14 S.D. 169 | S.D. | 1900
This is an action to quit title to a quarter section of land alleged to have been conveyed by the defendant, Emma Kemmerer, and her husband, Abram Kemmerer, to John L. Lockhart, as trustee for the plaintiff. The deed is set out in the complaint, and the granting clause is as follows: “Do hereby convey, grant, remise, release, and quitclaim unto John L. Lockhart, trustee for the state of South Dakota, and to his assigns forever, all the [their] right, title, estate, interest, property, and equity in and to the following real property.” The complaint then alleges that prior to the time of the execution of said deed a mortgage had been executed upon said premises by the defendant and her husband, that said mortgage had been foreclosed by advertisement, and that the certificate of sale had been assigned to the defendant, and the defendant claims some
We are inclined to the opinion that the defendant is right in her contention. It is true that the word “grant” is used in the conveyance, but it is qualified by the terms “remise, release, and quitclaim,” as well as by the words “right, title, estate, interest, property, and equity in and to the following real property.” It will be noticed that by section 3249 it is provided that, from the “use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple is to be passed,” certain covenants are implied, and that by subdivision 4 of Section 3254 it is provided that where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title thereto, the same passes by operation of law to the grantee. It is not sufficient, therefore, that the instrument contain the word “grant,” but it must purport to convey the property itself in fee simple. This the deed in controversy in this case does not purport to do. Upon its face it only purports to quitclaim to the state the right, title, and interest that the defendant had in the property, and contains no covenant of warranty. In Derrick 7. Brown, 66 Ala. 162, the supreme court of that .state, in speaking of a similar deed, uses the following language: “The deed is by Stephens and wife, and is without express covenants of warranty. Its granting clause is ‘do bargain, sell, and quitclaim unto the said Derrick, and to his heirs and assigns forever, all our, and each of our, right, title, interest, estate, claim, and demand, both at law and
Counsel for the state have cited in support of their position a large number of authorities, most of which we have examined; but in the view we have taken of the deed in this case, we have not deemed it necessary to review them. Holding, as we do, that the deed in controversy is a quitclaim deed, the defendant was not precluded