35 Kan. 471 | Kan. | 1886
The opinion of the court was delivered by ■
This was an action brought by Joseph W. Redden against Mrs. A. J. Hentig and others, in the nature of
• The first question is, whether the -judgment rendered in favor of the plaintiff below is correct. It appears from the record that on August 20, 1869, the title to the lots in controversy was in T. P. Rodgers and A. K. Rodgers. On October 7, 1870, T. P. and A. K. Rodgers conveyed, by warranty deed, the lots to Jacob J. Puterbaugh, of the city of Logansport, state of Indiana. On August 22,1883, Jacob J. Puterbaugh and wife conveyed by quitclaim deed the lots to Joseph W. Redden, the consideration for the conveyance, recited in the deed, being $120, although Redden testified upon the trial that he paid $225. After the lots had been conveyed to Puterbaugh by the Rodgerses, and prior to the convéyance to Redden by Puterbaugh, and on March 1, 1878, Puterbaugh executed, under the laws of Indiana, a deed of assignment of certain real and personal property to James H. Brinkhurst, in trust for the benefit of creditors Puterbaugh intended in such assignment to convey all of his real and personal property, and among other real estate, the lots in dispute, but by mistake of the scrivener other lots in the city of Topeka, to which Puterbaugh had no title, were inserted in the deed of assignment, and lots 408, 410, 412, and 414, on Clay street, were therefore wholly omitted. The property transferred by Puterbaugh to his assignee, Brinkhurst, failed to pay the debts of the creditors, only fifty cents on the dollar being realized by them for such purpose. Prior to the conveyance by Puterbaugh and wife to Redden, the deed of assignment had never been recorded in the office of the register of deeds of Shawnee county, nor any steps taken to correct the misdescription in the deed, or to subject the lots conveyed to Redden to the possession of Brinkhurst, the assignee of Puterbaugh.
On the part of Mrs. Hentig it is insisted that Eedden cannot be regarded as a purchaser in good faith, for the reason that he holds under a quitclaim deed. Therefore it is insisted that he is charged with notice of all the equities of Brinkhurst, the assignee of Puterbaugh. On the part of Eedden it is urged that a quitclaim deed is as effectual to convey title as one with general warranty, and that there is no distinction between a quitclaim and a warranty deed,- as affecting the holder with notice, or putting him on inquiry. The authorities are conflicting, whether a quitclaim deed gives one who claims under it the rights of a bona fide purchaser without notice. That it does, see Martindale on the Law of Conveyancing, §§59, 285; Graff v. Middleton, 43 Cal. 341; McConnell v. Read, 4 Scam. (Ill.) 117; Fash v. Blake, 38 Ill. 363; Bradbury v. Davis, 5 Col. 265; Chapman v. Sims, 53 Miss. 154. That it does not, see Baker v. Woodard, 6 Pac. Rep. 173; Gress v. Evans, 1 Dak. 387; Hoyt v. Schuyler, 28 N. W. Rep. 306 ; Oliver v. Piatt, 3 How. (U. S.) 333; Marshall v. Roberts, 18 Minn. 405; May v. Laclaire, 11 Wall. 217; Rodgers v. Burchard, 34 Tex. 441; Springer v. Bartell, 46 Iowa, 688; Stoffel v. Schroeder, 62 Mo. 147; Battershall v. Stevens, 34 Mich. 68;
This question, so forcibly discussed in the briefs, need not, however, be decided; and therefore we purposely refrain from expressing our opinion at this time thereon.
All-of the authorities agree that a purchaser under a quitclaim deed takes such interest or title in the premises conveyed as the grantor may lawfully convey, and therefore acquires by such a deed all the rights that the grantor had in the premises at the time of the conveyance. On August 22, 1883, when Puterbaugh and wife executed their conveyance to Redden, Puterbaugh had the legal title to the premises conveyed. This title, at least, Puterbaugh transferred and conveyed to his grantee, Redden. As the holder of the legal title, Redden had a better right to the possession of the premise^ than Mrs. A. J. Hentig, claiming under a tax deed not barred by the statute of limitations, and founded upon an invalid tax sale. Mrs. Hentig does not represent Brinkhurst, the assignee of Puterbaugh, nor the creditors of Puterbaugh. Her interest, if any, is wholly adverse to all of these parties. On the other hand, if neither Brinkhurst, the assignee of Puterbaugh, nor the creditors of Puterbaugh, choose to disturb Redden in his title, the latter’s title is conclusive against the world.
Again, the action of Redden, if it be conceded that he cannot be called a bona fide purchaser under his quitclaim deed, is not adverse to the interests of Brinkhurst, the assignee of Puterbaugh, or the creditors of Puterbaugh. If they are the equitable owners of the property—which we do not decide — their interests are much better protected by the possession of the premises being given to Redden, as the holder of the legal title, than to Mrs. Hentig, under a tax deed which might, perchance, by possession, ripen into a perfect title. The question whether a purchaser who takes by a quitclaim deed is affected by prior equities, might become material in an action between Brinkhurst, the assignee of Puterbaugh, and Redden, but does not arise in this case, between Mrs. Hentig,and Redden. Here, notice of prior equities is wholly unimportant.
Eedden has filed a cross-petition, asking the judgment to be so modified as to reduce the amount of taxes, interest and costs to $100. The record purports to contain all of the testimony produced upon the trial. The only evidence in the record of the payment of taxes is embraced in two tax deeds. One tax deed is dated May 9, 1877, and the other tax deed is dated September 30,1882. According to our computation, allowing interest at fifty per cent, to the date of the first tax deed, the evidence shows only $86.51 as a lien for taxes, charges, etc. If, however, Mrs. Hentig is allowed fifty per cent, to the date of the tax deed of September 30, 1882, according to our computation only $109.48 is to be repaid for taxes, etc. If Mrs. Hentig claims as an occupying claimant, or otherwise, under the first tax deed recorded by her, she can only claim interest at fifty per cent, upon the taxes paid by her to the date of that deed, and twenty per cent, thereafter. If, however, she has waived all rights which might otherwise be claimed under the first tax deed, she will be entitled to the full amount of all taxes paid on such lands, with interest at fifty per cent, and costs as allowed by law up to the date of the second tax deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent. per annum, after the date of said deed, together with all subsequent taxes paid by her, and interest thereon at the rate of twenty per cent, per annum. (Comp. Laws of 1879, ch. 107, § 142.) ’
As the evidence does not support the amount of the lien for taxes, charges, etc., which Eedden was adjudged to pay to Mrs. Hentig, that finding must be set aside.