
    Elias Johnson vs. Jacob Nyce’s Executors.
    An. action for a breach of the covenant of warranty in a deed, cannot be sustained until there has been an eviction, or something equivalent.
    A claim for dower, is covered by the covenant of warranty, and if such claim be prosecuted, dower assigned by metes and bounds, and the widow put in possession, the covenant of warranty is broken.
    In such case, the rule of damages would be the amount of the depreciation of the value of the fee simple interest, in consequence of carving out the life estate, estimating the value of the fee simple interest according to the consideration money paid to the covenantor.
    If, in the prosecution of such claim, dower is assigned as of the rents, issues and profits, and made a charge upon the land, it is equivalent to an eviction.
    If a gross sum is assigned in full of dower, the decree to be enforced by execution, there is no breach of the covenant of warranty.
    This is a Writ or Error, directed to the Court of Coni' mon Pleas of Sandusky County..
    The original action was covenant. The declaration was demurred to and the demurrer sustained by the Court, and judgment entered in favor of the defendants. It is now sought to reverse this judgment, and the errors assigned are, 1st. That the declaration is sufficient in law, and that the Court erred in sustaining the demurrer. 2d. That judgment was rendered in favor of the defendants when it should have been rendered in favor of the plaintiff.
    If is alleged in the declaration in substance, that Jacob Nyce, late of the county of Sandusky, deceased, and of whose last will and testament, the defendants are executors, with Margaretta' his wife, on the 10th day of June, 1830, by deed of that date duly executed, for the consideration of three hundred dollars, sold and ■ conveyed to one Peter Carsner, his heirs and assigns, seventy acres and seventy-eight perches of land, which is decribed in the declaration ; and that “ the said Jacob Nyce did then and there and thereby by the same deed for himself, his heirs, executors and administrators, covenant to and with the said Peter Carsner, his heirs and assigns, among other things, that he would forever warrant and defend said premises with the appurtenances, against all and any other person or persons whomsoever, lawfully claiming or to claim, by, from or him, them or any of them, or in any other manner whatsoever;” It is further alleged that .said- Carsner died, and that his heirs subsequently conveyed the same premises to the plaintiff, who, in 1832, entered into the possession and enjoyment of the same, a,nd ought to hold and enjoy the same as a good and indefeasible estate in fee simple, free from all incumbrances, according to the aforesaid covenant of said Jacob Nyce, “ and the plaintiff, in fact, says that the said Jacob Nyce, at the time of the ensealing, &c., had not, nor hath he had at any time since, a good and sufficient title to said last mentioned lands and premises, free from all claims and incumbrances, but on the contrary plaintiff avers, at the time of, -and prior to the execution and delivery of said deed by said Jacob Nyce, to said Peter Carsner, one Jane McLain had a contingent right of dower in said premises by virtue of her coverture with one Alexander McLain, who had, during the coverture, been seized,”. &c. It is further alleged that said Alexander McLain died in March, 1844, and that at the June term of the Court of Common Pleas of Franklin county, the county in which said lands were situated, the said Jane McLain filed her petition for dower, which petition the plaintiff answered and made due defence, “ and such proceedings were had therein by said Court, that after-wards, and at their November term, 1845, do.wer in all of said lands and premises was duly assigned and confirmed unto the said Jane McLain, at the gross sum of one hundred and thirty-seven dollars and fifty cents, which the plaintiff was thereby ordered to pay to the said Jane McLain, in full for her dower interest therein, together with two-thirds of the costs of suit, in sixty days after said November term, and in default thereof that execution issue as upon judgments at law; all of which will appear by certified copy of such proceeding and decree for dower, duly authenticated and now to the Court here shown, by means whereof the plaintiff has paid and been made liable to pay, a large sum of money, &c., of all which the said Jacob Ny°e an<^ ^ie defendants had notice,. &c., and were requested pay, &c., but have wholly neglected and refused, and still neglect, &c., and, so the plaintiff says, that the said Jacob Nyce, did not keep his covenants herein set forth, nor any or either of them, but broke" the same, nor have said executors or either of them, or any other person, kept said covenants or either or any of them, but have broken the same, to the damage,” &c.
    
      Watson &f Johnson, for Plaintiff in Error.
    
      R. P. Buckland, for Defendants.
   Hitchcock, J.

It will be seen by the declaration in this case, that the covenant, and the only covenant contained in the deed, for the breach of which it is sought to recover damages in this case, is the covenant of warranty, and the question raised is, whether the declaration is sufficient to entitle the plaintiff to recover. The breach assigned is, that one Jane McLain had a contingent dower interest in the premises conveyed, that after the death of her husband she filed and prosecuted her petition for dower, and such procedings were had, that she obtained a decree against plaintiff for the gross sum of one hundred thirty-seven dollars and fifty cents, not charged upon the lands, but strictly personal, with an order that if the same was not paid in sixty days, execution should issue as upon judgments at law. Upon such state of the case can plaintiff recover ?

