Bruce v. Luke
9 Kan. 201
Kan.
1872
Check Treatment

'The opinion of the court Avas delivered by

Valentine, J.:

This AAras an action of replevin brought by the plaintiff in error, Charles Bruce, against the defendant in error, Jacob Luke, for the recovery of certain railroad *208ties and cordwood cut on a certain piece of land of which Bruce claimed to be the owner, but of which Luke was in possession and also claimed to be the owner. Passing over all the preliminary Or minor questions which might be raised in the case, we are asked to decide this question only: Who is the owner of the land? In deciding this question there are certain incidental questions which it will not be necessary for us now to consider, for they have already been considered and settled in this court in the case of Simpson v. Greeley, 8 Kas., 586. Some of the principles underlying some of these incidental questions were considered and settled in the case of Douglas Co. v. U. P. Rly. Co., 5 Kas., 615. See also Baker v. Gee, 1 Wallace, 333.

On the 11th of March 1867 Isaac Johnnycake executed and delivered a deed of conveyance for the land now in dispute to Kate L. Simpson. The land at this time belonged to the United States; (Simpson v. Greeley, supra.) On the 17th of October 1867 the purchase-money was paid to the United States, and on the 26th of the same month the patent was issued by the government to Alexander Caldwell. On the 9th of January 1868 Caldwell executed and delivered a deed of conveyance for said land to Johnnycake. On the 4th of May 1868 Kate L. Simpson and her husband executed and delivered a deed of conveyance for'said land to Bruce; and ■on the 5th of January 1869 Johnnycake executed and delivered a deed of conveyance for said land to Luke—Luke having full notice of all the prior deeds. At the time that Johnnycake executed the deed of conveyance to Kate L. Simpson he had no interest in the land that could be conveyed; and the only question now is, whether the after-acquired interest which he received from Caldwell inured to the benefit of Mrs. Simpson.

At the time the deed from Johnnycake to Mrs. Simpson was executed the following statute was in force:

“Sec. 4. Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that *209which the deed purports to convey, inures to the benefit of the grantee.” Comp. Laws, 354.

This deed does not purport to convey any particular interest or estate, nor does it anywhere assert or state that Johnnycake was possessed of any particular interest or estate which he could convey; nor is there any.covenant of any kind or description whatever anywhere to be found in said deed. The deed, as we think, clearly shows upon its face that it was intended to be only a quitclaim deed of a present and existing but unascertained, .unknown, indefinite and uncertain interest. The deed in substance is as follows:

“ For and in consideration • of the sum of one dollar and other valuable considerations in lawful money of the United States” Johnny cake “grants, bargains, sells, aliens, - releases, quitclaims and conveys ” unto Kate L. Simpson the land in controversy, “together with all the improvements, ways, easements, rights, privileges and appurtenances to the same •belonging or in anywise appertaining, and all remainders;, reversions, rents, issues and profits thereof, and all the estate,, right,, title, interest, claim and demand, either, at law or in equity, or otherwise howsoever of the said” Johnny cake, “in, to, or out of said premises.”

The two cases referred to by counsel for plaintiff from the Illinois reports are not applicable. The case of DeWolf v. Hayden, 24 Ill., 525, was decided under a peculiar statute of Illinois, and the law as there laid down is clearly not the law where such a statute does not exist. The case of Gibson v. Adams, 32 Ill., 348, was a decision in Illinois construing-an Iowa statute precisely like ours (said § 4, Comp. Laws,, 354,) but the decision, or at least the reasoning of the court,, was evidently very much affected by their own local laws,, and by the hardship of that particular case. The case however differs widely from this. The deed in that case used the words “grant, bargain and sell” only, and did not use the words “release and quitclaim;” nor did that deed use any of many other words which are used in this, which tends to show that this was intended to be only a quitclaim deed. That deed also contained the following covenants, which this *210deed does not contain, to wit: “ That the grantors were well seized, and had good right to sell and convey; that the premisos ware free from incumbrance, and the grantee, his heirs or assigns should enjoy the quiet and peaceable possession thereof.” (32 111., 350, 351.) A deed containing the words, “granted, bargained, sold and quitclaimed,” is only a quitclaim deed; and the grantor in the same, who had no title to the land at the time he executed the deed, is not estopped from afterwards acquiring the title as against his grantee: McCracken v. Wright, 14 Johnson, 194; Jackson v. Hubbell, 1 Cowen, 616; and the same with reference to the words, “bargain, sell, release, quitclaim and convey:” Gibson v. Chouteau’s Heirs, 39 Mo., 536, 566. See also note to Doe v. Oliver, 2 Smith’s Lead. Cases, (6th Am. ed.,) 709, and cases there cited.

After a careful consideration of the subject we are of the opinion that a deed, such as executed by Johnnycake to Mrs. Simpson, does not estop the grantor, who, at the time of executing the same had no title to or interest in the land mentioned in the deed, from afterwards acquiring- title to or interest in said land as against the grantee, and that the after-acquired title or interest will not inure to the benefit of the grantee. The judgment of the court below is affirmed.

Kingman, C. J., concurring. Brewer, J., did not sit in the case.