Shepard v. Hunsacker

Quinas, J. If the conclusion of the judge to which the second assignment is pointed, that Shepard, having purchased the land and merely credited his bid upon this judgment, nothing having been paid or parted with in consequence, is not therefore entitled to judgment, be correct, there would be no necessity to discuss the first assignment of error, or to determine whether the deed from Folsom to Henderson was a quitclaim or not. But we think it is quite obvious that this is not the case, and that the judge erred in his view of the law, and in the conclusions upon which he based his judgment. Although Shepard tiiay not be strictly a purchaser in good faith, because his bid was placed as a credit upon his judgment, and nothing was paid or parted with in consequence of the purchase, still it by no means follows that he could not, by his purchase, acquire a valid title to the land superior to the defendants’, who claim under an unrecorded deed, of which Shepard had no notice, actual or constructive. The case shows that Shepard was a creditor upon a valid judgment, and, by a valid levy upon the land, acquired a lien upon it for the satisfaction of his debt superior to the right of one claiming under an unrecorded deed prior in point of time to the deed from Folsom to Henderson, of which Shepard, at the time of the levy, had no notice. Creditors are by the law protected full as much as purchasers in good faith. They stand precisely upon the same ground. They are protected by their judgment lien or levy, just as the purchaser in good faith who pays his money is protected by his deed. And though, as we have said, Shepard might not be able to defend simply as a purchaser in good faith, for the reason that he had credited his bid upon the judg [583] ment, yet he would be protected by his judgment, the levy and the sale, and the sheriff’s deed would convey to him the land. For it, indeed, would be absurd to say that, while the law as to him avoids all unrecorded prior incumbrances of which he has no actual notice, yet that he cannot proceed to avail himself of that protection by a sale under execution at which he may be the purchaser, and when, that he should purchase, may be the necessary means of preventing a sacrifice off his security and of collecting his debt. Borden v. McRae, 46 Tex., 396; Kavanaugh v. Peterson, 47 Tex., 197; Grace v. Wade, 45 Tex., 523. The material question, then, in the case is upon the first assignment of error, whether the deed from Folsom to Henderson was a quitclaim deed or not; for if it were, whether Shepard was a purchaser of the land in good faith or not, he could acquire no greater title to the land than Folsom conveyed to Henderson, which, if Folsom had before then conveyed to Faith, was none at all. In Rodgers v. Burchard, 34 Tex., 452, it was held that a quitclaim deed of all one’s right, title and interest purports to convey, and does convey, no more than the present inter7 est of the grantor, and that a Iona fide purchaser under it takes no greater interest than the grantor then had. But this case is qualified in Harrison v. Boring, 44 Tex., 256, and in Taylor v. Harrison, 47 Tex., 460, where it is said that the principle in Rodgers v. Burchard “ is only applicable to quitclaim deeds in the strict sense of that species of conveyance, and where its legal import is a quitclaim or deed of release of all one’s right, title and interest, which is not intended and does not purport to convey an absolute right to land without covenants of warranty, as contra-distinguished from a conveyance of the title, or chance for title, which the grantor may be supposed to have.” And again: where the deed contains evidence from which it may be fairly deduced that the absolute right to the land, and not the title or chance of title, is sought to be bought and sold, the purchaser may be a bona fide purchaser, though [584] the deed may have in some respects the qualities of a quitclaim deed in form. Harrison v. Boring, 44 Tex., 262. A deed, as other instruments, may be read and construed under the light of surrounding circumstances under which it was executed. While a deed may be so.plain in its terms as to require the court to construe it to be a quitclaim in one case, and an absolute conveyance of the land in another case, still its- wording may be such as to raise a question whether it is the one or the other, and in that event the circumstances under which it is made, and purposes for which it is made, may be considered to fix" its true character. 