ON MOTION FOR REHEARING. (Opinion filed July 15, 1939.) Plaintiff's motion for rehearing points out that while we have overruled the case of McAdow v. Black, 6 Mont. 601,13 P. 377, we have made no mention of the cases of Lynde v.Wakefield, 19 Mont. 23, 47 P. 5, Butte Hardware Co. v.Frank, 25 Mont. 344, 65 P. 1, Gibson v. Morris StateBank, 49 Mont. 60, 140 P. 76, Lindeman v. Pinson, 54 Mont. 466,171 P. 271, and Johnson v. Kaiser, 104 Mont. 261,65 P.2d 1179, containing statements either by way of dictum or otherwise similar to that made in McAdow v. Black, supra. *Page 382
In most of those cases the statement was justified by the facts. No doubt the grantee in a quitclaim deed takes the property subject to all defects of title appearing of record, and in that sense takes no better title than the grantor had. This is true of any form of deed. But where the record title of the grantor is good, and the infirmity of his title is made to appear from unrecorded instruments, a quitclaim deed to a purchaser for value without notice or knowledge of the unrecorded instruments passes as good a title as any other deed. General statements appearing in the above cases to the contrary are overruled.
In the original opinion we made this statement regarding the case of Moelle v. Sherwood, 148 U.S. 21, 13 Sup. Ct. 426,37 L.Ed. 350: "The court indicated clearly that examination of the records was all the inquiry that such a grantee [a grantee by quitclaim deed] must make." Counsel for respondent in his petition for rehearing questions the correctness of that statement. Further consideration of the Moelle Case causes us to reaffirm the statement made in our original opinion, but with this explanation: In that case the land was vacant and unoccupied when the complainant Sherman purchased it. But what the condition was in that respect when Dosh, the predecessor in interest of Sherwood, who took the property by quitclaim deed from Bittinger and which it was contended caused a break in the chain of title, the record of that case does not disclose. But if the fact that Lane and his wife were in possession of the property at the time Smith purchased it, was constructive notice to the world of some interest therein by them, then examination of the records finding that Lane was the owner of the property would satisfactorily explain his possession. There is nothing in the record to disclose that Smith was not an innocent purchaser for value.
The petition for rehearing is denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES STEWART and ERICKSON concur.