
    Gertrude Lockwood v. Hiram Gilson.
    In a deed oi conveyance of real estate containing full covenants of seizin and warranty, the grantor names herself, “G. L., administratrix of S. M.L.,” and subscribes the same as “ G. L., administratrix of S. M. L’s estate.” In the 'covenanting part of the deed, she is named G. L. simply, and the deed contains no reference to any order of court authorizing a sale of real estate of an intestate. In an action for breach of covenants of seizin and warranty— Held, that the covenants were prima facie the covenants of G. L., in her individual capacity.
    Error to the district court of Ottawa county.
    Hiram Gilson brought an action, in the court of common pleas of Ottawa county, against William B. Lockwood and Gertrude Lockwood, upon the covenants of a deed.
    In his petition, Gilson stated, in substance, that William B. Lockwood and wife, and Gertrude Lockwood, on the 6th of December, 1850, in consideration of $626 66, executed and deliveréd to him a deed conveying to him, in fee simple, certain lands described in the deed (of which a copy is attached to the petition), with covenants on the part of said William B. and Gertrude, that they were lawfully seized of the premises, that the same were free and clear of all incumbrances, and that they would warrant and defend the premises against the lawful claims of all persons whomsoever.
    The petition further states, that said William B. and Gertrude were not, at the time of the execution and delivery of the deed, lawfully seized of the premises, but that one Frederick Bissell, was the owner and seized in fee, of one undivided half of the premises. That, relying upon his title under the deed, he, Hiram Gilson, sold and conveyed forty acres of the land to one Levi Gilson. That on the 20th of March, 1854, Bissell brought suit in the court of common pleas of Sandusky county, against him, said Hiram, and Levi Gilson, to recover a:q undivided half of the land, and that while this suit was pending in the common pleas, he, Hiram, notified said William B. Lockwood of the fact, and requested him to defend against Bissell’s claim, but that he neglected and refused so to do. That judgment went against Bissell in the common pleas, and that he appealed to the district court,- and that while the suit was pending there, he, Hiram, again notified William B. Lockwood of the fact, and again requested him to defend the suit, but that he again neglected and refused so to do. That the suit was finally decided, adjudging to Bissell one undivided half of the land, and that his portion be set off in severalty. 1 That after the recovery by Bissell, he, Hiram, was compelled to and did purchase Levi Gilson’s interest in the land, to avoid a suit upon the covenants in his deed to Levi. That afterward Bissell’s undivided half of the land was set off to him in severalty, and that he, Hiram, was thereby ousted and dispossessed of the west half of the land, to his damage of seven hundred dollars, for which he asks judgment, etc.
    Erom the copy of the deed attached to the petition, it appears that the grantors are named as “ Gertrude Lockwood, administratrix of S. M. Lockwood, W. B. Lockwood and Sarah Lockwood, wife of said W.'B. Lockwood,” and that they sign and seal the deed thus : “ Gertrude Lockwood, administratrix of S. M. Lockwood’s estate [seal], W. B. Lockwood [seal], Sarah Lockwood [seal].”
    The covenants in the deed are thus expressed: “ And the said Gertrude, W. B. Lockwood and Sarah Lockwood for themselves and heirs and assigns do hereby covenant with said Gilson, his heirs and assigns, that they are lawfully seized of the premises aforesaid; that the premises are free and clear from all incumbrances whatsoever; and that they will forever warrant and defend the same with the appurtenances, unto the said Hiram Gilson, his heirs and assigns, against the lawful claims of all persons whomsoever.”
    Gertrude Lockwood filed an answer to the petition:
    1. That several causes of action are improperly joined therein.
    2. That she did not sign and seal the deed in her individual capacity, but as administratrix of Samuel M. Lockwood, deceased, and that .she is not bound individually by any covenants or agreements in the deed. And that she is not in-, debted to Hiram Gilson in any sum whatever.
    3. That the supp< sed obligation was not executed by her for the consideration mentioned in the deed, nor for any other valid consideration.
    Hiram Gilson replied that Gertrude Lockwood did, for herself, execute and deliver the deed in the petition mentioned, as therein charged, and upon a good and sufficient consideration.
    William B. Lockwood neither answered nor demurred to the petition.
    The cause was submitted to the court of common jileas upon the petition, answer of Gertrude Lockwood and reply, and the court found “ that the defendants did make, execute and deliver to plaintiff, a deed for the lands and tenements in said petition described, with full covenants of warranty as charged in said petition, and that the plaintiff was evicted of one equal one half of said land, as charged in said petition, at the time, and in the manner in said petition described” and entered judgment against the defendants for $338 26 and costs, and Gertrude Lockwood excepted. And to reverse the judgment, filed her petition in error in the district court, assigning that the common pleas erred because—
    1. The facts stated in the petition of Gilson are not sufficient to maintain the action.
    2. The court did not dismiss the petition as prayed for in the answer thereto.
    3. In finding that she was bound in her individual capacity with William B. Lockwood.
    4. In giving judgment against her, instead of for her.
    The district court affirmed the judgment of the ■common pleas, and to reverse that judgment, as well as that of the common pleas, Gertrude Lockwood filed a petition in error in this court, assigning for error:
    1. The petition of Gilson does not state facts sufficient to constitute a cause of action.
    2. Said petition does not aver any breach óf the alleged covenants in the deed.
    
      3. She executed the deed as administratrix of Samuel M. Lockwood, and was bound by the covenants of the deed, if at all, as administratrix, and not otherwise.
    4. The deed was executed without 'consideration.
    
      W. F. Stone, for .plaintiff in error.
    
      Reber Stryker; for defendant in error.
   Brinkerhoee, J.

No bill of exceptions was taken in this case. We are not-informed whether any testimony was given on the trial in the common pleas or not.. There being no showing to the contrary, the presumption is, that there was evidence sufficient to sustain the judgment of the court, if such evidence were admissible under the pleadings.

The petition sufficiently alleges the making of the covenants of seizin and warranty by Gertrude Lockwood in her individual capacity. The answer denies it; but the court find the issue of fact against her. On the face of the deed, the presumption of law is with the finding of the court. Her affix of administratrix, etc., in the fore part of the deed, and in her signature to .it — she not being named in the covenant itself as administratrix — in the absence of anything in the instrument to the contrary, is, in legal presumption, but deseriptio persones. Potts v. Rider, 3 Ohio Rep. 70. And see Day v. Brown, 2 Ohio Rep. 345, and Rawle on Cov. 556, et seq. And there is nothing in the deed to rebut this presumption. If she were an administratrix, which is not even distinctly averred in her answer, she could have no authority to convey the real estate of which her intestate died seized, except under an order of the proper court for that purpose, and to pay debts. There is no allusion to such an order in the deed, and none is averred in the answer. And even then she could not be authorized to bind the estate of her intestate by a warranty.

The absence of seizin in the defendants, and eviction by paramount title, are well enough averred in the petition; and the court found the averments to be true. No notice to Ger-trade of the pendency of Bissell’s suit is averred in the petition ; but this was not necessary where, as in .this case, the want of seizin in the covenantor and eviction by paramount title are averred and presumed to be proved. The only effect of giving notice of the adverse suit is to lessen the measure of proof requisite in a suit on the covenants. Rawle on Oov. 255.

The petition alleges -that the deed, with its covenants, was made in consideration of $626 66; the answer denies any consideration. No reply was necessary. But, with or without the reply, evidence was admissible showing a consideration which would justify the amount of the recovery. The presumption is that such evidence was given.

Judgment affirmed.

Sutliee, C.J., and Peck, G-holson and Scott, J J., concurred. .  