89 Iowa 468 | Iowa | 1893
A controlling question in the case seems to be as to the effect of the condition of the title to the land in Dickinson county. The fact is beyond question, independent of the record, that the title, as it rested in Ferguson, was in trust for the heirs of Robert Irwin, and that, as such heirs, Ella Irwin Chase, defendant, owned an undivided one half, and the children of Eliza J. Marston the other half, which, upon the conveyance by Laura M. and Ella C. Marston of their interest, vested Robert I. Marston with an undivided one half; and this is what he actually owned when he conveyed his interest to the plaintiffs. It will be well to now notice the language of the deed as to what it purports to convey. It is as follows:
“Party of the first part, for and in consideration of the sum of one dollar, * * * has granted, bargained, sold, aliened, demised, released, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, demise, release, convey, and confirm, unto the parties of the second part, to their' heirs and*472 assigns, forever, all of the right, title and interest of the party of the first part in and to the west half,” etc. (here follows balance of description of premises), “ hereby releasing and waiving all his right under the homestead exemption laws of the said state of Iowa, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or. in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the first part, in and to the above described and mentioned property, and every parcel and part thereof, with the appurtenances; to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, forever.”
The deeds from Chase to Ella O. Irwin, from her to Ferguson, and from him to the heirs, each conveys the interest of the grantor without any specification whatever as to what the interest is. Whatever might be the legal construction upon the language used, the deeds were evidently, at the time of execution, intended by the parties as quitclaim deeds. It should be here stated that each of the deeds referred to from Chase to Robert I. Marston, on its face, purported to convey to the grantee named therein, in his or her own right, the interest specified in the deed; that is, there were no words indicating a trust or representative relationship. It should also be stated that nothing in any conveyance indicates, nor is it in any way apparent of record,, that Robert Irwin in his lifetime, or that his estate, was possessed of the land. The evidence as to such interest is exclusively by parol.
There is a dispute of fact as to whether or not Marston, pending the negotiations, represented- his
If the decree below is to be sustained, the legal effect is to take a one fourth interest belonging to the defendant Ella Irwin Chase from her, and give it to the plaintiffs, because of the conveyance to them by Robert I. Marston of his interest. Independent of the record, there could be no claim that the deed by Mars-ton conveyed more than his actual interest, for that is all it purports to convey, conceding it to be more than a quitclaim deed. The appellees’ position, then, is that, having purchased Marion’s interest, they had a right to rely on the record for the extent of such interest, which is three fourths. There are no facts in the case because of which Ella Irwin Chase should be bound by the transaction between Marston and the plaintiffs; that is, no fault is attributable to her by which the plaintiff firm was induced to make the purchase, except, perhaps, that of permitting the records to show as they did. With a careful review of the authorities cited, we find none sustaining a rule that where one party conveys to another his interest in land, without any specification of a particular interest, the law will infer the extent to be that indicated by the public records. This deed does not purport to convey an interest “as indicated by the records..” As to the extent of the interest, the deed is not more comprehensive than a quitclaim deed, for it contains precisely the same limitation, being “all of the right, title, and interest” only of the grantor. The deed is, in legal effect, a refusal to fix an extent' of interest, and is accepted with such conditions. If to the granting clause of the deed were added those of seizin and war
In Hoxie v. Finney, 16 Gray, 332, there was a conveyance by the defendant of “all his right and title” to certain described premises. The deed contained “covenants that he was lawfully seized in fee of the afore-granted premises; that they were free of all incumbrances, that he had good right to sell and convey the same; and that he would warrant and defend them to the grantees,” etc. The action was of contract upon the covenants of warranty, after ejectment under a mortgage lien, and a recovery was denied, the court saying: “A deed of all my right, title, and interest in certain real estate purports to convey merely such right as the grantor had in the land; and, as the grantor conveys his own title only, the general covenants of seizin, * * * and that he will warrant and defend the same against the lawful claims and demands of all persons, are all qualified and limited by the granting clause.” That deed is as comprehensive in all respects as the one from Marston, and, in many respects, much more so, and it is there held that the express language of seisin in the deed will not so enlarge or modify the granting clause as to impress the instrument with an intent to convey, an absolute interest. See, to the same effect, Cummings v. Dearborn, 56 Vt. 441; Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Metc. (Mass.) 175; Bowen v. Thrall, 28 Vt. 382; Brown v. Jackson, 3 Wheat. 449. In Knight v. Campbell, 76 Iowa, 730, in a conveyance, the granting words >are as follows: “Have remised, released, sold, and conveyed and quitclaimed, and by these presents do remise, release, convey, sell, and quitclaim, * * * all the right, title, and interest, claim, and demand, which the said party of the first part have,” etc. It is said in the opinion: “It is very apparent, we think, that this instrument is a mere
This court has, in one or two cases, said that where, in addition to the word “quitclaim,” the words “sell and convey” are used in a conveyance, it is not a “mere quitclaim deed.” Sibley v. Bullis, 40 Iowa, 429; Willson v. Irish, 62 Iowa, 260. Without commenting on the significance of the language there used, it is sufficient to say that the expressions 'in no way militate against the rule of the cases cited. It is sufficient to say that the recording act was designed to protect “purchasers for a valuable consideration without notice,” but only to the extent that they are purchasers. It is not the office of the act to in any way enlarge or change the intent of the parties. In this case the intent was, as we have seen, to convey the interest of Marston, and not more. That was a one half interest. The cause will be remanded to the district court for a confirmation of shares on that basis, and the lien of the defendant Nathaniel P. Rogers, Sr., will attach to the share of the plaintiffs. Revebsed.
