John Hauck Brewing Co. v. Taft

13 Ohio N.P. (n.s.) 215

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: August 14, 1912
• Status: Published

Opinion

, Dickson, J.

The plaintiff states that some real estate was purchased by it in Cincinnati, Ohio, and describes- the same by metes and bounds; that a deed of general warranty was delivered to it. The plaintiff complains that upon entering said real estate, it was found that there was not as much property there as was purchased, and as much as was warranted, and prays damages by reason of a breach in its warranty rights.

The defendant demurs because facts are not stated sufficient to sustain any cause,of action* and claims in argument, that there can be no relief for plaintiff by way of the warranty until an eviction, or some state of facts equal thereto have occurred.

As against this the plaintiff in argument contends that since the doing away with livery of seisin by the actual giving and taking of a token, or on actual view, it has a right to rely upon the description in the deed, and that when upon view or entry a shortage be discovered, such is equal to an eviction and damages lie.

While the court is disposed to agree with the plaintiff, yet so far as the facts stated are concerned the demurer must be sustained, because no fact is stated as to why the plaintiff has not seen or can not enter upon all it bought.

If some fact equal to an eviction occur and be relied upon, certainly such must be stated. The mere statement of a breach is not enough. The fact which shows the breach must be stated, i. e., the plaintiff must state why it can not enter on to what it bought; neither is the bald statement that the plaintiff owned property other and different than that described in the deed certain enough.

The demurrer will be sustained.