had; but, where there is a positive agreement to do the act which is to prevent damage to paintiff, there the action lies if defendant neglects or refuses to do the act. (41)" An action against an abstractor to recover damages for neligence in making or certifying an abstract of title does not sound in tort, but must be founded on contract (42) and the foundation of the action for damages is his implied promise to perform with care, diligence and sufficient skill the duty undertaken for the compensation agreed upon. (43) Thus where an abstractor knew that the abstract was being made for the exclusive benefit and use of a certain person, and he knew that such person would rely thereon, and the abstract was delivered to such person, the abstractor was held liable. (44) But the remedy may be in tort where the injury or loss resulted from a conspiracy between the abstractor and others to defraud the plaintiff by leaving off instruments not covered by the certificate. (45)

The measure of damages for an abstractor's failure to set out in the abstract the true condition of the title is his employer's actual loss, which is usually the amount which he had to pay to get the title, or to get the encumbrance removed. (46) Where an abstractor failed to show a deed in the abstract, it was held that a purchaser relying on such abstract could recover damages from such abstractor to the extent of the price paid for the land, reasonable attorney's fees, costs, and other necessary expenses incurred in an attempt to defeat the outstanding title, provided there was a reasonable probability of defeating same. (47) But an abstractor is liable only for the damage which is the direct consequence of his error or mistake. He is not liable for any loss resulting to his employer on account of defects in the abstract to the extent such loss could have been averted or lessened, by prompt action on the part of such employer. (48) Thus where he has omitted a mortgage from an abstract prepared for an intending purchaser of lands, he cannot be held liable for any payments made after the pur. chaser has notice of the mortgage. (49) But one who has suffered an injury by reason of an error in an abstract is not called upon to do an act which will not affect his own damages, though it would be of service to the abstractor. (50) Where a purchaser of land relied on an abstract furnished him by an abstractor, which failed to set out an attachment on the land, and the land was afterward sold and a deed executed under the attachment before the purchaser had notice of the omission, the measure of such purchaser's damages was held to be the value of the land and not the amount

(41) In re Negus of Wend. (N. Y.) 499. Rowsey v. Lynch 61 Mo. 560. (42) Lattiny v. Gillette 95 Calif. 317. Russell v. Polk Co. Abstract Co. 87 Iowa 233. (43) Chase v. Heaney 70 Ill. 268. Authorities cited in footnote 88 p. 16 Thompson on Titles to R. E.

(44) Denton v. Nashville Title Co. 112 Tenn. 320.

(45) Denton v. Nashville Title Co. 79 S. W. 799.

(46) Morange v. Mix 44 N. Y. 315. Allen v. Clark 7 L. T. N. S. 781. The Lawyer and Banker, Vol. 1, No. 2, p. 89.

(47) Wash. C. Abstract Co. v. Harris 48 Okla. 577.

(48) Roberts v. Leon Loan, etc. Co. 63 Iowa 76. 33 How. Pr. 247 2 Abb. Dec. 504. (49) Brega v. Dickey 16 Church Ch. (U. C.) 494.

(50) Van Schaick v. Sigel 60 How. Pr. (N. Y.) 122.

of the judgment in attachment. (51) Where, by reason of an abstractor's negligence, the abstract does not show a prior lien on the property, and his employer, in reliance on the abstract, makes a loan on the property, the employer is entitled to bring suit against such abstractor without waiting for any default in the mortgage and may recover the difference in value between the security he contracted for and that which he actually received. (52) An abstractor is liable to a mortgagee for the entire amount loaned on a mortgage, on the faith of the abstract showing no prior lien, when in fact the property was mortgaged for more than its value, and was exhausted to satisfy the first mortgage. (53)

