
    No. 269
    MUSCARELLA v. THEURER
    Ohio Court of Appeals, Cuyahoga County
    No. 4429.
    March 12, 1923
    COVENANTS — (1) Action for breach of covenant of seizure where possession is undisturbed.
    Attorneys — Morgan, for Muscarella; Landfear, Baskin & Fleharty; for Theurer.
   PER CURIAM:

Epitomized Opinion

Muscarella brought an action in the common pleas to recover damages for breach of a covenant of seizure contained in a deed from defendant to her. The petition did not allege that she had been disturbed in her possession or ousted from the premises. As there was a flaw in the title, the defendant brought an action to quiet title in his own name. Tie court found that the defects were outlawed. All the expenses of this litigation were paid by defendant, and plaintiff suffered no damages whatever by reason of any defect in title. A demurrer was filed to the petition, and sustained. Thereupon the plaintiff prosecuted error. In affirming the judgment of the common pleas it was held:

1. In order to state a cause of action for breach of a covenant of seizure, it is necessary to allege that. the plaintiff hás been disturbed in her possession, or that she has been ousted therefrom, and a failure to make such allegations renders the petition insufficient.  