Williams, 2 Colo. App. 559 (31 Pac. Rep. 504); Preston on Abstracts of Title, 41; Willard on Real Estate and Conveyancing (2nd Ed.), p. 527; 1 Am. & Eng. Enc. Law (Rev. Ed.), p. 211.

Sec. 2. What an abstract should contain. An abstract of title should contain a note of all conveyances, transfers or other facts relating to the particular title under examination, together with all such facts appearing of record as may impair it. Heinsen v. Lamb, 117 Ill. 549 (7 N. E. Rep. 75); Wakefield v. Chowan, 26 Minn. 379 (4 N. W. Rep. 618). Not only should the line of the title be clearly traced out, but all incumbrances, all chances for eviction, and adverse claims which are of record should be shown. The material parts of all patents, deeds, wills, judicial proceedings and other records or documents which touch the title, and also liens and incumbrances of every nature, should be set forth. Taylor v. Williams, 2 Colo. App. 559 (31 Pac. Rep. 504); Banker v. Caldwell, 3 Minn. 94; Thomas v. Schee, 80 Ia. 237 (45 N. W. Rep. 539); American and Eng. Enc. of Law (Rev. Ed.) 211; Warvelle on Abstracts, ch. 1, § 4. Most American writers follow the English authors and declare that all matters in pais, such as births, majorities, marriages, descents and successions, which connect the different parts of the title should be shown, but this is not the practice in this country, and an abstracter would not be liable in damages for omitting from the abstract any matter not appearing of record. In England it is held that in abstracting a sale by the court it is necessary to set forth in the abstract enough of the proceedings in the suit to show that the court had jurisdiction, Waters v. Waters, 36 L. J., Ch. 195; 15 W. R. 191; but this is not customary in the United States, the prevailing practice being to state the important facts of the case, such as the nature of the proceedings, the names of the parties, the date of the commencement of the action and the judgment or decree, and the amount of the judgment, leaving to the party that examines the abstract the responsibility of determining the question of jurisdiction. It is also held in England that where the abstract shows a good equitable title, it need not show the devolution of the legal estate. Camberwell, etc., Bldg. Society v. Holloway, 13 Ch., Div.

754. But this is under the rule requiring the vendor to show simply a good merchantable title. The term abstract of title is used in this country with reference to the recording statutes which are in force in all the states, by which the whole title is contained in instruments of record; at least so far as third parties who are innocent purchasers are concerned. Therefore, an American abstract should include a concise statement of what appears on the public records affecting the title to the property in question, whether it shows an equitable title, a legal title, or no title. Union Safe Deposit Co. v. Chisholm, 33 Ill. App. 647; Heinsen v. Lamb, 117 Ill. 549 (7 N. E. Rep. 75); Smith v. Taylor, 82 Cal. 533 (23 Pac. Rep. 217).

Sec. 3. Duties of abstracter-Legal knowledge required. He should make a full and true search and examination of the records relating to the title under investigation, and note upon the abstract accurately every transfer, conveyance or other instrument of record in any way affecting the same. Wacek v. Frink, 51 Minn. 282 (53 N. W. Rep. 633; 38 Am. St. Rep. 502); Wakefield v. Chowan, 26 Minn. 379 (4 N. W. Rep. 618). He should note all unsatisfied liens, although he doubts their validity. Gilman v. Hovey, 26 Mo. 280. It has been held that no duty is imposed on an abstracter to inquire into the existence of any judgment entered, or conveyances recorded, prior to the date mentioned as the commencement of the search, and that it is not necessary for him to investigate or state whether the title vested in any grantee during that period is affected by any prior conveyance or any estoppel growing out of the covenants therein. Wakefield v. Chowan, 26 Minn. 379 (4 N. W. Rep. 618); Dodd v. Williams, 3 Mo. App. 278. But these decisions are contrary to the prevailing rule, and should not be followed. Parties searching the records for a chain of title should not stop at the day and the hour at which the evidence of a title in a certain grantee is filed for record, but should go back to the date of that title as shown by the record; for the grantee may have made conveyances affecting the title between the dates of his receiving title and recording his deed. Higgins v. Dennis, 104 Ia. 605 (74 N. W. Rep. 9). In all cases where a

lien or other incumbrance first attaches during the period covered by the examination it should be referred to in the abstract, whatever may have been the date of its inception. Warvelle on Abstracts, p. 92. An abstracter sustains a relation of trust and confidence towards his employer, so as to make him a trustee for the latter, of a title acquired in violation of such relation. Vallette v. Tedens, 122 Ill. 607 (14 N. E. Rep. 52; 3 Am. St. Rep. 502).

It has been said that in preparing an abstract, no professional opinion as to the legal effect of the instruments abstracted is required; that the abstracter has only to furnish the facts from the records, and the purchaser, mortgagee or his counsel, determines for himself their sufficiency. Dickle v. Abstract Co., 89 Tenn. 431 (14 S. W. Rep. 896; 24 Am. St. Rep. 616); West Jersey Title and Guaranty Co. v. Barber, 49 N. J. Eq. 474 (24 Atl. Rep. 381). And yet, "by their profession, abstracters are required to have a sufficient knowledge of law to know what is and what is not a lien upon real estate, and to use sufficient diligence to find any such incumbrances when properly made matter of record, so as to affect all parties interested with notice." Dodd v. Williams, 3 Mo. App. 278. The making of a perfect abstract of title to a piece of land, with all the incumbrances which affect it, involves a great exercise of legal learning and careful research. The person preparing such an abstract should understand fully all the laws on the subject of conveyancing, descents and inheritances, uses and trusts, devises and, in fact, every branch of the law that can affect real estate in its various mutations from owner to owner. Banker v. Caldwell, 3 Minn. 94.

