Cook v. Redwood Empire Title Co.

DEVINE, P. J.

In 1962 the Cooks, plaintiffs, deeded property to certain defendants against whom judgment was rendered but who have not appealed. The escrow was handled by appellant title company. A scrivener employed by appellant mistakenly drew a deed which purported to convey about 55 aeres more than the parties had agreed upon. Mr. Cook discovered the error in November 1963 and brought it to the attention of appellant. Appellant persuaded the grantees to reconvey. Redwood’s scrivener made a second error. The “correcting” deed left uneonveyed an area of about 15 acres. The deed was dated December 4, 1963, and was recorded December 11, 1963. Cook and one of the original grantees (the correcting grantors) both discovered the error on December 8, 1965, from tax bills. The grantee attempted to sell the 15 acres

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to Cook. Cook called on Redwood again, and again Redwood tried to persuade the grantees to reconvey, but this time was unsuccessful.

On October 6, 1966, plaintiffs commenced this action against the grantees for reformation and for quiet title. Judgment was for plaintiffs. Plaintiffs also sued Redwood Empire Title Company, in the same action for counsel fees and costs which were made necessary because of the title company’s errors. They were awarded $1,650.02. Although the title company defended on several grounds, including negligence of plaintiffs in failing to discover the mistakes, it now appeals on the sole ground of the statute of limitations, Code of Civil Procedure section 339, subdivision 1, which limits actions on oral contracts to two' years.

It is appellant’s theory that its first act of negligence in performing the contract, done by its employee, the scrivener,, was a completed fact when the original deed was executed and delivered in 1962; and that the second act of negligence, the drawing of the deed of reconveyance, was done not as part of a new contract, based on a fresh consideration, but was a gratuitous action on the title company’s part. But even, if this be not correct, appellant argues, the new transaction was completed when the deed was delivered on December 11, 1963, more than two years before this action was commenced.

We disagree with both of these propositions.