words or appear to have been granted, conveyed or devised by construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estate of inheritance, shall be deemed to convey a fee simple estate. 64 § 1455. Pleadings and Practice on Breach of Covenant in Statutory Deed--In an action for breach of covenant in a statutory warranty deed, it is not necessary to allege and prove an ouster or eviction; it is sufficient to negative the words of the covenant and to prove that the grantor did not have title to the land at the time of conveyance. In an action for breach of covenant contained in a statutory warranty deed for a failure of title the burden of which is upon the plaintiff to establish the fact that the outstanding title was paramount. So where the outstanding title is a tax deed, and the proof shows a valid precept, judgment and affidavit, upon which ejectment could have been maintained against the grantor at the time he conveyed the lot, and against the grantee at the time he purchased the tax title, the validity of the tax title is established. The collector's return is prima facie evidence of the legality of the tax and of its assessment and levy, and that the tax is due and unpaid. And where there is no contrary evidence, this prima facie proof furnished by the collector's report furnishes sufficient evidence of the assessment and the amount of the tax.65 § 1456. Measures of Damages on Breach of Warranty in Statutory Deed-For an action for a breach of a covenant contained in a statutory form of a warranty deed, where the grantee was obliged to purchase a valid oustanding tax deed, the question arises, what is the measure of damages? For a total breach, the damages is the amount of the consideration money and interest; but if the grantee has lost 64-Cover v. James, 217 Ill. 309. less, the damages are limited to the loss sustained. Where a valid outstanding title has been bought in by the covenantee, the amount reasonably paid for it provided it does not exceed the purchase money paid to the covenantor, is held by the authorities to be the proper limit. And where there is evidence that the amount paid for a tax title is fair and reasonable the jury are justified in finding for the plaintiff damages for the amount so paid." 66 § 1457. Statutory Form of Quit Claim Deeds Statute"Quitclaim deeds may be, in substance, in the following form: "The grantor (here insert grantor's name or names and place of residence), for the consideration of (here insert consideration), convey and quitclaim to (here insert grantee's name or names), all interest in the following described real estate (here insert description), situated in the county of in the State of Illinois. Dated this day of -, A. D. § 1458. Effect of Statutory Form of Quit Claim DeedStatute "Every deed in substance in the form prescribed in this section, when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release and quitclaim to the grantee, his heirs and assigns, in fee of all the then existing legal or equitable rights of the grantor, in the premises therein described, but shall not extend to after acquired title unless words are added expressing such intention.'' 68 A quitclaim deed amounts to an assignment of all the grantor's interest in the land of every name and character, including a claim for taxes paid by him.69 A quitclaim deed is as effectual to pass title, and covenants running with the land, as is a deed of bargain and 66-Clapp v. Herdman, 25 Ill. App. 509. 67-Sec. 10, Ch. 30, R. S. 68-Sec. 10, Ch. 30, R. S. 69-Glos v. O'Toole, 173 Ill. 366. sale, with covenants of warranty, if there be no words restricting its meaning.70 Such a deed conveys all the interest of the grantor shown by the public records."1 In a certain case it was urged that a quitclaim deed did not purport to convey the title to the land, but only to convey such title as the grantor holds, and where the grantor had previously conveyed the lands no title could pass by the quitclaim deed. But this proposition was rejected by the court, saying: "A deed of release and quitclaim is as effectual for the purpose of transferring title to land as a deed of bargain and sale; and the prior recording of such a deed will give it a preference over one previously executed. In respect to the recording of deeds there is no distinction between different forms of deeds." * Where a party has once conveyed lands, and afterwards executes a quitclaim deed, where the terms of the second deed do not necessarily embrace the lands previously conveyed, and, on the contrary, are such as to show it was not the intention of the grantor to include them, as where such expressions are used as "except such as have previously been conveyed," the courts will give such a construction as not to embrace them." 72 The statute has not in terms declared when and under what circumstances a release shall be given, or what shall be its effect, when executed by a remainderman to a life tenant in possession, and in the absence of such a declaration, resort may properly be had to the common law. At common law a contingent remainder could not be conveyed to another by deed of grant, but it is said, however, that a fine, before fines were abolished, could effectually bar a contingent remainder. It might also be released; that is to say the party entitled to a contingent remainder might, by 70-Butterfield v. Smith, 11 Ill. 485; Morgan v. Clayton, 61 Ill. 35; Hamilton v. Doolittle, 37 Ill. 473. 71-Barton v. Mayers, 183 Ill. 360. 72-Brown v. Banner, C. & C. O. Co., 97 Ill. 214. a release deed give up his interest for the benefit of the reversioner, in the same manner as if the contingent remainder to him and his heirs had never been limited, for the law, while it tolerates conditions of re-entry and contingent remainders, always gladly permits such rights to be got rid of by release, for the sake of preserving unimpaired such vested estates as might happen to be subsisting. So where a quitclaim deed is also a release, it will be given that effect.73 The possibility of a reverter does not pass to the grantee in a quitclaim deed.74 A deed of release and quitclaim is as effectual for the purpose of transferring title to land as a deed of bargain and sale. The prior record of a quitclaim deed will give it a preference over a deed previously executed, but which is subsequently recorded. In this respect there is no distinction between different forms of conveyances. As a general rule, the one first recorded must prevail over one of older execution, when made in good faith, and when it appears to have been the intention of the parties to convey again the same lands which had been previously conveyed. But where the terms of the second deed do not necessarily embrace the lands previously conveyed, and are such as to show the intention of the grantor was not to convey 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.75 § 1459. Quit Claim Deed as a Deed of Release-A deed wherein the grantor recites that he "has remised, released, sold, conveyed and quitclaimed, and by these presents does remise, release, sell, convey and quitclaim, unto the party of the second part, his heirs and assigns forever, all the right, title, interest and claim" is not only a quitclaim deed but also a deed of release.76 73-Williams v. Esten, 179 Ill. 267. 74-North v. Graham, 235 Ill. 178. 75-McConnell v. Reed, 5 Ill. 117. 76-Williams v. Esten, 179 Ill. 267. § 1460. Statutory Form of Mortgage Statute "Mortgages of lands may be in the following form, substantially: "The mortgagor (here insert name or names), mortgages and warrants to (here insert name or names of the mortgagee or mortgagees), to secure the payment of (here recite the nature and amount of indebtedness, showing when due and the rate of interest, and whether secured by note or otherwise), the following described real estate (here insert description thereof), situated in the County of in the State of Illinois. § 1461. Effect of Statutory Mortgage Statute "Every such mortgage, when otherwise properly executed, shall be deemed and held a good and sufficient mortgage in fee to secure the payment of the moneys therein specified; and if the same contain the words 'and warrants,' the same shall be construed the same as if full covenants of seizin, good right to convey against incumbrances, of quiet enjoyment and general warranty, as expressed in section 9 of this Act, were fully written therein; but if the words 'and warrants' are omitted, no such covenants shall be implied." 78 § 1461a. School and Canal Land Certificates Assignable —Statute "Purchasers of school or canal lands or town lots may, by endorsement in writing on their certificate of purchase, transfer and assign all right and title to the lands or lots purchased, or transfers or assignments of such certificates may be made upon a separate paper, and the transferees or assignees may in like manner transfer and assign all such certificates; and in all cases where certificates have been or shall hereafter be transferred or assigned, patents shall issue in the name of the last transferee or assignee." 79 It may be well here to note what the Supreme Court has said in regard to such lands: 77-Sec. II, Ch. 30, R. S. 78-Sec. II, Ch. 30, R. S. 79 Sec. 15, Ch. 30, R. S. |