Hershiser v. Ward

By the Court, Fitzgerald, C. J.: On the 1st day of May, 1904, the appellants here, as plaintiffs in the court below, filed therein their second amended complaint; the matters alleged therein and pertinent to this appeal are stated as follows: "That on or about the 24th day of June, 1902, the plaintiffs employed said defendants, as such copartners, as aforesaid, for fees and reward to them by plaintiffs paid, to examine and furnish to plaintiffs a true, accurate, full, and correct abstract of the title to that certain lot, piece, or parcel of land situate, lying, and being in the then Town [now City] of Reno, in the County of Washoe, and State of Nevada, bounded and particularly — 239 — described as follows, to wit: That parcel of land situate in Conner’s Addition to said Reno, bounded on the west by-Ralston Street, on the south by Oak Street, on the east by Nevada Street, and on the north by the section line between Sections 2 and 11, in Township 19 north, Range 19 east, M. D. B. and M., for the purchase of which, in fee simple, and without incumbrances, the plaintiffs had theretofore contracted with one W. H. Hancock, who claimed to be the owner thereof. (4) That defendants,in the performance of the duties or such employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a pretended abstract of title to the said land, and*did report and represent to plaintiffs that the same was a full, true, accurate and correct abstract of title to said'land; by which pretended abstract of title, it appeared and was shown that the said W. H. Hancock was the owner of said land and premises in fee simple without any incumbrances; in reliance on said pretended abstract of title, and depending solely thereon,, plaintiffs were induced to and did, on or about the 28th day of June, 1902, purchase said land and premises from said Hancock, and did pay him therefor the sum of $1,100, in lawful money of the United States, and, as evidence thereof, plaintiffs did then and there take and receive from said Hancock a certain deed or instrument in writing, executed by said Hancock, and duly acknowledged, purporting to convey $vom said Hancock to plaintiffs the said land and premises in fee; that said deed or instrument in writing contains the words 'grant, bargain, and sell,’ but does not contain any other warranty or covenant whatsoever, and that plaintiffs have not, nor has either of them, ever, at any time, received any other warranty or covenant from said Hancock, or at all, relating to or concerning said lands or premises or the title thereto. (5) That said Hancock was not the owner of said lands or premises, or of any interest therein whatever except a mere equitable interest as mortgagee under and by virtue of a certain indenture of mortgage, and that the Bank of Nevada, a corporation, was the owner .in fee thereof, and that the 'same appeared of record on the public records of said Washoe County, of which plain — 240 — tiffs were ignorant, and which defendants could, by the exercise of proper diligence and skill, have discovered and which they failed to discover by omitting to exercise due care and skill; and defendants were guilty of neglect and want of due care in examining into, and in the investigation of, the title of said land. (6) That the said mortgage by and through which said Hancock held said equitable interest, as aforesaid, was given to secure, and did secure, the payment of a certain promissory note_, dated and executed November 1, 1897, and, by its terms, payable ón demand. That the first plaintiffs, or either of them, discovered or learned that said Hancock was not the owner in fee of said lands and premises, but was the holder only of said equitable interest, as aforesaid, was on or about the.day of February, 1904, and. more than six years after the date and execution of said promissory note, and after any action to foreclose the said mortgage or collect the said note was barred by section 3718 of the Compiled Laws of Nevada, and when the said equitable interest which said Hancock held in and to said lands and premises, as aforesaid, had, without the fault of these plaintiffs, or either of them, become of no value whatever. (7) That said Hancock has failed and refused, and still does fail and refuse, to pay to plaintiffs, and said plaintiffs have not received from said Hancock, or at all, the said sum of $1,100, or any part thereof. (8) That by reason of the said Hancock’s want of title, and the fact that plaintiffs took no title by said deed from Hancock, and the fact that said Bank of Nevada was the owner of said lands and premises, as aforesaid, the plaintiffs were ousted and dispossessed of said land and premises by due course of law. Wherefore plaintiffs pray judgment against said defeiidants, jointly and severally, in the sum of $1,100, together with interest thereon .at the legal rate from the 28th day of June, 1902, and for costs and disbursements of suit.” To this complaint defendants filed a general demurrer, the court sustained the demurrer, and, on plaintiffs declining to amend, gave judgment for the defendants. From said judgment, this appeal is taken. To sustain the judgment respondent’s counsel make, if — 241 — we correctly gather tbem from tbeir brief, many points of objection to the complaint. 1. That tbe plaintiffs " do not allege that said purchase depended upon the abstract that was to be afterwards furnished to them by said defendants, or that said purchase in any way depended upon what said abstract might disclose.” Without going into an elaborate analysis of the allegation on this point, we deem it sufficient to meet the assault of a general demurrer; and whether it was sufficient to repel a special demurrer on the ground stated is not before us for determination. 2. Counsel’s second point is that: "Said complaint does not allege that said abstract was to be made from the time of the issuing of the patent by the United States, nor from any particular date, time, or conveyance.” We think this allegation is sufficient. It required defendants to furnish a "full and complete” abstract. We can see no reason why respondents should arbitrarily take any particular date, and say that, prior to that date, they were not required to make search and report of the title. 