We do not doubt that the covenant in the deed is sufficient to cover a claim for dower, provided the same be prosecuted to such a result,' that the covenantee is thereby deprived of even the temporary possession of the whole or any part of the land conveyed. It may be thought that a covenant against incumbrances is the appropriate covenant to meet such a case, but it is equally well met by the covenant of warranty. In order, however, to maintain an action upon the latter covenant there must, as a general rule, have been an eviction, and this 'fact should appear from the declaration. ■ There are exceptions it is true to this general rule, and in particular cases other matters have been held to be equivalent to an eviction. In the case of King v. Kerr’s administrators, (5 O. R. 154,) the Court say, in speaking of the covenant of warranty, “ this covenant is not broken until the grantee, his heirs or assignee, is evicted from, or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title.” Still in that case it was determined that where, after a judgment in ejectment, the tenant remains in possession claiming pay for improvements under the occupying claimant law, and while so remaining in possession, purchases in the paramount title, the tenant may have an action upon the covenant of warranty, against his grantor, although not actually evicted. In making this decision the Court was controlled by the principles of the occupying claimant law. Under that law the occupant cannot be dispossessed until paid for his improvements. And if the claimant should neglect to make payment, the occupant must either lose the benefit of his improvements, or be delayed in the proceeding under his covenant. The Court held that this case might be well considered as an exception to the general rule, that no action could be sustained until actual eviction.

So in the case of Tuite v. Miller, reported in the Western Law Journal, Yol. 5, 413,14. The Court held that where dower had been assigned not in kind, but in the value of one third of the rents and profits, and made a charge upon the land, that this might well be considered equivalent to eviction. The reason is this: By our law regulating dower, the widow is to be endowed of one third of all the lands, &c., of which her husband died seized, as an estate of inheritance, during coverture. This dower is to be set off and assigned by metes and bounds if it can be done, and after the assignment so made, and approved by the Court, a writ of seizin is to be issued to. the sheriff, who is required thereby to put the widow in possession. After this writ is executed, he who by this proceedevicte(b may have his action upon his covenant of war-against his grantor, and will be entitled to recover damages, not to the extent of the consideration money or of one third of the consideration money of his deed, but to the extent that the value of his estate is diminished by carving out this life estate, taking one third of the consideration money to be the value of one third of the fee simple interest. Such we understand to bo the rule of law where the dower is assigned by metes and bounds. The same law provides, that where no division can be made by metes and bounds “ dower shall be assigned thereof as of a third part of the rents, issues and profits to be computed and ascertained ” as in the statute prescribed. In the case of Tuite v. Miller, dower had been asigned in this latter manner. The one third of the rents and profits were computed to some sixty or sixty-six dollars per year, and this was made a charge upon the land, and it was ordered that unless payment was made the-land should be sold. The Court believed this to be such a disturbance of the possession,. that it might bé held equivalent to an eviction, and so decided. It is true this case was decided upon the circuit, but upon consideration, we are unanimous in the opinion that this decision was correct.

If so, then what will be the effect of -these principles upon the case now before the Court ? There is no pretence that the plaintiff has been evicted from, or disturbed' in the possession and enjoyment- of the land, conveyed by Nyce. True, Jane McLain set up a claim to dower in the land; but no dower was assigned to her by metes and bounds, nor was dower assigned to her by the provisions of the statute, as of a third part of the rents, issues and profits. The statute seems to have been entirely disregarded. True, a decree was made in her favor, against Johnson, for one hundred and thirty-seven dollars and fifty cents, which was to be in full of dower. This, however, was not made a charge upon-the land, and could in no shape act as an incumbrance upon it. It was amere personal decree, to be enforced by execution. It is said, however, that this decree is still in force, and cannot be collaterally impeached. do not impeach it. It is in force, but no persons are fected by it, but parties and privies. Neither Nyce nor his executors were parties to the proceeding, nor from anything which appears, had they notice of it. It has no operation to incumber the land. Had one third part of the land been set off, by metes and bounds, and the widow been put in possession, or had dower been assigned according to the statute, as in the case of Tuite and Miller, then the plaintiff might have had redress, upon the covenant of warranty. But as the case is now presented, he can have no such redress.

We are of opinion that the Court of Common Pleas did not err in sustaining the demurrer to the plaintiff’s declaration, and the judgment of that Court is affirmed.  