
    COOK et al. v. SMITH.
    (No. 2409.)
    (Supreme Court of Texas.
    March 31, 1915.)
    1. Deeds <@=>25 — Natube oe Instrument — “Warranty Deed” — “Quitclaim Deed.”
    Whether a deed is a “warranty deed” or a “quitclaim deed” must be determined according to whether it assumes to convey the property described on its face, and has that effect, or merely assumes to convey the grantor’s title, and where it conveys the property itself, it is a “warranty deed,” while if it conveys only the title of the grantor, it is a “quitclaim deed.”
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <@=>25.
    Eor other definitions, see Words and Phrases, First Series, Warranty Deed; also First and Second Series, Quitclaim Deed.]
    2. Deeds <@=>25 — Nature or Instrument — Warranty Deed — Quitclaim Deed.
    The court, in determining whether a deed is a warranty deed or a quitclaim deed, must consider it as a whole, and where it shows a purpose to convey the property itself as distinguished from the mere title of the grantor, it must be given effect as a warranty deed, though some of its characteristics may be those of a quitclaim deed, and the mere use of the term “quitclaim” is not of itself conclusive of its character.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <@=>25.]
    3. Deeds <@=>25 — Nature oe Conveyance— Warranty Deed.
    A deed which recited that the grantor bargained, sold, released, and forever quitclaimed described lots “to have and to hold the said premises,” with their appurtenances, the grantee and his heirs and assigns forever, “and it is my [grantor’s] intention here now to convey * * * all ⅛6 real estate that I own in said town of ⅜ ⅜ ⅜ whether it is set out above or not,” was a warranty and not a quitclaim deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. | 49; Dee. Dig. <@=>25.]
    4. Vendor and Purchaser <@=>224 — Bona
    Fide Purchaser — Claimant under Grantee in Quitclaim Deed.
    Where a grantee in a quitclaim deed conveyed to a third person by warranty deed, the third person was not an innocent purchaser, where the record showed a conveyance by the grantor in the quitclaim deed before its execution.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. <@=>224.]
    5. Evidence <@=>448 — Deeds—Construction —Evidence.
    Where a deed is ambiguous, evidence of the attendant circumstances is admissible to determine its meaning.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. <&= 448.]
    6. Appeal and Error <@=>1094 — Findings— Conclusiveness.
    A finding of fact not disturbed by the Court of Civil Appeals, when reversing the judgment on a question of law, is conclusive on the Supreme Court on writ of error to review the judgment of the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. <⅛=> 1094.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Trespass to try title by J. M. Smith against H. P. Cook, in which defendant vouched in A. A. Neff as grantor on his warranty. There was a judgment of the Court of Civil Appeals (142 S. W. 26), reversing a judgment for defendant and rendering judgment for plaintiff against defendant, and reversing judgment on cross-bill, adjudging that defendant should take nothing thereon, and remanding for new trial, and defendant and A. A. Neff bring error.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
    R. D. Browne, of Paducah, O. T. Warlick, of Vernon, and Whatley & Hawkins, of Padu-cah, for plaintiffs in error. Fires & Diggs, of Childress, and Crosby & Hamilton, of Greenville, for defendant in error.
   PHILLIPS, J.

The suit was instituted by the defendant in error, J. M. Smith, against H. P. Cook, one of the plaintiffs in error, in trespass to try title, for the recovery of a lot in the town of Paducah. Cools answered with a plea of not guilty; that he was a bona fide purchaser of the lot, for value, without notice of any adverse claim; and improvements in good faith, vouching in A. A. Neff, the other plaintiff in error, his grantor, upon his warranty, and seeking recovery over against Neff on account of his improvements. Neff answered by a plea of not guilty, and that he was an innocent purchaser of the property from. R. Potts, the common source of title. The trial of the case before the court resulted in a judgment denying any recovery to Smith, quieting Cook’s title to the property, and denying the latter any relief on his cross-action against Neff. This judgment was reversed by the honorable Court of Civil Appeals, upon the ground that the deed from Potts to Neff was merely a quitclaim deed, and therefore incapable of sustaining the defense of an innocent purchase of the property, and judgment rendered in Smith’s favor for the lot and the recovery of a certain amount as rents, the cause being remanded for trial as between Cook and Neff upon the issues arising on the former’s cross-bill.

