OPINION ON REHEARING A petition for rehearing has been filed herein by the appellant, Sharples Corporation. In its brief, of sixty-five printed pages, filed at the original hearing of this case, the appellant devoted a little over half of a page to the doctrine of estoppel, claiming that by the agreement entered into between the parties in November, 1937, the parties partitioned the property among themselves, and that each partitioner is estopped to assert that in fact anything less than an undivided one-half interest was conveyed by Brimmer. They only cited 47 C.J. 282 relating to Partition. We held briefly that we could see no element of estoppel in the case under the theory presented to us at that time. In the brief accompanying the petition for a rehearing, the appellant relies upon the doctrine of estoppel by deed, claiming that in view of the fact that C.A. Brimmer, trustee, conveyed to the Sweetwater Oil Company a one-half interest in the lower sands of the land in question, one-half of the Howell and Rigdon 1/15th interest, the latter purchased by the Drayton Oil and Drilling Company subsequently for $10,000, inured under the doctrine of estoppel by deed to the benefit of the Sweetwater Oil Company. Counsel rely upon the rule stated in 19 Am. Jur. 610-612, and Balch et al. vs. Arnold et al., 9 Wyo. 17, 59 P. 434. The point now urged upon *Page 374 us seems to be an entirely new point; at least the theory is different. We have held in a number of cases that this court need not consider any point not raised at the original hearing. Bank vs. Ludvigsen, 8 Wyo. 230, 257, 56 P. 994; Brewer vs. Folsom Bros., 43 Wyo. 517, 7 P.2d 224, and other cases. We have concluded, however, that it is best to consider the doctrine now advanced by counsel in so far as it is necessary herein. We shall pass over the question of pleading and consider the merits of the contention. Annotations on the subject will be found in 58 A.L.R. 345; 144 A.L.R. 554; 3 A.L.R. 945-955.
The deed relied upon in this case is a deed made by C.A. Brimmer, as trustee, to the Sweetwater Oil Company, on July 7, 1938, as to the one half-interest in the oil and gas in the lower sands mentioned in the original opinion. A similar deed was executed on the same day to the Drayton Oil and Drilling Company, as to the remaining interest in the land in question. These deeds were made pursuant to a contract entered into on November 27, 1937, between the Drayton Oil and Drilling Company and the Sweetwater Oil Company. That agreement is, in so far as is necessary to be mentioned here, in words and figures as follows:
"WHEREAS, the parties hereto have heretofore made claims touching the property hereinafter described together with certain oil produced from said property and the proceeds received upon the sale of said oil, and it is the desire and intention of the parties hereto to adjust, settle, and compromise any accounts, debts, claims, demands, disputes and matters touching and relating to the said property.
"NOW, THEREFORE, in consideration of the said premises and the mutual covenants and agreements of the parties hereto, it is covenanted and agreed as follows, to-wit:
"The property referred to in this agreement is described as the North Half of the Southeast Quarter *Page 375 (N 1/2 S.E. 1/4) of Section Three (3), Township Twenty-six (26) North, Range Ninety (90) West of the Sixth Principal Meridian, * * *.
"The Sweetwater Oil Company agrees to convey to C.A. Brimmer, trustee of the parties hereto, all of its right, title and interest in and to the property above described and mentioned, * * *.
"The Drayton Oil and Drilling Company, party of the first part, does hereby agree to convey to C.A. Brimmer, trustee for the parties herein mentioned, all of its right, title and interest in and to the property herein above described, * * *.
"And as to any alleged claims of Etta G. Rigdon and David J. Howell, the Sweetwater Oil Company does hereby agree to furnish and place of record all papers and instruments in its possession tending to show that said parties have no rights, claims or interests in or to the property or rights herein above described.
"It is agreed by and between the parties hereto that C.A. Brimmer, as trustee of the parties hereto, upon the furnishing and delivery of the papers and instruments of conveyance herein above mentioned, shall execute and deliver as said trustee instruments of conveyance to the parties hereto as follows:
"To the Sweetwater Oil Company, a corporation, an undivided one-half interest in and to all of the oil, gas and other minerals that may be produced from the oil and gas bearing sands lying below the Dakota and Lakota sands situated upon the North Half of the Southeast Quarter (N 1/2 S.E. 1/4) of Section Three (3), Township Twenty-six (26) North, Range Ninety (90) West of the Sixth P.M., * * *.
