
    Frances H. St. Clair v. Jacob Williams.
    A widow evicted of lands assigned to her as dower by title paramount to her husband, can not sustain an action upon the covenant of warranty to her husband.
    This is an action of covenant reserved from the county of Hamilton.
    Williams, the defendant, conveyed a tract of land, with warranty, to Davis, in 1816. Davis afterward conveyed the same land to St. Glair, who died seized in 1820, leaving the plaintiff his widow, to whom the premises were set off as dower. She has been evicted by a recovery in ejectment, under a paramount title, and she brings this action against Williams, upon the warranty in his deed to Davis, claiming that it passed with the land to her.
    *Fox, for plaintiff.
    Y. Worthington, for defendant.
   Judge Lane

delivered the opinion of the court:

The question arising in this case is, whether the right of action upon a covenant of warranty annexed to a conveyance in fee, passes to one who holds but an estate for life in the land. It is no subject of doubt that an assignee is entitled to the benefits of all covenants running with the land. 3 Ohio, 219; 5 Ohio, 156. Nor is it doubted where a covenant running with the land is divisible in its nature, as if the entire interest of separate parts of land pass to different individuals, that a right of action accrues to each party, to recover his proportion of the warranty. 1 Paige Ch. 455; 2 Paige Ch. 78; Touchstone, 199; Co. Lit. 385, 386. But a plain distinction is made between the holder of a part of the land, and the holder of a part of the estate; the former may vouch as assignee, or bring warrantia chartce; the latter has the benefit of the warranty by aid prayer, or by the voucher of him who holds the remainder. Co. Lit. 385, a; 4 Dane, 51; Wood’s Conveyancing, 373. The same distinction is carried into the modern action of covenant. The assignee, upon whom is cast the benefit or the obligation of covenants, is he who holds the whole estate or term. Doug. 183;. 1 East, 502. These principles settle the present suit. The plaintiff could not vouch as assignee, nor have warrantia chartce under the ancient law, nor can she sustain an action of covenant, because she does not hold the whole estate. The right of action on the warranty passes to the heirs, and her remedy is by a new assignment of dower. Judgment for defendant.  