(dissenting).
I respectfully dissent. Goodrich et al., on December 2, 1962, filed this suit in the District Court of Sabine County, Texas, against Mary Burns et al., alleging that they were the owners of 83% acres of land, a part of a tract of 200 acres out of the S. H. Morris survey; that the defendants Mary Gein Burns and husband, Joe Burns, and Ivy Lord and wife, Eliza Lord, entered upon the land unlawfully and without permission from the plaintiffs, the owners; that they made use of the residence thereon with “full knowledge that they are without any right or title to any portion of said premises.”
Since the Court has failed to take cognizance of the complete record in this case, it becomes necessary to make an analysis of the chain of title to demonstrate that the daughter has failed to establish an interest in the 831/3 acres involved in this suit. The record show that Ivy Lord and Mary Gein Burns and husband are trespassers. Not only that, the record reveals that the Speights’ judgment hereinafter mentioned was the result of a plan on the part of Ivy Lord to clear the Martha Lord 100 acres of the lien which was valid on May 1, 1938, the date of the death of Martha Lord. The record shows that D. B. Speights purchased the judgment lien against the Martha Lord 100 acres at the request of Ivy Lord. At the suggestion of Ivy Lord, Speights included all interested parties as defendants in a foreclosure suit. Mary Gein Lord, now Burns, was made a party defendant. Mary Gein recovered an interest in the land. How can Mary Gein and Ivy under the after-acquired title rule regain a title which they cleared of all liens and later by mesne conveyances passed to Goodrich et al. ? Ivy Lord admitted that the title, so far as liens against the Martha Lord 100 acres was concerned, was cleared. Ivy Lord admitted that, thereafter, the entire 200 acres was partitioned and he and his daughter acquired 831/3 acres “on the west side” of the original 200-acre Lord tract. Ivy Lord admitted that he sold 66% acres out of the 83% acres and “I got the money for it.” Sixteen and two-thirds acres were sold by Ivy Lord, as Guardian of Mary Gein Lord, through the probate court. Mary Gein testified that she went upon the land in 1962 because “the land was mine.” She testified that an attorney told her she had a right to enter upon the land; that this advice was given after the attor*694ney “looked at my deed.” This deed was identified as the September, 1942, deed. “He advised me that I had a perfect legal right to come in and take possession of it if I wanted it”; that “he did not” make any investigation of the title. Mary Gein testified that she asked her father about the land. “He said that he had sold some land.” Mary Gein on cross-examination, testified further as follows:
“Q And he (Ivy) didn’t tell you that he, as your guardian, sold that to King Goodrich in 1947?
“A No, he didn’t.
“Q 1948?
“A No.
“Q Why didn’t you ask him if he’d sold it to somebody, that particular land?
“A Because if he had sold it he would have told me.”
Mary Gein’s cause of action, if any, was one against her father. Instead of bringing suit against her father, she now appears in this Court, not asserting a claim against her father, but asserting ownership of the very title conveyed to Goodrich et al. The record reflects a perfect chain of title into Goodrich et al. beginning with the sheriff’s deed dated August 7, 1945, to 'D. B. Speights. The record reflects a title which was free and clear of the Martha Lord judgment lien. I agree with Goodrich et al. that the 1942 deed conveyed only the interest inherited from his mother. What Ivy Lord had inherited from his father and mother was all Ivy Lord owned in September, 1942. Ivy Lord and his successors are not estopped to assert other interests in the 200 acres subsequently acquired from an inconsistent source. This is especially true under the record here presented. Mary Gein Burns and her husband were not in possession of the land. An examination of this record does not reveal an intention on the part of Ivy Lord to convey to Mary Gein more land than he owned through inheritance. There is no proof in this case that the title failed to the 16% acres Ivy Lord inherited from his mother. Under the record in this case, the after-acquired title rule cannot apply so as to award to Mary Gein an interest in the 83% acres acquired by Ivy Lord and Mary Gein in the partition agreement, dated August 22, 1945. The parties to this partition deed were the record owners of the 200 acres. Ownership was recognized to be as follows:
“Whereas, D. B. Speights and B. F. Chambers * * *, and Ivy Lord and Mary Gein Lord, minor * * * are the joint owners of 200 acres * * *, less certain minerals thereunder, * * and said 200 acres has been partitioned and divided into two tracts, the said Ivy Lord and Mary Gein Lord owning an undivided 83% acres, and the said D. B. Speights and B. F. Chambers owning an undivided 116% acres, * ‡ * »
There is no proof that the 16% Martha Lord interest which the Court now awards to Mary Gein is a part of the 83% acres set aside to Ivy and Mary Gein Lord. The partition deed awarded Ivy Lord and Mary Gein Lord, jointly, a specific tract of 83% acres on the west side of the 200-acre tract. Ivy Lord subsequently claimed 66% acres and represented that Mary Gein owned 16% interest. I repeat that Mary Gein cannot set aside the subsequent deeds executed by Ivy Lord individually and as Guardian of Mary Gein, under the after-acquired title doctrine. The theory advanced by the Court, if adopted, will cause a disturbance of many land titles in Texas.
