Rankin v. Schaeffer

• Decision Date: 22 May 1877
• Citation: 4 Mo.App. 108
• Parties: DAVID RANKIN, JR., Appellant, v. NICHOLAS SCHAEFFER, ADMINISTRATOR OF P. J. HURCK, ET AL., Respondents.
• Court: Missouri Court of Appeals

4 Mo.App. 108

DAVID RANKIN, JR., Appellant,

v.NICHOLAS SCHAEFFER, ADMINISTRATOR OF P. J. HURCK, ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

May 22, 1877.

1. Where an examiner of title to real estate gives a certificate of title, he does not thereby become an indemnitor, but he is liable for any mistake arising from want of due care or diligence, or from ignorance of his business.

2. An action for damages against him for false certificate is barred by the statute of limitations in five years from the delivery of the certificate, and not from the time when it is discovered that the certificate is untrue.

APPEAL from St. Louis Circuit Court.

Affirmed.

G. M. STEWART, for appellant: Limitations; the statute does not begin to run until the cause of action accrues.-- Robsuhl v. Lark, 35 Mo. 316. Breach of covenant of quiet enjoyment.-- Shelton v. Pease, 10 Mo. 473. Jurisdiction of justices of the peace.-- Wilson v. Petty, 21 Mo. 417; Wilson v.Browning, 45 Mo. 475.

SILAS W. DOOLEY, for respondents: The cause of action for the breach of a private obligation dates from the time of the breach, and the statute of limitation runs from that date.-- Bank, etc., v. Waterman, 26 Conn. 324; Wilcox v. Plummer, 4 Pet. 172; Rowsey v. Lynch, 61 Mo. 560. The damage is not the cause of action.-- Lathrop v. Snellbaker, 6 Ohio, 276; 4 Ohio, 331; Argall v. Bryant, 1 Sandf. 98; Bank of Utica v. Childs, 6 Cow. 240; Campbell's Administrator v. Boggs, 48 Pa. St. 524. Jurisdiction of justices of the peace.-- Campbell's Administrator v. Gallagher, 2 Watts, 135; Jacobs v. Honry, 18 Pa. St. 240.

BAKEWELL, J., delivered the opinion of the court.

This was an action commenced before a justice of the peace. The written statement of the cause of action alleges that defendants were investigators of title to real estate, and were employed by plaintiff to investigate the title to certain lots, and thereupon, for a valuable consideration, gave to plaintiff their certificate, on April 9, 1866, that the title to the lots was good and fully vested in one Stewart at that date, free from all encumbrances; that plaintiff purchased, relying on their certificate, and has since discovered that the certificate was untrue, and that at the date of this certificate a suit was pending for an interest in said lands, in which suit judgment of possession was, on May 3, 1869, rendered in favor of Bogart and others, who then sold their claim to one Dougherty, who commenced suit, in October, 1874, to recover a portion of said lands of plaintiff, by virtue of said conveyance of Bogart; that plaintiff was forced to pay $225 in settlement of this claim, of which sum $100 was paid back to plaintiff by his grantor, and for the balance he has no claim against his grantor. Plaintiff says he has been damaged $125 by the negligence of defendants in making the examination, and he asks judgment for that amount.

On trial anew in the Circuit Court there was judgment for defendants; and plaintiff appeals.

The parties, by a stipulation set out in the bill of exceptions, agreed to raise only two questions on the trial of the cause: first, that more than five years have elapsed since the cause of action accrued; second, that the justice had no jurisdiction.

It has long been considered as settled in England that in action on the case for negligence, where the declaration alleges a breach of duty, and special consequential damage, the cause of action is the breach of duty, and not the consequential damage, and the statute runs from the time the breach of duty is committed, and not from the time the consequential damage ensued. So, in an action of assumpsit for not laying out the plaintiff's money on a good and sufficient security, which defendant, an attorney, had agreed to do,--the defendant had invested the money on security of certain copyhold premises whereof one Alston pretended to be seized, whereas in truth he was not seized,--it was held that the promise of defendant was the gist of the action, and that it was barred though commenced within six years from discovery of the invalidity of the security. Brown v. Howard, 2 Brod. & B. 73. In this case the negligence was so gross that the court suggested that, had the action been brought to recover damages as for fraud, a recovery might be had, but as the gist of the action...