If any person sells and conveys to another by deed or conveyance, purporting to convey an estate in fee simple absolute, any tract of land or real estate lying and being in this state, not being possessed of the legal estate or interest therein at the time of the sale and conveyance and, after such sale and conveyance, the vendor becomes possessed of and confirmed in the legal estate of the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vendee, and said conveyance shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance.
Source: R.S. p. 106, § 4. G.L. § 163. G.S. § 201. R.S. 08: § 672. C.L. § 4873. CSA: C. 40, § 5. CRS 53: § 118-1-4. C.R.S. 1963: § 118-1-4.
ANNOTATION
Law reviews. For article, "The Perennial Problem of Security Priority and Recordation", see 24 Rocky Mt. L. Rev. 180 (1952). For article, "Transmissibility of Future Interests in Colorado", see 27 Rocky Mt. L. Rev. 1 (1954). For article, "In 'Case' You Missed It — 2020-21: Real Estate Case Law Highlights", see 51 Colo. Law. 44 (Jan. 2022).
This section is merely a codification of the general rule, and is in harmony with the same. Colo. Trout Fisheries, Inc. v. Welfenberg, 84 Colo. 592, 273 P. 17 (1928).
Purpose of section. This section's obvious purpose is to confirm in the grantee any legal estate or interest subsequently acquired by the grantor which was intended to be conveyed. Van Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698 (1900).
This section does not abrogate the common law after-acquired interest doctrine. The general assembly has expressed no clear intent to abrogate the common law in enacting this section. The statute's express provision of a remedy to cure defects in fee simple estates does not preclude the survival of common law remedies. Given the plain language and legislative history of this section, this section is not a limitation on common law remedies but clarifies an ongoing debate over which warranties are impliedly included in particular kinds of deeds. Amada Family Ltd. P'ship v. Pomeroy, 2021 COA 73, 494 P.3d 633.
Applicability of section limited. This section has no application except in cases where the deed purports to convey an estate in fee simple absolute. Rittmaster v. Brisbane, 19 Colo. 371, 35 P. 736 (1894).
Section applicable only when the original transfer consists of a transfer of title to real property by sale or conveyance. Conveyance is the transfer of title from one person to another by delivery and acceptance of a deed. The deed of trust could not have purported to transfer title to the property from husband to the bank but rather secured payment of indebtedness by transfer to the public trustee. As such, the transaction was not a conveyance. Premier Bank v. Bd. of County Comm'rs of County of Bent, 214 P.3d 574 (Colo. App. 2009).
Section applies only to purported conveyances of land or estates in fee. Conveyance of a fee simple interest is generally accomplished by describing the grant as consisting of "the following real property" or some other description of the land. Such a conveyance carries with it covenants and warranties on the part of the grantor. Quitclaim language, however, only purports to convey the grantors' present interest; it makes no title warranty of any kind. It necessarily follows, therefore, that this section does not apply to such conveyances. Premier Bank v. Bd. of County Comm'rs of County of Bent, 214 P.3d 574 (Colo. App. 2009).
Granting clause of the deed only conveyed a quitclaim interest. Such language does not purport or promise to convey land or an estate in fee but only that which husband actually owned at the time. It is the granting clause, not the warranty clause in a deed that describes the nature of the interest conveyed. To the extent there is any conflict between the warranty clause and the granting clause, the latter controls. Premier Bank v. Bd. of County Comm'rs of County of Bent, 214 P.3d 574 (Colo. App. 2009).
Section does not affect lien priorities, and trial court erred in relying upon it to reverse priorities otherwise established under race-notice. Race-notice is the linchpin of Colorado real estate law. By its plain terms, statute applies only to enforce a guarantor's warranty to a grantee, and its intent is to remedy the possibility that, in the grant of an estate in fee simple absolute, the grantor could still claim, as against the grantee, title to property that the grantor purported to convey but only acquired title to after the conveyance. Thus, statute merely serves to "bind" a grantor to the terms of the original purported conveyance, and, contrary to bank's argument, it contains no language pertaining to or overriding establishment of lien priorities under race-notice. Accordingly, although the bank had valid lien on husband's after-acquired interest, lien is junior to county's lien on one-half undivided interest in property held by wife. Premier Bank v. Bd. of County Comm'rs of County of Bent, 214 P.3d 574 (Colo. App. 2009).
Applied in Phillipp v. Leet, 19 Colo. 246, 35 P. 540 (1893).