Taggart v. Risley

— 238 — By the Court, McArthur, J.: This suit was instituted by Taggart against Eisley and others, to quiet the title to lot 7, in block 212, in the city of Portland, and to compel the execution of conveyances thereof by the appellants. It appears from the pleadings that, on June 25, 1850, D. H. Lownsdale, being .then in possession of the lot aforesaid, executed a deed conveyiug all his interest in said lot to W. W. Chapman, wherein he covenanted to warrant and defend the same to said Chapman, his heirs and assigns, against all persons except the United States; and also, that should he afterwards obtain title to said lot from the United States, he would convey the same to said Chapman, his heirs and assigns, by deed of general warranty. On November 8, 1852, Chapman executed a conveyance of said lot to Eisley, and he (E.), on December 18, 1860, for a valuable consideration, sold the said lot to Charles Goodnough, and executed to him a deed therefor. Eisley’s wife joined in this conveyance, which reads as follows: “This indenture, made the 18th day of December, 1860, between Orville Eisley and Amelia, his wife, of the county of Multnomah and State of Oregon, of the first part, and Charles Goodnough, of the county of Multnomah and State áforesaid, of the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of eight hundred dollars, lawful money of the United States to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, remised, released and conveyed, and by these presents do grant, bargain, sell, alien, remise, release, and convey, unto the said party of the second part, and to his heirs and assigns forever, the following described property, to wit: Lots No. 7 and 8, in block No. two hundred and twelve (212), in the city of Portland, in the county of Multnomah and State of Oregon, together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and also — 239 — all the estate, right, title, interest, property, possession, claim and demand, as well in law as in equity, of the said parties of the first part of, in and to the above-described premises, and every part and parcel thereof, with the appurtenances, to have and to hold, all and singular, the above-described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. And the said parties of the first part, for themselves and their heirs, the said premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said parties of the first part and their heirs, lawfully claiming, or to claim, the same, shall and will warrant, and, by these presents, forever defend. (Signed) “ Orville Risley. [seal.] “Amelia Risley. [seal.]’7 This deed was duly witnessed and acknowledged. The interest thus acquired by Goodnough in and to said lots passed by a chain of regularly executed mesne conveyances down to Taggart, who purchased on November 8, 1870. On May 80, 1861, Lownsdale, having obtained title to the undivided one-fifth of said lot No. 7, from the United States, and of another undivided one-fifth from Isabella Gillihan, executed to Risley a deed of quit-claim to said lot. Under this deed.Risley claims to be the owner of one undivided one-fifth of said lot—that of said Isabella Gillihan. Risley, in his separate answer, denies the deed from himself to Goodnough, as alleged, and pleads Lownsdale’s deed of June 25, 1850, and his own deed to Goodnough of December 18, 1860, attaching them as exhibits. He also avers that Lownsdale had no interest in, or right to, the lot in controversy when he executed the deed of June 25, 1850, except the mere naked possession, and did not pretend to have any. greater interest. That he (L.) did not afterwards obtain title from the United States, except for the undivided one-fifth of said lot, and was not bound by his covenant, in the deed of 1850, to convey to Chapman, — 240 — or liis assigns, any more than said one-fifth, and that he (Risley) had no interest beyond the said undivided one-fifth when he and his wife executed the deed to Goodnough. That afterwards, in 1861, by deed from Lownsdale, he (Risley) became the owner of the undivided one-fiftli which Lownsdale had acquired from Isabella Gillihan and that his right thereto was Unaffected by his deed to Goodnough. A demurrer was interposed to this answer, which, after argument, was sustained, and from the order sustaining the demurrer, and the decree thereon rendered, the said Risley appeals. The deed of June 25, 1850, is simply a deed of.release and quit-claim with the addition of the covenants mentioned above. The main question in this case is briefly this : Does the deed from Risley to Goodnough estop Risley to claim the after-acquired one-JiftJi, which Lownsdale acquired from Gillihan and conveyed to Risley after the execution of the deed to Goodnough by Risley and wife ? After much reflection a majority of the Court has reached the conclusion that, from the language employed in the deed of December 18, 1860, the parties were evidently dealing with the fee, and that Risley did not intend merely to convey lots 7 and 8, in block 212, • by way of release or quit-claim, but that he intended to convey, and the grantee expected to become invested with, the very land itself, as an entirety, with the absolute ownership thereof with the fullest possible estate, the fee simple. It is important at this point to note again that there is in this deed the following covenant: “And the said parties of the first part, for themselves and their heirs, the said premises, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said parties of the first part and their heirs, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend.” It cannot but be considered that the claim which Risley now seeks to ,set up under the confirmatory deed from Lownsdale, of May 30, 1861, is entirely inconsistent with his own deed of December 18,1860; and although there are — 241 — no recitals or covenants of title in the deed of December 18, 1860, yet, under the authorities, Eisley is estopped to assert that any outstanding title existed inconsistent with what he undertook to sell and convey to Taggart, more especially in view of the personal covenant not to disturb the grantee in his possession. In Van Rensselaer v. Kearney (11 How. 325), the Court, after reviewing a number of English and American cases, says: “The principle deducible from these authorities seems to be that whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance, must necessarily have influenced the grantee in making the purchase, and hence the grantor and those, in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not unfrequently characterized as odious, and not to be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood; would be the denial of' a previous affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, — 242 — and imposes silence on a party only when in conscience and honesty he should not be allowed to speak.” Thus it will be seen that the ancient doctrine that estoppel grows out of warranty has been departed from by the Supreme Court of the United States, and it is now held that a deed without warranty may operate as an estoppel, in order to prevent a failure of the purpose with which it was executed. (Van Rensselaer v. Kearney, supra; Fitzhugh's Heirs v. Tyler, 9 B. Mon. 559.) The question is one of intention (3 Met. 121; 6 Cush. 33), and the whole instrument must be taken together, and effect must be given to its meaning as derived from each and every part of it. If the terms of a deed plainly show that it was meant to pass an absolute estate to the land itself, and not merely the estate which the grantee had at the time, it will bind and pass every estate or interest which may vest in him subsequently to its execution, though it contain no warranty. (Fairbanks v. Williamson, 7 Greenleaf, 96; White v. Erskine, 1 Fairfield, 306; Kimball v. Blaisdell, 5 N. H. 533; Trull v. Eastman, 3 Met. (Man.) 121; Bean v. Welch, 17 Ala. 772.) In Doe v. Oliver (2 Smith’s Ldg. Cases, 637), it is said that these decisions abandon the technical ground, taken in some of the earlier cases, that estoppel grows out of warranty, and rest it upon the broader basis of giving effect to the intention of the parties as expressed in the deed. No reason exists, under this view of the law, for attributing a more conclusive effect to the covenants in a deed than to any other portion of its contents. Nor can Eisley avoid the consequences of his covenant for quiet enjoyment. He and his heirs are certainly bound by that covenant; and as limited covenants of this character are good as against the persons named therein, he is estopped to set up the after-acquired title, for by being permitted to do so he would disturb the possession and enjoyment of his own grantee. Even in the ease of a quit-claim deed the law is that where the grantor covenants to warrant the premises against all persons claiming by or under himself, and he subsequently acquires the legal title to the — 243 — premises, that legal title will inure to the benefit of the grantee. (Sweet v. Green, 1 Paige, 47.) Decree affirmed.