
    The Great Western Stock Company v. Felix Saas.
    1. Where a person owning an estate in lands for the life of another executes a deed, with a covenant of seizin, purporting to convey the lands in fee simple, and the purchaser is put in possession under the deed, such covenant, in view of its settled construction in this state, is not broken until eviction or its equivalent.
    2. The provisions of the act of April 18, 1870, amending section 557 of the code, when applied to cases where the cause of action accrued before the passage of the act, are inhibited by section 28, article 2, of the constitution, in so far as such provisions authorize the court, at its discretion, to order a rescission of the contract, or to render judgment for the plaintiff only upon his giving a bond of indemnity to the defendant against damage resulting from a subsequent eviction, at the suit of adverse claimants in remainder or reversion, etc.
    Error to 'the Superior Court of Cincinnati.
    On the 27th day of August, 1867, Eelix Saas sold and •conveyed to the Great Western Stock Company, an incorporation of this state, a certain lot of land situated in the city of Cincinnati, by deed containing apt words to convey an estate in fee simple, with covenants of seizin and general warranty of title. At the same time the stock company executed its notes to Saas for a balance of the purchase money, and secured the same by a mortgage on the premises. The stock company was put in possession of the lot by the grantor, and has continued to enjoy the same under •said deed ever since.
    
      On the 8th of July, 1869, the Great Western Stock Company commenced an action, in the Superior Court of Cincinnati, against Saas, to restrain him from transferring one ■of said notes, not then due, on the ground that the title to ■one-fourth of said premises was outstanding in the heirs of Martha C. Dudley, subject only to the life estate of one Ambrose Dudley. Afterward, Saas commenced his action, in the same court, against the Great Western Stock Company, to recover judgment for the unpaid balance of said purchase money, and to foreclose the mortgage aforesaid.
    These actions were consolidated, with leave to the stock company to amend its petition ; and afterward, to wit, on the 19th of January, 1870, the petition was amended, and, among other things, the heirs of Martha C. Dudley were thereby made parties to the suit. The heirs óf Mrs. Dudley, or some of them, afterward, on'the 81st of January, filed their answers and cross-petitions, each claiming to be seized of the legal title to an undivided interest in said lot, and entitled to the immediate possession thereof, and alleging that the same was wrongfully detained from them by the Great Western Stock Company.
    Afterward, on the 26th day of May, 1870, on the motion of Saas, the answers and cross-petitions of the heirs of Mrs. Dudley were stricken from the files of the case, for the reason that said heirs were not proper parties to the action, to which ruling the said heirs arid the stock company ex? cepted. Thereupon the cause came on for trial, which resulted in a judgment in favor of Saas for the full amount of the unpaid purchase money, and an order for the sale of the mortgaged premises.
    At the trial, as appears from a bill of exceptions, the Great Western Stock Company offered evidence tending to prove that, upon the death of Ambrose Dudley, the heirs at law of Martha C. Dudley would be entitled to the possession of the undivided fourth part of said premises as tenants in fee simple, which evidence the court refused to hear; to which refusal the stock company-excepted.
    These judgments were afterward affirmed by the Superior Court at general term.
    This proceeding is now prosecuted by the Great "Western Stock Company to reverse said judgments, upon the grounds i
    
    1. The court below, at special term, erred in dismissing the heirs of Dudley from the cause.
    2. The court erred in rendering judgment for Saas, etc.
    3. The court erred in excluding the testimony offered by the plaintiff in error.
    
