Syllabus
by the Court.
In
order to pass upon any of the grounds contained in a motion
for a new trial, or a demurrer to the evidence, it will be
necessary to examine the evidence, and, if the record does
not affirmatively show a recital or statement that the same
contains all the evidence introduced at the trial, this court
cannot, in the absence of any such recital or statement in
the casemade itself, consider an assignment, which would
require such examination and review of the evidence.
Where
evidence produced at the hearing is not brought up by
case-made, the presumption will be indulged that the finding
of fact by the trial court is correct.
Where a
case is tried by the court without the intervention of a
jury, and special findings of fact are made, and those
findings are based upon oral testimony in this court, such
findings are conclusive of any disputed and doubtful
questions of fact.
Under
section 1, Snyder's Stat. 1909, an abstractor who
furnishes an abstract of title for a party, by and through an
agent of such party, and which said abstract fails to show a
deed on record at the time said abstract was made and
delivered, whereby the party for whom the abstract was
furnished, on reliance of which said abstract the party for
whom the same was furnished, purchased the land described
therein, and the title to said land thereafter fails in said
purchaser because of the deed omitted from said abstract, the
purchaser may recover the damages he has sustained by reason
of the abstractor's negligent and careless acts in
failing to show said deed in said abstract, including the
price paid for the land, and reasonable attorney's fees
costs, and other necessary expenses expended by him, in
attempting to defeat the outstanding title under said deed
provided there was a reasonable probability of defeating said
title.
The
proximate cause of the injury in such case is the failure of
the abstractor to show in the abstract the record of the
outstanding deed, and the fact that the title in the
purchaser might have failed for some other cause not shown in
the record would not itself defeat the plaintiff's right
to recover against the abstractor and his bondsmen.
Commissioners'
Opinion, Division No. 4. Error from District Court
Washington County; R. H. Hudson, Judge.
Action
by F. S. Harris against the Washington County Abstract
Company, a corporation, and another. Judgment for plaintiff
and defendants bring error. Affirmed.
ROBBERTS
C.
This
was an action by the defendant in error, plaintiff below,
herein designated as plaintiff, against the plaintiffs in
error, defendants below, herein designated as defendants, to
recover damages for failure of the defendant abstract company
to show on an abstract of title to real estate, made by it as
an abstractor, for plaintiff, upon the order and request of
plaintiff, by his agents, a certain deed from one Ira S.
Hopkins to Delilah B. Hopkins, which said deed from Ira S.
Hopkins to Delilah B. Hopkins was shown on the deed records
of Washington county, Okl.,
wherein said land is located, at the time said abstract was
made and delivered by defendant abstract company to the
plaintiff.
The
defendants answer by general denial, unverified, and further
allege that plaintiff procured said deed from said Ira S. by
fraud and duress, and without consideration, and that said
deed was made and delivered to plaintiff while said Ira S.
was a minor.
To
defendants' answer plaintiff replies by general denial,
and pleads estoppel, on the ground that it had been
judicially determined in a case between Delilah B. and the
plaintiff, in a court of competent jurisdiction, that said
deed had not been obtained by fraud and duress.
A jury
was waived, and the case tried to the court, who made special
findings of fact and conclusions of law, from which a more
complete understanding of the issues will be gathered, and
are as follows:
"The court finds that the defendant Washington County
Abstract Company is a corporation duly organized under the
laws of the state of Oklahoma and engaged in the general
abstract business, and that the defendant Commerce Trust
Company is a corporation and engaged in the general business
of a trust company, including the signing of bonds as surety
thereon.
The court finds that, in compliance with the laws of this
state, the said abstract company executed its bond in the sum
of $5,000, conditioned that it would pay what damage might
accrue to any person by reason of any incompleteness in any
abstract furnished by it, which bond was signed by the
defendant the Commerce Trust Company as surety thereon.
