Wilhelm v. Wilken

have been no decision by this court upon precisely such a case as is here presented; nevertheless, there are decisions to the effect that deeds which “ remise, release and quit claim ” are operative as a conveyance of land by way of bargain and sale. Such are, for instance, the cases of Lynch v. Livingston (6 N. Y. at p. 434) and Striker v. Mott (28 id. at p. 92), which rested upon the authority of the early case of Jackson v. Fish ( 10 Johns. 456 ). This latter case did away with the strictness, in which a release or quit claim had been sometimes regarded. In Sparrow v. Kingman ( 1 N. Y. 242 ), it was assumed in the opinion that an ordinary quit claim deed might be used to pass the fee to an estate; so that whatever the interest or estate of the grantor, whether that of tenant for life, or years, or a fee, it would pass by such a conveyance. But the provisions of the Revised Statutes should make the matter perfectly clear. “ Deeds of bargain and sale and of lease and release may continue to be used and §hall be deemed grants; and, as such, shall be subject to all the provisions of this chapter concerning grants.” (1 R. S. 739, § 142.) The requirement of the Recording Act, (1 R. S. 756, § 1), is that every conveyance of real estate shall be recorded in the office of the clerk of the county where it is situated, and if not so recorded it shall be void as against any subsequent, purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded. Section 38 of the chapter prescribes that “the term ‘ conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing, by which any estate, or interest in real estate, is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or in equity.” The elasticity of the term “ conveyance ” thus appears to be quite sufficient to comprehend a grant by way of quit claim, or of bargain and sale.

The argument for the defendant is that the unrecorded deed from Tall man to Page was a valid conveyance and that Pen-field, as grantee under Tallman’s quit claim deed, has no better

right to the possession of the property than her grantor had, and as he had none, at the time of the delivery of the quit claim deed, there was nothing for it to grant. I fail to see the relevancy, or importance, of the argument, when considering the purpose and scope of the recording statute; which is designed, obviously, to afford protection to purchasers, in good faith and without notice, from those having an apparent title to land. In the cases in the United States Supreme Court of May v. LeClaire (11 Wallace, 211, 232) and Villa v. Rodriguez (12 id. 323, 338 ), it was, indeed, suggested that one who acquires his title by quit claim deed cannot be regarded as a bona fide purchaser without notice and that, as the conveyance by such a deed would pass the title as the grantor held it, the grantee would take only what the grantor could lawfully convey. The expression of such an opinion in those cases was unnecessary for their decision and nothing was, in fact, decided against the competency of quit claim deeds to convey interests in lands. They were based on the case of Oliver v. Piatt (3 How. U. S. 333); but that case did not go to any further extent, with reference to the question of the validity of a quit claim deed as a conveyance, than to point it out, in connection with other facts in the case tending to show notice, as a significant circumstance. Mr. Eawle, in his work on Covenants (4th ed. p. 35), justly criticizes Oliver v. Piatt and observes, in answer to the suggestion in the decision, that a deed with general warranty might as well be regarded as a “ significant circumstance; ” for, unless there had been something wrong about the title, the purchaser would not have demanded a general covenant, and he must have intended to rely upon it for his protection. These cases and others in the state courts, to which the appellant refers, and which I have examined, not because they can be authoritative, but for the purpose of investigation, do not go quite so far as the appellant would have us believe; except in the one case, of Marshall v. Roberts ( 18 Minn. 405 ), where a contrary view of the question seems to have been- taken. The Supreme Court of Iowa, while holding that a quit claim deed would not protect a pur

chaser from one whose title was tainted, by fraud, seems to have held, under the recording statutes in that .state, that a purchaser acquiring title by quit claim takes precedence of one holding under a prior but unrecorded deed, of which he had no notice. (Springer v. Bartle, 46 Iowa, 688 ; Pettingill v. Devin, 35 id. 344.) In the Texas case of Thorn v. Newsom (64 Texas, 161), the question appears to have been raised ; but it was left undetermined. The distinction, however, was made there between a contract calling for the sale of the vendor’s interest in the land, or, as it is termed, “ chance of title,” and one calling for a conveyance of the land as distinguished from a release of the vendor’s rights. The intimation from the decision is that, if there was a conveyance intended, the bona fide purchaser would be protected. In the Missouri case of Ridgeway v. Holliday ( 59 Mo. 444 ), the title of the holder by quit claim deed from the holder of the record title was actually affected, because of his having notice of facts respecting the title of the true owner of the land.

On the other hand, there are many decisions by the state courts, to the effect that the holder of the quit claim deed is entitled to be regarded as a bona fide purchaser and to be protected against a prior, but subsequently recorded, deed. (Brown v. Banner Coal, etc., Co., 97 Ill. 214 ; Chapman v. Sims, 53 Miss. 154 ; Cutler v. James, 64 Wis. 173 ; Shotwell v. Harrison, 22 Mich. 410 ; Graft v. Middleton, 43 Cal. 341 ; Willingham v. Hardin, 75 Mo. 429 .) The recording statutes in these different states are very similar to, if not substantially the same as, the New York statute; and the effect of the decisions is to make a deed of real estate by quit claim as operative to transfer title, as would be a deed of bargain and sale and to hold that the prior recording of such a deed would give it a preference over one previously executed and delivered, but which was subsequently recorded.

The practice of transferring title to real estate through quit claim deeds has not been uncommon in this state, and, in the absence of any facts creating a suspicion as to the transaction of transfer, there is nothing especially significant in the use of

such a mode of conveyance. The point is, what is effected by the deed; and where, as in the present case, the subject of the release and quit claim is a certain particularly described property with all the appurtenances and all the estate, right, title and interest of the grantor, with “ habendum ” to the grantee, her heirs and assigns, forever, a conveyance of the real estate, within the meaning of the act, is evident. The terms of such ■a deed imply that Tallman professed to have an interest in the premises, which he could convey, and it is the duty of the ■court to so construe a deed, purporting to convey land for a valuable consideration, as to give effect to the intentions of the parties, and to hold it to be a conveyance of the land.

I think the judgment of the General Term should be affirmed, with costs.

All concur.

Judgment affirmed.