"To the Drayton Oil and Drilling Company, a corporation, a deed of conveyance for an undivided one-half interest in and to all of the oil, gas and other minerals that may be produced from the oil and gas bearing sands lying below the Dakota and Lakota sands situted upon the North Half of the Southeast Quarter (N 1/2 S.E. 1/4) of Section Three (3), Township Twenty-six (26) North, Range Ninety (90) West of the 6th P.M., * * *." *Page 376
It was said in Balch et al. vs. Arnold, et. al., supra, that no conveyance can, as such, convey any title to any property not then possessed by the grantor; if it is to operate upon after acquired property it must be by way of estoppel. The appellant recognizes the rule that a mere quit-claim deed cannot give rise to estoppel by deed in the absence of warranties, covenants or representations. See 19 Am. Jur. 617 to 618. But it is claimed that the deed in question is more than a quitclaim deed and actually conveys a one-half interest in the lower sands of the land in question, particularly by reason of the habendum clause. The instrument is named a "Quit-Claim Deed". It provides "that the said party of the first part, for and in consideration of the sum of One Dollar and no/100 ($1.00) and other valuable consideration, lawful money of the United States of America, to him in hand paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed and acknowledged, has remised, released and quit-claimed, and by these presents does remise, release and quit-claim, unto the said part of the second party and to its successors and assigns, forever, an undivided one-half interest in and to all of the oil, gas and other minerals that may be produced from the oil and gas bearing sands lying below the Dakota and Lakota sands situated upon the North Half of the Southeast Quarter (N 1/2 S.E. 1/4) of Section Three (3), Township Twenty-six (26) North, Range Ninety (90) West of the Sixth Principal Meridian". The habendum clause in the deed reads as follows: "To have and to hold all and singular the above mentioned and described premises together with appurtenances, unto the said party of the second part, his heirs and assigns forever." The deed contains no covenants and no warranties, and no representations of any kind as to the amount of interest which the grantor had in the property. *Page 377
A similar deed, in connection with the doctrine of estoppel by deed, was considered in the case of Gibson vs. Chouteau, et al.,39 Mo. 536. The deed in that case contained the following words in the granting clause, to-wit; "`Bargain, sell, release, quit-claim and convey unto Pierre Chouteau, Jr., * * * and his heirs'" the land in suit by description. (P. 548). The habendum was to the grantee and his heirs. (P. 566). The court stated among other things: "If this deed purports to convey the real estate in fee simple absolute, the after acquired title passes under the statute, otherwise not. There is no covenant of warranty, and no estoppel by virtue of any kind of express warranty. The words `bargain, sell, release, quit-claim and convey' are words of release and quit-claim merely. They carry the grantor's interest and estate in the land described, whatever it may be; but they do not of themselves purport to do anything more; they do not even raise the statute covenants implied in the words `grant, bargain and sell,' nor would these covenants operate as the ancient common-law warranty to transmit a subsequently acquired title * * *. It is essentially a quit-claim deed and nothing more. It makes no positive averment that the grantor is seized or possessed of any particular estate in the premises which the deed undertakes to convey and confirm. Such averments, to create an estoppel, must be positive and certain. * * * This deed can have no greater force than a mere quit-claim which expressly conveys only `the right, title and interest' of the grantor."
In the case of Williams vs. Reid (Mo.), 37 S.W.2d 537, the granting clause in the deed seems to have been similar to that in the deed involved in this case. The court stated: "To remise, release, and quit-claim designated land is generally understood to mean that the grantor releases any interest he may have in the land at the time, but that is all." The habendum clause in *Page 378 that case was as follows: "`to have and to hold the same, * * * (unto) the said party of the second part, * * * so that neither of the said parties of the first part, nor their heirs, nor any other person or persons for them or in their names or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, * * * or any part thereof, but they and every one of them shall, by these presents, be excluded and forever barred'." The deed was held not to convey after acquired property. In the case of Wells vs. Chase, 76 Ark. 417,88 S.W. 1030, the court said: "The deed in question is somewhat peculiar in its terms. It recites that the grantors `have sold and released and quit-claimed' to the grantees, Wells and Gray, an undivided one-tenth interest in `the following mining and mineral lands and claims' describing the claims in controversy, and others. The habendum clause contains a stipulation that the grantors will `forever defend the title aforesaid against all parties who hold under or through' the said grantors. The effect of the deed was to convey to the grantees whatever title the grantors then had to the undivided one-tenth interest, and to warrant against any prior conveyances or incumbrances made or suffered by the grantors; but it did not purport to convey any title except what the grantors then had. They then had title to a lode claim, which was subsequently abandoned and forfeited. This is all that passed by the deed, and another title subsequently acquired did not pass."
