[No. 14289.

Department One.

March 31, 1892.]

#### MARY E. ANDERSON, Appellant, *v.*J. E. YOAKUM et al., Respondents.

State Lands — Quitclaim Deed by Applicant to Purchase.—A quitclaim deed of state lands, made by a party who had merely prepared his application to purchase the same from the state, passes no interest in the lands to the grantee.

Id, — Covenant with Respect to After-acquired Title. — A covenant in the *habendum,*clause of such a deed, that any after-acquired title shall vest in the grantee, does not have the effect of itself to vest such title in the grantee upon its acquisition by the grantor.

Appeal from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial-

The facts are stated in the opinion of the court.

*Justin Jacobs,*for Appellant.

*Charles C. Lamberson,*for Respondents.

Garoutte, J.

This is an action to quiet title. Plaintiff appeals from the judgment and order denying her motion *228for a new trial. Respondents are successors in interest of one McKenna. At the time McKenna prepared his application to purchase the land involved in this litigation from the state, and prior to the filing of such application, he remised, released, and quitclaimed his interest in the property to appellant by deed duly executed and acknowledged. The *habendum*clause in said deed was as follows: “ 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, and also any estate, right, title, or interest which the said party of the first part may hereafter acquire in and to the above-described premises.” Subsequently to the date of'said deed, Mc-Kenna’s application to purchase was approved, a certificate was issued to him, and his assignee of such certificate obtained the patent which now rests in the respondents.

The only question involved in this appeal is, Did the deed of McKenna to plaintiff vest his after-acquired title in her? In other words, did the certificate of purchase to McKenna inure to the benefit of plaintiff by reason of her deed? In *Cadierque*v. *Duran,*49 Cal. 356, it was expressly decided that a party who has simply filed his application to purchase has no interest in the realty subject to transfer, and to the same effect is *People*v. *Blake,*84 Cal. 614. In *Morrison*v. *Wilson,*30 Cal. 344, it was held that words used in a deed conveying the property in fee-simple absolute will be construed to convey only the present interest of the grantor, and not to pass an after-acquired title, if a clause is inserted declaring that as to title it is only a quitclaim deed; and to the same effect is *Montgomery*v. *Sturdivant,*41 Cal. 290.

While these cases sustain the principle that the legal effect of words of conveyance may be limited and restricted by subsequent recitals in a deed, we have been referred to no case holding that a covenant by a grantor in a deed of quitclaim and release that any after-acquired title shall vest in the grantee has the effect of itself to vest such title in the grantee upon its acquisition by the *229grantor. The *habendum*clause of a deed refers to and acts upon the interest conveyed, most frequently limiting and qualifying such interest, but, as we have already shown, the grantor here had no interest whatever in the realty at the date of his deed to plaintiff, and it follows that no title, either present or future, vested in her through this conveyance.

Let the judgment and order be affirmed.

Paterson, J., and Harrison, J., concurred.