(dissenting):
The facts in this case are simple. The law applicable is both elementary and fundamental. The principles which control are well established, commonly understood and almost universally accepted rules governing conveyancing.
The decree of the trial court, inter alia, adjudged that the respondent, Anaconda Copper Mining Company, “is the owner in fee simple of an undivided one-fourth (%) interest in and to the Frenchman No. 2 Quartz Lode Mining claim, designated by the Surveyor General as Lot or Survey No. 6518, embracing a portion of Section 11, in Township 3 North, Range 8 West, Montana Principal Meridian, in the Summit Valley Mining District in the County of Silver Bow, State of Montana, hereinafter particularly described.” This adjudication is fully sustained by both the evidence and the law.
Two abstracts of title received in evidence as plaintiff’s Exhibits No. 1 and No. 2, respectively, show an unbroken chain of title to the above one-fourth interest commencing with the United States and ending in the Anaconda Copper Mining Company.
In the year 1898 four persons, viz., (1) John N. Kirk, (2) Samuel D. Sumwalt, (3) Donat Doráis, and (4) Martin Johnson, located the Frenchman No. 2 Quartz Lode Mining claim.
By a duly acknowledged declaratory statement dated, filed and recorded December 19, 1898, the four locators above named represented that each claimed an undivided one-fourth interest in said location.
*208By patent issued April 9, 1904, and recorded in Book “F” of Patents at page 134, records of Silver Bow county, Montana, the United States of America granted said quartz lode mining claim unto the four original locators, viz., (1) John N. Kirk, (2) Samuel D. Sumwalt, (3) Donat Doráis, and (4) Martin Johnson.
By mining deed dated March 16, 1906 and recorded April 27, 1906, Samuel D. Sumwalt, an unmarried man, did “grant, bargain, sell, remise, release, convey and quitclaim unto” Doráis all his “right, title and interest, estate, claim and demands” to certain described mining claims including “an undivided one-fourth interest in the * * * Frenchman No. 2, Survey No. 6518, situated in Summit Valley Unorganized Mining District, Silver Bow county, Montana.”
The undivided one-fourth interest so acquired from Sumwalt added to the undivided one-fourth interest originally granted Doráis by the United States in the patent issued April 9, 1904, increased the interest of Doráis to an undivided one-half interest in the Frenchman No. 2. The patentee Sumwalt had the right to transfer to Doráis and the latter had the right to take and hold title to said undivided one-quarter interest in said mining claim.
The original articles of incorporation of the Butte Copper King Mining Company, a corporation, dated April 19, 1906 and filed the following day, were signed by D. Doráis, Henry Avare and three other persons as directors of such corporation.
A week later by deed dated April 26, 1906 and subscribed by D. Doráis and wife, John N. Kirk and wife and Henry Avare and wife, said parties did “remise, release and forever quitclaim unto” said Butte Copper King Mining Company certain described mining claims and property including the Frenchman No. 2, Survey No. 6518, expressly excepting and reserving, however, from the conveyance those several portions of the surface of the property as described in said deed. Thus it appears that D. Doráis and Henry Avare, being two of the directors of the grantee mining company, then actually knew of the character, condition and extent of the title and interest *209of each of the parties who executed the deed to the grantee mining company so that such company could not have been misled by the language, terms or provisions of such quitclaim deed. See 31 C. J. S., Estoppel, sec. 67, page 254, note 47, citing among other cases: Mundt v. Mallon, 106 Mont. 242, 76 Pac. (2d) 326, and Lindblom v. Employers’ Liability Assurance Corp., 88 Mont. 488, 295 Pac. 1007.
Again when D. Doráis and Henry Avare, together with John N. Kirk, et al., as grantors, made, executed and delivered to D. Doráis and Henry Avare, as directors of Butte Copper King Mining Company the quitclaim deed of April 26, 1906, Doráis and Avare knew full well their intentions and exactly what was sought to be accomplished by the writing. This they knew both as grantors and as directors of the grantee corporation. They selected the proper instrument and form of writing to effect a release and quitclaim and they thus evidenced their intention to quitclaim all the title and interest which they then had in the described property. All Doráis and Kirk owned in the Frenchman No..2 was an undivided three-fourths interest, subject to certain exceptions and reservations and only such interest was conveyed. Needless to say, such deed passed no title whatever to the undivided one-fourth interest owned by the patentee Martin Johnson.
