Ephraim v. Oakland Title Insurance & Guaranty Co.

KERRIGAN, J.

This is an appeal by the defendant from a judgment in favor of plaintiffs for the sum of $1,800. . In the latter part of May, 1919, the plaintiff, Mrs. A. F. Ephraim, authorized one S. M. Sample to sell the parcel of land described in the complaint for the sum of $1,800; Sample’s compensation to be five per cent of said amount. Said agent sold said land to Lionel Wachs at the price thus fixed, who directed that the title thereto be placed in the name of Milton Mazor. Accordingly, Mrs. Ephraim executed a deed to Mazor, and on May 26, 1919, she and the purchaser visited the office of the defendant, Oakland Title Insurance & Guaranty Co., and gave instructions as to the completion of the transaction, which took the common form of the deposit of the deed in escrow to be delivered to the grantee upon payment of the purchase price. At this time Mrs. Ephraim produced an unrecorded deed' to the property to herself from Marie Uhl dated November 22, 1918. Apparently the plaintiff made a satisfactory explanation to the secretary and manager of the Title Company, Ira Abraham, as to why her deed had not been recorded. In any event she deposited the two deeds with the defendant, receiving from it a receipt which provided that the deed from Mrs. E'phraim to Mazor was to be delivered to Mazor

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upon payment of $1,800, less $95, the commission • payable to the agent. On the following day Wachs notified Sample that he had decided to take the title in his own name instead of in the name of his friend Mazor. Accordingly a deed conveying the property to Wachs was executed by Mazor. On May 28th this deed was sent by Wachs to the Title Company, together with a check for $1,800, with instructions to pay the amount thereof to the plaintiff, A. F. Ephraim, when the Title Company could issue its policy showing record title to the lot in himself. On the afternoon of the same day the Title Company filed for record all three deeds, and handed Mrs. Ephraim a check for $1,705, and to Sample a check for $95. Shortly thereafter Mrs. Ephraim telephoned to the defendant’s secretary requesting him to return to her when recorded, and to no one else, the deed from Marie Uhl to herself. He replied that the transaction was closed, that she had no interest in the deed nor in anything except the money, check for which had been given to her. This communication aroused the suspicion of Mr. Abraham, and he requested Mrs. Ephraim not to cash the check, but to call at the office of the Title Company the following morning. He stopped payment of both checks and directed the county recorder not to let the deeds out of his possession. The next morning at a meeting in the office of the Title Company, - which was attended by Marie Uhl, the plaintiff’s purported grantor, she declared that she had not conveyed the property to Mrs. Ephraim, and about a week later commenced an action against Mrs. Ephraim and others to quiet title to the lot and to have her alleged deed declared void. A