
    Isaac Smith v. George M. Dixon.
    The defendant conveyed land to the plaintiff, with covenants against incumbrances, and to defend the title conveyed. There was then existing a mortgage on the land made by a prior owner, and the holder of the mortgage afterward brought suit against the mortgagor and both of the parties to this case, and obtained judgment subjecting the land to the payment of the mortgage. The land was sold on the judgment, and deeded to the purchaser,' who thereupon obtained possession. Subsequently, at the suit of the defendant, on error, the judgment was reversed. Held — ■
    1. The eviction of the plaintiff, under the judgment on the mortgage, wa3 a breach of the covenants of warranty in the deed, and, thereupon, a right of action thereon accrued in favor of the plaintiff.
    2. The subsequent reversal of the judgment did not affect the sale of the land and consequent eviction of the plaintiff, and did not deprive him of his right of action on the covenants of warranty.
    Error to the Superior Court of Montgomery county.
    The original action was brought to recover for a breach of the covenants of warranty in. a deed. The court sustained a demurrer to the petition and rendered judgment in favor of the defendant. To reverse this judgment the plaintiff prosecuted his petition in error in the Supreme Court.
    The petition demurred to, so far as material, is as follows :
    Isaac Smith, plaintiff, avers that on the 7th day of July, 1866, by his deed duly executed of that date, in consideration of the sum of $2,000 to him paid by said plaintiff, C-eorge M. Dixon, defendant, granted and conveyed to plaintiff in fee-simple the following real estate in Mercer county, Ohio, and described as follows : . . . And the said defendant, by said deed, covenanted to and with said plaintiff' that said title so conveyed was free, clear, and unincumbered ; and that he, the said defendant, would warrant and defend the same against all claim or claims of all persons whomsoever.
    Said plaintiff further avers that said premises were not free, clear, and unincumbered, at the time said deed therefor was executed and delivered to said plaintiff; but, on the contrary, that on said 7th day of July, 1866, one Joseph S. M. Webster held a mortgage on said premises, executed on the 13th day of March, 1854, by one J. N. Conrad, who was then the owner of said premises, to secure the payment of two notes amounting together to about $866, which mortgage had been on the 8th day of September, 1854, duly .recorded on the records of said county of Mercer.
    
      Plaintiff avers that on the 3d day of August, 1867, said Joseph S. M. Webster filed his petition against the executor of said Conrad, who was then deceased, and other defendants, among whom were the defendant and plaintiff' herein, in the Court of Common Pleas of said county of Mercer, asking foreclosure of said mortgage on said premises, to pay a balance of $466.35, with interest from March 13, 1854, which sums of money were then still due under and secured by said mortgage.
    That shortly after the commencement of said action to foreclose said mortgage, this plaintiff' duly notified said Dixon of the same, and demanded that he defend against said suit. Plaintiff' says said defendant, Dixon, did, in compliance with said demand, appear in due time in said action, and plead to. said petition; but that at the February term, 1869, of said court said action came on for trial; and it was thereupon considered, by said court, that the plaintiff' therein recover of said Conrad’s executor.the sum of $819.45, and his costs taxed to $ , and it was further ordered by said court that in case of default of payment of said judgment, said premises be sold according to law, and the proceeds of said sale applied in satisfaction thereof; to which ruling said defendant, Dixon, excepted.
    Plaintiff says that said George M. Dixon filed a petition in error in said cause in the District Court, by which court, in July, 1870, said petition in error was sustained, and said finding and order of the court below in said action of foreclosure was reversed, and held for naught.
    But plaintiff' says that in prosecuting said petition in error, said George M. Dixon refused to give the required bond to stay the proceedings in the court below, by reason of which omission the sheriff of said county of Mercer, after default as aforesaid in payment of said judgment, duly sold said premises as he was bound to do, and said sale was afterward by the Court of Common Pleas of Mercer county, at its January term, 1869, approved and confirmed, and said sheriff ordered to convey said premises by deed, duly executed, to the purchaser, which he accordingly did.
    Plaintiff' avers that said purchaser thereupon, in July, 1869, took possession of said premises under said deed from said sheriff', and now has the sole possession and the sole rigid to the possession of the same under said deed from said sheriff'. Said plaintiff' says that by reason of the premises, the covenant against incumbrances in said deed from defendant to plaintiff has been broken; that he, the said plaintiff, has been, evicted from said land under and by virtue of the aforesaid judgment; and also that Dixon, defendant, has not kept his covenant to defend said title and premises against all claims of all persons whomsoever, but has broken the same; that by reason of the breach of said two covenants, said plaintiff has been damaged in the sum of $2,000, for which sum, with interest thereon from August 1, 1869, said plaintiff' asks judgment.
    