      Matthews, Ramsey § Matthews, attorneys for plaintiffs in error:
    The single question in this case is, whether the act of April 18, 1870, furnished the rule of decision which governed the case.
    The rule of decision adopted was that in force prior to-the passage of the statute, and declared in Hill v. Butler, 6 Ohio St. 217, and cases there cited.
    We admit that the relation established between parties-by their contract, can not be changed by the legislature to-the extent of impairing its obligation. But we deny that the application of the statute" in this case, if it had been-made, would have wrought that result.
    The remedy may be modified without impairing the obligation of the contract. Sturgis v. Crowninshield, 4 Wheat. 122; Bronson v. Kinzie, 1 How. 316; Ogden v. Saunders, 12 Wheat. 270; Cooley Const. Lim. 284, 287, 293, 361, 368; Conkey v. Hart, 14 N. Y. 22.
    There is no vested right in a defense which does not concern the substantial justice and equity of the ease. Hence, it has always been held that statutes taking away from the-party the technical right to avoid his contract, are not within the prohibition of the constitutional provision invoked to invalidate tjiem. Foster v. Essex Bank, 16 Mass. 245; State v. Newark, 3 Dutch. 197; Lewis v. McElvain, 16 Ohio, 347; Trustees, etc. v. McCaughey, 2 Ohio St. 155; 
      Goshorn v. Purcell, 11 Ohio St. 641; Rairden & Burnet v. Holden’s Adm’r, 15 Ohio St. 211.
    The bringing of suit vests no right to a particular decision. Bacon v. Callender, 6 Mass. 309; Butler v. Palmer, 1 Hill, 324. And the case must be determined on the Taw as. it stands when the judgment is rendered. Watson v. Mercer, 8 Pet. 88; Mather v. Chapman, 6 Conn. 54; State v. Manning, 11 Texas, 402; Rich v. Flanders, 39 N. H. 304; State v. Norwood, 12 Md. 195.
    The application of the principle to cases where the obligation of the contract is affected and impaired by alterations in the remedy, is discussed at length in Van Hoffman v. The City of Quincy, 4 Wall. 535, and affirmed in White v. Hart, 13 Ib. 653; and see Curtiss v. Whitney, Ib. 68.
    As to this fourth part of the premises, Saas, at the timo he made the covenant, had no seizin in fact, as well as in law. If so, it was broken when made, and the plaintiffs in error were eutitled, without delay, for any eviction by the' owners of the fee, to recover substantial damages for the breach.
    The covenant of seizin is ambiguous. Devore v. Sunderland, 17 Ohio, 60.
    There was no adverse possession by Saas, as against the owners of the reversion. An adverse, possession is essential to the existence of a seizin in deed, where there is no. seizin in law. Backus’ Adm’r v. McCoy, 3 Ohio, 211.
    The covenant of seizin is defined in Howell v. Richards, 11 East, 641.
    In England, and in all the states of the Union, except Maine, Massachusetts, and to a qualified extent in Ohio,, this covenant was broken, unless the covenantor was at the time seized in law, as well as in fáet, of the very estate described in the deed.
    And it is a necessary corollary, applicable in the three excepted states, where seizin in fact is considered a perform anee of the covenant, that the seizin must be of the very estate described.
    When this actual seizin was wrongful, it amounted necessarily to a disseizin of the true owner; for “ no wrongdoer could acquire a less estate, inasmuch as,” to use the expression of Lord Hobart (Hob. 323), “ wrong is unlimited, and ravens all that can be gotten.” Note to Taylor v. Horde, 2 Smith’s Lead. Cases (Am. ed. 1852), 468.
    Eelix Saas, at the time he made the covenant of seizin, an his deed of the pi’emises described in the petition, was snot seized of them in fact, as of an estate in fee simple. And this establishes the right of his grantee to the relief ■asked and refused in the court below, without the aid of •the statute of April 18, 1870; oiv at least constitutes a case where the application of the statute becomes indisputable, as an act merely declaratory of the existing law, as was the «ase in Acheson v. Miller, 2 Ohio St. 207.
    Suppose that the covenantor was in fact seized of an estate in fee, so as to satisfy his covenant, until, by the death •of Ambrose Dudley, and a recovery of possession by the heirs of Martha C. Dudley, an actual eviction had taken place. Was it, or not, legitimate under the constitution, in that state of case, to apply the provisions contained in the .act of April 18, 1870, for the relief of the grantee ?
    The equitable remedy provided by this statute is closely •analogous to the ancient remedy in a covenant of warranty, at common law, by writ of warrantia ehartce. When the possession was disturbed, execution could issue upon the judgment obtained in the warrantia ehartce. Rawle on ■Covenants for Title, 8, 16, 49; note to Foote v. Burnet, 10 Ohio, 323; Innes v. Agnew, 1 Ib. 389.
    Equity will restrain the covenantee, who has thus recov•ered back the consideration money, from setting up, as .against his covenantor, that title which, by his action on ■the covenant, he had asserted to be defective (Rawle’s Cov. of Title, 76; Bank of Utica v. Mersereau, 3 Barb. Ch. 571), and would probably decree a reconveyance by him (McKinney v. Watts, 3 A. K. Marsh. 268); and it has been suggested that the recovery of damages upon the covenant for seizin will, of itself, operate at law to revest the title in the covenantor. Parker v. Brown, 15 N. H. 188.
    It has, moreover, been decided in two cases in Massachusetts, that a conveyance made by a covenantee who had recovered baek his. consideration money for a breach of the covenant for seizin, passed no title whatever.to the purchaser; decisions which must necessarily have proceeded upon the ground that the title had, by the recovery of the damages, become revested in the covenantor. Porter v. Hill, 9 Mass. 36; Stinson v. Sumner, 9 Mass. 150.
    
