
    Cornelius W. Lane v. Anna M. Fury.
    .A., who was a married woman, sold real estate to B., hut the acknowledgment of the deed was so defective that the title did not pass. B. sold the land to 0., who conveyed it to D. A. commenced suit for possession against D., who brought an action, and obtained a decree correcting the defect, and afterward obtained judgment in the action to recover possession: Held, That this was equivalent to an eviction of D., and that in an action brought by D. against 0., on his covenant of general 'warranty, she might recover moneys paid for copies of records and counsel fees in the action to reform the writing, and in the action to recover possession, as this was expense necessarily incurred in obtaining the paramount title.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of' Butler county.
    This action was prosecuted by the defendant in error against the plaintiff in error, in the Court of Common Pleas of Butler county, on the covenants in a deed. Lane’s demurrer to the petition was overruled, judgment was rendered in favor of Mrs. Fury for $566 86, and the judgment was affirmed in the district court. The only question in the courts below was, and in this court is, whether the petition contains facts sufficient to constitute a cause of action.
    The petition is very lengthy. In substance it is as follows : Mary Ann Ward was the owner of real estate, described in the petition, in the city of Cincinnati. On November 25,1852, she joined with her husband in conveying it to John H. Lane, who was placed in possession; but the acknowledgment, showing no separate examination of the wife, and being otherwise defective, the deed was wholly invalid as to Mrs. Ward. Subsequently the lot was sold on execution as the property of John H. Lane, and on December 9, 1858, the sheriff executed a deed to Cornelius W. Lane, the purchaser, and placed him in possession. . On November 1, 1860, Cornelius W. Lane, in consideration of .$2,500, conveyed the property to the defendant in error, whose name then was Anna M. Vidal, and placed her in possession. The deed was in fee. simple, and contained the following covenants: “ The said Cornelius W. Lane, for himself and his heirs, doth hereby covenant with the said Anna M. Vidal, her heirs and assigns, that he is lawfully ■seized of the premises aforesaid ; that the premises are free and clear of all incumbrances whatsoever, and that he will forever warrant and defend the same, with the appurtenances, unto the said Anna M. Vidal, her heirs and assigns, against the lawful claims of all persons whomsoever, except as herein stated,” to wit, “ any contingent dower the wife of John II. Lane may have in said premises.”
    The further statement is made in the petition, that Mary Ann Ward died in 1874, and about September 5th of that year her heirs, Charles C. Kilbourne and others, named in the petition, set up a claim of title to the premises by reason of the above mentioned defects in the deed to John H. Lane; served on Mrs. Eury notice in writing to leave the premises, and surrender possession to them; and in a few ■days thereafter they brought a civil action in the Court of Common Pleas of Hamilton county, against Mrs. Eury, to recover possession of the property. During the same month Mrs. Eury brought a suit in the Superior Court of ■Cincinnati against Kilbourne and all others claiming an interest, to correct the mistake in the acknowledgment, renting in the petition all the facts. She obtained a decree, in accordance with the prayer of the petition, and that decree wras affirmed in general term, and subsequently in this court. 26 Ohio St. 153. The action of the Ward heirs to recover possession was also determined in her favor. The plaintiff in error was notified of these suits, and requested to defend the action to recover possession, and to assist in prosecuting the other suit, but be disregarded the notice.
    The petition contains the further statement, that in the prosecution of the suit to reform the deed, and in defending the action of the Ward heirs, Mrs. Eury necessarily incurred expeuses for attorney’s fees, copies of record, and in attending the trials, amounting to $734, a detailed statement of which accompanies the petition.; and the prayer is for judgment for the amount.
    
      McKemy Andrews, for the motion:
    As to what is a breach of the covenant of warranty, see Wadesr. Comstock, 11 Ohio St. 71, and cases there cited; Woodford v. Leavenworth, 14 Ind. 311; Hooker v. Folsom, 4 Ind. 90; Hanna v. Henderson, 4 Ind. 174; 2 Greenleaf on Evidence, see. 244.
    When the grantor has seizin in fact, the plaintiff in an action for breach of this covenant as in the case of the covenant of seizin, must allege and prove eviction or something that is equivalent. Tuite v. Miller, 10 Ohio, 382; King v. Kerr, 5 Ohio, 154; 10 Ohio, 317, note; 17 Ohio, 66; 1 Ohio, 386; 21 Wend. 123; 8 Cow. 35.
    The eviction must be lawful by title paramount. Webb v. Alexander, 7 Wend. 281; Follard v. Wallace, 2 Johns. 395; 2 Johns. 1.
    Covenantee can not recover counsel fees and expenses-from covenantor, when incurred in- suits defending against wrong-doers or unlawful claimants. Nor in any remote or other suits than that whereby the paramount title (incumbrance) was established. Rawle on Cov. (4th ed.) 312.
    Even if in this suit Pury can recover from Lane the-counsel fees and expenses incurred in successfully resisting the Ward claim, as claimed by opposing counsel, she must first prove the claim, or interest, or title of the Ward heirs, superior, elder, and better than her own. Crane v.. Collenbauch, 47 Ind. 256; Purcell v. Heeny, 28 Ohio St. 39.
    
