dissenting:
Together with the district judge, I think that the conveyance to Bostic of land which he did not desire and which did not adjoin the lot that he owned was the result of mutual mistake and was not ascribable to the fault of Amoco. Since Bostic and his attorney were fully advised of what Amoco was selling, Bostic’s own lack of understanding and the deficiencies of Bostic’s attorney and title searcher brought about the result. I would affirm in all essential regards except to require Bostic to reimburse Sunoco for the rent it paid Dr. Bowie during the period of Bostic’s continuing trespass on the property leased by Sunoco. From a contrary holding, I respectfully dissent.
I.
The majority concedes that Amoco did not practice intentional fraud on Bostic. I wholeheartedly agree. But I disagree with the holding that Amoco made false representations to Bostic, thereby practicing constructive fraud which led him into his present predicament. Bostic and his attorney had ample notice of what Amoco was selling and what he was buying. That he was mistaken, or failed to grasp that which was called to his attention, is regrettable, but it serves as no basis for recovery from Amoco although it may well support a claim against his attorney.
My conclusions stem from this brief summary of the evidence:
(1) In September, 1973, Bostic operated a filling station for Texas Oil Company (Texaco). The filling station was located on the south side of U. S. Route 60, in White Sulphur Springs, West Virginia. Dr. Bowie owned the lot immediately to the east of Bostic’s filling station and had leased the lot to Sun Oil Company (Sunoco) since 1968. The Bowie/Sunoco lot, in turn, was bordered on the east by a lot belonging to Amoco. The Bowie /Sunoco lot therefore separated the properties belonging to Texaco and Amoco.
(2) At some time prior to September, 1973, a certain Pharoah, self described as a business development representative for Amoco, placed a “for sale” sign either on the lot owned by Amoco or on the Bowie/Sunoeo lot. According to Pharoah and some witnesses, the sign was on the Amoco lot; but according to Bostic, and other witnesses, it was on the Sunoco lot. The sign contained the telephone number and identity of the person to call. Plaintiff called Pharoah at the designated number and discussed the purchase of the lot.
*338(3) Pharoah thought he was talking about the lot that Amoco owned, while Bostic thought they were discussing the lot 'adjacent to the Texaco property — the Bowie/Sunoco lot. Pharoah furnished plaintiff with a topographical map of the Amoco lot, accompanied by a letter which referred to the lot as being “next to the Texaco station.” However, the map, or plat, correctly showed the exact size and location of the Amoco lot — bordered on the west by the Bowie/Sunoco lot, with a reference to where the Bowie lease to Sunoco was recorded, and on the east by property belonging to Greenbrier Development Corporation.
(4) Bostic required a loan to consummate the purchase and an attorney to search title and draft the necessary documents. He followed the recommendation of his bank as to whom to employ and Bostic turned over the map to that lawyer with instructions to prepare a purchase option.
(5) The Option Agreement was signed by Bostic and Amoco on September 18, 1973. The Agreement identified the property as “0.50 acre, more or less, adjoining the property owned on the West by Texas Oil Company and on the East by Greenbrier Commercial Developments, Corp.,” but it also contained this statement: “reference here being made to the records in the office of the Clerk of the County Court of Greenbrier County, West Virginia for a more particular description of said property.” The land records clearly identify the Amoco lot as being bordered on the west by the Bowie/Sunoco lot, not by land owned by Texaco.
(6) By letter to Amoco dated November 27, 1973, prepared by his lawyer, Bostic exercised the option. The letter no longer referred to the location of the lot as being next to or adjoining any property, but specifically referred to “the same property conveyed unto The American Oil Company, a corporation, predecessor in title to the Amoco Oil Company, a corporation, by Roy D. Bowie and Lois D. Bowie, his wife, by deed dated January 27, 1970 of record in the office of the Clerk of the County Court of Greenbrier County, West Virginia in Deed Book 255, at page 277.” As previously stated, the land records clearly show that the Amoco lot was bordered on the west by the Bowie/Sunoco lot and not by any property owned by Texaco.
(7) The lawyer continued to represent Bostic throughout the purchase of the property, conducted a title search, and prepared the documents necessary to complete Bostic’s loan at the Greenbrier Valley Bank, including a deed and two deeds of trust. The final deed from Amoco to Bostic was dated January 21, 1974. It correctly described the Amoco property, both by metes and bounds and by source of title, and specifically described its location as being east of the Bowie/Sunoco property and running with U.S. Highway Route 60, S 88° 33' E 180.66 feet. Thus, the deed described a lot in the opposite dh'ection from the Texaco lot, since the Texaco lot was on the western side of the Bowie/Sunoco property. The description is accurately taken from the map previously furnished by Amoco, and also reflects the county land records.
