Holm v. Wust — 11 Abb. Pr. 113

Majority

p. 113

HOLM against WUST.

Supreme Court, Second Department, Second District;

General Term, March, 1871.

Headnote

Right of Attorney to Retain Abstracts of Title.

Where the owner of land, about to execute a mortgage, delivers to the-mortgagee’s attorney, for the purpose of decreasing the expenses of searching, an abstract of title to the premises, the abstract becomes-a part of the security for the loan, and the mortgagor is not entitled to the possession of it until the mortgage is paid.

Appeal from a judgment.

This action was brought by Carl Holm against Christopher C. Wust, in the Brooklyn city court, to recover possession of an abstract of title to certain premises owned by plaintiff, which it was alleged defendant wrongfully withheld.

Plaintiff was about to execute a mortgage on the' property to a Mrs. Cutler, who had employed defendant, who was an attorney, to search the title. The answer alleged that plaintiff, in order to save expense, delivered to defendant an abstract covering part of the-property, to use in examining the title, and that defendant had not made official searches for tb»e time em

p. 114

braced by the loaned abstract, and that the expense was lessened thereby, and that defendant had held the . abstract only as agent of Mrs. Cutler, and that he offered to deliver it' up on payment of the mortgage. Plaintiff adduced no evidence on the trial. The value of the abstract was admitted. Defendant offered evidence tending to show that it was the custom among conveyancers to retain abstracts under similar circumstances.

The court directed a verdict for plaintiff, on the ground that the answer, if proved, would not constitute a defense, as there was no such custom shown as to overrule the law upon ordinary loans, and that, by the answer, it was shown that the loan of the abstract had been made for a temporary purpose which had been accomplished.

Defendant excepted to this ruling, and appealed.

Dana & Wust, for defendant, appellant.

H. B. Whitbeck, for plaintiff, respondent.

Under the evidence in this case, I think the plaintiff failed. to make out a cause of action against the defendant. The plaintiff had applied for a loan upon certain of his property to Harriet Cutler. The defendant was her attorney. Searches were to be made by defendant at plaintiff’s expense. Searches so made would belong to Mrs. Cutler. To save the expenses of a portion of this search, the paper in question was delivered by plaintiff to defendant. Ho searches were made as to the premises covered by this paper in question. The loan was made.- Under the circumstances of this case, the disputed abstract was-a part of the security for the loan. In case of a sale of the mortgage or of a foreclosure, it would be necessary that Mrs. Cutler should have it, or that another should be made.

p. 115

The plaintiff substituted his abstract in the place of one to be made by defendant, and he must pay his mortgage before he is entitled to its return.

Judgment reversed and a new trial ordered, costs to abide the event.