
    Andrew McAlpin v. Edward Woodruff, administrator de bonis non of Michael P. Cassilly, deceased, et al.
    Where A. took a lease of real estate from C. for ninety-nine years, renewable forever, the only consideration for which was a fixed annual rent, and which contained a covenant for quiet enjoyment; and after C.’s death, his widow, by legal proceedings, obtained an assignment of dower in the rents, issues and profits of the premises ; in an action on the covenant by A. against tha administrators of C. — Held,
    1. That A. was entitled to recover his costs and reasonable fees of counsel is defending against the widow’s claim for dower.
    
      ■2. That those holding the reversionary interest of C. in the premises, and his rights under the lease, having been made parties in the case, they were properly enjoined against collecting any more than two thirds of the rent due under the lease during the lifetime of the widow.
    3 That the assignment of dower in rents, issues and profits, was a constructive eviction r f the lessee to the extent of one third of the demised premises ; that for such eviction the measure of damages is the one third of the rent payable under the lease ; and that A. having never, since the commencement of proceedings for dower-by the widow, paid more than two thirds of such rent to those who succeeded to the rights of C., he was entitled to no further recovery
    Error to the superior court of Cincinnati.
    Andrew McAlpin, the plaintiff in error, filed his petition in the superior court of Cincinnati against Edward Woodruff, administrator de bonis non of Michael P. Cassilly, deceased, and John B. Purcell. The petition, in substance, states that by indenture dated April 1, 1835, and recorded June 4,1835, Michael P. Cassilly leased to the plaintiff for the term of ninety-nine years, renewable forever, a certain lot of land on Fourth street, in the city of Cincinnati — the lessee paying therefor the yearly rent of two hundred and forty-five dollars in quarterly installments, and also paying all taxes, charges ■and assessments against the property. That the lessor in and by said lease, covenanted for himself, his heirs, executors and administrators, that the lessee paying said rent, etc., “ should peaceably occupy and enjoy the aforesaid demised premises, with the appurtenances, for and during said term, without a,ny lawful interruption of or by the said Michael P. Cassilly, his heirs or assigns, or any other person or persons laAvfully claiming or to claim by, from or under him, them, or any of them, or by, from or under any other persons Avhom.soever.” The privilege is also granted to-the lessee, at any ■time during the existence of the lease, to purchase the fee simple title to said premises by paying the sum of $4,083 33, and ail the rent, taxes, etc., then due.
    The petition further states that said Michael P. Cassilly ■afterAvard, by a deed dated February 28, 1851, m consideration of $5,000 conveyed to John B. Purcell in fee, among >other property, the premises above described; and that the said Michael P. Cassilly for his heirs, executors and administrators did, in and by said deed, covenant that the title sc conveyed was clear, free and unincumbered, and to warrant and defend the same against all claims whatsoever. That at the time of executing said lease, said Michael P. Cassilly had been married to and was living in wedlock with Sophia B. Cassilly, and died about the 7th of March, 1854, leaving said Sophia his widow. That on the 18th of October, 1854, said Sophia B. Cassilly filed her petition in the superior court of Cincinnati, claiming dower in said premises ; and such proceedings were afterward had in said case, that dower was decreed to her, and was regularly.assigned, according to the terms of the statute, as follows: the sum of $278 per annum for her third part of the annual rent of said property, exclusive of any improvements thereon, the first installment to be paid on the 23d of May, 1856. It was further ordered that said annual payments should be a lien on said premises, and that the same might be enforced by execution. And the sum of $167 22 was ordered to be paid said Sophia, for her dower from the commencement of her suit to the 23rd of May, 1855..
    Said McAlpin further states in his petition, that he contested said suit for dower, and expended the amount of fifty dollars in so doing. That he has paid the rent, taxes, etc;, under said lease, and also said sum of $167 22 decreed to said Sophia, and $278, her first yearly installment of dower. That by reason of the death of said Michael P. Cassilly, and. the recovery of said dower by his widow, the covenants in said lease have been broken, and an action hath accrued to-him, to recover the amount of said dower already paid, with his expenses and the costs of said suit, and also the value of said dower yet to accrue, to be estimated according to the probable duration of the life of said Sophia as determined by the-most reliable life annuity tables. That she is about sixty-six years of age, and the value of her dower interest is $2,800.
    The defendant, Woodruff, as administrator of Cassilly, in his answers admits the right of action for the expenses of said dower suit, but denies all the other claim made by the plaintiff.
    