In 3 Thompson on Corporations, 3d Ed., section 1779, at p. 349, it is said: “From these considerations it will be concluded, as a general rule, that knowledge of a single director, and especially when obtained by him while acting for the corporation, or when he is at the place of business of the corporation, and not acting for himself or adversely to the corporation, will be imputed to the corporation.” (Citing cases in note 41.) See also, 3 Fletcher Cyclopedia Corporations, sec. 808, p. 74, and cases cited in note 23; R. C. M. 1947, sec. 94-2313, and Ely, Salyards & Co. v. Farmers’ Elevator Co., 69 Mont. 265, 221 Pac. 522.
At the time of the above conveyance neither Lydia L. Kirk, *210Josephine Doráis, Anna H. Avare nor Henry Avare had any present title or interest in or to the Frenchman No. 2. While Mrs. Kirk, Mrs. Doráis and Mrs. Avare joined in the deed executed by the husband of each their signatures passed no interest or title to the grantee but merely effected a release of the individual right of dower of each. Although Henry Avare had an interest in other mining claims described in the deed, yet the record before us shows that he had no title or interest whatever in the Frenchman No. 2.
Of the six persons who signed the deed to the Butte Copper King Mining Company only John N. Kirk and D. Doráis then had any title or interest in the Frenchman No. 2. Kirk then owned the undivided one-fourth interest granted him by the patent issued April 9, 1904, while Doráis then owned an undivided one-half interest represented (a) by the undivided one-fourth interest granted him by the patent of April 9, 1904, plus (b) the undivided one-fourth interest which he had acquired from Samuel D. Sumwalt by the deed of March 16, 1906. Kirk and Doráis had the right to transfer and the Butte Copper King Mining Company had the right to take and hold title to such respective undivided interests so conveyed.
The deed to the grantee company is manifestly a quitclaim deed. Nowhere does it employ the word “grant” or the words “bargain and sell.” It says “remise, release and forever quitclaim” which operative words merely released, quitclaimed and effected the transfer of the three-fourth interest then owned by the grantors Kirk and Doráis in the described mining claim, and it did not and could not pass title to the other undivided one-fourth interest patented to and then owned by the patentee Martin Johnson.
In Lodge v. Thorpe, 120 Mont. 226, 181 Pac. (2d) 598, 599, this court quoted with approval from Williams v. Reid, Mo. Supp., 37 S. W. (2d) 537, as follows: “Probably nothing is better understood in the law of conveyancing than that a mere quitclaim deed transfers and is designed to transfer only such title and interest as the grantor had when he delivered the *211deed.” Again in Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76, 80, this court said: “Though she paid full value, she accepted a quitclaim deed. This conveyed to her only such title as the bank had. Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717.” See also, Butte Hardware Co. v. Frank, 25 Mont. 344, 353, 65 Pac. 1; 4 Tiffany on Real Property, 3d Ed., sec. 1231, p. 642; 7 Thompson on Real Property, Perm. Ed., secs. 3845 and 3846, pages 310 to 312; 16 Am. Jur., Deeds, sec. 344, p. 636.
Regardless of the kind or character of deed employed to effect the transfer such instrument could convey no greater or better title than the grantors had. A quitclaim deed passes title as the grantor held it and the grantee takes only what the grantor could lawfully convey. McAdow v. Black, 6 Mont. 601, 608, 13 Pac. 377.
An inspection of the patent would have disclosed to any one Martin Johnson’s undivided one-fourth interest in the property. An inspection of the county records would have disclosed to any one the declaratory statement recorded December 19, 1898, in Book Q of Locations at page 39, wherein Martin Johnson claimed an undivided one-fourth interest in the Frenchman No. 2 so located by himself and the other patentees. Here no one was misled; no one labored under any mistake of fact. No fraud is claimed and the grantee is chargeable with the notice imparted to it by the county records and also with the actual knowledge of its directors Doráis and Avare that Martin Johnson owned and held an undivided one-fourth interest in the property. This undivided interest Johnson could lawfully convey to Doráis or any one else and such interest Doráis could lawfully take, hold, Rowell v. Rowell, 119 Mont. 201, 175 Pac. (2d) 223,168 A. L. R. 1141, and add to the interest retained by him and excepted from the deed to Butte Copper King Mining Co. by the express exceptions set forth in the deed. “Whatever is excluded from the grant by exception * * * remains in the grantor as of his former right or title and never passes to the *212grantee.” City of Missoula v. Mix, 123 Mont. 365, 214 Pac. (2d) 212.
