Provident Loan Trust Company v. Wolcott

• Decision Date: 04 December 1896
• Docket Number: 108
• Parties: PROVIDENT LOAN TRUST COMPANY v. NELSON WOLCOTT et al
• Court: Kansas Court of Appeals

47 P. 8

5 Kan.App. 473

PROVIDENT LOAN TRUST COMPANY v. NELSON WOLCOTT et al

No. 108

Court of Appeals of Kansas, Northern Department, Western Division

December 4, 1896

December 4, 1896,

Error from Russell District Court. Hon. W. G. Eastland, Judge. Affirmed.

In 1890 the plaintiff in error employed the defendant in error, who was a bonded abstracter, to make for it an abstract of the title to certain real estate upon which the owner, one A. C Price, solicited a loan. The abstract, purporting to be complete and correct up to and including March 25, 1890, was accordingly prepared and, on that date, delivered; and the loan was made upon the faith thereof. Prior to the making of the abstract, suit had been begun in the District Court of Russell County, against Price as surety upon a certain note given to one Blanche Witt, and, March 18, 1890, judgment was rendered against him therein. No mention whatever was made of this judgment in the abstract. In December, 1894, the Price land on which the plaintiff had made its loan was sold to satisfy the Witt judgment. On March 19, 1895, the plaintiff in error as plaintiff below began its action on the defendant's bond to recover its damages sustained by reason of "the incompleteness, error and imperfection of said abstract." Judgment was rendered for the defendants, from which the plaintiff brings error. The questions involved are stated in the opinion.

Judgment affirmed.

J. V Humphrey, for plaintiff in error.

H. G Laing, and Sutton & Dollison, for defendants in error.

OPINION

GILKESON, P. J.

There is but one question necessary to be considered: Was the action barred by the Statute of Limitations? The plaintiff in error contends that the cause of action is one upon "an agreement, contract or promise in writing," and governed by the first subdivison of paragraph 4095, General Statutes of 1889, being section 18 of the Code; or that it is an action upon a bond "required by statute" and falls within the fifth subdivision of said paragraph. The defendants in error claim that it is "an action upon a contract, not in writing," or that it is "an action for injury to the rights of another, not arising upon contract"--a tort--and is controlled by either the second or third subdivision of paragraph 4095. The first proposition to be disposed of is, when did the cause of action arise?

"A cause of action against an abstracter of titles for giving a wrong certificate of title, accrues at the date of the delivery, and not at the time the negligence is discovered, or consequential damages arise." Lattin v. Gillette, 95 Cal. 317, 30 P. 545; Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 54 N.W. 212.

We think the question is settled in this state. Bartlett v. Bullene, 23 Kan. 606.

This brings us to the consideration of the nature of the cause of action. Is it an action upon an agreement or promise in writing? We think not. The written certificate of title given to the plaintiff by defendant Wolcott, although an instrument in writing, is not an instrument upon which the defendant's liability is founded. The Supreme Court of California, in passing upon a Statute of Limitations like ours, held that this provision of the section, by its language, "refers to contracts, obligations, or liabilities resting in or growing out of written instruments, not remotely, or ultimately, but immediately;--that is, to such contracts, obligations, or liabilities as arise from instruments of writing executed by the parties who are sought to be charged, in favor of those who seek to enforce the contracts, obligations or liabilities." Chipman v. Morrill, 20 Cal. 130, 131.

Applying this doctrine in an action against an abstracter for making a false certificate of title (Lattin v. Gillette, supra), the court by Harrison, J., says:

"The contract which is the basis of the plaintiff's cause of action herein does not 'rest in,' or 'grow out of,' his certificate, nor does the certificate contain any obligation or contract that can be enforced, or which is susceptible of a violation on the part of the defendants, or under which any violation can accrue against them. The obligation assumed by them was created at the time of their acceptance of the employment by the plaintiff, and antedated the making of the certificate. The certificate is not the evidence of this obligation, but is merely evidence of the act done by them in purported satisfaction of the obligation assumed by them in acceptance of the employment. Instead of establishing the contract made between them and the plaintiff, it is the evidence relied upon by him to establish the breach of that contract, and necessarily presumes that the contract was complete before it was given. As in the case of an erroneous deed drawn by an attorney, or a defective plat made by a surveyor, or a wrong prescription given by a physician, it is only evidence in support of the averment that the implied contract for the exercise of skill and care was violated, and is not the contract itself. That was created by the oral agreement of employment."

Is it an...