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intoxicating liquors, etc. ceded that the law could not be sustained if it involved a delegation of the law-making power, and said: "The will of the legislature must be expressed in the form of a law by their own acts. If it is left to the contingency of a popular vote to pronounce whether it shall take effect, it is not the will of the law-makers, but the voice of their constituents which molds the rule of action.

* The test will be whether this enactment, when it passed from the hands of the law-giver, had taken the form of a complete law. It denounces as a misdemeanor the selling of liquor without license; so far it is positive and free from any contingency. It left to the popular vote to determine, not whether it should be lawful to sell without license, but whether the contingency should arise under which license might be granted. # * The legislature has pronounced what the law shall be, and it can not be, and is not, abrogated, changed or altered by the popular expression."

In 1875 the Supreme Court of Maryland also sustained the constitutionality of a local option law, in Fell v. State. 16 The act pro

vided: 1. For an election to be held on a certain day, at which the voters of the several election districts, in the counties named in the act, should cast their ballots "for the sale of spirituous or fermented liquors," or "against the sale" of such liquors. 2. That if it should be found that a majority of the votes in any district had been cast against the sale of such liquors, then it should not be lawful for any person to sell such liquors in said district. 3. A penalty was prescribed for the violation of the act. 4. It was provided that the act should take effect immediately after it should have been determined by a majority of the people in any such district that such sale should not be made. "Now, what has been delegated to the voters," asked the court, "by this act of assembly? Certainly not the power to make the law, or to repeal existing laws. They are called on by the first section simply to express, by their ballots, their opinion or sentiments as to the subject-matter to which the law relates. They declare no consequences, prescribe no penalties, and exercise no legislative functions. The consequences are de

16 42 Md. 71.

clared in the law, and are exclusively the result of the legislative will. The act of the assembly is a perfect and complete law, as it left the halls of legislation and was approved by the governor; but by its terms it was made to go into operation in any district, upon the contingency of a majority of the legal voters within the district being ascertained to be in favor of the prohibition contained in the second section." The law was thereupon upheld. In this same year the Supreme Court of Connecticut sustained one of these laws, in State v. Wilcox.17 This law prohibited the sale of liquors without a license, and authorized the county commissioners to grant licenses upon the recommendations of the selectmen of the town. But the law also provided that any town might, at its annual meeting, by ballot prohibit the selectmen from making such recommendations. The court thought that such a law did not involve a delegation of legislative power to the people, to the county commissioners, or to the selectmen, but that it was a perfect and complete enactment as it came from the hands of the law-making power. "Licenses may be granted by the county commissioners to suitable persons, if recommended by a majority of the selectmen, and the towns may instruct their selectmen not to recommend any persons. But these are not legislative powers. They are police regulations, quite fit and proper to be exercised by municipalities, county commissioners. boards of selectmen, for the protection of the morals and health, and the promotion of the prosperity of their localities."

or

And this brings us to the consideration of another reason which has of late been assigned to sustain the constitutionality of these local option laws. It is conceded that the legislature can empower municipal corporations to regulate or prohibit the traffic in intoxicating liquors, as it shall deem for the best interests of their respective municipalities. If the common council of a city, or the supervisors of a county, can be invested with this discretionary power of establishing suitable police regulations, why not empower the people themselves to determine the question of license or no license? A trust can not be delegated to one body rather than another;

17 42 Conn. 364.

