Wholey v. Cavanaugh
Before: Hayne
Synopsis
Deed — Quitclaim—Operative Words.—The usual operative words o£ a quitclaim deed are “ remise, release, and quitclaim.” But all of these are not essential. The words “hath and hereby doth release and forever quitclaim ” are sufficient to constitute a quitclaim deed.
Deed — Quitclaim — Effect — Title. — A quitclaim deed passes whatever title the grantor has at the date of its execution.
Deed —-Quitclaim — Effect — Covenant of Further Assurance. — The effect of a quitclaim deed in passing the title is not destroyed by a covenant of further assurance inserted therein. Instance.
Deed — Quitclaim — Effect—School-land — Certificate of Purchase — Paten® — Relation Back — After-acquired Title. —While a quitclaim deed does not ordinarily pass an after-acquired title, yet when the holder of a certificate of purchase, on which twenty per cent has been paid, makes a quitclaim deed of his interest in the land, and subsequently obtains a patent, the title conveyed by the patent relates back to the inception of the proceedings, and in this way passes to the grantee in the quitclaim deed without any subsequent conveyance from the patentee.
Hayne, C. Ejectment. Judgment for defendant. Plaintiff appeals.
Both parties claim through one Whitmire. In 1860, Whitmire, who then had only a school-land certificate of purchase upon which twenty per cent of the price had been paid, executed to one Coats an instrument, which is considered below, and Coats subsequently conveyed to the defendant. In 1878 the state issued a patent to Whit-mire, who, in 1884, made a deed to the plaintiff.
[134]The plaintiff’s position is, that prior to the issuance of the patent, Whitmire had merely an interest which, while regarded as the legal title as against third persons, was not so regarded as against the state; that the legal title remained in the state until the issuance of the patent in 1878; that the instrument executed to Coats in 1860 was not a present conveyance, but only an agreement for a deed, and therefore did not pass the after-acquired title, or any title; that after receiving the legal title, Whitmire did not convey it to the defendant, but conveyed it to the plaintiff, and that since the plaintiff has the legal title, he must prevail in ejectment.
From this it is obvious that it is necessary to consider the effect of the instrument executed by Whitmire to Coats. The heading of this document in the transcript is “Agreement for a deed.” But it does not appear that the instrument itself was so called. It seems to be a mere characterization by the person who made the record on appeal. But even if it were indorsed upon the document itself, it is clearly not a part of the instrument, and consequently would not affect its character.
The material portions of the instrument are as follows: “This agreement, made and entered into this first day of November, 1860, by and between T. S. Whitmire, of Shasta Valley, in the county of Siskiyou, state of California, the party of the first part, and Silas D. Coats, of the same place, the party of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, hath and hereby doth release and forever quitclaim unto the said party of the second part, and to his heirs and assigns and legal representatives, all that certain piece or parcel of land ” (describing it).
If there were nothing else in the instrument we think it clear that it would amount to a quitclaim deed. The operative wmrds of such a deed are, ordinarily, “remise,
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