      The defendant, Purcell, sets up the title under his deed,, and claims the protection of the covenants therein contained. He asks to be relieved from all liability on account of said dower, and, if he should be made chargeable with any part-thereof, prays judgment against the administrator of Cassilly for the same.
    The case was reserved from the special to the general term of the superior court upon a question as to the proper measure of damages. And having been remanded to the special term, the intervention of a jury was waived, and the court, at the request of the attorneys for the plaintiff, entered upon the record their findings of fact and findings of law, separately, as follows:
    “ The findings of fact made by the court from the pleadings and evidence are these: The court find that the statements of fact contained in the plaintiff’s petition are true, with the following exception, viz: from the testimony of Charles Stetson, Esq., president of the Ohio Life Insurance and Trust Company, they find that by the Northampton tables ■ of life annuities, which are reliable tables, and used in the business of said company, the present value of the dower interest of Sophia B. Cassilly, in the premises described in said petition, is $2,695, instead of $2,800, as stated in said petition ; and with the following additional facts which the court find, namely, that the costs of said action for dower brought by said Sophia B. Cassilly, were $29 87, and the counsel fees of the present plaintiff in defending said action were $50, both of which sums have been paid by the plaintiff.”
    
      “ Upon the facts thus ascertained, the court make the following findings of law:
    “ 1. The plaintiff is entitled to recover from the defendant,. Edward Woodruff, administrator de bonis non of Michael P. Cassilly, deceased, the costs and counsel fees by him expended in defending said action, and interest on the same.
    “ 2. The plaintiff is not entitled to recover from said administrator-said installments of dower paid by him to said Sophia B. Cassilly.
    “ 3 The plaintiff is not entitled to recover from said- administrator said sum of $2,695, the present value of said dower estate of said Sophia B. Cassilly charged upon said premises.
    “ 4. The plaintiff is entitled as against the defendant, John B. Purcell, to an abatement of one third of the rent due under said lease from the commencement of said dower charge as decreed in said action.”
    Judgment was accordingly rendered for said costs and counsel fees; and said Purcell was forever enjoined from collecting more than two thirds of the rent due under said lease, during the lifetime of said Sophia B. Cassilly.
    And it was further ordered that the answer of said Purcell, and the claims therein set forth, be docketed as a separate action.
    The plaintiff filed his petition in error to the superior court in general term, claiming that the court at special term erred in their second and third findings of law, and also in refusing to enter judgment for the plaintiff for the installments of dower already paid, and for the sum named as the value of the dower estate.
    The court in general term affirmed the judgment at special term, and the plaintiff now prosecutes his petition in error in this court, to reverse said judgment in general term.
    