and if it is not an unconstitutional delegation of legislative power, an abrogation of the trust reposed in the law-making power, to enact that a common council of a city may make proper police regulations in reference to this subject, how can it be unconstitutional to invest the people themselves with this power? If the one does not involve an abrogation of the trust, it is submitted that the other does not. This is the view taken of this question by the Supreme Judicial Court of Massachusetts in Commonwealth v. Bennett, 18 decided in 1871. In this case the law authorized the inhabitants of any city or town at any annual election, to vote for or against the sale of spirituous or intoxicating liquors, and provided that, in case the vote was against such sale, then the sale should be prohibited in such city or town. Counsel urged upon the court the unconstitutionality of the act, upon the theory that it involved a delegation of power. The answer of the court was: "We can see no ground for such a position." "It is equally within the power of the legislature to authorize a town by vote of the inhabitants, or a city by vote of the city council, to determine whether the sale of particular kinds of liquors within its limits shall be permitted or prohibited." The court thought that although this subject was not embraced within the ordinary power to make by-laws and ordinances, it nevertheless fell within that class of police regulations which might properly be entrusted to municipal authority by express legislative enactment. This case has been subsequently followed by the same court in Commonwealth v. Dean.1 The same doctrine has been recently announced by the Supreme Court of Minnesota, in State v. Cooke.20 The legislature of that State had passed an act providing that the legal voters of Rochester should have the right to vote upon and determine for themselves the question, whether license for the sale of intoxicating liquors within that mu The nicipality should be granted or not. power to make such a prohibition had formerly been vested in the common council. The court, in sustaining the constitutionality of the act, said: "When the legislature confers any power upon a municipal corporation,

18 108 Mass. 27. 19 110 Mass. 357. 20 24 Minn. 247.

19

it may prescribe by whom the power shall be exercised, by a particular officer or set of officers, or by the electors at large; and the removal of the power in question from the council to the legal voters was unquestionably valid."

The conclusion is irresistible, that a local option law is by no means an unconstitutional measure; that the late decisions must be regarded as having definitely decided the question, that such laws are to be upheld by the courts. To our mind the reasoning of the Massachusetts and Minnesota cases is highly satisfactory, and seems conclusive of the whole matter. The same theory, too, is advanced in the case cited from New Jersey, and we have no doubt, will commend itself to the judgment of courts, as the question may arise hereafter.

HENRY WADE ROGERS.

THE NATURE AND EFFECT OF A QUITCLAIM DEED.

The character and effect given to a deed of release and quit-claim in this country, are peculiarly American. In England, a deed of release, under general principles of law, can never operate as a conveyance in a technical sense, unless the party taking such deed is in possession of the land, and then the deed merely operates to enlarge the estate, whatever it may be. It could never operate as an enlargement of the estate, unless the releasee had an estate of some kind to be enlarged,— such as possession or some other interest or estate in the land which qualified him for receiving or availing himself of the rights or benefits relinquished. Burton Real Prop. 15; Shep. Touch. 320; Kerr v. Freeman, 33 Miss. 292; Rowe v. Beckett, 30 Ind. 162; Branham v. Mayor, 24 Cal. 606; Bennett v. Irwin, 3 Johns. 363. There, in order to give effect to the deed of release as a conveyance, it is first necessary to execute a lease, (or bargain and sale for a limited period), which, by force of the statute of uses, puts the lessee or bargainee in possession; and being thus in possession, although by a mere fiction, the release operating by way of enlargement of the estate, is effectual to transfer the entire title. In Hall v. Ashby, (9 Ohio, 96), the court say: "So artificial a machinery, for the purpose of effecting an object so very simple, has never been considered necessary in this State." It is true that in England, as well as in this country, courts have gone very far in modifying the rules of conveyance, both those of the common law and those which have their effect from the statute of uses, so as to give effect and operation to the deeds of parties, rather according to the manifest intent, than according

