
    No. 469
    REP. REALTY CO. et v. CLEVELAND TRUST CO.
    No. 19788.
    Supreme Court
    On motion to certify.
    Dock. Apr. 23, 1926.
    54. AGENCY — Where a bank in making a loan secured by mortgages on real estate sends a check to an Abstract and Title Co. with instructions to deliver check upon the determination of good titles and the Company making the loan employs the same Title Company to continue the abstracts etc., is said Abstract and Title Gompany an agent of both parties?
   This action was brought originally by The Cleveland Trust Company against The Representative Realty Company et in the Cuyahoga Common Pleas for foreclosure of mortgages on certain real estate.

The facts pertinent to the question involved are as follows:

The question at issue is whether or not the Trust Company had notice of certain first mortgages and waivers which were a lien on the property upon which the Trust Company accepted mortgages to secure a loan;

The Representative Realty Company applied to The Cleveland Trust Company for a loan and tendered as security therefor mortgages upon certain lots in the City of Cleveland. The Representative Realty Company enclosed, the mortgages with waivers thereon to The Land Title Abstract & Trust Company and stated in the letter that the title was being -examined and certified at the instance of The Cleveland Trust Company, and The Representative Realty Company. The Cleveland Trust Companv. through a duly authorized agent, enclosed to The Land Title Abstract & Trust Company a check for substantially Sixty-four Thousand Dollars ($64,000.00) with directions to examine the title and when certified good in The Representative Realty Company, to distribute the fund and have recorded its mortgage, and in this letter stated that title was being examined and certified at the request of The Cleveland Trust Company and The Representative Realty Company. The evidence further shows that the Legal Department of The Cleveland Trust Company made no examination of this title. It relied entirely upon The Land Title Abstract & Trust Company.

Attorneys — Charles S. Reed, for Realty Co; Wilkin, Cross & Daoust, and Sawyer, Cum-, mings, Mook and Douglas, for Trust Co.; all of Cleveland.

The Common Pleas held that the Trust Company had no notice of the liens and this decree was affirmed by the Appeals.

The Realty Company, in the Supreme Court, contends:

1. That the Trust Company had made the Land Title Abstract & Trust Company its agent and was thereby bound by the Title Abstract & Trust Company’s knowledge of the prior liens, as they had not been recorded.  