By deed dated May 18, 1906, Martin Johnson and wife conveyed to Doráis all their “right, title and interest in and to the Frenchman No. 2 Lode” being the above mentioned undivided one-fourth interest therein.
In 1913 Doráis died, whereupon his right and title to the undivided one-fourth interest in the Frenchman No. 2 lode so acquired from Johnson passed to Doráis’ widow Josephine Doráis.
In 1929 Josephine Doráis died. Thereafter on sale held pursuant to court order and by an administrator’s deed the said undivided one-fourth interest originally patented to Johnson and by him granted to Doráis was conveyed to F. B. Winger, grantee.
Thereafter by deed dated May 16, 1945, and filed for record January 16,1946, F. B. Winger and wife, grantors, conveyed to the respondent Anaconda Copper Mining Company, grantee, such undivided one-fourth interest and all of their other and further right, title and interest in and to the Frenchman No. 2 Quartz Lode Mining claim.
Under the facts and circumstances which here obtain no statute, rule or principle estopped D. Doráis or his heirs or assigns, from acquiring, owning, holding and asserting their title to the Martin Johnson one-fourth interest so conveyed by Johnson, et ux., to Dorais. Rowell v. Rowell, supra.
It is the general rule in most jurisdictions, in the absence of statutes to the contrary, that a quitclaim deed, containing neither covenants nor recitals showing, expressly or by implication, the existence of any estate or interest in the grantor, does not affect an after-acquired title, nor estop the grantor from asserting it. See Butte Hardware Co. v. Frank, supra; Wetzstein v. Largey, 27 Mont. 212, 225, 70 Pac. 717; McAdow v. Black, supra; Gibson v. Morris State Bank, supra; Compare McAboy v. Packer, 353 Mo. 1219, 187 S. W. (2d) 207; Graham v. Quarles, 206 Ark. 542, 176 S. W. (2d) 703; Greek Catholic *213Congregation v. Plummer, 338 Pa. 373, 12 A. (2d) 435, 127 A. L. R. 1008.
The deed to the Butte Copper King Mining Co. was not introduced in evidence, but plaintiff’s Exhibit No. 1 sets forth the following abstract of such conveyance, viz:
“D. Doráis and Josephine Doráis, his wife, John N. Kirk and Lydia L. Kirk, his wife, and Henry Avarre and Anna H. A varre, his wife, to
“Butte Copper King Mining Co.,
DEED
Dated April 26, 1906.
Filed April 27, 1906, at 4:24 P. M.
Recorded in Book 74 of Deeds, page 133 Records of Silver Bow County, Montana. Consideration $1.00
“Remise, release, and forever quitclaim unto the said party of the second part, and to its successors and assigns forever, all the following described property, situated in Silver Bow County, Montana, and bounded particularly described as follows, to-wit:
“The Rearstake Lode, Survey No. 6620, the Missouri Girl Lode, Survey No. 6619, and Frenchman No. 2, Survey No. 6518; excepting and reserving, however, from this conveyance, three several portions of the surface of the said property described as follows, to wit:
“Lot situated on the Rearstake Lode, Survey No. 6620, beginning at corner No. 2 of said survey and running N. 44°40' E. 40 feet, thence North 2 45' W. 45 feet thence S. 71° 23' W. 152 feet, thence S. 190°5/ E. 71.6 feet, thence N. 60055' E. 104 feet to said Corner No. 2, and the place of beginning.
“Lot situated at the S. E. corner of the Missouri Girl Lode; beginning at corner No. 2 of Survey No. 6619, Missouri Girl Lode, and running S. 67°15' "W. 100 feet; thence N. 24°45' W. 100 feet, thence N. 67°15' E. 100 feet, thence S. 24°45' E. 100 feet, to the said S. E. corner No. 2, and the place of beginning.
