## Facts

- Aaron Clark and Harriet Anderson owned New York real property as tenants in common.
- Clark’s will granted his executor power “to sell the land and divide the proceeds” among beneficiaries.
- The executor conveyed Clark’s undivided interest to Anderson in exchange for an interest in other real property, rather than selling for cash and distributing proceeds.
- Anderson later conveyed the property through a chain of transfers that ultimately reached the plaintiffs.
- Before buying, plaintiffs retained defendant attorney to examine record title and advise whether the title was marketable; he reported it was marketable and did not flag the executor’s lack of authority to exchange.
- Plaintiffs bought the property and later attempted to resell; the prospective buyers’ attorney found the exchange defect and the buyers refused to close.
- In the malpractice action, defendant argued any defect was cured by adverse possession, though he had not advised plaintiffs of that theory or shown a factual investigation supporting it.

## Issues

1. Whether an attorney retained to examine title and opine on marketability is negligent for failing to identify a record defect apparent under settled law limiting an executor’s power “to sell” to actual sales, not exchanges.
2. Whether the attorney can avoid liability by asserting, after the fact, that adverse possession may have cured the defect despite no contemporaneous advice to the client and no factual showing of adverse possession elements.
3. Whether the plaintiffs’ loss from a failed resale was a foreseeable consequence of a negligent “marketable title” opinion.

## Decision

- The Court of Appeals of New York affirmed the Appellate Division, which had reversed the trial court’s dismissal of the complaint.
- The court held the attorney was negligent for failing to recognize that the executor’s power to sell and distribute proceeds did not authorize an exchange of land for other land, leaving a defect in record title.
- The court rejected the attorney’s adverse-possession defense as an after-the-fact theory that was neither disclosed to the client nor supported by proof of the required facts.
- The court treated the plaintiffs’ failed resale, caused by the apparent record defect and resulting refusal of buyers to accept title, as a foreseeable harm from an erroneous marketability opinion.

## Legal Principles

- An attorney engaged to examine title and advise on marketability must apply settled law to the record and disclose apparent defects that make title reasonably doubtful to purchasers.
- A testamentary power “to sell” and distribute proceeds does not, without more, authorize an executor to exchange real property for other real property; an unauthorized exchange can create a record defect affecting marketability.
- In evaluating malpractice from a title opinion, marketability (acceptability to a reasonable purchaser advised by counsel) is distinct from the possibility that title could later be upheld through litigation.
- A lawyer cannot defeat malpractice liability by post hoc reliance on a hypothetical cure such as adverse possession when the client was not advised of that dependency and the factual predicates were not established.

## Conclusion

The court held that a real-estate attorney who incorrectly assures clients that record title is marketable, despite a clear defect created by an executor’s unauthorized exchange under a limited power of sale, may be liable for foreseeable losses when a later sale fails, and cannot avoid responsibility by speculating about an unproven adverse-possession cure.


Trimboli v. Kinkel, 226 N.Y. 147, 123 N.E. 205 (N.Y. 1919)