interest as the grantor has,1 and the fact that such a conveyance contains covenants for title does not change its character in this respect.17 If the conveyance is not of a limited interest merely, or of such interest only as the grantor has, the fact that the covenant is special-that is, against the acts only of the grantor and those claiming under him-does not affect its operation by way of estoppel.18 457. Estoppel by representation. In connection with the law of land there is frequent occasion for the application of the familiar principle that one who, by his words or actions, represents a certain state of facts to be true, and thereby induces another to act to his detriment, is precluded from thereafter denying the existence of such a state of facts. So it has frequently been decided that if one, having title to land, openly disclaims any rights therein,19 or fails to assert his rights,20 and thereby causes one, ignorant of the true state of the title, to purchase the land from a third person, he cannot thereafter assert any claim to 10 Quivey v. Baker, 37 Cal. 465; Benneson v. Aiken, 102 Ill. 284, 40 Am. Rep. 592; Harriman v. Gray, 49 Me. 537; Fay v. Wood, 65 Mich. 390; Gibson v. Chouteau, 39 Mo. 536; Perrin v. Perrin, 62 Tex. 477; Jourdain v. Fox, 90 Wis. 99. 17 Rawle, Covenants for Title (5th Ed.) § 250; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Hanrick v. Patrick, 119 U. S. 156, 175; Holbrook v. Debo, 99 Ill. 372; Stephenson v. Boody, 139 Ind. 60. 18 Kimball v. Blaisdell, 5 N. H. 533, 3 Gray's Cas. 761; Gibbs ▼ Thayer, 6 Cush. (Mass.) 30; Coal Creek Min. & Mfg. Co. v. Ross, 12 Lea (Tenn.) 1. But see Bennett v. Davis, 90 Me. 457. 19 Dickerson v. Colgrove, 100 U. S. 578; Keys v. Test, 33 Ill. 316; Blodgett v. McMurtry, 34 Neb. 782; Coogler v. Rogers, 25 Fla. 853; Mayer v. Ramsey, 46 Tex. 371. 20 Bryan v. Ramirez, 8 Cal. 461, 68 Am. Dec. 340; Hatch v. Kimball, 16 Me. 146; Brown v. Union Depot St. Ry. & Transfer Co. of Stillwater, 65 Minn. 508; Guffey v. O'Reiley, 88 Mo. 418. 57 Am Rep. 424; Thompson v. Sanborn, 11 N. H. 201, 35 Am. Dec. 490; Marines v. Goblet, 31 S. C. 153, 17 Am. St. Rep. 22. the land. Likewise, it has been decided that the true owner of land who stands by and sees another, under the belief that he has the unincumbered title to the land, make expenditures for improvements thereon, may be under such a duty to inform the person in possession of the true state of the title as to be thereafter estopped from asserting any rights in the land.21 The mere failure to assert one's title, without any active misrepresentation in regard thereto, will not, however, have the effect of an estoppel, if the title appears of record, since one purchasing or improving the land is in such case charged with notice of the true state of the title.22 An estoppel of this character, since it is based on a representation that one has not the title to land, and not that he has title, has of course no effect upon a title afterwards acquired by the person making the representation. 23 This class of estoppel, though frequently spoken of as "equitable" estoppel, is ordinarily recognized and enforced in courts of law as well as in equity. But though the principles governing in this class of cases were not clearly recognized and formulated under that name until the nineteenth century,2 24 before this there existed in equity a doctrine which was equivalent to the modern doctrine of estoppel by representation, to 21 Kirk v. Hamilton, 102 U. S. 68; Bryan v. Pinney (Ariz.) 31 Pac. 548; Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Rep. 17; Thomas v. Pullis, 56 Mo. 211; Dellett v. Kemble, 23 N. J. Eq. 58; Redmond v. Excelsior Sav. Fund & Loan Ass'n, 194 Pa. St. 643, 75 Am. St. Rep. 714. 22 Clark v. Parsons, 69 N. H. 147, 76 Am. St. Rep. 157; Brant Virginia Coal & Iron Co., 93 U. S. 326, 337; Tongue's Lesses v. Nutwell, 17 Md. 212, 79 Am. Dec. 649; Mayo v. Cartwright, 30 Ark. 407; Campbell v. Jacobson, 145 Ill. 389; Staton v. Bryant. 55 Miss. 261; Knouff v. Thompson, 16 Pa. St. 357; Blodgett v. Perry, 97 Mo. 263, 10 Am. St. Rep. 307. 28 Gluckauf v. Reed, 22 Cal. 468; Davidson v. Dwyer, 62 Iowa, 332; Donaldson v. Hibner, 55 Mo 492. 