3. As a third point counsel say: "In section 5 of page 3 of said amended complaint, the plaintiffs allege that, at the time of the purchase of said described land the Bank of Nevada was the owner in fee thereof, and that the same appeared of record on the public records of Washoe County; but they allege nothing to show that said mortgage was not due and paid prior to the furnishing of the abstract by defendants, and plaintiffs simply assume that said title was in the Bank of Nevada.” On the contrary, the allegation is an "assertion,” not an "assumption,” that the "Bank of Nevada was the owner in fee,” etc. 4. Under the fourth point counsel say " plaintiffs allege that they were ousted and dispossessed of said land and premises by due course of law, by the Bank of Nevada, but they fail to show when or how they were ousted and dispossessed of said land and premises by said Bank of Nevada. They do not show when they went into possession or that they ever had possession of said land and premises. They do not show by what due course of law the Bank of Nevada — 242 — ousted and dispossessed the plaintiffs of said land and premises. They simply state a conclusion of law, and all the authorities hold that you must state facts, and from those facts the conclusions are drawn.” This allegation, too, we think, good under the general demurrer. 5. Fifth, counsel claim that the complaint does not "show that the plaintiffs, on discovering the defect in the abstract, took proper measures to avert the loss; and, if they fail to do so, cannot hold the abstracters liable.” This claim is, we think, untenable. Plaintiffs were not required to show this. If the facts were otherwise, it was a matter of affirmative defense to be set up by defendants. 6. The sixth point states that there was "nothing to show that there ever was a demand made of said Hancock for the return of said $1,100, or any part of the same, and, without a demand on said Hancock for the return of said $1,100, the plaintiffs cannot say that said Hancock would refuse to return the same if a demand was made, in other words, ¿the plaintiffs have no cause of action against the defendants until all lawful means for the recovery of said $1,100 from said Hancock have failed. It must be shown, first, that said Hancock is insolvent, and nothing whatever can be collected from him, before the defendants have become liable in damages to said plaintiff.” We think there was. It said "Hancock has * * * refused * * * and still does * * * refuse to pay plaintiffs * * * the sum of $1,100, or any part thereof.” Refusal to do a thing implies a demand made to do it. Certainly this would be so on general demurrer. 7. The seventh point is that there is no allegation that the plaintiffs have suffered loss of $1,100, or any sum; but only the statement of a conclusion of law that plaintiffs have so suffered. On the contrary, we think an inspection of the allegation in this respect shows allegation of an ultimate fact, good as against general demurrer at least. 8. Counsel say there was no report in the abstract of title furnished by respondents that the land in question was free from all incumbrances; but only that it was from some incumbrances. Their contention is expressed as follows: "The attorneys for the plaintiff in their said brief on the — 243 — demurrer, compare the Morange v. Mix case, in 44 N. Y. 315, with this case, and claim that this case is much stronger than the New York case; and we call the court’s attention to line 4 on page 2 of their brief, where this language is found: 'While, in our case, the complaint alleges that it was to be free from any incumbrance.’ Webster defines the word 'any’ as one out of many, indefinite. 'Nor knoweth any man the Father, save the Son.’ ' (Matt, xi, 27.) It is also defined as 'some,’ an indefinite number or quantity, as 'Are there any witnesses present?’ Now, the word 'any’ incum-brance does not mean all incumbrances, as the word 'any,’ in its largest meaning, simply means 'some,’ and does not mean from all incumbrances.” The language in the allegation (allegation 4) is: "That defendants, in the performance of the duties of such employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a pretended abstract of title to the said land, and did report and represent to plaintiffs that the same was a full, true, accurate, and correct abstract of the title to said land, by which pretended abstract of title it appeared and was shown that the said W. H. Hancock was the owner of said land and premises in fee simple .without any incumbrances; in reliance on said pretended abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about the 28th day of June, 1902, purchase said land and premises from said Hancock and did pay him therefor the sum of $1,100 in lawful money of the United States.” The allegation is that "Hancock was the owner of said land and premises in fee simple without any incumbrances.” The phrase "without any incumbrances” means just what it says. It means there were, no incum-brances. Indeed, it means there was not a single incumbrance. It could not possibly mean there were some incumbrances, or even there was a single incumbrance. So to hold would be a strange perversion of language. A few other points are made in the brief .of respondents; but we think they are not of such moment as to require mention here, except the following: 9. Ninth- point, if we correctly apprehend it, is this: — 244 — That in case of negligence in the abstracter's work, and consequent loss therefrom, the damaged employer cannot sue the negligent abstracter until he has exhausted all remedy against the grantor of the title involved or shown that such grantor is insolvent. And, further, that this showing of exhaustion of remedy against grantor or his insolvency is an affirmative showing on the part of the plaintiff, and that, without such showing, his complaint would' be bad on general demurrer. Is this the law? We think it is not necessary that such affirmative showing be made in the complaint, and it is unnecessary now to determine whether the same would constitute a defense if pleaded by answer. It is urged in the brief that Hancock may have paid the damages of $1,100 to plaintiff. It is alleged in the complaint, however, that Hancock has not so paid. It is also urged that Hancock may be able to pay it on being sued. Defendants’ obligation was a direct contract to furnish plaintiff a full, complete, and correct abstract of title to the land in question, such as would protect the plaintiffs from incurring the loss that they have alleged. If plaintiffs had it in their power to protect themselves from such loss by any course of action that they could be reasonably and legally required to take, that is an affirmative defense that respondents should set up and plead to defeat plaintiffs’ action. The case of Morange v. Mix, 44 N. T. 315, throws considerable light on this question. We think the judgment appealed from in this case is erroneous. Said judgment is reversed, and the case is remanded to the trial court, for further proceedings in accordance with this opinion.