27 Mont. 143 | Mont. | 1902
delivered'the opinion of the court.
This action was brought to quiet title in the plaintiff to the Northwest lode mining claim, and to obtain a decree requiring the defendants to convey the property to the plaintiff. Erom an order refusing the plaintiff a new trial, and from the judgment, these appeals are prosecuted.
The following facts are conceded: Michael McDermott, whose administrator is one of the defendants, owned the Northwest lode claim (not patented) in 1889, and in that year he and others organized the plaintiff corporation, which, on August 14, 1889, purchased the claim, paying to McDermott therefor a part of its capital stock. In the granting clause of his deed, McDermott “granted, bargained, sold, remised, released, and forever quitclaimed” the Northwest lode mining claim* In the habendum and tenendum clause is the following covenant: “It is expressly covenanted that it is intended hereby to convey any and all right, title, interest and estate which may hereafter be acquired to said premises, or any part thereof, by virtue of any patent which may hereafter be issued by the United States government therefor under the proceedings heretofore instituted in that behalf.” It does not appear that a patent was ever issued. Upon the delivery of the deed the plaintiff took possession, and expended $4,000 in working the claim. In June, 1890, the
The contested questions of ultimate fact are: (1) Had the
Did tbe deed from McDermott to tbe plaintiff convey to it tbe title thereafter acquired by him from Brogan, or estop him from asserting, as against tbe plaintiff, tbe title obtained from Brogan? Did tbe title obtained by McDermott from Brogan inure to tbe plaintiff by virtue of any trust relation between Mc-Dermott and tbe plaintiff ?
Tbe rule of tbe common law is tbat when a deed of land contains a covenant of warranty or representation, express or implied, of title, particular or general, in the grantor, who bad not then tbe title so warranted or represented, but afterwards acquires it by descent or purchase, such subsequently acquired title instantly inures to tbe benefit of tbe grantee. Tbe grantor is estopped from asserting such title in bimSelf as against bis grantee; be is not permitted to contradict tbe terms of tbe deed by saying tbat be did not have tbe title which be íepresened or covenanted was his. So tbe practical effect of tbe estoppel is to invest the grantee with tbe title formally acquired by tbe grantor. This doctrine rests altogether upon tbe ground of es-toppel. Except in so far as it bad been modified by statute, it was in force in Montana when tbe deeds in the case at bar were made. Now, at tbe common law, tbe words “grant, bargain and sell,” as they did not imply a covenant of warranty or rept-
Provided it does not negative the validity or impair the efficacy of the title which he purported to' convey, or violate the covenants in his deed, the grantor, may acquire a title subse1-quently, and assert it against his grantee. (3 Washburn on Real Property (6th Ed.), p. 110, Sec. 1933; Tiedeman on Real Property, p. 551, Sec. 727, and cases there cited.) The purpose of the rules referred to is not to deprive the grantor of the right to become the owner of the property which he has conveyed. Abandonment was equivalent in effect to a deed by the plaintiff
Tbe evidence was sufficient to justify tbe findings, and tbe
The judgment and the order overruling the motion for a new trial áre affirmed.
Affirmed.