“Lot situated near the center of the Missouri Girl Lode; beginning at the S. E. Corner of the Lot herein described, from *214•which corner No. 4 of survey No. 6518, Frenchman No. 2 Lode Bears S. 79°16' E. 194 feet, and running thence N. 45°51' W. 100 feet; thence S. 49 09' W. 100 feet; and thence S. 40°51' E. 100 feet; thence N. 79°09' E. 100 feet to the said S. E. Corner and the place of beginning.
“Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.
“To Have and to Hold all and singular the said premises together with the appurtenances unto the said party of the second part, and to his heirs and assigns forever.
“Lydia L. Kirk “John N. Kirk , “Josephine Doráis “Henry Avare “Anna H. Avare “D. Doráis
“[Acknowledgment.]” (Emphasis supplied.)
The operative words employed in the above instrument are “remise, release and forever quitclaim.” This brands the writing as a quitclaim deed. Such deeds have been in common use throughout this jurisdiction from the earliest territorial days'. They are similar to the old deeds of release except the latter were effectual only in favor of one who had possession of the land or held some interest therein. “The modern quitclaim deed is lineally descended from a release, the styling, whether ‘quitclaim’ or ‘release,’ being derived from the operative words, ‘remise, release and forever quitclaim’.” 16 Am. Jur., Deeds, sec. 18, p. 447. A quitclaim deed transfers whatever present right or interest the grantor has in the property. “* * * the usual words ‘remise, release, and quitclaim’ are held sufficient to manifest the intention of the grantor to convey such interest to the grantee. Indeed, the words ‘remise, release and quitclaim’ have been held to be synonymous, so *215that it would seem that one or more of these words would be effective.” 16 Am. Jur., Deeds, sec. 52, p. 470.
The constant and immemorial usage in this jurisdiction of such written transfers of interests in real property as was employed in the conveyance to the Butte Copper King Mining Co. is sufficient to make it a part of the common law of this state. As was said in the early case of Bryan v. Bradley, 16 Conn. 474, 479, “ ‘a.deed of this description may be termed one of the common assurances of real estate.’ As such it stands on the same solid foundation as those common assurances in England, which derive their force and effect from long usage and recognition. On this ground alone, we do not hesitate to hold it good throughout, and should do so, even if it were found to trench upon the rules of the English common law, which, although perhaps anciently founded in practical and substantial reason and good sense, have now become merely technical and formal.” See also, Bissell v. Grant, 35 Conn. 288, 297; Fish v. Sawyer, 11 Conn. 545, 550.
In holding a release and quitclaim valid although the grantee was not in possession, in Field v. Columbet, 9 Fed. Cas., No. 4,764, pages 12, 13, 4 Sawy. 523, 528, the court said: “It is equally effectual with either of the other forms in transferring existing interests. Such is the common opinion of the profession, and in consequence the quitclaim has become the form most generally in use. To hold that it has no efficacy, except where the grantee is at the time in possession, would disturb titles to property of the value of millions.”
As was said by Bood in his article on “The Statute of Uses and the Modern Trend” appearing in 4 Mich. Law Beview, 107, at p. 114: “Several courts have declared — with a simplicity that might startle the wise man filled with legal learning, but most acceptable to every one not sufficiently learned to have lost his common sense — that the forms of conveyance in common and inveterate use ought to be, and will be, sustained, without much regard to the requirements of the ancient com*216mon law, or whether any statute has altered or abrogated such requirements.”
In 1 Story on the Constitution, 5th Ed., sec. 174, p. 126, it is said: 1 ‘From a very early period of their settlement the colonies adopted an almost uniform mode of conveyance of land, at once simple and practicable and safe. The differences are so slight that they became almost evanescent. All lands were conveyed by deed, commonly in the form of a feoffment, or a bargain and sale, or a lease and release, attested by one or more witnesses, acknowledged or proved before some court or magistrate, and then registered in some public registry. When so executed, acknowledged, and recorded, it had full effect to convey the estate without livery of seisin, or any other act or ceremony whatsoever. This mode of conveyance prevailed, if not in all, in nearly all of the colonies from a very early period, and it has now become absolutely universal. It is hardly possible to measure the beneficial influences upon our titles arising from this source, in point of security, facility of transfer, and marketable value.”