By statute in some States abstractors are not permitted to search the public records; and in others they are required to pay a fee for the privilege of making a search. In such Sates, it is the practice of the abstractor, after having ascertained the chain of title, to direct written requisitions to the proper official having custody of the records for searches for encumbrances or liens of record that may affect the property. Whenever, by law or custom, it is made a part of the duty of such official to make such searches, he is held liable for mistakes and omissions and false certificates of search, to the same extent as the abstractor. (54) A duty sufficient to create such liability on the part of a public official need not be expressly created by statute, but may be created by custom, or may be implied from the fact that he may charge a fee for his services. (55) When such liability exists the officer is liable for the mistakes and omissions of his deputies, clerks, and persons in his employ. (56) His liability, like that of the abstractor's, is only to those who employ him, or others in privity of contract with him. (57) The officer may limit his liability by his certificate, or it may be limited by the requisition for the search. (58) But in the absence of a statute requiring a public officer to make searches, and especially where the statute specifies no compensation therefor, he is not liable unless he has a contract with the person for whom the search is made, or unless the certificate is falsely made with an intent to defraud. (59)

In England the purchaser has a temporary right of property in the abstract during the negotiations for sale of the land, and an absolute ownership therein if the sale is consummated. (60) There seems to be no reason why this rule should not apply in this country. (61) Our courts have held that the absolute right of property in the abstract remains in the vendor until the sale is consummated. Pending the sale the vendee is entitled to the custody of the abstract and has a special property therein,

(51) Sec. Abst. Co. v. Longacre 56 Neb. 469. (52) Lilly v. Boyd 72 Ga. 83. Wall v. Gr.

(53) Fox v. Thibault 33 La. Ann. 32.

(54) Smith v. Holmes 54 Mich. 104.

(55) Lusk v. Carlin 4 Seam (I11.) 395. McCaraher v. Com. 5 Watts & Co. (Pa.) 21. (56) Peabody Bldg. & L. Assn. ..ouseman 89 Pa. St. 261.

(57) Houseman v. Girard

(58) Tripp v. Hopkins 13 A. I

81 Pa. 256.

A.

(59) Mechanics Bldg, Assn. v. Whitearce 92 Ind. 547.

(60) Roberts v. Wyatt 2 Tanut 268. (61) Chapman v. Lee 55 Ala. 616.

which he can enforce against the vendor or other persons. But immediately upon the rescission of the contract of sale all his rights in and to the abstract cease. (62) If the contract of sale is, for any reason, rescinded, the purchaser cannot hold the abstract as a security for the return of any purchase money he may have paid. (63) As between mortgagor and mortgagee, the rule is that an abstract furnished by the mortgagor to assist the mortgagee in examining the title becomes a part of the security for the loan, and may be retained by the mortgagee until the mortgage is discharged. (64)

There is a lack of uniformity of opinion relative to the question of the liability of abstract books to taxation. Some courts class them with private manuscripts as being of no intrinsic value, and for this reason say they are not liable to taxation. These authorities contend that such books are only valuable for the information they contain, and that information is conveyed by consultation or extracts; that their value is only kept up by their completeness and continued correction; that the sale of a complete copy would practically destroy their value in the hands of their owner; and that a similar compilation by anyone else would have a like result. They hold that the value of such books, except as they are used, is nothing; that they resemble in nature, if not precisely, the books which are consulted by any person who makes an income from his acquired knowledge, whether scientific or otherwise. (65) Although such books may be made subject to levy and sale on execution by statute, it is held that such a statute will not operate as modifying the rule by which they are considered not to be subject to taxation. (66) In some jurisdictions, however, such books, being used as a means of profit, are considered property having a market value, and may be properly assessed for taxation. (67) It is argued that the chief value of such books consists in their contents being kept from the public. "They are the means, in a sense the instruments, for carrying on a business as much so as are the tools or machinery by which the artisan plies his calling. (68)" It is held that the fact that the books are largely in abbreviations and in cipher code, which only a limited number of persons understand, does not render them exempt from taxation. (69)

(62) Espy v. Anderson 14 Pa. St. 308.

(63) Jackson v. Conlin 50 Ill. App. 538.

(64) Holen v. Wust 11 Abb. Pr. (N. S.) (N. Y.) 113.

(65) Stevens v. Gladding 17 How. (U. S.) 447. Dart v. Woodhouse 40 Mich. 399.

Banker v. Caldwell 3 Minn. 94.