In the case of Holmes vs. Countiss, 195 Ark. 1014,115 S.W.2d 553, the deed was as follows: "I, * * * have this day bargained and sold and by these presents do bargain, sell and quitclaim * * * the following described lands'" (the description follows). It also had a habendum clause to the effect: "`To have and to hold all of the above-described lands unto the said T.B. Holmes, and unto his heirs and assigns forever, together *Page 379 with all of the improvements and appurtenances thereunto belonging or in any wise appertaining'." The deed contained no express covenant or warranty. It was held that the deed was only a quit-claim deed creating no estoppel as to after acquired property. See also Adamson vs. Wolfe, Trustee, 200 Ark. 360,139 S.W.2d 674. In the case of Bruce vs. Luke, 9 Kan. 201, 12 Am.Rep. 491, the deed in substance was as follows: "`For and in consideration of the sum of one dollar, and other valuable considerations in lawful money of the United States,' Johnnycake `grants, bargains, sells, aliens, releases, quitclaims and conveys' unto Kate L. Simpson, the land in controversy, `together with all the improvements, ways, easements, rights, privileges and appurtenances to the same, belonging, or in anywise appertaining, and all remainders, reversions, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand, either at law or in equity, or otherwise howsoever of the said' Johnnycake, `in to, or out of said premises'." The deed was held to be a quit-claim and did not create an estoppel by deed. To the same effect are McCrackin vs. Wright, 14 Johns. 194; Jackson vs. Hubble, 1 Cow. 616. See also Annotation in 3 A.L.R. 945; Turick vs. Erdmann, 112 N.J. Eq. 261,164 A. 40.
According to the foregoing cases the deed in question in this case would seem to be purely a quit-claim deed. The authorities, however, do not seem to be quite harmonious. In Garrett vs. Christopher, 74 Tex. 453, 12 S.W. 67, the court held that under a habendum clause similar to that in the case at bar the land itself is conveyed. The case did not involve the question of estoppel, and the rule in that case seems to have been repudiated in Hunter vs. Eastham, 95 Tex. 648, 69 S.W. 66. See note, 3 A.L.R. 949. See also Tiffany on Real Property (3rd Ed.) Vol. 4, P. 645. The case of Balch et al. vs. Arnold et al., supra, upon which counsel place a *Page 380 good deal of reliance, is distinguishable from the case at bar. It involves a mortgage given for the consideration of $2,000.00, and, as the court held, the mortgage contained a warranty of title.
The ultimate criterion herein would seem to be the intention of the parties, which must be gathered, as counsel for appellant admit, from the deed itself and the surrounding circumstances. Balch et al. vs. Arnold et al., supra. The deed in question is denominated a "quit-claim deed". Mr. C.A. Brimmer, holding, as he did, merely the naked title, was hardly in a position to give any other kind of deed. The parties had agreed in their agreement of November, 1937, to make quit-claim deeds to C.A. Brimmer, trustee, for all their interests in the land — Brimmer in turn to execute deeds to the parties to the contract. The latter executed these deeds. They are identical in form with the deed from C.A. Brimmer, trustee, to the Sweetwater Oil Company, and contain the identical habendum clause. They were executed on a printed form, apparently generally used in Carbon County, Wyoming, to represent a quit-claim deed, and this printed form was probably also used in the deed to the Sweetwater Oil Company, although that fact does not appear in the record. Thus the parties themselves evidently agreed and understood that a deed in the above form, with the habendum clause above mentioned, constituted nothing more than a quit-claim deed, so that it hardly behooves the appellant at this late date to claim the contrary and assert that the Drayton Oil and Drilling Company intended a deed in that form to be something else. See Morrison vs. Wilson, 30 Calif. 344, as to an agreement that the deed shall be only a quit-claim deed.
The agreement between the parties of November, 1937, on which the deed in question here was based, was an agreement to compromise their respective *Page 381 claims to the land. See in that connection Heyward vs. The State,92 Ga. 591. No purchase or sale in the ordinary way was contemplated. The obvious intent was to determine, settle and divide between them the property which they actually had and owned. In the case of Wilson vs. Nichols, 39 Cal. App. 2d 527,103 P.2d 1007, an agreement of full settlement and release was entered into between the parties as to certain lands which included a lot in which plaintiff, at that time, had no interest. It was held that this agreement could be construed only as a release and quit-claim as to the lot mentioned, and did not give rise to an estoppel as to after acquired title, notwithstanding certain warranties contained in the agreement. In the case of Rispaud vs. Rispaud, 209 Calif. 375, 287 P. 466, wherein the parties partitioned property, it was held that after acquired property did not pass to the grantee in one of the deeds executed pursuant to the agreement of partition. "The basis of that doctrine" said the court, "is estoppel, and, when the facts clearly show that there was no misrepresentation, directly or indirectly, then there is nothing for the estoppel to act upon." See also Edwards vs. Worthington (Tex.Civ.App.),118 S.W.2d 328. There is no basis of any kind in the case at bar for claiming any misrepresentation, direct or indirect, on the part of the Drayton Oil and Drilling Company. Both parties knew of the outstanding Howell and Rigdon interest. The Sweetwater Oil Company undertook to furnish evidence showing the invalidity of the foregoing Howell and Rigdon interest. That evidence was not furnished, as shown by the result. The claim that under these circumstances, and without any other showing, the Drayton Oil and Drilling Company caused to be executed a deed to one-half interest in the lower sands, which, in effect, warranted the title to the whole thereof, is not credible. A number of cases have held that where the deficiency in the title appears in the *Page 382 deed itself, no subsequently acquired title will pass. Midland Realty Co. vs. Halverson, 101 Mont. 49, 52 P.2d 159, and cases cited. See, also, cases in note 58 A.L.R. 349; 19 Am. Jur. 349. That is substantially the situation in this case when we construe the deed in question along with the agreement of November, 1937. We need not determine how far the rule should be carried, but we see no reason why it should not be applied in this case. The rule is evidently based on the same principle stated in Rispaud vs. Rispaud, supra, namely, that when there is a total absence of deceit, direct or indirect, the rule of estoppel as to after acquired property does not apply.
