Palmer v. Nissen

• Decision Date: 14 July 1966
• Docket Number: Civ. No. 8-116.
• Citation: 256 F. Supp. 497
• Parties: Stephen PALMER and Velma S. Palmer, Plaintiffs, v. Arthur E. NISSEN, Defendant.
• Court: U.S. District Court — District of Maine

256 F. Supp. 497

Stephen PALMER and Velma S. Palmer, Plaintiffs, v. Arthur E. NISSEN, Defendant.

Civ. No. 8-116.

United States District Court D. Maine, S. D.

July 14, 1966.

Leonard M. Nelson, Portland, Me., Daniel O. Mahoney, Boston, Mass., for plaintiffs.

William B. Mahoney, Portland, Me., for defendant.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This is an action to recover damages claimed to have been caused to the plaintiffs by the alleged negligence of the defendant, a member of the bar of the State of Maine engaged in the general pratice of law in Damariscotta, Maine, in certifying the title to two parcels of real estate located in Bremen, Maine.¹ The first parcel involved is the so-called Ozone Point property which plaintiffs purchased from the heirs of Ralph W. Bartlett² by deed dated February 2, 1959 (P.4), pursuant to a purchase and sale agreement dated December 2, 1958 (P.2). The second parcel is the so-called mainland property which plaintiffs purchased from Anna B. Zahn by a second deed dated February 2, 1959 (P.3), pursuant to a purchase and sale agreement dated December 2, 1958 (P.1). Plaintiffs contend that defendant was negligent in certifying the title to both properties because of various asserted defects in the record title, and that defendant was negligent in certifying the title to the mainland property because the property conveyed by their deed was substantially less than that described in the purchase and sale agreement.³

At pre-trial conference the parties agreed that the issues of liability presented by the action be determined by the Court, without jury, in advance of any hearing upon the damage issues. Fed.R. Civ.P.42(b). The parties further agreed that the only issues of liability are the following:

(1) With respect to both properties, whether the title was defective at the time of their purchase by reason of the title defects asserted by plaintiffs.

(2) With respect to the mainland property, whether the area conveyed to plaintiffs by the deed from Anna B. Zahn was substantially less than that described in the purchase and sale agreement.⁴

Having received and considered the evidence and the written and oral arguments submitted by the parties with respect to the foregoing two liability issues, the Court's findings of fact and conclusions of law appear in this opinion. Fed. R.Civ.P. 52(a).

I Asserted Title Defects

Plaintiffs contend that the title to both properties was defective at the time of their purchase by reason of the following defects in the record title:

(1) There was no record in the Lincoln County (Maine) Registry of Deeds, or elsewhere in the State of Maine, of a plan of the Ozone Point property referred to in the deed of Winfield S. Keene to Ralph W. Bartlett dated September 29, 1906 (P.9).⁵

(2) There was no record in the Lincoln County Registry of Deeds, or elsewhere in the State of Maine, of the probate of the estate of Ralph W. Bartlett, nor was there any record showing the date of Ralph W. Bartlett's death.

(3) There was no record in the Lincoln County Registry of Deeds or elsewhere in the State of Maine, showing that any inheritance tax due the State of Maine from the estate of Ralph W. Bartlett had been paid, or that there was no inheritance tax payable.

(4) There was no record in the Lincoln County Registry of Deeds, or elsewhere in the State of Maine, showing that the three grantors who executed the deed to plaintiffs of the Ozone Point property were all of the heirs of Ralph W. Bartlett having an interest therein.

(5) There was no record in the Lincoln County Registry of Deeds, or elsewhere in the State of Maine, of a property settlement dated March 28, 1952, between Bernard T. Zahn and Anna B. Zahn (P.25), which was made part of a decree of divorce entered by the Lincoln County Superior Court on May 13, 1952 (P.23), the lack of any such record making it impossible to ascertain whether the subsequent release deeds exchanged between Mr. and Mrs. Zahn (P.18 and 19) were consistent with the settlement approved by the court.

