
    Gerlach v. Redinger.
    A married woman sold and conveyed her separate real estate by warranty deed. She joined her husband in the covenants of the deed, in which the following words were used:
    “And the said Michael Redinger and Eliza Redinger, she covenanting in her own right and as the owner thereof, do hereby covenant that .they have full power to convey the same; that the title so conveyed is clear, free and unincumbered, and further that they will warrant and defend the same against all claim or claims of all persons whomsoever.”
    Two valid liens — taxes and a mechanic’s lien — existed upon the real estate at the time the deed was executed and delivered, which were after-wards paid and discharged by the grantee. Eliza Redinger brought an action to recover a balance of unpaid purchase money, and the grantee sought in the court below to have the amounts which he paid to discharge the liens, deducted from the amount of the purchase money claimed to be due.
    
      Held: That by the covenants, so worded, she charged her separate estate with the removal of the incumbrances, and the grantee was entitled to have the sums paid by him, to discharge them, deducted from the unpaid purchase money.
    Error to tbe District Court of Scioto county.
    Eliza Reclinger, a married woman, was tbe owner of eertain real estate as her separate property. On the 10th day of August, 1871, she sold the land to Conrad Gerlach for a consideration of $2,400. Of this sum $1,600 was paid in money, and $800 remained to be paid partly in work and the balance due, after, the work was completed, in money. The real estate was conveyed by deed of general warranty, and Eliza joined with her husband, Michael Redinger, in the covenants in the deed, and used the following language :
    “ And the said Michael Redinger and Eliza Redinger, she covenanting in her own right, and as the owner thereof, do hereby covenant that they have full power to convey the same; that the title so conveyed is clear, free and unincumbered, and further, that they will warrant and defend the same against all claim or claims of all persons whomsoever.”
    At the time of the execution of this deed there were two liens upon the property:
    
      First. A mechanic’s lien in favor of M. Kricker, administrator, against Eliza Redinger, for materials furnished, amounting to $87.16, which Gerlach paid Oct. 5, 1872.
    
      Second. A lien for the taxes of 1870 and 1871, which, with the penalty, amounted to $51.76, which Gerlach paid in 1873.
    Both these sums were paid by Gerlach to save the property from sale.
    On the 2d of September, 1877, Eliza Redinger brought an action to recover the balance of the $800 due her, after deducting the value of the work done, and the error complained of is that Gerlach was not permitted to deduct, from the balance of the $800, the sums of money paid by him to release the property from these liens.
    
      J. W. Bannon and T. O. Anderson, for plaintiff in error.
    1. The defendant was liable upon her covenant of warranty contained in her deed. ' Schouler on Husband and Wife, § 270, and authorities there cited; and without regard to whether this is so or not, Gerlach was entitled to a deduction for the amount paid by him to clear the property of liens. Preston v. Brown, 35 Ohio St., 32 : Meily v. Butler, 26 id., 535;- Brewer v. Manser, 38 id., 554.
    
      Moore $ Newman, for defendant in error.
    A married woman is not liable in damages for the breach of the covenants of her deed. Bill v. West, 8 Ohio, 222; Rosenthal v. Mayburgh, 33 Ohio St., 159; Kelley’s Contracts of Married Women, 103, and cases there cited; 1 Bishop on Married Women, § 603.
    The party who deals with a married woman must be presumed to know her incapacity to bind herself by the covenants in her conveyance. If, therefore, he has reason to doubt her title, or to suspect incumbrances, he should guard against them. He may do as Avas done in this ease, require the covenants of the husband; or as was done in Brewer v'. Manser, 38 Ohio St., 554, require that the incumbrances be paid out of the purchase money. But he did not do the latter, but was content to abide by the covenants of the husband, and with those of the wife that Avere a nullity, and he cannot hoav insist upon terms more favorable.
   Nash, J.

In the contract for the sale and conveyance of her separate real estate, Avitnessed by the deed of conveyance, with its covenants peculiarly Avorded, Eliza Redinger agreed that her separate property should be charged Avith the payment of all liens that Avere upon the real estate at that time. This was just as much a part of the contract as was Gerlach’s promise to pay a part of the purchase money at a future date. When Mrs. Redinger brought an action to enforce Gerlach’s unperformed part of the contract, to Avit: the payment of the balance of the purchase money, Gerlach had the right to have deducted therefrom the amounts Avhicli he had paid to remove the liens subsisting upon the property at the time of the agreement. The recent decisions of the supreme court of Ohio have tended to enlarge the rights of married women in regard to their separate estates, and consequently increased their liabilities. Our conclusion in this case is in harmony with the spirit of these decisions.

Judgment reversed.

Dickman, J., dissented, and Martin, J., did not sit in the ease.  