
    Benjamin Wilson v. William Taylor’s Executors.
    Where, in case of successive conveyances with covenants of warranty running with the land, the last covenantee, having been evicted, simultaneously brings several actions and recovers several judgments against each and all of his covenantors, and the judgments against the first and second covenantors respectively having been by them paid and satisfied: Held—
    1. That such satisfaction of the judgment against him by the first covenantor is a bar to an action over against him by the second covenantor to recover the amount paid by him in satisfaction of the judgment against him.
    2. That as the last covenantee, although he might have several judgments against successive px-ior covenantors, was entitled to but one satisfaction, his enforcement of two of his several judgments was wrongful; and the-second covenantor should have either resorted to equity to restrain the-collection of the judgment against him, or, having innocently paid off the same, sued the plaintiff therein to recover back the money thus wrongfully collected and retained.
    This is an action of covenant. Reserved in the district court of Licking county.
    *The case stands upon demurrer to rejoinder.
    The material allegations of the declaration are substantially these: That Taylor (the defendant’s testator) conveyed the land, which is the subject of the covenant sued on, to Wilson, the plaintiff; that Wilson conveyed to Thomas X/cgget; that Legget conveyed to William Weis, who went into possession; that all these-conveyances contained like covenants of general warranty against all incumbrances and claims of all persons whomsoever; that at the time Taylor made his deed and covenants to Wilson, one Rebecca Houston, then wife of John Houston, Taylor’s grantor, had in the land a contingent right of dower, which became absolute;, and that in Taylor’s lifetime she filed her petition against Weis, and procured dower in the land to be assigned to her; and that"Wois, thus evicted of part of the land, brought an action upon the covenant made by the plaintiff, "Wilson, to Legget, and recovered a judgment against the plaintiff for 8284.43, and costs of suit, which he was compelled to pay. To make himself whole again, Wilson brought this action on the covenant made by Taylor to him.
    Taylor’s executors plead, in substance, in bar of the action, that Wois had brought an action against Taylor on the same covenant upon which the plaintiff, Wilson, sues, and had recovered judgment against Taylor for its broach for $280.23, which he had fully paid.
    Wilson replies that Wois had recovered a judgment for $414.43 against Legget on the covenant made by him directly to Weis, as well as the judgment against the plaintiff, Wilson, of $284.43, mentioned in the declaration, and the judgment of $280.23 against Taylor, mentioned in the plea; that these judgments recovered by Weis were on the successive covenants made by Taylor, Wilson, and Legget; and that the recovery of dower and consequent eviction was the common and- only breach of all and each of the covenants; and that the amount of the judgment against Legget, to wit, $414.43, was the true amount of ^damages sustained and proved by Weis; that of the damages, Taylor paid only $148.08, and that the plaintiff, Wilson, paid $172.46, and costs and expenses.
    To this Taylor’s executors rejoin, setting up the same defense made by their plea. To this rejoinder Wilson demurs.
    
      Smythe & Sprague, for plaintiff.
    
      William Stanbery, for defendants.
   Brinkerhoff, C. J.

The covenant in this case sued on, was a covenant running with the land; and Weis, the last grantee, having been evicted from part of the land embraced within the successive covenants of warranty, brought several actions simultaneously against each of the successive covenantors, and recovered several judgments against each. This, it seems to be settled, he might properly do. King v. Kerr’s Adm’rs, 5 Ohio, 155; Foote v. Burnett, 10 Ohio, 317, and notes. But though he might have his several actions, either simultaneously or successively, against all his covenantors, whether immediate or mediate, yet it is equally well settled, that he could have but one satisfaction.

It seems that, for some unexplained reason, judgments in these several actions, thus simultaneously brought against the successive ■covenantors, were taken for very different amounts, varying from ;about $280 to about $414. And Taylor, the first covenantor, having-paid and satisfied tho judgment against Mm, and which was among the smallest in amount, the question presented by the demurrer is, whether this satisfaction of the judgment against him is a bar to an action over against him by the plaintiff, who was an intermediate covenantee, after payment by the latter of a judgment recovered at the same time ?

The question seems to be one of first impression, and our minds are not free from difficulty in regard to it; but, *on the whole, we arc unanimously of opinion that the plea is good. As before remarked, Weis, the last covenantee, and who suffered damage by reason of partial eviction, was entitled to his several action against all the prior covenantors. Not only was his right of action perfect against all, but the same rule of damages would apply as to all; and, although he could have but one satisfaction, yet ho was clearly entitled to recovor the full amount of his damages .against each. If he failed to make the proper showing in order to recover tho full amount of his damages against each, it was his own fault; and having collected and received the amount recovered against the first covenantor, who occupied tho position in law of a .guarantor of all the subsequent grantees, it seems to us that Weis’ ■claim under all the covenants must be held satisfied; and that all ■enforcement»of the judgments against the other intermediate covenantors was wrongful, and in violation of the principle that he ■could have but one satisfaction. Taylor ought not to be subjected to different actions, and liable to several recoveries for the same breach of the same covenant.

It follows from this that the plaintiff has mistaken his remedy. Ho ought, after the satisfaction by Taylor of the.judgment against him, to have either resorted to a court of equity to restrain the collection of the judgment against himself, or, if circumstances forbade .that, to have sued to recover back the money he had paid on the judgment against him, as for money had and received by Weis -wrongfully, and which in conscience he ought not to retain.

Demurrer overruled, and, cause remanded.

,Scott, Sutliee, Peck, and G-holson, JJ., concurred.  