Bennett v. Davis

90 Me. 457 | Me. | 1897

Emery, J.

One Elbridge G. Bennett acquired by inheritance and deed a title to one-undivided sixth of the premises sought to be divided. After acquiring that title the only conveyance he made of the premises was by his deed to the petitioner. But before he acquired any title to this one-sixth he executed and delivered to Henry Bennett the deed set out in full in the case. This last named deed was recorded on the day of its date but it does not appear that the petitioner had any notice of it, other than what constructive notice such record would impose upon him. Which grantee is protected under our laws ? The petitioner, the later grantee, relies upon the principle of the registry law. The respondent claiming under the earlier grantee relies upon the principle of estoppel.

The two principles certainly conflict. This conflict is frankly acknowledged in forcible language, but ingeniously avoided, in Salisbury Savings Society v. Cutting, 50 Conn. 118. The court said: If we were called upon to decide this question we should regard it as one of very serious difficulty, inasmuch, as in sustaining the later deed we should have to deny the controlling application to the case of the well-settled principles of estoppel, while in sustaining the prior deed we should have to violate the entire spirit of our registry system, which it is the policy, and. we may say in every other case, the unyielding policy, of the law to sustain.”

The spirit of the system of registry of deeds, in this country is that when a title has been traced to a party, the search for conveyances or incumbrances made by him may begin at the date of his accession to the title. Calder v. Chapman, 52 Penna. St. 359, (91 Am. Dec. 163) ; Farmer's Trust & Loan Co. v. Maltby, 8 Paige, 361; Bingham v. Kirkland, 34 N. J. Eq. 229 ; Doswell v. Buchanan, 3 Leigh, 365, (23 Am. Dec. 280); Buckingham v. Hanna, 2 Ohio, 551, 557; Wade on Notice, § 214; Rawle on Covenants for Title, 428 ; Hare’s notes to the Duchess of Kingston's Case, 3 Smith’s Leading Cases, p. 626 ; Note to Salisbury Savings Society v. Cutting, 50 Conn. p. 122. In McCusker v. McEvery, 9 R. I. 528, the court felt constrained by authority to give effect in that particular case to the doctrine of estoppel, but said “ we think a statute is called for in view of this state of the law in order to carry into full effect the policy of our recording act, and to prevent its operating in cases of this kind as a snare rather than as a protection to purchasers.”

On the other hand it has been several times held in this state, rather upon authority than reason, that where one has assumed to convey by what is known as a full warranty deed, with warranty against all the world, a parcel of land he did not own, any title afterward coming to him will inure at once to his former grantee. Lawry v. Williams, 13 Maine, 281; Baxter v. Bradbury, 20 Maine, 260 ; Crocker v. Pierce, 31 Maine, 177; Powers v. Patten, 71 Maine, 583. In the last case cited the court said the rule had been severely criticised in some quarters, but it had become the settled law of this state.

In Fairbanks v. Williamson, 7 Maine, 96, the rule of estoppel was applied to the case of a deed containing a covenant of non-claim, i. e. a covenant that the grantor, his heirs and assigns, should never have or make any claim to the conveyed premises. In Pike v. Galvin, 29 Maine, 183, however, the court in an elaborate opinion overruled in terms the former case of Fairbanks v. Williamson, and held that the rule of estoppel should not be applied to a deed with a covenant of non-claim, although the covenant embraced all persons claiming under the grantor or his heirs. The decision in Pike v. Galvin, has been repeatedly and distinctly affirmed. Partridge v. Patten, 33 Maine, 483 : Loomis v. Pingree, 43 Maine, 314 ; Harriman v. Gray, 49 Maine, 538; Read v. Whittemore, 60 Maine, 481.

There are also cases holding that the rule does not apply to any covenants however full and strong in a deed purporting to convey only the grantor’s present right, title or interest. Coe v. Persons Unknown, 43 Maine, 432; Ballard v. Child, 46 Maine, 152. The covenants in these cases were held to apply only to the particular right, title or interest then conveyed and not to any after-acquired title.

Thus we find the law settled in this State as to three classes of deeds, — (1) those of full warranty against all the world,— (2) those with the covenant of non-claim, — and (3) those which purport in terms to convey only the grantor’s existing right, title or interest. Under deeds of the first class an after-acquired title inures to the grantee. Under deeds of the second and third classes an after-acquired title does not pass to the grantee.

But there seems to be a criterion which, for the purpose of this opinion, may reduce the above named three classes to two, — (1) those in which appears an intent to convey an actual estate and protect it against all the world; and (2) those in which appears the intent to merely transfer whatever estate the grantor then has, with a guaranty against any then conflicting conveyances or incumbrances. A grantor in a deed of the first, class, having assumed to convey an actual estate and to make it good in the grantee, cannot afterward acquire and hold that estate against his grantee, nor convey it to the detriment of his grantee. He is bound by his covenant to transfer it to his grantee, and the law, as settled in this State to save circuity of action, holds it to be thus transferred ex vigore legis, even against a subsequent grantee where the first deed was recorded. A grantor in a deed of the second class, not having assumed to convey an actual estate and to make it good against all claims but only to relinquish whatever estate he may have with a guaranty that he has not given any one else any claim to it, is not bound to make any other title or estate good to grantee. If at the time of his deed, he has suffered no one else to acquire any rights or claims under him there can be no breach of his covenant. After such a deed he is free to acquire other titles or estates in the same land, and hold them against his grantee, for he never covenanted against such titles or estates, but only against the title or estate he conveyed, whatever it was.

The particular deed in this case clearly is within the second class last above described. In it there appears no intent to convey and make good an actual estate. It contains the usual language of a deed of quitclaim. It contains no assertion that the grantor has or will convey any actual estate. There is no covenant for such an estate. The covenant is that the grantor had not then given anybody any inconsistent right or claim, — that the grantee need not look for prior conveyances or incumbrances — but could look'to his grantor to protect him from such.

The grantor is not bound by that covenant to acquire or extinguish for his grantee any title, estate or incumbrance outstanding in other persons, — not created or suffered by him. If the grantee should be obliged to buy them in or extinguish them to protect his estate, that would be no breach of the covenant. Such outstanding claims in other persons, not created by the grantor, are without the purview of the covenant. Either party may acquire them. If the grantor acquire them, he is not obliged to transfer them to his grantee, and the law does not so transfer them.

The only case in Maine that we find with a deed like this is White v. Erskine, 10 Maine, 306. There one Moody conveyed to one Young “by deed of quitclaim with special warranty, ” but he had prior thereto mortgaged the premises to Stebbins and Otis. Subsequently to his deed to Young he acquired the interest he had before conveyed to Stebbins. It was held that this interest inured to his grantee Young. It was an interest he had himself created, and one he had warranted against. It was a “ lawful claim by, through or under him.” The grantor in the deed in the case at bar could not acquire or hold or convey an estate or interest he had himself created before bis deed, but any other estate or interest he was free to acquire and convey.

Judgment for the petitioner for one-undivided sixth part of the land, and for partition accordingly.