The plaintiff, Bertha M. Rabel, commenced an action in the court of 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 the defendant, and this proceeding in error is brought to secure a reversal of the judgment rendered on that verdict.
The agreement between the parties for the purchase of the real estate was oral, and the amended petition sets out certain promises claimed to have *Page 353 been made by the defendant to furnish an abstract showing the title to the premises. The oral agreement was followed by the execution of a deed to the plaintiff, and all preliminary agreements were merged in the deed, for which reason the action must be construed to be one for the recovery of damages by reason of a breach of warranty contained in the deed.
The deed contains the following warranty:
"Hereby covenanting that the title so conveyed is clear, free and unencumbered, and that we will warrant and defend the same against all claims whatsoever."
The plaintiff, by her evidence, established her purchase of the property for the agreed price of $800, the existence of the warranty above quoted, and that she took possession, and she also proved the disbursement of certain expenses incurred in bringing an action to quiet title. A verdict was directed for the defendant, for the manifest reason that the plaintiff failed to offer evidence tending to show a breach of the warranty against incumbrances.
The amended petition averred the existence of a mortgage on the premises for the sum of $225, recorded May 11, 1863. This averment was denied by the answer. The bill of exceptions contains no evidence showing the existence of the alleged mortgage, other than the testimony of the plaintiff that the defendant stated to her, after the deed was executed, that the title was all right excepting that there was a couple of little flaws that had been outlawed, and except statements made to her by third parties that the title was not all right. The plaintiff and her husband, on being inquired of on *Page 354 the witness stand by the trial court, testified that no one had ever made a claim to either of them that he held a mortgage on the property, nor made any demand for the property, and that neither of them had paid anybody any money to release any mortgage. Plaintiff's husband did state, however, on cross-examination, that they found there was one mortgage that was not released on the records.
We do not understand that this testimony shows, or tends to show, a breach of the warranty contained in the deed executed to the plaintiff. The existence of the mortgage mentioned in the petition is denied. That mortgage was more than 63 years old. The amount of it is not shown by the evidence, nor is there any testimony to indicate that it was a valid and existing lien at the time the deed to the plaintiff was executed.
The law has been well settled for many years that a covenant against incumbrances is not broken, unless there is, at the time of the conveyance, a valid subsisting lien against the premises. 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. The authorities to sustain this proposition, as announced in many states of the Union, are collected in a note in 5 A.L.R., 108. We deem it unnecessary to multiply citations.
Judgment affirmed.
CULBERT and WILLIAMS, JJ., concur. *Page 355