      Thomas Powell, attorney for defendant in error:
    But two questions arise on the bill of exceptions, to be decided here:
    1. Did the. court below err in holding that the heirs of ■ Martha C. Dudley were not proper parties, because their
    claim was no defense to the action brought by Saas agaiust his vendee for the balance due by the stock company on the purchase-money notes; that the vendee was in quiet possession of the property, with no eviction, and could not refuse to pay the balance of the purchase money due; that if the title should prove to be defective, and the company should be evicted, its remedy was on the covenants in the deed ?
    The precise point was-decided by this court in Hill and wife v. Butler, 6 Ohio St. 207, and Wiswell v. First Cong. Church, 14 Ohio St. 31.
    2. The second point arises on the bill of exceptions, and, I argue, is the only question to be considered. It states that the stock company, on the trial, “ offered evidence tending to prove that, upon the death of Ambrose Dudley, the heirs at law of Martha Catherine Dudley would be entitled to possession of the undivided one-fourth part of the premises described in the petition, as tenants in fee simple, which evidence the court refused .to hear,” and the stock company excepted.
    
      The trial was had, and the bill of exceptions allowed at the May term, 1870.
    The amendment to section 557 of the code was passed' April 18,1870, and does not appear to have been published so as to be known to the court below, nor, so far as we-know, to the parties at the time of the trial. But it appears to have been in force, and the plaintiff in error claims that by virtue of that act, if not otherwise, the testimony which they offered was competent, and that to rule it out was error.
    “ An act of the legislature that divests vested rights, that violates contracts, or that assumes to control or to exercise-judicial powers, is unconstitutional and void.” Chesnut v. Shane’s Lessee, 16 Ohio, 599.
    As to covenants in deeds running with the land, I refer to the following cases decided by this court: Adm’r of Backus v. McCoy, 3 Ohio, 221; Peter Spurk v. Vangrundy, Ib. 307; Robinson v. Neil, Ib. 525; King v. Kerr’s Adm’r, 5 Ohio, 155; St. Clair v. Williams, 7 Ohio (pt. 2), 110; Foote v. Burnet, 10 Ohio, 317; Devore v. Sunderland, 17 Ohio, 60.
    A deed containing covenants of warranty and against incumbrances, estops the grantor from questioning the right of the grantee to the possession. Jones v. Timmons, 21 Ohio St. 596.
    If there had been an eviction of the stock company, or if the contract under which vested rights have accrued had been executed after th e passage of the act of April 18r 1870, amending section 557 of the code of civil procedure,, the case would be different; but as it now stands, I claim the judgment below should be affirmed.
   McIlvaine, J.

During the pendency of the proceedings-in the court below, to wit, on 18th of April, 1870, after the pleadings in the cause had been filed, but before the trial, and before the answer and cross-petition of the heirs of Mrs. Dudley had been stricken from the files, the general assembly of the state passed an act amending section 557 ■of the code of civil procedure (67 Ohio L. 116), which provided as follows:

“In all actions brought for the recovery of purchase money of real estate, by vendor against vendee, it shall be -competent for such vendee, notwithstanding bis-continued possession-, to set up, by way of counter-claim, any breach of the covenants of title acquired by him from the plaintiff, and to make any and all persons claiming any adverse -estate or interest therein parties to the cause; and, upon the hearing, he shall be entitled to recourse (sic) against the plaintiff’s demand (for) the present worth of any existing lien or incumbrance thereon; and if the adverse estate or interest of the said claimants shall be an estate in reversion or remainder, or contingent upon a future event, the court may, at its discretion, require the vendee to surrender the possession to his vendor, upon the repayment of so much of the purchase money as shall have been paid thereon, with interest, or it may direct the payment of the purchase monej' claimed in the action, upon the plaintiff’s giving bond in double the amount thereof, with two or more sureties, to be approved by the court, for the repayment of the ■same, with interest, if the defendant his privities of contract (sic) shall subsequently be evicted by reason of said defect.”