The court further finds that on the 16th day of July, 1909
the plaintiff, through his agents, contracted to purchase
from one Ira S. Hopkins the following described land, to wit,
* * * and agreed to pay therefor the sum of $500, and that on
the said date the said Ira S. Hopkins executed and delivered
to this plaintiff his warranty deed for said land. This deed
was filed for record in the office of the register of deeds
at Bartlesville, Okl., on the 20th day of July, 1909.
The court further finds that at the time of the execution and
delivery of the said deed, it was agreed by and between the
parties thereto that the purchase price thereof should not be
paid by plaintiff until the plaintiff could procure an
abstract of title thereto, showing a clear and perfect title
to said lands in said grantor, Ira S. Hopkins.
The court further finds that within a reasonable time
thereafter plaintiff ordered, through his agents from the
defendant abstract company, an abstract of title to the lands
above described, and the said abstract company agreed to
furnish a true and correct abstract of title to said
property, and that on the 21st day of July, 1909, the said
abstract company did furnish an abstract of title to said
premises for said plaintiff, to the lands above described,
and certified that the said abstract contained a correct
abstract of all conveyances or other instruments of writing
on record in the office of the register of deeds in said
Washington county, which in any way affected the title to
said property.
The court further finds that on the 19th day of July, 1909,
the said Ira S. Hopkins executed and delivered to Delilah B.
Hopkins his warranty deed, selling and conveying to Delilah
B. Hopkins all the lands above described, which deed was
recorded in the office of the register of deeds of said
Washington county on July 19, 1909.
The court further finds that said deed so made and executed
by said Ira S. Hopkins to Delilah B. Hopkins was recorded
July 19, 1909, and that the said abstract company negligently
and unlawfully omitted to show said deed or any record in
said abstract so made and prepared for the plaintiff, but, on
the contrary, said abstract showed that the land in question
was allotted to Ira S. Hopkins, a Cherokee freedman, and
showed the execution and recording of said deed executed by
said Hopkins to this plaintiff on July 16, 1909, and recorded
on July 20, 1909, as aforesaid, thereby showing the title to
the land in question to be vested in this plaintiff, free and
clear of any liens or incumbrances of record, in the office
of said register of deeds.
The court further finds that the plaintiff, relying upon and
believing that the abstract furnished by the defendant
abstract company did contain a true and correct record of all
instruments of record in said register of deed's office,
affecting the property above described, paid to the agent of
the said Ira S. Hopkins the purchase price of said land in
the sum of $500.
The court further finds that on the 29th day of November,
1909, the said Delilah B. Hopkins filed in the office of the
clerk of the district court of said Washington county a suit
against the plaintiff to quiet the title to the lands above
described, and that thereupon the plaintiff gave notice to
said defendant abstract company and its surety of the
pendency of said suit, and that said defendants refused to
defend said suit and refused to reimburse the plaintiff in
the sum of $500 expended by him.
The court further finds that there was a reasonable
probability of defeating said action, and thereby lessen the
damages so sustained by the plaintiff, and that the plaintiff
did defend said suit for such purpose, and employed counsel
and incurred expenses in the sum of $100 for attorney fees,
and the further sum of $71.40 incurred for traveling
expenses, costs, and other necessary incidentals connected
with the defense of said action.
The court further finds that on the 11th day of February,
1911, the case of Delilah B. Hopkins against the plaintiff
herein was heard and determined, and it was decreed and
adjudged that the title of the lands in question was vested
in Delilah B. Hopkins, and an
order of court was made canceling the deed executed by said
Ira S. Hopkins to this plaintiff.
The court further finds that all the material allegations
made in plaintiff's petition are true, and that, by
reason of the negligence of the said abstract company, the
plaintiff has been damaged in the sum of $500 expended by him
as purchase price for said land, and the further sum of
$171.40 as attorney fees and expenses incurred in defending
the above-mentioned action, and the further sum of $30 paid
by the plaintiff as commission in the purchase of said land,
and the further sum of $25 for time and labor expended by the
plaintiff in an
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