
    Drott, Appellant, vs. Stevens, Respondent.
    
      May 24
    
    June 13, 1916.
    
    
      Yendor and purchaser: Quitclaim deed: Failure of title: Remedies.
    
    1. The grantee in a quitclaim deed, in the absence of fraud, has no remedy either in law or equity against his grantor for failure of title.
    2. So held, where the grantee, knowing that the grantor’s title was based upon a tax deed and that he refused to give a' warranty deed, and after obtaining the advice of an attorney, accepted a quitclaim deed in satisfaction of a debt of the grantor to him, both parties acting in good faith and in the belief that the grantor had good title.
    
      Appeal from an order of tbe circuit court for Price county: G. N. Risjorb, Circuit Judge.
    
      Affirmed.
    
    Action to set aside a quitclaim deed executed in settlement of a debt of $1,409, and to recover judgment for tbe amount of said debt and interest. Tbe following facts appeared from tbe complaint: In 1901 tbe A. IT. Stange Company was the owner of a certain forty-acre tract of land in Price county. It paid tbe taxes thereon for that year, but by mistake the tax was returned delinquent and in due course of time tbe land was sold for taxes and a tax deed was issued to tbe G. E. Sanborn Company and duly recorded. In 1908 tbe G. E. Sanborn Company executed and delivered a quitclaim deed of said forty to tbe defendant herein, who was indebted to tbe plaintiff upon an account stated in tbe sum of $1,409. Defendant tendered a quitclaim deed of the land to plaintiff in satisfaction of bis debt to him. Plaintiff said be would acr cept a conveyance of tbe land if defendant was tbe true' owner thereof. Tbe defendant stated that be believed himself to be tbe sole and true owner and offered to submit an abstract of the land. Plaintiff suggested defendant take such abstract to R. J. Hagerty, Esq., an attorney in Park Ealls, for examination, which was done. After examination tbe attorney advised tbe plaintiff and defendant that the latter appeared to have a good fee simple title to tbe land, unless there wore minor heirs entitled to redeem. Plaintiff then said be would accept tbe land if defendant would give him a warranty deed. This tbe defendant refused to do, saying be would give only a quitclaim deed. Plaintiff then agreed to accept a quitclaim deed and instructed defendant to make tbe deed to plaintiff’s wife, which was done, whereupon plaintiff executed and delivered a receipt in full for his indebtedness to him. Both parties believed defendant bad good title to tbe land and both acted in good faith upon such belief. Plaintiff asked for a decree setting aside the settlement and for judgment for $1,409 and interest -from October 6, 1908; when the settlement was made. The defendant demurred to the complaint, and from an order sustaining tbe demurrer tbe plaintiff appealed.
    Eor tbe appellant the cause was submitted on tbe brief of Holland & Lovett.
    
    
      K. K. Kennan, for tbe respondent.
   ViNJE, J.

It is tbe settled doctrine of most courts in this country that a grantee in a quitclaim deed, in tbe absence of fraud, has no remedy either in law or in equity against tbe g'rantor for failure of title. Whittemore v. Farrington, 76 N. Y. 452; Reed v. Bartlett, 19 Pick. (36 Mass.) 273; Botsford v. Wilson, 75 Ill. 132; Prichard v. Pasquotank & N. R. S. Co. (N. C.) 86 S. E. 171, L. R. A. 1916A, 961; Sherwood v. Moelle, 36 Fed. 478, 1 L. R. A. 797; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; and see particularly 39 Cyc. 2010, note 77, where a large number of authorities on tbe question are collected. Such doctrine is -based upon tbe ground that tbe grantee in a quitclaim deed knows that be takes only such title as bis grantor has to convey; that be assumes the risk of its being a good title; and that tbe consideration is based upon tbe value of tbe kind of conveyance made. In the present case no fraud was practiced upon tbe grantee. He knew bis grantor’s title was based upon a tax title and that defendant refused to warrant tbe title. He bad tbe advice of counsel that tbe title was good. Tbe means of information as to tbe invalidity of the title were equally open and available to both parties. Under such circumstances plaintiff assumed tbe hazard as to title. His grantor conveyed all be agreed to convey and plaintiff received tbe consideration bargained for, namely, a quitclaim deed. There being no fraud and no mistake as to tbe kind of conveyance that was to be given and tbe contract being fully executed, plaintiff is without a remedy either in law or equity, and tbe demurrer was properly sustained.

By the Coutt. — Order affirmed.  