Huggins v. Davidson.

he told him he did. They were then to meet at Bowman's office the next day to finish the trade.

The defendant in his testimony does not refer to the above conversation, nor did any other person testify as to what then occurred, except the plaintiff. This is an important matter to be considered in weighing the testimony as a whole, in respect to what defendant said to plaintiff, about the abstract of title.

It appears from the evidence that plaintiff and defendant met at Bowman's office on the morning of August 26, 1914, to close the exchange. Plaintiff says that defendant, after stating what he gave for the Nebraska land, produced a deed from Nichols, with the name of grantee blank; that he said to defendant, "I thought you owned this land," and defendant said: "I do, it belongs to me, but I expect to trade it again and I just took the deed in blank." Plaintiff then asked Bowman if that was customary, and was advised by him that it was frequently done.

Plaintiff identified "Exhibit A" as the abstract of title which defendant gave him, and testified that he relied upon it. He said when he received the abstract, at Transfer No. 10 thereon, the words "And P. Gunderson, single" were there. Plaintiff also testified, as follows:

"I objected to taking the deed to the Nebraska land in blank and having my name placed in it, I wanted a deed from Davidson and he (Davidson) says, 'There's a good reliable abstract, made by a bonded abstractor and what more do you want?'"

Plaintiff testified that he had Bowman examine the abstract; that he was willing to take chances on the quality of the Nebraska land, but that he relied on the abstract.

Defendant Davidson testified that he did not change the abstract after he got it; that there was not much said about the abstract at the time of the trade. He said plaintiff asked him if he (defendant) had had the abstract examined. He answered in the affirmative, and told plaintiff Mr. Campbell had examined it. Defend

Huggins v. Davidson.

ant further testified as follows, in regard to the abstract: "I did not tell him [plaintiff] whether it was a correct abstract or not. I said I did not know anything about the abstract, that I had had it passed on and had traded for it with the understanding that it was all right. I never told him it was a correct abstract." (Italics ours.)

Mr. Bowman testified in substance that while plaintiff and defendant were in his office, the latter told plaintiff he wouldn't guarantee anything in connection with the transaction; that defendant then told plaintiff he didn't know whether the abstract was correct or not, that he was simply transferring what he had. Witness gave it as his opinion that the abstract, as shown to him with P. Gunderson appearing as grantor in No. 10, showed a good title. On cross-examination, Bowman testified as follows:

"I don't recollect hearing Mr. Davidson say that there was a good abstract made by a bonded abstractor and what more did he want."

We have the unchallenged testimony of plaintiff as to what occurred when he and defendant met on the street and the latter told him he had a good clear abstract of title to the Nebraska land. The testimony of defendant, in regard to the abstract, heretofore set out, shows he was inducing the plaintiff to rely on its correct

ness.

Here was a trader, with a deed for Nebraska land, with the name of the grantee left blank; with an abstract of title containing a forgery as to the name of one of the necessary grantors in the chain of title, seeking to exchange his "stock in trade" for Missouri land. No explanation was ever made as to the forgery, except that defendant denies he committed it. He does not even offer to show that Nichols and wife had any title to the Nebraska land, nor that P. Gunderson, whose name was forged, was not the real owner of said land.

The trade was made on August 26, 1914, and on September 5, 1914, the mortgage for $275 was executed by

Huggins v. Davidson.

defendant and wife to the bank aforesaid on the Texas County land. This was the excuse he offered for refusing to rescind, when plaintiff told him he had no title, and demanded a rescission.

Without further consideration of this question, we find from the record that defendant represented to plaintiff he was the owner of the Nebraska land; that the abstract of title which he delivered to plaintiff was reliable; that plaintiff relied upon said representations, believed them to be true, and by reason thereof made the exchange of lands aforesaid.

II. It is clear from the evidence that defendant claimed to be the owner of the Nebraska land which he traded to plaintiff. According to his own testimony, he delivered the abstract of title to plaintiff, knowing that the latter was having Bowman examine the same with the view of determining whether or not it showed a good title in Nichols and wife. What other inference can be legitimately drawn from the delivery of the abstract of title to plaintiff under the foregoing circumstances, except that defendant was attempting to induce him to rely upon the correctness of said abstract?