to the force of the particular words used to effect the conveyance. Thus, where it is manifest from the efficient words of conveyance used, that it was intended and understood that the estate should pass in one way, as by feoffment, bargain and sale, covenant to stand seized, or release, but some of the circumstances are wanting, which by the rules of law are necessary to pass the estate in that form, and it cannot pass; yet, if all the circumstances exist which are sufficient to pass the estate in another form, it will pass, notwithstanding the words used are not properly adapted to that purpose. Under this rule, in the time of Lord Mansfield, a release was construed to operate as a grant of a reversion, in order to effectuate the intention of the parties. Goodtitle v. Bailey, Cowp. 597. Upon the same principle, it has been held that "a release to one not in possession, if made for a valuable consideration, will be construed to be a bargain and sale, or other lawful conveyance, by which the estate may pass." Pray v. Pierce, 7 Mass. 381. The words "remise, release and forever quit-claim," will raise a use by way of bargain and sale, which, by force of the statute of uses, becomes operative to pass the title. Jackson v. Fish, 10 Johns. 456. So, under particular circumstances, words of release may avail as a covenant to stand seized. Roe v. Traumar, 2 Wils. 75. See Shep. Touch. (Prest. Ed.) 91. But in this country, a quit-claim deed has come to be regarded as a substantive mode of conveyance, and is as effectual for the purpose of transferring the title or interest of the releasor, as a deed with full covenants,—although the releasee has no prior interest in or possession of the land. Hall v. Ashby, 9 Ohio, 96; McConnell v. Reid, 4 Scam. 117; Hamilton v. Doolittle, 27 Ill. 478; Kerr v. Freeman, 33 Miss. 292; Rogers v. Hillhouse, 3 Conn. 398; Dart v. Dart, 7 Conn. 255; Sherwood v. Barlow, 19 Conn. 471; Potter v. Tuttle, 22 Conn. 512; Jackson v. Bradford, 4 Wend. 619; Gazley v. Price, 16 Johns. 267; Ketchum v. Everston, 13 Johns. 359; Brown v. Jackson, 3 Wheat. 452; Touchard v. Crow, 20 Cal. 150; Sullivan v. Davis, 4 Cal. 291; Downer v. Smith, 24 Cal. 123; Carpentier v. Williamson, 25 Cal. 168; Rowe v. Beckett, 30 Ind. 162; Bogy v. Shoab, 13 Mo. 380; Kyle v. Kavanaugh, 103 Mass. 359. The distinction, it will be observed, is this—in England, under such circumstances, a release deed will not pass the title; though if the necessary facts exist, it may be construed to operate in some other mode known to the law, in order that the estate may pass. In this country, a deed of release and quit-claim is regarded, in and of itself, as an effectual mode of conveying an independent title, and without the aid of construction. In Ely v. Stannard, (4 Conn. 533; and see Hall v. Ashby, 9 Ohio, 96), the Supreme Court of Connecticut say: "A quit-claim, or release deed, is one of the regular modes of conveying property known to the law, and it is almost the only mode in practice, where a party sells property and does not wish to warrant the title." This is probably true in practice, if not in

theory, in all of the States. And in some States such deeds are expressly declared by statute to be effectual for the purpose of conveying land. Minn. Stat. at large, 1873, vol. 1, ch. 35, § 4; Me. Rev. Stat. 1871, ch. 73, § 14.

But a quit-claim deed will not operate to convey an after-acquired title. "The general doctrine prevailing in the United States is, that no estate can be passed by the ordinary terms of a deed, unaccompanied with covenants of warranty, which is not vested in interest at the time; and that estates subsequently acquired, whether by purchase or descent, are unaffected by such previous conveyance in the hands of the grantor, or those claiming under him. This general doctrine is, however, subject to this qualification.—that where it distinctly appears from the face of the instrument, without the covenant of warranty, either by recital or otherwise, that the intent of the parties was to convey and receive, reciprocally, a certain estate, the grantor will be estopped from denying the operation of the deed according to such intent." Clark v. Baker, 14 Cal. 612; Van Rensselær v. Kearney, 11 How. 297. It seems to have been uniformly held, that a quit-claim deed, in the usual form, will not estop the grantor from asserting an after-acquired title,-it does not purport to convey an indefeasible estate, and passes only such title as the grantor has at the time of its cxecution-a title afterwards acquired will not, therefore, inure to the benefit of the grantee. Bogy v. Shoab, 13 Mo. 380; Jackson v. Weidman, 1 Cow. 613; Bell v. Twilight, 6 Foster, 401; McCracken v. Wright, 14 Johns. 193; Woodman v. Hubble, 9 Cow. 613; Comstock v. Smith, 13 Pick. 116; Miller v. Ewing, 6 Cush. 34; Simpson v. Greeley, 8 Kan. 586; Young v. Clippinger, 14 Kan. 150; Van Rensselær v. Kearney, 11 How. 322; Field v. Columbet, 4 Sawyer, 523. Though it has been held, that if a party, having the equitable title to land, and being entitled to the legal title, conveys the same by a quit-claim deed, and subsequently acquires the legal title, it will inure to his grantee. Welch v. Dutton, 79 Ill. 467. See Thompson v. Spencer, 50 Cal. 532. But this rule is, doubtless, confined to cases in which the doctrine of relation is applicable. See Bogy v. Shoab, 13 Mo. 380. That rule, now well understood, and applied to protect purchasers is, that "where there are diverse acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation." Viner's Abr., Tit. Relation, 290; Cruise on Real Prop., vol. 5, pp. 510, 511; see Jackson v. Ramsey, 3 Cow. 75; Landers v. Brant, 10 How, 372; French v. Spencer, 21 How. 228. It may be remarked here, that a quit-claim deed passes to the grantee the covenants running with the land, unless there be words limiting the conveyance. Any conveyance which is sufficient to pass the land, will pass the covenants attached to it. Brady v. Spurck, 27 Ill. 478.

