
    The City of Cincinnati v. Brachman et al.
    1. In an action to recover the purchase money of real estate, the right of the vendee, under section 557 of the Code, as amended April 18, 1870 (67 Ohio L. 116), to make any person claiming an adverse interest a party, exists only where there has been a breach of the covenants of his deed.
    2. Where a deed of conveyance describes the lands intended to be conveyed as extending to the .center of a street “ as io be extended,” and refers to a plat on which the street is traced, the grant is subject to the street, and the subsequent use of such street as a public highway does not constitute a breach of covenants against incumbrances or of general warranty.
    Error to tbe Superior Court of Cincinnati.
    The original action was brought by Henry Brachman against John H. Diehl and others, to foreclose a mortgage executed by said Diehl upon a certain lot of ground in the city of Cincinnati, and described therein as follows, to wit: “ That certain lot of ground in Cincinnati known as lot. No. two (2), on a plat of partition between Ross, Gregory and others, recorded in plat book 1, page 800, Hamilton county records, commencing on the west side of Harriet,, at the center of Catharine street, as to be extended northwardly along the west line of Harriet street one hundred and twelve and a half (112J) feet; thence westwardly, on a line' parallel with Catharine street, as to be extended eighty (80) feet; thence southwardly, on a line parallel with Harriet street, one hundred and twelve and a half (112J) feet, to-the center of Catharine street, as to be extended thence-eighty (80) feet to the west line of Harriet street, the place of beginning.”
    The defendant, Diehl, made defense on the ground that the mortgage debt was a part of the purchase money on a-, sale of the same property by Brachman to him, and which-had been conveyed to him by Brachman by deed, containing the same description of the property, and covenants against incumbrances and of title. And that a portion of the premises so conveyed to him was within the limits of a public street, which the city of Cincinnati, by virtue of a title paramount to the defendant’s, had taken possession of to the exclusion of the defendant, whereby the covenants of the plaintiff contained in said deed had been broken. The defendant, Diehl, prayed that the city of Cincinnati might be made a party to the suit, and that the damages resulting to him from the breach of the plaintiff’s covenants might be counterclaimed against the balance due on said mortgage. The city was made a party, but sought to be dismissed by demurrer and by motion, which wore overruled.
    Among other things, the following facts appear in the record: As early as 1845, the premises described in the petition were owned in common, as part of a larger tract of •land, by the parties to the following agreement:
    “ Whereas, Ezekiel Ross, Moses Brooks, and Joseph L. Morris lately purchased of Daniel II. Horne the undivided half of a tract of land on the north side of Eighth street, bounded on the west by Millcreek, etc.; and whereas, N. Longworth owns the other half of said tract; now, it is agreed by the parties that Eighth street is to be continued west, and thirty feet of it to come off of the south side of said tract, and that Kemble street shall be laid out parallel ■to Eighth street, 60 feet wide, and 202 feet from Eighth street; and that Richmond street shall be laid out, 60 feet •wide, 213 feet north of and parallel with Kemble street; •and that Catharine street shall be, when laid out, 60 feet wide, parallel to Richmond street, and 244 feet north of it; and that Horne street shall be extended, the same width it is, from the river to the canal, until it strikes Millcreek.
    “ It is further agreed, that said Longworth, and Ross, Brooks, and Morris divide so much of said tract as lies west of Horne street, and between Eighth and Richmond streets, as follows: Said Longworth takes the strip of 202 .feet wide, .running from Horne street west to the middle of Mill creek, between Eighth and Kemble streets, and is to give to the other party $50 for this choice. And the said Ross, Brooks, and Morris are to take, in lieu thereof, a strip running from Horne street west to the middle of Mill creek, being 213 feet wide, between Kemble and Richmond streets, Cincinnati. “ N. Longworth,
    “ M. Brooks,
    “ Jos. L. Morris,'
    
