
    No. 987
    HEFFERSON et v. WUEST
    Cincinnati Superior Court
    No. 59266.
    Decided Nov. 20, 1925.
    297. CONTRACTS—A contract to deliver a clear, free and unincumbered title is interpreted to mean a marketable title.
    1175. TITLE—A marketable title is such as a reasonably prudent purchaser or title examiner would accept.
    Attorneys—Williams, Ragland, Dixon and Murphy for Hefferson; Hunt, Bennett and Utter for Wuest; all of Cincinnati.
   MARX, J.

John Hefferson contracted to purchase the home of Geneva Wuest for $6,750, to be clear, free and unincumbered, Hefferson deposited $300 with Wuest under written conditions that the deposit was to be applied to the purchase price and returned if the title should prove not clear.

This action was instituted by Hefferson against Wuest to recover the $300 deposit, on the ground that the title to the property was not clear. Wuest filed a counterclaim for damages which she claimed to have sustained because of Hefferson’s breach of the contract.

■ The question for the Court’s determination is whether or not the title to the property is. clear, free and unincumbered. It appears that in 1870 a mortgage was given by the then owner of the property, S. P. Armstrong to one W. W. Dawson. The mortgage was never can-celled, but about two months later the property was conveyed to Dawson by Armstrong, by warranty deed and through various conveyances came into the ownership of Wuest. Upon these facts the Superior Court held:

1. A contract to deliver a free and unincum-bered title is interpreted to mean a marketable title.

2. It is not incumbent upon Wuest to prove that Dawson who was the mortgagee of the property, was the same person who subsequently became the owner. This must be presumed from the fact that names are identical and the property was sold about two months after the mortgage was effected.

3. A marketable title is such title as a reasonable prudent purchaser would accept. Considering the facts which raised this question, the title is marketable and is therefore free and unincumbered. Hefferson’s petition is dismissed. Wuest’s counterclaim dismissed. No damages are warranted.  