Schott v. Dosh

Decision Date16 September 1896
Docket Number6629
CourtNebraska Supreme Court

APPEAL from the district court of Nuckolls county. Heard below before HASTINGS, J.


John H Ames and E. F. Pettis, for appellant.

Montgomery & Hall, contra.


See opinion for references to authorities.


This action was by Schott against L. P. Dosh, J. R. Dosh, and James K. O. Sherwood, to quiet title to land described as the west one-half of section 31, township 3 north, of range 8 west, in Nuckolls county. The only defendant to answer, and the only one referred to in the decree, is Sherwood, and it is not necessary to consider any rights except those existing as between him and the plaintiff. It is conceded that a patent was issued conveying the land in controversy to George L. Bittenger. The plaintiff claims under a deed from Bittenger and wife to him, dated June 23, 1870. This deed was not, however, recorded until June 23, 1890, and was not even then entitled to record for want of a certificate of acknowledgment. Sherwood deraigns his title as follows: A quitclaim deed from Bittenger and wife to L. P. Dosh, dated August 22, 1882, recorded September 19, 1882. Warranty deed from L. P. Dosh and wife to J. R. Dosh, dated October 27, 1882, recorded November 20, 1882. Warranty deed from J. R. Dosh and wife to Sherwood, dated January 13, 1883 recorded April 24, 1885. Subsidiary to the latter chain of conveyances are certain tax deeds, followed by conveyances to L. P. Dosh and Sherwood by the grantees named therein. While these tax deeds are material on the question of evidence hereinafter discussed, it is conceded that they are on their face void and may be excluded in tracing the title. On appropriate pleadings, the answer of Sherwood praying for cross-relief, the court found generally in favor of Sherwood and entered a decree quieting title in him. From this the plaintiff appeals.

The questions presented by the record are as follows: First--Does a quitclaim deed, properly recorded, in favor of one who purchases in good faith and without notice of a prior unrecorded conveyance, take precedence of such conveyance? Second--If so, does the evidence in this case sustain the finding of the trial court that Sherwood was such a bona fide purchaser without notice? Third--If the first question should be answered in the negative, are subsequent grantees under deeds of warranty subject to outstanding equities because of a remote quitclaim deed in their chain of title? On the authority of Snowden v. Tyler, 21 Neb. 199, 31 N.W. 661, the case might probably be solved in favor of the defendant on the last question, regardless of the others; but for several reasons we shall consider the first two stated. One reason is that while the first question has several times been brought to the attention of the court, the cases have always been complicated by facts which have rendered an authoritative decision impossible, and the dicta which have been expressed have not served to remove the generally prevailing doubt on this question of very apparent practical importance. The second reason is that in many, and in fact all the earlier, cases holding that the grantee under a quitclaim deed is not in such case entitled to protection the reason given is that such a deed does not purport to convey the fee or even limit the estate, but merely to release any claim which the grantor may have. If this reason be well founded, then it seems illogical to hold that a remote grantee obtains any greater title than the immediate grantee, both claiming through a deed which purports to convey the same interest. We shall direct our attention, therefore, to the first question, and in the first place to a consideration of the former expressions of this court.

In Lincoln Building & Savings Association v. Hass, 10 Neb. 581, 7 N.W. 327, it was said: "The effect of this quitclaim deed was only to pass the naked legal title, and changed no equities of the parties." A consideration of the case discloses that no interest whatever appeared of record or otherwise in the grantor, a deed whereby it was intended to convey an interest by mistake omitting the land in controversy from the description. The question was between the grantee under the quitclaim deed and a mortgage from the same grantor. No protection was claimed under the recording acts and the decision was wholly foreign thereto. We refer to the case only because it is cited in argument, and because it has been several times cited as supporting the doctrine that the grantee under a quitclaim deed is not protected.