(8) At the time of the closing of the transaction, a deed of trust was executed by plaintiff and his wife, dated January 28, 1974. A second deed of trust was executed on May 20, 1974. Both deeds of trust contained descriptions of the property, identical to that in the deed. The deed and the first deed of trust were recorded on February 8, 1974.
(9) Bostic testified that he read both deeds of trust before executing them, that he had the option drawn up by his attorney, that his attorney told him “he could obtain that (description of the property) from the Greenbrier County Courthouse,” that he authorized the attorney “to do everything necessary to represent (him) in this purchase,” and that “he (the attorney) continued to represent (him) throughout the transaction.”
(10) Bostic also said that he noticed on the property map that the Amoco lot was bounded by the Greenbrier property and by the Bowie property, but that it caused him no concern. He also acknowledged that he did not read the deed at the time it was *339given to him. The attorney furnished the bank with a certificate of title dated January 28, 1974, and was paid by Bostic for his services.
II.
From this evidence, it seems clear to me that Amoco supplied correct information to Bostic and to his attorney concerning the description and location of the lot, albeit Amoco did write a covering letter incorrectly characterizing the location of the lot and, if Bostic’s testimony is accepted, Amoco did place a “for sale” sign on the wrong lot. It is equally clear that while Bostic and his attorney partially availed themselves of the correct data which was supplied to them, they completely failed to realize or grasp its significance. It is noteworthy that Bostic’s attorney used the correct data in preparing the letter exercising the option. He also used the correct data in preparing the deed and two deeds of trust. More significantly, Bostic’s attorney purportedly searched the title, and it is impossible for me to conclude that, since the Bowie lease to Sunoco was recorded, a title searcher of reasonable competence would have failed to discover that the property being sold was not that immediately adjacent to that owned by Texaco and leased by Bostic. This is made all the more apparent when one considers that (a) Amoco’s plat of the property gave no reference to the Texaco property that Bostic was occupying, and (b) the subject property was described as adjoining the Sunoco and the Greenbrier properties.
III.
The testimony reveals that Bostic read the map and noted that the Amoco property was bounded by the Bowie/Sunoco lot and a lot belonging to the Greenbrier Development Corporation. Even if his knowledge is insufficient to establish a case of mutual mistake, because he is a layman and cannot be held to a full grasp of plats and property descriptions, the knowledge of his attorney does establish such a case. The record establishes that the attorney examined the map as well, and presumably looked at the county land records during the course of his title search. Both the map and the land records put him on notice as to the land’s true location.
The majority rejects the attorney’s knowledge on the ground that his knowledge was that of the bank and not of Bostic. I find this totally unconvincing. It, is true that the attorney was one suggested by the bank when, in a discussion about financing the proposed purchase, Bostic stated that he had not yet employed a lawyer. Nonetheless, the fact is . that Bostic accepted the bank’s recommendation, employed the lawyer, authorized the lawyer to do everything to represent him in the transaction, accepted the lawyer’s services throughout the transaction, and paid the lawyer a fee. To suggest that what the lawyer knew or should have known is not imputed to Bostic under settled rules of agency is to ignore the record.
Implicit in what I have previously stated is my view that a competent title searcher will investigate not only that there is good title to the property about to be conveyed, but also that the property about to be conveyed is the property intended to be conveyed. Of necessity, that investigation requires a consideration both of the description of the property and its location. Since Bostic’s attorney — who, incidentally, was not called as a witness in this case — was furnished with the papers of the parties, including Pharoah’s letter describing the property as “the land next to the Texaco station” and Bostic’s appraiser’s report describing the property as “the lot joining Texaco Station on Rt. 60,” I see no excuse for the attorney’s failure to conduct an examination, broader in scope than that contemplated by the majority, to determine if, in fact, the property about to be conveyed was immediately adjacent to the Texaco property.
IV.
As a result of mistakes made by himself and by his attorney, Bostic built upon the lot leased by Sunoco. The district court acknowledged the case to be one of mutual *340mistake, and required Bostic to remove the buildings within ninety days of judgment or of a decision by this court, if an appeal was taken. The district court also gave Sunoco the right, in certain circumstances, to seek an order requiring Bostic to remove the buildings sooner. Sunoco was given no other relief. Specifically, the district court declined to award Sunoco any recovery for the rentals Sunoco was required to pay during the period of Bostic’s continuing trespass.
I think that such an award should have been made in favor of Sunoco and against Bostic in the amount of the rent that Sunoco was bound to pay from the time that Bostic built upon its property until such time as the trespass is abated. Malamphy v. Potomac Edison Co., 140 W.Va. 269, 83 S.E.2d 755, 761 (1954); Lyons v. Fairmont Real Estate Co., 71 W.Va. 754, 77 S.E. 525 (1913).