In the future no purchaser will be secure in his title even though he has a title opinion from a competent lawyer certifying that his prospective grantor has a good and merchantable title. The case of Anderson v. Casey-Swasey Company, 103 Tex. 466, 129 S.W. 349 (1910), in principle, support;, my position. The facts in that case were these: One D. J. Anderson and his mother S. J. Anderson, executed a deed of trust *695covering 160 acres, in a 320-acre survey. At the time of the execution of the deed of trust, D. J. Anderson had no interest in the 320 acres. In fact, he had conveyed to his brother whatever interest he expected to inherit as an heir of his mother. Thereafter D. J. Anderson purchased 58 acres of land from a half-brother. This 58 acres was awarded to D. J. after the death of his mother. Later Casey-Swasey Company purchased this land under foreclosure sale authorized by the deed of trust. Suit was filed against D. J. for title to the land. The Court held that the after-acquired title doctrine did not apply since there was no proof in the record that the 58 acres was a part of the 160 acres described in the Deed of Trust. The Court held:
“In order that estoppel should inure to the benefit of the Casey-Swasey Company it must appear that the 58 acres was a part of the 160-acre undivided interest conveyed by the deed of trust; otherwise there would be no antagonism between the title acquired by D. J. Anderson in the 58 acres and the title attempted to be conveyed by him in the 160 acres.”
Our case is even stronger than Anderson’s, inasmuch as there is absolutely no showing in the record that Ivy Lord ever reacquired the interest which he inherited from his mother, the same interest conveyed to Mary Gein in 1942. The only interest Ivy Lord acquired subsequent to September, 1942, was the interest he and Mary Gein obtained after the Speights’ judgment and the partition agreement wherein both Ivy and Mary Gein jointly acquired a tract of 83}/3 acres. Ivy Lord and Mary Gein sought to defeat the Goodrich et al., title by claiming that Goodrich et al., failed to establish by proper proof that the deed from Speights to Ivy Lord had been lost. They failed in this regard, and the Court has so held.
A deed from Ivy Lord to Sturgis Lumber Company, together with a deed executed by Ivy Lord, Guardian of the estate of Mary Gein, establishes by competent proof that Ivy and his daughter, Mary Gein, conveyed all interest that they owned and that they retained no title which would entitle them to possession of the 83% acres in suit or any part thereof. The defendants contend that Mary Gein is entitled to recover 16% acres under the after-acquired title rule. The defendants’ contention being that the title she lost under the foreclosure proceedings should be made good out of the Lee Lord %2ths interest or, in the alternative, the title should be made good out of the 33% acres acquired by Ivy Lord in the deed executed after the foreclosure by Speights. Mary Gein cannot recover under either theory.
The after-acquired title rule is a part of the law of estoppel. The estoppel in the after-acquired title cases arises' from the assertion of ownership made by the grantor in the covenant of warranty, express or implied, or in other recitals in the deed. Such assertion is a representation that the grantor owns the land or the estate or interest to which it relates, and having thus represented the fact of ownership, the grantor is estopped to deny that fact. The Court, in the case of Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (1942), in an opinion written by Justice Smedley, stated that:
“ * * * the clearest statements of it [the after-acquired, title rule] is that made in American Jurisprudence as follows: ‘It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.’ ”
However, before the rule as to after-acquired title can be held to inure to the benefit of Mary Gein, it must be first shown that Ivy Lord’s after-acquired title was a part *696of the land conveyed in the September, 1942, deed; otherwise, there is no conflict between the title acquired by him in the subsequent transaction and the title conveyed to Mary Gein Lord in 1942. See Anderson v. Casey-Swasey Co., supra.
