OPINION. March 9, 1905. The opinion of the Court was delivered by We will first consider those exceptions assigning error on the part of the Circuit Judge, in ruling that J.S. Swygert did not occupy the position of purchaser for valuable consideration without notice of the rights of the plaintiffs. Swygert testified that he believed the title *Page 76 to the land covered by his mortgage was valid, and there is no testimony contradicting this statement. He is, however, chargeable with constructive notice of all the facts disclosed by the record, although he did not make an examination of it. It is, therefore, necessary to determine what notice he would have received if he had consulted the record.
It disclosed the following facts: That in 1867, the sheriff sold and conveyed the land in dispute to James Jones for $320, under an execution issued upon a judgment against G.B. Pearson, Jr.; that in 1868, James Jones conveyed the land to S.B. Clowney for $1,200; the warranty in that deed was as follows: "And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said Samuel B. Clowney, his heirs and assigns, against me and my heirs * * * lawfully claiming or to claim the same or any part thereof;" the words "and against all other persons" being erased; that in 1874, S.B. Clowney conveyed the land to H.H. W. P. Yongue for $1,300; in this deed was a warranty "of all my right and title to the said premises * * * against me and my heirs lawfully claiming, c.;" the words "and against all other persons" being omitted; that in 1875, H.H. Yongue conveyed to W.P. Yongue all his right, title and interest in the said land in consideration of $400, with full warranty; that in 1878, W.P. Yongue conveyed to H.H. Yongue in consideration of $1,300, with full warranty.
It will thus be seen that not only was there a general warranty in the deed held by Swygert's immediate grantor, but there was likewise a general warranty in the deed held by his grantor. The authorities are conflicting as to whether a person can interpose the defense of purchaser for valuable consideration without notice, when he derives his title from one holding under a mere quit claim deed. In the case ofAultman v. Utsey, 34 S.C. 559, 571, 13 S.E., 848, the Court says: "Some of the cases go so far as to hold that one who purchases from another, holding under a quit claim *Page 77 deed, cannot, by reason of that fact, claim to be a purchaser without notice. See 2 Pom. Eq. Jur., sec. 753, where the cases both pro and con are cited in a note. Among the cases cited in support of the proposition are two from the Supreme Court of the United States — Oliver v. Platt, 3 How., 333, and May v. LeClaire, 11 Wall., 217. The reason given is, that such a purchaser buys no more than what his grantor can lawfully convey; to which, we think, might be added, that the fact that the grantor is unwilling to warrant the title, tends at least to show that there is some defect in the title, known to or apprehended by him, and, therefore, the purchaser is put upon inquiry. While we are not prepared at present to go to the full extent to which the doctrine has been carried by some of the cases, yet we are satisfied that the fact that the immediate grantor of the purchaser holds under a quit claim deed, is a circumstance well calculated to excite inquiry, which, if not pursued properly, will affect the purchaser with notice of every fact which such inquiry, pursued with due diligence, would disclose; and certainly when, as in this case, there are other circumstances of a very suspicious nature, connected with the fact that the immediate grantor of the purchaser held under a quit claim deed, the conclusion reached by the Circuit Judge may be well sustained."
The cases of Oliver v. Platt, 3 Howard, 333, and May v.LeClaire, 11 Wall, 217, assign as the reason why one, who purchases from another holding under a quit claim deed, cannot set up the plea that he is a purchaser for valuable consideration without notice, is, that a quit claim deed does not convey the fee, but only the right, title and interest of the grantor.
In this State, a quit claim deed is a lawful mode of conveying land in fee simple, as will be seen by reference to sec. 2367 of the Code of Laws, which is as follows: "Sec. 2367. The following form or purpose of a release shall, to all intents and purposes, be valid and effectual to carry *Page 78 from one person to another or others the fee simple of any land or real estate, if the same shall be executed in the presence of and be subscribed by two or more credible witnesses." (Then follows the usual form of a deed of conveyance with general warranty): "Provided, This section shall be so construed as not to oblige any person to insert the clause of warranty, or to restrain him from inserting any other clause or clauses, in conveyances hereafter to be made, as may be deemed proper and advisable by the purchaser and seller, or to invalidate the forms hereinbefore in use within this State."
This statute does not seem to have been considered inAultman v. Utsey, supra. The facts of that case are, however, quite different from those in the case under consideration. In that case, the immediate grantor held under a quit claim deed, while in the present case not only the immediate grantor, but his grantor likewise, held under a deed with general warranty.
In view of the statute just quoted, we are unwilling to extend the doctrine announced in the case of Aultman v.Utsey, supra. As the statute provides that a quit claim deed shall be a lawful method of conveying land in fee simple, we fail to see why it should be incumbent upon a purchaser to make inquiry, simply because there is a quit claim deed in the chain of title, especially when the quit claim deed was executed many years previous to the purchase, and there are subsequent deeds with full warranty.
But even if there was enough to put Swygert upon the inquiry, it does not appear that due diligence on his part would have led to knowledge of the plaintiffs' rights. There was no connection between the facts of which he had constructive notice and the rights of the plaintiffs. Therefore, the facts of which he had notice did not furnish a clue to the other facts to be disclosed. The exceptions raising the question under consideration must be sustained. *Page 79
The decree satisfactorily disposes of the questions presented by the other exceptions, and this Court desires to add only a single authority to show that the ruling of which the fifth exception complains, was correct. In Koogler v. Huffman, 1 McC., 495, the Court uses this language: "In the argument below, it was contended that the decree and proceedings in the court of equity, ought not to be given in evidence, because the defendant was not a party to them; and the general doctrine that judgments cannot be given in evidence, except between parties and privies, was relied on. As to this form of objection, the law is clear upon collateral matter, any judgment or decree may be introduced. All that is meant by the rule is that the rights of a party cannot be determined on conclusively unless he be a party." This case is cited with approval in Phillips v. Yon, 61 S.C. 426, 39 S.E., 618.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed.
MR. CHIEF JUSTICE POPE disqualified.