      S. Seadington, for plaintiff in error, in argument, made the following points:
    1. As to the meaning and effect of the covenant sued on.
    The covenant in the present case is that the lessee paying rent, etc., shall peaceably occupy and enjoy the demised premises without any lawful interruption by the lessor, his heirs or assigns, or by any other persons. It is in substance the English covenants for quiet enjoyment, and against incumbrances, the words, “ without any lawful interruption,” being sufficient to cover every incumbrance, the assertion of which would amount to a breach of those covenants under the English form. But, aside from this fact, it will hereafter be shown, that the measure of damages upon each of these covenants, in the separate form in which they are employed in the United States, is the same. Rawle on Cov., Tit. 182, 311-14; Nyce’s ex’rs v. Oberts, 17 Ohio Rep. 75; Cole v. Lee, 30 Maine Rep. 397.
    2. As to the nature of the breach complained of.
    There is no controversy that a breach of the covenant has taken place; but there is a difference of opinion as to the nature of that breach and the consequences deducible therefrom. The attorney for the defendant in error assumes that because there was a breach of covenant, there was of necessity an eviction, either actual or constructive; and not only so, but an eviction of exactly one third of the demised premises. We maintain, on the other hand, that the dower claim itself, and the decrees for the assignment of dower, were merely an incumbrance upon the land and extended equally over the whole of it. Rawle on Cov. 198-9, 265, 282-5, 265, 299; Sprague v. Baker, 17 Mass. 590; Brown v. Dickerson, 12 Penn. St. Rep. (2 Jones), 372; Stewart v. Drake, 1 Halst. 139; Davenport v. Bartlett, 9 Ala. 179.
    3. As to the proper measure of damages.
    The measure of damages, whether under the covenant against incumbrances or the covenant for quiet enjoyment, in. case there is an incumbrance not amounting to a destruction of the whole title, is the amount actually required to pay off that incumbrance, with this limitation, however, that it must not exceed .the consideration money and interest; and the dower claim in the present ease is an incumbrance upon the whole of the property. Rawle on Cov. 90, 100, 101, 137, 139, 155, 158, 202, 162, 168, 282, 285, 291, 294; Dexter v. Manly, 4 Cush. 14; Donohue v. Emery, 9 Metc. 68; Foote v. Burnet, 10 Ohio Rep. 334; King v. Kerr’s adm’r, 5 Ohio Rep. 154; Lloyd v. Quimby, 5 Ohio St. Rep. 265-6; Harlow v. Thomas, 15 Pick. 66; Hubbard v. Norton, 10 Conn. 422; Gilbert v. Bulkley, 5 Conn. 262; Prescott v. Truman, 4 Mass. 627; Jarvis v. Buttrick, 1 Metc. 480; Grice v. Scarborough, 2 Speers, 649; Cumings v. Little, 24 Pick. 266; Thayer v. Clearnance, 22 Pick. 490; Brooks v. Moody, 20 Pick. 474; Kelly v. Law, 6 Shep. 244; Batcheldor v. Sturges, 3 Cush. 205-6; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 
      13 Johns. 105; Baldwin v. Munn, 2 Wend. 405; Dimmick v. Lockwood, 10 Wend. 142; Henderson v. Henderson, 13 Misso. 153; Funk v. Vonieda, 11 Serg. & Rawle, 112.
    And the plaintiff in error is entitled to a judgment in gross, for the value of the incumbrance, estimated according to the life annuity tables. Bank of the United States v. Dunseth, 10 Ohio Rep. 23.
    As examples of the class of cases in which a resort is had to the life annuity tables, and for the reasons upon which the practice has been established, reference is made to the following authorities: Williams’ Case, 3 Bland’s Ch. Rep. 221; Foster v. Hilliard, 1 Story’s Rep. 77; Mills v. Catlin, 22 Vermont, 106; Tanner v. Livingston, 12 Wend. 83; Swayne v. Perine, 5 Johns. Ch. Rep. 482; Lockwood v. Sturdevant, 6 Conn. Rep. 373.
    4. As to whether the lessee can claim an abatement of the rent from the assignee of the reversion.
    The court below erred in its rulings upon this point. For whatever damages this plaintiff was entitled to recover, the court below should have rendered a judgment directly against the administrator of Oassilly.
    The following authorities are cited upon this question: Taylor’s Landl. and Ten. sec. 383; Savill v. Savill, 2 Atk. 463; Casborne v. Scarfe, 1 Atk. 606; Shrewsbury v. Shrewsbury, 1 Ves. Jr. 233; Salmon v. Smith, 1 Saund. Rep. 204, and note 2; Hunt v. Cope, 1 Cowper, 242; Krotz v. Carpenter, 5 Johns. 120; Watts v. Coffin, 11 Johns. 495; Allen v. Pell, 4 Wend. 505; Ethridge v. Osborne, 12 Wend. 529; Pendleton v. Dyett, 3 Cowen, 581; Lansing v. Van Alstyne, 2 Wend. 561, and 565, note; Rawle on Cov. 585; Haynes v. Colvin, 19 Ohio, 136; Webber v. Webber, 6 Grreenlf. 136; Hutchinson v. Styles, 3 N. Hamp. 404; Royce v. Burrell, 12 Mass. 395.
    
