Weiss v. Old Republic Nat'l Title Ins. Co.

The plaintiffs did not waive their right to assert a claim for breach of warranty of title by not filing a written objection pursuant to the terms of the sales contract because the provisions of the warranty deed superceded the contract terms after the closing.

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This appeal raises the following issues regarding a sale of real property: whether the seller breached the warranty of title contained in a general warranty deed, whether the seller is liable to a subsequent purchaser for that breach months later even though a sales contract gave the purchaser only 30 days to object to the marketability of title, and whether there was a valid and enforceable title insurance policy. We answer each question in the affirmative, and uphold the trial court’s grant of summary judgment to the purchasers and their title insurance provider as subrogee. Old Republic National Title Insurance Company, Gregory Griffin, and J & M Family, L. P., collectively, “Old Republic” filed a complaint against Arthur Weiss based on Weiss’ alleged breach of warranty of title to real property. Both Old Republic and Weiss filed motions for summary judgment. The trial court granted Old Republic’s motion for summary judgment and denied Weiss’ motion. This appeal follows.

In May and July 1985, Weiss and Malcolm Dunlevie received by warranty deeds three adjoining tracts of land. In February 1986, Weiss and Dunlevie entered into a contract to sell the tracts to Westmark Corporation. The sales contract, which was signed on Westmark’s behalf by the corporation’s president, A. F. Hallman, contained a description of the property that combined the three tracts into one property. Before the transaction closed, Hallman, along with Jean Johnson and Griffin, agreed orally to buy the property from Westmark.1 Rather than having two separate transactions in which Westmark would purchase the property from Weiss and Dunlevie and then sell it to Hallman, Johnson and Griffin, the parties agreed that at closing Weiss and Dunlevie would convey the land directly to Hallman, Johnson, and Griffin.

Weiss v. Old Republic Nat'l Title Ins. Co.

The plaintiffs did not waive their right to assert a claim for breach of warranty of title by not filing a written objection pursuant to the terms of the sales contract because the provisions of the warranty deed superceded the contract terms after the closing.

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