This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
View,23 repudiating prior dicta in that court to the contrary. That the view favored by the later decisions works in favor of justice and the security of titles seems sufficiently apparent. That one takes a conveyance of the grantor's "right, title and interest" in certain property, rather than of the property itself, does not, as a matter of fact, ordinarily indicate that the purchaser intends to take, not a title such as appears on the records, but a mere chance of a title, subject to any unrecorded conveyances that may have been made by the grantor, and it does not seem desirable that the courts should, by reason of the use of that language, impute such an intention.
74 Tex. 453, 15 Am. St. Rep. 850, 12 S. W. 67.
17. See opinion of Field, J., in Moelle v. Sherwood, 148 U. S. 21, 37 L. Ed. 350; Babcock v. Wdlls, 25 R. I. 23, 105 Am. St. Rep. 848, 54 Atl. 596.
18. Rawle, Covenants for Title, Sec. 29. See Schott v. Dosh, 49 Neb. 187, 59 Am. St. Rep. 531, 68 N. W. 346; Babcock v. Wells, 25 R. I. 23, 105 Am. St. Rep. 848, 54 Atl. 596; Wilhelm v. Wilken, 149 N. Y. 447, 32 L. R. A. 370, 52 Am. St. Rep. 743, 44 N. E. 82.
The view expressed in some of the decisions upholding the priority of the subsequent quitclaim deed, that such a deed is in its operation and effect equivalent to a deed of grant or of bargain and sale,21 does
19. As, for instance, a conveyance of "Such interest only as they (the grantors) now have, whatever that may be." Virginia & T. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. 426. And see Mason v. Black, 87 Mo. 329; Stephen Putney Shoe Co. v. Richmond, F. & P. R. Co., 116 Va. 211, 81 S. E. 93; Eaton v. Trowbridge, 38 Mich. 454.
20. Brown v. Banner Coal Co., 97 111. 214, 37 Am. Rep. 103; Cook v. Smith, 107 Tex. 119, 174 S. W. 1094; Garrett v. Christopher, 74 Tex. 435, 15 Am. St. Rep.. 850, 12 S. W. 67; Cutler v. James, 64 Wis. 173, 54 Am. Rep. 603, 24 N. W. 874. And see Hooper v. Leavitt, 109 Me. 70, 82 Atl. 547; Schmittou v. Dunham, -Tex. Civ. App. - , 142 S. W. 941; Gallup v. Harding, 241 Fed. 858, 154 C. C. A. 560.
21. Robinson v. Clapp, 65 Conn. 365, 29 L. R. A. 582, 32 Atl. 939; Frey v. Clifford, 44 Cal. 335; Brown v. Banner etc., Co., 97 111. 214, 37 Am. Rep. 105; Babcock v. Wells, 25 R. I. 23, 105 not necessarily conflict with the view, above expressed, that it is a question as to what is the meaning of the language used. The courts rendering these decisions would hardly assert that a deed might not be so phrased as to pass only such rights as the grantor actually has, that is, to transfer merely a chance of the title, and these decisions merely assert in effect, it would seem, that the fact that a conveyance is in the ordinary form of a quitclaim deed does not of itself show an intention merely to relinquish such claim or title as the grantor may have. And the same may be said of the statutory provisions which are in force in some states, making a quitclaim deed equivalent to a deed of grant or bargain and sale.22 These do no more, it would seem, than create a presumption that such a deed is not to be given a limited effect. But a conveyance in terms of "such interest or title as I now have," though it might properly be denominated a quitclaim deed, would presumably, even in those states, not take priority over a prior unrecorded conveyance by the same grantor. Neither such a statute, nor a statute invalidating an unrecorded conveyance as against a subsequent purchaser, could well give priority to a person who undertakes to purchase merely what the vendor has not previously disposed of, and so give to the conveyance an operation not intended by the parties.
The tendency of the courts is no doubt in favor of the view that the purchaser under a quitclaim deed is entitled to protection as against a prior unrecorded deed, a tendency which has become much more marked since the United States Supreme Court adopted this
Am. St. Rep. 848, 54 Atl. 596; Southern Ry. v. Carroll, 86 S. C. 56, 138 Am. St. Rep. 1017, 67 S. E. 4.
22. See Chapman v. Sims, 53 Miss. 154; Smith v. Mcclain, 146 Ind. 77, 45 N. E. 41; Cutler v. James, 64 Wis. 173, 54 Am. Rep. 603, 24 N. W. 874. In Strong v.
Lynn, 38 Minn. 315, 37 N. W. 448, it was held that such a statute gave the grantee in a quitclaim deed the right to claim as a tona fide purchaser, a previous decision denying such right to him (Marshall v. Roberts, 18 Minn. 405) having been rendered before the adoption of the statute.
In some of the states, while priority is accorded to a bona fide purchaser holding under a quitclaim deed, the view has nevertheless been expressed that the fact that one accepts a quitclaim is evidence tending to show a lack of good faith.24-26 But, as is remarked above, it appears most questionable whether, as a practical matter, this can properly be regarded as indicative of bad faith.27
It has usually been assumed, and there are express decisions to that effect, that, even if the grantee in a quitclaim deed cannot claim protection as a bona fide purchaser, a purchaser from him for value holding under a warranty deed can so claim. That, in other words, one may be a bona fide purchaser although a quitclaim deed occurs in his vendor's chain of title.28
23. Moelle v. Sherwood, 148 U. S. 21, 37 L. Ed. 350.
24-26. Moore v. Morris, 118 Ark. 516, 177 S. W. 6; Ennis v. Tucker, 78 Kan. 55, 130 Am. St. Rep. 352, 96 Pac. 140; Schott v. Dosh, 49 Neb. 187, 59 Am. St. Rep. 531, 68 N. W. 386; Lowry v Brown, 1 Cold. (Tenn.) 456. See Mcdonald v. Belding, 145 U. S. 492, 36 L. Ed. 788; Mansfield v. Dyer, 131 Mass. 200; Boileau v.
Records & Breen, 165 Iowa, 134, 144 N. W. 336; Lasley v. Stout, 90 Kan. 712, 136 Pac. 249.
27. Ante, this section, note 18.
28. United States v. California & O. Land Co., 148 U. S. 31, 37 L. Ed. 354; Stanley v. Schwalby, 162 U. S. 255, 40 L. Ed. 960; Meikel v. Border, 129 Ind. 529, 29 N. E. 29; Winkler v. Miller, 54 Iowa, 476, 6 N. W. 698; Hannan v. Seidentopf, 113 Iowa,