Dorr v. Massachusetts Title Ins. Co.

• Decision Date: 27 May 1921
• Citation: 238 Mass. 490,131 N.E. 191
• Parties: DORR v. MASSACHUSETTS TITLE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 490

131 N.E. 191

DORR

v.MASSACHUSETTS TITLE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1921.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by Frank J. Dorr against Massachusetts Title Insurance Company.Finding for plaintiff, and defendant brings exceptions.Exceptions overruled.

The action was for negligence in examining the title to land which plaintiff was purchasing, and in neglecting to inform plaintiff of a right of way to which the title was subject, and in informing him that it was free from all incumbrances except a mortgage.Defendant claimed that its only obligation was as insurer of the title, and that it was not liable because the policy (delivered after title had passed) excepted the right of way.The property was situated on Kendrick street in Newton, Mass.

Plaintiff's expert Charles H. Hodge, a real estate man with a place of business about one and one-half or two miles from Kendrick street, testified that he had been in the real estate business for twenty years and in that time had built and sold about one hundred houses and had also bought and sold land in several places; and that in Brighton about a mile from the plaintiff's property he had bought land and built fifteen houses; that he had been a director and on the investment committee of the Brighton Co-operative Bank since it was organized in 1911 and had examined for the bank one piece of property in Newton upon which a mortgage was given; that at one time he lived in Watertown very near the Newton line and had occasion to go back and forth driving by the property involved in this case a great many times, although the bulk of his business had been done in Newton; that he had bought and sold two houses on Algonquin road which is about one-half mile from Kendrick street, and about a mile from plaintiff's land.

He further testified that values in the place he built and around Kendrick street are about the same, and that in Newton they are a little higher than in Brighton; that within a quarter of a mile or so, there had been no particular development on a large scale for a great many years.

He also testified that he was familiar with the plaintiff's property and had examined it at the request of the plaintiff.Jacob Wasserman, Mark.M. Horblit, and Victor Levine, all of Boston, for plaintiff.

John W. Vaughan, of Boston, for defendant.

JENNEY, J.

In this action the plaintiff seeks to recover damages because of the failure of the defendant's employees to exercise due care in the performance of a contract to render services.It is agreed that the defendant, Massachusetts Title Insurance Company, was authorized to and often did ‘act in the capacity of a conveyancer, that it examined title [s] and furnished information in relation thereto, and also acted in the capacity of insurer of titles in the conduct of its general business.’

Upon the plaintiff's testimony the following facts could have been found: The plaintiff became a party to a written contract whereby he agreed to purchase land in Newton which was to be conveyed to him, by a deed of warranty, free from all incumbrances except a mortgage described in the agreement.He left this contract at the office of the defendant, telling the man in charge that he had purchased the property referred to therein and directing the examination of the title ‘according to this paper,’ adding, ‘That tells you the whole story.’He did not ask for the issuance of a policy insuring the title.At a later date on his inquiry as to when the title could be passed, he was asked by some one representing the defendant whether he wanted the title insured and he replied, in substance, that he did not think it necessary to incur the expense thereof if the title was clear.He was then told that he could have the insurance for the amount paid for the examination of title; to this he assented.When the papers were passed he did not ask nor was he told whether the title was clear, and no abstract of title was read to him.The plaintiff then received from the defendant a receipt which specified that it was for money paid by him as a charge for passing papers and examining title.The deed was of warranty and purported to convey the premises free from all incumbrances except the mortgage referred to in the agreement.A policy of insurance was made by the defendant, but it was not delivered to the plaintiff until about three months after the papers had been passed.It insured the plaintiff's title to the land as free from all...