(66) Loomis v. Jackson 130 Mich. 594.

(67) Booth v. Phelps 8 Wash. 549.

(68) Leon Loan etc. v. Equalization Bd. 86 Iowa 127.

(69) Booth v. Phelps 36 Pac. 489. 23 L. R. A. 864. 40 Am. St. 921.

LEGAL QUALIFICATION OF

ABSTRACTERS

By W. R. Lawley, President Florida Abstract Company, West Palm Beach, Florida.

The question before us is, "What legal qualifications should abstractors have in order to prepare abstracts properly?" By legal qualifications in this particular instance is meant knowledge of real estate law. We have all noted the wide variance in the methods of abstractors in compiling abstracts. This brings to mind the question, "Why should not all abstracts be uniform, or, why should not all abstractors use the same forms in abstracting instruments from the records?" The question is in a way answered by the fact that not all abstractors have a knowledge of real estate law. Therefore, the abstractor who does not possess this knowledge usually adheres to the forms and methods used when he first entered the business, believing, quite naturally, that his is the best form.

Almost every abstractor enters the field without a previous knowledge of the meaning and purpose of abstracts, and without any legal training. He must therefore become qualified through experience and hard study. He often does not, but he should, possess enough knowledge of the meaning of the instruments before him to place him constantly on his guard, and to properly exhibit them in his abstract. If he knows the importance of the various clauses and phrases that make up these instruments he can then make some effort at correctness in his work, but without a knowledge of the laws relating to deeds, mortgages and the like, he will likely omit something of importance and thus lay himself liable to damages, or at least to criticism.

The demand today is for complete and comprehensive abstracts. The lawyer wants every essential point shown in the abstract. He is no longer willing to accept the old chain-of-title form which necessitates a long search of the records to reveal the parts not shown by the abstract. He wants to pass the title sitting at his desk and without an examination of the original records at the court house. What, then, must the abstractor who has no legal training do to meet this demand? He must qualify, and he cannot qualify without a study of law, at least to the extent of gaining sufficient knowledge to enable him to understand what is wanted of him, and to pass judgment on the parts of

an instrument to place in his abstract, and to know what does and what does not constitute a lien upon real estate. He must remember at all times that the work he is doing will be scrutinized by legally trained minds; that the lawyer depends on him for every record fact about the title under investigation and for non-record facts when obtainable. In other words, his abstract is a searchlight on the title abstracted, and he should prepare it having in mind the wants of the lawyer who is to examine the title, realizing that it must bear the closest scrutiny and criticism.

For instance, in abstracting a foreclosure proceeding, if the abstractor is familiar with how such cases progress, and understands the rules, he will properly exhibit the bill, the subpoena, the service, the affidavit for order of publication, the order of publication, the proof of publication, and so on, down to the decree confirming sale. But suppose he does not understand such procedure and sets out the suit in an irregular way, embracing in his abstract only such parts as seem to his untrained mind necessary. The lawyer does not know the facts, because the abstract does not show them, and he must either call on the abstractor for additional information as to the suit, or resort to the original files and the records for such information. The Florida Statutes prescribe the manner in which these things shall be done. In the case of an order for publication, for instance, not only is it necessary for the publisher to make proof of publication, but also the Clerk of the Circuit Court must post a copy of the order at the court house door and mail a copy of the order to each defendant in the case, if the addresses are given in the affidavit for order of publication. We have all discovered suits in Chancery where neither the files or records revealed the certificate of the Clerk that he posted the order at the court house door and mailed a copy to the defendants. In the absence of such certificate we are to assume that it was not made, therefore the case was not closed according to statute, and an abstract containing no reference to the certificate of Clerk, or a note as to its absence, is defective and subject to criticism. Here an abstractor should make a note that he finds no certificate from the Clerk of record or in the files. Many other instances could be shown where the lack of knowledge of the law could cause the abstractor to make serious blunders and omit something vital in his abstract.

To

my

mind one of the most serious mistakes made is the custom of some abstractors to refer to the description in an instrument as "Conveys land in caption," or "Encumbers land in caption," notwith