      June 9,1845. “ Ezekiel Ross.”
    This agreement, however, was not executed by the parties previous to 1854, when Alexander TI. McGnffey, who had succeeded to the rights of Ezekiel Ross, in trust, etc., filed his petition in equity for the partition of said lands, and for the specific performance of -said agreement. Such proceedings were therefore had in said case, all the parties in interest being before the court, that on the 30th of June, 1855, among other things, it was ordered:
    “ Wherefore, and to the end that partition may be made, and the share of said plaintiff set apart to him in severalty, the court ordered that the sheriff of Hamilton county, by the oaths of George P. Terrence, William Price, and John H. Gerard, three judicious and disinterested freeholders of the vicinity, cause to be set off and divided to the plaintiff his said share and proportion of said tract of land first hereinabove described; and that in making said partition they be governed by the following rules:
    
      First. They shall lay off the said Horne, Eighth, Kemble, Richmond, and Catharine streets in said tract, as provided in said contract between Longworth, Brooks, Ross, and Morris.
    “ Second. They shall set apart and divide to said plaintiff the equal undivided one-sixth part of said tract, subject to said streets; except so much thereof as lies west of Horne street, and between Eighth and Richmond streets.
    “ Third. They shall set off and divide to the said plaintiff the equal undivided one-third part of that portion of said tract which lies west of Horne street, and between Kemble and Richmond streets; excepting the lot above described as conveyed to Mullins, at the corner of Horne and Kemble streets, twenty feet in front on Horne, by eighty feet on Kemble street.
    “ Fourth. When they shall have thus set apart and divided to the plaintiff his share of said tract, they shall, out of the said share thus set apart and divided, and subject to said streets, set apart and divide to Edgar M. Gregory, as, and for his share and proportion of the tract hereinabove described, three and one-half acres of land.
    “ Fifth. In case said tract can not be divided without a manifest injury to the value thereof, they shall subdivide the same into lots, as they may deem to the best advantage, and return to the court a iust valuation thereof, by lots and in bulb.”
    The commissioners, among other things, reported as follows :
    “ After laying off Horne street, Eighth street, Kemble street, Richmond street, and Catharine street, through the tract of land described in said order, as provided in the contract between Longworth, Brooks, Ross, and Morris, they set apart and divided to the plaintiff, as his share of the property to be partitioned, subject to the rights of Edgar M. Gregory, under deed from E. Ross, and subject to said streets, lots marked and designated on the accompanying plat by the numbers 1, 2, 13, 14, 15, 21, 22, 23, 24, 37, 38, 41, 42, 47, 48, 50, and 51.
    “And having thus set apart and divided to the plaintiff the entire share of said property to which he was entitled prior to the conveyance by Ezekial Ross to Edgar M. Gregory, they then set apart and divided, and subject to said streets, set apart to Edgar M. Gregory his three and one-half acres of land, in the following described lots as numbered and designated in the accompanying plat (hereinabove referred to), viz: 1, 14, 22, 24, 37, 41, 48, and 51, leaving to the plaintiff as his separate share of said property, subject to said streets. And after setting off the three and one-half acres, conveyed by Ezekial Ross to Edgar M. Gregory,, the following described lots, which lots we have set apart, and do hereby set apart and partition to the plaintiff, to be held by him in severalty, to wit, lot numbered two (2) on the plat hereto annexed, the same being described as follows : Beginning on the West side of Harriet street, at the center of Catharine street, as to be extended westwardly in accordance with the agreement referred to in the order of partition, and running thence northwardly along the west line oí Harriet street one hundred and twelve and one-half (112J) feet to the south line of lot No. one (1), as designated on the accompanying plat; thence westwardly at right angles with Harriet street eighty (80) feet; thence southwardly parallel with Harriet street one hundred and twelve and one-half (112J) feet to the center of Catharine street, as to be extended westwardly; thence eastwardly along the center of Catharine street eighty (80) feet to the place of beginning.”
    This report was confirmed by the court, and it was further ordered by the court that “ the map made and returned by the commissioners be recorded in the recorder’s office of Hamilton county.”
    Said lot number 2 was afterward conveyed, by a like description as follows : By Alexander II. McGuffy to Brown Mathewson in January 31, 1859. By Brown Mathewson to Henry N. Wenning, June 6, 1862. By Henry N. Wenning to Henry Brachman, the plaintiff below, May 22,1869. And on same day Brachman conveyed the same, by like description, to John II. Diehl, defendant below, with mortgage to secure the purchase-money in part,, namely, two notes for $2,500 each.
    Many other facts relating to Catharine street, the change of its name to Court street, its acceptance and improvement by the city, its possession by the adjoining proprietors, etc., are set out in the record, but from' the view taken of the case by the court it is not deemed necessary to state them.
    The decree sought to be reversed is as follows :
    “And thereupon the court, proceeding to hear the cause on the pleading, exhibits, and testimony, and the intervention of a jury being waived, and the issues joined being submitted to the court, and the court having heard the testimony offered, and being fully advised in the premises, find that there is due to the plaintiff, Henry Brachman, from said defendant, John H. Diehl, on the note in his petition described, the sum of twenty-five hundred dollars, with interest from May 22, 1869, to the first day of this term, amounting to $604.15, making due on said first day of this term the sum of $3,104.15.
    “And the court further finds that said sum is a lien on the said real estate in plaintiff’s petition described, by virtue of the mortgage in plaintiff’s said petition described; that said mortgage was duly recorded, as stated in said petition in mortgage book 302, page 271, in the office of the recorder of Hamilton county, Ohio ; that said mortgage has become absolute in law, by reason of the said John II. Diehl not paying the same at maturity; and that the plaintiff is entitled to have said mortgage foreclosed, and the said mortgaged premises sold for the payment of the amount above found due, free of the claims of all the parties hereto.
    “And the court further find that the said defendant, the city of Cincinnati, has no valid right, title, or claim, in or to said real estate in the petition described, or in any part thereof, as a public highway, and that the same is not, nor is any part thereof a part of Court street, nor has any part thereof, ever been lawfully dedicated to the public use as a highway, and it is therefore ordered that the cross-petition of said city be, and the same is hereby dismissed, and that said city pay the costs of its co-defendant, Diehl, from the time it was made and became a party to this cause, to the close of the trial herein.”
    
