
    Betz v. Bryan.
    In 1865 Bryan and others being in actual possession under claim of title, conveyed Gallipolis Island to E. B. by deed, with covenants of warranty and seizin, and placed him in peaceable possession thereof. E. B. continued in such possession of the whole island until February, 1S74, when he conveyed the same to B. B. by deed with covenants of general warranty and seizin and placed her in full possession thereof. In 1873 0., in an action of ejectment against E. B. obtained a judgment for the recovery by metes and bounds of part of the island, but there yás no actual eviction of E. B. thereunder. In the summer of 1874 B. B. was evicted under such j udgment from the part of the island covered thereby.
    
      Held: The covenants of seizin in the deed from Bryan and others were real covenants, and passed by the conveyance to B. B., hence no action can be maintained thereon by E. B.
    Motion for leave to file a petition in error to tbe District Court of Gallia county.
    On April 25, 1865, John Bryan and others, defendants in error, conveyed to Ethernet Betz, the plaintiff in error, for the consideration of $1,200, all of Gallipolis Island in the Ohio River, by deed containing general covenants of seizin and wan-anty. Defendants, at the time of such conveyance, were in the actual possession of the whole of the premises conveyed, claiming title under a patent from the state of Yirginia, the original owner of the island, and put the plaintiff' into the peaceable possession thereof. Plaintiff in error continued to hold such possession of the entire premises until February 5, 1874, at which date he sold and conveyed said island to Belle Betz, with covenants of general warranty and seizin, for the consideration of $2,700. He delivered to said Belle Betz,, under such conveyance, the actual possession of the- entire island.
    In March, 1872, one Ingoby Clifford, who- elaimedi title under a separate patent from- the state of Yirginia, brought an action of ejectment in the circuit court of Mason county, West' Yirginia, where the island is- situated, against the plaintiff in error, to recover the island. On October- 14, 1873j Clifford! recovered in said action a judgment, by metes and bounds, for about 27 acres of said island, leaving about 10' acres thereof in plaintiff in error, unaffected by the judgment.. There was no actual eviction of the plaintiff in error or his grantee, under . such judgment until the summer of 1874, after- the- convey anee to Belle Betz and after she was- placed in the possession of the whole of the island under such conveyance-.
    While Belle Betz continued in the- possession of the whole of the island, with the knowledge and1 consent of the- plaintiff in error, she yielded the possession, of said 27 acres; to said Ingoby Clifford under the judgment aforesaid, without incurring the costs of an ouster by an officer- under process issued upon such judgment.
    The plaintiff in error thereupon commenced this action against his grantors, the defendants in error, upon the covenants of seizin contained in their deed to- him. Upon issue joined, the court of common pleas found the facts above recited, and as matter of law found that the covenants- upon which the action was brought passed by the conveyance and possession to-Belie Betz, and that plaintiff could not maintain an action thereon, and rendered judgment for defendants. The district court affirmed such judgment, and plaintiff in error now asks leave by motion to file a petition in error in this court to obtain a reversal of such judgments.
    
      Samuel A. Nash, for plaintiff in error,
    claimed that the rendition of the judgment in ejectment operated as equivalent to an eviction of the plaintiff in error, and so the right of action became a personal one to the plaintiff in error thereafter, and did not pass to his grantor by a simple conveyance of the land.
    
      W. II. O. Fcker and TJ. B. Debated, for defendant in error,
    relied on 2 Johns. 4; 4 Id. 72; 14 Id. 92; 5 Id. 120; 3 Id. 471; 4 Wend. 550; 21 Wend. 119; 3 Ohio, 211; 17 Ohio, 52 ; Rawle on Covenants, 330, 331; 23 Mo. 179; 23 Ohio St. 588; 31 Ohio St. 577.
   Doyle, J.

By a uniform line of decisions it is established as the settled law of this state that a covenant of seizin in a deed is not broken, where the grantor is in actual possession of the lands under color of title when the deed is executed and the grantee enters under it, until such grantee is evicted. Backus v. McGoy, 3 Ohio, 211; Robinson v. Weil, 3 Ohio, 525; Foote v. Burnett, 10 Ohio, 317; Devore v. Sunderland, 17 Ohio, 52; Stambaugh v. Smith, 23 Ohio St. 584; Great Western Stock Co. v. Saas, 24 Ohio St. 549; Lane v. Fury, 31 Ohio St; 574.

Such covenant may be real or personal. If the grantor is in actual possession, claiming adversely or under color of title, at the time of the conveyance, the covenant is real and runs with the land ; and such a conveyance will carry with it* the previous real covenants in the grantor’s chain of title. If, however, the grantor is not in actual possession, and is without title, the covenant of seizin is instantly broken and is a personal right in the covenantee, upon which he may immediately have his action, and will not run with the land. 17 Ohio, 60.

The eviction of the grantee, under a paramount title,'gives the grantee a right of action upon such covenant which is personal and will not pass by a conveyance of the land made after such eviction. Therefore, until plaintiff in error was evicted, there was no breach of the covenants in his deed from defendants in error.

While these principles are admitted it is claimed that the judgment in the ejectment -action, amounted to an eviction, which gave plaintiff in error an immediate right of action upon such covenants, which did not and could not pass by his conveyance to Belle Betz.

Undoubtedly, upon the judgment of ouster being rendered plaintiff in error might have yielded to the paramount title established thereby, and, after purchasing it, maintained his action on the covenants of warranty, Lane v. Fury, 31 O. S. 571; or he might have submitted to actual ouster and had his action as well on the covenants of seizin. But he need not do either. He might still maintain and continue his possession, (the same possession received from his grantors) until actual eviction, and while thus maintaining it, and claiming adversely to the plaintiff in the ejectment, he would have no cause of action upon the covenants in his deed. Such actual possession, might, notwithstanding the judgment in ejeetment, ripen into a title. It was a sufficient seizin to base a conveyance upon, with covenants of seizin which would not be broken until eviction of the covenantee to whom such actual possession was delivered.

Plaintiff in error adopted this latter course. He continued in possession of the whole land, and instead of yielding to the title asserted in the action of ejectment, he conveyed the whole land, by deed with full covenants of seizin and warranty to Belle Betz, to whom the actual possession of the entire tract was delivered.

The covenants upon which he sues in this action, were real covenants and passed by his conveyance to his grantee. She is the real party in interest and the plaintiff in error cannot maintain this action.

Motion overruled. ■  