
    (Licking County Common Pleas.)
    September Term, 1897.
    JAMES SHELL v. WM. A. EVANS et al.
    (1). If the plaintiff in an action for damages for breach of covenant in a deed, sets out in his petition the covenant and its breach, he would be entitled to at least nominal damages without alleging special damages, and therefore, that objection would be of no avail on demurrer.
    (2). If the covenantor is not in actual possession, or seized in fact at the time of the conveyance, it is not necessary to allege and prove an-eviction by a paramount title, to entitle, the plaintiff to recover.
   Wickham, J.

This is an action to recover damages for breach'of covenant of seizin in a deed of coneyance of real state.

The petition avers that on or about February 12th, the defendants for the consideration of $12,000, paid by the plaintiff, by their deed of that date conveyed to the plaintiff in fee simple certain lands, describing them.

That in said deed of conveyance, the defendants covenanted with the plaintiff, that they were lawfully seize'd of the premises, following with the usual covenants against incumbrances and general warranty.

That the defendants were not then lawfully seized, or seized at all of the lands described in the deed, amounting to about twenty acres, which is fully described in the petition. That the fee simple thereof was then vested in the state of Ohio, of which fact the plaintiff was then, and for a long time thereafter, or until 1896, ignorant. That by reason of the existence of said outstanding title in the state, the said covenant of sbizin was broken at the date of the delivery of said deed, to the damage of the plaintiff, for which he asks judgment.

The defendants have filed a general demurrer to the petition, and the cause was submitted to the court upon the demurrer.

It is contended by counsel for the demurrer that the petition should aver that the plaintiff has been evicted, and further, that the petition does not allege that the plaintiff has been prejudiced.

As to the last objection, I suppose that if the plaintiff sets out in his petition the covenant and its breach, he would be entitled to at least nominal damages without glleging "special damages, and therefore, that objection would be of no avail on demurrer.

But it is claimed that the petition I t should allege an eviction; and the consideration of this question requires an examination of authorities.

The distinction between a covenant -of seizin, and a covenant against incumbrances should be kept in mind. The most approved definition of an incumbrance, and the one adopted by our supreme court, in the case of Stambaugh v. Smith, 23 Ohio St., 591, is: “Every right to, or interest in the land, which may subsist in their persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveys anee.” Rawle on Covenants of Title, 95.

As examples of incumbrances, may be given:

The right to cut and remove growing trees. A right of dower either inchoate or consummate. A private way. A lease for years. A contract of sale. A right of way for railroad.

It is well settled in Ohio, that a covenant against incumbrances, if an incumbrance exists, is broken as soon as made.

Stambaugh v. Smith, 23 Ohio St., 588.

It will be readily seen from the definition given of an incumbrance, that the title paramount, in the state of Ohio, as averred in the petition, is not an incumbrance, so that the plaintiff must rely, and does rely, for -a recovery, upon a breach if covenant of seizin.

1 1 ! Seizin may be one of law, cr of fact. And the rule as to whether the petitioner must plead an eviction, in order to recover is,that, if he seizin is cue of law, he must prove, and therefore, aver an eviction, and the authorities present an unbroken and uniform line in support of that rule. Backus v. McCoy, 3 Ohio, 211; Robinson v. Neil, 3 Ohio, 525 Foote v. Burnett, 10 Ohio, 317; Devore v. Sunderland, 17 Ohio, 53; Stambaugh v. Smith, 23 Ohio St., 584; G. W. Stock Co. v. Saas, 24 Ohio St., 594; Lane v. Fury, 31 Ohio St., 574; Betz v. Bryan, 39 Ohio St., 320.

¡ t In the case of Stambaugh v. Smith, supra, the court say on this subject, at page 588: “In ar action upon the special covenant of seizin, a breach is not sufficiently shown by an averment negativing the legal seizin of the covenantor at the time the covenant was made, but this seizin in fact must also be negatived. There is no averment in this petition that the covenantor was not in fact seized at the time he executed the deed. ” The court holding that the judgment could not have been predicated on the covenant ot seizin.

Kibler & Kibler, for Plaintiff.

J. B. Jones, for Defendants.

From an examination of authorities cited, and especially from Betz v. Bryan, supra, I understand the law to be that if the covenantor is not in actual possession, or seized in fact at the time of the conveyance, it is not necessary to allege and prove an eviction by a paramount title, to entitle the plaintiff to recover, for, say the court in Betz v. Bryan, supra: “If 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 whioh he may have his action, and the covenant does not run with the land.”

To the same effect are Sherwood v. Landon, 57 Mich., 219; Matteson v. Vaughn, 38 Mich., 373.

The language of this petition is “the defendants were not then lawfully seized, or seized at all.” This is a 'denial, of seizin in fact, and, under the authorities, the petition states a cause cf action against the defendants.

The demurrer may be overruled.  