36. Is the friend likely to prevail?

Estoppel by deed (sometimes referred to as after-acquired title) ensures that if a grantor purports to convey title that he does not actually hold, and he subsequently acquires title to the property, it will automatically effectuate the prior benefit conveyed to the grantee. The issue becomes whether the buyer is considered a subsequent bona fide purchaser (BFP) and what was his burden of searching title. Such a buyer may want to search the title before purchasing land to determine if title is as called for in the contract, but such a search is not required in this scenario.

To be a subsequent BFP, the buyer must not have had notice, actual or constructive, of the original grantee. If the original grantee properly recorded, the subsequent buyer would have been on notice and therefore cannot be a valid subsequent BFP. The grantor may then be estopped by the grantee from denying he conveyed valid title. However, this right is only held by the grantee against the grantor. The grantee has no such right against a subsequent purchaser.

C is correct. When the son purported to convey the vacant land to his friend by warranty deed with no exceptions, he did not yet have valid title. However, the friend was a BFP who paid value for the warranty deed and properly recorded it without notice of the mother's interest. Applying the doctrine of estoppel by deed, when the mother died and the son's interest vested, his prior conveyance to the friend (who had no notice and paid value) will automatically become effective and the friend will prevail.

A is incorrect. Although the friend could have chosen to conduct a title search before paying value for the vacant land, he was not required to. Moreover, the fact pattern says that the «mother executed a will devising vacant land to her son.. .. [and] showed the will to her son.» There is no indication that, even if the friend had conducted a title search, the mother's ownership interest would have been recorded.

B is incorrect. This answer choice contains a true statement — the son had no interest in the land at the time of conveyance to the friend. However, when someone tries to convey property without valid title to a BFP, estoppel by deed ensures that when the grantor does receive valid title, the prior conveyance will automatically be executed.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The friend is likely to prevail, but not because the deed was recorded. When estoppel by deed applies, it is irrelevant whether the deed was recorded; the friend's interest will vest automatically.