18 WEND. (N. Y.), 57. Whether this principle be denominated the right of transcendental propriety, or of eminent domain, or, as is more properly by Grotius, the force of supereminent dominion, it means nothing more or less than an inherent political right, founded on a common necessity and interest, of appropriating the property of individual members of the community to the great necessities of the whole community. This principle or right does not rest, as supposed by some, upon the notion that the state had an original and absolute ownership of the whole property possessed by the individual members of it, antecedent to their possession of it, and that their possession and enjoyment of it being subsequently derived from a grant by the sovereign, it is held subject to a tacit agreement or implied reservation that it may be resumed, and all individual rights to it extinguished by a rightful exertion of sovereign power. Such a doctrine is bringing the principles of the social system back to the slavish theory of Hobbes, which, however plausible it may be in regard to lands once held in absolute ownership by the sovereignty, and directly granted by it to individuals, is inconsistent with the fact that the security of pre-existing rights to their own property is the great motive and object of individuals for associating into governments. Besides, it will not apply at all to personal property, which in many cases is entirely the creation of its individual owners; and yet the principle of appropriating private property to public use is full as extensive in regard to personal as to real property.-Per Tracy, Sen., in Bloodgood v. M. & H. R. R. Co. (1837).

U. S. CONST. AMDTS., ART. 5.

[No person

shall] be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.1

'The provision of the New York Constitution (Art. I. § 6) is in the same terms.-ED.

C. ESTOPPEL.

LIT., § 599. But by the feoffment of tenant in taile, fee simple passeth by the same feoffment by force of the liverie of seisin, &c.

§ 600. But by force of a release nothing shall passe but the right which he may lawfully and rightfully release, without hurt or dammage to other persons who shall have right therein after his decease, &c. So there is great diversitie betweene a feoffment of tenant in taile and a release made by tenant in taile.

609. For if I lett land to a man for terme of his life, &c., and the tenant for life letteth the same land to another for terme of years, &c., and after my tenant for life grant the reversion to another in fee, and the tenant for yeares attorne, in this case the grantee hath in the freehold but an estate for terme of the life of his grantor, &c., and I which am in the reversion of the fee simple may not enter by force of this grant of the reversion made by my tenant for life, for that by such grant my reversion is not discontinued, but alwayes remaines unto me, as it was before, notwithstanding such grant of the reversion made to the grantee, to him and to his heires, &c., because nothing passed by force of such grant, but the estate which the grantor hath, &c.

§ 610. In the same manner is it, if tenant for terme of life by his deed confirme the estate of his lessee for yeares, to have and to hold to him and his heires, or release to his lessee and his heires, yet the lessee for yeares hath an estate but for terme of the life of the tenant for life, &c.

Co. LIT., 330, b. Here is rehearsed another ancient maxime of the common law touching grants; and hereby it ap

peareth that a feoffment in fee (albeit it be by parol) is of a greater operation and estimation in law, than a grant of a reversion by deed, though it be inrolled, and attornement of the lessee for yeares of a release or a confirmation by deed, for the reasons aforesaid.

LIT., § 611. But otherwise it is when tenant for life maketh a feoffment in fee, for by such a feoffment the fee simple passeth. For tenant for yeares may make a feoffment in fee, and by his feoffment the fee simple shall passe, and yet he had at the time of the feoffment made but an estate for terme of yeares, &c.

§ 618. And note, that of such things as passe by way of grant, by deed made in the countrie, and without livery, there such grant maketh no discontinuance, as in the cases aforesayd, and in other like cases, &c. And albeit such things bee graunted in fee, by fine levied in the king's court, &c., yet this maketh not a discontinuance, &c.

Co. LIT., 332, a. Here is the generall reason yeelded of the precedent cases and the like; for that it is a maxime in law, that a grant by deed of such things as doe lie in grant, and not in liverie of seisin, doe worke no discontinuance. But the particular reason is, for that of such things the grant of tenant in taile worketh no wrong, either to the issue in taile, or to him in reversion or remainder; for nothing doth passe but onely during the life of tenant in taile, which is lawful, and every discontinuance worketh a wrong as hath beene said.

WILLIAMS, REAL PROP., 178. The delivery of possession which always took place in a feoffment, rendered it an assurance of great power; for the law permits one who has obtained actual possession of land to maintain it against all others, except those who may lawfully claim the land under a prior title. If, therefore, a person shall have made a feoffment to another of an estate in fee simple, or of any other

estate, not warranted by his own interest in the lands, such a feoffment would have operated (as it was said) by wrong. That is to say, it would have conferred on the feoffee the whole estate limited by the feoffment, and would have enabled him to maintain the seisin actually delivered to him against all but those whose prior title was displaced by the feoffment. And even they were in certain cases deprived of all right to enter upon the land, and left with nothing but a right to bring an action for its recovery. Thus if a tenant in tail or for his own life should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong. In the case of a tenant for life, who has no fee and whose position in early times was that of lessee rather than owner, such a feoffment was held to be a cause of forfeiture to the person next entitled after his death; as being a conveyance of such person's interest to another without his consent. But a feoffment by tenant in tail conferred an estate indefeasible during his life. At the present day, however, an estate by wrong can no longer be created by feoffment; an act of 1845 providing that a feoffment shall not have any tortious operation.

STAT. 8 & 9 VICT. (1845), c. 106, § 4. A feoffment, made after the said first day of October, one thousand eight hundred and forty-five, shall not have any tortious operation; and the word "give" or the word "grant," in a deed executed after the same day, shall not imply any covenant in law in respect of any tenements or hereditaments.

N. Y. REAL PROP. LAW, § 210. A greater estate or interest does not pass by any grant or conveyance than the grantor possessed or could lawfully convey at the time of the delivery of the deed.

RAWLE, COV. FOR TITLE, § 241. "An estoppel by deed," says Mr. Bigelow, "may be defined in a strict

sense to be a right based upon a preclusion against the competent parties to a valid sealed instrument and their privies to deny its force and effect by any evidence of inferior solemnity."

242. This was the ordinary and personal effect of an estoppel by deed. But it had also a much higher operation, which was in certain and exceptional cases actually to transfer and pass an estate; so that if a man conveyed to another land to which he had no title, any after-acquired title would inure to the latter by direct operation of law, and become vested in him in the same manner as if it had originally passed to him by the assurance.

§ 243. Now it must be carefully observed that by the common law there were two classes of cases in which an estate thus actually passed by estoppel, and two only. The first was where the mode of assurance was a feoffment, a fine or a common recovery. Such was their solemnity and high character that they always passed an actual estate, by right or by wrong, and as against the feoffor or conusor and his heirs, not only divested them of what they then had, but of every estate which they might thereafter by possibility acquire, and this doctrine has been applied in modern times. The second was where the assurance was by lease, under which, it will be remembered, estates could take effect in futuro; and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties-the same contract which on the part of the lessor implied a covenant for quiet enjoyment from the word demise, and on the part of the lessee implied a covenant for payment of the rent from the words yielding and paying.

§ 244. These modes of assurance were the only ones by which an after-acquired title was actually passed by direct operation of law under the doctrine of estoppel. Thus a grant or a release had not this effect. They only operated upon the estate which the grantor or releasor actually had, "and therefore if a man grant a rent charge out of the manor