Hastings v. Nissen , 31 F. 597 ( 1887 )

Brewer, J.

The settled law of the supreme court of the United States is that one who takes by simply a quitclaim deed is not a bona fide purchaser without notice. Oliver v. Piatt, 3 How. 410; May v. Le Claire, 11 Wall. 232; Villa v. Rodriguez, 12 Wall. 338; Dickerson v. Colgrove, 100 U. S. 578. While the question presented is one of local law, in which the federal courts follow the settled rule of the supreme court of the state, the supreme court of Nebraska has never directly decided contrary to the rule of the United States supremo court. There are in two cases some intimations to the contrary: so far, at least, as the matter is affected by the recording acts. In Hoyt v. Schuyler, 19 Neb. 652, 28 N. W. Rep. 306, there was a claim under a quitclaim deed, but the supreme court held that, upon the facts, the claimant was not a bona fide purchaser. In Snowden v. Tyler, 31 N. W. Rep. 661, while there was a quitclaim deed in the chain of title, claimants held under a warranty deed; which, of course, presents a different question. While, in the first case cited, that court uses this language: “A party who claims title under a quitclaim deed from one who had formerly convoyed his title to another, and the effect of which will be to deprive the first grantee of his title, must make <• clear case of bona fides on his part before his title will be sustained,”—in the second, it says: “The fact that the grantor will only give a quitclaim deed is notice of defect in his title, sufficient fo put the grantee on his inquiry as to the rights of other persons in the land in question.” Prom the language in these opinions, as well as from the facts of the casos, I do not know what that court will hold when the question is distinctly and definitely presented; hence, until then, I must follow the ruling of the .supreme court of the United States; and in one of the cases cited from that court, that in 12 Wall., the question arose of a title as against an unrecorded mortgage.

Again, the grantors of plaintiff never had any title to this land. Their ancestor in his life-time had deeded it away. They were not, therefore, of record the owners. The deeds which they executed are not only “quitclaim” in the granting clause, but specially recite that they, as “heirs,” shall never make further claim to the property. The question, therefore, is not technically between parties claiming under two deeds from the same grantor. Judgment will be entered for the defendants.