*411ON Petition to Reheae.
The plaintiffs in error have petitioned for a rehearing of this cause, complaining that the Court overlooked the fact that ‘ ‘ the suit is primarily one to have the complainants declared the owners in fee of eleven inches of land whereon stands said northern wall, and the portion of the wall standing thereon with an easement for support in the balance of the wall, and to have the wall declared a party wall with all the incidents pertaining thereto.”
While there are other errors complained of, the foregoing is the real basis for a rehearing. Upon the original hearing before the Chancellor, the contract of sale for this property and the deed of conveyance were fully considered, and the Court found as a fact that the entire brick storehouse and building then known as the J. H. Trim building was conveyed to the Greene County Bank and that the conveyance included “the entire north wall and ground upon which it stood.” The Court of Appeals concurred in this finding of fact. When the cause was presented to this Court upon petition for certiorari, it was contended that the cause was misjudged and misconceived by that court; that the Court erroneously applied the statute of limitations of seven years, “whereas there was involved the rights of easement to which the prescribed period alone applied; and in not going into the question of easement and rights of soil in party walls of the respective property owners.”
This Court granted the writ of certiorari and considered the errors thus complained of in the petition. A careful reading of the original opinion clearly shows that the Court considered whether or not the defendant bank acquired the fee to the soil upon which the north wall rested. We held that it did under the concurrent *412finding- of facts by the Chancellor and Conrt of Appeals. Having decided this question against the contention of plaintiffs in error, we next considered and decided their rights to an easement in the new wall which the bank had erected. Our decision on this question adversely to complainants in error, we think, is supported by the weight of authority. While we may have erroneously stated that Chancellor Robinson tried both cases, the one wherein the will of J. H. Trim was construed, as well as the instant case, it could have no real bearing upon the issues that were decided. Notwithstanding there had been a concurrent finding of fact, the issues were again considered upon the contentions advanced in the petition for certiorari-, it cannot therefore be said in fairness that the question complained of was overlooked by the Court.
It is next insisted that the Court overlooked the fact that there is no warranty in the instant case against encumbrance, that neither the contract nor the deed contained covenants of warranty, but both deal with the estate of J. IT. Trim, deceased. While said contract and the deed of the Clerk and Master do not contain any covenants of warranty, yet it does not follow that the entire interest in the estate of J. IT. Trim, owned by the LaRues, did not pass to the Greene County Bank. The Chancellor and the Court of Appeals concurrently held as a matter of fact that it did pass, which is conclusive upon this Court.
Responding to assignment No. 7, it is not important to a correct decision of the case that the Court erroneously found as a fact, or surmised, that “the original party wall as it probably stood under the Shields deed had been torn down — it had ceased to exist — ”, if in truth and in fact said wall had ceased to be a party wall, *413as found by the Chancellor and the Court of Appeals. The question as to how long the north wall of the old Trim building had been standing was not a controlling or determinative fact. It cannot be denied that there was no building upon the “Office Lot” that had any physical connection with the Trim building.
It is further contended that the Court overlooked the testimony of P. C. Wakefield, president of the bank, to the effect that LaBue claimed to own a part of the wall. What the Court undertook to say was that at the time the bank began the erection of the new building and during the course of its construction, there was no claim by LaBue to anyone connected with the bank that there was an encroachment upon his property. We think it conclusively appears that when the work started on the new building, LaBue, who was then a director in the bank, made no claim to the officers and fellow directors that he had any right of easement in the north wall. The Chancellor and Court of Appeals considered the testimony of the witness Goddard and upon full consideration held against the contention of the plaintiffs in error.
It is again urged upon us that the doctrine of estoppel should not be applied in the instant case; that the defendant bank had notice by the Shields deed that the north wall of the J. II. Trim building was a party wall. Begardless of the recitations in said deed, we think the purchasers of the Trim building had the right to rely upon the terms of the contract, which was ratified and approved by the Chancery Court of Greene County. The Chancellor, after giving full consideration to said contract, held that LaBue sold and the bank bought the entire property, including the ground upon which the north wall was built. In other words, every interest the LaBues had in said property was contracted to be conveyed. The Chancellor and the Court of Appeals having *414tiras construed the terms of the contract, we hold that the complainants are estopped to claim any right of easement in the north wall of the new bank building. "We cannot escape the conclusion that there has been a judicial determination by the Chancellor and the Court of Appeals that the contract evidenced an intention on the part of the original owners to divest themselves of every interest. We are now asked to hold that notwithstanding this intention of the original parties their heirs should be allowed to make a contrary claim. The soundest principles of justice and morality would deny to S. B. LaRue the right to make any such claim. The same right must be denied to those claiming under him. When parties, if living, would be estopped, their heirs and privies in estate are likewise estopped. Royston v. Wear, 40 Tenn. (3 Head), 8; Nelson v. Claybrooke, 72 Tenn. (4 Lea), 687; Kerbough v. Vance, 65 Tenn. (6 Baxt.), 110, 113; Cooley v. Steele, 39 Tenn. (2 Head), 605. There was no duty devolving upon the defendant bank to take notice of the recitation in the Shields deed that the two lots, the "Office Lot” and the "Trim Lot”, were divided by party wall, when it affirmatively appeared from the contract of sale that S. B. LaRue, the owner of both lots, intended to sell his entire interest in the Trim store-building, including the north wall and the ground upon which it stood. The contract clearly, without any ambiguity, was a binding obligation and neither party could be heard to claim anything in violation of or contrary, to its terms. In Bispam’s Principles of Equity, (10th Ed.), 485, footnote to the text, it is said:
"But it must be remembered that registration is not sufficient notice to prevent an estoppel where the conduct which creates the estoppel is an affirmative act or word as distinguished from silence.” (Citing authorities.)
*415Now tlie “affirmative act” in the instant case is the contract signed by the owners wherein they agreed to sell their entire interest, inclnding the ‘ ‘ party wall. ’ ’ The purchasers had the right to assume that they acquired such interest. The recitations in the Shields deed were not notice to the bank that the contract was not enforceable, since the LaRues owned both lots and could sell any part or all of either. Mr. Bigelow, in his work on Estoppel, discussing the doctrine, as applicable to contracts, says:
“A fact agreed or assumed to be true, as the basis of a contract, mus^ be taken to be true specifically, until the contract itself is lawfully impeached by plaintiff or by defendant, or until some legal proceeding is taken to impeach the truth of the (supposed) fact; assuming that the contract itself is not contrary to law. In other words, supposing the contract to be lawful and binding, the party or parties (it may be one, it may be all) pledging or justly assuming the fact in question will be estopped from taking any position, to the detriment of other parties, inconsistent with the special fact, except for the purpose of reforming the language of a written contract and making it conform to the real terms of agreement.” (P. 495.)
It is unnecessary that we consider the question of estoppel by silence. If there had been a deed of conveyance by the owner without any contract of sale and without covenants of warranty, it is very doubtful if the doctrine could have any application.
The petition to rehear is therefore denied.