Epitomized Opinion

Suit on a promissory note. Defense that the note was given by defendant as part payment in a contract by plaintiff to sell land to defendant and thai plaintiff had been unable to convey a clear IjflHj The evidence disclosed that plaintiff could give tiltle to all the land except a certain easement 3( feet wide, which in 1904 plaintiff’s grantor hac deeded to a Railway Co.; and that in "1907 tht Railway Co. had abandoned the use of the easement In the Common Pleas judgment was given foi plaintiff. Error was brought to the Court of Appeals. Held1:.

By the provisions of 9059 GC. the abandonmen' of-the right of way caused the title in the easemen to revert to plaintiff. Plaintiff had a merchantable title.

The decision of the Common Pleas did not determine the rights of the Railway Co., since it wat not a party to the suit, but was a decision that ii the Railway Co. were a party it must fail, and thai plaintiff’s title is merchantable. Judgment affirmed