Bagley v. Fletcher

Smith, J. Bagley filed this bill to quiet his title to a quarter section of land which he had acquired by purchase from Mrs. Rowland and her husband. The deed to Bagley is in the form of a bargain and sale, containing no covenants, however, except that the grantor was the owner of the land by virtue of a donation deed to her, as a married woman, by the State, and that she had never alienated or incumbered it. The bill stated that about eighteen months after the plaintiff had procured his title, the Rowlands, husband and wife, had conveyed the land by quit-claim to the defendant. And this was the cloud that was sought to be removed. The answer set up that Mrs. Rowland was, at the date of the execution of her first deed, an infant. And the proofs showing that she was at that time only about seventeen years old, and that in six or seven months after attaining her majority she sold and conveyed the land to Fletcher, the Circuit Court dismissed the bill. At the date of both conveyances the land was wild and unoccupied, and, as we may infer, of but little value. The consideration expressed in Bagley’s deed is $50. And this sum was made up of $3 in cash, $3.70 in taxes refunded to Mrs. Rowland and the remainder was the estimated value of Bagley’s services in looking up the title to the land and procuring the donation to Mrs. Rowland. Fletcher paid $25 for his quit-claim, and he was advised that Mrs. Rowland had previously conveyed the land to Bagley. But he expressed his willingness to take his chances for getting the land and to protect Mrs. Rowland against all risks she might run by a second conveyance. 1. Infant: May avoid deed after maturity. Mrs. Rowland’s deed to Bagley, having been made during her non-age, was voidable at her election. There were several ways in which she might avoid it; as, by entering on the land and taking possession of it; or by bringing ejectment for it against any one in possession (Watson v. Billings, 38 Ark., 278; Lessee of Drake v. Ramsay, 5 Ohio, 152); or by filing a bill to cancel the deed on account of her infancy, as was done in Harrod v. Myers, 21 Ark., 592, or by a re-sale to another after majority; or by any other act unequivocally manifesting an intention to avoid. All that was required was some positive and decided act of dissent adverse to the original act. Now, there can not be a more decisive act of disaffirmance than the conveyance of the same land to another person, who is not in privity with the first grantee. It is conclusive evidence that the grantor does not intend to be bound by the deed made in infancy. 1 Am. Lead. Cas., 5th ed., 317; Cressinger v. Welch, 15 Ohio, 156; Jackson v. Carpenter, 11 John., 539; Jackson v. Burchin, 14 Ib., 124; Harris v. Cannon, 6 Ga., 382. The earliest case on this subject that we have examined is Frost v. Wolverton, 1 Strange, 94. An infant covenanted to levy a fine by a certain time to certain uses. He levied the fine; but by another deed made at full age, he declared it be to other uses. And the court held that the last deed should be the one to lead the uses. The deed to Bagley vested in him a defeasible estate in fee; but his title was defeated by the subsequent conveyance to Fletcher, which was a revocation of the former grant. The effect of this last-mentioned instrument was to render Bagley’s deed as though it had never been ; to extinguish any interest in law or equity that Bagley may have acquired under it, and to entitle Fletcher to hold the land free from any equity of Bagley. Norcum v. Sheahan, 21 Mo., 25; Mustard v. Woolford’s Heirs, 15 Grattan, 329. The principle of one deed being avoided by another deed for the same property after age, must be understood ,. , . , , . , of absolute deeds inconsistent with one another, whereby " it becomes manifest that it was the intention of the party to disaffirm the former deed. Thus, in Watkins v. Wassell, 15 Ark., 73, a minor executed a deed of conveyance of real estate, and, upon arriving at age, jointly with his grantee, executed a mortgage upon the same premises to secure a debt of the grantee. This was held to be an affirmance of the previous conveyance, being done in conjunction with the grantee, at his instance, and for his benefit. But the court say that if he had executed the mortgage alone, this would have amounted to a disaffirmance, for that would have implied that he still considered himself the owner. 2. Same: firm0 dthfe deeds must be moonsistent. So a mortgage of lands during infancy is not avoided by a second mortgage of the same lands after full age. For the mortgagor still retains the equity of redemption, and a party may place several successive incumbrances upon the-same property. Therefore the execution of the second mortgage does not necessarily indicate an intention to avoid the previous one. McGan v. Marshall, 7 Humphreys, 121. In Bozman v. Browning, 31 Ark., 364, an infant whose domicile was in Alabama sold his lands in Arkansas to-his brother. He died soon after attaining his majority, and by will devised all of his property, both real and personal, to his father for life, with remainders over. At the time of his death he owned land in Alabama. And the court confined the operation of the devise to that land; though it intimated that if he had expressly devised the Arkansas lands, it would have been a disaffirmance. In Eagle Fire Co. v. Lent, 6 Paige, 635, an infant conveyed real estate to a party, who first mortgaged it to one-person and then conveyed the premises in fee to another, subject to the mortgage. The last-mentioned grantee procured a quit-claim deed from the infant, who was now of age, and on bill filed to foreclose the mortgage, undertook to over-reach the mortgage, by claiming that the deed to him was a disaffirmance of the deed to the mortgagor, the original grantee of the infant. But the Chancellor held that the last deed was intended to operate as a mere confirmation of the former title, and not as a disaffirmance; and then laid down the rule that “to render a. subsequent conveyance by an infant an act of dissent to his prior deed, it must be inconsistent therewith, so that both can not properly stand together.” Subject to this qualification, the rule is a cast-iron one that a re-sale after majority avoids the sale before. The law conclusively presumes that Mrs. Rowland meant something by executing the second deed.