Hagensick v. Castor
| Decision Date | 19 January 1898 |
| Docket Number | 7750 |
| Citation | 73 N.W. 932,53 Neb. 495 |
| Parties | VESTA HAGENSICK, APPELLEE, v. TOBIAS CASTOR ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Saline county Heard below before HASTINGS, J. Affirmed.
AFFIRMED.
Griggs Rinaker & Bibb, for appellants:
The quitclaim deeds do not work an estoppel because they contained no covenants, and conveyed only the interest of grantors in the premises.
The quitclaim deeds work no estoppel, because the word "heirs," as used therein, evidently means children. (
The truth that grantors were not heirs at the time they made their quitclaim deeds appears in the record without objection and by solemn admission and stipulation of all parties. There is therefore no estoppel by virtue of the deeds. .)
J. H. Grimm and Hastings & McGintie, also for appellants.
Halleck F. Rose and Webster, Rose & Fisherdick, for appellee:
When a deed sets forth on its face by way of recital or averment that the grantor is seized or possessed of a particular estate, or where the seizure or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized of such estate at time of conveyance. The estoppel works upon the estate and binds an after-acquired title between parties privies.
The tenants derive title from a common ancestor, and having gone into a partition of the property on certain terms, by mutually releasing and conveying to each other certain allotments in severalty, the law annexes a warranty of title, from the fact that the transaction was a partition of a common estate, and as between the parties and privies this implied warranty is a complete estoppel against each of the other heirs to claim any estate in the portion set off in severalty to plaintiff.
Where lands are conveyed by deed, which ordinarily operates only to transfer vested interests, such as a quitclaim, or deed of bargain and sale, but it distinctly appears on the face of the deed that it was intended to transfer any future or expectant interest which the grantor might acquire, equity will treat the deed as an executory agreement to convey, and compel the grantor to convey the subsequently-acquired interest.
The opinion contains a statement of the case.
In 1875 George H. Ohler resided in Saline county, Nebraska, and was seized in fee-simple of a tract of land therein containing 280 acres. At this date Ohler left home and never returned, although he seems to have been heard from by members of the family from time to time. In June, 1887, his three children, Vesta Hagensick nee Ohler, James Ohler, and Electa Wheeler nee Ohler, partitioned among themselves the father's real estate. This partition was effected by quitclaim deeds executed by the children, one to the other, each of the deeds reciting that the grantor therein "being one of the three heirs of George H. Ohler." Each child took possession of that part of the real estate allotted to him under the partition. In 1891 the ancestor died, and soon after that two of his heirs, James Ohler and Electa Wheeler, conveyed to Tobias Castor by warranty deed all the real estate which the decedent owned in his lifetime, except eighty acres thereof. The Castor conveyance by its terms included the part of the decedent's estate allotted to Vesta Hagensick in the partition thereof made by the decedent's children in 1887. On the 8th of July, 1892, Castor deeded to one Rosamond B. Westervelt the lands conveyed to him by the two children, and on the same day Westervelt, by another conveyance, became invested with the title to the eighty-acre tract above mentioned which had been allotted to Electa Wheeler in the partition made of the father's real estate by his children in 1887. In the district court of Saline county Vesta Hagensick brought this action against Castor and others to have quieted and confirmed in her the title to the real estate allotted to her by the partition made thereof by Ohler's children in 1887. She had a decree as prayed and Castor and others have appealed.
1. The district court found, and the evidence sustains the finding, that the quitclaim deeds made by the children of George H. Ohler to one another in June, 1887, of his real estate were made and accepted by said children with the purpose and intent of effecting among themselves a voluntary partition and division of the lands of their father, they then believing him to be dead, and believing that they were then seized of said lands as his heirs at law; that each of said children entered into the possession of the portion of the lands allotted to him by the partition made thereof and held and occupied such lands in severalty to the commencement of this suit; that in each of said quitclaim deeds made by said children the grantor therein recited that he or she was one of the three heirs of George H. Ohler; that by such recital such grantor intended to define the estate conveyed to be an estate of inheritance vested in him as an heir at law of George H. Ohler. As a conclusion of law the court found that the said parties who had executed said quitclaim deeds, and all persons claiming through or under them, were, by reason of the recital in said deeds that the grantors therein were heirs of George H. Ohler, estopped to dispute that assertion, and consequently were estopped from claiming the title to such real estate, which had descended to said parties, as heirs of George H. Ohler on his death in 1891.
Was this conclusion of the district court correct? We think it was. The general doctrine undoubtedly is that an ordinary quitclaim deed vests only in the grantee such title or estate as the grantor was, at the time of the execution and delivery of the deed, possessed of; and that if a grantor in such deed subsequently acquires the title to the real estate thereby conveyed, that title does not inure to the grantee in the quitclaim deed. (Compiled Statutes, ch. 73, sec. 51, and cases hereinafter cited.) The conveyance made to Vesta Hagensick by her brother and sister in June, 1887, of the real estate in controversy was a quitclaim deed; the grantors in that deed had no title to the real estate which it attempted to convey and, therefore, Vesta Hagensick acquired no title by that deed. In 1887 George H. Ohler was still alive, and his two children who conveyed a part of his real estate to Vesta Hagensick were not then his heirs, and as such had no title to the real estate they attempted to convey; but the two children who made this conveyance to Vesta Hagensick subsequently thereto by the death of their father in 1891 became invested as his heirs with the title to two-thirds of all the real estate of which ...
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