Some of our courts, following up the idea that a quit-claim deed does not purport to convey an

indefeasible estate, have announced the doctrine that such a conveyance will not entitle one who claims under it to the rights of a bona fide purchaser without notice. "It passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey." Oliver v. Piatt, 3 How. 363; May v. LeClaire, 11 Wall. 232; Martin v. Brown, 4 Minn. 291; Everest v. Ferris, 16 Minn.26; Marshall v. Roberts, 18 Minn.408; Smith's Heirs v. Bank of Mobile, 21 Ala. 124; Ridgeway v. Holliday, 59 Mo. 455; Meritt v. Meritt, 62 Mo. 150; Rogers v. Burchard, 34 Tex. 452; Watson v. Phelps, 40 Iowa, 489; Smith v. Dunton, 42 Iowa, 48; Springer v. Bartle, 46 Iowa, 688. In Minnesota this doctrine is attributable to the statute, which is construed to limit the estate conveyed by a quit-claim deed to such as the grantor has a legal right, to convey. Martin v. Brown, supra. With this exception the cases holding that view appear to rest upon the dicta of Judge Story in Oliver v. Piatt, supra, where the point was merely alluded to by the learned judge, by way of argument, it not being regarded as essentially decisive of the case. In Springer v. Bartle, 46 Iowa, 688, Severs, J., in delivering the opinion of the court, cites the earlier cases upon the point in that State, and says: "These decisions meet our approbation, and we are unwilling to take, at this late day, the time and space requisite to vindicate their correctness." Unfortunately we have been unable to find that any one taking this view of the question, has taken the trouble to explain the theory on which it is founded. It has been intimated, it is true, that this conclusion follows, as a matter of course, the doctrine that a quit-claim deed does not purport to convey an indefeasible estate, and that an after-acquired title does not inure to the grantee under it. See Ridgeway v. Holliday, 59 Mo. 455, which cites Bogy v. Shoab, 13 Mo. 380. We do not so understand the law. In order to operate as an estoppel against the grantor, it must appear on the face of the instrument, that a certain estate was intended to be conveyed, and he will not then be permitted to deny the operation of the deed according to such intent. Although it does not appear on the face of a deed that an indefeasible estate was intended to be conveyed, this does not necessarily prove the converse, i. e., that the instrument shows an intention not to convey an indefeasible estate. And it seems to the writer to be manifestly inconsistent to recognize ■ quit-claim deed as a regular mode of conveying an independent title, and at the same time to hold that it implies the lack of such a title in the grantor. While it would be equally inconsistent to allow a quit-claim deed to have the effect to pass such a title, unless it is recognized as a regular mode of conveyance.