Not every conveyance involves an estoppel; a sound reason must exist to result in an estoppel as to after acquired property. It has been said that the "presumption is against rather than for the estoppel, and those who rely upon it must show that it results from the language of the particular clause, and is consistent with the tenor and object of the deed. * * * A vague, general, or ambiguous statement, not indicating that the parties meant to tie themselves down to a particular state of facts, consequently will not operate as an estoppel, nor will it be raised by intendment of implication from language susceptible of another interpretation." 2 Smith's Leading Cases (8th Ed.) Page 821. Some of the cases have held that an estoppel by deed is not created or enforceable unless there has been a change in the situation of one of the parties in reliance on the deed. 31 C.J.S. 196. After all the rule of estoppel is fundamentally one of equity. Thus it was said in Midland Realty Co. vs. Halverson, supra, that "the doctrine of estoppel was invented and engrafted upon the law to prevent wrongs and not to promote them." In Jackson vs. Mills, 185 N.C. 53, 115 S.E. 881, the court said: "True, the doctrine of estoppel has been enlarged to include deeds without covenant or warranties, but only *Page 383 to the extent and for the purpose of protecting bona fide purchasers. But it is still an equitable doctrine, not an inflexible rule, a shield of the innocent, and not a sword for destruction." Even if the deed in question here is more than a quit-claim deed, not a single sound and just reason can be found, so far as we can see, for applying the foregoing rule of estoppel as to after acquired property in this case. Whatever the parties undertook to do pursuant to the agreement of November, 1937, it was a reciprocal undertaking. The agreement specifically provides that it is entered into in consideration of the mutual covenants and agreements of the parties thereto. It is hardly true, as counsel claim, that "across the table the Drayton Oil and Drilling Company agreed to convey to the Sweetwater Oil Company an undivided one-half of all oil in the lower sands." The agreement, at most, could be said to be that the one-half interest above mentioned should be conveyed to the Sweetwater Oil Company provided that the latter would, in turn, cause the other one-half interest to be conveyed to Drayton Oil and Drilling Company. The Sweetwater Oil Company failed to perform its part of the agreement; it defaulted to the identical extent as the Drayton Oil and Drilling Company. The interest of Howell and Rigdon had to be purchased in order to divest the then holders thereof. It has frequently been said that the doctrine of estoppel has been adopted to avoid circuity of action. 31 C.J.S. 204. In other words it takes the place of actions which might otherwise exist — for instance, an action for the value of the property, in case of failure of title. No such action would lie in favor of the Sweetwater Oil Company or its assignees in this case, in view of its failure to perform. In an action on a contract containing mutual and dependent or concurrent promises or covenants, plaintiff must be ready to perform. 17 C.J.S. 1170, 1173. In this case the Sweetwater Oil Company never *Page 384 was able to do so. The situation is very similar to that discussed in 31 C.J.S. 196, where it is stated that if both parties are estopped, the rights of the parties are to be adjusted without regard to any estoppel.
In view of the fact that the Sweetwater Oil Company undertook to furnish evidence of the invalidity of the Howell and Rigdon interest, and did not do so, its fault that such interest was not acquired pursuant to the agreement of November, 1937, appears to be greater than that of the Drayton Oil and Drilling Company. It is at least as great. To permit it, and its successors in interest, now to acquire one-half of that interest under the doctrine of estoppel by deed, would be to promote a wrong, not to prevent it.
We think it clear that the petition for rehearing should be denied, and it is so ordered.
RINER, J. and KIMBALL, J., concur. *Page 385