dissenting. When Fletcher took from Mrs. Rowland his quit-claim deed, he was in negotiation with Bagley for the purchase of the land. When his agent proposed to buy of her, she told him she had sold to Bagley, and expressed no dissatisfaction with the sale. The agent told her that Fletcher only desired her quit claim, and would take the risk and save her harmless. She then executed it for twenty-five dollars.
I do not concur in the opinion of the court in holding this a disaffirmance. The only sound principle upon which it has been held that the deed of an infant, executed after maturity, is a disaffirmance of a former deed of the same lands, made during infancy, to another grantee, is this: that by the second deed the grantor assumes to have title remaining in him, which is incompatible with the idea that he is willing to affirm the preceding conveyance. The second deed is held to be a disaffirmance by implication,- because it can not consist with any other intention— not a direct disaffirmance by force of its terms. This is manifest from the application of the rule at common law, and still, in those States where alienations of lands adversely held are not permissible. There, if the infant is not in possession, the disaffirmance must be by entry or something equivalent, which is the operative act. The quondam infant, being then reclothed with his estate, may convey. In other States, as here, where lands adversely held may be transferred by the owners, the entry is dispensed with as an overt and solemn act of disaffirmance,, and the deed if incompatible with any supposed recognition of the outstanding title, is taken as a manifestation of an intention to do what would, under the common law, have been actually necessary. It doubtless is the general rule that in this State and others where lands not in possession may be conveyed, a deed after maturity operates as a disaffirmance of one made to another person during minority.
But this manifestation of intention being, as I think, the foundation of the rule, it should not be carried beyond where the reason ceases — and, consequently, not to all such conveyances as, by their nature and circumstances, come short of showing such intention to disaffirm. This qualification of the rule has been recognized and applied by a number of the most respectable authorities, including this court, where subsequent deeds have been held not to amount to such disaffirmance. Although, in each of the cases, circumstances were different, yet the same key-note pervades all, and the same qualification of the general rule is marked. It is this : that the conveyance after maturity will not be a disaffirmance if it is compatible with any reasonable supposition that the grantor did not intend to recall the former right. This was the express ground of the decisions in Watkins & Trapnall v. Wassell, 15 Ark., 73, and in Bozeman v. Browning, 31 Ib., 364. True, those cases are not in point as to facts, but they exemplify the principle. So, also, in the Missouri ease of Leitendorfer v. Hempstead, 18 Mo., 269, there is a very strong recognition of it. And in McGann v. Marshall, 7 Humph., 121, it is clearly announced that the well-settled rule of disaffirmance by a deed, after full age, must be understood of absolute deeds, inconsistent with each other, thereby making it manifest that it was the intention of the party to disaffirm the first deed. That is a strong case. An infant had made a mortgage, and after full age he executed an absolute deed of trust of the same property to another person, without any reference to the mortgage. One would think that a tolerably clear manifestation of an intention to disregard the mortgage and give the trustee the full control of the property. It was in the grantor's power to do so. Yet it was held not to be clear enough, and that the trustee took only the equity of redemption.
I think, therefore, the question now in judgment can not be decided by the application of any cast-iron rule to the two simple facts, that Mrs. Rowland, as an infant, sold to Bagley, and then, as an adult, conveyed the same lands by quit claim to Fletcher. We must look deeper, and consider the circumstances of Fletcher’s purchase and the nature of his conveyance, and find its solution in determining whether or not the quit claim to Fletcher is so wholly incompatible with the former sale to Bagley as to clearly manifest an intention on Mrs. Rowland’s part to disaffirm Bagley’s title.
It was effective to pass only the title Mrs. Rowland then had. (Witter v. Briscoe et al., 13 Ark., 426.) It charged Fletcher with full notice of all imperfections of the vendor’s title and all equities against it, inasmuch as he did not pay full price for the land as the evidence plainly shows. (Miller v. Fraley et al., 23 Ark., 735.) Et did not serve the ordinary purpose of a good and sufficient conveyance. Watkins v. Rogers, 21 Ark., 298.
It is not necessary that such deeds should have anything to operate on in order to make them sufficiently desirable to be worth getting at some trouble and expense. They do not imply, necessarily, that the grantor has any title. Operating innocently as to all other claimants, they only estop him. They quiet apprehensions and fortify against defects and irregularities, or lost instruments or lack of registration. They are frequently given and taken for peace. They can not be incompatible with any former alienations. It is common in some of the States to announce the general rule to be that a deed loith covenants of warranty wúll be a disaffirmance of a conveyance made in infancy. That idea enters into the leading case on the general rule. (Tucker v. Moreland, 10 Peters, 58) Mr. Justice Story, speaking of the deed made after full age, says: “The deed to Mrs. Moreland contains a conveyance of the very land in controversy, with a warranty of the title against all persons claiming under him, and a covenant that he had a good right and title to convey the same, and therefore is a positive disaffirmance of the former deed.”
After a rather industrious search and inquiry, I have been unable to find a single case in which it has been held that a quit-claim deed, by its own force, will avoid a conveyance made in infancy. The opinion of the court seems to make it conclusively a disaffirmance. I think it should depend on intention, to be ascertained from the circumstances and nature of the second deed. It is enough for the protection of infants that they are alloioed after age to disaffirm their conveyances. They are not bound to do so, and I fear it will work injustice to make their acts have that effect, when they may not have intended it. In this case, I do not clearly see that Mrs. Rowland did so intend.