There is a large class of cases which are often eited indiscriminately in support of the above proposition, and in which the distinction is not always clearly defined, but which, we think, rest upon an entirely different basis. We refer to

those cases in which the conveyance is in terms restricted to "the right, title and interest" of the grantor. It is claimed in such case that, "the very terms of the deed are notice" of the prior rights of others. Marshall v. Roberts, 18 Minn. 405; Bogg v. Paulk, 42 Me. 517; Morse v. Godfrey, 3 Story's C. C. 365.

If this point is well taken, which we do not propose to stop here to discuss, it applies equally as well to any other kind of a conveyance as to a quit-claim deed. See Hope v. Stone, 10 Minn. 152; Butcher v. Rogers, 60 Mo. 138. Some of the cases which maintain the doctrine that the grantee in a quit-claim deed is not entitled to be considered a bona fide purchaser without notice, appear to place it upon the ground, that such a conveyance passes to the grantee no greater interest than the grantor held in the premises. From which it is assumed that the grantee can acquire no rights under it, except such as belonged to the grantor and which he might lawfully convey. And this would seem, at the first thought, to be sound reasoning; but when we come to examine it, it resolves itself back to the original proposition, i. e., do the terms of the conveyance give notice of prior interests? Or else it rests solely upon the question, whether the grantee in a conveyance can acquire rights which were not transferred to him from the grantor. The latter question has frequently been raised, both as to purchasers at sheriff's sale, and as between a bona fide purchaser. from an heir and one holding under a former unregistered deed from the ancestor. Some courts, holding the deed of the ancestor effectual to divest him of the title, maintain that he had no estate at his decease which could descend to his heir; and that the heir never having had any estate in the land, a deed from him could not take effect to defeat the title of the grantee of his ancestor. Hill v. Meeker, 24 Conn. 211; Harlan v. Seaton, 18 B. Mon. 312, and cases cited. It has also been held that, as the purchaser at execution sale takes only the right title and interest of the debtor, he takes the estate subject to all the equities with which it was charged in the hands of such debtor. Morgan v. Morgan, 3 Stew. (Ala.) 383; Kelly v. Mills, 41 Miss. 267. But the current of authority is decidedly opposed to this view of the law. As to purchaser from an heir see Powers v. McFerron, 2 S. & R. 47; Earle v. Fiske, 103 Mass. 491; Vaughn v. Greer, 38 Tex. 530; Kennedy v. Northrup, 15 Ill. 148; Youngblood v. Vastine, 46 Mo. 239; Stone v. Bartlett, 46 Me. 438; McCullough v. Endaly, 3 Yerg. (Tenn.) 346. As to purchasers at sheriff's sale see Rungan v. McClellan, 24 Ind. 165; Evans v. McGleason, 18 Iowa, 150; Ford v. Vance, 17 Iowa, 94; Severy v. Browning, 18 Iowa, 246; Waldo v. Russell, 5 Mo. 387; Davis v. Owensby, 14 Mo. 170; Draper v. Bryson, 26 Mo. 108; Stilwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Dean v. Richman, 13 N. J. L. 43; Garwood v. Garwood, 9 N. J. L. 193; Scribner v. Lockwood, 9 Ohio, 184; Jackson v. Post, 15 Wend.

588; McNitt v. Turner, 16 Wall. 352; Miles v. King, 5 S. C. 146. It is a familiar rule, that when the fault or misfortune of one has caused a loss to another, he whose fault or misfortune it is to have caused the loss must bear its consequences. It is upon this rule that the rights of a bona fide purchaser without notice rest, and not that he acquires by the conveyance any greater rights than his grantor had in the premises. Since the abolition of the tortuous operation of a feoffment, there is, we apprehend, no form of conveyance by which a grantor can convey a greater estate than he himself holds in the premises conveyed.

