549 F.2d 1358 (10th Cir. 1977), 76-1095, Webbe v. McGhie Land Title Co.
|Citation:||549 F.2d 1358|
|Party Name:||Sorkis J. WEBBE, Plaintiff-Appellee, v. McGHIE LAND TITLE COMPANY and Lawyers Title Insurance Corporation, Defendants-Appellants. Sorkis J. WEBBE and Lawyers Title Insurance Corporation, Third-Party Plaintiffs, v. Dorothy Cobb KITT, Third-Party Defendant-Appellee.|
|Case Date:||February 17, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
Argued and Submitted Nov. 16, 1976.
Richard J. Leedy, Salt Lake City, Utah, for Sorkis J. Webbe, plaintiff-third party plaintiff-appellee.
Earl P. Staten, Salt Lake City, Utah (Tibbals & Staten and Bill Thomas Peters, Salt Lake City, Utah, on the brief), for appellants.
Ned Warnock, Salt Lake City, Utah, for Dorothy Cobb Kitt, third party defendant-appellee.
Before SETH, BREITENSTEIN and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
The trial court entered summary judgment in the amount of $400,000 in favor of the plaintiff and against the defendant insurer on a policy of title insurance. At the same time the trial court also entered summary judgment dismissing the defendant's third party complaint and entered judgment quieting title to certain real property in the third party defendant. The insurer appeals both judgments thus entered against it. We reverse.
On appeal the main issue is whether on the basis of the record then before it the trial court was justified in concluding by way of summary judgment that a certain deed was a forgery. One Sorkis J. Webbe, a St. Louis attorney with interests in Nevada, was the grantee in a deed conveying title to certain real property in Utah. The grantor was a company known as Consolidated Investment Corp. Consolidated's grantor in the chain of title was one Dorothy Cobb Kitt.
At or about the time that Webbe received a warranty deed from Consolidated, he obtained a commitment for a policy of title insurance from the Lawyers Title Insurance Corporation, the latter acting through its Salt Lake City agent, McGhie Land Title Co. Lawyers Title Insurance Corporation will hereinafter be referred to as Title Insurance.
A few months after the property was deeded to Webbe by Consolidated, a question arose as to the genuineness of the deed purportedly executed by Dorothy Cobb Kitt conveying the property to Consolidated. The questioned deed, bearing what was ostensibly the signature of Dorothy Cobb Kitt, had been notarized and duly recorded. Kitt executed an affidavit declaring that her signature on the questioned deed was a forgery, and this affidavit was itself duly
recorded. Title Insurance apparently learned of the Kitt affidavit, but, pursuant to its prior commitment, issued a title insurance policy to Webbe for the face amount of $400,000.
Webbe thereafter made demand on Title Insurance and, when his demand was not met, he brought suit under the terms of the title insurance policy against the insurance company. Title Insurance then brought, on behalf of Webbe, a third party action against Kitt, attempting thereby to quiet title to the premises in Webbe.
Numerous depositions were taken by way of pretrial discovery. Webbe and Kitt each then filed a motion for summary judgment. At hearing it was the position of respective counsel for both Webbe and Kitt that the only issue in the case was the genuineness of the Kitt deed, and that based on the depositions it had been established that the deed was a forgery.
The trial judge at the outset of the hearing on the motion for summary judgment indicated that a "factual hearing" was necessary. However, based upon the argument of counsel for Webbe and...
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