R. Potts duly conveyed the lot to Smith • by warranty deed, dated September 21, 1906, but not recorded until September 29, 1909. The deed from Potts to Neff was of date August 31, 1909, and recorded the same day. Cook holds under that deed by subsequent conveyance-from Neff, by deed of date September 3, 1909, recorded the same day. The case turns upon the legal effect of the deed from Potts to Neff, since if that was merely a quitclaim deed, Cook’s plea of innocent purchaser failed, and Smith was accordingly entitled to recover the property. Omitting the description, the deed from Potts to Neff was in the following terms:

“State of Texas, County of Cottle.

“Know all men by these presents, that I, R. Potts, a single man, of the county of Cottle and state of Texas, for and in consideration of the sum of $2,500.00 to me cash in hand paid, by A. A. Neff, of San Bernardino county, state of California, the receipt whereof is hereby duly acknowledged and confessed, have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, unto the said A. A. Neff, of San Bernardino county, state of California, and his heirs and assigns, ail my right, title and interest in and to that certain tracts or parcels of land lying and being situated in the county of Cottle, and state of Texas, and known and described as follows, to wit:
“[Here follows description by bloek and number of a large number of lots, including the lot in controversy; also several small tracts by metes and bounds.] and all other real estate that I now own and am possessed of in the town of Paducah, in Cottle county, Texas. All of the above town property is situated in the town of Paducah, in Cottle county, Texas, as shown by the original recorded plat of said town, of record in vol. 5. page 81, in the deed records of Cottle county, Texas; and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle county, Texas, whether it is set out above or not.
“To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof.
“Witness my hand at Paducah, Texas, on this the 31st day of August A. D. 1909.
“[Signed] R. Potts.”

The character of an instrument, as constituting a deed to land or merely a quitclaim deed, is to be determined according to whether it assumes to convey the property described and upon its face has that effect, or merely professes to convey the grantor’s title to the property. If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed. Richardson v. Levi, 67 Tex. 364, 3 S. W. 444; Threadgill v. Bicker-staff, 87 Tex. 520, 29 S. W. 757.

The intention of the instrument is to be confined, of course, to that which its terms reveal; but it should be considered in its entirety, and if, taken as a whole, it discloses a purpose to convey the property itself, as distinguished from the mere title of the grantor, such as it may be, it should be given the effect of a deed, although some of its characteristics may be those of a quitclaim deed. The use of the term “quitclaim” is not, of itself, a conclusive test of its character. It may make use of that term and yet have the effect of a conveyance of the property. Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Richardson v. Levi, supra.

The granting clause of the deed from Potts to Neff, “have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, unto the said A. A. Neff * * * all my right, title and interest in and to that certain tracts or parcels of land,” and the habendum clause, as well, “To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof,” are essentially in the terms of a quitclaim deed. If the character of the instrument were dependent, alone, upon the construction of these parts of it, there could be no doubt, under the authority of Threadgill v. Bicker-staff, supra, and Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66, of its being simply a quitclaim deed, since these clauses are in substantially the same terms as the granting and habendum clauses of the respective instruments reviewed in those decisions and there held to be quitclaim deeds.

Furthermore, if the deed from Potts to Neff was only a quitclaim deed, Cook’s title, deraigned through that deed and resting upon it, was not such, under the rule of decision in this state, as would sustain the defense of an innocent purchase of the property, though the deed from Neff to himself was a general warranty; for in such ease the record, or apparent, title to the property was clearly only such as Potts possessed, which, because of his previous conveyance to Smith, was no title at all. Taylor v. Harrison, 47 Tex'. 460, 26 Am. Rep. 304; Garrett v. Christopher, and Threadgill v. Bickerstaff, supra.

But the presence in the deed from Potts to Neff of the clause, “and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah, whether it is set out above or not,” cannot' be overlooked. It discloses very plainly, we think, that the grantor’s intention in the execution of the instrument was to convey all of the property situated in the town previously described, and any other property there owned by him which was not described.

