Corcoran v. Abstract & Title Co.

143 A.2d 808, 217 Md. 633

• Court: Court of Appeals of Maryland
• Decided: August 15, 1958
• Docket: [No. 289, September Term, 1957.]
• Status: Published

Opinions

Henderson, J.,

delivered the opinion of the Court.

The appellants agreed to purchase from George O. King and Esther J. King, his wife, a parcel of land in Riverdale Park, Prince George’s County, and employed the appellee to examine the title for them. In due course a certificate of title was executed and delivered to the appellants by the title company. It certified that “the title to the above described real estate is considered good in fee simple”, with certain exceptions not here material. It further stated: “This certificate does not cover mechanics’ liens not recorded at the date hereof, nor unrecorded deeds, adverse claims and interests, defects of title, secret trusts, easements, restrictions, or any other liens or encumbrances not properly evidenced by the public land records and not properly indicated by general indices at the date hereof.” The certificate did not list among the exceptions, following the statement that the title was “good in fee simple”, a right-of-way deed from George O. and Esther J. King to the Washington Suburban Sanitary Commission, recorded on January 28, 1954. After delivery of the certificate, the appellants completed the purchase and entered into possession of the property.

Upon discovery of the easement, when the Sanitary Commission began to excavate and lay pipe lines across their lot, the Corcorans filed an action presumably in tort, against the title company, and obtained a judgment upon a jury’s verdict, which was set aside, on the ground that the verdict was excessive, and a new trial granted. Thereupon, the declaration was amended, basing the claim for damages upon the allegation that the plaintiffs were induced to accept the title “by the incorrect and negligent representation” of the title company. The defendant filed a motion for summary judgment, with supporting affidavit and exhibits. The motion was granted.

It appears that the land records in question were indexed according to the “Cott” system. Instruments offered for record are recorded in libers or books maintained for that purpose, with an index arranged alphabetically in the front of each liber, and references then given to the initial folio or page where the particular instrument is transcribed. There are also grantor and grantee indices referring an abstracter to the appropriate liber and folio where the instrument is recorded. The instrument in question was correctly recorded in Riber 1693, fol. 251, and was correctly noted in the grantee index. In the grantor index, however, there was a clerical mistake. The entries were as follows:

Surname Grantors Kind of InstruGrantees ment Date Land Record Recorded (Book) (Page)

King Esther J. W.S.S.C. R/W Jan. 28, 1693 248

George O. 1954

King Winifred W.S.S.C. R/W Jan. 28, 1693 251

William A. 1954

The page numbers were transposed by the clerk who made the entries. The right-of-way deed from the appellants’ predecessors in title actually appeared at page 251, and the right-of-way deed from William A. King and Winifred King appeared at page 248. If we assume that the abstracter ran the grantor index, he must have found the entry showing the conveyance of a right-of-way from George O. and Esther J. King. If he then turned to page 248, he found there the conveyance from the other Kings. Presumably, he made no further investigation. If he had turned back to the index showing the entry as to the other Kings, the transposition would have become apparent, or, having been referred by the general grantor index to the proper liber he had consulted the index to that liber, or if he had consulted the general grantee index to which the entries in the grantor index should have led him, the error would have become apparent. But the trial court took the view that the action was barred by the language of the certificate above quoted.

One who undertakes to examine a title for compensation is bound to exercise a reasonable degree of skill and diligence in the conduct of the transaction. This liability, “although ordinarily enforced by an action of case for negligence in the discharge of his professional duties, in reality rests upon his employment by the client and is contractual in its nature.” Watson v. Calvert Bldg. Ass’n, 91 Md. 25, 33. It is generally recognized that damages are recoverable on the theory of a breach of contract, and the legal situation is not changed by the fact that the contractual act bargained for is negligently performed. See Russell & Co. v. Polk County Abstract Co., 54 N. W. 212 (Ia.); Savings Bank v. Ward, 100 U. S. 195; Bridgeport Airport v. Title Guaranty & Trust Co., 150 A. 509 (Conn.); Commercial Bank of Mott v. Adams County Abstract Co., 18 N. W. 2d 15 (N. D.) ; Trisdale, Inc. v. Shasta County Title Co., 304 P. 2d 832 (Cal.). See also 1 Fitch, Abstracts & Titles to Real Property, § 10; Note 28 A. L. R. 2d 891; 1 Am. Jur., Abstracts of Title, § 27; 1 C. J. S., Abstracts of Title, § 11. Since the liability is contractual, it may be limited in its scope by apt and clear language brought home to the employer. Liability in the instant, case depends upon the meaning to be accorded the exclusion clause in the certificate of title.

The right-of-way deed was duly recorded in Liber 1693, fol. 251 of the land records and it is conceded that it was “properly evidenced by the public land records”. The question is whether it was “properly indicated by general indices”, under a fair and natural construction of the phrase selected by the defendant. Since the facts as to the state of the records are undisputed, the problem is one of construction, and we think the phrase is not free from ambiguity. It is not clear, for example, whether the use of the plural imports that the indication must appear in one or all of the indices, or whether something short of complete accuracy might still be an indication. Each of the three entries in the indices showed that a right-of-way deed from George O. and Esther J. King had been placed upon record. The only error was in the page reference in the grantor index. It is argued that the use of the word “properly” imports clerical exactness in every entry. But in some contexts at least, the word may import an adequacy to accomplish the purpose intended, without nice distinctions as to the correct form of the entries. Cf. Jones v. Danforth, 98 N. W. 668 (Neb.), where the phrase construed was “properly docketed”. The closest case on the facts that we have found is Crook v. Chilvers, 157 N. W. 617 (Neb.). There it was held that an abstracter was not relieved of liability because of an error in the numerical index, upon which he relied without further examination. There was no exclusion clause in the certificate, but it was assumed, that the abstracter would not have been liable if the encumbrance had not been recorded at all, or not properly recorded in any of the indices.

We think it may fairly be contended that the entry in the grantor index was enough to put a reasonably skillful and diligent abstracter upon notice of the deed, and that it was his duty to exhaust the means at hand to locate it. Of course, he was not obliged to go outside the record, but here the error could have been detected by referring to the grantor and grantee indices' since the correct page number appeared on the grantee index, or by merely referring back to the grantor index where the conveyance by the other Kings was entered. Whether the abstracter used reasonable care under the circumstances presented an issue to be resolved by the trier of facts, or by the court upon motion for directed verdict. In the light of the general undertaking to use reasonable skill and diligence, we think the exception should be construed to cover only those cases where the error could not reasonably be discovered by a further search of the indices.

We conclude that the defendants’ motion for summary judgment should not have been granted, and accordingly, we shall reverse the judgment and remand the case for further proceedings.

Judgment reversed and case remanded, costs to be paid by the appellee.