11 How., 322. Assuming, then, that the deed from Folsom to Henderson may not be so plain in its terms as to require us to construe it, but that we are authorized to look outside of it for circumstances to explain its meaning, we find nothing in the statement of facts which throws any light upon it. There is no proof in relation to its execution, or the circumstances under which it was executed, and none of value of the property at the time, or whether the consideration recited in it was in fact paid, or was merely nominal, and the land was unoccupied. We must judge of this deed by what appears upon its face, and that only. The material parts of a deed ordinarily are the premises and the habendum. The premises is that part which precedes the words “ to have and to hold,” and includes the description of the thing granted. In Folsom’s deed to Henderson, the premises are, after reciting the consideration, etc., “ I have this day granted, bargained, sold and conveyed to G-. W. Henderson all my right, title and interest in and to the following described tract of land.” That these words do not convey, or purport to convey, the land, but only Folsom’s right or claim to it, is too obvious for comment. The habetidum which follows is, “ to have and to hold all [585] and singular the same, the above described tract of land, unto him, the said W. G. Henderson.” The office of the habendum is to limit and define the estate which the grantee is to have, or the property granted. It can be applied to use only where the granting words leave the subject of ownership open to explanation. And the rule is as stated in Washburn on Real Property, vol. 4, 438, “the habendum. may enlarge, expound, qualify or vary the estate granted in the premises, but it can never extend the subject-matter of the grant.” 4 Kent., 524. If, therefore, anything is embraced in the habendum which is not granted, it does not pass. It cannot operate as a conveyance. Sumner v. Williams, 8 Mass., 174. So it was held that the omission of words of grant by mistake, though the instrument was otherwise perfect as a warranty deed, was not helped by the habendum so as to grant the land. Brown v. Manter, 1 Foster, 528, cited in Wright v. Lancaster, 48 Tex., 255. And in Smith v. Pollard, where a deed was in the common form of a quitclaim deed, and the habendum in these words: “ To have and to hold the premises so that neither the said Alexis (the grantor), nor any one claiming under him, should thereafter have claim or right. to the premises aforesaid,” it was held that it should be construed to apply to such title and interest only as the grantor then had in the land. 19 Verm., 272. In another case, where the words of the deed were, “We do bargain, sell and quitclaim all our right, title, interest, estate, claim and demand, both in law and equity, as well in possession as in expectation, with all and singular the hereditaments and appurtenances thereunto belonging; and we do also promise to defend the property against all claims, if any shall come up against said property,” it was held to be only a quitclaim deed. Young v. Clippenger, 14 Kan., 148. Tested by these rules and decisions, it is evident, we think, that the clause in the habendum in this deed, “To have and to hold all and singular the same, the above described land,” must be held to refer only to the estate purported to be con [586] veyed in the premises, that is, the right, title, interest and claim of Folsom in the land, and that the words cannot be extended to embrace the land itself. [Opinion delivered October 25, 1880.] But looking to the whole deed, and reading it altogether) without putting undue stress upon its formal divisions, we are forced to the conclusion that Folsom intended to convey, and, in fact, conveyed, simply his right or title to the land, whatever that might be. The deed is not skilfully drawn, but it bears unmistakable evidence that it was uppermost in Folsom’s mind that he was making a quitclaim merely. The sentence which follows the habendum, and which may be considered as explanatory of the instrument, by its use of the word “ quitclaim,” and the apparently studious avoidance of the word warrant where it would most naturally occur, and the quitclaiming thereon of “ all claims against himself, his heirs and assigns,” appears to us irreconcilable with the idea of the transfer of anything more than a mere claim to the land. The language used does not import any larger estate than that included in the premises of the deed. It is, in effect, but a mere repetition, and seems to have been used to render more emphatic his intention to part only with his claim of title. The judge who tried this cause had opportunities, by an inspection of the instrument and its interlineations, which might possibly afford some light, of determining its character which are denied to us. His conclusion was that the deed was merely a quitclaim deed, and in that we think he did not err. The judgment will therefore be affirmed, and we so award. Affirmed.