Schick v. Ulland

1 Ohio Law. Abs. 490

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1923
• Docket: No. 58709
• Status: Published

Opinion

MARX, J.:

Syllabus By the Court

1.- A covenant against incumbrances is broken at the time of the delivery of a deed containing such lovenant, if the property described therein is subject to the lien of a street assessment.

2. The general rule is that the covenantee cannot recover more than nominal damages upon the breach of a covenant against incumbrances without removing or extinguishing the incumbrances or proving that the incumbrance substantially interferes with the use and enjoyment of the property.

3. Where property conveyed free from incum-brances is in fact incumbered, by the lien of a street assessment1 payab’e in ten (10) annual installments, of which only the first installment has been paid, but the covenantee conveyed such land to a purchaser who expressly assumed to pay such assessment as part of the purchase price, such agreement will be considered as a covenant to extinguish the incum-brance and the covenantee having reduced the purchase price by the amount of such assessment may recover the same as damages against the covenantor.

4. In such a case if the covenantor, having paid the amount of such assessment to his covenantee as damages for breach of his covenant against incum-brances, is required by the city to pay any unpaid installments of such assessment by virtue of his personal liabihty under the statute, he may be relieved from the consequences of such double liability by an equitable action of subrogation, and upon payment of such assessment, will be subrogated to the city’s lien upon the land.