Freeman v. Wilson

Opinion by LYONS, C. The parties will be designated as in the court below.. This suit was brought to recover damages alleged to have been sustained by reason of incompleteness and imperfections of an abstract and error made by an abstracter in compiling an abstract. The suit is brought against the abstracter and the sureties on the abstracter’s statutory bond. It appears affirmatively from the face of the plaintiff’s petition that more than three years have elapsed between the furnishing of the abstract and the filing- of the suit. The trial court sustained a demurrer to the petition on tlhe theory that the cause of action stated in the petition was barred by the statute of limitations, and that sufficient facts appeared on the face of the petition to *88 disclose such bar. The appellant contends that the trial court made an error in applying the three year statute oí limitations and should have applied the five year statute of limitations, whidh: ordinarily is applicable to suits on written instruments. However, this question is no longer open in this court, having- been settled in the decision in the case of Garland v. Zebold, 98 Okla. 6, 223 Pac. 682. The able opinion by Commissioner Jarman lays down the rule as follows: "A cause of action against an abstracter of titles for giving a wrong or false certificate of title, accrues at the date of the delivery of the abstract and certificate, and not at the time the negligence is discovered or consequential damages arise. “It is the breach of tfhe contract of employment, whereby the abstracter agrees to furnish a true and correct abstract of title, that gives rise to a cause of action against an abstracter and his ibondsmen for damages occasioned by the furnishing of a wrong or false certificate of title. The abstracter’s bond does not give rise to the cause of action; it is merely a collateral security for the enforcement of the cause of action. “Where the contract of employment for tire furnishing of an abstract of title, is oral and the abstracter furnishes a false or erroneous certificate of title resulting in damages, the cause of action against the abstracter and hig bondsmen is barred by the statute of limitations, unless the action is begun within three years from the date of delivery of the abstract and certificate of title.” This rule is in accord with the decisions of the Supreme Court of Kansas on a similar statute. See Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; also Board of County Commissioners v. Van Slyck, 52 Kan. 622, 35 Pac. 299. Therefore the decision. of the trial court in sustaining the demurrer to the plaintiff’s petition was proper and must be affirmed. By the Court; It is so ordered.