Fowler v. Will

Fuller, J; . This action to determine conflicting claims to real property resulted in a judgment quieting title in the de [132] fendant H. P. Will, subject to a lien for certain taxes in favor of plaintiff, and both parties have appealed. , In the absence of a. brief or oral argument on the part of the defendant EL- P. Will, the only question is whether the trial- court erred in holding an unrecorded warranty deed valid and effectual as against a recorded quitclaim deed executed later by the same grantor, and which purports only to “remise, release, and quitclaim” his interest in the premises. Speaking of such an instrument in Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33, we say: “The record was therefore sufficient to put the defendant Lane on inquiry, as a grantee in a quitclaim deed is not a bona fide purchaser. Such deed simply conveys all the interest, if any, which the grantor has, in equity, at the time of its execution. ” Under our recording act, a subsequent purchaser in good faith, whose conveyance is first duly recorded, has authority to question the validity and destroy the effect of a warranty deed previously executed by a common grantor; but a quitclaina deed in no sense purports to convey title — not even by inference — and is not essentially a grant, in contemplation of the statute. Rev. Civ. Code 1903, § 986. In Winkler v. Miller, 54 Iowa 476, 6 N. W. 698, the view of the court is thus expressed: “Where a person purchases of another who is willing to give only a quitclaim deed, he may properly enough be regarded as bound to inquire and ascertain, at his peril, what outstanding equities exist, if any. His grantor virtually declares to him that he will not warrant the title, even as against himself, and it may be presumed that the purchase price is fixed accordingly.” From the case of Peters v. Cartier, 80 Mich. 124, 45 N. W. 73, 20 Am. St. Rep. 508, we quote approvingly in Parker v. Ran [133] dolph, supra, as follows: ‘-Under the cloak of quitclaim deeds', schemers and speculators close their eyes to honest and reasonable inquiries, and traffic in apparent imperfections in titles. The usual methods of conveying a good title — one in which the grantor has confidence — is by warranty deed. The usual method of conveying a doubtful title is by a quitclaim deed. The rule is wise and wholesome which holds that those who take by quitclaim deed are not bona fide purchasers, 'and take only the interest which grantors had. This rule is adopted in the United States Supreme Court and in the courts of many of the states. It is therefore immaterial whether Carti'er had notice or knowledge of complainants’ title. He must-bé held to have purchased at his own risk, and Douville, having no title, conveyed none to him.” To the effect that persons taking by quitclaim deed are not bona fide purchasers without notice, the authorities are numerous and convincing. Thorn v. Newsom, (Tex.), 53 Am. Rep. 747, is an authority to the point that one taking a quitclaim deed is not protected bv the recording act, as a bona fide purchaser, and the court say: “While nonregistered 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, bo the extent of the divestiture there would be no right remaining in the vendor to pass [134] by the quitclaim to the vendee. It is, then, the interest of the vendor for which he contracts, and it is to such interest only that he is entitled under the quitclaim deed.” In Bayer v. Cocherill, 3 Kan. 282, where a deed “remised, released, and quitclaimed” certain real estate, portions of which the grantor had previously sold to a third person, but for which no deed had been delivered', it was held that the conveyance was nothing more than a quitclaim, and that only the actual interest which the grantor had at the time was conveyed. The. author of the article on “Deeds, ” 13 Cyc. 527, says: “There should be some title or interest, in law or equity, in the grantor, to enable him. to convey, and the grantees, under a release, or quitclaim, will take nothing, where the grantor has no interest which he can convey.” Reed v. Knights, 87 Me, 181, 32 Atl. 870, is a-case substantially the same as this, and-the court say: “But defendant read in evidence a quitclaim deed from plaintiff’s grantor dated in 1881, claimed to cover the. locus in dispute. Suppose it did. Plaintiff’s grantor had previously conveyed the same to plaintiff in 1875 by warranty deed, recorded in 1893, and defendant’s quitclaim therefore . passed • no title to him, for the grantor had none to part with; and the fact that plaintiff’s deed was not recorded makes no difference.”. For further cases holding that a quitclaim deed comprehends no more than is actually owned by the party executing it, and, as to interest already gone, is of no effect, see Steele & Son v. Sioux Valley Bank, 79 Iowa 339, 44 N. W. 564, 7 L, R. A. 524, 18 Am. St. Rep. 370; Benton & Milliken v. Sentell, 50 La. Ann. 869, 20 South. 297; Gest v. Packwood, (C. C.), 34 Fed. 368; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243; Arlington Mill & Elevator Co. v. Yates et al., 57 [135] Neb. 286, 77 N. W. 677. Although the granting clause in the deed construed by this court in the case of State v. Kemmerer, 14 S. D. 169, 84 N. W. 771, recites that defendants “do convey, grant, remise, release, and quite]aim all their right, title, estate, interest, property, and equity in and to. the following described property, ” it was held that such instrument did not pass the after-acquired title of the grantor. ■ Plaintiff, not being entitled to the protection afforded by the registration act, took nothing by the. quitclaim deed, executed long after the premises had been disposed of by warranty deed, and the judgment of the lower court is affirmed;