      Alfred A. Thomas, of Smith § Thomas, for plaintiff in error:
    The deed contained the usual covenants against incumbrances and of general warranty. We claim that both are broken.
    A purchaser of lands at judicial sale is protected in his title upon subsequent reversal of judgment, upon which sale was made. Restitution must be made of money by judgment creditor. Code, sec. 446.
    Covenant against incumbrances is in Ohio a real covenant, and not broken till eviction. States v. Hobbs, 2 Disney, 573.
    Plaintiff’ was ousted by purchaser at judicial sale, and this was eviction. Sprague v. Baker, 17 Mass. 590; Rawle on Covenants of Title, 257, 260, 298.
    Plaintiff haying been evicted by a suit at law, of which the warrantor had due notice, and which he was required to defend, the judgment and sheriff’s return of the eviction, and proof of notice to the warrantor, are alone sufficient to maintain an action of covenant. Greenleaf’s Cruise on Real Property, note, p. 461; Hamilton v. Cutts, 4 Mass. 349; Sprague v. Baker, 17 Mass. 586; Prescott v. Truman, 4 Mass. 627.
    Covenant for warranty is more than covenant for quiet enjoyment; for it looks to title as well as possession. It is claimed the covenant for quiet enjoyment is broken only under a title both lawful and superior, and that the covenant is not broken by a tortious eviction; but the reason of this rule of law is, that “ no harm is done the grantee, inasmuch as he may have his action of ejectment or trespass against him who ousts him.” Kelly v. The Dutch Church, 2 Hill, 110.
    Our client has no such remedy.
    It is not denied that the mortgage which ousted us was paramount, and we have lawfully been turned out by legal proceedings. Such facts always constitute a breach of covenant. Rickert v. Snyder, 9 Wend. 419.
    The judgment against Smith was regularly obtained;, title taken from us by law. “ But,” says the court below, “the obligation rested upon the plaintiff, and not upon the defendant, to contest Webster’s unlawful claim.” By the Common Pleas^Court, whose order sold the land, Webster’s claim was held to be lawful. Having duly notified him, Dixon, to come in, we had no further duty, and could have plead the decision of the Common Pleas Court as conclusive upon him. Rawle’s Cov. of Title, 242.
    
      Young 8¡ Gottschall, for defendant in error:
    The ease is in a nut-shell. It is an action for breach of the covenants against incumbrance and warranty in a deed.
    But where is the breach ?
    Is it that Webster, at the date of the deed, held a valid, subsisting, mortgage, under which plaintiff was subsequently evicted ?
    The petition shows that this was not true. Webster’s-judgment, finding this fact, was subsequently reversed and “ held for naught.”
    The purchaser’s title had no existence at the time of defendant’s deed, and does not rest upon or bear any relation to Webster’s title.
    It rests upon the fact, not the validity, of the judgment, and the regular proceedings and sale under it, and upon the force and effect which section 446 of the code gives to these two facts.
    Whether Webster ever had a mortgage, or whether it was fraudulent, or had been paid, or whether the judgment itself was obtained by fraud, or was erroneous, are facts which did not at all concern the purchaser. All that the policy of law required to sustain his title was a regular sale under a judgment then existing.
    The reversal takes from this judgment all its force with relation to the questions at issue in the case. Indeed, as between Webster and the other parties, there is no longer any judgment; but the fact, that at the time of the sale there was such a judgment, supports the purchaser’s title, and, instead of the land, it is provided that “ restitution shall be made, by the judgment-creditor, of the moneys for which such land sold, with lawful interest from'the day •of sale.”
    Under the operation of this statute, and not by an elder title, or one existing at the'date of the deed, the plaintiff has lost his land; but the law has substituted in the place •of it the right to recover its value of the judgment-creditor, which must be regarded as its equivalent.
    This right of action inures to the plaintiff alone as the •owner of the land, and furnishes him an ample and complete remedy.
   Hay, J.

The action was brought to recover damages for breach of covenants in a deed, against incumbrances and to defend the title conveyed. The question is, whether the case made by the petition shows a breach of the covenants.

It is claimed by defendant, that before the plaintiff' can recover he must show an eviction under a superior title. 'This is done by the petition. There was an existing mortgage of the laud to another party when the deed was made. Subsequently the holder of the mortgage brought an action against the mortgagor and both the parties in this case, to .enforce the mortgage against the land. He obtained a judgment subjecting the land to the payment of the mortgage. The laud was sold on the judgment and conveyed to the purchaser, who thereupon obtained possession. Thus was the plaintiff evicted by due process of law under a superior right. The defendant failed to defend the title he conveyed to the plaintiff. This was a breach of his covenants, and the plaintiff's right of action thereon, for full damages, accrued the moment he was evicted.

The subsequent reversal of the judgment on which the land was sold did not divest the plaintiff of his right of action; for, under the 446th section of the code, it in no manner affected the sale of the land. That was irrevocably lost to the plaintiff'. The breach of the defendant’s covenants was equally certain and injurious to the plaintiff, though, it was the result of an erroneous judgment.

The defendant was a party to the judgment, and is concluded by it. He permitted the land to be sold before he obtained a reversal of the judgment. He was the party proceeding in error, and might have stayed the sale by a supersedeas. The plaintiff was no more bound to prosecute proceedings in error, or to suspend the judgment, than he was to pay the amount due on the mortgage, to save the land from sale. He had the covenant of the defendant to defend the title, and he might rely upon that.

The proceeding in error was of no. avail to the plaintiff'. In no event would it restore to him the land after it was sold; nor was it necessary to his right of action on the covenants of his deed agaiust the defendant.

The plaintiff having been lawfully evicted by a title adjudged to be superior to that conveyed by the deed of defendant to him, in an action to which both were parties, and the defendant having suffered this to be done -while the j udgment was in full foi’ce, as against his covenants to the plaintiff, he is estopped to deny the validity of the judgment which he has permitted to result in a breach of hia covenants and consequent cause of action against him.

The reversal of the judgment may, however, be available to the defendant, by way of restitution from 'the party recovering it,'as provided in section 446 of the code. But whether restitution would be of any permanent value may depend upon the final result of that case. In no event could it answer the breach of the covenants, and may prove to be of no ultimate value to any one. The certain remedy of the plaintiff on the covenants of the defendant’s deed can not be satisfied by a substitute of such uncertain availability.

Judgment reversed and cause remanded.

Scott, Chief Judge, “Wright, Johnson, and Ashburn, JJ., concurred.  