Allen v. Webb
| Decision Date | 01 June 1971 |
| Docket Number | No. 6332,6332 |
| Citation | 485 P.2d 677,87 Nev. 261 |
| Parties | Emmet W. ALLEN and Myrtle R. Allen, and Title Insurance and Trust Company, a California corporation, Appellants, . R. W. WEBB, Respondent. Emmet W. ALLEN and Myrtle R. Allen, Appellants on Cross-Claim, v. TITLE INSURANCE AND TRUST COMPANY, a California corporation, Respondent on Cross-Claim. |
| Court | Nevada Supreme Court |
W. Bruce Beckley, Las Vegas, for Title Insurance and Trust Co.
Lionel Sawyer, Collins & Wartman, Las Vegas, for R. W. Webb.
The Allens owned an apartment building. The Earls owned a ranch in Overton, Nevada. Phillips owned nothing. Phillips negotiated a transaction whereby the Allens conveyed their apartment building to Phillips, Phillips gave them a $71,500 note secured by a trust deed on the Earls' ranch and the Earls conveyed the ranch to Phillips in exchange for the apartment building. As a result of this escrow transaction through Title Insurance and Trust Company, Phillips had a ranch against which he owed $71,500 to the Allens.
Title Insurance, the escrow agent, did not record the deed of trust owned by the Allens, but instead merely mailed it to them. The Allens failed to notice the failure to record until August 29, 1956 and upon noticing the lack of the recorder's stamp on the document they recorded it. Before that recording, Phillips conveyed the ranch to Yuma Investment and Development Company. After an intermediate Subsequently, Webb brought an action to quiet his title as to the Allens who defended on the ground that Webb's title did not result from a sale to a bona fide purchaser for value without notice. They cross-claimed at the same time against Title Insurance and Trust Company, the escrow agent, for its purported negligence in failing to record the trust deed in the Allen-Phillips-Earl transaction. In the lower court the Allens lost both actions. The trial court declared the Phillips-Allen Overton ranch trust deed null and void and granted Title Insurance's 41B motion to dismiss.
sale, R. W. Webb, purported to be a nominal holder for Hughes Tool Company, purchased the ranch.
The questions on appeal are:
1. Whether the evidence supports the trial court's finding that Yuma was a bona fide purchaser for value without notice of the earlier Phillips-to-Allen trust deed;
2. Whether it was shown that Webb is only the nominal title holder to the property, and as such, he is not a proper party in interest as per NRCP 17(a); 1
3. Whether the trial court's findings of fact are incomplete and conflicting, and as such, are inadequate under NRCP 52(a); 2 and
4. Whether hearsay exhibits were improperly admitted. This issue will not be entertained. For failure to press the question with citations of authorities it is deemed abandoned.
1. The trial court found that Yuma from whence Webb's title is derived purchased the Overton ranch in good faith, paid value therefor, and had no notice of the earlier unrecorded trust deed to the Allens. This finding is supported by the evidence and will not be disturbed.
Mel Decker, Yuma's President, was previously acquainted with Phillips in some limited degree. No evidence of collusion, however, appears from the record--only that Phillips ahd considered himself entitled to a sales fee or commission for another and different transaction involving Yuma which Decker paid by giving Phillips an interest in other property, certain apartment lots, owned by Yuma, called Anderson Lake.
The Allens' multifarious attack on the Yuma-Phillips dealings do not overcome the basic principle that where there is substantial evidence in the record to support the lower court's findings they will not be disturbed despite suspicions and doubts based upon conflicting evidence. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Le Mon v. Landers, 81 Nev. 329, 402 P.2d 648 (1965). Webb's burden of showing that Yuma had no notice of the trust deed was met. Bailey v. Butner, 64 Nev. 1, 176 P.2d 226 (1947).
2. The Allens seek to take advantage of a remark made by Webb's counsel that Webb was a mere nominal holder for Hughes Tool Company and invoke NRCP 17(a).
The remark was made during opening argument. As such, it is not a judicial admission and not enough to counter the presumption that the ownership of real estate is where the title says it is. Picetti v. Orcio, 57 Nev. 52, 57, 58 P.2d 1046 (1936). We do not deem counsel's statement to be a binding admission. Cf. Gottwals v. Rencher, 60 Nev. 35, 51, 98 P.2d 481 (1940); Edmonds v. Perry, 62 Nev. 41, 71, 140 P.2d 566 (1943); IX Whitmore on Evidence, § 2594A (1940); but cf. Laird v. Air Carrier Engine Service, 263 F.2d 948, 953 (5th Cir. 1959). Furthermore, Webb's description of the details of the transaction indicates he is the owner and the Allens provide no contrary evidence. The finding of fact on this point was clearly supported by the evidence and will be upheld. Brandon v. Travitsky, supra.