The covenants in a deed constitute no part of the conveyance, but are separate contracts; the title passes independent of them. What effect then should they have upon the right of the grantee to be considered a bona fide purchaser without notice? We can conceive of none, except that, by explaining the grant, they might indicate an intention to convey a fee-simple title, and thus negative the idea of notice to the grantee of existing rights or equities in others. And in the same way, perhaps, a covenant against the grantor and those claiming under him only, might be construed to limit the terms of the grant to the right title and interest of the grantor. The relative effect of the covenants upon the grant, and of the grant upon the covenants, is a question that has been much discussed, and we can not take the space to discuss it here, but simply mention it in order to call the attention of the reader to the subject.

Some of our courts, in the construction of the registry laws, hold that a quit-claim deed, received in good faith and for a valuable consideration, will prevail over a deed of older execution which is subsequently recorded. Graff v. Middleton, 43 Cal. 341. "In this respect there is no distinction between different forms of conveyance." Fash v. Blake, 38 Ill. 363. And, see, Pettingill v. Devin, 35 Iowa, 354. The one first recorded must prevail over one of older execution, when made in good faith and for a valuable consideration. This construction seems to accord with the object and design to be accomplished by the law, and is within the reason which gave rise to its enactment. It is the object of recording acts to make patent the title to real estate, that purchasers may know what title they are acquiring. Where a deed is not recorded, the title, apparently, is still in the grantor, and the law authorizes purchasers who are ignorant of the conveyance, to deal with him as the real owner. But viewed in this light, the question is not altered so far as a quit-claim deed is concerned. Recording acts are designed for the protection only of bona fide purchasers, for valuable consideration, without notice. Notice, brought home to a subsequent purchaser from any other source, has the same effect as registration. These axioms have become too familiar to require authority. If then a purchaser by quit-claim deed is not entitled to protection as a bona fide purchaser, without

notice, against outstanding equities, he can not reasonably be protected by the registry laws. Yet upon an examination of the cases this seems to be the position occupied by the Supreme Court of Iowa. See Pettingill v. Devin, 35 lowa, 354; Springer v. Bartle, 46 Iowa, 690; Watson v. Phelps, 40 Iowa, 489; Smith v. Dutton, 42 Iowa, 48.

There is another class of cases which may be illustrated by that of Hamilton v. Doolittle, (37 Ill. 482), where it was held that "a deed of release and quit-claim is as effectual for the purpose of transferring title to land, as a deed of bargain and sale; and the prior recording of such deed will give it preference over one previously executed, but which was subsequently recorded, when made in good faith, and when it appears to have been the intention of the parties to convey again the same land which had been previously conveyed. But where the terms of the second deed do not necessarily embrace the land previously conveyed, and, on the contrary, are such as to show that it was not the intention of the grantor to include them, the court will give it such construction as not to embrace them, and will not allow it to operate to the prejudice of the first purchaser." In this case, the description was of "all lots, blocks, lands and fractional blocks or any interest therein, in the town of Pekin that I have," etc., with the further explanatory clause that "this deed is intended to convey all the interest the said Peter Menard has in the town of Pekin." And see Brown v. Jackson, 3 Wheat. 449; McConnell v. Reed, 4 Scam. 117; Butterfield v. Smith, 11 Ill. 485. Some courts, proceeding upon the theory that a quit-claim deed implies & doubtful title, have held that one claiming under such a deed is not entitled to relief in an action to remove a cloud from his title, where the law requires that the complainant must have a clear title. This question rests upon the same ground as that of the right to be regarded a bona fide purchaser without notice. We have not taken the trouble. therefore, to collect the cases, but only cite one by way of illustration. Kerr v. Freeman, 33 Miss. 296.

W. B. MARTINDALE.

REMOVAL OF CAUSES-PARTIES-STATE SUPERINTENDENT OF INSURANCE.

LIFE ASSOCIATION OF AMERICA v. RUNDLE.

Supreme Court of the United States, October Term, 1880.

1. A superintendent of the insurance department of a State government, who, by law, is entitled to institute proceedings for the dissolution of life insurance companies under certain circumstances, and who is made by law the trustee in whom shall vest all the assets of such dissolved company for the benefit of its creditors, is, upon such dissolution, the legal sucessor

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