If this enactment had not intervened, it is quite clear to our minds that the judgment below could not be reversed for error. The Great Western Stock Company was in the .undisturbed possession of the lands, under its deed from Saas. By this deed Saas had undertaken to convey to the stock company the whole of the premises in fee, with covenants of seizin and general warranty of title. According to the well-settled law of this state applicable to the undisputed facts of this case, there had been no breach of cither of these covenants at the date of the judgment. It is not claimed that the covenant of general warranty had been broken; and it is no longer an open question in this state, that a covenant of seizin is not broken until eviction, either ■actual or constructive, in a 'case where the grantor was in actual possession of the lands at the time of conveyance, and where the grantee entered under the deed, 28 Ohio-St. 584, and cases there cited.

It is claimed, however, that as against Mrs. Dudley’s heirs, the grantor,-Saas, had no seizin, either in fact or in law, at the time the conveyance was made; that the estate of these heirs being in remainder only (as the rejected testimony tended to show, and as alleged in the petition of the stock company), the possession of Saas was not adverse as to them; and therefore his actual possession must be regarded as relating only to the particular life estate of Ambrose Dudley, of which Saas was seized in fact, and by virtue of a good title. In view of the law in relation to the real covenant of seizin, as settled in this state, we think this argument is unsound. It can be maintained only on the ground that the covenant of seizin has relation to a seizin in law, and is broken as soon as made, unless the covenantor was seized under and by virtue of an indefeasible title. Now, by the rule, as recognized in this state,, this covenant does not relate to the title under which the grantor holds, but refers to a seizin in fact — that is, to an actual or constructive possession of the property itself; and must therefore be regarded as an assurance of the title which the grantor has undertaken to convey. The gist of the covenant is, that the possession which passes with-the deed is ample, and shall so continue until the estate described therein shall have been fully enjoyed; hence, where the covenantee takes possession under a deed, with a covenant that the possession shall remain in him undisturbed during the continuance of the estate assumed to be conveyed, he has no right to complain until eviction or its-equivalent.

It is not claimed that plaintiff in error, without the aid of the act of April 18, 1870, could have counterclaimed against the demand of the defendant in error for the purchase money, damages on account of defects in the title,, unless there had been a breach of some covenant in the-deed. This brings us to the consideration of section 557 of the code as amended, and its effect.

It is somewhat difficult to ascertain the exaet intention of the legislature in this enactment. If it were intended that a state of fact should be held to constitute a breach of real covenants, which did not constitute such breach before its passage, it is quite certain that the act, as to preexisting contracts, would be in contravention of the constitution, as impairing the obligations of contracts. We do not think, however, that such was the legislative .intent. The statute only authorizes the vendee, in an action against him for purchase money, to set up, by way of counterclaim, any breach of the covenants of his title. What shall constitute a breach, is not declared. It is true that he is authorized, notwithstanding his continued possession, to cause all persons claiming an adverse estate or interest in the lands to be made parties to the action. But it does not necessarily follow that it was intendéd that a counter-claim for damages, on account of such adverse estate, should be allowed in a case where a breach of the covenants does not take place at or before the time of trial. Operation can be given to the statute without such result.

There can be no doubt that the legislature intended to provide remedies in actions for purchase money, which were unknown under the former practice ; and to the extent that these new remedies can be administered without the impairment of contracts, we see no objection to their enforcement. Indeed, they are desirable improvements in the practice.

Oases falling within the provisions of this statute may properly be divided into three classes :

Where the estate or interest of the adverse claimant consists of a lien or incumbrance. In this class, where the covenant against incumbrances is involved — a covenant broken as soon as made (if an incumbrance in fact exists)— notwithstanding the continued possession of the vendee, a change is made as to the measure of damages, viz., the present worth of any existing lien or incumbrance; whereas, before, the full value of the lien or incumbrance could be recouped only in case the lien or incumbrance had been extinguished by the covenantee. Whether this new measure of damages can apply where the covenant was made before the passage of the act, we need not now inquire.

