
    (75 Hun, 552.)
    WILHELM et al. v. WILKEN.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Quitclaim Deed—Recording.
    A quitclaim deed is a conveyance, within 1 Rev. St. p. 756, § 1, providing that every conveyance not recorded shall be void as against a subsequent purchaser, in good faith and for value, of the same property, “whose conveyance shall be first duly recorded.”
    Controversy between Nicholas Wilhelm and Wilhelmina Wilhelm, plaintiffs, and Charles Wilken, defendant, submitted on agreed statement of facts, under Code Civ. Proc. § 1279. Judgment for plaintiffs.
    
      Argued before DYKMAN, PRATT, and CULLEN, JJ.
    Harry V. Morgan, for plaintiffs.
    Frank A. Bennett, for defendant.
   DYKMAN, J.

This is a submission of a controversy without action, and the following are the facts upon which the case is committed to the court:

In September, 1893, the plaintiffs made a written contract with the defendant, by which they undertook to sell and convey to him the southwesterly half part of lot No. 167 on a map of Washington-ville, for $500,' and deliver him a warranty deed of the same, free from incumbrance, on the 25th day of September, 1893. Ten dollars was paid by the defendant when the contract was executed, and the remainder of the purchase money was to be paid upon the delivery of the deed. By the advice of counsel, the defendant refused to complete the contract, basing such refusal upon the following facts:

In February, 1864, lots Nos. 166 and 167 upon the aforementioned map of Washingtonville were conveyed to one Cornelius H. Tall-man by one William D. Forshay, by deed of conveyance duly executed and recorded, and it is conceded that Tallman’s title was valid. The following is the chain of title from Tallman down to the plaintiffs:

CORNELIUS H. TALLMAN and Wife to JOHN AUGUSTUS PAGE. Warranty deed, with full covenants, dated November 28, 1864, ack’d December 2, 1864, & rec’d Peb. 7, 1893, in Liber 1304 of Deeds, at page 103.

That deed conveys lots Nos. 166 and 167, Washingtonville.

CORNELIUS H. TALLMAN and Wife to LOUISA A. PENEIELD. Quitclaim deed, dated July 11, 1889, ack’d July 11, 1889, rec’d July 22, 1889, in Liber 1172 of Deeds, at page 340.

That deed conveys lots Nos. 166 and 167, Washingtonville, and the following language is extracted therefrom. After the acknowledgment of the receipt of the money comes the following:

“Have remised, released, and quitclaimed, and by these presents do remise, release, and quitclaim, unto the said party of the second part, and to his heirs and assigns, forever, all those certain lots, [then follows a full description of the premises,] together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand, whatsoever, as well in law as in equity, of the said parties of the first part, of, in and 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 party of" the second part, her heirs and assigns, forever.”

LOUISA A. PENEIELD to NICHOLAS WILHELM & WILHELMINA. his Wife. Warranty deed, with full covenant, dated July 17, 1889, ack’d July 17, 1889, rec’d July 22, 1889, in Liber 1172 of Deeds, page 328.

That deed conveys lots Nos. 166 and 167, Washingtonville.

Before accepting that deed, the plaintiffs had the title examined, and it appeared to be valid. Down to that time, and for a long time subsequent thereto, the plaintiffs had no notice of the conveyance by Tallman to Page, or that any one made any claim by virtue thereof. At the time of the execution of the deeds from Tail-man to Penñeld and from Penñeld to the plaintiffs, the premises were unoccupied, unimproved, uncultivated, and unfenced. The consideration in the deed from Tallman to Penfield is $100, but the premises were sold subject to taxes and tax leases. The consideration in the deed from Penfield to the plaintiffs was $1,000, and they went into possession immediately upon the receipt of their deed, and have remained in possession since that time.

Upon these facts, the plaintiffs demand judgment declaring their title valid to the premises, and requiring the defendant to complete his purchase. The defendant demands judgment declaring that the plaintiffs have no title to the premises, and that his deposit of $10 be returned to him.

From the facts recited, it appears that the plaintiffs are bona fide purchasers for value, without notice of the deed of conveyance to Page, and that the deed from Tallman to Penfield was recorded previous to the deed to Page. The deed from Tallman to Pen-field, however, is what is ordinarily denominated a “quitclaim deed.” In more strict language, it is a deed of release; and the insistence of the defendant is that the recording act does not protect a purchaser under such a deed for a valuable consideration. The language of that act is this:

“Every conveyance of real estate within this state hereafter made shall be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.” 1 Rev. St. p. 756, § 1.
• “The term ‘conveyance’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or-by which the title to any real estate may be affected in law or equity.” Id. p. 762, § 3S.
“Deeds of bargain and sale and of lease and release may continue to be used and shall be deemed grants, and as such, shall be subject to all the provisions of this chapter concerning grants.” Id. p. 739, § 142.

As we have already said, an ordinary quitclaim deed is a deed of lease and release, and by this statute is deemed to be a grant. Moreover, the terms “remise, release, and quitclaim,” employed in this deed in question, accompanied by a valuable consideration, as in this case, are sufficient in law to pass any interest or estate which the person making the instrument had at the time of its execution. Jackson v. Fish, 10 Johns. 456; Striker v. Mott, 28 N. Y. 92. An instrument containing those operative words has been held to be a valid deed of bargain and sale. Jackson v. Root, 18 Johns. 60; Lynch v. Livingston, 6 N. Y. 434. Quitclaim deeds are by no means uncommon in practice, and we may assume that many- titles are held under them; and it is too late now to hold that they are not conveyances, within the. meaning of the recording acts. It is quite remarkable that the question has not been decided in this state, but, so far as we can ascertain, it has not. There is certainly no reason why the deed from Tallman to Pen-field should not be declared a valid instrument for the conveyance of the title. It was so intended by the parties, or at least by the grantee, who paid a valuable consideration, without notice of the prior deed. Our conclusion is, therefore, that the deed is a conveyance, within the recording statutes, which protect the purchaser, and render the deed to Page valid, as against Penfield, the grantee. This conclusion validates the title of the plaintiffs, and the defendant must be required to complete his purchase. As each party asks for costs, they must be awarded to the plaintiffs. Let judgment be entered according to the foregoing views. All concur.  