In Curwen on Abstracts of Title, section 36, it is said:

"The object of the abstract is to furnish the buyer and his counsel with a statement of every fact, and an abstract of the contents of every deed on record, upon which the validity and marketableness of the title depend; so full that no reasonable inquiry shall remain unanswered; so brief that the mind of the reader shall not be distracted by irrelevant details; so methodical that counsel may form an opinion on each conveyance as he proceeds in his reading; and so clear that no new arrangement or dissection of the evidence shall be required. The buyer has a right to demand a marketable title. He has a right to demand that the abstract of title shall disclose such evidence of that title, as will enable him to defeat any action to recover, or incumber, the land."

Huggins v. Davidson.

The above quotation is cited with approval in several of the authorities hereafter mentioned.

In Attebery v. Blair, 244 Ill. 1. c. 369, it is said: "An abstract of title is, in a legal sense, a summary or epitome of the facts relied on as evidence of title, and it must contain a note of all conveyances, transfers or other facts relied on as evidences of the claimant's title, together with all such facts appearing of record as may impair the title. [Heinsen v. Lamb, 117 Ill. 549.] It should contain a full summary of all grants, conveyances, wills, and all records and judicial proceedings whereby the title is in any way affected, and all encumbrances and liens of record, and show whether they have been released or not."

In Fagan v. Hook, 134 Iowa, 1. c. 386, the Supreme Court of Iowa said:

"The object of an abstract is to enable the vendee to pass upon the validity of the title, and to enable him to do so it should contain everything material concerning its sources and conditions."

In 1 Cyc. 213, the law upon this subject is clearly stated as follows:

"The abstract should contain whatever concerns the source and condition of the title. It should contain a note of all conveyances and transfers or other facts relied on as evidences of the title, together with all such facts appearing of record as may impair the title.'

To the same effect are Kane v. Rippy, 23 Pac. (Ore.) 180; Taylor v. Williams, 2 Colo. l. c. 562; Smith v. Lander, 106 S. W. (Tex.) 1. c. 704; Bruce v. Wolfe, 102 Mo. App. 384, 386-7; St. Clair v. Hellweg, 173 Mo. App. 1. c. 666.

Turning to the abstract of title delivered to plaintiff by defendant, we find from the undisputed evidence in the case, that it contains a forgery as to the name of one of the grantors and without whose name the abstract would not have shown that either Nichols or defendant was the real owner of the Nebraska land.

Huggins v. Davidson.

O. E. Elder, who made the abstract in controversy, lived in North Platte, Nebraska, and had been engaged in the abstract business for about twenty years. He certified to above abstract in June, 1914, and at that time, mailed the same to James M. Nichols, of Oklahoma City, Oklahoma, and received a draft therefor. Among other things, he testified as follows:

At this

"The abstract Exhibit 'A' is the one I made, a part of it. There is missing from said abstract a history of the foreclosure proceedings on which the sheriff's deed shown at entry No. 9 was based. I did not see the abstract any more until a few days ago. time the history referred to was not in the abstract. I made this abstract from the county records of Lincoln County, Nebraska, and data which I have in my office consisting of a complete brief of all the records in the county clerk's office in this county. Upon examination of said abstract Exhibit 'A' at this time I also note that Entry No. 10 there has been added to the names of the grantors the following: 'and P. Gunderson, single.'

"I examined this abstract after it was completed and before it was mailed to Mr. Nichols, and on the same day I sealed the abstract in the envelope and attended to the mailing of it myself and the words 'and P. Gunderson, single' at Entry No. 10, were not in the abstract. I do not know by whom these words

were inserted in the abstract."

R. E. Woodside, official stenographer of the Texas Circuit Court, after an examination of said "Exhibit A," gave it as his opinion that the words "and P. Gunderson, single," at Transfer 10 were made with another typewriter.

defendant to conSheet No. 9 of

No testimony was offered by tradict either Elder or Woodside. said abstract, shows a conveyance of the Nebraska land by the sheriff of Lincoln County, Nebraska, to P. Gunderson, as grantee. It was dated and acknowledged July 18, 1902, and recites a considertion of

274 Mo.-4.