Thorn v. Newsom

Watts, J. Com. App. The material question presented by the record is as to the effect to be accorded to the bond for title, and the judgment thereon rendered against James Duncan and in favor of Felix Mudd. It is urged that, by the terms of the bond, Mudd contracted for a quitclaim deed, and the judgment for the recovery of the land must be limited in its operation to the scope and object of the intention of the parties as expressed in the bond. As resulting from these conclusions, it is asserted that Newsom is chargeable with all defects in the chain of title under which he purchased, and affected to the same extent by unrecorded conveyances and outstanding equities, as was his vendor, Mudd, who, it is claimed, •held under a quitclaim title only. While non-registered deeds are declared void by the statute as to subsequent purchasers for value and without notice, still the doctrine is well settled that a subsequent purchaser, although for value and without actual notice, who takes under strictly a quitclaim deed, that is, one by which the chance of title, and not the •land itself, is conveyed, will not be accorded the protection of the statute, for the obvious reason that he contracted for the interest only that his vendor then had in the land. If the vendor had previously divested himself of the title to a portion or all of the land, to the extent of the divestiture there would be no right remaining in the .¡vendor to pass by the quitclaim to the vendee. It is the then interest of the vendor for which he contracts, and it is to such interest only that he is entitled under the quitclaim deed. In this case it is not necessary to determine whether a vendee who purchases from one holding under a quitclaim deed, pays value and takes a conveyance of the land with covenants of general warranty, without actual notice of an unrecorded deed existing prior to the [165] execution of the quitclaim deed to his vendor, would be protected by the statute as a subsequent purchaser for value, and without notice. Because it will be seen from an examination of the terms of the bond for title that it is questionable whether the contract was for the chance of title or for an absolute conveyance of the land. And in the determination of that question resort should be had to the circumstances attending the transaction, the primary object being to arrive at the intention of the contracting parties. For if their intention was that the one purchased and the other intended only to sell his interest in the land, then it would be held that the bond called only for a quitclaim deed. On the other hand, if the obligee intended to contract for an absolute conveyance of the land, and the obligor intended to bind himself to make that character of conveyance, even though it was upon special warranty, nevertheless it would be a conveyance of the land, as distinguished from a release or transfer of merely the obligor’s right. Harrison v. Boring, 44 Tex., 263; Van Rensselaer v. Kearney, 11 How. (U. S.), 322; Sweet v. Green, 1 Paige, Ch., 476. That was a practical question for the consideration of the court in the suit by Mudd upon the bond. And the judgment there was for the recovery of the land, not merely the interest that James Duncan had in it. By the statute then in force the court had full authority to pass the title by the decree. P. D., art. 1481. Such evidently was the intention of the court, and such is the effect of the decree rendered. Hence it appears that the construction placed by the court upon the bond for title was that it called for an absolute conveyance of the land. And it is not material to inquire whether the court did or not err in that construction of the bond; for, as it had jurisdiction both of the person and subject-matter, so long as that remains a subsisting decree, it is not subject to collateral attack on the ground of error, and will constitute the evidence of Mudd’s title, and upon which appellee had the right to rely. It appears from the evidence that appellee paid full value for the land. The transfer of the small note to an innocent third party, and the recovery of a judgment thereon against appellee, fastens upon him the liability, and, in contemplation of law, is equivalent to a payment by him. Appellee testified that he purchased the land in good faith, and without notice of any adverse claim whatever, and that he paid a valuable consideration for the same. [166] There is nothing in the record that militates against his evidence; on the contrary, he is supported by the statements of other witnesses. Upon that issue the court instructed the jury that, if appellee purchased the land in good faith, and for value, without notice of the claim of appellants, and could not have known of it by the exercise of ordinary diligence, then to find for appellee. But, if appellee knew of the claim of appellants, or by the exercise of ordinary diligence might have known, then to find for appellants. In our opinion the particular issue was properly submitted by the court, and that the verdict is sustained by the evidence; while the charges asked by appellants and refused by the court assumed that appellee was chargeable with constructive notice of the adverse claiiy, which, as has been seen, is not true. Therefore the court did not err in refusing these instructions. All the other questions relate to immaterial matter, which could not have had any effect upon the result. Our conclusion is that the judgment ought to be affirmed. Affirmed. [Opinion adopted May 12, 1885.]