8; Martindale on Abstracts, p. 173. But, inasmuch as the vendee or mortgagee, the only parties likely to be damaged by any mistake or inaccuracy in an abstract, seldom procures the abstract to be made, there has been a tendency to extend the liability to parties other than the employer. The reason for this is thus stated in a late Indiana case: "If the abstracter in all cases be responsible only to the person under whose employment he performs the service, it is manifest that the loss occasioned thereby must in many cases, if not in most cases, be remediless." Brown v. Sims, Ind. App.

(53 N. E. Rep. 779). In this case it is held that, where one employed by a land owner to make an abstract knew that it was to be used to induce a third party to make a loan on the land and that he would rely on it, subsequently delivered the abstract to such proposed mortgagee with the assurance that his work could be relied upon and that the title was correctly shown in the abstract, he should be held liable to such mortgagee for loss sustained by him on account of defects in the title not shown by the abstract. So, in Dickle v. Abstract Co., 89 Tenn. 431 (14 S. W. Rep. 896; 24 Am. St. Rep. 616), the plaintiff contracted to purchase land from Bowman, but declined to do so, until furnished with an abstract. Bowman applied to the defendant to make an abstract, and paid for it. The defendant furnished the abstract to Bowman, and guaranteed it to be a true and perfect abstract of title. The plaintiff purchased on the faith of it. The deed from Bowman to the plaintiff was prepared by the defendant. Certain conveyances of a part of the land were not shown by the abstract, and the abstracter was held responsible to the purchaser. In a dissenting opinion in Savings Bank v. Ward, 100 U. S. 195 (concurred in by JJ. Swayne and Bradley), Mr. Chief Justice Waite says, "I think if a lawyer, employed to examine and certify to the recorded title to real property, gives his client a certificate which he knows or ought to know is to be used by the client in some business transaction with another person as evidence of the facts certified to, he is liable to such other person relying on his certificate for any loss resulting from his failure to find on record a conveyance affecting the title, which, by the use of ordinary professional care and skill, he might have found." Where, upon inquiry, an abstracter affirms the

correctness of his abstract to the grantee or mortgagee of his employer, he will be held liable for loss resulting to such grantee or mortgagee relying upon his abstract, on account of defects therein. Seiwers v. Commonwealth, 87 Pa. St. 15. See Houseman v. Girard Bldg. Ass'n, 81 Pa. St. 256; Peabody Bldg. Ass'n v. Houseman, 89 Pa. St. 261 (33 Am. Rep. 757). That a holding similar to the Indiana and Tennessee cases might be made in New York is indicated in Day v. Reynolds, 23 Hun. 131, where in holding that there was no liability in that particular case, it was remarked that there was no reason, without proof of the fact, that the defendant should know that the mortgagor or his agent, who procured the making of the search, was to use it in a transaction with the plaintiff, the mortgagee, or with any one else. But in Zweigardt v. Birdseye, 57 Mo. App. 462, it was said that the abstracter is not liable to any one but his employer, even where he has knowledge that the certificate as to the title is to be used in a sale or loan to advise the purchaser or lender. So, in Louisiana, it has been held that the vendee of a purchaser at a sheriff's sale, though expressly subrogated to all the rights acquired by his vendor under the sheriff's sale, has no right of action against the recorder of mortgages for having given an imperfect and erroneous certificate, whereby his vendor was induced to purchase property charged with incumbrances not made known at the time of the sale. The action for damages is a personal one, and can only be exercised by the purchaser. Morano v. Shaw, 21 La. Ann. 329. In Pennsylvania it has been held that the liability for a defective search is to the party who procures it alone, and that an action for damages can not be sustained upon a certificate given to an antecedent purchaser. Siewers v. Commonwealth, 87 Pa. St. 15; Commonwealth v. Harmer, 6 Phila. 90; Houseman v. Girard B. & L. Assn, 81 Pa. St. 256. One preparing or examining an abstract for the negotiation of a loan is not liable for errors therein to one taking an assignment of the mortgage, although the assignment was taken in reliance upon the abstract. Talpey v. Wright, 61 Ark. 275 (32 S. W. Rep. 1072; 54 Am. St. Rep. 206); Dundee Mtg. Co. v. Hughes, 20 Fed. Rep. 39. When an abstracter is employed by one party, his liability is not affected by the fact that the expense

is paid by another. Houseman v. Girard B. & L. Association, 81 Pa. St. 256; Lawall v. Groman, 180 Pa. St. 532(37 Atl. Rep. 98; 57 Am. St. Rep. 662); Page v. Trutch, 18 Fed. Cases, 995. The fact that the borrower knew of the existence of the omitted liens, and acted as the agent of the lender in ordering the abstract will not relieve an abstracter from liability to a party loaning money and relying on his certificate. Houseman v. Girard B. & L. Assn., 81 Pa. St. 256. Where the owner of land, being an abstracter prepares an abstract of the title to the same, to be used as an inducement to whoever might purchase the land, he is liable to a purchaser thereof for mistakes in the abstract just as much as if the abstract was prepared upon the purchaser's order. Thomas v. Schee, 80 Iowa 237 (45 N. W. Rep. 539).

