NATIONAL MORTGAGE CORPORATION
v.
AMERICAN TITLE INSURANCE COMPANY.
No. 81.
Supreme Court of North Carolina.
February 1, 1980.*846 Midgette, Page & Higgins by Keith D. Lembo, Chapel Hill, for defendant-appellant.
Allen, Hudson & Wright by James Allen, Jr., Marcus Hudson and Katherine S. Wright, Chapel Hill, for plaintiff-appellee.
Sanford, Adams, McCullough & Beard by E. D. Gaskins, Jr., Charles Montgomery, Peter J. Sarda, Catharine B. Arrowood, Raleigh, for amicus curiae, North Carolina Land Title Association.
HUSKINS, Justice:
This action is based upon a policy of title insurance issued by defendant. Plaintiff seeks to recover losses allegedly suffered by it by reason of the invalidity of the lien of its deed of trust on the Abernethy property. National Mortgage's lien has been previously declared invalid in a separate action brought by Mr. and Mrs. Abernethy against National Mortgage to enjoin foreclosure proceedings and declare National Mortgage's *847 deed of trust invalid. In that case, Judge Braswell entered summary judgment for the Abernethys. The Braswell judgment declares, in pertinent part, that the subordination agreement executed by the Abernethys is null and void and that, as a result, the deed of trust to National Mortgage by Jonas Kessing Company conveys no valid lien on the Abernethy property.
At the outset we note that the Braswell judgment does not collaterally estop the parties in this case from litigating any issues of law or fact relating to the validity of National Mortgage's lien on the Abernethy property. In order for collateral estoppel to apply, the parties in the instant case must be identical to or in privity with the parties to the Braswell judgment. See, King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973); Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962). Defendant in the present case, American Title Insurance Company, was not a party to the Braswell judgment. Nor did American Title stand in privity with the Abernethys or National Mortgage with respect to the property rights being adjudicated in the Braswell judgment, i. e., title to the Abernethy property. Accordingly, the parties in this case are free to litigate any issues of law or fact relating to the validity of National Mortgage's lien on the Abernethy property.
In the instant case both National Mortgage and American Title agree that the subordination agreement executed by the Abernethys is null and void as a result of which National Mortgage's lien on the Abernethy property is no longer valid. However, the parties disagree as to whether the events which caused the nullification of the subordination agreement and thus the loss of the lien are within the coverage of the title insurance policy. Consequently, the dispositive question on this appeal is whether the events which caused nullification of the subordination agreement were covered by the policy.
Review of the pertinent facts indicates that Mr. and Mrs. Abernethy held fee simple title to two undeveloped lots in Chapel Hill which they leased for a 60-year term to Jonas W. Kessing and by subsequent assignments of lessee's interest to the Jonas W. Kessing Company. The Abernethy-Kessing lease provides in pertinent part that lessors will subordinate their fee simple title to the lien of any deed of trust placed on the property by lessee to secure construction financing for the erection, furnishing and equipping of improvements on the premises. Financing was not to exceed the actual costs of the aforementioned improvements. Pursuant to these provisions of the lease, Jonas W. Kessing Company and the Abernethys executed a subordination agreement in which the Abernethys subordinated their fee simple title to a deed of trust in favor of National Mortgage. The subordination agreement incorporated the provisions of the Abernethy-Kessing lease. Subsequently, Jonas W. Kessing Company executed a deed of trust in favor of National Mortgage, giving it a first lien on the Abernethy property. The subordination agreement and deed of trust were recorded respectively at 12:23 p. m. and 12:26 p. m. on 18 July 1969.
Nothing else appearing, title insurance operates to protect a purchaser or mortgagee against defects in or encumbrances on title which are in existence at the time the insured takes his title. Mayers v. Van Schaick, 268 N.Y. 320, 197 N.E. 296 (1935); Trenton Potteries Co. v. Title Guarantee & Trust Co., 176 N.Y. 65, 68 N.E. 132 (1903); Strass v. District-Realty Title Insurance Corp., 31 Md.App. 690, 358 A.2d 251, cert. denied, 278 Md. 736 (1976); Butcher v. Burton Abstract Title Co., 52 Mich.App. 98, 216 N.W.2d 434, cert. denied, 419 U.S. 998, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974); 9 Appleman, Insurance Law and Practice, § 5208 at 9 (1943). "It is not prospective in its operation and has no relation to liens or requirements arising thereafter." Mayers v. Van Schaick, supra. "The risks of title insurance end where the risks of other kinds begin. Title insurance, instead of protecting the insured against matters that may arise during a stated period after the issuance of the policy, is designed to save him harmless from any loss through defects, *848 liens, or encumbrances that may affect or burden his title when he takes it." Trenton Potteries v. Title Guarantee & Trust Co., supra.
