaid, yet the warranty may rebut and bar the grantor of a future right which was not in him at that time, and this is for avoiding a circuity of action. 2 Coke, 265-6; 4 Maul. & Sel., 480; 9 Cowen, 13; 4 Wend., 300. This doctrine is strictly applicable to legal conveyances. This being the state of the common law, a statute enacts, if a person shall convey any real estate by a conveyance purporting to convey the same in fee simple absolute, and shall not at the *435time of such conveyance have the legal estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal estate had been in the grantor at the time oí the conveyance.— Now if an equitable estate in land had been a thing unknown to the Legislature at the time of the enactment of this law, and had subsequently sprung into existence, there might be some propriety in saying it was in the contemplation of the General Assembly. But equitable estates were well known; the difference between them and legal estates was before the Legislature, as may be seen by reference to the statute concerning ejectment, enacted at the same session that the statute concerning conveyances was enacted. Under these circumstances, how can this Court be warranted in interpolating the word equitable into the statute ? Such a power, under the circumstances is clearly legislative.
When a deed of conveyance is made by a party having no title, if the grantee will put it upon the record, it will protect him from all subsequent alienations made by the grantor.