      Thomas Millikin and Snow $ Kumler, contra:
    It is not necessary to constitute a breach of the covenants of general warranty that there should be an actual eviction. Turner v. Goodrich, 3 Yt. 708; Perkins v. Leavitt, 13 Vt. 379; Rawle on Cov. 234, 236, 238, 239; Sprague v. Baker, 17 Mass. 590; Loomis v. Bedell, 11 N. H. 14, 74;: .Hamilton v. Cutts, 4 Mass. 349; Rawle on Cov. 291 (ed.. 1854); 5 Clark (Iowa), 62; 2 Am. Rep. 456; 39 Cal. 360; 2 Grteenleaf Ev., see. 244.
    As to counsel fees, costs, and expenses, see 122 Mass. 101; Me Alpine v. Woodruff, 11 Ohio St. 122, 130; Sedgwick on Dam. 193; Hagen v. Stevens, 11 N. H. 28; Rawle on Cov. 122, 123.; 8 Mass. 162 ; 27 Maine, 525 ; Sweet v. Patrick, 3 Fairfield, 10.
   Okey, J.

Cornelius W. Lane was in possession when he convoyed to Mrs. Fury, and he placed her in actual possession of the premises; and, therefore, there has been no-breach of the covenant of seizin, as that covenant is regarded in 'this state. Nor was there any breach of the-covenant against incumbrances, as the instrument signed' by Mrs. Ward as a deed was invalid by reason of the defective acknowledgment, and hence the fee did not pass to-Mrs. Fury. The real question is, whether there was- a-breach of the covenant of general warranty.

There was notice to Mrs. Fury to leave the premises;, and a suit by the Ward heirs to recover possession, of which the plaintiff in error had notice, and it is perfectly clear, that without some affirmative action on the part of Mrs. Fury, the plaintiffs in the suit would have prevailed;for the deed of Mrs. Ward, having no sufficient acknowledgment, was wholly invalid at law. True, Mrs. Fury-might have asserted the infirmity in the suit to- recover the property, aud sought a reformation of the instrument, and probably that course was pursued; but she was not bound to-adopt, or having adopted, wholly rely on that mode of obtaining relief. Indeed, if she set up the defect in that action, and asked that it be remedied, and the proceeding- to recover enjoined, she was the actor, and virtually the plaintiff in the case, and a decree therein would be appeal-able. She might well resort to an independent action, before another tribunal, where there could be no appeal, to obtain the correction with less delay,, and that it is the course she saw proper to -pursue.

But it is said.there must be an eviction before there is a-breach of the covenant of general warranty ; and' no doubt that is true; but it is not essential-that there should be an actual dispossession of the grantee. If the paramount title is so asserted that the grantee must yield to it or go out, he may purchase of the true owner, and this is an eviction which will constitute a breach of such covenant. Nor is it necessary that the paramount title be actually established by judgment or decree. "What the law^ requires is that it be distinctly recognized. And what could be a more marked recognition of it than Mrs. Fury made when she asserted it specifically, in legal form, in her petition to correct the defective acknowledgment ? And if, under the circumstances existing when the petition to reform was filed, Mrs. Fury might have bought in the paramount title, and recovered of Lane any reasonable amount paid therefor, why may she not recover from him the costs and expenses, including counsel fees, in the two suits ? Looking to the substance as well as the form of the transaction, it was a mode of getting in. the legal, title, and we can perceive no reason for a different rule in the latter case from that which prevails in the former. Such a course, moreover, will ordinarily be greatly to the advantage of the grantor; for the expense of correcting such a mistake will, as a general rule, be far less than the holder of the paramount title would demand, and far less than the damages-the grantor would be required to pay when the grantee is turned out of possession.

The principle stated in Rawle on Covenants (4-th edition), 812, in support of which Harding v. Larkin, 41 Ill. 413, is cited, that such recovery can not include expenses and attorney’s fees “ in any remote dr other suit than that by which the paramount title was established,” has no application to this case, for here the money was expended, in obtaining the paramount title.

If, in holding that' this petition is sufficient, we go somewhat further in sustaining such actions than this court has found it necessary heretofore to go, We are. supported, nevertheless, by reason and authority. Rawle on Covenants (4th edition), 1Q8.

Motion overruled.  