Here, the policy of title insurance issued by defendant insured the lien of plaintiff's deed of trust on the Abernethy property "all as of the 18th day of July, 1969, at 12:26 p. m. the effective date of this policy." This affirmative statement of coverage is also restated in the negative as an exclusion from coverage in subparagraph 3(d)(4) of the policy, which specifically excludes from coverage defects, liens other than certain statutory liens for labors and materials, encumbrances, adverse claims against the title as insured or other matters "attaching or created subsequent to the date hereof." The objective of this coverage is to protect against defects or other matters in existence at the time the policy is issued, unless otherwise excluded, which may, upon discovery at a later time, invalidate plaintiff's lien on the Abernethy property. Thus, the policy only insures: (1) that on 18 July 1969 fee simple title is vested in the Abernethys, and (2) that the subordination agreement and deed of trust are sufficient on that date to give plaintiff a first lien on the property. The policy does not insure against a breach of the subordination agreement by the Jonas W. Kessing Company or Village Associates of Chapel Hill after 18 July 1969 which invalidates the lien of plaintiff's deed of trust.
In the instant case the events which breached the conditions of the subordination agreement and rendered it ineffective occurred outside the stated coverage of the policy. On 24 July 1969 plaintiff authorized the direct disbursement to Village Associates of Chapel Hill, a limited partnership controlled by Jonas Kessing, of $125,000 in loan proceeds which plaintiff knew were required to be used to construct improvements on the Abernethy property. This disbursement was knowingly made by plaintiff prior to the commencement of any construction on the property. No construction was ever begun nor were any funds ever expended for improvements on the Abernethy lots. Apparently, the moneys disbursed to Village Associates of Chapel Hill were misappropriated.
One of the conditions imposed by the Abernethys in return for their agreement to permit plaintiff's deed of trust to become a first lien on their property was that the proceeds of loans secured by said deed of trust would be utilized for the construction of improvements on their property. The 24 July 1969 disbursement of loan proceeds in the sum of $125,000 and the subsequent misappropriation of these funds made compliance with this condition impossible and resulted in the nullification of the Abernethy subordination agreement and the loss of plaintiff's first lien on the Abernethy property.
Due consideration of the record impels the conclusion that the 24 July 1969 disbursement and the subsequent misappropriation of the loan proceeds caused the nullification of the subordination agreement and the loss of plaintiff's lien on the Abernethy property. There were no breaches of the subordination agreement as of 18 July 1969. Nor were there any fatal defects in the drafting or execution of the agreement on or prior to that date. Thus, the failure of the subordination agreement and the consequent loss of the lien cannot be attributed to matters in existence on the date the policy was issued. We hold, therefore, that the loss incurred by insured is not covered by the policy of title insurance sued upon in this case.
We note in passing that the loss suffered by plaintiff may be excluded from coverage under certain exclusionary provisions of the policy which are quoted below.
"3. Exclusions from the Coverage of this Policy. This policy does not insure against loss or damage by reason of the following:
* * * * * *
(d) Defects . . . or other matters (1) created .. . by the Insured claiming loss or damage . . . ."
* * * * * *
*849 "5. Pending disbursement of the full proceeds of the loan secured by the Deed of Trust described in Schedule `A' hereof, this policy insures only to the extent of the amount actually disbursed, but increases as each disbursement is made in good faith, and without knowledge of any defects in, or objections to, the title, up to the face amount of the policy." Schedule B.
Since we decide the case on other grounds we need not determine whether these provisions exclude from coverage the loss in question.
For the reasons stated, the decision of the Court of Appeals is reversed.
The case is remanded to the Court of Appeals for further remand to the Superior Court of Orange County for entry of judgment in accord with this opinion.
REVERSED AND REMANDED.