It is conceded that the record title to the properties involved was in fact deficient in the above respects. Defendant admitted the omissions from the record, but testified that in his title examination he did not regard as a material defect the absence of any record of the plan of Ozone Point referred to in the 1906 deed from Winfield S. Keene to Ralph W. Bartlett, although in fact he did examine a copy of this plan which he happened to have in his office (P.24). Defendant further testified that he relied upon recitals in prior deeds to establish that Ralph W. Bartlett was dead and had died more than ten years prior to the date of defendant's examination, and that all Ralph W. Bartlett's surviving heirs had joined in the deed to plaintiffs.⁶ He testified that he did not regard as a material defect the absence of any record showing payment of any inheritance tax owed by the estate of Ralph W. Bartlett to the State of Maine, relying upon the ten-year statute of limitations upon inheritance tax liens contained in the Maine inheritance tax law. Me.Rev.Stat. ch. 155, § 18 (1954), as amended; Me.Rev. Stat. ch. 272 (1955); Me.Rev.Stat. ch. 429, § 89 (1957).⁷ Defendant also testified that he did not regard as a material defect the lack of any record of the March 1952 property settlement between Bernard T. Zahn and Anna B. Zahn (although he also had a copy of this settlement in his office). To establish that the release deeds exchanged between Mr. and Mrs. Zahn (P.18 and 19) were consistent with the settlement approved by the court (P.25), he relied upon the decree of divorce (P.23) and an order granting Mrs. Zahn's petition for immediate execution of the divorce decree (D.3) both dated May 13, 1952, and of record in the office of the Clerk of the Lincoln County Superior Court, together with the fact that the release deeds were executed immediately thereafter on May 14, 1952.

Plaintiffs offered no evidence in support of their contention that the record deficiencies which they now raise rendered their title insufficient or otherwise unmarketable, or that defendant was in any way negligent in his examination or certification of the titles involved.⁸ On the other hand, defendant produced the testimony of two experienced attorneys engaged in the general practice of law and having substantial conveyancing practices in Wiscasset and Boothbay Harbor, Maine. Both stated, without contradiction, that in their opinion the title to both properties was good and merchantable as of the date the deeds were delivered, and that none of the record deficiencies would be considered material defects affecting the marketability of title under the title standards prevailing among conveyancers in Lincoln County in January and February 1959.⁹ With reference to the effect of the specific deficiencies in the record relating to plaintiffs' titles, both witnesses agreed that a reference to an unrecorded plan in a deed in a chain of title would not constitute a material defect unless the plan was made an integral part of the description of the property, and that there was nothing in the language of the 1906 deed from Winfield S. Keene to Ralph W. Bartlett which made the unrecorded plan an integral part of the description. See n. 5, supra. They further testified that it was an accepted practice among Lincoln County attorneys in searching titles to rely upon recitals in prior deeds to establish the death of a prior owner, the date of his death, and the identity of his surviving heirs; that the lack of any record of payment of a State of Maine inheritance tax by the estate of a deceased owner, who had died more than ten years previously, would not constitute a material defect when the controlling inheritance tax statute contained a ten-year statute of limitations on the tax lien; and that the lack of record of a property settlement in connection with a divorce proceeding would not constitute a substantial title defect, it being unnecessary for a conveyancer to go beyond the record found in the Registry of Deeds unless he has notice that there may be a court record which might affect the title.

From the foregoing recital of the uncontroverted evidence in this case, it is evident that plaintiffs have wholly failed to satisfy their burden of establishing that the titles to the properties here involved were defective, or that in examining and certifying the titles defendant failed in any respect to exercise the care and skill required of an attorney engaged in the general practice of law in Damariscotta, Maine.¹⁰ As the Maine court has stated with respect to the duty of care which an attorney owes to his client,

"The attorney is bound to execute business in his profession entrusted to his care, with a reasonable degree of care, skill, and despatch (sic). If the client be injured by the gross fault, negligence, or ignorance¹¹ of the attorney, the attorney is liable; but if he act with good faith, to the best of his skill, and with an ordinary degree of attention, he will not be responsible." Wilson v. Russ, 20 Me. 421, 424 (1841).

See also: Timberlake v. Crosby, 81 Me. 249, 16 A. 896 (1889); cf. Coombs v. King, 107 Me. 376, 378, 78 A. 468 (1910).

Being satisfied that under the conveyancing standards prevailing in Lincoln County, Maine in January and February 1959, the title defects asserted by plaintiffs did not constitute material defects, and that defendant in certifying the titles to the properties involved acted "with good faith, to the best of his skill, and with an ordinary degree of attention, * * *" the Court holds that defendant was not negligent in certifying the titles by reason of the record deficiencies asserted by plaintiffs.¹²

II Asserted Discrepancy between Purchase and Sale Agreement and Deed of Mainland Property

Plaintiffs contend that the area conveyed to them by the deed from Anna B. Zahn of the mainland property (P...