Connolley

168 Mass. 201 | Mass. | 1897

Knowlton, J.

This case is reported for our consideration by a justice of this court, and the only question in it is whether the petitioner has a record title to the whole estate within the meaning of St. 1893, c. 340, § 1.

It is found that, by the true construction of the will of Sarah Davis who died in 1847, the shares which Charles Davis and Horatio Davis took under it in the real estate in question were such as to make their interest in 1851, including portions which they inherited from others, ]-||- each. In that year Horatio Davis made to his brother Charles a warranty deed of one half of the premises, which was duly recorded. That made Charles the real owner of |f|, and by deed and inheritance the ostensible owner of §|-|. From that time until his death in 1888, a period of thirty-seven years, Charles Davis was in actual, open, and continuous adverse possession of the share of the premises belonging to his co-tenants, and he acquired, an impregnable title by disseisin. This title passed by devise to his children. One of these children made a quitclaim deed of his share to the others, and on December 15, 1894, they united in a quitclaim deed to the petitioner. Both of these deeds were duly recorded. The grantors in these deeds had in fact a good right to convey, and the question is whether the quitclaim deed gave the petitioner a record title to the whole estate.

In Pray v. Pierce, 7 Mass. 381, and in Russell v. Coffin, 8 Pick. 143, it was held that a deed of release given for a valuable consideration will operate as a bargain and sale, or other lawful conveyance, by which an estate might pass. The principle of these decisions was afterwards embodied in our statutes, (Rev. Sts. c. 59, § 5, and Gen. Sts. c. 89, § 8,) and now appears in the Pub. Sts. c. 120, § 2, in these words: “ A deed of quitclaim and release shall be sufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and sale.” Under this statute, upon the facts found, the petitioner acquired a fee simple by the deed in question. In Woodward v. Sartwell, 129 Mass. 210, it was held that a quitclaim deed describing land by metes and bounds was good as against prior unrecorded encumbrances created by the grantor. The rule stated in Adams v. Cuddy, 13 Pick. 460, was also explained and limited. In Nealon v. Henry, 131 Mass. 153,156, it was decided that a tender of a deed required by law may be made by a quitclaim deed, because “a deed of quitclaim or release conveys the estate of the grantor as effectually as a deed of warranty.” In Mansfield v. Dyer, 131 Mass. 200, it was held that property fraudulently conveyed can be held against the creditors of the grantor by an innocent purchaser under a quitclaim deed from the fraudulent grantee.

The case at bar is clearly distinguishable from Arnold v. Reed, 162 Mass. 438. In that case, the grantor in the deed purported to be selling the property of another. It was decided that, to make a record title within the meaning of the.statute, the record should show an apparent authority in the attorney or agent otherwise than by a mere recital by the grantor in the deed, and it was intimated that this rule would not apply to a deed in which one purports to sell his own land.

We are of opinion that the petitioner shows a record title to the whole property.

Decree for the petitioner.