      Bates, Perkins & Goetz, for the plaintiff in error.
    
      Mallon & Coffey, for Brachman.
    
      W. F. Gray and George Hoadly, for Diehl.
   McIlvaine, J.

The plaintiff’ in error was brought into the case below at the instance of the defendant, John H. Diehl, under the supposed authority of section 557 of the code, as amended April 18, 1870 (67 Ohio L. 116), which provides : “ In all actions brought for the recovery of purchase-money of real estate, by vendor against vendee, it shall be competent for such vendee, notwithstanding his continued possession, to set up, by way of counter-claim, any breach of the covenants of title acquired by him from the plaintiff, and to make any and all persons claiming any adverse estate or interest therein parties to the same,” etc.

The action below being for the recovery of purchase-money by the vendor against the vendee, the only authority for making the city of Cincinnati a party, on the ground that it claimed an adverse interest in the estate, and for the purpose of determining such claim, depended upon the fact that there had been a breach of the vendee’s covenants of title. If the city had set up an adverse claim, which, if established, would constitute a breach of the covenant, it may be that it could not resist an inquiry into and a determination of its rights, under the provisions of the statute above quoted. But whore the adverse claim, if established, would not constitute a breach of the covenant, it is quite clear that it can not be determined in invito in an action by the vendor against the vendee for the recovery of purchase-money. Meek v. Breckinridge, 29 Ohio St. 642.

As between the parties to the partition proceeding, which resulted in the laying out of Catharine street (the supposed incumbrance upon the premises described in the petition below), and their privies, the existence of the street .is not open to dispute; and it is equally clear that the premises conveyed by the plaintiff below to the defendant below was subject to all rights which might exist in Catharine street as a public highway. By no fair construction of the terms of these conveyances, taken in connection with the plat to which they refer, aud the proceedings in the partition, to which inquiry is directed, can it be claimed that the vendor, by the terms that he used, and the vendee, by accepting the deed, did not intend to acknowledge and admit that Catharine street was a public street in the city of Cincinnati, and that the premises described' in the deed were transferred subject to that’ easement. This being so, there was neither a failure of nor an incumbrance upon the title intended to be conveyed by the plaintiff below to the defendant, John H. Diehl.

There was, therefore, no error in the j udgment below in favor of the plaintiff on the mortgage.

Rut whether or not the city has committed a wrong against the property of the defendant, Diehl, it ought not to have been compelled to answer for it, or litigate its rights, in that action. The judgment against the city will therefore be reversed, and the action, as against tbe city, dismissed.

Judgment against Diehl affirmed.  