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Madhaven (P) entered into a contract to buy property from Sucher (D). P paid a $3,000 deposit, and the contract made the sale to Ps subject to existing building and use restrictions, easements, and zoning ordinances. When title was searched, problems were found but a second mortgage survey revealed that the first search was erroneous and that the drainage easement actually encroached upon a portion of the concrete patio attached to the rear of the dwelling. The mortgagee advised D that it was ready to proceed with the closing, but P rescinded their offer the week before. D declared the deposit forfeited and P sued to recover it. The district court agreed with P and granted summary judgment holding that D was unable to convey marketable title.

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