
    Luther A. Hall v. Samuel Plaine et al.
    “When lands have been purchased by one, and conveyed to him for the benefit of another, the deed of conveyance containing covenants of seizin, against incumbrances, and general warranty, which covenants are broken at the time-of the execution of the deed, j*nd the party for whom the purchase and conveyance were made, subsequently obtains a conveyance of the land from his agent^and trustee, such party may maintain an action in his own name, under the code, on the broken covenants, although such covenants did not pass to him by the mere conveyance of the land, or have not in terms been assigned to him.
    Error to the court of common pleas of Seneca county Reserved in the district court.
    
      In October, 1857, Samuel Plaine brought a civil action against Henry Ebbert and others, in the court of common pleas of Seneca county, on certain promissory notes, in which action Luther A. Hall, in March, 1858, was made a party defendant ; and filed his answer in the nature of a bar and counterclaim. Such proceedings were had in the action, that, in June, 1860, Plaine had leave to dismiss his action and withdraw his petition without prejudice to a future action. Rut, on the motion of Hall, the court, at the same time, ordered his .counterclaim to be docketed, and set down for trial pursuant to the code. Hall had leave to amend, and made Ebbert also a party, and on the 5th November, 1860, filed his amended answer and cross petition, which alleges in substance, as a first cause of action: That Ebbert, on February 24, 1854, purchased of Plaine, in his (Ebbert’s) name, but for Hall, in-lot 82, in Tiffin, and received from Plaine a deed in fee therefor, containing covenants of seizin, against incumbrances, and of .general warranty. The consideration was $4000 — $2000 of which he paid down with the money of Hall, and for the residue gave his three -notes, payable in one, two and three years, with interest, each for $666 66. On March 23,1854, Hall assumed the payment of said notes, and executed to Ebbert a bond of indemnity to save him harmless, and Ebbert having been Hall’s agent in making said purchase, and being his trustee in receiving and holding the title for his use, in consideration of the premises, conveyed the lot in fee to Hall; who has ever since held, and yet holds, the legal title, and all the interest acquired by Ebbert from Plaine. Before and at the time of said purchase from Plaine, and the execution of said deeds, the lot was incumbered by two outstanding leases, ■executed by Plaine.
    Hall prays judgment against Plaine for damages, and for ■other relief.
    Plaine demurs, assigning for cause that Hall’s pleadings do not state facts sufficient to constitute a cause of action against him.
    The court of common pleas sustained the demurrer, and gave judgment against Hall. To reverse this judgment Hall filed this petition in error, in the district court, assigning for error:
    1. The court erred in sustaining the demurrer.
    2. The court erred in giving judgment for Plaine instead of Hall.
    The district court reserved the case to this court for decision.
    
      A. G. Thurman, for plaintiff in error.
    1. The facts show a breach of the covenant of seizin. Rawle on Covenants, ed. of 1860, 46, 47 [and notes], 52 and 53; Mott v. Palmer, 1 Comst. 527.
    2. An action on a covenant of seizin lies without eviction. This is necessarily so in all cases in which the covenant is broken as soon as made. Rawle on Cov. 54; Abbot v. Allen, 14 J. R. 252 ; Mitchell v. Hazen, 4 Conn. 495; Bird v. Smith, 3 English (Ark.), 368; Pollard v. Dwight, 4 Cranch, 421, 429.
    3. When the breach of a covenant of seizin is but partial, no reconveyance or abandonment of the premises to the grantor is necessary. Rawle on Cov. 88 to 93, and cases cited; Morris v. Phelps, 5 J. R. 56; Nyce’s Ex’rs v. Oberts, 17 Ohio Rep. 76.
    4. The facts show a breach of the covenant against incumbrances. Rawle on Cov. 112; Prescott v. Trueman, 4 Mass. 630; Mitchell v. Warner, 5 Conn. 497, 527; Carter v. Denman, 3 Zabriskie, 272, 273; Jarvis v. Buttrick, 1 Met. 480; 1 Co. Inst. 45.
    5. The facts show a breach of the covenant of warranty.
    
      First. That the covenant embraces a case like this can not be disputed. Rawle on Cov. 53; West v. Stewart, 7 Barr, 122.
    
      Second. Here is a constructive eviction. Rawle on Cov. '251 to 255, inc.; Grist v. Hodges, 3 Dev. 200; Duval v. Craig, 2 Wheat. 62; Curtis v. Deering, 12 Maine, 501; Phelps v. Sawyer, 1 Aiken’s (Vt.) 158; Park v. Bates, 12 Vermont, 385-387; and cases cited in Rawle on Cov. 254, note 2.
    6. In Ohio, the covenants of seizin, and against incumbrances, sometimes run with the land. Backus v. McCoy, 3 Ohio Rep. 211; Foote v. Burnet, 10 Id. 317.
    The covenant of warranty always does. Henee, Hall had a right to sue on the covenants — especially as almost the entire damages accrued after the conveyance to him. He certainly had a right of action on the covenant of warranty.
    7. If the covenants were broken as soon as made, yet the. action was maintainable by Hall.
    
      First. Because he was the party actually injured, the party entitled to the damages whenever they accrued. Ebbert was a bare, naked trustee. But the code, section 25, required the action to be brought in the name of the real party in interest, and that was Hall.
    
      Second. Ebbert was a party to the suit — and it mattered not whether he was party plaintiff or defendant. At common law, Hall could have brought suit in the name of Ebbert (his trustee) for his (Hall’s) use. Under the code that was not. necessary. All that could be required, if, indeed, that could be, under the code, was that Ebbert be made a party, so as to protect Plaine against a suit by him. And he was made a-party.
    
