Eureka Homestead Society v. Batt

The opinion of the court was delivered by Blanchard, J. Plaintiff society bought certain real property from one Underhill. [313] Underhill had, a year previously, bought the property from one Eulham. At this purchase from Eulham a mortgage certificate was produced purporting to show what incumbrances were of record affecting the property. This certificate failed to show the existence and registry of a claim against the property for paving a street which bordered it. Sometime after plaintiff purchased from Underhill, the owner of the paving claim asserted his right, and to prevent the sale of the property owing the paving privilege the society settled the claim. It then brought this suit to recover of the recorder of mortgages the amount so paid. The cause of action is stated to be plaintiff society’s reliance on the truth of the certificate annexed to the act of sale from Eulham to Underhill. The case was properly non-suited by the Court of Appeals for want of proof on part of the plaintiff that in purchasing the property from Underhill it had acted on the faith of the certificate of mortgage which the recorder of mortgages gave when Underhill bought from Eulham. The offer in evidence of the act of sale from Eulham to Underhill and from Underhill to plaintiff, together with the mortgage certificates annexed to those acts, and the declaration of the notary therein, did not suffice to prove this. If plaintiff had the legal right to recover, which is its contention, there should have been testimony that in purchasing from Underhill it (the society) had relied upon the certificate which was given by defendant at the time Underhill bought from Eulham. Besides, it is not considered that the ease presents any of the exceptional features, whether of law or fact, which, under the rule announced in repeated decisions, justify the granting of the writ of review, and the same is, accordingly, denied.