- And yet; if she intended the previous deed to stand, she could not have intended anything. There is no pretense of any ratification of the deed to Bagley. Indeed, ever since that deed was made, she has been under such disabilities that no binding ratification could be made except by deed. It will not do to say that, because Mrs. Rowland recognized the previous conveyance to Bagley as an existing fact, and acquiesced in it for a few months after coming of age, so that she took no active step to disaffirm it, amounts to a ratification. This point was fully considered in Tucker v. Moreland, 10 Peters, 59. The Circuit Court had been requested in that case to charge that “if the jury shall believe, from the evidence, that said Richard was under age at the time of the execution of said deed; that he, after his arrival at age, voluntarily and deliberately recognized the same as an actual conveyance of his right, or during a period of several months acquiesced in the same without objection, then the said deed can not now be impeached on account of the minority of the grantor.” Tempoesoenoe. The prayer was rejected, and Mr. Justice Story, in delivering the opinion of the court, says: “ The instruction is objectionable on several accounts. In the first place it assumes as a matter of law that a voluntary and deliberate recognition by a person after his arrival at age, of an actual conveyance of his right during his nonage, amounts to a confirmation of such conveyance. In the next place-that mere acquiescence in the same conveyance, without objection, for several months after his arrival at age, is also a confirmation of it. In our judgment neither proposition is maintainable. The mere recognition of the fact that such a conveyance has been made, is not, -per se, proof of a confirmation of it. * * * Admitting that acts in pais may amount to a confirmation of a deed, still * * * these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was voidable. A fortiori, mere acquiescence, uncoupled with any acts demonstrative of any attempt to confirm it, would be insufficient for the purpose.” 4. Deeds: Quitclaim: Effect of. Nor can any solid distinction, grounded on the form of Mrs. Rowland’s deed to Pletcher, be taken as to the efficacy of that deed, considered as an act of disaffirmance. In England we understand the law to be that a deed of release can never operate technically as a conveyance per se, but only by way of enlargement of a previous estate. Consequently if the releasee was not in possession and had not some other interest in the land, he had no estate to be enlarged. But in this country a quit-claim deed is a substantive mode of conveyance, and is as effectual to carry all the right, title, interest, claim and estate of the grantor, as a deed with full covenants, although the grantee has no possession of or prior interest in the land. It is almost the only mode in practice where the vendor does not wish to warrant the title. See article on the nature and effect of a quit-claim deed, in 12 Cent. Law Jour., 127, and cases cited; among others, Brown v. Jackson, 3 Wheaton, 448; Kyle v. Kavanaugh, 103 Mass., 359; Pray v. Pierce, 7 Mass., 381; Jackson v. Fish, 10 Johns., 456; Hall v. Ashby, 9 Ohio, 96. Covenants no part of deed. In fact, the covenants in a deed constitute no part of the conveyance, but are separate contracts. The title passes independently of them. To say, then, that an infant can not disaffirm a previous contract of sale by executing a quit-claim deed after he comes of age, is equivalent to saying that he cannot disaffirm except on condition of warranting the title of the second grantee. None of the text-books or cases that we have consulted mention any such exception to the general rule, and we are unwilling to take so novel a position. Bearing in mind that Mrs. Rowland was, at the date of the execution of the first deed, an infant and a married woman, and that she was not bound by the covenants contained in her deed (1 Bishop on Married Women, sec. 603; Benton County v. Rutherford, 33 Ark., 640), the two deeds were not essentially dissimilar. By the first the estate simply flowed from her, provided she did no act to defeat it after full age. But her covenants of seizin and against incumbrances were void. 5'^eed!t’s Covenants In Harrod v. Myers, 21 Ark., 592, this court decided that where a husband and his infant wife unite in a conveyance of the wife’s land, although she may avoid it so far as it affects her interest and that of her heirs, yet it is good to carry the husbánd’s interest during their joint lives; that is, his right to the possession and to take the rents and profits, and his rights by curtesy if he survives her. And this decision was correct as the law then stood. But under our present Constitution and married woman’s law, and the construction that has been placed upon them, whatever interest Rowland acquired in the land by marriage was swept away by his wife’s subsequent conveyance. Constitution of 1874, art. 9, sec. 7; Roberts v. Wilcoxson, 36 Ark., 355; Milwee v. Milwee, ante, 112. . Effect of Decree affirmed. Mr. Chief Justice' Cockrill concurred.