It is very earnestly insisted by the defendant in error that this clause is not to be construed as a declaration of the grantor’s intention to convey any of the property described wMch he did not own, but it should be held to have reference only to such real estate in the town of Paducah as he actually owned, notwithstanding his inclusion in the instrument of specific property by express description. According to this contention, the clause should be construed as though it read, “and it is my intention here now to convey to the said A. A. Neff only such real estate as I own in said town of Paducah, although I have included herein certain specific real estate there situated.” But the clause is not so written, and such is not, in our opinion, its natural sense. To give it that meaning requires a complete change in the form of its expression. Such a construction would give it all the force of a clause of limitation or restriction, when plainly that was not its intended operation. Its manifest purpose was to enlarge both the granting clause of the instrument and the preceding terms of description. This is shown by the use of its ampler phrase. The instrument had previously dealt with only the grantor’s title to particular property. But to make plain that it had a larger purpose than merely to release the grantor’s title to the particular property in the town which had been described, it is distinctly announced in this clause that the grantor’s intention in the execution of the instrument was to ooiwey all the real estate that he owned in the town, whether specifically described or not. This could mean nothing less than an intention to convey all the town property described; for the expression in the clause, “whether set out above or not,” carries the evident implication that the grantor owned, or treated as owned, the particular town property “set' out,’’ and it was therefore intended to be conveyed. As has been indicated, the test of the character of the instrument is not whether it was in fact effectual to convey any property, but whether it purported to convey this property. If its terms upon their face had the legal effect to convey the lot, that determines its character as a deed to the lot, and ends the present inquiry.- If upon its face it amounted to a deed to the lot, its actual operation was dependent upon its right to prevail against the rival conveyance — another question, governed by other rules of law and the facts of the case upon that issue. There is an obvious distinction between the meaning of the clause in this instrument, declaring, “and it is my intention to here now convey to the said A. A. Neff all the real estate that I own in the said town of Paducah in Cottle county, Texas, whether it is set out above or not,” and one following a description of particular property in a town which says that the intention of the grantor “is to here now convey only such property in said town as he owns, notwithstanding the description of particular property.” The difference is that while both clauses would express an intention to convey only such property as the grantor owned, the first, as before stated, carries the further equally plain profession that he owned the property in the town which he had described, and therefore intended to convey it. This clause in the instrument clearly assumed to convey this lot; and the instrument should accordingly be construed as a deed to the lot. If there were any doubt as to the purport of the deed being that this lot was “oioned” by the grantor, it is relieved by the clause immediately following the description, “and all other real estate that I own and am possessed of in the town of Paducah,” which amounts to an affirmation that he owned the town property before described.

If the result of the use of this clause was to render the instrument ambiguous — • and it was not capable of producing a more favorable effect for the defendant in error— permitting the introduction of proof of the attendant circumstances for the purpose of determining the true meaning of the instrument (Harrison v. Boring, 44 Tex. 255; Threadgill v. Bickerstaff, supra) the record contains sufficient evidence to support the conclusion that a conveyance of the town property described was in fact intended in the execution of the deed. It was accordingly capable of sustaining the defense of an innocent purchaser, interposed by both Neff and Cook, as held by the trial court.

Cook was clearly a bona fide purchaser for value. Whether he had notice of Smith’s claim before he paid the consideration for the lot was a question of fact which, in the state of the record, is concluded by the judgment of the trial court.

It is proper that we should call attention to the manifest conflict between the holding in Garrett v. Christopher, that notwithstanding the other features of the instrument may be those peculiar to a quitclaim deed, the use of the term “premises” in the habendum clause will enlarge the effect of the instrument into that of a deed, and the later decisions of the court in Threadgill v. Bicker-staff and Dunham v. Eastham; since in neither of those cases is it recognized that the mere use of that term in such connection has, of itself, any such force. Garrett v. Christopher is not referred to in either opinion, hut it cannot he otherwise regarded than as distinctly qualified by the ruling announced in each of these later cases.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed. 
      <@=>lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     