Weir v. City Title Ins. Co.

• Decision Date: 17 July 1973
• Citation: 125 N.J.Super. 23,308 A.2d 357
• Parties: , 75 A.L.R.3d 593 Maurice WEIR, Plaintiff-Respondent, v. CITY TITLE INSURANCE COMPANY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 23

125 N.J.Super. 23

308 A.2d 357, 75 A.L.R.3d 593

Maurice WEIR, Plaintiff-Respondent, v. CITY TITLE INSURANCE COMPANY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 14, 1973.

Decided July 17, 1973.

Arthur J. Sills, Newark, for appellant (Sills, Beck, Cummis, Radin & Tischman, Newark, attorneys).

John C. Givens, Red Bank, for respondent (Parsons, Canzona, Blair & Warren, Red Bank, attorneys).

Before Judges LORA, ALLCORN and HANDLER.

PER CURIAM.

Defendant appeals a judgment in favor of plaintiff in the sum of $7,500, the loss allegedly sustained by plaintiff as a result of a defect in the title of premises insured under a policy of title insurance issued by defendant to the plaintiff.

From the evidence adduced at the trial, it appears that the premises were purchased by plaintiff for $24,000 in 1968, by deed dated August 5, 1968 and recorded August 12, 1968. Plaintiff was represented by his own attorney who, prior to the closing, sought and obtained from defendant a back-title letter bearing date '7/23/68,' by which he was authorized to commence his search of the title beginning April 18, 1962. The letter, addressed to the attorney, stated in pertinent part:

In reply to your request for a back title letter and Provided the above numbered policy covers the property in which you are now interested and you make application to us for interim binder prior to the closing of the transaction or, upon closing, a title policy, you may start your search, solely for the purpose of such binder or policy, as hereinafter set out. * * *

Despite the fact that the title closing must have taken place between August 5 and August 12, 1968, for reasons not apparent or disclosed by the record plaintiff's attorney did not report and certify the results of his title examination to defendant until January of the succeeding year. By final certificate dated January 6, 1969 the attorney reported the results of his title examination as showing the fee title to the entire premises in plaintiff, free of any defects other than certain minor exceptions not here pertinent, and made application to defendant for an owner's policy and a mortgage policy. The certificate was signed by plaintiff's attorney and certified the title 'down to January 6th, 1969 at 10 o'clock. AM.' Among other things, the certification contained the following representation:

So far as known to undersigned there is no dispute among attorneys or Title Companies as to validity of this title. * * *

The executed final certificate was transmitted by plaintiff's attorney to defendant, with a covering letter also dated January 6, 1969. The letter and certificate were received by defendant on January 9, 1969, and thereafter defendant issued its owner's policy to plaintiff, the policy bearing the issue date of January 13, 1969 and an effective date of August 12, 1968.

There seems to be little question but that, although the deed into plaintiff purported to convey to him a tract of land described as containing approximately 147 feet adjacent to the Manasquan River, title to 47 feet (plus or minus) of said frontage was not in plaintiff's grantors. Instead, it was owned by one Huddy, an adjoining owner. The error seemingly originated with a survey made in connection with a mortgage loan to one of plaintiff's predecessors in title in 1957. The surveyor in question has since died.

In any event, following the closing of title in August 1968 plaintiff ordered a topographical survey of the premises. That survey, when made, set forth the boundaries of the premises as described in plaintiff's deed, as well as the common boundary line as claimed by Huddy, said line being designated thereon as 'Survey line by Donald Smith,' the latter being the surveyor who prepared a survey of Huddy's premises. Although the topographical survey prepared for plaintiff bears the date of December 6, 1968, the record is silent as to the date on which it was received by plaintiff or his attorney.

During the same period Huddy had filed with the local planning board an application for the subdivision of his premises, which was accompanied by a plat or map of the subdivision prepared by Donald Smith. Public notice of the filing of said application and plat for the subdivision of said premises, of a public hearing to be held thereon by the planning board on December 11, 1968, and of the availability for examination of the application and plat was published by Huddy in a local newspaper on November 29, 1968. Whether plaintiff was sent a copy of such notice by mail, as required by N.J.S.A. 40:55--1.7, does not appear from the record. Plaintiff testified he did not learn of the meeting until the first week in January.

At all events, the planning board hearing scheduled for December 11, 1968 was adjourned or carried to January 8, 1969. Both plaintiff and his attorney attended said meeting. The certified minutes of the meeting of January 8, 1969 set forth what transpired:

Case #172--Dr. James A. Huddy, Jr.--Major Subdivision, Preliminary, Block 1385--Lot 11, Block 1422--Lot 15

Dr. Huddy was in attendance at this meeting, and was also represented by (his attorney). Mr. * * *, Attorney * * * representing Morris Weir, called the Board's attention to the fact that his client claims that Dr. Huddy is encroaching on his property. He submitted a copy of a survey * * * showing the purported encroachment. * * * (He) also submitted a tracing of Dr. Huddy's subdivision boundaries superimposed upon his survey to show this overlap. * * * (Dr. Huddy's attorney) stated they have run their own surveys, and have deeds to back up their survey. He also said he has had a Title Binder prepared, as well as Title Insurance Policies. He also offered a photostatic copy of the deed with a metes and bounds description of Mr. Risden's (plaintiff's) property (Mr. Risden was predecessor in title to Mr. Weir). * * *

After additional discussion of the problem, (the attorney for Mr. Weir) said he and his client have no objection to a Preliminary Approval being granted this application. The attorneys will get together with the Engineers and the principals in this matter and determine actual boundary lines prior to the filing for a final approval. * * *

Despite the fact that, only two days earlier, he had certified the title as valid and applied for the issuance of a title policy on the basis of such certification, and notwithstanding that he was aware that he had not yet received the title policy, plaintiff's attorney apparently made no effort to immediately inform defendant of the serious title question which had arisen. Instead, he waited approximately one month before advising defendant, during which period the title policy was issued and delivered by defendant. The first notification to defendant was made by letter from plaintiff's attorney, dated February 7, 1969, as follows:

A question has arisen relating to the southerly boundary line of the above-described property as to the distance along the Manasquan River which results in a difference of approximately 42 feet.

The premises to the South have recently been sold, and although I understand the title is not yet closed, the new purchaser had the premises surveyed by Donald W. Smith of Jackson, New Jersey, and he established the distance along the Manasquan River for our p.q. at approximately 100 feet in accordance with the original deed for lot 27 out of Fairbanks...