Sec. 12. Action against abstracter-Miscellaneous notes. A complaint in an action against an abstracter for damages for a false certificate must show that the plaintiff has been damaged on account of it. United States Engine Co. v. Linville, 43 Kan. 455 (23 Pac. Rep. 597). It is necessary to prove actual damage, and to show that the loss resulted from the defect wherewith the abstracter is charged. U. S. Wind Engine Co. v. Linville, 43 Kan. 455 (23 Pac. Rep. 597); Batty v. Fout, 54 Ind. 482; Kimball v. Connolly, 33 How. Pr. 247. A complaint by an intending purchaser, to recover damages on account of an error in an abstract is insufficient where it fails to allege that the plaintiff purchased the realty. Batty v. Fout, 54 Ind. 482. The right to maintain the action is not affected by the fact that the plaintiff has other remedies, as suit on covenants of his grantor, Gate City Abstract Co. v. Post, 55 Neb. 742 (76 N. W. Rep. 471); and the defendant, who would avail himself of the fact that the plaintiff is protected from loss or has ample redress against another person by covenants against incumbrances, has the burden of proving that a remedy exists which is available to the plaintiff and to which he should resort. Morange v. Mix, 44 N. Y. 315. In a suit against an abstracter for neglecting to show a judgment and sale thereunder, the defendant contended that no recovery could be had, as it was not shown that the judg ment and sale were entered of record. It was held that, in

the absence of proof to the contrary, it would be presumed that the officers did their duty, and promptly make a record of the judgment and sale. Chase v. Heaney, 70 Ill. 268. In such action the defendant may show that the person against whom the judgment was rendered had other unincumbered real estate in the county, subject to execution, sufficient to satisfy the judgment. Roberts v. Sterling, 4 Mo. App. 593. In an action against an attorney by a mortgagee to recover damages for loss occasioned by negligence in examining title, declarations of the mortgagor, in the absence of fraud or collusion between him and the attorney, are inadmissible. Lawall v. Groman, 180 Pa. St. 532 (37 Atl. Rep. 98; 57 Am. St. Rep. 662). Where one's cause of action for damages against an abstracter depends upon his title having been defeated by an outstanding title omitted from the abstract which rested upon the statute of limitations, he cannot recover, where, after obtaining a judgment against the holder of such title, he abandons his judgment and surrenders title to him on account of adverse decisions by the higher court in similar cases, it not being shown that the time for taking an appeal from the judgment had not expired or that possession of the claimant of the outstanding title was such as to give a title under the statute. Puckett v. Waco Abstract & Inv. Co., 16 Tex. Civ. App. 329 (40 S. W. Rep. 812).

Sec. 13. When action against abstracter must be commenced. A cause of action against an abstracter of titles for neglect in searching the records and giving a wrong certificate of title, accrues at the date of the delivery of the abstract, and not at the time the negligence is discovered, or consequential damages arise. Hence, an action based on such negligence must be commenced within the period of limitation after that time, or it is barred. Provident Loan Trust Co. v. Wolcott, 5 Kan. App. 473 (47 Pac. Rep.8); Lattin v. Gillette, 95 Cal. 317 (30 Pac. Rep. 545; 29 Am. St. Rep. 115); Russell & Co. v. Polk Co. Abstract Co., 87 Iowa 233 (54 N. W. Rep. 212; 43 Am. St. Rep. 381); Lawall v. Groman, 180 Pa. St. 532 (37 Atl. Rep. 98; 57 Am. St. Rep. 662); Schade v. Gehner, 133 Mo. 252 (34 S. W. Rep. 576); Rankin v. Schaeffer, 4 Mo. App. 108 (34 S. W. Rep. 576).

"It has been uniformly held that the statute begins to run from the breach of the contract, although the damage may not be known or may not in fact occur until afterwards." Lawall v. Groman, 180 Pa. St. 532, 541 (37 Atl. Rep. 98; 57 Am. St. Rep. 662). The fact that an examiner of titles who has certified to the title of a certain piece of property, afterwards, when an action in ejectment is brought against the widow of the party for whom he examined the title, expresses an opinion to such widow that the title is good, does not extend the time within which suit can be brought against him for negligence in his examination. Schade v. Gehner, 133 Mo. 252 (34 S. W. Rep. 576).

Sec. 14. Who must furnish abstract. In England there is an implied contract on the part of every vendor of a freehold estate in land, to furnish the purchaser an abstract of title. 1 American and Eng. Ency. of Law (Rev. Ed.), p. 211; Williams Real Prop. (6th Ed.), 450; Pomeroy on Specific Perform., § 413.. Although the vendor should think fit to deliver his title deeds to a purchaser as a substitute for an abstract, the purchaser would yet have a right to require an abstract of title at the vendor's expense. 1 Preston on Abstracts, p. 34. In this country it has become almost a universal custom in the transfer of real estate for the vendor to furnish to the vendee satisfactory evidence of his title, and this is usually done by furnishing him an abstract. "An abstract has become the usual concomitant of every instrument evidencing an interest or ownership in land.” Gate City Abstract Co. v. Post, 55 Neb. 742 (76 N. W. Rep. 471); Warvelle on Vendors, p. 290. Although this has become customary in the United States, there is no implied obligation on the part of the vendor to furnish an abstract of title, and the vendee cannot demand one as a matter of right, unless there is a provision to that effect in his contract. Warvelle on Vendors, p. 292; Martindale on Abstracts, p. 6; Pomeroy on Specific Perform., § 413; Carr v. Roach, 2 Duer 20; 1 Am. & Eng. Ency. of Law (Rev. Ed.) 213. Since every title is of record, the application of the doctrine of caveat emptor, in the absence of special agreement, requires the purchaser to satisfy himself as to the sufficiency of the title, and for that purpose to procure