Ford v. Axelson

Ames, C. The record in this case recites, and the briefs and arguments of counsel discuss, a tangled web of circumstances of no slight dimensions and complexity, but we think that the legal rights of the parties are to be determined by a consideration of a very few of them, to which alone our attention will be confined. On March 6, 1897, Emma S. Challberg and Olive M. Axelson were in the possession, and appeared by the public records to be the absolute owners .in fee, of a tract of land described in the pleadings. If any other person or persons had any right, title or interest, legal or equitable, in or to the property, or any of it, that fact was known only to such persons and to the parties named. On that day they executed a mortgage upon the lands to Fred P. McCormick to secure an indebtedness evidenced by their [93] promissory notes. In 1899, the indebtedness having become due and remaining unpaid, a suit in foreclosure was begun and prosecuted by the mortgagee against the mortgagors and all persons having a known or apparent interest in the lands, and terminated in the usual decree of foreclosure and sale on the 7th day of March in that year. Pursuant to the decree the lands were duly and regularly appraised, advertised and offered for sale, and were sold on the 9th day of July, 1900, to the mortgagee, who was the highest bidder therefor, and the sale was duly confirmed on the 4th day of the following December. On the second day of December, 1902, a sheriff’s deed, pursuant to the sale, and confirmation, was executed and delivered to the purchaser, and on the same day made of record in the clerk’s office of the county. On the 11th day of March, 1901, after the sale and confirmation, but before the execution of the sheriff’s deed, McCormick, for a valuable consideration, made an assignment of the decree of foreclosure to the plaintiff and appellant herein Virginia G. Ford, and on the 26th day of the same month, upon the same consideration, quitclaimed and conveyed the land to her by deed. It is not disputed or questioned that McCormick was a bona -fide mortgagee, plaintiff and purchaser for value in all that the term expresses or implies. There can be no doubt, tlierefore, that, upon the entry of the order of the confirmation, not afterwards impeached, he became the full and absolute owner of the entire equitable or beneficial title to the land in question; and it has been already decided by this court that a deed of mere quitclaim and release is sufficient to convey such title to the grantee therein. Leavitt v. Bell, 55 Neb. 57. The deed of McCormick to appellant is, however, an instrument of higher dignity than a deed merely of quitclaim, demise and release. By it the grantor expressly quitclaims and “conveys” the land, and by section 50, chapter 73, Compiled Statutes, 1903 (Ann. St. 10253), it is enacted that “every conveyance of real estate shall pass all the interest of the [94] grantor therein, unless a contrary intent can be reasonably inferred from the terms used.” There can be no doubt, therefore, that this deed conveyed all the equitable and beneficial title to the land to Mrs. Ford, and that when the sheriff’s deed was subsequently executed and delivered it inured to her benefit, and that she became thus invested with as complete and unassailable a title as her grantor would have done if the former instrument had not been executed or the decree assigned. Hagensick v. Caster, 53 Neb. 495, and Troxell v. Stevens, 57 Neb. 329, holding that an after-acquired title by a grantor in a deed of quitclaim does not inure to his grantee, and other authorities to like effect, are not in point for two reasons: First, the deed in question is not a mere deed of quitclaim but one of conveyance; and second, the grantee in the sheriff’s deed did not obtain by that instrument an after-acquired title, within the meaning of the decisions cited, but merely an evidence and fortification of the title which he had already obtained by the judicial sale ánd confirmation, and which he had previously conveyed away, so that if his deed to the appellant had been one merely of quitclaim and release, it would have estopped him from claiming that the interest he had parted with thereby had revested in him by virtue of an instrument whose sole office is to evidence its validity and value. However, McCormick’s deed to the appellant purported to convey the tract of land, that is, the entire title, and is more properly described as a grant of the land without express covenants than as a quitclaim, and it, therefore, by force of section 51 of the chapter above cited, would have conveyed any after-acquired interest. On the 4th day of May, 1901, after the judicial sale had been confirmed and after the deed froto the purchaser to appellant had been executed and delivered and made of record, there was spread upon the real estate records of the county a writing subscribed by the defendant herein, Andrew Axelson, and purporting to have been made not only in his own behalf, but also on the behalf of his [95] mother, Cari Louise Axelson, and all of the other defendants herein; and in which it was recited, in substance, that the mortgagors at and before the execution of the mortgage were not the owners of the mortgaged premises in their own right, but in trust for themselves and the defendants as the widow and heirs at law of one Axel Axelson, deceased, and proclaiming an intent by said persons to assert and maintain their alleged rights and interests in the property accordingly. Shortly afterwards this action was begun by the appellant to procure said writing to be adjudged a cloud upon her title, and to obtain a decree perpetually quieting the latter against it. The defendants filed a cross-petition, in which they asserted the claim set forth in the writing, and averred that at and before the plaintiff obtained her conveyances she was cognizant of the alleged interests and titles of the defendants, and of each of them severally, and of the circumstances out of which the same were averred to have arisen, and had dealt with the land in fraud of them, and prayed, in effect, that the plaintiff be adjudged to hold the title to the lands upon the same trusts and confidences upon which it was alleged to have been formerly held by the mortgagors, and that she be decreed to account for the value of the use and occupation of the lands during her possession of them, and that title to the lands be adjudged and quieted in the defendants in conformity to the terms of the alleged trusts. There was a reply consisting of a general denial, and a trial which resulted in a decree in substantial conformity to the prayer of the cross-petition. To set forth the issues more at length, or the evidence at all, Avould be fruitless of benefit or advantage to any one. It is a familiar elementary principle, at least as old as any existing system of jurisprudence, that, in the language quoted and adopted by this court in Garland v. Wells, 15 Neb. 298, “a purchaser Avith notice from a prior purchaser who was entitled to protection as a bona fide purchaser without notice, is himself entitled to protection [96] against the previous equitable claim, which was invalid as against his grantor.” Accepting the defendants’ own version of the transactions under investigation, this language is exactly descriptive of the present case. .The plaintiff, now appellant, is a purchaser from McCormick, the mortgagee and purchaser at the judicial sale, who, it is conceded by all parties, Avas entitled to protection as a bona fide purchaser for value, without notice. Therefore, Avhatever equitable rights the defendants, or any of them, may have had in the premises, and hoivever cognizant of them the plaintiff may have been, it is immaterial to inquire, because she is entitled to the protection enjoyed by her grantor against them. It is therefore recommended that the judgment of the district court be reversed, and the cross-petitions dismissed, and the cause remanded, Avith instructions to enter a decree in conformity with the prayer of the plaintiff’s petition. Letton and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and the cross-petitions dismissed, and the cause remanded, xvith instructions to enter a decree in conformity Avith the prayer of the plaintiff’s petition. Reversed.