The facts are not sufficient to show that Ivy Lord has asserted title to any part of the Martha Lord 16^ acres conveyed to Mary Gein. The solution of the problem in the case turns not only on the status of the title held by Ivy Lord in the 200-acre survey at the time of the conveyance to Mary Gein Lord, but also on the source and nature of the title acquired by Ivy Lord subsequent to such conveyance. At the time Ivy Lord executed the deed conveying to Mary Gein Lord, a minor, 331/3 acres, a part of the 200 acres, he conveyed the only interest he owned. The title to the 200 acres after the death of each parent was just as distinct in the heirs of the parents without partition as it would have been after partition. See Anderson v. Casey-Swasey Co., supra. Breaking it down a step further, the title to the Martha Lord 100 acres was just as distinct in the heirs as though it had been partitioned. The record shows that Ivy Lord by the 1942 deed conveyed all of the land he owned in the 200-acre survey. The 1 &/z acres was burdened with the judgment lien or incum-brance heretofore mentioned; but that lien was removed by the Speights’ judgment and foreclosure sale. Where a grantor has undertaken to convey a specified interest in a tract of land and there is no proof in the record that the interest conveyed has been lost by the grantee because of an incum-brance upon the land, the grantor should not be held to be required to apply other and different subsequently acquired interests to satisfy a grantee who has bought a restricted specified interest burdened with an incumbrance. This holding, in principle, is supported by the case of Wilson v. Wilson, Tex.Civ.App., 118 S.W.2d 403 (1938), no wr. hist., but cited with approval in the case of Clark v. Gauntt, supra, and is also supported by the holding of the Supreme Court of Missouri in the case of Stoepler v. Silberbert, 220 Mo. 258, 119 S.W. 418 (1909). I have no quarrel with cases cited by the defendants which hold that the warranty clause in a deed warrants the title of the grantee, nor do I question the rule announced in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), which the defendants say “prohibits the assertion of title in contradiction or breach of warranty.” The record in this case simply does not call for a holding that there has been a breach of warranty in the sense that Ivy Lord has denied the representation of ownership of the Martha Lord 16^4 acres conveyed in the 1942 warranty deed by the subsequent acquisition of the title to other interests or shares of the 200 acres inherited by the six children of Lee and Martha Lord.
The defendants rely upon the provisions of Articles 12971 and 1298,2 Vernon’s Annotated Statutes to support their contention that the after-acquired title rule estops Ivy Lord from passing his afer-acquired interest to anyone other than his grantee, Mary Gein Lord. These statutes cannot be invoked against the Ivy Lord grantees or their successors in title.
*697The defendants’ argument that the case of City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448 (1947), a case which deals with the statutory covenant against incumbrances, as provided by Article 1297, supra, supports their theory is without merit. The contention would be sound in a proceeding by Mary Gein against Ivy Lord.
The Court has not only erroneously construed the September, 1942, deed, but it has failed to recognize that there is no evidence in this record that the land involved in this suit is a part of the 100-acre Martha Lord interest. Furthermore, the Court fails to recognize that the lien against the one-half interest formerly owned by Martha Lord was extinguished prior to the partition deed between the owners of the 200 acres formerly owned by the father and mother of Ivy Lord. The Court also fails to recognize that there is no proof whatsoever that the undivided interest acquired by Ivy Lord by virtue of the Speights deed as well as the specific 831/3 acres acquired by Ivy and Mary Gein jointly in the deed of partition was any part of the interest which Ivy Lord had previously inherited from his mother. The fact that Ivy Lord, through these subsequently executed instruments, acquired a greater interest in the 200 acres than the 16% interest conveyed in the September, 1942, deed is not controlling. Admittedly, Mary Gein also acquired in the partition deed a greater interest than she claims was lost, but she has never challenged her father’s actions in this or any other suit. In fact, the record shows that at the time of entering upon the land as a trespasser, she had asserted no adverse claim to the land while it was occupied by the present owners and their predecessors in title. C. K. Goodrich built a house on the 83% acres in 1948 and lived there until his death in August, 1962. After his death the house was vacant and locks were placed on the doors. Sometime after August, 1962, and before the petition for injunction was filed, the house was opened and Mary Gein Burns and her husband were occupying the premises, all without the permission or consent of the record owners. Under this record, the trial court properly found that the Bums family and Ivy Lord and wife, all of whom are defendants in this suit had “no right of occupancy of any portion of the surface of said lands.”
The injunction, as modified by the Court of Civil Appeals, should remain in full force and effect. Therefore, the judgment of the Court of Civil Appeals should be affirmed.
. “From the use of the word ‘grant’ or ‘convey,’ in any conveyance hy which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs or assigns, are implied, unless restrained by express terms contained in such conveyance:
“1. That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title or interest therein, to any person other than the grantee.
“2. That such estate is at the time of the execution of such conveyance free from incumbrances.
“Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.”
. “The term ‘incumbrances’ includes taxes, assessments and all liens upon real property.”