19 S.D. 131 | S.D. | 1905
Lead Opinion
. This action to determine conflicting claims to real property resulted in a judgment quieting title in the de
, 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
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
■ 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;
Dissenting Opinion
(dissenting). In view of the important nature of the decision made by a majority of the court, I feel again compelled to dissent from the doctrine sought to be ,es-t tablished in this opinion, for I do not understand that the dob-trine now enunciated has heretofore been accepted by this court. It is true, the writer of the opinion' in the case of Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29-L. R. A. 33, took the view now adopted by the court in the opinion in the case at bar; but Judge Kellam, then a member of the court, .concurred specially, taking the view, as I now read his concurring opinion, that the facts and circumstances disclosed by the record in 'that case were such as to show that Lane was .not an innocent and bona fide holder,.and could not, therefore, be rer garded as an innocent purchaser; and the writer of this opinion expressly dissented. So far as I am aware, therefore, the question presented in this case has not heretofore been decided by this court. As my views upon the question presented-are so fully expressed in my dissenting opinion in the case referred
In Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350, decided in March, 1893, the Supreme Court of the United States, speaking by Mr. justice Field, reviews the question discussed in the majority opinion of this court, and says: “'The doctrine expressed in many cases, that the grantee in a quitclaim deed cannot be treated as a bona fide purchaser, does not seem to rest upon any sound principle. * * * In many parts of the country a quitclaim or a simple conveyance of the grantor’s interest is the common form in which the transfer of real estate is made. ' A deed in that form is in such cases as effectual to divest and transfer a complete title as any other form of conveyance. There is in this country no difference, in their efficacy and operative force, between conveyances in the form of release and quitclaim, and those in the form of grant, bargain and sale. * * * If m either case the grantee takes the deed with notice of an outstanding conveyance of the premises from the grantor, or of the execution by him of obligations to make such conveyance of the premises or 'to create a lien thereon, he takes the property subject to the operation of such outstanding conveyance and obligation, and cannot claim- protection against them as a bona fide purchaser. But in either case, if the grantee takes the deed without notice of such outstanding conveyance or obligation respecting the property, or notice of facts which, if followed up, would lead to a knowledge of such outstanding conveyance or equity, he is entitled to protection as a bona fide purchaser upon showing that the consideration stipulated has been paid, and that
The Court of Appeals of this circuit has quite recently handed down an able and exhaustive opinion upon this question, in the case of Boynton v. Haggart, 120 Fed. 819, 57 C. C. A. 304, in which Mr. Justice Sanborn, speaking for the court (citing Brown v. Jackson, 3. Wheat. 449, 4 L.Ed. 432, and some