      James Pillars, for defendant in error :
    1. When a covenant in a deed is broken, it ceases to run with the land upon a conveyance of the land, but becomes a mere chose in action — a mere claim for damages — in the hands of th& person who had the legal title to the land when the covenant-was broken — when the breach occurred. Adm’rs of Backus v. McCoy, 3 Ohio Rep. 211, 218-22; King v. Adm’rs of Kerr, 5 Ohio Rep. 154-5-6; Foote v. Burnet, 10 Ohio Rep. 317, 329-33; Devore v. Sunderland, 17 Ohio Rep. 52, 59-61; Clark v. Swift, 3 Metc. 399, 392 et seq.; Shelton v. Codman, 3 Cush. 318, 319 et seq.; Field v. Snell, 4 Cush. 504, 509-10.
    2. There was a breach of the covenants in the hands of Ebbert, once for all, and no breach in the hands of Hall. Rawle on Oov. (3d ed.) 255.
    3. The deed from Ebbert to Hall did not operate as an assignment of Ebbert’s right of action against Plaine on the broken covenants. No assignment is averred in the pleadings.
    4. Hall does not seek to recover for a breach of the covenants, on the ground that Ebbert was his agent in the transaction with Plaine.
    That question of agency is entirely between Hall and Ebbert Plaine is not affected by it. Hall’s cross petition shows that .such agency was not only not divulged, but concealed from Plaine. He dealt with Ebbert personally.
    The right of the principal to interfere and sue in his own name will be lost, if he permit his agent to contract personally, under seal. Shack v. Anthony, 1 Maule & Selwyn, 573; Berkley v. Hardy, 5 Barn, & Cress. 355; Humble v. Hunter, 12 Queen’s Bench, 310; Story’s Agency, secs. 151, 450.
    “ In contracts by deed, no party can have a right of action .under them but the party whose name is to them.” 1 Parsons on Contr. 53; Greene v. Horner, 1 Salk. 197; Frontin v. Small, 2 Ld. Raym. 1418.
   Wilder, J.

The simple question presented for the consideration and decision of the court in this case is, whether the ■cross petition or counterclaim of Hall states facts sufficient to constitute a cause of action in his favor against Plaine.

■ It is conceded by the counsel of both parties, that whether Preference be had to the covenant of seizin, against incumbrances, or general warranty, in the deed of Plaine to Ebbert, there was a breach of such covenant at the time of the execution of the deed. It is, thereupon, claimed by the counsel of Plaine, that said covenants did not thereafter run with the land, but became a chose in action; a claim for damages, which Ebbert, and Ebbert alone, could enforce against Plaine; that the breach was not only a technical, but a substantial one; that .the subsequent conveyance of the in-lot by Ebbert to Hall did not carry with it a right to sue Plaine on his broken covenant with Ebbert, for the reason that the right to sue Plaine, being in Ebbert, could not pass from him, dr vest in another, without an assignment or transfer for that purpose, and that a mere ■deed of conveyance, to transfer the title, does not operate as an assignment of a chose in action; that there is nothing in. the pleadings showing that such an assignment was made, or intended to be made, or that Hall predicates his right to sue1 Plaine, as the assignee of this chose in action; that the pleadings show that Hall predicates his right of action against Plaine upon the ground that the covenants in the deed from Plaine to Ebbert are real covenants, running with the land, and passed to Hall by the deed of Ebbert to him, and that the-covenants were broken in his hands, and therefore to him belongs the right to sue for such breach.

That the breach was a substantial one, and that a covenant, substantially broken does not pass to a subsequent grantee by the mere conveyance of the title, are propositions fully sustained by the authorities cited by counsel. Perhaps at common law it would be difficult for Hall, on the case made in the pleadings, to maintain his action in his own name against Plaine, but it is unnecessary for us to decide that question. The case made in the pleadings does not stand upon the ground assumed by the counsel. It is averred that Ebbert purchased/or Sail. The consideration was $4000 — $2000 of which he paid down with Sail’s money, and gave his notes for the remaining $2000. On the 3d March, 1854, Hall assumed, the payment of the notes, and executed to Ebbert a bond of indemnity to save him harmless, and Ebbert, having been Sail’s agent in making said purchase, and being his trustee in receiving and' holding the title for his use, in consideration of the premises, conveyed the lot in fee to Hall, who has ever since held, and yet holds, the legal title, and all the interest acquired by Ebbert from Plaine.

The rule of the common law, that pleadings are to be construed most strongly against the pleader, is abrogated, the rule under the code being, that their “ obligations shall be liberally construed, with a view to substantial justice between the parties.”

The objection here is, that there is no averment of the assignment of the broken covenant by Ebbert to Hall. But it is only a fair construction of the above allegations, that Ebbert .was the agent of Hall in making the purchase; that he received the title in trust for Hall, and that by the arrangements of the 3d March, 1854, he transferred to Hall not merely the legal title, but all the interest he acquired from Plaine. The beneficial interest and equitable title was in Hall from the beginning. Before the code, Hall could have sued on the covenant, in the name of Ebbert, for his (Hall’s) use. Hall would have been entitled to the damages recovered, because he was the party, and not Ebbert, by whom the damages were sustained. Since the code that form of procedure is not required. Section 25 of the code provides that “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” This language is mandatory. In section 27, it is permissive : “ An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted.” Although under this section an action might have been brought by Ebbert, in his own name, “ as the person in whose name the contract was made,” yet this was not required. Ebbert is a party defendant, and Hall is the real party in interest. The pleadings, therefore, show that the claim is not prosecuted in the name of Hall.

The judgment of the court of common pleas is reversed. The demurrer is overruled, and the cause remanded to the court of common pleas for further proceedings.

Peck, C.J., and Brinkerhoee and Scott, JJ., concurred.

Rannev, J., having been of counsel for one of the parties, did not sit in this case.  