(concurring specially) : I concur in the result of the foregoing decision but can not assent to the doctrine that from nothing something can be evolved. It is held in this state that the grantee in a quitclaim deed from his immediate grantor is put upon inquiry by the very fact that it is a quitclaim, and this rule is founded on common sense, and practical experience in this state, in the western portion of which one’s land is often spoken of as so many “quarters” instead of so many acres, and where real ’ estate is handled very *127much as chattels are handled. Such grantor can convey no better title than he has; true, he may make a contract with his grantee that he will warrant and defend him against any outstanding title or equities, but this does not and can not increase the force of the conveyance itself or the estate actually passed thereby. Much confusion has arisen from failure to distinguish between a mere quitclaim and an instrument improperly called a quitclaim which amounts to an actual conveyance and passing of the estate itself.
The marrow of the matter is 'well stated in Fountain v. Kenney, 71 Kan. 642, where Mr. Justice Greene said:
“The determination of what equities are prior in right to the holder of the real estate under a quitclaim deed and whether they are held by persons in whose favor they should be enforced depends entirely upon the facts of each case.” (p. 646.)
The expression in Rich v. Downs, 81 Kan. 43, that one’s rights are not affected by the fact that his grantor held under a quitclaim deed only, is the first clear attempt of this court to differentiate between the grantee in a quitclaim deed and subsequent grantees who take with notice thereof. Among the authorities cited in support of this expression is Moelle v. Sherwood, 148 U. S. 21, in which Mr. Justice Field said:
“Whether the grantee is to be treated as taking a mere speculative chance in the property, or a clear title, must depend upon the character of the title of the grantor when he made the conveyance; and the opportunities afforded the grantee of ascertaining this fact and the diligence with which he has prosecuted them will, besides the payment of a reasonable consideration, determine the bona fide nature of the transaction on his part.” (p. 30.)
If a grantee in a quitclaim deed from his immediate grantor is put upon notice and charged with a search for outstanding equities such as an ordinarily prudent man would be required to make, his grantee, who knows the sort of title the grantor has, must certainly *128take with the same notice, and he should take with the same burden. Otherwise one having no substantial claim whatever to a piece of real estate may execute a quitclaim deed therefor to B, and B, by making a warranty deed therefor to C, who has knowledge of the quitclaim, may make of C a bona fide purchaser, which B was not.
The object of the recording act is to protect those who deserve protection, but not to aid in what might be called larceny of real estate or in the manufacture of titles out of nothing. A quitclaim grantee may act in perfectly good faith, but he, as well as his grantee, should be required to make reasonable inquiry as to what reason existed for making a quitclaim instead of a warranty deed.
It may as well be conceded that the numerical weight of modern authorities tends to support this peculiar distinction between immediate and subsequent grantees; but the reasoning of such decisions as Carter v. Wise, 39 Tex. 273, Milam County v. Bateman, 54 Tex. 153, Schmidt v. Musson et al., 20 S. Dak. 389, and Mason v. Black, 87 Mo. 329, commends itself for its soundness. In the latter may be found a quotation from Lord Hardwicke, which has lost none of its force by lapse of time:
“ ‘Where the purchaser can not make out a title but by a deed which leads him to another fact, the purchaser shall not be a purchaser without notice of that fact, but shall be presumed cognizant of it; for it is crassa negligentia, that he sought not after it.’ ” (p. 341.)