
    George Tapscott and Wife v. Jacob Williams.
    Where lands descend to coparceners with warranty, and they are evicted before severance, one of them can not sue alone on the warranty for his share of the damages.
    This is an action of covenant from the county of Hamilton.
    In March, 3816, the dofendant by deed conveyed forty feet from the south side of lot No. 98, in Cincinnati, to Samuel W. Davies, •with a covenant of general warranty. Davies conveyed the premises to Arthur St. Clair. At his death they were assigned to his widow for her dower, and she has been evicted by a paramount title. Mrs. Tapseott, one of the six children, and heirs of St. Clair, with her husband, are plaintiffs, prosecuting this suit.
    H. Hall, for the plaintiffs:
    The plaintiffs are met at the threshold of this action with an objection to a recovery, because they have brought it without joining their co-heirs.
    If one or more of the six heirs at law of Arthur St. Clair had, by compromise or otherwise, released his or their right of action against the defendant, could an action thereafter have been maintained by all of them jointly? And can one heir release or compromit the rights of co-heirs to an action of covenant? We think not.
    If these positions are correct, and we apprehend they are, it may readily be perceived that unless the heirs can maintain *their action separately, they may be deprived of their [443 .right of action altogether. •
    The heir at law can not be barred of his rights because a coheir refuses to join with him in action to recover or maintain his inheritance.
    Again, as in the present case, where some of the co-heirs have died leaving children and heirs at law, how shall the action be maintained, where the plaintiffs might hold interests of various extent from one-sixth to one-twelfth, in what manner shall infants, suing by next friend, or administrators, be joined with others, or rather can they be joined at all in an action at law?
    It will be conceded that there is a remedy in cases like this, and if heirs can not sue jointly it will follow they may bring their action separately.
    The rights cast upon heirs at law by inheritance are individual rights; and they must be pursued individually and separately, and not otherwise.
    V. Worthington, for the defendant:
    The case made, shows a right of action, to some extent, in the six heirs of Arthur St. Clair, deceased, aDd not in one of them. Upon the death of Mr. St. Clair, this property descended to his six children, and the covenant of warranty runs with that descent, and vested in them a joint right of action, should the covenant be broken by an eviction, during their seizin, and not a- separate right of action in each, in proportion to his interest. King v. Kerr’s Adm’rs, 5 Ohio, 154; St Clair v. Williams, 7 Ohio, 111, pt. 2; Astor v. Miller, 2 Paige, 78; Rice’s Heirs v. Spotwood’s Heirs, 6 Monroe, 41; Townsend v. Morris, 6 Cow. 123; Booth v. Starr, 1 Conn. 249. There is a class of cases that bear a striking analogy in reason and effect with this. I refer to those cases of covenants running with the lands, where the breach ensues while the title is in the grantor. In such' a case the action is in the name of the grantor and his representatives, and not in that of 444] the grantee. Mitchell v. Warner, 5 Conn. 497; Davis *v. Lyman, 6 Conn. 249; Hubbard v. Hubbard, 10 Conn. 433; Backus v. McCoy, 3 Ohio, 218; Abbott v. Allen, 14 Johns. 248; Walker v. Hill, 17 Mass. 386; Hamilton v. Wilson, 4 Johns. 72; 4 Kent Com. 459; 4 B. & P. 158; 4 Maule & Sel. 53.
   Lane, C. J.

The covenant on which the suit was brought was single when.made, and by general principles must be enforced in a single action. The condition under which it admits parcelment, is a tenure of the estate by different persons, while the covenant was running with it; in this case it attaches to each separate part, and the holder of each has his separate remedy. 7 Ohio, 111, pt, 2. This condition does not exist in the present case. The land from which they were evicted is held by the children of St. Clair, as parceners, who collectively before partition have but one estate, make but one heir, have a joint interest, and should ordinarily pursue a common remedy for their rights. Co. Lit. 163, 164 ; Black. Com. 187, 189.

Besides, a covenant real when broken loses its transmissible character, and becomes a mere chose in action. If broken in the life of the ancestor it descends not, but must be sued by his administrator. If it descend unbroken to the heirs, as parceners, they are parties to the contract, by virtue of their joint estate, and tf it becomes a mere claim for damages in their hands, all the survivors, as in other personal action, must join as parties to the suit.

Judgment for the defendant. 
      
       See ante 333, note.
     