Lora, Allcorn and Handler.
Defendant appeals a judgment in favor of plaintiff in the sum of $7,500, the loss allegedly sustained by plaintiff as a result of a defect in the title of premises insured under a policy of title insurance issued by defendant to the plaintiff.
From the evidence adduced at the trial, it appears that the premises were purchased by plaintiff for $24,000 in 1968, by deed dated August 5, 1968 and recorded August 12, 1968. Plaintiff was represented by his own attorney who, prior to the closing, sought and obtained from defendant a back-title letter bearing date "7/23/68," by which he was authorized to commence his search of the title beginning April 18, 1962. The letter, addressed to the attorney, stated in pertinent part:
In reply to your request for a back title letter and provided the above numbered policy covers the property in which you are now interested and you make application to us for interim binder prior to the closing of the transaction or, upon closing, a title policy, you may start your search, solely for the purpose of such binder or policy, as hereinafter set out. * * *
Despite the fact that the title closing must have taken place between August 5 and August 12, 1968, for reasons not apparent or disclosed by the record plaintiff's attorney did not report and certify the results of his title examination to defendant until January of the succeeding year. By
final certificate dated January 6, 1969 the attorney reported the results of his title examination as showing the fee title to the entire premises in plaintiff, free of any defects other than certain minor exceptions not here pertinent, and made application to defendant for an owner's policy and a mortgage policy. The certificate was signed by plaintiff's attorney and certified the title "down to January 6th, 1969 at 10 o'clock. A.M." Among other things, the certification contained the following representation:
So far as known to undersigned there is no dispute among attorneys or Title Companies as to validity of this title. * * *
The executed final certificate was transmitted by plaintiff's attorney to defendant, with a covering letter also dated January 6, 1969. The letter and certificate were received by defendant on January 9, 1969, and thereafter defendant issued its owner's policy to plaintiff, the policy bearing the issue date of January 13, 1969 and an effective date of August 12, 1968.
There seems to be little question but that, although the deed into plaintiff purported to convey to him a tract of land described as containing approximately 147 feet adjacent to the Manasquan River, title to 47 feet (plus or minus) of said frontage was not in plaintiff's grantors. Instead, it was owned by one Huddy, an adjoining owner. The error seemingly originated with a survey made in connection with a mortgage loan to one of plaintiff's predecessors in title in 1957. The surveyor in question has since died.
In any event, following the closing of title in August 1968 plaintiff ordered a topographical survey of the premises. That survey, when made, set forth the boundaries of the premises as described in plaintiff's deed, as well as the common boundary line as claimed by Huddy, said line being designated thereon as "Survey line by Donald Smith," the latter being the surveyor who prepared a survey of Huddy's premises. Although the topographical survey prepared for
plaintiff bears the date of December 6, 1968, the record is silent as to the date on which it was received ...