Denton v. Nashville Title Co.

112 Tenn. 320

• Court: Tennessee Supreme Court
• Decided: December 15, 1903
• Status: Published

Opinion

Mr. Justice Neil,

after making tlie foregoing statement, delivered the opinion of the Court.

It is clear that the defendant was guilty of a breach of duty in failing to note the existence of the judgment of June 8, 1898, inasmuch as the appeal did not destroy the lien, but only suspended it (Shannon’s Code, section 4711) ; and, being the immediate purchaser of the land from the person to whom the abstract was issued, and the defendant knowing that it was procured to be used in making sale of the property, the complainant was entitled to the benefit of it, and could sue for a material defect therein causing injury. Dickle v. Abstract Co., 89 Tenn., 431, 14 S. W., 896, 24 Am. St. Rep., 616.

It appears, however, that the injury was not caused by the enforcement of the judgment lien. Indeed, a comparison of certain dates above mentioned discloses the fact that the judgment of the supreme court, into which the judgment of the chancery court was merged, was more than one year old, and its lien therefore had expired when the proceedings were begun by Alford which resulted in a loss of the property to the complainant.

The complainant insists that the mortgage taken by Alford, and which was enforced as above stated, should be considered in connection with the judgment and the two should be treated as one transaction, inasmuch as the mortgage was executed by Mauck to indemnify Alford in the liability which he had assumed in respect of the demand upon which the judgment was based, and the mortgage was enforced against the land. But if we so treat them the result is not changed. The judgment was not enforced. The mortgage, it is true, was enforced. But this paper had never been registered, and neither complainant nor his vendor had any knowledge of its existence. That instrument therefore would have had no vigor against the complainant if his tax title had been valid. That title, however, was directly assailed for invalidity in the proceeding brought to enforce the mortgage, and was overthrown and cast aside as being only a cloud upon the title. We have a case, then, wherein the judgment which was omitted from the abstract was not enforced against the land at all, and wherein the mortgage referred to could not have been enforced against it but for. the fact that complainant’s supposed title was inherently defective; in fact void.

The cause of the complainant’s loss therefore was the inherent invalidity of his title, not the enforcement of the judgment omitted from the abstract. There being no causal connection between the defendant’s fault and the loss sustained, therefore the complainant cannot recover.

It is insisted, however, that, if the abstract had contained a reference to the judgment of June 8th, complainant would have observed it, and he would not have bought the land at all. Hence it is said be was injured by the defect referred to.

This is too remote. No one can say with any certainty wbat the complainant would have dqne if his attention had been called to the judgment. The matter was still in litigation, and upon examination of the files and conference with the parties, or upon other examination into the merits or probabilities of the litigation, he might have been willing, for some deduction in the price, to have taken the -risk. It is impossible to forecast the risks a trader will chance in the hope of gain. Such risks run all the way from assured profit to the wildest guess of speculative venture.

The damages in this class of cases should be confined to injuries which the court can see resulted in loss of title or impairment of some kind to the ownership or enjoyment of the property which was purchased on faith of the abstract, and that such injury was the direct result of the defect complained of therein.

Let the judgment be affirmed.