Where the adverse estate or interest is in reversion or remainder, or is contingent upon some future event. In this class, where the covenant of seizin or general warranty is involved, there can be no breach while the vendee continues in possession, and until the right of possession accrues to the adverse claimant. Hence, no provision is made for enforcing a counter-claim on account of such defect in the title. In such case, the new remedy proposed by the statute is in the alternative, and at the discretion of the court — to wit, a decree rescinding the contract upon the repayment, by the vendor to the vendee, of so much of the purchase money as may have been paid, or a judgment in favor of the vendor for the purchase money, upon the vendor giving bond, with sureties, in double the amount of the judgment, for the repayment of the same to the vendee, if he shall be subsequently evicted by reason of such adverse estate. If the vendor refuses to accept either of these alternatives, he is left without remedy for the enforcement of his demand. This provision of the statute, if applied to a case arising on a contract made before the passage of the act, would be an unwarranted interference with the rights of a vendor under his coutract. It is no answer to say that such provision relates only to the remedy, and does not affect the obligation of the contract. We admit the doctrine to its fullest extent, that whatever relates merely to the remedy may be altered at the will of •the legislature, provided the alteration does not impair the obligation of the contract. But taking away all remedy is an impairment of the obligation of the contract. So, also, where the right to a remedy is made to depend on a condition, that the plaintiff shall enter into new contract relations with his debtor. It was not in the power of the legislature to require Saas to give a bond of indemnity to Ms vendee, in order that he might have judgment for his purchase money; nor to authorize the court to rescind the •contract without the consent of the. parties, nor to require the vendor to refund so much of the purchase money as had been paid to him.

We find no error, therefore, in the refusal of the court to receive the testimony offered by the plaintiff in error.

The third class of cases which we think comes within the provisions of this statute, consists of those wherein the .adverse estate is in fee, and the adverse claimant is entitled to the immediate possession of the land. In this class, fhere is no provision made in the statute in relation to the form or character of the judgment to be rendered, nor is it necessary that there should be, in order to carry out the purpose of the act. It was evidently the intention of the ■statute that judgment in favor of the plaintiff for the purchase money, should be delayed until the validity of the adverse claim to the land should be determined. All the parties interested are brought before the court, and if the adverse claimant establishes his title, and it is found to be paramount, it becomes the duty of the court to render judgment in his favor for the possession. By this judgment the vendee is evicted, and the eoveuant of seizin, as well as the covenant of general warranty, is thereby broken; and the right of the vendee to counterclaim his damages by reason of the defect in his title, thereby becomes fixed .and determined. Without the aid of this statute, in an action by vendor against vendee for purchase money, the defendant might recoup damages for the breach of any of the covenants in his deed occurring at anytime before judgment. Hence, in this class of cases, the statute operates on the remedy alone, and only affects the remedy by delaying the judgment for a reasonable purpose — to wit, until the validity of the adverse claim is determined. In such case, the obligation of the contract is not impaired. Before the statute, a claim for purchase money was subject to a counterclaim for damages on any breach of the covenants in his deed, which had taken place before judgment thereon.

Erom this view of the statute, it would seem that there was technical error in the order of the court below, striking the answers and cross-petitions of the heirs of Mrs. Dudley from the files. But the heirs of Mrs. Dudley are not complaining ; and it appears to the court that the plaintiff- in error has no right to complain of that error. In its petition in the court below, the plaintiff in error alleged that the interest of those heirs was postponed to the life estate of Ambrose Dudley, who was then living; and the only testimony which it offered at the trial, tended to prove the' same condition of their title.

Having disposed of the questions arising in this case,, upon the grounds above stated, it becomes unnecessary to inquire into the effect of the amendatory act of April 18, 1870, when considered in connection with the act of February 19, 1866 (S. & S. 1), which prescribes the force and, effect of the repeal and amendment of statutes.

Judgment affirmed,.

Day, C. 3., Welch, White, and Rex, JJ., concurring.  