
    No. 338
    PRICE v. FOSTER et
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2924.
    Decided Feb. 21, 1927
    329. COVENANTS — 1. Covenant in deeo against incumbrance is not broken unless there is a valid, legal and subsisting lien against the premises • affecting the right, title and interest which the law would recognize and protect.
    2. An uncancelled mortgage executed in 1841 does not constitute a breach of the covenant, since same was outlawed by the statute of limitations, and payment thereof was proven.,
    First Publication of this Opinion
   HAMILTON, P. J.

Harry and Anna Foster commenced an action in the Hamilton Common Pleas to recovei damages for a claimed breach of warranty in a deed to certain real estate, purchased by them from Bussell Price. The damages prayca for were for expenses and attorneys tees in procuring the release of record of an oid mortgage. Judgment was rendered in favor of the Fosters by the lower court and error was prosecuted.

Attorneys — Julius L. Samuels and Francis A. Hoover for Price; Cramér & Gordon for Foster; all of Cincinnati.

It seems that the deed from Trice covenanted that the premises were clear of all in-cumbrances except a certain mortgage to Pearl Market Bank, and taxes. An old un-cancelled mortgage was discovered dated Feb. 2, 1841, which had not been released of record. The Court of Appeals held:

1. Was this old mortgage a breach of the covenant against incumbrances?

2. A covenant against incumbrance is not broken and unless there is at the time of the conveyance a valid, legal and subsisting lien, The proof offered in this case shows that there was no valid, legal and subsisting lien at the time of the conveyance; and there was no incumbrance affecting the right, title anct interest which the law would recognize.

3. In the instant case, not only was the mortgage outlawed by the statute of limitations, but the payment was proven by the plaintiff’s own case.

4. “The law is well settled that a covenant against incumbrances is not broken unless ^at the time of the conveyance there is a valid, subsisting lien against the premises; that unless the estate is burdened with such an in-cumbrance as the law will protect and enforce there is no violation of the covenant m the deed.”

5. The uncancelled mortgage was no! incumbrance that would constitute the brear . of the covenant.

Judgment reversed and entered in favor of Price.

(Cushing & .Buchwalter, JJ., concur.)  