24 Pickard v. Sears, 6 Adol. & E. 469 (A. D. 1837). the effect that one who knowingly makes a false representation to one who acts on it is bound to make that representation good;25 and a similar principle was also involved in the equitable rule that the fraudulent failure of one to make known his title to a person about to purchase the land from another would have the effect of changing the ordinary rule of priori ties, and of postponing his claim to that of the purchaser.20 There has been very great difference of opinion as to whether the misrepresentation, whether by conduct or by express statement, must be fraudulent in order to give rise to an estoppel of this character. The decided weight of authority is to the effect that it need not be such;27 but apart from the question of the existence of such a requirement in other cases, it is by some authorities asserted that, in order that one may, by reason of misrepresentations, be estopped to assert his title to land, he must have been guilty of fraud, since the application of the doctrine of estoppel by representation involves in effect a transfer of land, and that is, by the Statute of Frauds, required to be in writing.28 Moreover, while, as a general rule, an estoppel by representation is as available at law as in equity, it is, by the decisions of some states, not available at law when the title to land is involved, on the ground that at law the Statute of Frauds must control, and that in equity only can the case be regarded as taken out of the statute by the fraud, actual or constructive, involved in the misrepresentation.29 The view 25 Evans v. Bicknell, 6 Ves. 174; Bigelow, Estoppel, 557. Bigelow, Estoppel, 629, note; Ewart, Estoppel, 83 et seq.; 2 Pomeroy, Eq. Jur. §§ 805, 806; 11 Am. & Eng. Enc. Law (2d Ed.) 431. 28 Trenton Banking Co. v. Duncan, 86 N. Y. 221; Huyck v. Bailey, 100 Mich. 223; May v. Hanks, 62 N. C. 310; 2 Pomeroy, Eq. Jur. § 807. 29 Doe d. McPherson v. Walters, 16 Ala. 714; Standifer v. Swann, is, however, taken in most jurisdictions,80 that an estoppel may be asserted at law as well as in equity. In equity the person in favor of whom the owner is estopped to claim the land is entitled to a conveyance of the land by the owner,—that is, the owner may be compelled to make good his representations;31 this, as before stated, being a well-settled equitable doctrine before the legal development of the law of estoppel under that name.32 In determining, therefore, the rights of the person to assert the estoppel as against persons other than the person who was originally guilty of the misrepresentation, the former should, it seems, be regarded as standing in the position of any other person having an equity to a conveyance. Consequently, the estoppel should be enforceable as against any subsequent owner of the land, as would any other equity, until the land passes to a bona fide purchaser for value.38 This view has been sometimes applied, though frequently the subject has been confused by undertaking to determine whether the subsequent owner of the land is a "privy" of a person originally estopped. 84 78 Ala. 88; Hayes v. Livingston, 34 Mich. 384, 22 Am. Rep. 533; Winslow v. Cooper, 104 Ill. 235; Suttle v. Richmond, F. & P. R. Co., 76 Va. 284. 80 Kirk v. Hamilton, 102 U. S. 68; Bigelow v. Foss, 59 Me. 164; Davis v. Davis, 26 Cal. 23; Shaw v. Beebe, 35 Vt. 204; Brown v. Bowen, 30 N. Y. 519; Beaupland v. McKeen, 28 Pa. St. 124; Levy v. Cox, 22 Fla. 546; Bigelow, Estoppel, 715. 81 Citizens' Bank of Louisiana v. First Nat. Bank of New Orleans, L. R. 6 H. L. 360; Beatty v. Sweeney, 26 Mich. 217; Favill v. Roberts, 50 N. Y. 222. 32 Ante, note 25. * See Ewart, Estoppel, 196, on which the view here presented is based. 84 Rutz v. Kehn, 143 Ill. 558; Southard v. Sutton, 68 Me. 575; Thistle v. Buford, 50 Mo. 278; Ions v. Harbison, 112 Cal, 260; Ramboz v. Stowell, 103 Cal. 588; Maxon v. Lane, 124 Ind. 592; Stinchfield v. Emerson, 52 Me. 465, 83 Am. Dec. 524; Hodges v. Eddy, 41 Vt. 485, 98 Am. Dec. 612. 458. Escheat. 459. Forfeiture. CHAPTER XXVII. ESCHEAT AND FORFEITURE Upon the death of the owner of land intestate, and without legal heirs, the land passes to the state by "escheat." Land may be forfeited to the state in particular cases, as when an alien acquires land in violation of law, or, occasionally, when a corporation so does. Land may be forfeited to an individual for breach of an express or implied condition subsequent. 458. Escheat. At common law, as before stated, an escheat of land occurred in favor of the feudal lord in case the tenure terminated by reason of the failure of inheritable blood, such failure arising from the corruption of the blood of the tenant by attainder of felony, as well as from the death of the tenant without any ascertainable heir.1 In this country, in those states in which tenure is to be regarded as nonexistent,2 the feudal conception of escheat cannot obtain, though even there the right of the state to land the owner of which dies intestate without heirs would no doubt be sustained as an attribute of sovereignty. Any question upon the subject, however, is avoided in most, if not in all, the states by statutory provisions that, upon the failure of other heirs, the 1 2 Bl. Comm. 244 et seq.; ante, § 10. Ante, 14. |