In the United States simple short form deeds are everywhere expressly provided for by statute.
While the codes of Montana do not provide a form for quitclaims they do expressly provide for a statutory short form deed of grant and authorize its usé in creating any estate which is recognized as valid under present law, giving to it all the effect of a duly executed common law conveyance with full covenants of warranty. See: E. C. M. 1947, secs. 67-1602, 67-1609 and 67-1616. It must be observed, however, that section 67-1609, supra, speaks not of quitclaim or of a person who purports by proper instrument to quitclaim real property, but expressly says: “Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. ’ ’ (Emphasis supplied.) Thus it is clear that section 67-1609 is confined in its *217scope and applications to grants or transfers effected by a “proper instrument to grant real property” and not to instruments to quitclaim or release.
The word “grant” as employed in It. C. M. 1947, sec. 67-1609, must be construed in connection with section 67-1616, supra, which inserts into the “grant” by operation of law the implied covenants there specified ‘1 and none other. ’ ’
A number of states have gone considerably farther than Montana and have prescribed a form for a quitclaim.
In Indiana, Kansas and Michigan the form reads: “- quitclaims to-(here describe the premises) for the sum of (here insert the consideration). [Signature and acknowledgment].” Bums’ Am. St. Ind., sec. 56-116; G. S. Kan. 1935, 67-204; Comp. Laws, Mich., 1948, sec. 565.152.
In Utah the form reads: “-, grantor (insert here name or names and place of residence), hereby quitclaims to -, grantee (here insert name or names and place of residence), for the sum of-dollars [$-] the following described tract - of land in - County, -(here describe the premises).
“Witness the hand of said grantor, this-■ — ■ day of-19 — . [Signature and acknowledgment].” U. C. A. 1943, 78 — 1—12.
In Wisconsin the form reads: “-, grantor of-County, -, hereby quitclaims to -, grantee, of - County, -, for the sum of- dollars, the following tract of land in-County (here describe the premises).
“Witness the hand and seal of said grantor this - day of-19 — . [Signature, seal, attestation by two witnesses and acknowledgment.] St. 1947, sec. 235.06.
In New York the form reads: “This indenture, made the -day of-, nineteen hundred and-, between -(insert residence), party of the first part, and -, (insert residence) party of the second part;
*218‘ ‘ Witnesseth, that the party of the first part, in consideration of-dollars, lawful money of the United States, paid by the party of the second part, does hereby remise, release, and quitclaim unto the party of the second part,-and assigns forever, all (description), together with the appurtenances and all the estate and rights of the party of the first part in and to said premises.
“To have and to hold the premises herein granted unto the party of the second part,-and assigns forever.
“In witness whereof, the party of the first part has hereunto set his hand and seal the day and year above written.
“In presence of.” Beal Property Law, McK. Consol. Laws, e. 50, sec. 258, Schedule G. See: 2 Walsh’s Commentaries Law of Beal Property, see. 203, “Schedule G” pp. 395, 396.
In Pennsylvania the form reads: “This indenture, made the -day of-, 19 — , between —-, of-, grantor, and-, of-, grantee, witnesseth, that the said grantor, for and in consideration of the sum of-dollars ($-) lawful money of the United States of America, to him well and truly paid by the said grantee, at and before the sealing and delivery of these presents, the receipts whereof hereby acknowledged, has remised, released, and quitclaimed, and by these presents does remise, release, and quitclaim unto the said grantee, and to his heirs and assigns, forever, all that parcel, etc.: together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as in equity, of the said grantor, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances.
“To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said grantee, his heirs and assigns, forever.
*219“ [In witness whereof, etc.] [Signatures and seals] [Attestation and acknowledgment] ’ ’ See: 11 Thompson on Beal Property, Perm. Ed., Form No. 624, pp. 225, 226.