      Edmund Pendleton, for defendant in error, submitted the following points:
    1. That the plaintiff’s estate being that of a mere lessee, ■upon an eviction from any portion of the leased premises, he is entitled to a proportional deduction from the rent reserved during the continuance of the eviction; but in no event to the recovery of any damages. Lansing v. Van Alstyne, 2 Wend. 561; Stevenson v. Lambard, 2 East. 576; Hunt v. Cope, Cowp. 242; Fitchburgh Cot. Man. Co. v. Melvin, 15 Mass. 268; Datson v. Reeve, L’d Raym. 77; Dyett v. Pendleton, 8 Cow. 727; Neale v. McKenzie, 1 Mees. & Wels. 733; Digby v. Atkinson, 4 Camp. 275; Tomlinson v. Day, 2 B. and B. 681; Newton v. Allen, 1 Gale and D. 44; Kinney v. Watts, 14 Wend. 41; Kelly v. Dutch Church of Schenectady, 2 Hill, 116; Nyce’s ex’rs v. Obertz, 17 Ohio Rep. 76; Foote v. Burnet, 10 Ohio Rep. 334; 5 Ohio Rep. 154.
    2. That if he be entitled to recover anything in the shape of damages, it can, in no event, be greater than the one third part of the yearly rent reserved in the original lease. Nyce’s exr’s v. Obertz, 17 Ohio Rep. 76; King v. Kerr’s adm’r, 5 Ohio Rep. 154; Johnson v. Nyce’s ex’rs, 17 Ohio Rep. 66; Morris v. Phelps, 5 Johns. 49.
    3. That if the court should be of opinion that the plaintiff is entitled to recover damages to the extent of the one third of the yearly rent reserved, this amount can not be decreed to him in gross or in one aggregate amount, but only by way of a deduction annually from the rent so long as Mrs. Cassilly shall live. Sedgwick, 175, note; Nyce’s ex’rs v. Obertz, 17 Ohio Rep.
    Pdward. Woodruff, administrator, in propria persona.
    There is no covenant of warranty by Oassilly. It is a •covenant for quiet enjoyment of the leased premises, and under this, the plaintiff contends that he is entitled to recover what Mrs. Oassilly’s dower would be worth during the balance of her life, estimated according to the tables of annuities.
    We think that the most the plaintiff cau claim would be a deduction from the yearly rent equal to the amount he has to pay her per annum for dower; this would make him whole, and he ought not to ask more; for the party who looses a fee simple is only entitled to the purchase money and interest, and not to the present value of the land he has lost.
    If the plaintiff recovers the value' of the widow’s dower according to the tables, and she dies the next week, he will have received a gross sum in advance, which will be all clear gain to him, for his estate, by the widow’s decease, will be entirely relieved of the dower claim, while he will have pocketed as much as he agreed to pay for the fee simple, and thus obtain the property for nothing. This rule would seem sa manifestly unjust, that a court would hardly sanction it.
    The present estate being a leasehold, and the lessee having lost only one third, by what might be considered equivalent to an eviction, can not be entitled to more than one third the annual rents, reserved in his lease, by way of deduction.
   Brinkerhoff, C.J.

The plaintiff McAlpin does not appear to have availed himself of his right, under the contract contained in his lease, to become a purchaser of the demised premises, and we can not know that he ever will. He appears before us, therefore, in the character of a lessee simply. His lease contains an ordinary covenant for quiet enjoyment, and for a breach of this covenant he sues the administrator of his lessor.

Has the plaintiff been evicted of any portion of the demised premises; and if so, what is the extent of such eviction ?

That the widow of the lessor was entitled to dower in the demised premises, and that they were incapable of division by metes and hounds, is not denied. In such case, the statute provides that “ dower thereof shall be assigned in a special manner, as of a third part of the rents, issues and profits,” excluding in the estimate of such rents, etc., “ all permanent and valuable improvements made thereon after the husband of such widow ceased to be the owner thereof.” 3 Curwen’s Rev. Stat. 2323; 2 Id. 919.

