
    Herman Kountze et al., Ex’rs, Resp’ts, v. Fannie Ida Helmuth, App’lt.
    
      (Court of Appeals,
    
    
      Filed December 19, 1893.)
    
    1. Vendor and purchaser—Waiver of defects of title—Knowledge OF ATTORNEY.
    As it is not the duty of an attorney to communicate any facts concerning the title of real estate which his client is about to purchase before the time when the balance of the purchase price is to be paid and the deed taken, it will not he presumed that any knowledge which he had on the subject was communicated to his client before that time.
    2. Same—Sale of fixtures pending investigation of title.
    A purchaser who, without having the actual possession, or the right to the possession of real property, undertakes to sell to some third person, pending the investigation of the title, some fixtures or other portions of the freehold does not thereby waive defects in the title.'
    Appeal from judgment of the supreme court, general term, first department, overruling defendants exceptions and rendering judgment for plaintiffs.
    
      L. Laflin Kellogg, for app’lt; George W. Van Slyck, for resp’t.
   Gray, J.

The action was to recover damages for breach by defendant of a contract for the sale of certain real property to plaintiffs’ testator. The title was rejected for defects appearing upon the records and that the title was objectionable, under the contract, is a question not in dispute here. But it was and is insisted for the defendant, as ground of error, upon which she is entitled to a reversal of the judgment entered upon a verdict directed for the plaintiffs, that there was evidence, upon the trial, of a waiver by plaintiffs’ testator of the defects in the title; which should, at least, have been submitted to the jury, if it was not conclusive in law. The waiver is said to have been evidenced in the taking of possession by Mr. Kountze of the premises, under the contract of sale, and in selling a portion of the freehold after full knowledge of the defects in the title. An abstract of the title was handed to Mr. Kountze’s attorney, when the contract was made, and an examination of its contents would have revealed the matter's relied uponas defects in the title. The knowledge imputable to the attorney is sought to be charged to the client; but, whether the attorney had actually, during the time the contract was running, the requisite knowledge from the abstract, or from an examination, or not, the principle contended for would be beyond what could find justification in the law. It was the attorney’s duty to examine and to form an opinion of the title, and it became his duty to advise Mr. Kountze concerning it, at the time when, by the terms of the contract, the balance of the purchase money was to be paid and the deed to be taken. As it was not his duty to communicate any facts concerning the title before that time, it will not be presumed that any knowledge which he had upon the subject was communicated to his client. Such a communication, if deemed to be material, must be proved as any other fact.

The application of the principle contended for by the appellant’s counsel was in this state of facts. Dr. Helmuth, the vendor’s husband, desiring to take with him from the house certain bookcases, which were built into, or substantially fastened to, the walls of the library of the house, made a proposition for their purchase, which was eventually agreed to by Mr. Kountze. Dr. Helmuth commenced to remove them forthwith and without waiting for the closing of the contract It was argued that this act of selling was an act of ownership by Mr. Kountze, and a taking of possession under the contract We do not so regard it. It is immaterial, in our judgment, that Mr. Kountze may have supposed and stated, at the time he agreed to the transaction, that the title was satisfactory. Such a statement to a third person could not amount to a waiver. The facts did not evidence an intention to waive any objections to the title, which is essential to be shown, nor any assumption of ownership. It is not pretended that Mr. Kountze was ever let into, or ever went into actual possession. The vendor, Mrs. Helmuth, remained in possession, and Mr. Kountze had until the day fixed by their contract to complete his investigation of the vendor’s title to the premises. The agreement to sell the fixtures was subject, for its validity and enforcement, to the vesting of the title, to be evidenced in the way provided for in the agreement of sale, or by some conclusive act as between vendor and vendee anticipating the formal closing of their agreement Such an act was not only not proved, 'but the supposition that the vendor believed that Mr. Kountse had waived the defects in the title is wholly negatived by the extensions of time granted to her to make an effort to cure the' defects. Moreover, that Kountze did not intend to waive any objections to the vendor’s title is pretty clearly evidenced by his note to Dr. Helmuth, written the very next day after arranging for the sale of the bookcases, in which he suggested that he should wait until thé examination of the title was completed before removing the cases. Upon the question of the waiver by acts of ownership on the part of the vendee of land, counsel for the appellant refers us,' with seeming confidence, to the English case of Burnell v. Brown, 1 Jacob & Walker Ch., 168. But it is not at all apposite in its facts. That was a sale of an estate by auction in September, 1812.

In January, 1813, an abstract was delivered by which a reservation of the right to shoot over the estate appeared. In April following the defendant, at his own request, was let into possession. The greater part of the purchase money was paid without objection until in October following, when the purchaser claimed he-should have some compensation, by way of deduction from the price, because of the reservation over the estate. There is no such likeness to this case as to make it an authority in point; nor is it conceivable that any authority can be found which would go to the extent of holding that a purchaser has waived defects in title, who, without having the actual possession,or the right to the possession of the real property, undertakes to sell to some third person, pending the investigation of the title, some fixtures or other portions of the freehold. Such an agreement, however expressed, is dependent upon the future consummation of the contract of sale between the parties.

The judgment should be affirmed, with costs.

All concur. 
      
      Affirming 51 St. Rep., 795.
     