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in other words, the marks of the burden must be open and visible. Where these conditions exist, their effect upon the servient estate is frequently productive of results that the purchaser neither anticipated nor intended, but of which he might have been fully apprised had proper inquiry and examination been made prior to the acceptance of the title.
Where any doubt exists with respect to lines, courses or dimensions, a survey should be had to fix boundaries.
SECTION 39. OPINIONS OF TITLE. A formal opinion upon the merits of the proffered title does not seem to be contemplated by the English system of abstracting, and this feature is doubtless an American idea. The queries, objections, requisitions, etc., of an English examiner, in a measure, take the place of a formal opinion as they tend to note and point defects and make suggestions whereby defects may be remedied and missing links supplied. But, as abstracts are now prepared in this country, a carefully framed opinion is an inseparable incident and a fitting climax of nearly every examination.
There are two methods of framing opinions of title, both of which are in general use. The first, and most common, consists of statements based upon, and annexed to, a formal abstract, and is made by counsel after a perusal thereof; the second is where the examiner, after investigating the title, by personal examination of the records, or of his own indices thereto, places the title in some person named, subject to whatever impairments he may find of record. 80 Butterworth vs. Crawford, 46
N. Y., 349.
This latter method is also known as "certifying the title.” No chain or affirmative evidence is shown in such cases. Frequently the certificate is based upon a directed assumption of title in a particular person at a certain date, and the examiner certifies from his examination of the records from such date. In the latter case the certifier, it will be seen, assumes the dual office of examiner and counsel, a plan, however, that has little to recommend it. The most satisfactory results are always obtained by a thorough disassociation of abstract maker and counsel.
As a rule, however, few lawyers care to have anything to do with the search or with the compilation of the abstract, further than such incidentals as necessarily result from the inquiries, requisitions and objections made with respect to the title.
The opinion of counsel is based in the first instance, upon the presumption, necessarily entertained, that the examiner has faithfully performed his work and that the abstract is a true reflex of the records, and of every matter and thing shown thereby that apparently affects, impairs or implicates the title under consideration. It may consist of a bald statement of the title shown by the abstract, with no comments or suggestions, or it may indicate the weakness of the title with recommendations for strengthening same. Inasmuch as the client often seeks professional aid quite as much for assistance in perfecting title, this matter will, of course, depend largely on the client's wishes.
If the abstract is for any reason unmerchantable it is better to take proper steps to remedy the defect, if possible, before proceeding to peruse same, but if the client is willing to accept the abstract as furnished and directs an opinion thereon, counsel should specifically note the defective features thereof in his opinion. The term,"merchantable” has now come to be a recognized expression among lawyers, to denote an abstract compiled and certified by a responsible person and which is accepted without question by the profession. There are no rules for determining the fact of merchantability and the matter rests largely in general consensus of opinion, the resolutions of Bar Associations, etc.
In every case the language of an opinion should be clear and perspicuous. This is a prime requisite. Hypothetical statements should be avoided. So also, the use of qualifying adjectives in connection with title is very objectionable. At law all titles are valid or invalid. It is not good form, therefore, to say that a “good” title is vested in any person, for this implies that there may be a "better," while a "bad” title is simply no title. As colloquial phrases such terms may, and do, have a definite meaning, but in formal written opinions they are out of place. The title should be specifically found in whomsoever it may be made to appear; if it is obscured, or insecure in the person named, the facts of insecurity should be stated and their legal effect announced. There is no such thing in law or fact as a doubtful title per se, although the claim of an individual may be the subject of doubt.
In a finding of title the estate should always be mentioned. While we are accustomed to speak of the title to land yet this is not strictly accurate. It is the interest in land, or the estate, that is held by a title, not the land itself, and a properly framed opinion should indicate the nature and extent of the interest. To find that the title is vested in a person named is not enough; he may have title, and a "good” title, and yet not have the ultimate ownership. If the abstract
discloses that the person named is possessed of the fee this fact should be stated. If there are several united in ownership this fact should be stated and the character of the estate held by them, whether jointly or in common, should be announced. If any lesser estate than the fee is shown, then, in most cases, the ownership of both the particular and the ultimate estates must be found.
SECTION 40. LIABILITY FOR ERRONEOUS OPINIONS.
An attorney employed by a purchaser of real property to investigate the title of the grantor prior to the purchase, impliedly contracts to exercise reasonable care and skill in the performance of the undertaking, and if he is negligent or fails to exercise such reasonable care and skill in the discharge of the stipulated service, he is responsible to his employer for the loss occasioned by such neglect or want of skill. Like conditions and results also follow an employment to investigate and ascertain whether property offered is a safe or sufficient security for a loan of money.
The obligation imposed on the attorney does not require of him the possession of perfect legal knowledge or the highest degree of skill in relation to business of that character, nor that he will conduct it with the greatest degree of diligence, care, and prudence, but simply that he shall possess the ordinary legal knowledge and skill common to members of the profession; and that in the discharge of the duties he has assumed, he will be ordinarily and reasonably diligent, careful and prudent. This is the undertaking of every attorney in every branch of legal employment, and while courts have ever been inclined to exercise leniency in 20 Gambert vs. Hart, 44 Cal., 543; Skil
len vs. Wallace, 36 Ind., 319.
dealing with questions of this character the rule has always been strictly enforced whenever the facts have been brought within its operation. Hence, it follows, as a necessary sequence, that if the attorney fails to bring to the discharge of the duties assumed by him, the ordinary legal knowledge and skill possessed by the members of the profession, or has failed to discharge the duties with ordinary and reasonable care and prudence, he will be guilty of negligence, and liable to the client for the damages he may have sustained by reason thereof.91
In most of the cases where the question has been raised the errors charged have related mainly to the management of suits, and consisted in the non-observance of established forms and legal rules. But the principle is just as applicable to opinions and assurances of title and the attorney must be held to a strict accountability for acts of negligence. If he acts in good faith, however, to the best of his skill, and with an ordinary degree of attention, he will not be responsible.” Neither is he liable for mere errors of judgment, nor for mistakes of law, in matters where the law is not well settled.93 These are general principles of universal recognition.
It is a further rule, that an attorney is liable for the negligent performance of professional duties, arising from ignorance or want of care, only to the person who employed him—that is, to one between whom and the attorney a contract of service existed. To insure a recovery for any injury arising from mere negligence, however gross, the rule seems to be imperative that there must exist between the one inflicting the injury and 91 Spangler vs. Sellers, 5 Fed. Rep., 93 Dodd vs. Williams, 3 Mo. App.,
278; Morrill vs. Graham, 27 » Wilson vs. Russ., 20 Me., 421.