16 Ind. App. 464 | Ind. Ct. App. | 1896
The error complained of consists in the sustaining of the demurrer of the appellees to the complaint of the appellant. The appellees are abstracters of titles to real estate. The gist of the complaint is that the appellant employed them to make an abstract of title to certain real estate and'that they negligently failed to abstract a mortgage of record in the recorder’s office of Warren county, where the land is situated, and also failed to include in such -abstract a suit then pending in the circuit court of said county for the foreclosure of said mortgage, and that the ap
It appears from the complaint that the appellees are professional abstracters of titles to real estate in Warren county, where they have an office and hold themselves out as skillful and experienced abstracters, to the public, for hire. In February, 1891, the appellant purchased the real estate in question at a delinquent tax sale, as the property of Joseph Hedrick. In March, 1893, more than two years after such purchase by him, the appellant received from the auditor of Warren county a tax deed for said lands, which was duly recorded. In September, 1893, appellant, desiring to bring suit to quiet his title to said lands, employed the appellees to make him an abstract of title thereto, for the purpose of ascertaining who had or held any lien of any kind upon said real estate, of record in any of the county offices of said county where such records are kept, and also lis pendens and suits, if any were pending, affecting such real estate, in order that he might make all proper and necessary parties to his action to quiet title on his tax deed. The appellees undertook to make and complete for him an abstract of title to said lands, from the year 1866 up to and including the 14th day of September, 1893, under said employment, but that they so negligently and carelessly performed this undertaking that in making said abstract they failed and neglected to show or mention a certain mortgage on said real estate, long before that time duly recorded in the recorder’s office of said county, securing a note of $933.12, in favor of the First National Bank of Dan-ville, Illinois, and executed by said Hedrick, which mortgage -was wholly uncanceled and unsatisfied,
Was the appellant injured by the failure of the appellees to fulfill their contract?
When the appellant employed the appellees to prepare the abstract he had already acquired the lien upon the land. The lien being for taxes-, was superior to any other lien upon the real estate-. Had he made the bank a party to his foreclosure suit he could have secured a decree, as between him and the bank, establishing the priority of his lien. But his failure to make the bank a party did not operate as a waiver of his right of priority. A senior lienholder may foreclose his lien without making the junior lienholder a party and still retain the priority of his lien; or, at least, the merger of the lien into the decree, and the
It is difficult to understand, therefore, how the appellant could have sustained any substantial damage by reason of the appellees’failure to mention the mortgage and pending suit of the bank in the abstract. It is not shown how the appellant was deprived of any rights or parted with anything of value in reliance upon the statements or omissions of the abstract. It
If it had been made to appear by the averments of the complaint that the appellant was compelled to pay out any money for the purpose of a suit to foreclose the right of redemption of the bank, the case might be different. But this is not made to appear.
The complaint at most shows that the appellant is entitled to nominal damages. A judgment will not be reversed for sustaining a demurrer to such a complaint.
Judgment affirmed.