Cowdery’s Forms, so long relied upon and in common use by the attorneys engaged in the active practice of the law throughout the western states as to be often referred to as ‘ ‘ The Lawyer’s Bible,” purports to set forth legal and business forms “Adapted to use in Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington and Wyoming.” At the bottom of page 629 of Cowdery’s Forms, 5th Ed., revised by Curtis Hillyer, there is a note reading: “Note. — The short form of quitclaim deed, as found in Form No. 1230, is recommended.” The recommended form reads:
“No. 1230. Quitclaim deed.
“Joseph Grand, for and in consideration of $10, does hereby remise, release, and quitclaim to Edward Hamond, all that real property situated in the county of San Diego, state of California, bounded and described as follows: [Description.]
“Witness my hand this 14th day of April, 1933.
“Joseph Grand.
“Signed and executed in presence of
‘ ‘ Charles King.
“Herbert Brown.
‘ ‘ [Acknowledgment.] ’ ’ (Emphasis supplied.)
In the introductory note to the chapter on “Deeds and Conveyances,” Cowdery’s Forms, Hillyer, 5th Ed., at pages 622, et seq., it is said:
“The essential parts of a conveyance of land in fee are very brief, and require but few words. The short, plain form of a ‘grant,’ as given in the California statute, is sufficient for every purpose. * * *
“It is generally provided by statute that every conveyance shall pass all the estate of the grantor unless the intent to pass *220a less estate shall appear by express terms, or be necessarily implied in the terms of the grant; and that the word ‘heirs’ or other words of inheritance, are not necessary to convey an estate in fee simple, but they have been retained in some of the forms in deference to a conservative profession: See California Civ. Cod, sec. 1072; California Probate Code, see. 107; Colorado Mill’s Stats. 1930, sec. 816; Idaho Code 1932, sec. 54-506; Montana Rev. Codes 1921, sees. 6855, 6856, 7028; Oregon Code 1930, see. 63-105; Wyoming Rev. Stats. 1931, sec. 97-110. •* * *
“Another thing to be observed in the transfer of property is that the transfer of a thing transfers also all its incidents unless expressly excepted; but that the transfer of an incident to a thing does not transfer the thing itself: See California Civ. Code, sec. 1084; Montana Rev. Codes 1921, see. 6857.
“The habendum et tenendum clause in deeds, commencing with the words ‘to have and to hold,’ has little or no meaning in our deeds. These were formal words in deeds of land from a very early period. The tenendum was that part of a deed which was formerly used in expressing the tenure by which the estate granted was holden; but since all freehold tenures were converted into socage, the tenendum is of no further use, even in England, and is, therefore, joined to the habendum in this manner — to have and to hold. The words ‘to hold’ have now no meaning in our deeds. If care is used in the granting words of a deed contained in the premises, the habendum clause is useless, and it has, therefore, been omitted from most of the forms of deeds given below. Those who wish to use it will find it to be substantially in the following form: ‘To have and to hold, all and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever’.”
In drafting the quitclaim deed here involved it is quite apparent that the parties copied in its entirety the form of deed designated “No. 160 — Deed—Quitclaim,” set forth at pages 97 and 98 of the 1895 edition of Cowdery’s Forms and Precedents.
*221The deed of April 26, 1906, to the Butte Copper King Mining Co. is most similar in form to the above quitclaim deed forms regularly used in Pennsylvania and New York. The instrument would be a good quitclaim in those states and it should be a valid quitclaim in Montana.
It would appear that the instrument in question in Lodge v. Thorpe, supra, contains, in substance, all the essentials of the statutory form of grant deed prescribed by the codes, R. C. M. 1947, sec. 67-1602, and that in construing same, the court overlooked various other code sections including, R. C. M. 1947, secs. 67-1508, 67-1515, 67-1518, 67-1520, 67-1521, 67-1522, 67-1608, 67-1609, 67-1610, 67-1613 and 67-1616.