3. We cannot agree that the findings of fact are incomplete because they fail to recite what consideration Yuma paid for the ranch. A specific finding of what the consideration was may be implied from the record. Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970). Equity in 180 homes, as here, worth about $150,000 net above incumbrance, reasonably can be assumed as the consideration.
Nor is there substance to appellants' contention that the findings are obscure simply because the transaction is sometimes referred to as a 'purchase,' other times as a 'trade.' In essence they are one and the same here. Black's Law Dictionary, 'Purchase,' 4th ed. (1951); 35A Words and Phrases, 'Purchaser' (1963); cf. Murphy v. State, 65 Ariz. 338, 181 P.2d 336, 354 (1947); Indemnity Ins. Co. v. Kircher, 47 Ohio App. 140, 191 N.E. 374 (1934).
Under the cross-claim the Allens sought to recover the unpaid amount due on the Phillips' trust deed, about $71,000, from Title Insurance and Trust Company, the escrow agent, alleging its negligence in failing to record the deed of trust. They had had successful dealings with regard to other transactions with an officer of the company under whose direction the escrow instructions were drafted. That officer has been with the company several years, is considerably experienced, competent and knowledgeable. Because of those factors, the Allens would impose liability upon the company for failure to perform an act the company customarily performed.
The escrow instructions specifically provided that all instruments and papers required by the escrow agent as necessary and proper and pertinent to the transaction were to be deposited with the escrow agent and, further, 'said escrow agent is instructed to deliver and record all papers * * *.' (Emphasis added.)
The Title Insurance officer knew the details of the entire Allen-Phillips-Earl transaction. The trust deed was prepared by Title Insurance and notarized by her. At the closing, she told Mrs. Allen, 'Well, all papers will be recorded and yours will be mailed to you.' The Allens also paid $3.50 for a recording fee which the officer testified was for a different recording, but that was not apparently the Allens' understanding.
Title Insurance later had further dealings with regard to the Overton ranch, then with Phillips as the owner. It issued a Title Insurance policy, recorded a trust deed from Phillips to the Federal Land Bank of Berkeley and recorded a deed from Phillips to Yuma. None of the documents made mention of the Phillips-to-Allen trust deed, but it is asserted that Title Insurance Company knew or should have been aware of the transaction as being first in time to the Yuma deal.
On August 29, 1956, after they discovered that their trust deed had not been recorded at the closing of the escrow, the Allens recorded their trust deed. This was 19 days after the recording of the Phillips-to-Yuma deed, of which the Allens had no knowledge until 1968. Meanwhile, Phillips made payments on the note until January or February of 1957. When the payments ceased the Allens learned that Phillips was in prison and figured their money, property and trust deed were gone. They took no action until 1968 when they recorded a default against Phillips, defended this action and cross-claimed as stated.
Three bases were asserted by Title Insurance's motion to dismiss:
1. Title Insurance was not instructed to record the Phillips-to-Allen trust deed;
2. Running of the statute of limitations; and
3. The cross-claim failed to specify affirmative facts explaining why the Allens did not discover the alleged fraud.
The motion was granted on the second ground.
1. The escrow instructions recited the requirement that Title Insurance Company record the trust deed, Title Insurance orally promised to record it and the eminence, experience and knowledge of Title Insurance in its filed is that of handling the minituae of real estate closings. From their superior knowledge flowed a duty to their clients, the Allens, to do such things as recording documents or advise them when they did not. Theirs is the knowledge of a lawyer. In fact, they acted the part in preparing the documents. See Pioneer Title Ins. and Trust Co. v. State Bar, 74 Nev. 186, 326 P.2d 408 (1958); cf. Humphrey v. Knobel, 78 Nev. 137, 369 P.2d 872 (1962), and Francis v. Eisenmayer, 171 Cal.App.2d 221, 340 P.2d 54, 58 (1959).
Not only did the escrow instructions state that Title Insurance was to record all papers, the normal exigencies of the situation called for them to do so. The act of recording is in their line of business--a normal part of their duties, not an exception. Part of the expectancies of ordinary laymen such as the Allens is that the escrow agent will record the necessary documents. The instructions and conversations of Title Insurance gave no warning that they would do...
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