In this case the dower was assigned in the rents, issues and profits ; and that this is equivalent to an eviction pro tanto,. is settled in Johnson v. Nyce’s ex’rs, 17 Ohio Rep. 66. Now, if the dower had been assigned by metes and bounds, the actual eviction would have been of just one third of the demised premises. That it was not thus assigned, was not for or to the advantage or detriment Of either the dowress or the lessee, hut solely from the necessity of the case. The assignment of rents, issues and profits is, as near as judicial instrumentalities can' ascertain it, the exact equivalent of an actual assignment by metes and bounds. The dowress obtains nothing more, and the lessee loses nothing more, by the one process than by the other. It is true, that by reason of the appreciation of the rentable value of the premises, the dowress now obtains more than the one third of the rent payable by the terms of the lease; but the same result would have followed if the dower had been capable of assignment by metes and bounds. And as the law contemplates the one mode as the equivalent of the other, we can not avoid the conclusion, that it is the equivalent in extent as well as in fact, and the constructive eviction must be regarded as an eviction of the lessee, during the life of the dowress, from one third of the demised premises.

What, then, is the extent of the damages which, in contemplation of law, the lessee, plaintiff, has suffered by reason of the constructive eviction from one third of the premises ?

Where a grantee of an estate in fee simple, with warranty, is evicted, by paramount title, of his entire estate, the rule of damages is settled in Ohio to be the amount of the original purchase money, with interest, not, however, to exceed the time limited by statute for the recovery of mesne profits, from the time of eviction. So, if he be evicted of a definite portion of the premises, the damages are a proportional amount of the purchase money with like interest. King v. Kerr’s adm’rs, 5 Ohio Rep. 154; Foote v. Burnet, 10 Ohio Rep. 317; Bachus v. McCoy, 3 Ohio Rep. 211; Clark v. Parr, 14 Ohio Rep. 118. In analogy to this rule it has been held, that the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed so to consider it. In case of eviction, the rent ceases; and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property.” Kelly v. Dutch Church of Schenectady, 2 Hill, 116. And this doctrine seems to have met the approval of the supreme court of Ohio in Nyce’s ex’rs v. Obertz, 17 Ohio Rep. 77. In this case it does not appear that the plaintiff has paid to Purcell, the assignee of the lessor, since the commencement of the widow’s suit for dower, anything more than the two thirds of the rent stipulated in the lease ; and the court below properly enjoined Purcell from demanding anything more during the continuance of the life estate of the widow. It also rightfully gave the plaintiff his costs and counsel fees in defending against the claim of the widow. And, on the whole, we can see no error in the proceedings of the court below. The cross action of Purcell against Oassilly’s administrator, which was ordered to be separately docketed, must depend upon its own particular merits, and with it we have, at present, nothing to do.

It is true that the rule of damages herein again recognized, doubtless, often fails to do full and exact justice to parties; but this is more or less the unavoidable effect of all general rules; and this rule has been adopted and established in the belief, in which we fully concur, that it is, on the whole, the best which can be found. A rule that the value of the demised premises at the time of eviction should be the measure of damages, in a country like ours, where a vast and rapid appreciation in the value of real estate is so common and even general, would be ruinous in its consequences to innocent vendors. If there be fraud in the vendor, it is said, in Bachus v. McCoy, a special action for the deceit may be maintained. And, in the- language of Bronson, J., in Kelly v. Dutch Church, "if this rule will not always afford a sufficient indemnity to the lessee, I can only say, as has often been said in relation to a purchaser, he should protect himself by requiring other covenants.” There is no peculiar hardship in this case over that of a purchaser whose title wholly fails. Such a purchaser loses wholly the benefit of his bargain; while the plaintiff here loses only the one third of the benefit of his for the limited period of the widow’s life.

Judgment affirmed.

Scott, Sutliff, Peck and Gholson, JJ., concurred.  