The majority opinion says: "If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds.” However, the above rule is contrary to and in conflict with that applied in Johannes v. Dwire, et al., 94 Mont. 590, 593, 23 Pac. (2d) 971, 272, where an assignment of oil royalty containing a granting clause which described the property assigned as “all of my right, title and interest in and to one-half of one per cent * # * royalty” (emphasis supplied) and a warranty clause wherein the assignor agreed "to warrant and defend the title to the same” was held sufficient to pass after-acquired title, the court applying modern, liberal rules of construction and expressly overruling the rule theretofore laid down in Hochsprung v. Stevenson, 82 Mont. 222, 266 Pac. 406, which "invoked technical rules for the construction of instruments * * *.” Compare: Mitchell v. Pestal, 123 Mont. 142, 208 Pac. (2d) 807, 809, wherein the Johannes case, supra, is cited with approval.
In this jurisdiction quitclaim deeds have long been used when a party wishes to dispose of or transfer an interest he may think he has in land but which interest he does not care to warrant. *2221 Devlin on Real Estate, 3d Ed., see. 27, at pages 44, 45, quotes with approval from Ely v. Stannard, 44 Conn. 528, as follows: “A quitclaim or release deed is one of the regular modes of conveying property, and is almost the only mode in practice where a party sells, and does not wish to warrant the title. Webster says, ‘In law, a release, or deed of release, is a conveyance of a man’s right in lands or tenements to another who has the same estate in possession.’ This is a strictly technical definition, by long established practice. It makes no difference whether the releasor has an existing estate in possession or not. The release will convey whatever interest the releasor has in the property. ’ ’ See: R. C. M. 1947, sec. 67-1522.
3 Bouvier’s Law Dictionary, Rawle’s Third Revision, says of a quitcláim deed: “ A form of deed of the nature of a release containing the words of grant as well as release. * * * The operative words are remise, release, and forever quitclaim. * * # Covenants of warranty against encumbrances by the grantor are usually added. * * * A quitclaim deed conveys only the interest of the grantor at the time of the conveyance; (citing cases) but such a deed is as effectual to divest and transfer a complete title as any other form of conveyance; (citing cases) * * * A title acquired subsequently to the execution of a quit-claim, with special warranty simply, does not enure to the grantee, and a subsequent purchaser from the grantor is not affected by the recording of the deed executed before the grantor acquired the title; * * * but one who takes a quitclaim deed is presumed to do so with notice of any outstanding equity interest and he therefore knows that he is taking a doubtful title and is put on inquiry concerning it.”
Black’s Law Dictionary defines a quitclaim deed as: “ A deed of conveyance operating by way of release; that is, intended to pass any title, interest, or claim which the grantor may have in the premises, but not professing that such title is valid, nor containing any warranty or covenants for title.”
‘‘The modern warranty deed, as distinguished from a deed *223of quitclaim, is simply a deed of grant with, the usual covenants of title added, so that the cancelling of the covenants of title in a warranty deed makes it a deed of quitclaim. Either deed is equally effective to convey the property. * * *.” 2 Walsh’s Commentaries Law of Real Property, sec. 202, p. 389.
The majority opinion declines to give effect to the operative words, “remise, release and forever quitclaim” used in the deed to the Butte Copper Bang Mining Co. and, seizing upon the habendum clause, construes the instrument as a common law conveyance with full covenants of warranty. This strained and technical construction is neither proper nor permissible under the commonly accepted usage of this jurisdiction and under our statutes and decisions. “Under the statutes now in force in most states, no words of inheritance, either in the premises or the habendum, are necessary to pass a fee simple. In modern conveyancing the habendum clause in deeds has degenerated into a mere useless form for the premises contain the names of the parties and' the specification of the thing granted, and the deed becomes effectual without any habendum.” 16 Am. Jur., Deeds, sec. 53, p. 471.
The record shows that by the deed dated April 26, 1906, the grantee Butte Copper King Mining Co. acquired title to the undivided three-fourths interest in and to the Frenchman No. 2, first granted by patent to Kirk, Doráis and Sumwalt, and that by deed dated May 16, 1945, the Anaconda Copper Mining Co. acquired title to the remaining one-fourth undivided interest in and to said Frenchman No. 2, being the interest first granted by patent to Martin Johnson.
The highly technical interpretation accorded the conveyances by the majority opinion is neither in line with the letter or spirit of our statutes and decisions nor is it in keeping with the so-called “modern trend” of construction.
In my opinion the judgment of the trial court is correct and should be affirmed.
Rehearing denied August 22, 1950.