At the oral argument of this cause I was impressed with the soundness of respondents' *Page 112 position, but upon further consideration my opinion has undergone a change. Respondents say: "Suppose Heaton's deed to Jackson had been a mere quitclaim instead of a bargain and sale, would Jackson's right of recovery, if he had continued to be the owner on the date of the delinquency of the tax, and had then paid it, been lessened in the least?" I am satisfied an affirmative answer to this question must be returned. In the absence of some covenant from Heaton, Jackson, under a quitclaim deed, would take the land just as it was, regardless of the nature of the title, or the number or character of liens resting upon it. If the lien upon the land had been a judgment or mortgage lien, and Heaton had given Jackson a quitclaim deed, Jackson would have had no claim against Heaton; and the fact that the lien here was one for taxes, rather than that of a mortgage, judgment, or attachment lien, cannot affect the principle involved. It seems to be conceded by respondents that they are in no better position than Jackson would be under a quitclaim deed from Heaton. And as we have seen, Jackson, under those circumstances, would have no recourse against Heaton for liens resting upon the land at the time Heaton gave his quitclaim deed.
I concur in the views expressed by Mr. Justice Harrison, and also in the judgment of reversal.