Marmaduke v. Martin

BLAND, P. J. In the formal application for the loan furnished by the insurance company and signed by the defendants under the head of “Title” is the following: “This company accepts only such titles as are perfect of record. . . Upon receiving at this office the abstract and attorney’s certificate of perfect title above mentioned, this company’s counsel at the home office will examine the papers and upon finding them satisfactory will prepare the bond and mortgage.” The obligation of defendants under their agreement was [638] to furnish a perfect title of record satisfactory to the counsel of the insurance company. They did not agree to refer the matter of title to the counsel of the insurance company and to abide by his decision as to its quality as contended for by plaintiffs. They agreed to furnish an abstract showing a perfect record title — a title which did not disclose a patent defect suggesting the possibility of a lawsuit to defend it, but a title safe to a moral certainty. Gerhart v. Peck, 42 Mo. App. 644. The obligation of plaintiffs was, when defendants furnished a perfect title of record, to procure the loan of the designated sum of money. The contention of plaintiffs is that defendants failed to furnish the required title. If this be true, then plaintiffs are entitled to recover, for the money would have been loaned had not the title been rejected as imperfect by the counsel of the insurance company. The only objection made to the title by the counsel of the company was the fact that there were unsatisfied personal judgments of record against two of the heirs of Edward Martin. . The last will of Edward Martin (which was before the counsel of the insurance company when he examined the abstract of title), devised the real estate in question to his wife and seven children in trust; the trust to continue until the last of his children should die, then to vest in fee in the descendants of his children. Under this devise there is no present estate in the real estate in any of the children of Edward Martin and the possibility of any future estate in any of them is cut off by the continuation of the trust until the last of them shall die; on the happening of which event the remainder, in fee absolute, vests in their children. They, therefore, have no interest in the real estate on which the judgments were a lien or any interest that could be sold under execution. Certain of the rents and profits of the trust estate are to be paid to the children of Edward Martin from time to time, but this provision of the will gives them no [639] interest in the title to the land nor in the least subjects the lands to the claims of their creditors. So far as the record discloses, the defendants furnished a perfect title of record, and in this respect complied with their contract (Buffalo Loan and Safe Deposit Co. v. Knight Templars and M. M. Aid Ass’n, 126 N. Y. 450) ; the plaintiffs, through the fault of their customer, were prevented from complying with theirs, and for this reason are not entitled to their commission. No suggestions are made in their brief, nor was there an intimation given out on their oral argument by plaintiffs’ counsel, of the ground or reasons for the opinion of the insurance company’s counsel that the title was affected by the individual judgments against the heirs, and we are unable to conjecture upon what possible hypothesis the able counsel arrived at his conclusion. The judgment is affirmed. All concur.