Cook v. Smith

• Court: Texas Supreme Court
• Writing for the Court: Phillips
• Citation: Cook v. Smith, 174 S.W. 1094, 107 Tex. 119 (Tex. 1915)
• Decision Date: 31 March 1915
• Docket Number: (No. 2409.)
• Parties: COOK et al. v. SMITH.

174 S.W. 1094

COOK et al. v. SMITH.

(No. 2409.)

Supreme Court of Texas.

March 31, 1915.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Trespass to try title by J. M. Smith against H. P. Cook, in which defendant vouched in A. A. Neff as grantor on his warranty. There was a judgment of the Court of Civil Appeals (142 S. W. 26), reversing a judgment for defendant and rendering judgment for plaintiff against defendant, and reversing judgment on cross-bill, adjudging that defendant should take nothing thereon, and remanding for new trial, and defendant and A. A. Neff bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

R. D. Browne, of Paducah, O. T. Warlick, of Vernon, and Whatley & Hawkins, of Paducah, for plaintiffs in error. Fires & Diggs, of Childress, and Crosby & Hamilton, of Greenville, for defendant in error.

PHILLIPS, J.

The suit was instituted by the defendant in error, J. M. Smith, against H. P. Cook, one of the plaintiffs in error, in trespass to try title, for the recovery of a lot in the town of Paducah. Cook answered with a plea of not guilty; that he was a bona fide purchaser of the lot, for value, without notice of any adverse claim; and improvements in good faith, vouching in A. A. Neff, the other plaintiff in error, his grantor, upon his warranty, and seeking recovery over against Neff on account of his improvements. Neff answered by a plea of not guilty, and that he was an innocent purchaser of the property from R. Potts, the common source of title. The trial of the case before the court resulted in a judgment denying any recovery to Smith, quieting Cook's title to the property, and denying the latter any relief on his cross-action against Neff. This judgment was reversed by the honorable Court of Civil Appeals, upon the ground that the deed from Potts to Neff was merely a quitclaim deed, and therefore incapable of sustaining the defense of an innocent purchase of the property, and judgment rendered in Smith's favor for the lot and the recovery of a certain amount as rents, the cause being remanded for trial as between Cook and Neff upon the issues arising on the former's cross-bill.

R. Potts duly conveyed the lot to Smith by warranty deed, dated September 21, 1906, but not recorded until September 29, 1909. The deed from Potts to Neff was of date August 31, 1909, and recorded the same day. Cook holds under that deed by subsequent conveyance from Neff, by deed of date September 3, 1909, recorded the same day. The case turns upon the legal effect of the deed from Potts to Neff, since if that was merely a quitclaim deed, Cook's plea of innocent purchaser failed, and Smith was accordingly entitled to recover the property. Omitting the description, the deed from Potts to Neff was in the following terms:

"State of Texas, County of Cottle.

"Know all men by these presents, that I, R. Potts, a single man, of the county of Cottle and state of Texas, for and in consideration of the sum of $2,500.00 to me cash in hand paid, by A. A. Neff, of San Bernardino county, state of California, the receipt whereof is hereby duly acknowledged and confessed, have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, unto the said A. A. Neff, of San Bernardino county, state of California, and his heirs and assigns, all my right, title and interest in and to that certain tracts or parcels of land lying and being situated in the county of Cottle, and state of Texas, and known and described as follows, to wit:

"[Here follows description by block and number of a large number of lots, including the lot in controversy; also several small tracts by metes and bounds.]

and all other real estate that I now own and am possessed of in the town of Paducah, in Cottle county, Texas. All of the above town property is situated in the town of Paducah, in Cottle county, Texas, as shown by the original recorded plat of said town, of record in vol. 5, page 81, in the deed records of Cottle county, Texas; and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle county, Texas, whether it is set out above or not.

"To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof.

"Witness my hand at Paducah, Texas, on this the 31st day of August A. D. 1909.

                       "[Signed] R. Potts."
                

The character of an instrument, as constituting a deed to land or merely a quitclaim deed, is to be determined according to whether it assumes to convey the property described and, upon its face has that effect, or merely professes to convey the grantor's title to the property. If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed. Richardson v. Levi, 67 Tex. 364, 3 S. W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757.

The intention of the instrument is to be confined, of course, to that which its terms reveal; but it should be considered in its entirety, and if, taken as a whole, it discloses a purpose to convey the property itself, as distinguished from the mere title of the grantor, such as it may be, it should be given the effect of a deed, although some of its characteristics may be those of a quitclaim deed. The use of the term "quitclaim" is not, of itself, a conclusive test of its character. It may make use of that term and yet have the effect of a conveyance of the property. Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St....