Sec. 4.

Period for which title should be shown. The old rule in England was that the abstract should show the title for sixty years, Williams on Real Property (6th Ed.), 450; Sugden on Vendor and Purchaser (13th Ed.), 281, and this was said to be by analogy to the statute of limitation against a writ of right. Willard on Real Estate and Conveyancing (2nd Ed.), 527; Martindale on Abstracts, § 17. As succeeding statutes have shortened the time necessary to bar an action for real property, the period of time for which the title should be shown has been lessened. Under the Vendor and Pur

chaser Act of 1874, any abstract that shows title for forty years is sufficient. Bolton v. London School Board, 7 Ch. Div. 766; In re, Johnson, 30 Ch., Div. 42. But by the same act, recitals in deeds over twenty years old are prima facie evidence of the facts recited, and where the title begins from a deed over twenty years old, reciting seizin in fee, the vendee cannot demand further abstracts, except so far as he may prove the recitals inaccurate. Bolton v. London School Board, 7 Ch. Div. 766. No rule exists in the United States as to the period required to be covered by an abstract, but the universal custom is to carry the title back, where possible, to the original patent from the United States government. In the older states it is sometimes impossible, because of the condition of the records to trace the titles from the original patent. In such cases it is said the title should be shown for a period of forty years. Martindale on Abstracts, §§ 17 and 19. "Whenever practicable the abstract should disclose the inception of title, irrespective of time; but where this cannot readily be done, it should commence with some well authenticated fact at some period remote enough to cover any adverse interest or equity that could successfully be asserted." Warvelle on Vendors, p. 298. When an abstracter agrees to furnish an abstract of title to certain lands from and after a specified date, he is under no obligation to inquire as to the existence of judgments entered or conveyances recorded prior to that date. He is not required to inquire or certify as to any lien arising under any such prior judgment, though the same attached to and became operative upon land after that time; nor would he be required to inquire or state whether the title vested in any grantee during the period covered by the contract was affected by any prior conveyance, or any estoppel growing out of any cove. nants therein. Wakefield v. Chowan, 26 Minn. 379 (4 N. W. Rep. 618). In Dodd v. Williams, 3 Mo. App. 278, it is decided that deeds recorded before the grantor has any record title, may be safely disregarded in an examination of title under the system of registration and notice existing in Missouri, that such deeds are not constructive notice to an innocent purchaser, and the examiner is not bound to look for deeds of any person through whom the title passes, before the date of his record title. To the same effect are State v. Bradish, 14 Mass. 296

and the dissenting opinion of Potter, J., in McCusker v. McEvoy, 10 R. I. 606. However, the safer plan would be to extend the search back at least to the date of the execution of the recorded deed.

Sec. 5. Nature of liability of abstracters. The existof a liability on the part of persons who engage in the business of searching records, examining titles, and preparing abstracts, for compensation, is well established. Wharton on Neg., § 749; Sher. & Red. on Neg., § 574; Story on Bailments, § 431; Weeks on Attys., § 267. But as to the nature of the liability thus assumed the authorities have not been altogether in harmony. It appears to be settled, however, that the contract is not one of indemnity, but merely an undertaking that the abstracter will faithfully and skillfully perform his work. Dundee Mortgage Co. v. Hughes, 20 Fed. Rep. 39; Wacek v. Frink, 51 Minn. 282 (53 N. W. Rep. 633; 38 Am. St. Rep. 502); Rankin v. Schaeffer, 4 Mo. App. 108; Thomas v. Schee, 80 Iowa 237 (45 N. W. Rep. 539). "One who holds himself out as an examiner of titles to real estate and maker of abstracts thereof, impliedly undertakes that he possesses the requisite knowledge and skill for such employment, and, if he contracts to render such service he is bound to exercise ordinary skill and care in making the examination and the abstract." Brown v. Sims, 53 N. E. Rep. 779. The liability of an examiner is for breach of contract, and not in tort. Russell v. Polk County Abs. Co., 87 Iowa 233 (54 N. W. Rep. 212; 43 Am. St. Rep. 381); Lattin v. Gillette, 95 Cal. 317 (30 Pac. Rep. 545; 29 Am. St. Rep. 115). The foundation of an action for damages against an abstracter for any error in his abstract is his implied promise to perform with care, diligence and sufficient skill the duty undertaken for the compensation agreed upon. Smith v. Holmes, 54 Mich. 104 (19 N. W. Rep. 767); Lattin v. Gillette, 95 Cal. 317 (30 Pac. Rep. 545; 29 Am. St. Rep. 115); Gilman v. Hovey, 26 Mo. 280; Clark v. Marshall, 34 Mo. 429; Dodd v. Williams, 3 Mo. App. 278; Chase v. Heaney, 70 Ill. 268; Wakefield v. Chowan, 26 Minn. 379; Wacek v. Frink, 51 Minn. 282 (53 N. W. Rep. 633; 38 Ann. St. Rep. 502); Dickle v. Abstract Co., 89 Tenn. 431 (14 S. W. Rep. 896; 24 Am. St. Rep.