In Hoyt v. Schuyler, 19 Neb. 652, 28 N.W. 306, it was held that there was a record of the prior deed sufficient to impart notice. It was also stated that it neither was alleged in the petition nor claimed in the brief that the appellant was a bona fide purchaser. Therefore, the following statement of the court was merely obiter, that "the form of the conveyance repels the inference of a bona fide purchaser;" as was also the further statement that the plaintiff "merely took the interest of Carter, and as he had previously conveyed all his right, title, and interest in the lot, the grantee under the second deed took nothing." Nevertheless, the court, evidently for the purpose of preventing these obiter dicta from being taken as announcing an absolute rule, added that "a party who claims title under a quitclaim deed from one who had formerly conveyed his title to another, and the effect of which will be to deprive the first grantee of his title, must make a clear case of bona fides on his part before his title will be sustained."

In Snowden v. Tyler, 21 Neb. 199, 31 N.W. 661, remote grantees under a deed of quitclaim were protected. It was claimed that the quitclaim deed passed no title and that therefore none passed under deeds from the grantee therein. The court said: "The rule, no doubt, is that a person who purchases of another real estate, and receives a quitclaim deed only therefor, is bound to inquire and ascertain at his peril what outstanding equities exist, if any, against the title. * * * We are not prepared to hold, however, that a quitclaim deed, where the grantor has already conveyed, will not in any case convey title. * * * It is the policy of the law that titles to real estate shall become matters of certainty as far as possible, and that one who acts in good faith in purchasing, and pays the value of the property, shall be protected in his purchase." The court therefore put the protection of remote grantees not upon the illogical ground that while a quitclaim deed purports to and does only pass the grantor's estate, the magic of a covenant of warranty in a subsequent deed will enlarge that estate beyond what the first deed purports to convey, but the conclusion was placed upon the logical ground that one who finds a complete chain of conveyances to his grantor, without apparent defects and without notice of outstanding equities, and who pays value, will, under the recording acts, be protected. This logic applies as well to immediate grantees as to a remote grantee.

In Lavender v. Holmes, 23 Neb. 345, 36 N.W. 516, the subject was again considered, many of the cases reviewed, and the conclusion reached that "while we concede it to be the general rule as stated by the authors above cited, that a purchaser who acquires title by a quitclaim deed is not a bona fide purchaser without notice of existing equities, yet we think it is sufficiently shown that there are exceptions to this rule, and that this case falls within the exception." This was not, however, a case involving a construction of the recording acts.

In Pleasants v. Blodgett, 32 Neb. 427, 49 N.W. 453, the language already quoted from Hoyt v. Schuyler, supra, to the effect that a conveyance by quitclaim "repels the inference of a bona fide purchaser," was repeated; but the holding of the court was that the grantee had actual notice of the adverse claim. This was also the doctrine of the court on the rehearing of the same case (39 Neb. 741).

A case much relied on by the appellant is Bowman v. Griffith, 35 Neb. 361, 53 N.W. 140; but a careful examination of the case convinces us that it is entirely without application. It is true that one of two reasons given for not holding that an estoppel in pais existed against a grantor was that the grantee had accepted a quitclaim deed; but no question was involved of the construction of the recording act, and the reasons for enforcing an estoppel in pais, which would produce an effect equivalent to a covenant for title, are quite different from those which control the construction of the recording act. The case was very complicated in its facts, and we cannot hope to state it more briefly than it is stated in the lucid language of the author of the opinion. Space does not permit that we should repeat this statement to show the inapplicability of the case. Suffice it to say that the question there presented was whether one who had accepted a deed containing recitals showing that it was made to correct a former deed purporting to convey land which had in fact been conveyed to another person, could set up title as against that other person, and contrary to the terms of the deed which he had accepted.

The foregoing review we think shows that while the court has expressed itself to the effect that a quitclaim deed passes no more than the grantor's present interest, this expression has been used to state a general truth and not as a construction of the recording act, and that so far as concerns the rights of a grantee under a quitclaim deed by virtue of the recording act, the court, while intimating that the tender of a...

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  • Schott v. Dosh
    • United States
    • Nebraska Supreme Court
    • September 16, 1896
    ...49 Neb. 18768 N.W. 346SCHOTTv.DOSH ET AL.Supreme Court of Nebraska.Sept. 16, Syllabus by the Court. The holder of a quitclaim deed, properly recorded, who purchased in good faith, and without notice of a prior unrecorded conveyance, takes the title, in preference to the grantee under such u......

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