
    No. 42
    RABEL v. DOWNE
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1737.
    Decided Nov. 22, 1926
    983. QUIETING TITLE — Unless there is some valid lien that the law will enforce and protect at the time of execution of a deed, there is no breach of a warranty clause contained in a deed and damages cannot be recovered upon such clause for expenses incurred in quieting title.
    Attorneys — M. J. McEnerny for Rabel; J. J. Waldvogel for Downe; both of Toledo.
   RICHARDS, J.

Bertha M. Rabel commenced her action in the Lucas Common Pleas to recover damages for breach of warranty in a deed to certain real estate purchased by her. She claimed $300 in her amended petition for the expenses incurred in bringing an action to quiet her title to the premises and certain other expenses incident thereto. The trial judge directed a verdict in favor of Downe and this is a proceeding in error to secure a reversal of that judgment.

The agreement between the parties for the purchase of the real estate was oral and the petition of Rabel sets out that Downe was to furnish an abstract showing the title to the premises. The oral agreement was followed by the execution of a deed to Rabel and all preliminary agreements were merged in the deed and the action therefore must be in damages for 'breach of warranty contained in the deed. The Court of Appeals held:

1. The deed contained a warranty wherein the title was to be conveyed clear and free of all incumbrances and that it will be warranted and defended against all claims.

2. There is evidence to the fact that there was a mortgage sixty three years old and upon the premises, but there was evidence to- show that there was a valid, and existing lien at the time the deed was executed.

3. The law is well settled that a covenant against incumbrances is not broken unless at the time of conveyance there is a valid subsisting lien against the premises.

4.Unless the estate is burdened with such an incumbrance as the law will protect and enforce there is no violation of the covenant in the deed. 5 A. L. R. 108.

Judgment affirmed.

(Culbert & Williams, JJ., concur.)  